EXECUTION VERSION
CREDIT AGREEMENT
dated as of
February 1, 2002
among
XXXXXX XXXXX COMPANY
COORS BREWING COMPANY
GOLDEN ACQUISITION LIMITED
The Lenders Party Hereto
BANK ONE, N.A.
FIRST UNION NATIONAL BANK
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Documentation Agents,
DEUTSCHE BANC ALEX. XXXXX INC.,
as Syndication Agent,
JPMORGAN CHASE BANK,
as Administrative Agent
and
X.X. XXXXXX EUROPE LIMITED,
as London Agent
JPMORGAN CHASE BANK
DEUTSCHE BANC ALEX. XXXXX INC.
BANK ONE, N.A.
LLOYDS BANK
FIRST UNION SECURITIES, INC.
XXXXXX XXXXXXX SENIOR FUNDING, INC.
as Co-Arrangers
and
X.X. XXXXXX SECURITIES INC.
DEUTSCHE BANC ALEX. XXXXX INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 17
SECTION 1.03. Terms Generally 17
SECTION 1.04. Accounting Terms; GAAP 17
SECTION 1.05. Exchange Rates 18
ARTICLE II
The Credits
SECTION 2.01. Commitments 18
SECTION 2.02. Loans and Borrowings 18
SECTION 2.03. Requests for Borrowings 19
SECTION 2.04. Letters of Credit 20
SECTION 2.05. Funding of Borrowings 23
SECTION 2.06. Interest Elections 23
SECTION 2.07. Termination and Reduction of Commitments 24
SECTION 2.08. Repayment of Loans; Evidence of Debt 25
SECTION 2.09. Amortization of Term Loans 25
SECTION 2.10. Prepayment of Loans 26
SECTION 2.11. Fees 27
SECTION 2.12. Interest 28
SECTION 2.13. Alternate Rate of Interest 29
SECTION 2.14. Increased Costs 29
SECTION 2.15. Break Funding Payments 30
SECTION 2.16. Taxes 30
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs 31
SECTION 2.18. Mitigation Obligations; Replacement of Lenders 32
SECTION 2.19. Designation of Additional Subsidiary Borrowers 33
SECTION 2.20. Additional Reserve Costs 33
SECTION 2.21. Redenomination of Certain Designated Foreign Currencies 33
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers 34
SECTION 3.02. Authorization; Enforceability 34
SECTION 3.03. Governmental Approvals; No Conflicts 34
SECTION 3.04. Financial Condition; No Material Adverse Change 34
SECTION 3.05. Properties 35
SECTION 3.06. Litigation and Environmental Matters 35
SECTION 3.07. Compliance with Laws and Agreements 35
SECTION 3.08. Investment and Holding Company Status 35
SECTION 3.09. Taxes 36
SECTION 3.10. ERISA 36
SECTION 3.11. Disclosure 36
SECTION 3.12 Margin Stock 36
SECTION 3.13 Subsidiaries; Guarantee Requirement 36
ARTICLE IV
Conditions
SECTION 4.01. Effective Date 36
SECTION 4.02. Effectiveness of Obligations to Extend
Non-Acquisition Credit 37
SECTION 4.03. Each Credit Event 37
SECTION 4.04. Initial Credit Event for each US Subsidiary Borrower 38
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information 38
SECTION 5.02. Notices of Material Events 39
SECTION 5.03. Existence; Conduct of Business 39
SECTION 5.04. Payment of Obligations 39
SECTION 5.05. Maintenance of Properties; Insurance 40
SECTION 5.06. Books and Records; Inspection Rights 40
SECTION 5.07. Compliance with Laws 40
SECTION 5.08. Use of Proceeds 40
SECTION 5.09. Guarantee Requirement 40
SECTION 5.10. Indebtedness 40
ARTICLE VI
Negative Covenants
SECTION 6.01. Subsidiary Indebtedness 40
SECTION 6.02. Liens 41
SECTION 6.03. Sale and Leaseback Transactions 42
SECTION 6.04. Fundamental Changes 43
SECTION 6.05. Transactions with Affiliates 43
SECTION 6.06. Leverage Ratio 43
SECTION 6.07. Interest Coverage Ratio 43
ARTICLE VII
Events of Default and CAM
SECTION 7.01. Events of Default 43
SECTION 7.02. CAM Exchange 45
SECTION 7.03. Letters of Credit 45
ARTICLE VIII
Guarantee 46
ARTICLE IX
The Agents 47
ARTICLE X
Miscellaneous
SECTION 10.01. Notices 49
SECTION 10.02. Waivers; Amendments 50
SECTION 10.03. Expenses; Indemnity; Damage Waiver 50
SECTION 10.04. Successors and Assigns 51
SECTION 10.05. Survival 53
SECTION 10.06. Counterparts; Integration; Effectiveness 54
SECTION 10.07. Severability 54
SECTION 10.08. Right of Setoff 54
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process 54
SECTION 10.10. WAIVER OF JURY TRIAL 55
SECTION 10.11. Headings 55
SECTION 10.12. Confidentiality 55
SECTION 10.13. Interest Rate Limitation 55
SECTION 10.14. Conversion of Currencies 55
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.17 -- Payment Instructions
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiary Guarantors
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A-1 -- Form of Borrowing Subsidiary Agreement
Exhibit A-2 -- Form of Borrowing Subsidiary Termination
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Mandatory Costs Rate
Exhibit D -- Form of Subsidiary Guarantee Agreement
Exhibit E-1 -- Form of Opinion of Assistant Secretary of the Company
Exhibit E-2 -- Form of Opinion of US Counsel to the Company
Exhibit E-3 -- Form of Opinion of UK Counsel to the Company
CREDIT AGREEMENT dated as of February 1, 2002 among XXXXXX
XXXXX COMPANY, a Colorado corporation (the "Company"), COORS
BREWING COMPANY, a Colorado corporation ("CBC"), GOLDEN
ACQUISITION LIMITED, a company incorporated under the laws
of England and Wales (the "UK Borrower"), the LENDERS party
hereto, DEUTSCHE BANC ALEX. XXXXX INC., as Syndication
Agent, X.X. XXXXXX EUROPE LIMITED, as London Agent, and
JPMORGAN CHASE BANK, as Administrative Agent.
The Company intends to acquire (the "Acquisition") directly
or through wholly owned subsidiaries all the outstanding
shares of Bass Holdings Limited, a company incorporated
under the laws of England and Wales ("BHL"), from Interbrew
UK Holdings Limited ("Interbrew UK"), certain intellectual
property of Brandbrew S.A. ("Brandbrew") from Brandbrew,
certain export assets identified in the business purchase
agreement referred to in the Share Purchase Agreement owned
by Bass Brewers Worldwide Ltd. ("BBW") from BBW, the
Caffreys brand rights identified in the assignment agreement
made in connection with the Share Purchase Agreement from
BHL (together, the "Acquired Business"). In connection with
the Acquisition, the Company intends to loan BHL the funds
necessary to repay Indebtedness owed to Interbrew UK as
specified in the Share Purchase Agreement and to cause it to
repay such Indebtedness. The aggregate consideration for
the Acquisition and the repayment of such Indebtedness will
be approximately 1,200,000,000 in Sterling. In connection
with the Acquisition, the Company will (a) obtain
the credit facilities provided for under this Agreement and
(b) establish the Bridge Facility (such term and each other
capitalized term used but not otherwise defined herein
having the meaning assigned to it in Article I) in an
aggregate principal amount not to exceed $825,000,000.
The Borrowers have requested that the Lenders establish the
credit facilities provided for herein under which (i) the
Borrowers may obtain US Tranche Revolving Loans in US
Dollars or Sterling, in an aggregate principal amount of up
to $250,000,000, (ii) the UK Borrower may obtain UK Tranche
Revolving Loans in Sterling, and the Company, CBC and the UK
Borrower may obtain UK Tranche Revolving Loans in US
Dollars, Sterling or Euro, in an aggregate principal amount
of up to $50,000,000 and (iii) the Company, CBC and the UK
Borrower may obtain Term Loans in US Dollars or Sterling, in
an aggregate principal amount of up to $800,004,400. The
Term Loans will be used to provide a portion of the funds
required for the purchase of the Acquired Business and to
pay related fees and expenses and the Revolving Loans will
be used for working capital and general corporate purposes
(including refinancing the Company's maturing commercial
paper) and, if necessary, to fund a portion of the funds
required for the Acquisition and to pay related fees and
expenses. The Lenders are willing to establish such credit
facilities upon the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
"Acquired Business" has the meaning assigned to such term in
the preamble hereto.
"Acquired Car Leasing Business" means the business carried
on by Bass Brewers Car Leasing.
"Acquisition" has the meaning assigned to such term in the
preamble hereto.
"Acquisition Loans" means Loans made on the Effective Date
the proceeds of which are used to fund the Acquisition or to
pay related fees and expenses.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to (a) the LIBO Rate for such Interest Period
divided by (b) 1.00 minus the Statutory Reserves applicable
to such Eurocurrency Borrowing.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder,
or any successor administrative agent appointed in
accordance with Article IX.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative
Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent and
the London Agent.
"Alternate Base Rate" means, for any
day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan,
Borrowing or Letter of Credit denominated in US Dollars, and
with respect to any payment hereunder that does not relate
to a particular Loan or Borrowing, the Administrative Agent
and (b) with respect to a Loan, Borrowing or Letter of
Credit denominated in Sterling or Euro, the London Agent.
"Applicable Rate" means, for any day, with respect to any
ABR Loan or Eurocurrency Loan, or with respect to the
commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption
"ABR Spread", "Eurocurrency Spread" or "Commitment Fee
Rate", as the case may be, based upon the ratings by S&P and
Xxxxx'x, respectively, applicable on such date to the Index
Debt:
Index Debt Ratings ABR Eurocurrency Commitment Fee
(S&P/Xxxxx'x): Spread Spread Rate
Category 1
BBB+/Baa1 or
higher 0.000% 0.875% 0.150%
Category 2
BBB/Baa2 0.000% 1.000% 0.175%
Category 3
BBB-/Baa3 0.250% 1.250% 0.200%
Category 4
BBB-/Ba1 or
BB+/Baa3 0.500% 1.500% 0.250%
Category 5
BB+/Ba1 0.750% 1.750% 0.275%
Category 6
BB/Ba2 or lower 1.250% 2.250% 0.375%
For purposes of the foregoing, (i) if either Xxxxx'x or S&P
shall not have in effect a rating for the Index Debt (other
than by reason of the circumstances referred to in the last
sentence of this definition), then such rating agency shall
be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been
established by Xxxxx'x and S&P for the Index Debt shall fall
(A) within different Categories but each such rating shall
be within a Category at or above Category 4, the Applicable
Rate shall be based on the higher of the two ratings, unless
one of the ratings is two or more Categories lower than the
other, in which case the Applicable Rate shall be determined
by reference to the Category next below that of the higher
of the two ratings, (B) within Category 4, the Applicable
Rate shall be determined by reference to Category 4 and (C)
except in the case where Category 4 applies, within
different Categories but at least one of such ratings shall
be within a Category at or below Category 5, the Applicable
Rate shall be determined by reference to the lower of the
two ratings; and (iii) if the ratings established or deemed
to have been established by Xxxxx'x and S&P for the Index
Debt shall be changed (other than as a result of a change in
the rating system of Xxxxx'x or S&P), such change shall be
effective as of the date on which it is first announced by
the applicable rating agency, irrespective of when notice of
such change shall have been furnished by the Borrower to the
Agent and the Lenders pursuant to Section 5.01(f) hereof or
otherwise. Each change in the Applicable Rate shall apply
during the period commencing on the effective date of such
change and ending on the date immediately preceding the
effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such
rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Lenders
shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate
shall be determined by reference to the rating most recently
in effect prior to such change or cessation.
"Asset Disposition" means (a) any sale, transfer or other
disposition of any capital stock of any Subsidiary to any
Person other than the Company or any Wholly Owned Subsidiary
(including, without limitation, through the merger of any
Subsidiary with or into any Person other than the Company or
any Wholly Owned Subsidiary), (b) any sale, transfer or
other disposition of any other property or asset of the
Company or any Subsidiary to any Person other than the
Company or any Wholly Owned Subsidiary, other than any sale,
transfer or other disposition of: (i) any current asset in
the ordinary course of business; (ii) any asset within 180
days after the acquisition, or completion of construction,
thereof to a Person other than the Company or a Subsidiary
who then leases such property to the Company or a
Subsidiary; (iii) the Acquired Car Leasing Business; (iv)
any Specified Asset; (v) any property or asset pursuant to a
Securitization Transaction permitted under Section 6.01(h);
and (vi) any other property or assets in the ordinary course
of business if the total consideration received by the
Company and the Subsidiaries in respect of any such sale,
transfer or other disposition, or series of related sales,
transfers or dispositions, does not exceed $5,000,000, or
(c) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar
proceeding of, assets of the Company or any Subsidiary where
the total consideration received by the Company and the
Subsidiaries in respect of such event or proceeding, or
series of events or proceedings, exceeds $5,000,000.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with
the consent of any party whose consent is required by
Section 10.04), and accepted by the Administrative Agent, in
the form of Exhibit B or any other form approved by the
Administrative Agent.
"Attributable Debt" means, with respect to any Sale-
Leaseback Transaction, the present value (discounted at the
rate set forth or implicit in the terms of the lease
included in such Sale-Leaseback Transaction) of the total
obligations of the lessee for rental payments (other than
amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities,
operating and labor costs and other items which do not
constitute payments for property rights) during the
remaining term of the lease included in such Sale-Leaseback
Transaction (including any period for which such lease has
been extended). In the case of any lease which is
terminable by the lessee upon payment of a penalty, the
Attributable Debt shall be the lesser of the Attributable
Debt determined assuming termination upon the first date
such lease may be terminated (in which case the Attributable
Debt shall also include the amount of the penalty, but no
rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so
terminated) or the Attributable Debt determined assuming no
such termination.
"BHL" has the meaning assigned to such term in the preamble
hereto.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type,
made, converted or continued on the same date and, in the
case of Eurocurrency Loans, as to which a single Interest
Period is in effect, or (b) Term Loans of the same Type
made, converted or continued on the same date and, in the
case of Eurocurrency Loans, as to which a single Interest
Period is in effect.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in US Dollars, $5,000,000, (b) in the case of a
Borrowing denominated in British pound sterling, 5,000,000 and
(c) in the case of a Borrowing denominated in Euro dollars,
5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, $1,000,000, (b) in the case of a
Borrowing denominated in British pound sterling, 1,000,000 and
(c) in the case of a Borrowing denominated in Euro dollars,
1,000,000.
"Borrowing Request" means a request by a Borrower for a
Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means CBC, the UK Borrower and any
other Subsidiary that has been designated as such pursuant
to Section 2.19 and that has not ceased to be a Borrowing
Subsidiary as provided in such Section.
"Borrowing Subsidiary Agreement" means a Borrowing
Subsidiary Agreement substantially in the form of Exhibit X-
0.
"Borrowing Subsidiary Termination" means a Borrowing
Subsidiary Termination substantially in the form of
Exhibit A-2.
"Bridge Facility" means the senior unsecured bridge credit
facility made available to the Company and CBC under the
Bridge Credit Agreement dated as of the date hereof among
the Company, CBC, the lenders named therein and JPMC, as
administrative agent, as amended from time to time. The
aggregate amount of the loans borrowed under the Bridge
Facility on the Effective Date was $750,000,000.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are
authorized or required by law to remain closed; provided
that, (a) when used in connection with (i) a Eurocurrency
Loan or (ii) a Letter of Credit denominated in Sterling or
Euro, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in deposits in the
applicable currency in the London interbank market, and
(b) when used in connection with a Loan denominated in Euro,
the term "Business Day" shall also exclude any day on which
the TARGET payment system is not open for the settlement of
payments in Euro.
"Calculation Date" means the last Business Day of each
fiscal quarter of the Company.
"CAM" means the mechanism for the allocation and exchange of
interests in Loans and other extensions of credit under the
several Tranches and Term Loans and collections thereunder
established under Section 7.02.
"CAM Exchange" means the exchange of the Lender's interests
provided for in Section 7.02.
"CAM Exchange Date" means the date on which any event
referred to in paragraph (h) or (i) of Section 7.01 shall
occur in respect of the Company or the UK Borrower.
"CAM Percentage" means, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be
the aggregate US Dollar Equivalent (determined on the basis
of Exchange Rates prevailing on the CAM Exchange Date) of
the Designated Obligations owed to such Lender (whether or
not at the time due and payable) and such Lender's
participations in undrawn amounts of Letters of Credit
immediately prior to the CAM Exchange Date and (b) the
denominator shall be the aggregate US Dollar Equivalent (as
so determined) of the Designated Obligations owed to all the
Lenders (whether or not at the time due and payable) and the
aggregate undrawn amount of undrawn Letters of Credit
immediately prior to the CAM Exchange Date.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall
be the capitalized amount thereof determined in accordance
with GAAP.
"CBC" means Coors Brewing Company, a Colorado corporation.
"Change in Control" means (a) at any time when the Permitted
Holders do not beneficially own Equity Interests
representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding Equity
Interests of the Company, the acquisition of ownership,
directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date
hereof), other than any Permitted Holder, of Equity
Interests representing more than 30% of the aggregate
ordinary voting power represented by the issued and
outstanding Equity Interests of the Company; (b) occupation
of a majority of the seats (other than vacant seats) on the
board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the
Company nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of the Company
by any Person or group, other than any Permitted Holder.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change
in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.15(b), by
any lending office of such Lender or by such Lender's or
Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of
law, but if not having the force of law, being of a type
with which such Person would ordinarily comply) of any
Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are US Tranche Revolving Loans, UK Tranche
Revolving Loans or Term Loans and, when used in reference to
any Commitment, refers to whether such Commitment is a US
Tranche Revolving Commitment, a UK Tranche Revolving
Commitment or a Term Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means a US Tranche Revolving Commitment, a
UK Tranche Revolving Commitment or Term Loan Commitment or
any combination thereof (as the context requires).
"Company" means Xxxxxx Xxxxx Company, a Colorado
corporation.
