Exhibit 10
EXECUTION COPY
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT,
dated as of November 13, 2001,
among
SUN INTERNATIONAL HOTELS LIMITED,
SUN INTERNATIONAL NORTH AMERICA, INC.
and
SUN INTERNATIONAL BAHAMAS LIMITED,
as the Borrowers and the Guarantors,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as the Administrative Agent,
DEUTSCHE BANC ALEX.XXXXX INC.
and
BEAR XXXXXXX CORPORATE LENDING INC.,
as the Co-Syndication Agents,
BANK OF AMERICA, N.A.
and
XXXXX FARGO BANK, N.A.,
as the Co-Documentation Agents
------------------------------
CIBC WORLD MARKETS CORP.
and
DEUTSCHE BANC
ALEX.XXXXX INC.,
as the Co-Lead Arrangers and
the Joint Book Runners.
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as
of November 9, 2001, is among SUN INTERNATIONAL HOTELS LIMITED, a corporation
organized under the laws of The Commonwealth of the Bahamas ("SIHL"), SUN
----
INTERNATIONAL NORTH AMERICA, INC., a corporation organized under the laws of
the State of Delaware ("SINA"), SUN INTERNATIONAL BAHAMAS LIMITED, a
----
corporation organized under the laws of The Commonwealth of the Bahamas
("SIBL"; SIHL, SINA and SIBL are each individually referred to as a
"Borrower" and collectively referred to as the "Borrowers"), the financial
---------
institutions as are or may become parties hereto (collectively referred to as
the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, acting through one or
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more of its agencies, branches or affiliates ("CIBC"), as the administrative
----
agent (in such capacity, the "Administrative Agent"), DEUTSCHE BANC
--------------------
ALEX.XXXXX INC. and BEAR XXXXXXX CORPORATE LENDING INC., as co-syndication
agents (collectively in such capacities, the "Co-Syndication Agents") and
---------------------
BANK OF AMERICA, N.A. and XXXXX FARGO BANK, N.A., as co-documentation agents
(collectively in such capacities, the "Co-Documentation Agents").
-----------------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers are engaged directly and through their various
Subsidiaries in the business of, among other things, owning and operating
hotel and casino properties and other activities in the resort and gaming
industry;
WHEREAS, pursuant to a Third Amended and Restated Revolving Credit
Agreement, dated as of November 1, 1999 (as amended by the First Amendment
thereto, dated as of June 13, 2000, and the Second Amendment thereto, dated
as of January 26, 2001, and as further amended, supplemented, amended and
restated or otherwise modified prior to the date hereof, the "Existing Credit
----------------
Agreement"), among SIBL, SIHL, Resorts International Hotel, Inc., Sun
---------
International Nevada, Inc. (collectively, the "Existing Credit Agreement
--------------------------
Borrowers"), the financial institutions parties thereto, as lenders
---------
(collectively, the "Existing Lenders"), and the agents party thereto, the
----------------
Existing Lenders made commitments to make extensions of credit to the
Existing Credit Agreement Borrowers;
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated in its entirety to become effective and
binding on the Borrowers pursuant to the terms of this Agreement, and the
Lenders (including certain Existing Lenders) have agreed (subject to the
terms of this Agreement) to amend and restate the Existing Credit Agreement
in its entirety to read as set forth in this Agreement, and it has been
agreed by the parties to the Existing Credit Agreement that the commitments
which certain Existing Lenders have agreed to extend to the Borrowers under
the Existing Credit Agreement shall be extended or advanced to the Borrowers
upon the amended and restated terms and conditions contained in this
Agreement with the intent that the terms of this Agreement shall supersede
the terms of the Existing Credit Agreement (which shall hereafter have no
further effect upon the parties thereto, other than for accrued fees and
expenses and indemnification provisions accrued and owing under the terms of
the Existing Credit Agreement on or prior to the date hereof or arising (in
the case of an indemnification) under the terms of the Existing Credit
Agreement); provided that any Rate Protection Agreements with any one or more
--------
Existing Lenders (or their respective Affiliates) shall continue unamended
and in full force and effect;
WHEREAS, in connection with amending and restating the Existing Credit
Agreement, the Borrowers desire to obtain, on the terms and conditions set
forth below, Commitments pursuant to which
(a) Loans will be made to the Borrowers from time to time prior to
the Commitment Termination Date in a maximum aggregate principal amount,
together with all Letter of Credit Outstandings at any one time
outstanding, not to exceed the then existing Commitment Amount; and
(b) Letters of Credit will be issued for the account of a Borrower
or a Guarantor (and the Lenders will participate in such Letters of
Credit) from time to time prior to the Commitment Termination Date in a
maximum aggregate Stated Amount at any one time outstanding not to exceed
the then existing Letter of Credit Commitment Amount (provided that the
--------