"Consolidated EBITDA" means, for any period, consolidated
net income of the Company and the Subsidiaries for such
period plus, without duplication and to the extent deducted
in determining such consolidated net income, the sum of
(i) Consolidated Interest Expense for such period,
(ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and
amortization (or other impairment of intangible assets) for
such period, (iv) any non-cash charges for such period
(provided, that any cash payment made with respect to any
such non-cash charge shall be subtracted in computing
Consolidated EBITDA during the period in which such cash
payment is made), (v) cash charges for such period related
to the sale, transfer or other disposition of Specified
Assets in an aggregate amount for all periods for all such
cash charges not to exceed $50,000,000, and (vi)
extraordinary non-cash losses for such period (provided,
that any cash payments made in respect of items that are the
subject of any such extraordinary non-cash loss shall be
subtracted in computing Consolidated EBITDA during the
periods in which such cash payments are made), determined
without giving effect to any extraordinary gains for such
period (other than up to $10,000,000 of extraordinary cash
gains realized in such period) to the extent included in
determining consolidated net income of the Company and the
Subsidiaries, all determined on a consolidated basis in
accordance with GAAP; provided that for the purposes of
computing the ratios set forth in Sections 6.06 and 6.07 and
identifying the Significant Subsidiaries, Consolidated
EBITDA in respect of the fiscal quarter ending March 31,
2002, and the fiscal quarters ended December 30, 2001 and
September 30, 2001, shall include the consolidated EBITDA of
the Acquired Business, which shall be deemed to equal for
any such quarter (i) if pro forma quarterly consolidated
financial statements of the Acquired Business meeting the
requirements of Regulation S-X under the Securities Act of
1933 are available, the actual consolidated quarterly EBITDA
of the Acquired Business for such quarter, calculated in the
manner set forth above, or (ii) if such pro forma quarterly
consolidated financial statements of the Acquired Business
meeting the requirements of Regulation S-X under the
Securities Act of 1933 are not available, the annual
consolidated EBITDA of the Acquired Business, calculated in
the manner set forth above on the basis of audited annual
consolidated financial statements of the Acquired Business
for the four fiscal quarters ended December 30, 2001,
divided by four.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Company and the Subsidiaries for
such period determined on a consolidated basis in accordance
with GAAP (and giving effect on a net basis to payments made
or received under interest rate protection agreements or
other interest rate hedging arrangements), including (a) the
amortization of debt discounts to the extent included in
interest expense in accordance with GAAP, (b) the
amortization of all fees (including fees with respect to
interest rate protection agreements or other interest rate
hedging arrangements) payable in connection with the
incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP, (c) commissions,
discounts and other fees and charges owed in respect of
letters of credit to the extent included in interest expense
in accordance with GAAP and (d) the portion of any rents
payable under capital leases allocable to interest expense
in accordance with GAAP. For purposes of determining the
ratio set forth in Section 6.07 for the four fiscal quarter
periods ended at June 30, 2002, September 29, 2002, and
December 29, 2002, Consolidated Interest Expense shall be
determined by multiplying Consolidated Interest Expense for
the period commencing April 1, 2002 by (i) 4, in the case of
the period ended June 30, 2002, (ii) 2, in the case of the
period ended September 29, 2002, and (iii) 4/3, in the case
of the period ended December 29, 2002.
"Consolidated Net Tangible Assets" means, at any time, the
aggregate amount of assets (less applicable accumulated
depreciation, depletion and amortization and other reserves
and other properly deductible items) of the Company and the
Subsidiaries, minus (a) all current liabilities of the
Company and the Subsidiaries (excluding (i) liabilities that
by their terms are extendable or renewable at the option of
the obligor to a date more than 12 months after the date of
determination and (ii) current maturities of long-term debt)
and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other intangible
assets of the Company and the Subsidiaries, all as set forth
in the most recent consolidated balance sheet of the Company
and the Subsidiaries delivered pursuant to Section 5.01,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt" means, on any date, all
Indebtedness of the Company and the Subsidiaries on such
date (other than obligations referred to in clause (i) of
the definition of "Indebtedness" to the extent they support
liabilities that do not themselves constitute Indebtedness),
determined, without duplication, on a consolidated basis in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both
would become an Event of Default.
"Designated Obligations" means, in respect of this
Agreement, all Obligations of the Loan Parties in respect of
(a) principal of and interest on the Loans, (b) payments
required to be made hereunder in respect of Letters of
Credit, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide
cash collateral and (c) commitment fees and Letter of Credit
participation fees in respect of this Agreement, in each
case regardless of whether then due and payable.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means a Subsidiary that is not a
Foreign Subsidiary.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in
accordance with Section 10.02).
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or
operation of the Euro in one or more member states.
"Environmental Laws" means all applicable and legally
binding laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural
resources, the management, release or threatened release of
any Hazardous Material or to environmental or workplace
health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities),
of the Company or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant
to which liability is assumed or imposed with respect to any
of the foregoing.
"Equity Interests" means shares of capital stock,
partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other
equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) that, together with the Company, is
treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Company or any ERISA
Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Company or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Company or
any ERISA Affiliate of any notice, concerning the imposition
of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Euro" or "_" means the single currency of the European
Union as constituted by the Treaty on European Union and as
referred to in the EMU Legislation.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Section 7.01.
"Exchange Rate" means on any day, for purposes of
determining the US Dollar Equivalent of any other currency,
the rate at which such other currency may be exchanged into
US Dollars, as set forth at approximately 11:00 a.m., London
time, on such day on the Bloomberg Index WCR page for such
currency, or if such rate does not appear on the Bloomberg
Index WCR, on the Reuters World Currency Page for such
currency. In the event that such rate does not appear on
any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company, or, in the
absence of such an agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of
exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such
currency are then being conducted, at or about 10:00 a.m.,
Local Time, on such date for the purchase of US Dollars for
delivery two Business Days later; provided that if at the
time of any such determination, for any reason, no such spot
rate is being quoted, the Administrative Agent may, after
consultation with the Company, use any reasonable method it
deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Taxes" means, with respect to any Lender, Agent or
the Issuing Bank, (a) income or franchise taxes imposed on
(or measured by) its net income or net profits by the United
States of America (or any political subdivision thereof), or
by the jurisdiction under which such recipient is organized
or in which its principal office or any lending office from
which it makes Loans hereunder is located, (b) any branch
profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction described in
clause (a) above, (c) any withholding tax that is imposed
(other than by operation of the CAM) (i) by the United
States of America on payments by any Borrower organized or
resident for tax purposes in the United States or (ii) by
the United Kingdom on payments by any Borrower organized or
resident for tax purposes in the United Kingdom, in either
case to the extent such tax is in effect and would apply as
of the date such Lender, Agent or the Issuing Bank becomes a
party to this Agreement or relates to payments received by a
Lender Affiliate or a new lending office designated by such
Lender and is in effect and would apply at the time such
Lender Affiliate receives such payment or such lending
office is designated, (d) any withholding tax that is
attributable to such Lender's, Agent's or the Issuing Bank's
failure to comply with Section 2.16(e), (e) Taxes imposed by
any jurisdiction (i) in which the Borrower is not organized
or resident for tax purposes, (ii) through which no payment
is made by or on behalf of the Borrower under this
Agreement, and (iii) with respect to which there is no other
connection between the making of a payment by or on behalf
of a Borrower under this Agreement and such jurisdiction
that would directly result in the imposition of Taxes by
such jurisdiction on that payment, and (f) Taxes imposed by
the United Kingdom on a payment under this Agreement to a
Lender that was a Qualifying Lender on the date it became a
party to this Agreement if such Taxes are imposed solely as
a result of the relevant Lender ceasing to be a Qualifying
Lender, other than as a result of any change in any law,
treaty, published practice or concession by any relevant
Governmental Authority after the date such Lender becomes a
party to this Agreement.
"Existing Credit Agreement" means the $200,000,000 Revolving
Credit Agreement dated as of October 23, 1997, among the
Company, Nationsbank of Texas, N.A., as agent and the banks
party thereto.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the
Company.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United
States or any state thereof.
"GAAP" means generally accepted accounting principles in the
United States of America, as construed in accordance with
Section 1.04.
"Governmental Authority" means the government of the United
States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner
of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business.
"Guarantee Requirement" means, at any time, that the
Subsidiary Guarantee Agreement (or a supplement referred to
therein) shall have been executed by each Significant
Subsidiary (other than a Foreign Subsidiary) existing at
such time, shall have been delivered to the Administrative
Agent and shall be in full force and effect; provided,
however, that, with respect to any Person that becomes a
Significant Subsidiary (other than a Foreign Subsidiary)
after the date hereof, the Guarantee Requirement shall be
satisfied if such Person executes a supplement to the
Subsidiary Guarantee Agreement within 15 days of becoming a
Significant Subsidiary.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement. The
"principal amount" of the obligations of the Company or any
Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any
netting agreements) that the Company or such Subsidiary
would be required to pay to the counterparty thereunder in
accordance with the terms of such Hedging Agreement if such
Hedging Agreement were terminated at such time.
"Indebtedness" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money or
with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds (other than
performance bonds), debentures, notes or similar
instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations
of such Person under conditional sale or other title
retention agreements relating to property acquired by such
Person (other than customary title retention provisions in
supply contacts entered into in the ordinary course of
business with payment terms not exceeding 90 days), (e) all
obligations of such Person in respect of the deferred
purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, provided,
that the amount of Indebtedness of such Person existing at
any time under this clause shall be deemed to be an amount
equal to the maximum amount secured by (or with a right to
be secured by) such Liens pursuant to the terms of the
instruments embodying such Indebtedness of others, (g) all
Guarantees by such Person of Indebtedness of others,
provided, that the amount of any such Guarantee at any time
shall be deemed to be an amount equal to maximum amount for
which such Person may be liable pursuant to the terms of the
instrument embodying such Guarantee, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent
or otherwise, of such Person as an account party in respect
of letters of credit and letters of guaranty, (j) all
obligations of such Person in respect of Hedging Agreements,
(k) all obligations, contingent or otherwise, of such Person
in respect of bankers' acceptances and (l) all
Securitization Transactions of such Person. The
Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by
any other Person or subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated January 2002 relating to the Company and
the Transactions.
"Interest Coverage Ratio" means, for any period, the ratio
of (a) Consolidated EBITDA for such period to
(b) Consolidated Interest Expense for such period.
"Interest Election Request" means a request by a Borrower to
convert or continue a Revolving Borrowing or a Term
Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and
December and (b) with respect to any Eurocurrency Loan, the
last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a
Eurocurrency Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest
Period.
"Interest Period" means, with respect to any Eurocurrency
Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months,
or, if agreed by the applicable Lenders, nine or twelve
months, thereafter, as the applicable Borrower may elect;
provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such
next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) any Interest Period that
commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of
such Interest Period and (iii) the initial Interest Period
for the Borrowings made on the Effective Date will be a
period of 21 days. For purposes hereof, the date of a
Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date
of the most recent conversion or continuation of such
Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as
the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.04(i).
The Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit
issued by such Affiliate.
"JPMC" means JPMorgan Chase Bank.
"Judgment Currency" has the meaning assigned to such term in
Section 10.14(b).
"LC Disbursement" means a payment made by the Issuing Bank
in respect of a Letter of Credit.
"LC Exposure" means at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit
denominated in US Dollars at such time, (b) the aggregate of
the US Dollar Equivalents of the undrawn amounts of all
outstanding Letters of Credit denominated in Sterling at
such time, (c) the aggregate amount of all LC Disbursements
denominated in US Dollars that have not yet been reimbursed
by or on behalf of the relevant Borrower at such time and
(d) the aggregate of the US Dollar Equivalents of the
amounts of all LC Disbursements denominated in Sterling that
have not yet been reimbursed by or on behalf of the relevant
Borrower at such time. The LC Exposure of any US Tranche
Lender at any time shall be such Lender's US Tranche
Percentage of the aggregate LC Exposure.
"Lender Affiliate" means, (a) with respect to any Lender,
(i) an Affiliate of such Lender or (ii) any entity (whether
a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in
the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b)
with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit
and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Lenders" means the Persons listed on Schedule 2.01, their
successors and any other Person that shall have become a
party hereto pursuant to Section 10.04, other than any such
Person that ceases to be a party hereto pursuant to Section
10.04.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement on behalf of Lenders holding US
Tranche Revolving Commitments.
"Leverage Ratio" means, at any time, the ratio of
(a) Consolidated Total Debt at such time to (b) Consolidated
EBITDA for the most recent period of four consecutive fiscal
quarters of the Company ended at or prior to such time.
"LIBO Rate" means, for any Interest Period, (a) with respect
to (i) any Eurocurrency Borrowing denominated in a currency
other than Sterling and (ii) any UK Tranche Revolving
Borrowing made by the UK Borrower (or by another Borrowing
Subsidiary organized under the laws of England and Wales)
and denominated in Sterling, the rate per annum determined
by the Applicable Agent at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period by
reference to the British Bankers' Association Interest
Settlement Rates for deposits in the currency of such
Borrowing (as reflected on the applicable Telerate screen),
for a period equal to such Interest Period, or, if an
interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the interest rate per annum
determined by the Applicable Agent to be the average of the
rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major
banks in the London interbank market by JPMC at
approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period, and (b) with respect to any
Eurocurrency Borrowing (other than any UK Tranche Revolving
Borrowing made by the UK Borrower or by another Borrowing
Subsidiary organized under the laws of England and Wales)
denominated in Sterling, the interest rate per annum
determined by the Applicable Agent to be the average of the
rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major
banks in the London interbank market by JPMC at
approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and
(c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such
securities.
"Loan Documents" this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination, the
Subsidiary Guarantee Agreement and each Letter of Credit and
promissory note delivered pursuant to this Agreement.
"Loan Parties" means the Borrowers and the Subsidiary
Guarantors.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means (a) with respect to a Loan, Borrowing or
Letter of Credit denominated in US Dollars, New York City
time and (b) with respect to a Loan, Borrowing or Letter of
Credit denominated in Sterling or Euro, as applicable,
London time.
"London Agent" means X.X. Xxxxxx Europe Limited, in its
capacity as London agent for the Lenders hereunder, or any
successor thereto appointed in accordance with Article IX.
"Margin Stock" means "margin stock" as defined in Regulation
U of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities or condition,
financial or otherwise, of the Company and the Subsidiaries
taken as a whole, (b) the ability of the Loan Parties, taken
as a whole, to perform any of their obligations under the
Loan Documents or (c) the rights of or benefits available to
the Lenders under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans) of any one or more of the Company and its
Subsidiaries in an aggregate principal amount exceeding
$25,000,000.
"Maturity Date" means the fifth anniversary of the Effective
Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any Asset Disposition
or issuance of Indebtedness under Section 6.01(i)(iii),
(a) the cash proceeds received in respect thereof, including
(i) any cash received in respect of any non-cash proceeds,
but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a
condemnation or similar event, condemnation awards and
similar payments, net of (b) the sum of (i) all fees,
discounts, commissions and out-of-pocket expenses paid by
the Company and its Subsidiaries to third parties (other
than Affiliates) in connection therewith, (ii) the amount of
all payments required to be made by the Company and its
Subsidiaries as a result thereof to repay Indebtedness
(other than Loans) secured by the assets disposed of or
otherwise subject to mandatory prepayment as a result of
such event, (iii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Company and the
Subsidiaries with respect to the year that such Asset
Disposition occurred and that are directly attributable to
such Asset Disposition (as determined reasonably and in good
faith by the chief financial officer of the Company), and
(iv) the amount of any reserves established by the Company
and its Subsidiaries to fund contingent liabilities
reasonably estimated to be payable in connection with, and
directly attributable to, such Asset Disposition (as
determined reasonably and in good faith by the chief
financial officer of the Company).
"Obligations" means (a) the due and punctual payment of (i)
the principal of and interest (including interest accruing
during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the
Loans made to any Borrower, when and as due, whether at
maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be
made by any Borrower under this Agreement in respect of any
Letter of Credit, when and as due, including payments in
respect of reimbursement of disbursements, interest thereon
and obligations to provide cash collateral and (iii) all
other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such
proceeding), of the Loan Parties under this Agreement and
the other Loan Documents, and (b) the due and punctual
payment and performance of all obligations of the Company or
any Subsidiary, monetary or otherwise, under each interest
rate Hedging Agreement relating to Obligations referred to
in the preceding clause (a) entered into with any
counterparty that was a Lender (or an Affiliate thereof) at
the time such hedging agreement was entered into.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, or similar taxes,
charges or levies arising from any payment made hereunder or
from the execution, delivery or enforcement of this
Agreement or any other Loan Document other than an
Assignment and Acceptance that does not require the consent
of the Company and a sale of a participation pursuant to
Section 10.04.
"Participant" has the meaning set forth in Section 10.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity
performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations
that are not overdue by more than 60 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 7.01(j);
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any
Subsidiary;
(g) any interest or title of a lessor in the property
subject to any lease other than (A) a capital lease or (B) a
lease entered into as part of a sale and leaseback
transaction subject to Section 6.03;
(h) Liens in favor of customs or revenue authorities imposed
by law and arising in the ordinary course of business in
connection with the importation of goods;
(i) interests of suppliers in respect of customary title
retention provisions in supply contacts entered into in the
ordinary course of business and with payment terms not
exceeding 90 days; and
(j) rights of set-off in favor of financial institutions
(other than in respect of amounts deposited to secure
Indebtedness);
provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Permitted Holders" means (a) the Xxxxxx Xxxxx, Xx. Trust,
(b) any trustee of such Trust acting in its capacity as
such, (c) any Person that is a beneficiary of such trust on
the date hereof, (d) any other trust or similar arrangement
for the benefit of such beneficiaries and (e) the successors
of any such Persons.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other
entity.
"Plan" means any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV
of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Company or any ERISA Affiliate
is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its
prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as
being effective.
"Qualifying Lender" means a Lender which is, on the date a
payment falls due under this Agreement, (a) beneficially
entitled to, and within the charge to United Kingdom
corporation tax in respect of, that payment and that is a
Lender in respect of an advance made by a person that was a
bank for purposes of Section 349 of the Income and
Corporation Taxes Act 1988 (as currently defined in section
840A of the Income and Corporation Taxes Act 1988) at the
time the advance was made, (b) a person to whom that payment
may be made without deduction or withholding for or on
account of United Kingdom taxes by reason of an applicable
double taxation treaty between the United Kingdom and the
country in which that Lender is, or is treated as, resident
or carrying on a business pursuant to which there is a valid
and extant claim of such person or (c) beneficially entitled
to interest payable to that Lender in respect of an advance
under this Agreement and is (i) a company resident in the
United Kingdom for United Kingdom tax purposes; (ii) a
partnership each member of which is a company resident in
the United Kingdom for United Kingdom tax purposes; or (iii)
a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a branch or
agency and which brings into account interest payable in
respect of that advance in computing its chargeable profits
(within the meaning given by Section 11(2) of the Income and
Corporation Taxes Act 1988).
"Quotation Day" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is
market practice in the relevant interbank market for prime
banks to give quotations for deposits in the currency of
such Borrowing for delivery on the first day of such
Interest Period. If such quotations would normally be given
by prime banks on more than one day, the Quotation Day will
be the last of such days.
"Receivables" means accounts receivable (including, without
limitation, all rights to payment created by or arising from
the sales of goods, leases of goods or the rendition of
services, no matter how evidenced and whether or not earned
by performance) and payments owing to the Company or any
Subsidiary from public house businesses in the United
Kingdom in respect of loans made by BHL or any Subsidiary of
BHL to such businesses.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective
directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures, outstanding Term Loans and
unused Commitments representing more than 50% of the
aggregate Revolving Credit Exposures, outstanding Term Loans
and unused Commitments at such time.
"Reset Date" has the meaning assigned to such term in
Section 1.05.
"Revolving Availability Period" means the period from and
including (i) with respect to Loans the proceeds of which
are to be used to fund the Acquisition or to pay related
fees and expenses, the Effective Date or (ii) with respect
to other extensions of credit hereunder, the date on or
after the Effective Date on which the conditions set forth
in Section 4.02 have been satisfied (or waived in accordance
with Section 10.02), to but excluding the earlier of the
Maturity Date and the date of termination of the Revolving
Commitments.
"Revolving Commitment" means a US Tranche Revolving
Commitment or a UK Tranche Revolving Commitment, or any
combination thereof (as the context requires).
"Revolving Credit Exposure" means a US Tranche Revolving
Credit Exposure or a UK Tranche Revolving Credit Exposure.
"Revolving Loan" means a US Tranche Revolving Loan or a UK
Tranche Revolving Loan.
"Sale-Leaseback Transactions" means any arrangement whereby
the Company or a Subsidiary shall sell or transfer any
property, real or personal, used or useful in its business,
whether now owned or hereinafter acquired, and thereafter
rent or lease property that it intends to use for
substantially the same purpose or purposes as the property
sold or transferred; provided that any such arrangement
entered into within 180 days after the acquisition,
construction or substantial improvement of the subject
property shall not be deemed to be a "Sale-Leaseback
Transaction".
"S&P" means Standard & Poor's.
"Securitization Transaction" means (a) any transfer by the
Company or any Subsidiary of Receivables or interests
therein and all collateral securing such Receiveables, all
contracts and contract rights and all guarantees or other
obligations in respect of such Receivables, all other assets
that are customarily transferred or in respect of which
security interests are customarily granted in connection
with asset securitization transactions involving such
Receivables and all proceeds of any of the foregoing (i) to
a trust, partnership, corporation or other entity (other
than the Company or a Subsidiary other than a SPE
Subsidiary), which transfer is funded in whole or in part,
directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of indebtedness or
other securities that are to receive payments from, or that
represent interests in, the cash flow derived from such
Receivables or interests in Receivables, or (ii) directly to
one or more investors or other purchasers (other than the
Company or any Subsidiary), or (b) any transaction in which
the Company or a Subsidiary incurs Indebtedness or other
obligations secured by Liens on Receivables. The "amount"
or "principal amount" of any Securitization Transaction
shall be deemed at any time to be (A) in the case of a
transaction described in clause (a) of the preceding
sentence, the aggregate principal or stated amount of the
Indebtedness or other securities referred to in such clause
or, if there shall be no such principal or stated amount,
the uncollected amount of the Receivables transferred
pursuant to such Securitization Transaction net of any such
Receivables that have been written off as uncollectible, and
(B) in the case of a transaction described in clause (b) of
the preceding sentence, the aggregate outstanding principal
amount of the Indebtedness secured by Liens on the subject
Receivables.
"Share Purchase Agreement" means the Share Purchase
Agreement dated December 24, 2001 among Interbrew S.A.,
Interbrew UK Holdings Limited, Brandbrew S.A., Bass Holdings
Limited, Golden Acquisition Limited, Coors Worldwide, Inc.
and the Company.
"Significant Subsidiary" means (a) each Borrowing
Subsidiary, (b) any Subsidiary that directly or indirectly
owns or Controls any other Significant Subsidiary, (c) each
Subsidiary identified as a Significant Subsidiary on
Schedule 3.13, (d) any Subsidiary designated from time to
time by the Company as a Significant Subsidiary by written
notice to the Administrative Agent and (e) any other
Subsidiary (other than a SPE) (i) the consolidated EBITDA
of which for the most recently ended period of four fiscal
quarters for which financial statements have been delivered
pursuant to Section 5.01(a) or (b) was more than the lesser
of (A) 5% of the Company's Consolidated EBITDA for such
period and (B) $25,000,000 or (ii) the consolidated assets
of which as of the last day of the most recent period for
which financial statements have been delivered pursuant to
Section 5.01(a) or (b) (or, prior to the delivery of any
such statements, December 30, 2001) were greater than 5% of
the Company's consolidated total assets as of such date as
shown on such financial statements (or, prior to the
delivery of such financial statements, on the pro forma
consolidated balance sheet referred to in Section 3.04(d)).
The Company covenants that it will designate Subsidiaries
as Significant Subsidiaries as contemplated by clause (d) of
the preceding sentence as necessary in order that the total
consolidated assets and the consolidated EBITDA of the
Significant Subsidiaries (together with the directly owned
assets and EBITDA of the Company) will represent not less
than 90% of consolidated total assets or Consolidated EBITDA
of the Company at any relevant date or for any relevant
period referred to above. For purposes of making the
determinations required by this definition, the EBITDA and
assets of Foreign Subsidiaries shall be converted into US
Dollars at the rates used in preparing the consolidated
balance sheets of the Company.
"SPE Subsidiary" means any Subsidiary formed solely for the
purpose of, and that engages only in, one or more
Securitization Transactions.
"Specified Assets" means the Capehill Brewery, the Xxxxx
Brewery and any of the malting facilities of BHL or any of
its Subsidiaries located in the United Kingdom.
"Specified Event" shall mean an Event of Default specified
in paragraph (h) or (i) of Section 7.01.
"Statutory Reserves" means, with respect to any currency,
any reserve, liquid asset or similar requirements
established by any Governmental Authority of the United
States or of the jurisdiction of such currency or any
jurisdiction in which Loans in such currency are made or
funded to which banks in such jurisdiction are subject for
any category of deposits or liabilities customarily used to
fund loans in such currency or by reference to which
interest rates applicable to Loans in such currency are
determined, in each case expressed as a decimal.
"Sterling" means the lawful money of the United Kingdom.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the
accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with
GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as
of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company. At all
times after the Acquisition, BHL and the subsidiaries of BHL
acquired in the Acquisition will constitute Subsidiaries.
"Subsidiary Guarantee Agreement" means a Subsidiary
Guarantee Agreement substantially in the form of Exhibit D,
made by the Subsidiary Guarantors in favor of the
Administrative Agent for the benefit of the Lenders, the
Agents and the Issuing Bank.
"Subsidiary Guarantors" means each Person listed on
Schedule 3.13 and each other Person that becomes party to a
Subsidiary Guarantee Agreement as a Subsidiary Guarantor,
and the permitted successors and assigns of each such
Person, but excluding any Person that ceases to be a
Subsidiary Guarantor in accordance with the provisions of
the Loan Documents.
"Syndication Agent" means Deutsche Banc Alex. Xxxxx Inc.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed
by any Governmental Authority.
"Term Lender" means a Lender with a Term Loan Commitment or
an outstanding Term Loan.
"Term Loan" means a Loan made pursuant to Section 2.01(c).
"Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Term Loans
hereunder on the Effective Date, expressed as an amount
representing the maximum principal amount of the Term Loans
to be made by such Lender hereunder, as such commitment may
be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04.
The initial amount of each Lender's Term Loan Commitment is
set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed
its Term Loan Commitment, as applicable. The initial
aggregate amount of the Lenders' Term Loan Commitments is
$800,004,400.
"Tranche" means a category of Commitments and extensions of
credits thereunder. For purposes hereof, each of the
following comprises a separate Tranche: (a) the US Tranche
Revolving Commitments and the US Tranche Revolving Loans,
(b) the UK Tranche Revolving Commitments and the UK Tranche
Revolving Loans and (c) the Term Commitments and the Term
Loans.
"Transactions" means the execution, delivery and performance
by the Loan Parties of this Agreement and the other Loan
Documents, the borrowing of Loans and the use of the
proceeds thereof, the Acquisition and the other transactions
contemplated to be effected on the Effective Date in
connection therewith.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by
reference to the Adjusted LIBO Rate or the Alternate Base
Rate.
"UK Borrower" means Golden Acquisition Limited.
"UK Tranche Lender" means a Lender with a UK Tranche
Revolving Commitment or with outstanding UK Tranche
Revolving Loans.
"UK Tranche Percentage" means, with respect to any UK
Tranche Lender, the percentage of the total UK Tranche
Revolving Commitments represented by such Lender's UK
Tranche Revolving Commitment. If the UK Tranche Revolving
Commitments have terminated or expired, the UK Tranche
Percentages shall be determined based upon the UK Tranche
Revolving Commitments most recently in effect, giving effect
to any assignments.
"UK Tranche Revolving Borrowing" means a Borrowing comprised
of UK Tranche Revolving Loans.
"UK Tranche Revolving Commitment" means, with respect to
each UK Tranche Lender, the commitment of such UK Tranche
Lender to make UK Tranche Revolving Loans pursuant to
Section 2.01(b), expressed as an amount representing the
maximum aggregate permitted amount of such UK Tranche
Lender's UK Tranche Revolving Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
under Section 10.04. The initial amount of each UK Tranche
Lender's UK Tranche Revolving Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant
to which such UK Tranche Lender shall have assumed its UK
Tranche Revolving Commitment, as applicable. The aggregate
amount of the UK Tranche Revolving Commitments on the date
hereof is US$50,000,000.
"UK Tranche Revolving Credit Exposure" means, at any time,
the sum of (a) the aggregate principal amount of the UK
Tranche Revolving Loans denominated in US Dollars
outstanding at such time and (b) the US Dollar Equivalent of
the aggregate principal amount of the UK Tranche Revolving
Loans denominated in Sterling or Euro outstanding at such
time. The UK Tranche Revolving Credit Exposure of any
Lender at any time shall be such Lender's UK Tranche
Percentage of the total UK Tranche Revolving Credit Exposure
at such time.
"UK Tranche Revolving Loan" means a Loan made by a UK
Tranche Lender pursuant to Section 2.01(b). Each UK Tranche
Revolving Loan denominated in US Dollars shall be a
Eurocurrency Loan or an ABR Loan, and each UK Tranche
Revolving Loan denominated in Sterling shall be a
Eurocurrency Loan.
"US Dollars" or "US$" refers to lawful money of the United
States of America.
"US Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount,
and (b) with respect to any amount in Sterling or Euro, the
equivalent in US Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.05 using the
Exchange Rate with respect to Sterling or Euro, as the case
may be, at the time in effect under the provisions of such
Section.
"US Tranche Lender" means a Lender with a US Tranche
Revolving Commitment or with outstanding US Tranche
Revolving Credit Exposure.
"US Tranche Percentage" means, with respect to any US
Tranche Lender, the percentage of the total US Tranche
Revolving Commitments represented by such Lender's US
Tranche Revolving Commitment. If the US Tranche Revolving
Commitments have terminated or expired, the US Tranche
Percentages shall be determined based upon the US Tranche
Revolving Commitments most recently in effect, giving effect
to any assignments.
"US Tranche Revolving Borrowing" means a Borrowing comprised
of US Tranche Revolving Loans.
"US Tranche Revolving Commitment" means, with respect to
each US Tranche Lender, the commitment of such US Tranche
Lender to make US Tranche Revolving Loans pursuant to
Section 2.01(a) and to acquire participations in Letters of
credit pursuant to Section 2.04, expressed as an amount
representing the maximum aggregate permitted amount of such
Lender's US Tranche Revolving Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time
pursuant to Section 2.07 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each US
Tranche Lender's US Tranche Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such US Tranche Lender shall have assumed
its US Tranche Revolving Commitment, as applicable. The
aggregate amount of the US Tranche Revolving Commitments on
the date hereof is US$250,000,000.
"US Tranche Revolving Credit Exposure" means, at any time,
the sum of (a) the aggregate principal amount of the US
Tranche Revolving Loans denominated in US Dollars
outstanding at such time, (b) the US Dollar Equivalent of
the aggregate principal amount of the US Tranche Revolving
Loans denominated in Sterling outstanding at such time and
(c) the aggregate LC Exposure at such time. The US Tranche
Revolving Credit Exposure of any Lender at any time shall be
such Lender's US Tranche Percentage of the total US Tranche
Revolving Credit Exposure at such time.
"US Tranche Revolving Loan" means a Loan made by a US
Tranche Lender pursuant to Section 2.01(a). Each US Tranche
Revolving Loan shall be a Eurocurrency Loan or an ABR Loan.
"Wholly Owned Subsidiary" means any Subsidiary all the
Equity Interests in which, other than directors' qualifying
shares and/or other nominal amounts of Equity Interests that
are required to be held by Persons (other than the Company
or its Wholly Owned Subsidiaries, as applicable) under
applicable law, are owned, directly or indirectly, by the
Company.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and
referred to by Class (e.g., a "US Tranche Revolving Loan")
or by Type (e.g., a "Eurocurrency Loan") or by Class and
Type (e.g., a "US Tranche Eurocurrency Revolving Loan").
Borrowings also may be classified and referred to by Class
(e.g., a "US Tranche Revolving Borrowing") or by Type (e.g.,
a "Eurocurrency Borrowing") or by Class and Type (e.g., a
"US Tranche Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to
have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of
or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset"
and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and
intangible assets and properties. References herein to the
taking of any action hereunder of an administrative nature
by any Borrower shall be deemed to include references to the
Company taking such action on such Borrower's behalf and the
Agents are expressly authorized to accept any such action
taken by the Company as having the same effect as if taken
by such Borrower.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that if the Company
notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Company that
the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective
until such notice shall have been withdrawn or such
provision amended in accordance herewith (it being
understood that the financial statements delivered under
Section 5.01(a) or (b) shall in all cases be prepared in
accordance with GAAP as in effect at the applicable time).
SECTION 1.05. Exchange Rates. (a) Not later than
1:00 p.m., New York City time, on each Calculation Date, the
Administrative Agent shall (i) determine the Exchange Rate
as of such Calculation Date with respect to Sterling and
Euro and (ii) give notice thereof to the Lenders and the
Company. The Exchange Rates so determined shall become
effective on the first Business Day immediately following
the relevant Calculation Date (a "Reset Date") or other date
of determination, shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this
Agreement (other than Section 10.14 or any other provision
expressly requiring the use of a current Exchange Rate) be
the Exchange Rates employed in converting any amounts
between US Dollars and Sterling or Euro.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each date on which Revolving Loans
denominated in Sterling or Euro are made, or Letters of
Credit denominated in Sterling are issued, the
Administrative Agent shall (i) determine the aggregate
amount of each of the US Tranche Revolving Credit Exposure
and the UK Tranche Revolving Credit Exposure (after giving
effect to any Loans made or repaid or Letters of Credit
issued, drawn or expired on such date) and (ii) notify the
Lenders and the Company of the results of such
determination.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth herein, each US Tranche Lender agrees
to make US Tranche Revolving Loans to the Borrowers from
time to time during the Revolving Availability Period in US
Dollars or Sterling in an aggregate principal amount at any
time outstanding that will not result in (i) such Lender's
US Tranche Revolving Credit Exposure exceeding its US
Tranche Revolving Commitment or (ii) the aggregate amount of
the Lenders' US Tranche Revolving Credit Exposures exceeding
the aggregate amount of the US Tranche Revolving
Commitments.
(b) Subject to the terms and conditions set forth
herein, each UK Tranche Lender agrees to make UK Tranche
Revolving Loans to the UK Borrower in Sterling and UK
Tranche Revolving Loans to the Company, CBC and/or the UK
Borrower in US Dollars, Sterling or Euro from time to time
during the Revolving Availability Period in an aggregate
principal amount at any time outstanding that will not
result in (i) such Lender's UK Tranche Revolving Credit
Exposure exceeding its UK Tranche Revolving Commitment or
(ii) the aggregate amount of the Lenders' UK Tranche
Revolving Credit Exposures exceeding the aggregate amount of
the UK Tranche Revolving Commitments.
(c) Subject to the terms and conditions set forth herein,
each Lender agrees to make a Term Loan or Term Loans to the
Company, CBC and/or the UK Borrower in US Dollars or
Sterling on the Effective Date in an aggregate principal
amount not greater than its Term Loan Commitment. Amounts
prepaid or repaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall
be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any
Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans
as required.
(b) Subject to Section 2.13, (i) each US Tranche Revolving
Borrowing shall be comprised entirely of (A) in the case of
a Borrowing denominated in US Dollars, Eurocurrency Loans or
ABR Loans and (B) in the case of a Borrowing denominated in
Sterling, Eurocurrency Loans, in each case as the applicable
Borrower may request in accordance herewith; (ii) each UK
Tranche Revolving Borrowing shall be comprised entirely of
(A) in the case of a Borrowing denominated in Sterling or
Euros, Eurocurrency Loans and (B) in the case of a Borrowing
denominated in US Dollars, Eurocurrency Loans or ABR Loans,
in each case as the applicable Borrower may request in
accordance herewith; and (iii) each Term Loan Borrowing
shall be comprised entirely of (A) in the case of a
Borrowing denominated in US Dollars, Eurocurrency Loans or
ABR Loans and (B) in the case of a Borrowing denominated in
Sterling, Eurocurrency Loans, in each case as the applicable
Borrower may request in accordance herewith. Each Lender at
its option may make any Eurocurrency Loan by causing any
domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option
shall not affect the obligation of the applicable Borrower
to repay such Loan in accordance with the terms of this
Agreement and that such Borrower's obligation to make
payments pursuant to Section 2.16 shall not increase.