aggregate outstanding principal amount of Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing Commitment
Amount);
WHEREAS, subject to the terms of this Agreement and the other Loan
Documents, certain Existing Lenders have agreed to continue their Commitments
under this Agreement and, in addition to certain Existing Lenders, other
financial institutions will, on the Effective Date, become parties to this
Agreement and have agreed to have all of the rights, and be subject to the
obligations (including their respective Commitments as in effect from time to
time), of a Lender;
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions hereinafter set forth (including Article V), to
---------
amend and restate the Existing Credit Agreement in its entirety pursuant to
the terms of this Agreement, and on and subsequent to the Effective Date, the
Lenders and the Issuer are willing to extend such Commitments and make such
Loans to the Borrowers and issue (or participate in) such Letters of Credit
for the account of the Borrowers and the Guarantors; and
WHEREAS, pursuant to the terms of this Agreement, the proceeds of Loans
and Letters of Credit will be used for the general corporate purposes of the
Borrowers and the Guarantors, including working capital, capital
expenditures, acquisitions and investments;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
-------------
underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"8 5/8% Senior Subordinated Notes Indenture" means the Indenture dated
------------------------------------------
as of December 10, 1997, among SIHL and SINA (as issuers), certain
Subsidiaries of SIHL from time to time parties thereto (as guarantors) and
The Bank of New York, as trustee.
"8 7/8% Senior Subordinated Notes Indenture" means the Indenture, dated
------------------------------------------
as of August 9, 2001, among SIHL and SINA (as issuers), certain Subsidiaries
of SIHL from time to time parties thereto (as guarantors) and The Bank of New
York, as trustee.
"9% Senior Subordinated Notes Indenture" means the Indenture, dated as
--------------------------------------
of March 10, 1997, among SIHL and SINA (as issuers), certain Subsidiaries of
SIHL from time to time parties thereto (as guarantors) and The Bank of New
York, as trustee.
"Additional Increasing Lender" is defined in Section 2.2.3.
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"Administrative Agent" is defined in the preamble and includes each
-------------------- --------
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
-----------
"Affiliate" of any Person means any other Person which, directly or
---------
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the
------
Co-Documentation Agents and the Co-Syndication Agents.
"Agreement" means, on any date, this Fourth Amended and Restated
---------
Revolving Credit Agreement as originally in effect on the Effective Date and
as thereafter from time to time amended, supplemented, amended and restated,
or otherwise modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
-------------------
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for Dollar
loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent, plus1/2of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions
of credit. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. The Administrative Agent will give notice
promptly to SIHL and the Lenders of changes in the Alternate Base Rate.
"Applicable Commitment Fee" means the per annum percentage set forth
-------------------------
below opposite the Total Leverage Ratio indicated in the Compliance
Certificate most recently delivered pursuant to this Agreement:
Applicable
Total Leverage Ratio Commitment Fee
-------------------- --------------
Greater than or equal to 4.0:1 .500%
Greater than or equal to 2.0:1 but less .375%
than 4.0:1
Less than 2.0:1 .250%
The Applicable Commitment Fee shall be adjusted on the fifteenth day of
each March, June, September and December (or, if such day is not a Business
Day, on the next succeeding Business Day), based on the Total Leverage Ratio
as of the last day of the preceding Fiscal Quarter. If SIHL shall fail to
deliver a Compliance Certificate within 60 days after the end of the first
three Fiscal Quarters of any Fiscal Year or a certificate showing the
calculation of the Total Leverage Ratio within 60 days after each Fiscal Year
end, all as required pursuant to clause (c) of Section 7.1.1, the Applicable
---------- -------------
Commitment Fee from and including the 61st day after the end of such Fiscal
Quarter or Fiscal Year to but not including the date SIHL delivers to the
Administrative Agent a Compliance Certificate shall conclusively equal .500%
per annum. If the calculation of the Total Leverage Ratio set forth in the
Compliance Certificate for any Fiscal Year end shall differ from the
calculation of the Total Leverage Ratio that was included in the certificate
delivered pursuant to clause (c) of Section 7.1.1 for such Fiscal Year end,
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to the extent necessary, the Applicable Commitment Fee shall be adjusted as
of the date of such Compliance Certificate and a retroactive adjustment shall
be made for the commitment fees accrued and paid prior to such date.