(c) At the commencement of each Interest Period for any
Borrowing, such Borrowing shall be in an aggregate amount
that is at least equal to the Borrowing Minimum and an
integral multiple of the Borrowing Multiple; provided that
an ABR Revolving Borrowing may be made in an aggregate
amount that is equal to the aggregate available US Tranche
Revolving Commitments or UK Tranche Revolving Commitments,
or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(e), as the case
may be. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not
at any time be more than a total of (i) ten US Tranche
Eurocurrency Revolving Borrowings outstanding, (ii) five UK
Tranche Eurocurrency Revolving Borrowings outstanding or
(iii) ten Eurocurrency Term Loan Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement,
no Borrower shall be entitled to request, or to elect to
convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for Borrowings. To request a
Revolving Borrowing or a Term Borrowing, the applicable
Borrower, or the Company on behalf of the applicable
Borrower, shall notify the Applicable Agent of such request
by telephone (a) in the case of a Eurocurrency Borrowing
(other than a UK Tranche Revolving Borrowing denominated in
Sterling by the UK Borrower or by another Borrowing
Subsidiary organized under the laws of England and Wales),
not later than 2:00 p.m., Local Time, three Business Days
before the date of the proposed Borrowing, (b) in the case
of a UK Tranche Revolving Borrowing denominated in Sterling
by the UK Borrower or by another Borrowing Subsidiary
organized under the laws of England and Wales, not later
than 10:00 a.m., Local Time, on the Business Day of the
proposed Borrowing and (c) in the case of an ABR Borrowing,
not later than 2:00 p.m., Local Time, one Business Day
before the date of the proposed Borrowing; provided that any
such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by
Section 2.04(e), or to replace a Eurocurrency Borrowing
Request deemed ineffective pursuant to clause (i) of Section
2.13, may be given not later than 12:00 noon, Local Time, on
the date of the proposed Borrowing; and provided further
that any such notice in respect of any Borrowing to be made
on the Effective Date may be given at such later time or on
such shorter notice as the Applicable Agent may agree. Each
such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to
the Applicable Agent of a written Borrowing Request in a
form approved by the Applicable Agent and signed by the
applicable Borrower, or by the Company on behalf of the
applicable Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose
behalf the Company is requesting such Borrowing);
(ii) whether the requested Borrowing is to be a US Tranche
Revolving Borrowing, a UK Tranche Revolving Borrowing or a
Term Borrowing;
(iii) the currency and aggregate principal amount of the
requested Revolving Borrowing or Term Borrowing;
(iv) the date of the requested Borrowing, which shall be a
Business Day;
(v) the Type of the requested Borrowing;
(vi) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
(vii) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.05 or other
disbursement instructions that shall have been given by the
applicable Borrower to the Applicable Agent.
If no currency is specified with respect to any requested
Eurocurrency Borrowing, then the applicable Borrower shall
be deemed to have selected US Dollars. If no election as to
the Type of Borrowing is specified, then the requested
Borrowing shall be (i) in the case of a Borrowing
denominated in US Dollars, an ABR Borrowing and (ii) in the
case of any other Borrowing, a Eurocurrency Borrowing. If
no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the applicable
Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the
Applicable Agent shall advise each Lender that will make a
Loan as part of the requested Borrowing of the details
thereof and of the amount of the Loan to be made by such
Lender as part of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to
the terms and conditions set forth herein, any Borrower may
request the issuance (or the amendment, renewal or
extension) of Letters of Credit denominated in US Dollars or
Sterling, in any case in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and
from time to time during the Revolving Availability Period.
In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement
submitted by any Borrower to, or entered into by such
Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall
control. On the first Business Day after the Effective
Date, without further action by any party hereto, the
Issuing Bank shall be deemed to have granted to each US
Tranche Lender and each US Tranche Lender shall be deemed to
have purchased from the Issuing Bank a participation in each
letter of credit issued by the Issuing Bank on or prior to
the Effective Date for the account of the Company or any
Subsidiary in accordance with paragraph (d) below, and each
such letter of credit shall constitute a Letter of Credit
for all purposes hereof.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the applicable Borrower shall
hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the
Applicable Agent (in any case reasonably in advance of the
requested date of issuance, amendment, renewal or extension)
a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount
and currency of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as
shall be necessary to enable the Issuing Bank to prepare,
amend, renew or extend such Letter of Credit. If requested
by the Issuing Bank, the applicable Borrower also shall
submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the applicable
Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $25,000,000
and (ii) the aggregate US Tranche Revolving Credit Exposures
will not exceed the aggregate US Tranche Revolving
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the
date one year after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the
Issuing Bank or the US Tranche Lenders, the Issuing Bank
hereby grants to each US Tranche Lender, and each US Tranche
Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such US
Tranche Lender's US Tranche Percentage of the aggregate
amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each
US Tranche Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Lender's US Tranche Percentage of
each LC Disbursement made by the Issuing Bank and not
reimbursed by the applicable Borrower on the date due as
provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the
applicable Borrower for any reason. Each US Tranche Lender
acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including
any amendment, renewal or extension of any Letter of Credit
or the occurrence and continuance of a Default or reduction
or termination of the US Tranche Revolving Commitments, and
that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the
applicable Borrower shall reimburse such LC Disbursement by
paying to the Applicable Agent an amount equal to such LC
Disbursement, in the currency in which such LC Disbursement
shall have been made, not later than 12:00 noon, Local Time,
on the date that such LC Disbursement is made, if the
applicable Borrower shall have received notice of such LC
Disbursement prior to 11:00 a.m., Local Time, on such date,
or, if such notice has not been received by the applicable
Borrower prior to such time on such date, then not later
than 1:00 p.m., Local Time, on (A) the Business Day that the
applicable Borrower receives such notice, if such notice is
received prior to 11:00 a.m., Local Time, on the day of
receipt, or (B) the Business Day immediately following the
day that the applicable Borrower receives such notice, if
such notice is not received prior to such time on the day of
receipt; provided, however, that if the applicable Borrower
shall fail to deliver a timely Borrowing Request to finance
the reimbursement of such LC Disbursement (and shall not
otherwise reimburse such LC Disbursement pursuant to the
provisions of this paragraph), then such Borrower shall be
deemed to have delivered a Borrowing Request for an ABR
Revolving Borrowing in an amount equal to the US Dollar
Equivalent of the LC Disbursement, and the Applicable Agent
shall apply the proceeds of any ABR Revolving Borrowing made
in response to such Borrowing Request to the reimbursement
of such LC Disbursement (after converting such proceeds, if
necessary, into the currency of such LC Disbursement).
Promptly following receipt by the Applicable Agent of any
payment from the applicable Borrower (or by the application
of proceeds of an ABR Revolving Borrowing) pursuant to this
paragraph, the Applicable Agent shall distribute such
payment to the Issuing Bank or, to the extent that US
Tranche Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such US
Tranche Lenders and the Issuing Bank as their interests may
appear. If the applicable Borrower fails to make such
payment when due, directly or through the application of an
ABR Borrowing, then, upon notice from the applicable Issuing
Bank to the applicable Borrower and the Applicable Agent,
the Applicable Agent shall notify each US Tranche Lender of
the applicable LC Disbursement, the payment then due from
the applicable Borrower in respect thereof and such Lender's
US Tranche Percentage thereof. Promptly following receipt
of such notice, each US Tranche Lender shall pay to the
Applicable Agent its US Tranche Percentage of the payment
then due from the applicable Borrower in the same manner as
provided in Section 2.05 with respect to Loans made by such
US Tranche Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the US Tranche
Lenders), and the Applicable Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the US
Tranche Lenders. Any payment made by a US Tranche Lender
pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement shall not constitute a Loan and shall
not relieve the applicable Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers' obligations to
reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit or this
Agreement or any other Loan Document, or any term or
provision herein or therein, (ii) any draft or other
document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect,
(iii) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of set-off against, the
Borrowers' obligations hereunder. None of the Agents, the
US Tranche Lenders or the Issuing Bank, or any of their
Related Parties, shall have any liability or responsibility
by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error
in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the applicable Borrower
to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby
waived by the Borrowers to the extent permitted by
applicable law) suffered by the applicable Borrower that are
caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of the Issuing
Bank (as determined by a court of competent jurisdiction),
the Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear
on their face to be in substantial compliance with the terms
of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such
documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if
such documents are not in strict compliance with the terms
of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under
a Letter of Credit. The Issuing Bank shall promptly notify
the Applicable Agent and the applicable Borrower by
telephone (confirmed by telecopy) of such demand for payment
and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give
or delay in giving such notice shall not relieve the
applicable Borrower of its obligation to reimburse the
Issuing Bank and the US Tranche Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any
LC Disbursement, then, unless the applicable Borrower shall
reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the
applicable Borrower reimburses such LC Disbursement, at (i)
in the case of any LC Disbursement denominated in US
Dollars, the rate per annum then applicable to ABR Revolving
Loans and (ii) in the case of any LC Disbursement
denominated in Sterling, a rate per annum determined by the
Issuing Bank (which determination will be conclusive absent
manifest error) to represent its cost of funds plus the
Applicable Rate used to determine interest applicable to
Eurocurrency Revolving Loans; provided that, at all times
after the applicable Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this
Section, Section 2.12(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the
date of payment by any US Tranche Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such US Tranche Lender to the
extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may
be replaced at any time by written agreement among the
Company, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for
the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all
the rights and obligations of the Issuing Bank under this
Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue
to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If the US Tranche Revolving
Commitments shall have been terminated or an Event of
Default shall have occurred and be continuing and the
Company shall receive notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans
has been accelerated, US Tranche Lenders with LC Exposure
representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this
paragraph, the Company shall deposit in an account with the
Administrative Agent, in the name of the Administrative
Agent and for the benefit of the US Tranche Lenders, an
amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Specified Event with
respect to the Company. Such deposit shall be held by the
Administrative Agent as collateral for the payment and
performance of the obligations of the Loan Parties under the
Loan Documents. The Administrative Agent shall have
exclusive dominion and control, including the exclusive
right of withdrawal, over such account. At the request of
the Company, amounts so deposited shall be invested by the
Administrative Agent, at the Company's risk and expense, in
high quality overnight or short-term cash equivalent
investments of prime financial institutions (which may
include the Administrative Agent) maturing prior to the date
or dates on which the Administrative Agent anticipates that
such amounts will be applied as required by this paragraph.
Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held
for the satisfaction of the reimbursement obligations of the
Company for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the
consent of US Tranche Lenders with LC Exposures representing
greater than 50% of the total LC Exposure) be applied to
satisfy other obligations of the Company under this
Agreement. If the Company is required to provide an amount
of cash collateral hereunder as a result of the occurrence
of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Company
within three Business Days after all Events of Default have
been cured or waived.
SECTION 2.05. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately
available funds in the applicable currency by 11:00 a.m.,
Local Time, to the account of the Applicable Agent most
recently designated by it for such purpose for Loans of such
Class and currency by notice to the applicable Lenders. The
Applicable Agent will make such Loans available to the
relevant Borrower by promptly crediting the amounts so
received, in like funds, to an account of such Borrower
notified by the Borrower to the Applicable Agent (i) in the
United States, in the case of Loans denominated in US
Dollars and (ii) in the United Kingdom, in the case of
Eurocurrency Loans denominated in Sterling or Euro, or
otherwise in accordance with disbursement instructions given
by such Borrower to the Applicable Agent; provided that US
Tranche Revolving Loans made to finance the reimbursement of
an LC Disbursement shall be remitted by the Administrative
Agent to the Issuing Bank.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing
that such Lender will not make available to the Applicable
Agent such Lender's share of such Borrowing, the Applicable
Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of
the applicable Borrowing available to the Applicable Agent,
then the applicable Lender and such Borrower severally agree
to pay to the Applicable Agent forthwith on demand such
corresponding amount with interest thereon, for each day
from and including the date such amount is made available to
such Borrower to but excluding the date of payment to the
Applicable Agent, at (i) in the case of such Lender, the
rate reasonably determined by the Applicable Agent to be the
cost to it of funding such amount or (ii) in the case of
such Borrower, the interest rate applicable to the subject
Loan. If such Lender pays such amount to the Applicable
Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing and the Applicable Agent shall
return to such Borrower any amount (including interest) paid
by such Borrower to the Applicable Agent pursuant to this
paragraph.
SECTION 2.06. Interest Elections. (a) Each Revolving
Borrowing and Term Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request.
Thereafter, the relevant Borrower may elect to convert such
Borrowing to a Borrowing of a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Borrowing,
may elect Interest Periods therefor, all as provided in this
Section and on terms consistent with the other provisions of
this Agreement. A Borrower may elect different options with
respect to different portions of an affected Borrowing, in
which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, a
Borrower, or the Company on its behalf, shall notify the
Applicable Agent of such election by telephone by the time
that a Borrowing Request would be required under
Section 2.03 if such Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy
to the Applicable Agent of a written Interest Election
Request in a form approved by the Administrative Agent and
signed by the relevant Borrower, or by the Company on its
behalf. Notwithstanding any contrary provision herein, this
Section shall not be construed to permit any Borrower to
(i) change the currency of any Borrowing, (ii) elect an
Interest Period for Eurocurrency Loans that does not comply
with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under the Class of
Commitments pursuant to which such Borrowing was made.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with
Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with
respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case
the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business
Day;
(iii) the Type of the resulting Borrowing; and
(iv) if the resulting Borrowing is to be a Eurocurrency
Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a
Eurocurrency Borrowing but does not specify an Interest
Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each Lender
holding a Loan to which such request relates of the details
thereof and of such Lender's portion of each resulting
Borrowing.
(e) If a Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving
Borrowing, then (i) in the case of a Revolving Borrowing
denominated in US Dollars, unless such Borrowing is repaid
as provided herein, such Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable
thereto, (ii) in the case of any Revolving Borrowing
denominated in a currency other than US Dollars (other than
a UK Tranche Revolving Borrowing denominated in Sterling by
the UK Borrower or another Borrowing Subsidiary organized
under the laws of England and Wales), unless the applicable
Borrower has advised the Applicable Agent that such
Borrowing will be repaid at the end of the Interest Period
applicable thereto by 2:00 p.m., Local Time, three Business
Days before the end of such Interest Period, such Borrowing
shall be continued as a Eurocurrency Borrowing with an
Interest Period of one month's duration and (iii) in the
case of a UK Tranche Revolving Borrowing denominated in
Sterling by the UK Borrower or another Borrowing Subsidiary
organized under the laws of England and Wales, unless such
Borrowing is repaid as provided herein, such Borrowing shall
be continued at the end of the Interest Period applicable
thereto as a Eurocurrency Borrowing with an Interest Period
of one month's duration. If the Company, CBC or the UK
Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Term Borrowing, and does not
advise the Applicable Agent that such Borrowing will be
repaid at the end of the Interest Period applicable thereto
by 2:00 p.m., Local Time, three Business Days before the end
of such Interest Period, then at the end of such Interest
Period, such Borrowing shall be continued as a Eurocurrency
Borrowing with an Interest Period of one month's duration.
SECTION 2.07. Termination and Reduction of Commitments.
(a) Unless previously terminated, (i) the Term Loan
Commitments shall terminate at 5:00 p.m., New York City
time, on the Effective Date, (ii) the Revolving Commitments
shall terminate on the Maturity Date and (iii) all the
Commitments shall terminate if the initial borrowing
hereunder shall not have occurred by February 28, 2002.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments of any Class; provided that (i)
each reduction of the Commitments of any Class shall be in
an amount that is an integral multiple of the Borrowing
Multiple and not less than the Borrowing Minimum, or the
entire amount of the Commitments of such Class, (ii) the
Company shall not terminate or reduce the US Tranche
Revolving Commitments if, after giving effect to any
concurrent prepayment of the US Tranche Revolving Loans in
accordance with Section 2.10, the aggregate US Tranche
Revolving Credit Exposures would exceed the aggregate US
Tranche Revolving Commitments and (iii) the Company shall
not terminate or reduce the UK Tranche Revolving Commitments
if, after giving effect to any concurrent prepayment of the
UK Tranche Revolving Loans in accordance with Section 2.10,
the aggregate UK Tranche Revolving Credit Exposures would
exceed the aggregate UK Tranche Revolving Commitments.
(c) The Company shall notify the Administrative Agent of
any election to terminate or reduce the Commitments of any
Class under paragraph (b) of this Section at least three
Business Days prior to the effective date of such
termination or reduction, specifying the effective date of
such election. Promptly following receipt of any such
notice, the Administrative Agent shall advise the London
Agent and the applicable Lenders of the contents thereof.
Each notice delivered by the Company pursuant to this
Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative
Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of
the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made
ratably among the applicable Lenders in accordance with
their respective Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to
the Applicable Agent for the accounts of the applicable
Lenders (i) the then unpaid principal amount of each
Revolving Borrowing of such Borrower on the Maturity Date
and (ii) the then unpaid principal amount of each Term Loan
of such Borrower as provided in Section 2.09. Each Borrower
agrees to repay the principal amount of each Loan made to
such Borrower and the accrued interest thereon in the
currency of such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness
of each Borrower to such Lender resulting from each Loan
made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(c) Subject to the Register described in Section 10.04, the
Administrative Agent shall maintain accounts (including the
Register described in Section 10.04) in which it shall
record (i) the amount of each Loan made hereunder, the
Class, Type and currency thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iii) the amount
of any sum received by any Agent hereunder for the accounts
of the Lenders and each Lender's share thereof. The London
Agent shall furnish to the Administrative Agent, promptly
after the making of any Loan or Borrowing with respect to
which it is the Applicable Agent or the receipt of any
payment of principal or interest with respect to any such
Loan or Borrowing, information with respect thereto that
will enable the Administrative Agent to maintain the
accounts referred to in the preceding sentence. The
Administrative Agent shall notify in writing the London
Agent promptly after the making of any Loan or Borrowing
with respect to which it is the Applicable Agent or the
receipt of payment of any principal with respect to any such
Loan or Borrowing.
(d) Subject to the Register described in Section 10.04, the
entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation
of any Borrower to repay the Loans in accordance with the
terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by
it to any Borrower be evidenced by a promissory note. In
such event, each applicable Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to such
Lender and its registered assigns and in a form approved by
the Administrative Agent, acting reasonably. Thereafter,
the Loans evidenced by each such promissory note and
interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one
or more promissory notes in such form payable to the payee
named therein and its registered assigns.
SECTION 2.09. Amortization of Term Loans. (a) Subject to
adjustment pursuant to paragraph (c) of this Section, the
applicable Borrowers shall repay the principal of the Term
Borrowings in 16 consecutive quarterly installments (each of
which may consist of payments of one or more Term Borrowings
selected by such Borrowers), the aggregate US Dollar
Equivalent of each of which on the applicable quarterly
installment date shall be the amount (expressed as a
percentage of the sum of the US Dollar Equivalents on the
fifth Business Day prior to the applicable quarterly
installment date of the amounts of the Term Loans made on
the Effective Date) set forth opposite the applicable
quarterly installment date below:
Date Amount
March 28, 2003 3.75%
June 27, 2003 3.75%
September 26, 2003 3.75%
December 26, 2003 3.75%
March 26, 2004 5.00%
June 25, 2004 5.00%
September 24, 2004 5.00%
December 22, 2004 5.00%
March 25, 2005 6.25%
June 24, 2005 6.25%
September 23, 2005 6.25%
December 21, 2005 6.25%
March 24, 2006 10.00%
June 23, 2006 10.00%
September 22, 2006 10.00%
Maturity Date 10.00%
The Administrative Agent shall not less than five Business
Days prior to each quarterly installment date deliver to the
Company a calculation of the aggregate amount of the payment
required to be made hereunder on such quarterly installment
date.
(b) To the extent not previously repaid, all Term Loans
shall be due and payable on the Maturity Date.
(c) Any mandatory prepayment of a Term Borrowing shall be
applied to reduce the subsequent scheduled repayments of the
Term Borrowings to be made pursuant to this Section ratably
in accordance with the amounts thereof. Any voluntary
prepayment of a Term Borrowing shall be applied to reduce
the next scheduled quarterly repayment of the Term
Borrowings to be made pursuant to this Section and
thereafter to reduce subsequent scheduled repayments of the
Term Borrowings to be made pursuant to this Section ratably
in accordance with the amounts thereof. For purposes of
determining the amount by which any quarterly installment of
principal is to be reduced as a result of any prepayment,
the amount of such prepayment (denominated in the currency
in which such prepayment shall have been made) shall be
allocated as provided above in this paragraph on the next
quarterly installment date among the remaining scheduled
installments of principal, and the US Dollar Equivalent of
the amount so allocated to each scheduled installment shall
be determined as of the date of determination under
paragraph (a) above of the amount of the payment due on the
applicable quarterly installment date.
(d) Prior to any repayment of Term Borrowings, the Company
shall select the Borrowing or Borrowings to be repaid and
shall notify the Administrative Agent by telephone
(confirmed by telecopy) of such selection not later than
11:00 a.m., New York time, three Business Days before the
scheduled date of such repayment. Each repayment of a
Borrowing shall be applied ratably to the Loans included in
the repaid Borrowing. Repayments of Term Borrowings shall
be accompanied by accrued interest on the amounts repaid.
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall
have the right at any time and from time to time to prepay
any Borrowing of such Borrower in whole or in part, subject
to prior notice in accordance with paragraph (e) of this
Section.
(b) If the aggregate Revolving Credit Exposures of any
Class shall exceed the aggregate Revolving Commitments of
such Class, then (i) on the last day of any Interest Period
for any Eurocurrency Revolving Borrowing of such Class and
(ii) on any other date in the event ABR Revolving Borrowings
of such Class shall be outstanding, the applicable Borrowers
shall prepay Revolving Loans of such Class in an amount
equal to the lesser of (A) the amount necessary to eliminate
such excess (after giving effect to any other prepayment of
Loans on such day) and (B) the amount of the Borrowings
referred to in clauses (i) and (ii), as applicable. If, on
any Reset Date, the aggregate amount of the Revolving Credit
Exposures of any Class shall exceed 105% of the aggregate
Commitments of such Class, then the applicable Borrowers
shall, not later than the next Business Day, prepay one or
more Borrowings of such Class in an aggregate principal
amount sufficient to eliminate such excess.
(c)(i) In the event and on each occasion that any Net
Proceeds are received by or on behalf of the Company or any
Subsidiary in respect of any Asset Disposition, the Company
shall, within three Business Days after such Net Proceeds
are received, prepay or cause the applicable Borrower to
prepay Term Borrowings in an aggregate amount equal to 50%
of such Net Proceeds; provided that the Company shall not be
subject to such prepayment obligation to the extent that
within such period of three Business Days the Company
notifies the Administrative Agent that it intends to
reinvest such Net Proceeds in capital assets within 12
months after the receipt thereof, and within such 12-month
period the Company delivers to the Administrative Agent a
notice certifying that such Net Proceeds have in fact been
so invested; provided, further, however, that if the Company
gives such a notice of its intention to reinvest such Net
Proceeds and such Net Proceeds are not reinvested within the
12-month period referred to above, the Company shall
forthwith apply or cause the applicable Borrower to apply
such Net Proceeds to prepay Term Borrowings.
(ii) In the event and on each occasion that any Net
Proceeds are received by or on behalf of the Company in
respect of any Indebtedness issued under Section
6.01(i)(iii), the Company shall, within three Business Days
after such Net Proceeds are received, prepay or cause the
applicable Borrower to prepay Term Borrowings in an
aggregate amount equal to 100% of such Net Proceeds.
(d) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the applicable Borrower shall select
the Borrowing or Borrowings to be prepaid and shall specify
such selection in the notice of such prepayment pursuant to
paragraph (e) of this Section.
(e) The applicable Borrower, or the Company on behalf of
the applicable Borrower, shall notify the Applicable Agent
by telephone (confirmed by telecopy) of any prepayment of a
Borrowing hereunder (i) in the case of a Eurocurrency
Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of such prepayment and
(ii) in the case of an ABR Borrowing, not later than 11:00
a.m., Local Time, one Business Day before the date of such
prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that,
if a notice of optional prepayment is given in connection
with a conditional notice of termination of the Commitments
as contemplated by Section 2.07(c), then such notice of
prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07(c). Promptly
following receipt of any such notice, the Applicable Agent
shall advise the applicable Lenders of the contents thereof.
Except to the otherwise required in connection with any
mandatory prepayment, each partial prepayment of any
Borrowing shall be in an amount that would be permitted in
the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing
shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.12.
(f) In the event the amount of any prepayment required to
be made pursuant to this Section shall exceed the aggregate
principal amount of the ABR Term Loans or ABR Revolving
Loans, as the case may be, outstanding (the amount of any
such excess being called the "Excess Amount"), the
applicable Borrower shall have the right, in lieu of making
such prepayment in full, to prepay all the outstanding ABR
Loans of the applicable Class and to deposit an amount equal
to the Excess Amount with the Applicable Agent in a cash
collateral account maintained (pursuant to documentation
reasonably satisfactory to the Applicable Agent) by and in
the sole dominion and control of the Applicable Agent, which
shall have the exclusive right of withdrawal for application
in accordance with this paragraph (f). Any amounts so
deposited shall be held by the Applicable Agent as
collateral for the Obligations and applied to the prepayment
of the applicable Eurocurrency Loans at the ends of the
current Interest Periods applicable thereto. At the request
of the applicable Borrower, amounts so deposited shall be
invested by the Applicable Agent, at the applicable
Borrower's risk and expense, in high quality overnight or
short-term cash equivalent investments of prime financial
institutions (which may include the Administrative Agent)
maturing prior to the date or dates on which the Applicable
Agent anticipates that such amounts will be applied to
prepay Eurocurrency Loans; any interest earned on such
Permitted Investments will be for the account of the
applicable Borrower, and the applicable Borrower will
deposit with the Administrative Agent the amount of any loss
on any such investment to the extent necessary in order that
the amount of the prepayment to be made with the deposited
amounts is not reduced.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Rate on
the average daily unused amount of each Commitment of such
Lender during the period from and including the date hereof
to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in
arrears (i) in the case of commitment fees in respect of the
Revolving Commitments, on the last day of March, June,
September and December of each year, commencing on the first
such date to occur after the date hereof, and on the date on
which such Commitments terminate and (ii) in the case of
commitment fees in respect of the Term Loan Commitments, on
the Effective Date or any earlier date on which such
Commitments terminate. All commitment fees shall be
computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the
first day but excluding the last day). For purposes of
determining the unused portion of the Revolving Commitments,
the Revolving Commitment of a Lender shall be deemed to be
used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender.
(b) The Company agrees to pay (i) to the Administrative
Agent for the account of each US Tranche Lender a
participation fee with respect to its participations in
Letters of Credit, which shall accrue at the Applicable Rate
used to determine the interest rate applicable to
Eurocurrency Revolving Loans on the daily amount of such US
Tranche Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the
period from and including the date hereof to but excluding
the later of the date on which such US Tranche Lender's US
Tranche Revolving Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii)
to the Issuing Bank a fronting fee, which shall accrue at
the rate of 0.125% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and
including the date hereof to but excluding the later of the
date of termination of the US Tranche Revolving Commitments
and the date on which there ceases to be any LC Exposure, as
well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation
fees and fronting fees accrued under this paragraph through
and including the last day of March, June, September and
December of each year shall be payable on such last day,
commencing on the first such date to occur after the date
hereof; provided that all such fees shall be payable on the
date on which the US Tranche Revolving Commitments terminate
and any such fees accruing after the date on which the US
Tranche Revolving Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant
to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees payable
under this paragraph shall be computed on the basis of a
year of 360 days and shall be payable for the actual number
of days elapsed (including the first day but excluding the
last day).
(c) The Company agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the
times separately agreed upon between the Company and the
Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative
Agent (or to the Issuing Bank, in the case of fees payable
to it) for distribution, in the case of the commitment fees,
to the Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable
Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by
any Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided
in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and, in
the case of Revolving Loans, upon termination of the
Commitments; provided that (i) interest accrued pursuant to
paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to
the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurocurrency
Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on
the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis
of a year of 360 days, except that (i) interest on
Borrowings denominated in Sterling and (ii) interest
computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Applicable Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency
Borrowing denominated in any currency:
(a) the Applicable Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted
LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period; or
(b) the Applicable Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Applicable Agent shall give notice thereof to the
Company and the Lenders by telephone or telecopy as promptly
as practicable thereafter and, until the Applicable Agent
notifies the Company and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any
Borrowing Request that requests a Eurocurrency Borrowing in
such currency shall be ineffective and the applicable
Borrower may instead request an ABR Borrowing not later than
12:00 noon, Local Time, on the date of the proposed
Borrowing and (ii) any Interest Election Request that
requests the conversion or continuation of any Revolving
Borrowing or Term Borrowing as a Eurocurrency Borrowing in
such currency shall be ineffective, and such Borrowing shall
be converted to or continued on the last day of the Interest
Period applicable thereto (A) if such Borrowing is
denominated in US Dollars, as an ABR Borrowing, or (B) if
such Borrowing is denominated in any other currency, as a
Borrowing bearing interest at such rate as the Lenders and
the Company may agree adequately reflects the costs to the
Lenders of making or maintaining their Loans (or, in the
absence of such agreement, shall be repaid as of the last
day of the current Interest Period applicable thereto).
SECTION 2.14. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender or the Issuing Bank (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender or any
Letter of Credit or participations therein, other than a
condition related to Taxes, which is governed by Section
2.16;
and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any
Eurocurrency Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received
or receivable by such Lender or the Issuing Bank hereunder
(whether of principal, interest or otherwise), then the
Company will pay or cause the other Borrowers to pay to such
Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender
or the Issuing Bank for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such
Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or
the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such
Lender's or Issuing Bank's holding company could have
achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies
and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy), then from
time to time the Company will pay or cause the other
Borrowers to pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such
Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section, and setting forth in
reasonable detail the calculations used by such Lender or
the Issuing Bank to determine such amount, shall be
delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay or cause the other
Borrowers to pay to such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or the
Issuing Bank's right to demand such compensation; provided
that the Company shall not be required to compensate a
Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 360 days
prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and
delivers a certificate with respect thereto as provided in
paragraph (c) above; provided further that, if the Change in
Law giving rise to such increased costs or reductions is
retroactive, then the 360-day period referred to above shall
be extended to include the period of retroactive effect
thereof.
SECTION 2.15. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurocurrency Loan other
than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b)
the conversion of any Eurocurrency Loan to a Loan of a
different Type or Interest Period other than on the last day
of the Interest Period applicable thereto, (c) the failure
to borrow (including as a result of a return of funds to the
Lenders under the last sentence of Section 4.01), convert,
continue or prepay any Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.07(c) and is revoked
in accordance therewith), or (d) the assignment or deemed
assignment of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto as a result of
a request by the Company pursuant to Section 2.18 or the CAM
Exchange, then, in any such event, the applicable Borrower
shall compensate each Lender for the loss, cost and expense
attributable to such event. Such loss, cost or expense to
any Lender shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (i) the amount
of interest that would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for
the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan),
over (ii) the amount of interest that would accrue on such
principal amount for such period at the interest rate such
Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a
comparable amount and period from other banks in the London
interbank market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to
receive pursuant to this Section, and setting forth in
reasonable detail the calculations used by such Lender to
determine such amount or amounts, shall be delivered to the
applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the
amount shown as due on any such certificate within 10 days
after receipt thereof.
SECTION 2.16. Taxes. (a) Subject to all the provisions of
this Section 2.16 and except as required by law, any and all
payments by or on account of any Borrower hereunder or under
any other Loan Document shall be made free and clear of and
without deduction for any Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section) the
Administrative Agent, the London Agent or the applicable
Lender or Issuing Bank, as the case may be, receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes
to the relevant Governmental Authority in accordance with
applicable law.
(c) The relevant Borrower shall indemnify the
Administrative Agent, the London Agent, each Lender and the
Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes
paid by such Agent or such Lender or the Issuing Bank, as
the case may be, on or with respect to any payment by or on
account of any obligation of any Borrower hereunder or under
any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with
respect thereto (except to the extent such penalties,
interest or costs are attributable to the gross negligence
or willful misconduct by a Lender, Issuing Bank or Agent),
whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of
such payment or liability delivered to the Company by a
Lender or the Issuing Bank, or by an Agent, on its own
behalf or on behalf of a Lender or the Issuing Bank, shall
be conclusive absent manifest error. Such Lender, Issuing
Bank or Agent shall give the Company written notice of any
payment of Indemnified Taxes or Other Taxes to be made
hereunder with respect to which the Company has an indemnity
obligation, but the failure of such Lender, Issuing Bank or
Agent to give such notice shall not limit its right to
receive indemnification hereunder, except that a failure to
give such notice will constitute gross negligence or wilful
misconduct for purposes of the first sentence of this clause
(c) to the extent penalties, interest or costs are incurred
solely as a result of the failure to give such notice. Such
Lender, Issuing Bank or Agent shall use reasonable efforts
to cooperate with the Company in seeking a refund of such
payment of Indemnified Taxes or Other Taxes.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Lender, Issuing Bank or Agent that is entitled to
an exemption from or reduction of withholding tax under the
law of the jurisdiction in which a Borrower is located, or
any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to
the Company (with a copy to the Administrative Agent), at
the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Company as
will permit such payments to be made without withholding or
at a reduced rate. Such Lender, Issuing Bank or Agent shall
indemnify and hold harmless the Company and such Borrower
from any penalties, interest or other costs incurred by such
Borrower solely as a result of the failure of such Lender,
Issuing Bank or Agent to comply properly with such
documentation requirements. This Section shall not be
construed to require any Agent or any Lender to make
available its tax returns (or any other information relating
to its taxes which it reasonably deems confidential) to any
Borrower or any other Person.
(f) Each Lender, on the date it becomes a Lender hereunder,
and the Issuing Bank, on the date it becomes an Issuing
Bank, will designate lending offices for the Loans to be
made by it and provide documentation to the Company (with a
copy to the Administrative Agent) pursuant to Section
2.16(e) such that, on such date, it will not be liable for
any withholding tax that is imposed (i) by the United States
of America on payments by any Borrower that is organized or
resident for tax purposes within such jurisdiction or (ii)
by the United Kingdom on payments by any Borrower that is
organized or resident for tax purposes within such
jurisdiction.
(g) If a Lender, the Issuing Bank, or an Agent (each a
"Finance Party") receives a refund or credit in respect of
Indemnified Taxes or Other Taxes pursuant to this Section
2.16 and, in the case of a credit, such credit reduces the
Tax liability of the Finance Party and is in the good faith
opinion of the relevant Finance Party both identifiable and
quantifiable without requiring such Finance Party or its
professional advisers to expend a material amount of time or
incur a material cost in so identifying or quantifying, the
Finance Party will pay over the amount of such refund or
credit to the relevant Borrower to the extent the Finance
Party has received indemnity payments or additional amounts
pursuant to this Section 2.16, net of all out-of-pocket
expenses incurred in obtaining such refund or credit and
without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund or
credit); provided, however, that the relevant Borrower, upon
the request of the Finance Party, agrees to repay the amount
it received to the Finance Party within 30 days of such
request, plus penalties, interest or other charges imposed
by the relevant Governmental Authority (except to the extent
such penalties or other charges are incurred solely as a
result of the gross negligence or wilful misconduct of the
relevant Finance Party), if the refund or credit is
subsequently disallowed or cancelled. Amounts payable to a
Borrower under this clause (g) with respect to a refund
received by a Finance Party will be paid to the relevant
Borrower within 30 days of receipt of such refund by the
Finance Party. Amounts payable under this clause (g) with
respect to a credit realized by a Finance Party will be paid
within 30 days of the determination by the Finance Party
that the credit reduced the Tax liability of such Finance
Party.
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) Each Borrower shall make each
payment required to be made by it hereunder or under any
other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable
under Section 2.14, 2.15 or 2.16, or otherwise) prior to
12:00 noon, Local Time (unless a different time is specified
under a particular provision hereof or thereof), on the date
when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any
date may, in the discretion of the Applicable Agent, be
deemed to have been received on the next succeeding Business
Day for purposes of calculating interest thereon. All such
payments shall be made to the Applicable Agent to the
applicable account specified in Schedule 2.17 or, in any
such case, to such other account as the Applicable Agent
shall from time to time specify in a notice delivered to the
Company; provided that payments to be made directly to the
Issuing Bank as expressly provided herein and payments
pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be
made directly to the Persons entitled thereto. The
Applicable Agent shall distribute any such payments received
by it for the account of any Lender or other Person promptly
following receipt thereof to the appropriate lending office
or other address specified by such Lender or other Person.
If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder of
principal or interest in respect of any Loan or LC
Disbursement shall be made in the currency of such Loan or
LC Disbursement; all other payments hereunder and under each
other Loan Document shall be made in US Dollars. Any
payment required to be made by an Agent hereunder shall be
deemed to have been made by the time required if such Agent
shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the
regulations or operating procedures of the clearing or
settlement system used by such Agent to make such payment.
Any amount payable by any Agent to one or more Lenders in
the national currency of a member state of the European
Union that has adopted the Euro as its lawful currency shall
be paid in Euro.
(b) If at any time insufficient funds are received by and
available to any Agent from any Borrower to pay fully all
amounts of principal, interest and fees then due from such
Borrower hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due from such
Borrower hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment
of principal then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of
any principal of or interest on its Loans or participations
in LC Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of
its Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of their respective
Loans and participations in LC Disbursements and accrued
interest thereon; provided that (i) if any such
participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by any Borrower
pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to
the Company or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of
set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice
from the relevant Borrower prior to the date on which any
payment is due hereunder that such Borrower will not make
such payment, the Applicable Agent may assume that such
Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption,
distribute to the applicable Lenders or the Issuing Bank, as
the case may be, the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the
applicable Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Applicable Agent forthwith
on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but
excluding the date of payment to the Applicable Agent, at a
rate determined by the Applicable Agent in accordance with
banking industry practices on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it to any Agent pursuant to this Agreement,
then the Agents may, in their discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter
received by them for the account of such Lender to satisfy
such Lender's obligations to the Agents until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under
Section 2.14, or if any Borrower is required to pay any
additional amount pursuant to Section 2.16, then such Lender
shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or
to assign (in accordance with and subject to the
restrictions contained in Section 10.04) its rights and
obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender,
such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the
case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Company
hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.14,
or if any Loan Party is required to pay any additional
amount pursuant to Section 2.16, or if any Lender defaults
in its obligation to fund Loans hereunder, then the Company
may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in Section 10.04),
all its interests, rights and obligations under the Loan
Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative
Agent (and if a Revolving Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the
Company (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be
made pursuant to Section 2.16, such assignment will result
in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to
apply.
SECTION 2.19. Designation of Additional Subsidiary
Borrowers. The Company may at any time and from time to
time designate any Subsidiary as a Borrowing Subsidiary by
delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Subsidiary and the
Company, and upon such delivery such Subsidiary shall for
all purposes of this Agreement be a Borrowing Subsidiary and
a party to this Agreement until the Company shall have
executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to such
Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement.
Notwithstanding the preceding sentence, no Borrowing
Subsidiary Termination will become effective as to any
Borrowing Subsidiary at a time when any principal of or
interest on any Loan to such Borrowing Subsidiary shall be
outstanding hereunder, provided that such Borrowing
Subsidiary Termination shall be effective to terminate the
right of such Borrowing Subsidiary to make further
Borrowings under this Agreement. As soon as practicable
upon receipt of a Borrowing Subsidiary Agreement or
Borrowing Subsidiary Termination, the Administrative Agent
shall send a copy thereof to each Lender.
SECTION 2.20. Additional Reserve Costs. (a) If and so
long as any Lender is required to make special deposits with
the Bank of England, to maintain reserve asset ratios or to
pay fees, in each case in respect of such Lender's Loans (to
the extent not reflected in Statutory Reserves), such Lender
may require the relevant Borrower to pay, contemporaneously
with each payment of interest on each of such Loans,
additional interest on such Loans at a rate per annum equal
to the Mandatory Costs Rate calculated in accordance with
the formula and in the manner set forth in Exhibit C hereto.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements
of any monetary or other authority (including any such
requirement imposed by the European Central Bank or the
European System of Central Banks, but excluding requirements
reflected in the Statutory Reserves or the Mandatory Costs
Rate) in respect of any of such Lender's Loans, such Lender
may require the relevant Borrower to pay, contemporaneously
with each payment of interest on each of such Lender's Loans
subject to such requirements, additional interest on such
Loans at a rate per annum specified by such Lender to be the
cost to such Lender of complying with such requirements in
relation to such Loans.
(c) Any additional interest owed pursuant to paragraph (a)
or (b) above shall be determined by the relevant Lender,
which determination shall be conclusive absent manifest
error, and notified to the relevant Borrower (with a copy to
the Administrative Agent) at least five Business Days before
each date on which interest is payable for the relevant
Loans, and such additional interest so notified to the
relevant Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each
date on which interest is payable for such Loans.
SECTION 2.21. Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this
Agreement to make a payment denominated in Sterling shall,
in the event that the United Kingdom adopts the Euro as its
lawful currency after the date hereof, be redenominated into
Euro at the time of such adoption (in accordance with the
EMU Legislation). In such event, if the basis of accrual of
interest expressed in this Agreement in respect of Sterling
shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be
replaced by such convention or practice with effect from the
date on which the United Kingdom adopts the Euro as its
lawful currency; provided that if any Borrowing in Sterling
is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and
(i) without limiting the liability of any Borrower for any
amount due under this Agreement or any of the other Loan
Documents and (ii) without increasing any Commitment of any
Lender, all references in this Agreement to minimum amounts
(or integral multiples thereof) denominated in Sterling
shall, immediately upon the adoption by the United Kingdom
of the Euro as its lawful currency, be replaced by
references to such minimum amounts (or integral multiples
thereof) as shall be specified herein with respect to
Borrowings denominated in Euro.
(c) Each provision of this Agreement shall be subject to
such reasonable changes of construction as the
Administrative Agent and the Company may from time to time
agree to be appropriate to reflect the adoption of the Euro
by the United Kingdom and any relevant market conventions or
practices relating to the Euro.
ARTICLE III
Representations and Warranties
Each of the Borrowers represents and warrants to the Lenders
that:
SECTION 3.01. Organization; Powers. Each of the Company
and the Subsidiaries is duly organized, validly existing and
in good standing (to the extent such concept is applicable)
under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business
as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is
qualified to do business, and is in good standing (to the
extent such concepts are applicable), in every jurisdiction
where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions are within each Loan Party's corporate powers
and have been duly authorized by all necessary corporate or
partnership and, if required, stockholder action. Each of
the Loan Documents has been duly executed and delivered by
each Loan Party party thereto and constitutes a legal, valid
and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or
made and are in full force and effect, (b) will not violate
any applicable law or regulation or any order of any
Governmental Authority, (c) will not violate or result in a
default under any indenture, material agreement or other
material instrument binding upon the Company or any of the
Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Company
or any of the Subsidiaries, (d) will not result in the
creation or imposition of any Lien on any asset of the
Company or any of the Subsidiaries and (e) will not violate
the charter, by-laws or other organizational documents of
the Company or any of the Subsidiaries, except, in the case
of clause (a), (b), (c) and (d), to the extent that failure
to comply could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Company has heretofore furnished to the
Lenders its consolidated balance sheet and statements of
income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2000, reported on by
PricewaterhouseCoopers LLP, independent public accountants,
and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended September 30, 2001, certified by its
chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and
results of operations and cash flows of the Company and the
consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) The pro forma unaudited consolidated balance sheet and
consolidated statements of income, stockholders equity and
cash flows of the Acquired Business (which for these
purposes shall include certain immaterial non-acquired
assets) for the fiscal years ended September 30, 1999,
August 26, 2000, December 31, 2000 and December 31, 2001,
certified by the UK Borrower's chief financial officer, when
furnished to the Administrative Agent, to the best of the
Company's knowledge, will fairly present in all material
respects the consolidated financial condition of the
Acquired Business and its subsidiaries (exclusive of those
assets and operations of BHL not constituting part of the
Acquired Business) as at such dates and their consolidated
results of operations, shareholders' equity and cash flows
for the periods then ended in conformity with GAAP, subject
to the absence of footnotes.
(c) The pro forma consolidated balance sheet of the Company
as of December 30, 2001, prepared giving effect to the
Transactions as if the Transactions had occurred on such
date, when furnished to the Lenders (i) will have been
prepared in good faith based on the same assumptions used to
prepare the pro forma financial statements included in the
Information Memorandum (which assumptions are believed by
the Company to be reasonable), (ii) will be based on the
best information available to the Company after due inquiry,
(iii) will accurately reflect all adjustments necessary to
give effect to the Transactions and (iv) will present
fairly, in all material respects, the pro forma financial
position of the Company and its consolidated Subsidiaries as
of December 30, 2001, as if the Transactions had occurred on
such date. The representations and warranties set forth in
clauses (iii) and (iv) are limited to the best of the
Company's knowledge to the extent they relate to the
Acquired Business and its subsidiaries.
(d) The pro forma consolidated balance sheet of the Company
as of December 30, 2001, and the pro forma consolidated
statements of income and cash flow of the Company for the
fiscal year ended December 30, 2001, prepared giving effect
to the Transactions as if the Transactions had occurred on
such date, included in the model contained in the
Information Memorandum (i) have been prepared in good faith
based on assumptions believed by the Company to be
reasonable, (ii) are based on the best information available
to the Company after due inquiry, (iii) accurately reflect
all adjustments necessary to give effect to the Transactions
and (iv) present fairly, in all material respects, the pro
forma financial position of the Company and its consolidated
Subsidiaries as of December 30, 2001, as if the Transactions
had occurred on such date. The representations and
warranties set forth in clauses (iii) and (iv) are limited
to the best of the Company's knowledge at the Effective Date
to the extent they relate to the Acquired Business and its
subsidiaries.
(e) Since December 31, 2000, there has not occurred or
become known any condition or change that has affected or
would reasonably be expected to affect materially and
adversely the business, assets, liabilities or condition,
financial or otherwise, of the Company and its Subsidiaries,
taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and the
Subsidiaries has good title to, valid leasehold interests
in, or valid licenses of, all its real and personal property
material to its business, except for defects in title that,
individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
(b) Each of the Company and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its
business, except for any intellectual property the failure
to own or license which, individually or in the aggregate,
could not reasonably be expected to result in a Material
Adverse Effect, and the use thereof by the Company and the
Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or,
to the knowledge of the Company, threatened against or
affecting the Company or any of the Subsidiaries (i) as to
which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve this Agreement or
any other Loan Document or the Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Company nor any of the
Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental
Law, (ii) has become subject to any Environmental Liability,
(iii) has received written notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis
for any Environmental Liability.
(c) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
the Company and the Subsidiaries is in compliance with all
laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its
property, except where the failure to be in compliance,
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default
has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither the Company nor any of the Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and the
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid
or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such
Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to
do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with
all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect. The actuarial present
value of accumulated plan benefits under each Plan (based on
the assumptions used for purposes of FASB Statement 35)
multiplied by 115% did not, as of the date of the most
recent financial statements reflecting such amounts, exceed
the net assets of the Plan available for providing benefits
under such Plan.
SECTION 3.11. Disclosure. Neither the Information
Memorandum nor any of the other reports, financial
statements, certificates or other written or formally
presented information furnished by or on behalf of the
Company to any Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading; provided that, with respect to
projected financial information, the Company represents only
that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time; and
provided further that the representations and warranties set
forth in this sentence are limited to the best of the
Company's knowledge to the extent they relate to information
or materials obtained by the Company from the Acquired
Business and its subsidiaries prior to the Effective Date.
SECTION 3.12. Margin Stock. Neither the Company nor any of
the Subsidiaries is engaged principally, or as one of its
primary activities, in the business of extending credit for
the purpose of purchasing or carrying Margin Stock. None of
the Loans will be used to purchase or carry any Margin
Stock, to refinance any Indebtedness originally incurred for
any such purpose or in any other manner that would violate
any provision of Regulation U or X of the Board.
SECTION 3.13. Subsidiaries; Guarantee Requirement. (a)
Schedule 3.13 correctly sets forth, as of the date hereof,
(i) the name and jurisdiction of organization of each
Domestic Subsidiary that is a Significant Subsidiary and
(ii) the ownership of all the outstanding Equity Interests
in each such Domestic Subsidiary (other than any Equity
Interests owned by Persons other than the Company and the
Subsidiaries).
(b) The Guarantee Requirement has been and remains
satisfied.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the
Lenders to make Acquisition Loans shall not become effective
until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of
this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed
a counterpart of this Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative
Agent, the London Agent and the Lenders and dated the
Effective Date) of (i) Xxx Xxxx, Assistant Secretary of the
Company, substantially in the form of Exhibit E-1, (ii)
Xxxxxxxx & Xxxxx, special US counsel for the Company,
substantially in the form of Exhibit E-2 and (iii) Xxxxxxxxx
& May, special UK counsel for the Company, substantially in
the form of Exhibit E-3. The Borrowers hereby request such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or
its counsel may reasonably request relating to the
organization, existence and good standing of the Loan
Parties, the authorization of the Transactions, all in form
and substance reasonably satisfactory to the Administrative
Agent and its counsel.
(d) The Guarantee Requirement shall be satisfied.
(e) The Administrative Agent shall have received (or shall
be satisfied that it will receive promptly after the
Effective Date) all fees and other amounts due and payable
on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Company
hereunder or under any other Loan Document.
(f) The Acquisition shall have been completed in accordance
with applicable law and the terms of the Share Purchase
Agreement as heretofore provided to the Lenders, without
modification or waiver of any material term or condition
thereof not approved by the Administrative Agent, or, if the
Acquisition will be consummated on a day that is not a
Business Day, the Company shall have delivered written
notice to the Lenders on the last Business Day prior to the
anticipated date of such consummation advising the Lenders
that the Company expects that the Acquisition will on such
non-Business Day be so completed.
(g) No Specified Event shall have occurred and be
continuing.
(h) The representations and warranties set forth in
Sections 3.01, 3.02 and 3.03 shall be true and correct in
all material respects in respect of each Borrower.
The Administrative Agent shall notify the Company and the
Lenders of the Effective Date, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior
to 3:00 p.m., New York City time, on February 28, 2002 (and,
in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).
Each of the parties hereto hereby authorizes and directs the
Administrative Agent to deposit the proceeds of the
Acquisition Loans into a trust account to be held by ABN
Amro Bank N.V. pending the consummation of the Acquisition
in accordance with the terms of a Completion Agreement
having substantially the terms set forth in the draft
thereof dated January 29, 2001, previously made available to
the Lenders, and such changes therefrom as may be approved
by the Administrative Agent or are not adverse to the
interests of the Company or the Lenders. Unless the
Acquisition is on or prior to the next succeeding Business
Day completed in accordance with applicable law and the
terms of the Share Purchase Agreement as heretofore provided
to the Lenders, without modification or waiver of any
material term or condition thereof not approved by the
Administrative Agent, the Company shall ensure that ABN Amro
Bank N.V. shall return such funds to the Administrative
Agent for return to the Lenders on such Business Day.
SECTION 4.02. Effectiveness of Obligations to Extend Non-
Acquisition Credit. The obligations of the Lenders to make
Loans other than Acquisition Loans hereunder, and of the
Issuing Bank to issue Letters of Credit hereunder, shall not
become effective until the date on which each of the
conditions set forth in Section 4.01 has been satisfied and
the Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.03.
SECTION 4.03. Each Credit Event. The obligation of each
Lender to make a Loan other than an Acquisition Loan, and of
the Issuing Bank to issue, amend, renew or extend any Letter
of Credit, is subject to the satisfaction of the following
conditions:
(a) The representations and warranties (other than those
set forth in Sections 3.04(e) and 3.06(a) in the case of
Borrowings made for the sole purpose of refinancing the
Company's maturing commercial paper) of the Loan Parties set
forth in the Loan Documents shall be true and correct on and
as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, other than any representation given as of a
particular date, which representation shall be true and
correct as of that date.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to
constitute a representation and warranty by the Company on
the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section.
SECTION 4.04. Initial Credit Event for each Borrowing
Subsidiary. The obligation of each Lender to make Loans to
any Borrowing Subsidiary, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit for the account
of any Borrowing Subsidiary, is subject to the satisfaction
of the following conditions:
(a) The Administrative Agent (or its counsel) shall have
received such Borrowing Subsidiary's Borrowing Subsidiary
Agreement duly executed by all parties thereto.
(b) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or
its counsel may reasonably request relating to the
formation, existence and good standing (to the extent such
concept is applicable) of such Borrowing Subsidiary, the
authorization of the Transactions and the enforceability of
this Agreement insofar as they relate to such Borrowing
Subsidiary and any other legal matters relating to such
Borrowing Subsidiary, its Borrowing Subsidiary Agreement or
such Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees
payable hereunder have been paid in full and all Letters of
Credit have expired or terminated and all LC Disbursements
have been reimbursed, the Company covenants and agrees with
the Lenders as to itself and its subsidiaries and each
Borrowing Subsidiary covenants and agrees with the Lenders
as to itself and its subsidiaries that:
SECTION 5.01. Financial Statements and Other Information.
The Company will furnish to the Administrative Agent and
each Lender:
(a) within 90 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash
flows as of the end of and for such year, setting forth in
each case in comparative form the figures for the previous
fiscal year, all reported on by PricewaterhouseCoopers LLP
or other independent public accountants of recognized
national standing (without a "going concern" or like
qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all
material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company
(commencing with the fiscal quarter ending June 30, 2002),
its consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations
of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial
Officer of the Company (i) certifying as to whether a
Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating
compliance with Sections 6.06 and 6.07, (iii) stating
whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the
financial statements accompanying such certificate and, if
the effect of such change shall have been deferred under
Section 1.04 for purposes of Section 6.06 or 6.07 or any
other provision hereof, reconciling, as applicable, the
calculations referred to in clause (ii) above or any
calculations required under any other provision with the
financial statements delivered under clause (a) or (b)
above, and (iv) confirming compliance with the requirements
set forth in the definition of "Significant Subsidiary" and
attaching a revised form of Schedule 3.13 showing all
additions to and removals from the list of Significant
Subsidiaries since the date of the most recently delivered
Schedule 3.13 (or confirming that there have been no changes
from such most recently delivered Schedule 3.13);
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether
they obtained knowledge during the course of their
examination of such financial statements of any Default
(which certificate may be limited to the extent required by
accounting rules or guidelines or in accordance with the
normal commercial practices of such accounting firm);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements
and other materials filed by the Company or any Subsidiary
with the Securities and Exchange Commission, or any Govern-
mental Authority succeeding to any or all of the functions
of said Commission, or with any national securities
exchange, or distributed by the Company to its shareholders
generally, as the case may be;
(f) promptly after Xxxxx'x or S&P shall have announced a
change in the rating established or deemed to have been
established for the Index Debt, written notice of such
rating change;
(g) on or prior to June 30, 2002, each of the financial
statements referred to in paragraphs (b) and (c) of Section
3.04; and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and
financial condition of the Company or any Subsidiary, or
compliance with the terms of the Loan Documents, as any
Agent or any Lender may reasonably request.
Reports required to be delivered pursuant to clauses (a),
(b) and (e) above shall be deemed to have been delivered on
the date on which the Company posts such reports on the
Company's website on the Internet at xxx.xxxxx.xxx (or such
other address as the Company shall provide to the Lenders)
or when such reports are posted on the SEC's website at
xxx.xxx.xxx and such posting shall be deemed to satisfy the
reporting requirements of clauses (a) and (b) above;
provided, that the Company shall deliver paper copies of
such reports to any Agent or Lender upon request.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental
Authority against or affecting the Company or any Affiliate
thereof that could reasonably be expected to result in a
Material Adverse Effect;
(c) the (i) occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse
Effect, (ii) receipt of any notice indicating any intention
by the Pension Benefit Guaranty Corporation to terminate any
Plan, or (iii) receipt of any notice indicating any
intention by a multiemployer plan to obtain any withdrawal
liability from the Company or any of its Subsidiaries or
ERISA Affiliates (provided such withdrawal liability could
reasonably be expected to exceed $10,000,000); and
(d) any other development that has resulted, or could
reasonably be expected to result, in a Material Adverse
Effect.
Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other
executive officer of the Company setting forth the details
of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of the Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the
conduct of its business; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or
dissolution not prohibited by Section 6.04.
SECTION 5.04. Payment of Obligations. The Company will,
and will cause each of the Subsidiaries to, pay its material
obligations, including Tax liabilities, before the same
shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) the Company or such
Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP (or generally
applicable accounting principles in the relevant
jurisdiction) and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of the Subsidiaries to,
(a) keep and maintain all property material to the conduct
of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar
locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of the Subsidiaries to,
keep proper books of record and account in which full, true
and correct entries are made of all dealings and
transactions in relation to its business and activities.
The Company will, and will cause each of the Subsidiaries
to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as
often as reasonably requested. All visitation requests by
Lenders shall be made through the Administrative Agent, and
the Agents and Lenders shall endeavor to coordinate such
visits in order to minimize expense and inconvenience to the
Company.
SECTION 5.07. Compliance with Laws. The Company will, and
will cause each of the Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental
Authority, including Environmental Laws and ERISA,
applicable to it or its property, except where the failure
to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Term
Loans will be used solely to fund the Acquisition and to pay
related fees and expenses. The Revolving Loans will be used
for working capital and general corporate purposes
(including refinancing the Company's maturing commercial
paper) and, if necessary, to fund the Acquisition and to pay
related fees and expenses.
SECTION 5.09. Guarantee Requirement tc \l2 "SECTION 5.09.
Guarantee Requirement . The Company will cause the
Guarantee Requirement to be satisfied at all times.
SECTION 5.10. Indebtedness. On or prior to the Effective
Date, the Company will (a) terminate the Existing Credit
Agreement (which termination may be conditioned on the
consummation of the Acquisition) and pay all amounts
outstanding thereunder and (b) ensure that, as of the
Effective Date, after giving effect to the Transactions, the
Company and the Subsidiaries will have no outstanding
Indebtedness or preferred stock, other than (i) $80,000,000
in aggregate principal amount of 6.76% Series A Senior Notes
due July 15, 2002 of the Company, and Guarantees by
Subsidiary Guarantors thereof, (ii) $20,000,000 in aggregate
principal amount of 6.95% Series B Senior Notes due July 15,
2005 of the Company, and Guarantees by Subsidiary Guarantors
thereof, (iii) Indebtedness under the Bridge Facility or any
senior notes of the Company issued in lieu thereof,
(iv) Indebtedness in respect of the $5,000,000 City of Wheat
Ridge, Colorado Industrial Development Revenue Bonds (Xxxxxx
Xxxxx Company Project) Series 1993, (v) Hedging Agreements
in effect on the Effective Date, (vi) the $300,000 letter of
credit issued by Wachovia Bank for the benefit of
Continental Casualty Company, (vii) the $5,185,754 letter of
credit issued by Wachovia Bank for the benefit of Bank One,
N.A., as trustee for the bonds referred to in clause (iv)
above, (viii) two letters of credit issued by Xxxxx Fargo
for the benefit of the State of Colorado Inspector of Oils,
each in the amount of $35,000, (ix) the $356,448.40 letter
of credit issued by JPMorgan Chase Bank for the benefit of
Jefferson County and (x) other Indebtedness listed on
Schedule 6.01.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements have
been reimbursed, the Company covenants and agrees with the
Lenders as to itself and its subsidiaries and each Borrowing
Subsidiary covenants and agrees with the Lenders as to
itself and its subsidiaries that:
SECTION 6.01. Subsidiary Indebtedness. tc \l2 "SECTION
6.01. Subsidiary Indebtedness. The Company will not
permit any Subsidiary to create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth
on Schedule 6.01 or in Section 5.10 and extensions, renewals
or replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof or add
additional Subsidiaries as obligors in respect of such
Indebtedness;
(c) Indebtedness of any Subsidiary to the Company or any
other Subsidiary; provided that no such Indebtedness shall
be assigned to, or subjected to any Lien in favor of, a
Person other than the Company or a Subsidiary;
(d) Indebtedness, including Capital Lease Obligations, of
any Subsidiary incurred to finance the acquisition,
construction or improvement by such Subsidiary of, and
secured by, any fixed or capital assets, and extensions,
renewals and replacements of any of the foregoing
Indebtedness referred to in this paragraph that do not
increase the outstanding principal amount thereof and are
not secured by any additional assets or Guaranteed by any
other Subsidiaries; provided that such Indebtedness is
incurred prior to or within 180 days after such acquisition
or the completion of such construction or improvement;
(e) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; provided that such Indebtedness
exists at the time such Person becomes a Subsidiary and is
not created in contemplation of or in connection with such
Person becoming a Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in
respect of letters of credit backing obligations (other than
Indebtedness) of any Subsidiary;
(g) Indebtedness consisting of (or connected with)
industrial development, pollution control or other revenue
bonds or similar instruments issued or guaranteed by any
Governmental Authority;
(h) Securitization Transactions to the extent that the
aggregate amount, without duplication, of all Securitization
Transactions do not at any time exceed $100,000,000 in
respect of Securitization Transactions relating to loans
made to bars, pubs and other similar establishments in the
United Kingdom and $200,000,000 in respect of other
Securitization Transactions;
(i) (i) Indebtedness created under the Bridge Facility and
Guarantees by Subsidiary Guarantors in respect of the Bridge
Facility, (ii) senior unsecured notes of the Company or CBC
all the proceeds of which are used to repay the Bridge
Facility and Guarantees by Subsidiary Guarantors of such
notes and (iii) after the repayment in full of the Bridge
Facility, additional senior unsecured notes of the Company
or CBC in an aggregate principal amount of up to
$250,000,000 and Guarantees by Subsidiary Guarantors of such
notes, provided that all the Net Proceeds of such notes are
applied to prepay Term Borrowings in accordance with Section
2.10(c)(ii) (other than a portion of such proceeds not to
exceed $75,000,000, which may be applied to pay amounts due
as a result of an appreciation in Sterling against Dollars
in respect of currency hedging transactions entered into in
connection with the Bridge Facility); and
(j) Other Indebtedness not expressly permitted by clauses
(a) through (i) above; provided that the sum, without
duplication, of (i) the outstanding Indebtedness permitted
by this clause (j), (ii) the aggregate principal amount of
the outstanding obligations secured by Liens permitted by
Section 6.02(j) and (iii) the Attributable Debt in respect
of Sale-Leaseback Transactions permitted by Section 6.03(b)
does not at any time exceed 10% of Consolidated Net Tangible
Assets.
SECTION 6.02. Liens. tc \l2 "SECTION 6.02. Liens. The
Company will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof (or on improvements
or accessions thereto or proceeds therefrom) and set forth
on Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Company or any
Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or
existing on any property or asset of any Person that becomes
a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary; provided that (i) such Lien is
not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the
case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary other
than improvements and accessions to the assets to which it
originally applies and proceeds of such assets, improvements
and accessions and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount
thereof;
(d) Liens on fixed or capital assets acquired, constructed
or improved by the Company or any Subsidiary; provided that
(i) such Liens secure Indebtedness permitted by clause (d)
of Section 6.01, (ii) such Liens and the Indebtedness
secured thereby are incurred prior to or within 180 days
after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing
or improving such fixed or capital assets and (iv) such
Liens shall not apply to any other property or assets of the
Company or any Subsidiary;
(e) Liens securing (or in connection with) industrial
development, pollution control or other revenue bonds or
similar instruments issued or guaranteed by any Governmental
Authority;
(f) Liens in favor of any Governmental Authority to secure
obligations pursuant to the provisions of any contract or
statute;
(g) Liens to secure obligations of a Subsidiary to the
Company or any other Subsidiary;
(h) sales of Receivables pursuant to, and Liens existing or
deemed to exist in connection with, Securitization
Transactions; provided that the aggregate amount of all such
Securitization Transactions shall not at any time exceed the
applicable amount specified in Section 6.01(h);
(i) Rights of first refusal of the Company's joint venture
partner with respect to the Company's Equity Interests in
the Rocky Mountain Metal Container LLC; and
(j) Liens not expressly permitted by clauses (a) through (i)
above; provided that the sum, without duplication, of (i)
the outstanding Indebtedness permitted by Section 6.01(j),
(ii) the aggregate principal amount of the outstanding
obligations secured by Liens permitted by this clause (j)
and (iii) the Attributable Debt in respect of Sale-Leaseback
Transactions permitted by Section 6.03(b) does not at any
time exceed 10% of Consolidated Net Tangible Assets.
SECTION 6.03. Sale and Leaseback Transactions. tc \l2
"SECTION 6.03. Sale and Leaseback Transactions. The
Company will not, and will not permit any of its
Subsidiaries to, enter into any Sale-Leaseback Transaction
except:
(a) any Sale-Leaseback Transaction to which the Company or
any Subsidiary is a party as of the date hereof; and
(b) other Sale-Leaseback Transactions; provided that the
sum, without duplication, of (i) the outstanding
Indebtedness permitted by Section 6.01(j), (ii) the
aggregate principal amount of outstanding obligations
secured by Liens permitted by Section 6.02(j) and (iii) the
aggregate Attributable Debt in respect of Sale-Leaseback
Transactions permitted by this clause (b) does not at any
time exceed 10% of Consolidated Net Tangible Assets.
SECTION 6.04. Fundamental Changes. (a) The Company will
not merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions,
and whether directly or through the merger of one or more
Subsidiaries) assets representing all or substantially all
the assets of the Company and the Subsidiaries (whether now
owned or hereafter acquired), or liquidate or dissolve,
except that if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be
continuing, any Person may merge into the Company in a
transaction in which the Company is the surviving
corporation.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the
Company and its Subsidiaries on the date of this Agreement
or by BHL and its subsidiaries on the date of (and after
giving effect to) the Acquisition, businesses reasonably
related thereto and Securitization Transactions.
SECTION 6.05. Transactions with Affiliates. The Company
will not, and will not permit any of its Subsidiaries to,
sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not
less favorable to the Company or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third
parties and (b) transactions between or among the Company
and its Subsidiaries not involving any other Affiliate.
SECTION 6.06. Leverage Ratio. The Company will not permit
the Leverage Ratio at any time during any period set forth
below to exceed the ratio set forth below opposite such
period:
Period Ratio
6/30/02 through 3/30/04 3.80:1.00
3/31/04 and thereafter 3.50:1.00
SECTION 6.07. Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio for any period of four
consecutive fiscal quarters ending on or after June 30, 2002
to be less than 3.50:1.00.
ARTICLE VII
Events of Default and CAM
SECTION 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under
this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a
period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in
connection with this Agreement or any other Loan Document or
any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to
or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof
or waiver hereunder or thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in
Section 5.02, 5.03 (with respect to any Borrower's
existence), 5.08, 5.09 or 5.10 or in Article VI;
(e) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in
this Agreement or any other Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and
such failure shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent
or any Lender to the Company;
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest) in respect of any
Material Indebtedness, when and as the same shall become due
and payable, and such failure shall continue after any
applicable grace period;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled
maturity, or that enables or permits the holder or holders
of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become
due or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity (or, in
the case of any Securitization Transaction constituting
Material Indebtedness, that enables or permits the investors
or purchasers to terminate purchases of Receivables or
interests therein or to require the repurchase of all
outstanding Receivables by the Company or a Subsidiary);
provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or
any Significant Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar
official for the Company or any Significant Subsidiary or
for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) the Company or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for
the Company or any Significant Subsidiary or for a substan-
tial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) take any action for the purpose
of effecting any of the foregoing or (vii) become unable,
admit in writing its inability or fail generally to pay its
debts as they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered
against the Company, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period
of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of the
Company or any Subsidiary to enforce any such judgment;
(k) an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse
Effect;
(l) the guarantee of any Subsidiary Guarantor under the
Subsidiary Guarantee Agreement or the Company's guarantee
under Article VIII shall not be (or shall be asserted by the
Company or any Subsidiary Guarantor not to be) valid or in
full force and effect;
(m) an "Event of Default" shall have occurred and be
continuing under and as defined in the Bridge Facility at
any time when the Bridge Facility shall remain outstanding;
or
(n) a Change in Control shall occur;
then, and in every such event (other than an event described
in clause (h) or (i) of this Section), and at any time
thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Company, take either or both
of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare
the Loans then outstanding to be due and payable in whole or
in part (in which case any principal not so declared to be
due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each
Borrower; and in case of any event described in clause (h)
or (i) of this Section, the Commitments shall automatically
terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by each Borrower.
SECTION 7.02 CAM Exchange tc \l2 "SECTION 7.02 CAM
Exchange . On the CAM Exchange Date, (i) the Commitments
shall automatically and without further act be terminated as
provided in Section 7.01 and (ii) the Lenders shall
automatically and without further act be deemed to have
exchanged interests in the Designated Obligations such that,
in lieu of the interests of each Lender in the Designated
Obligations under each Tranche in which it shall participate
as of such date (including the principal, reimbursement,
interest and fee obligations of each Borrower in respect of
each such Tranche), such Lender shall own an interest equal
to such Lender's CAM Percentage in the Designated
Obligations under each of the Tranches (including the
principal, reimbursement, interest and fee obligations of
each Borrower in respect of each such Tranche and each LC
Reserve Account established pursuant to Section 7.03). Each
Lender, each Person acquiring a participation from any
Lender as contemplated by Section 10.04, the Company and
each other Borrower hereby consents and agrees to the CAM
Exchange. The Company, each other Borrower and each Lender
agrees from time to time to execute and deliver to the
Agents all such promissory notes and other instruments and
documents as the Agents shall reasonably request to evidence
and confirm the respective interests and obligations of the
Lenders after giving effect to the CAM Exchange, and comply
with the provisions of Section 2.16(e), and each Lender
agrees to surrender any promissory notes originally received
by it in connection with its Loans hereunder to the
Administrative Agent against delivery of any promissory
notes so executed and delivered; provided that the failure
of the Company or any other Borrower to execute or deliver
or of any Lender to accept any such promissory note,
instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.
SECTION 7.03. Letters of Credit tc \l2 "SECTION 7.03.
Letters of Credit . (a) In the event that on the CAM
Exchange Date any Letter of Credit shall be outstanding and
undrawn in whole or in part, each Lender which shall, on
such date and before giving effect to the CAM Exchange, have
held a participation in such Letter of Credit pursuant to
Section 2.04(d) of this Agreement shall promptly pay over to
the Administrative Agent, in immediately available funds, an
amount equal to such Lender's US Tranche Percentage of such
undrawn face amount, together with interest thereon from the
CAM Exchange Date to the date on which such amount shall be
paid to the Administrative Agent at the rate that would be
applicable at the time to an ABR Loan in a principal amount
equal to such amount. The Administrative Agent shall
establish a separate account (each an "LC Reserve Account")
or accounts for each Lender for the amounts received with
respect to each such Letter of Credit from each Lender
paying such amounts pursuant to the preceding sentence.
Each Lender's LC Reserve Account or Accounts, collectively,
shall initially include cash in an amount equal to the
product of (x) such Lender's CAM Percentage and (y) the
total amount received from the Lenders pursuant to the
second preceding sentence. The Administrative Agent shall
have sole dominion and control over each such account, and
the amounts deposited in each LC Reserve Account shall be
held in such LC Reserve Account until withdrawn as provided
in paragraph (b), (c), (d) or (e) below. The Administrative
Agent shall maintain records enabling it to determine the
amounts paid over to it and deposited in the LC Reserve
Accounts in respect to each Letter of Credit and the amounts
on deposit in respect of each Letter of Credit attributable
to each Lender's CAM Percentage. The amounts paid by a
Lender to the Administrative Agent pursuant to this
paragraph shall be held as a reserve against the LC
Exposures, shall be the property of such Lender, shall not
constitute Loans to any Borrower and shall not give rise to
any obligation on the part of any Borrower to pay interest
to such Lender, it being agreed that the Borrowers'
reimbursement obligations in respect of Letters of Credit
shall arise only at such times as drawings are made
thereunder, as provided in Section 2.04 of this Agreement.
(b) In the event that after the CAM Exchange Date any
drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the Issuing
Bank, withdraw from the LC Reserve Account of each of the
Lenders (in accordance with each Lender's CAM Percentage)
any amounts, up to the amount of such drawing, deposited in
respect of such Letter of Credit and remaining on deposit
and deliver such amounts to such Issuing Bank in
satisfaction of the reimbursement obligations of the Lenders
under Section 2.04(d) of this Agreement (but not of the
Borrowers under Section 2.04 of this Agreement). In the
event any Lender shall default on its obligation to pay over
any amount to the Administrative Agent in respect of any
Letter of Credit as provided in this Section 7.03, the
applicable Issuing Bank shall, in the event of a drawing
thereunder, have a claim against such Lender to the same
extent as if such Lender had defaulted on its obligations
under Section 2.04(d) of this Agreement, but shall have no
claim against any other Lender, notwithstanding the exchange
of interests in the applicable Borrower's reimbursement
obligations pursuant to Section 7.02. Each other Lender
shall have a claim against such defaulting Lender for any
damages sustained by it as a result of such default,
including, in the event such Letter of Credit shall expire
undrawn, its CAM Percentage of the defaulted amount of such
defaulting Lender.
(c) In the event that after the CAM Exchange Date any
Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the LC Reserve Account of each
Lender the amount remaining on deposit therein in respect of
such Letter of Credit and distribute such amount to such
Lender.
(d) With the prior written approval of the Administrative
Agent and the Issuing Bank (not to be unreasonably
withheld), any Lender may withdraw the amount held in its LC
Reserve Account in respect of the undrawn amount of any
Letter of Credit. Any Lender making such a withdrawal shall
be unconditionally obligated, in the event there shall
subsequently be a drawing under such Letter of Credit, to
pay over to the Administrative Agent, for the account of the
Issuing Bank, on demand, its CAM Percentage of such drawing.
(e) Pending the withdrawal by any Lender of any amounts
from its LC Reserve Account as contemplated by the above
paragraphs, the Administrative Agent will, at the direction
of such Lender and subject to such rules as the
Administrative Agent may prescribe for the avoidance of
inconvenience, invest such amounts in short-term investments
selected by the Administrative Agent. Each Lender that has
not withdrawn its CAM Percentage of amounts in its LC
Reserve Account as provided in paragraph (d) above shall
have the right, at intervals reasonably specified by the
Administrative Agent, to withdraw the earnings on
investments so made by the Administrative Agent with amounts
in its LC Reserve Account and to retain such earnings for
its own account.
ARTICLE VIII
Guarantee
In order to induce the Lenders to extend credit to the other
Borrowers hereunder, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not
merely as a surety, the payment when and as due of the
Obligations of such other Borrowers. The Company further
agrees that the due and punctual payment of such Obligations
may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain
bound upon its guarantee hereunder notwithstanding any such
extension or renewal of any such Obligation.
The Company waives presentment to, demand of payment from
and protest to any Borrower of any of the Obligations, and
also waives notice of acceptance of its obligations and
notice of protest for nonpayment. The obligations of the
Company hereunder shall not be affected by (a) the failure
of any Agent or Lender to assert any claim or demand or to
enforce any right or remedy against any Loan Party under the
provisions of this Agreement, any other Loan Document or
otherwise; (b) any extension or renewal of any of the
Obligations; (c) any rescission, waiver, amendment or
modification of, or release from, any of the terms or
provisions of this Agreement or any other Loan Document or
agreement; (d) any default, failure or delay, wilful or
otherwise, in the performance of any of the Obligations; or
(e) any other act, omission or delay to do any other act
which may or might in any manner or to any extent vary the
risk of the Company or otherwise operate as a discharge of a
guarantor as a matter of law or equity or which would impair
or eliminate any right of the Company to subrogation.
The Company further agrees that its agreement hereunder
constitutes a guarantee of payment when due (whether or not
any bankruptcy or similar proceeding shall have stayed the
accrual or collection of any of the Obligations or operated
as a discharge thereof) and not merely of collection, and
waives any right to require that any resort be had by any
Agent or Lender to any balance of any deposit account or
credit on the books of any Agent or Lender in favor of any
Borrower or any other Person.
The obligations of the Company hereunder shall not be
subject to any reduction, limitation, impairment or
termination for any reason, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or
unenforceability of any of the Obligations, any
impossibility in the performance of any of the Obligations
or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any
Obligation is rescinded or must otherwise be restored by any
Agent or Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Agent or Lender may have at law or in
equity against the Company by virtue hereof, upon the
failure of any other Borrower to pay any Obligation when and
as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written
demand by any Agent or Lender, forthwith pay, or cause to be
paid, to the Applicable Agent or Lender in cash an amount
equal to the unpaid principal amount of such Obligation then
due, together with accrued and unpaid interest thereon. The
Company further agrees that if payment in respect of any
Obligation shall be due in a currency other than US Dollars
and/or at a place of payment other than New York and if, by
reason of any Change in Law, disruption of currency or
foreign exchange markets, war or civil disturbance or other
event, payment of such Obligation in such currency or at
such place of payment shall be impossible or, in the
reasonable judgment of any Agent or Lender, not consistent
with the protection of its rights or interests, then, at the
election of the Administrative Agent, the Company shall make
payment of such Obligation in US Dollars (based upon the
applicable Exchange Rate in effect on the date of payment)
and/or in New York, and shall indemnify each Agent and
Lender against any losses or reasonable out-of-pocket
expenses that it shall sustain as a result of such
alternative payment.
Upon payment by the Company of any sums as provided above,
all rights of the Company against any Borrower arising as a
result thereof by way of right of subrogation or otherwise
shall in all respects be subordinated and junior in right of
payment to the prior indefeasible payment in full of all the
Obligations owed by such Borrower to the Agents and the
Lenders.
Nothing shall discharge or satisfy the liability of the
Company hereunder except the full performance and payment of
the Obligations.
ARTICLE IX
The Agents
In order to expedite the transactions contemplated by this
Agreement, the Persons named in the heading of this
Agreement are hereby appointed to act as Administrative
Agent and London Agent on behalf of the Lenders and the
Issuing Bank. Each of the Lenders, each assignee of any
Lender and the Issuing Bank hereby irrevocably authorizes
the Agents to take such actions on behalf of such Lender or
assignee or the Issuing Bank and to exercise such powers as
are delegated to the Agents by the terms of the Loan
Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent
and, to the extent expressly provided herein, the London
Agent are hereby expressly authorized by the Lenders and the
Issuing Bank, without hereby limiting any implied authority,
(a) to receive on behalf of the Lenders and the Issuing Bank
all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly
to distribute to each Lender or the Issuing Bank its proper
share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Company of any Event of
Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute
to each Lender copies of all notices, financial statements
and other materials delivered by the Company or any other
Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without
limiting the generality of the foregoing, the Administrative
Agent is hereby expressly authorized to release any
Subsidiary Guarantor from its obligations under the
Subsidiary Guarantee Agreement in the event that all the
capital stock of such Guarantor shall be sold, transferred
or otherwise disposed of to a Person other than the Company
or an Affiliate of the Company in a transaction not
prohibited by Section 6.04.
With respect to the Loans made by it hereunder, each Agent
in its individual capacity and not as Agent shall have the
same rights and powers as any other Lender and may exercise
the same as though it were not an Agent, and the Agents and
their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or
any Subsidiary or other Affiliate thereof as if it were not
an Agent.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) no Agent shall
be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is
continuing, (b) no Agent shall have any duty to take any
discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly
contemplated by the Loan Documents that such Agent is
required to exercise upon receipt of notice in writing by
the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as
provided in Section 10.02), and (c) except as expressly set
forth in the Loan Documents, no Agent shall have any duty to
disclose, and no Agent shall be liable for the failure to
disclose, any information relating to the Company or any of
its Subsidiaries that is communicated to or obtained by the
institution serving as Agent or any of its Affiliates in any
capacity. No Agent shall be liable for any action taken or
not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as
provided in Section 10.02) or in the absence of its own
gross negligence or willful misconduct. No Agent shall be
deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by a Borrower
(in which case such Agent shall give written notice to each
other Lender), and no Agent shall be responsible for or have
any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any
Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein, (iv) the
validity, enforceability, effectiveness or genuineness of
any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been
signed or sent by the proper Person. Each Agent also may
rely upon any statement made to it orally or by telephone
and in good faith believed by it to be made by the proper
Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may
be counsel for any Borrower), independent accountants and
other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-
agents appointed by such Agent. Each Agent and any such
sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection
with the syndication of the credit facilities provided for
herein as well as activities as Agent.
In taking any discretionary action hereunder, or in
determining whether any provision hereof is applicable to
any event, transaction or circumstance, the Administrative
Agent may, in its discretion, but shall not be required
(unless required by any other express provision hereof) to,
communicate such proposed action or determination to the
Lenders prior to taking or making the same, and shall be
entitled (subject to any otherwise applicable requirement of
Section 10.02(b)), in the absence of any contrary
communication received from any Lender within a reasonable
period of time specified in such communication from the
Administrative Agent, to assume that such proposed action or
determination is satisfactory to such Lender.
Subject to the appointment and acceptance of a successor
Agent as provided in this paragraph, any Agent may resign at
any time by notifying the Lenders, the Issuing Bank and the
Company. Upon any such resignation, the Required Lenders
shall have the right, with (so long as no Default has
occurred and is continuing) the consent of the Company (not
to be unreasonably withheld or delayed), to appoint a
successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a
successor Agent which shall be a bank with an office in
New York, New York or London, as applicable, or an Affiliate
of any such bank. Upon the acceptance of its appointment as
Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue
in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the
Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan
Document or related agreement or any document furnished
hereunder or thereunder.
The institutions named as Syndication Agent and as Co-
Documentation Agents in the heading of this Agreement shall
not, in their capacities as such, have any duties or
responsibilities of any kind under this Agreement.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. (a) Except in the case of notices
and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices
and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if to the Company, to it at Xxxxxx Xxxxx Company, 000
00xx Xxxxxx, Xxxxxx, Xxxxxxxx, Attention of Xxxxxxx Xxxx and
Xxxxxxx Xxxxxxx (Telecopy No. (000) 000-0000 and (303) 277-
7666);
(ii) if to any Borrowing Subsidiary, to it in care of the
Company as provided in paragraph (a) above;
(iii) if to the Administrative Agent, to JPMorgan Chase
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Xxxxx Xxxxxx (Telecopy No. (000) 000-0000), with a copy to
JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxxxxxxx (Telecopy No. (000) 000-0000);
(iv) if to the London Agent, to X.X. Xxxxxx Europe Limited,
Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxx X00XX
Attention of Loans Agency Division (Telecopy No. 011-44-171-
777-2360); with a copy to the Administrative Agent as
provided in paragraph (b) above;
(v) if to the Issuing Bank, to it at JPMorgan Chase Bank,
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention of Xxxxx Xxxxxx (Telecopy No.(000) 000-0000); and
(vi) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic
communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Company may, in its
discretion, agree to accept notices and other communications
to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such
procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its address or telecopy
number for notices and other communications hereunder by
notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have
been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or
delay by any Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or
power. The rights and remedies of the Agents, the Issuing
Bank and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Agent, the
Issuing Bank or any Lender may have had notice or knowledge
of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or
modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Required Lenders
or by the Company and the Administrative Agent with the
consent of the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the
Loan Party or Loan Parties that are parties thereto, in each
case with the consent of the Required Lenders; provided that
no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the
date of any scheduled payment of the principal amount of any
Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or
excuse any such scheduled payment, or postpone the scheduled
date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any
other provision of any Loan Document specifying the number
or percentage of Lenders (or Lenders of any Class) required
to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the
written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release the Company or all
or substantially all the Subsidiary Guarantors from, or
limit or condition, its or their obligations under
Article VIII or the Subsidiary Guarantee Agreement, without
the written consent of each Lender, (vii) change any
provisions of Section 7.02 or 7.03 without the written
consent of each Lender, or (viii) change any provisions of
any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders
holding Loans of any Class differently than those of Lenders
holding Loans of any other Class without the written consent
of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each adversely affected
Class; provided further that (A) no such agreement shall
amend, modify or otherwise affect the rights or duties of
any Agent or the Issuing Bank hereunder or under any other
Loan Document without the prior written consent of such
Agent or the Issuing Bank, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by
its terms affects the rights or duties under this Agreement
of the US Tranche Lenders (but not the UK Tranche Lenders or
the Term Lenders), the UK Tranche Lenders (but not the Term
Lenders or the US Tranche Lenders), or the Term Lenders (but
not the US Tranche Lenders or the UK Tranche Lenders) may be
effected by an agreement or agreements in writing entered
into by the Company and requisite percentage in interest of
the affected Class of Lenders.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Company shall pay (i) all reasonable out-of-pocket
expenses incurred by the Agents, the Syndication Agent and
their Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Agents, in connection with
the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement
or the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or
not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by any Agent, the Issuing
Bank or any Lender, including the fees, charges and
disbursements of any counsel for any Agent, the Issuing Bank
or any Lender, in connection with the enforcement or
protection of its rights in connection with any Loan
Document, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations
in respect of such Loans or Letters of Credit.
(b) The Company shall indemnify each Agent, the Issuing
Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, other than
Taxes, which are governed by Section 2.16, incurred by or
asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or
delivery of the Loan Documents or any agreement or
instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the
Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or Letter of Credit or the use of
the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or
operated by the Company or any of the Subsidiaries, or any
Environmental Liability related in any way to the Company or
any of the Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are deter-
mined by a court of competent jurisdiction to have resulted
from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to any Agent or the Issuing Bank
under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent or the Issuing Bank,
as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided
that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be,
was incurred by or asserted against such Agent or the
Issuing Bank in its capacity as such. For purposes hereof,
a Lender's "pro rata share" shall be determined based upon
its share of the sum of the total Revolving Credit
Exposures, outstanding Term Loans and unused Commitments at
the time.
(d) To the extent permitted by applicable law, the Company
shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions
of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to
the extent expressly contemplated hereby (including any
Affiliate of the Issuing Bank that issues any Letter of
Credit), the Related Parties of each of the Agents, the
Issuing Bank and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans
at the time owing to it); provided that (i) except in the
case of an assignment to a Lender or a Lender Affiliate,
each of the Company and the Administrative Agent (and in the
case of an assignment of all or a portion of a US Tranche
Revolving Commitment or any Lender's obligations in respect
of its LC Exposure, the Issuing Bank) must give their prior
written consent to such assignment (which consent shall not
be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or a Lender Affiliate or an
assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 unless each of the Company
and the Administrative Agent otherwise consent, (iii) the
parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500, and
(iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire and the documentation required to be delivered
under Section 2.16(e) and (f); and provided further that any
consent of the Company otherwise required under this
paragraph shall not be required if an Event of Default under
Section 7.01(a), (b), (h) or (i) has occurred and is
continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations
of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obliga-
tions under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16
and 10.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph
(e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices
in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of and interest on
the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Agents, the Issuing Bank
and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall
be available for inspection by the Company, the Issuing Bank
and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee,
the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in
the Register. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or
the Administrative Agent or the Issuing Bank, sell
participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrowers,
the Agents, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first
proviso to Section 10.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrowers
agree that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent
as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To
the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were
a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.14 or 2.16 than the
applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is
made with the Company's prior written consent. A
Participant shall not be entitled to the benefits of
Section 2.16 unless the Company is notified of the
participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with
Sections 2.16(e), (f) and (g) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that
no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a
party hereto.
(h) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Bank") may grant to a
special purpose funding vehicle (an "SPC") of such Granting
Bank, identified as such in writing from time to time by the
Granting Bank to the Administrative Agent and the Company,
the option to provide to the Borrowers all or any part of
any Loan that such Granting Bank would otherwise be
obligated to make to the Borrowers pursuant to Section 2.01;
provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC and (ii) if an SPC
elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall be
deemed to utilize the Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by the Granting
Bank and such Granting Bank shall for all purposes remain
the Lender of record hereunder. Each party hereto hereby
agrees that no SPC shall be liable for any payment under
this Agreement for which a Lender would otherwise be liable,
for so long as, and to the extent, the related Granting Bank
makes such payment. No SPC (or any Person receiving a
payment through such SPC) shall be entitled to receive any
greater payment under Section 2.14 or 2.16 (or any other
increased costs protection provision) than the applicable
Lender would have been entitled to receive with respect to
the interests transferred to such SPC. In furtherance of the
foregoing, each party hereto hereby agrees that, prior to
the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of any SPC, it
will not institute against, or join any other person in
instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the
United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this
Section 10.04 other than Section 10.04(d), any SPC may (i)
with notice to, but without the prior written consent of,
the Company and the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its
interests in any Loans to its Granting Bank or to any
financial institutions (if consented to by the Company and
Administrative Agent) providing liquidity and/or credit
facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any)
issued by such SPC to fund such Loans and (ii) disclose on a
confidential basis any non-public information relating to
its Loans (but not relating to any Borrower, except with the
Company's consent) to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties
herein or in any other Loan Document and in the certificates
or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this
Agreement and any other Loan Document and the making of any
Loans, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that any
Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee
or any other amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 10.03 and Article IX shall survive and remain
in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any other Loan Document
or any provision hereof or thereof.
SECTION 10.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when
taken together shall constitute a single contract. This
Agreement, the other Loan Documents and any fee letters
executed by the Company and the Administrative Agent or the
Syndication Agent or any of their Affiliates constitute the
entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements
and understandings, oral or written, relating to the subject
matter hereof. It is agreed that the fee letters referred to
in the preceding sentence will remain in full force and
effect following the execution of this Agreement, and that
any default by the Company in the performance of its
obligations thereunder will constitute an Event of Default
hereunder. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Delivery
of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in
any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and
the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any
other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each
of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to
or for the credit or the account of any Borrower against any
of and all the obligations of such Borrower now or hereafter
existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made
any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender
under this Section are in addition to other rights and
remedies (including other rights of setoff) which such
Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed
in accordance with and governed by the law of the State of
New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District
Court of the Southern District of New York, and any
appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document,
or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall
affect any right that any Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document
against any Borrower or its properties in the courts of any
jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of
this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by
law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration
in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each Agent, the Issuing
Bank and each Lender agrees to maintain the confidentiality
of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such
Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with
(and to the extent necessary for) the exercise of any
remedies hereunder or under any other Loan Document or any
suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section,
(i) to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Company or any
Subsidiary and its obligations, (g) with the consent of the
Company or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of
this Section or (ii) becomes available to any Agent, the
Issuing Bank or any Lender on a nonconfidential basis from a
source other than the Company. For the purposes of this
Section, "Information" means all information received from
the Company relating to the Company or its business, other
than any such information that is available to any Agent,
the Issuing Bank or any Lender on a nonconfidential basis
prior to disclosure by the Company. Any Person required to
maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such
Information as such Person would accord to its own
confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan
under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved
by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of
such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and,
to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall
be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary
to convert a sum owing hereunder in one currency into
another currency, each party hereto (including any Borrowing
Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures
in the relevant jurisdiction the first currency could be
purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is
given.
(b) The obligations of each Borrower in respect of any sum
due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is
stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day
following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the
Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum
originally due to the Applicable Creditor in the Agreement
Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss, and if the amount of
the Agreement Currency so purchased exceeds the sum
originally due to the Applicable Creditor in the Agreement
Currency, the Applicable Creditor shall refund the amount of
such excess to the applicable Borrower. The obligations of
the parties contained in this Section 10.14 shall survive
the termination of this Agreement and the payment of all
other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
XXXXXX XXXXX COMPANY,
by
_________________________
Name:
Title:
COORS BREWING COMPANY,
by
_________________________
Name:
Title:
GOLDEN ACQUISITION LIMITED,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
JPMORGAN CHASE BANK, individually and as Administrative
Agent and Issuing Bank,
by
_________________________
Name:
Title:
X.X. XXXXXX EUROPE LIMITED, as London Agent,
by
_________________________
Name:
Title:
DEUTSCHE BANC ALEX. XXXXX
INC., as Syndication Agent,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH, as Lender,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
LENDER:
__________________________,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
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