"Applicable Margin" means, on any date, (i) with respect to any Base
-----------------
Rate Loan, the per annum percentage set forth below under the column entitled
"Applicable Base Rate Margin" and (ii) with respect to any LIBO Rate Loan,
the per annum percentage set forth below under the column entitled
"Applicable LIBO Rate Margin", in each case opposite the applicable Total
Leverage Ratio below corresponding to the Total Leverage Ratio indicated in
the Compliance Certificate most recently delivered pursuant to this Agreement.
Applicable Base Applicable LIBO
Total Leverage Ratio Rate Margin Rate Margin
-------------------- --------------- --------------
Greater than or equal to 4.5:1 1.75% 2.75%
Greater than or equal to 4.0:1 but less than 4.5:1 1.25% 2.25%
Greater than or equal to 3.5:1 but less than 4.0:1 1.00% 2.00%
Greater than or equal to 3.0:1 but less than 3.5:1 0.75% 1.75%
Greater than or equal to 2.0:1 but less than 3.0:1 0.50% 1.50%
Less than 2.0:1 0.25% 1.25%
The Applicable Margin shall be adjusted on the fifteenth day of each
March, June, September and December (or, if such day is not a Business Day,
on the next succeeding Business Day), based on the Total Leverage Ratio as of
the last day of the preceding Fiscal Quarter. If SIHL shall fail to deliver
a Compliance Certificate within 60 days after the end of the first three
Fiscal Quarters of any Fiscal Year or a certificate showing the calculation
of the Total Leverage Ratio within 60 days after each Fiscal Year end, all as
required pursuant to clause (c) of Section 7.1.1, the Applicable Margin from
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and including the 61st day after the end of such Fiscal Quarter to but not
including the date SIHL delivers to the Administrative Agent a Compliance
Certificate shall conclusively equal 1.75% per annum for Base Rate Loans or
2.75% per annum for LIBO Rate Loans. Notwithstanding the foregoing, from the
Effective Date until adjusted pursuant to the Compliance Certificate
delivered for the Fiscal Quarter ending March 31, 2002, the Applicable Margin
shall in no event be less than 1.25% per annum for Base Rate Loans and 2.25%
per annum for LIBO Rate Loans. If the calculation of the Total Leverage
Ratio set forth in the Compliance Certificate for any Fiscal Year end shall
differ from the calculation of the Total Leverage Ratio that was included in
the certificate delivered pursuant to clause (c) of Section 7.1.1 for such
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Fiscal Year end, to the extent necessary, the Applicable Margin shall be
adjusted as of the date of such Compliance Certificate and a retroactive
adjustment shall be made for the interest accrued and paid prior to such date.
"Approved Fund" means any fund with net assets of at least $100,000,000
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that invests (in whole or in part) in commercial loans, or any other fund
that invests (in whole or in part) in commercial loans and is managed by a
Lender, the same investment advisor as such Lender or by an Affiliate of such
Lender or investment advisor.
"Asset Sale Offer Amount" has the meaning set forth in the Existing
-----------------------
Indentures as in effect on the Effective Date.
"Assignee Lender" is defined in Section 10.11.1.
--------------- ---------------
"Atlantis" means the approximately 2,300-room resort and casino located
--------
on Paradise Island, The Bahamas.
"Authorized Officer" means, relative to any Borrower, those of its
------------------
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 5.1.1 and relative
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to any other Obligor, those Persons who shall have been authorized to act on
behalf of such Obligor by such Obligor's board of directors and whose
signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.1.
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"Bahamas Property" means all the real property, improvements, fixtures
----------------
and personal property now or hereafter owned by SIHL or any of its
Subsidiaries (including approximately 100 acres of undeveloped real property,
three hotels, a casino and an 18 hole golf course) located on Paradise
Island, The Bahamas.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
--------------
determined by reference to the Alternate Base Rate.
"Borrower" and "Borrowers" are defined in the preamble.
-------- --------- --------
"Borrower Effective Date Certificate" means the certificate executed
-----------------------------------
and delivered by the Borrowers pursuant to Section 5.1.8, substantially in
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the form of Exhibit E hereto.
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"Borrower Security Agreement" means the Amended and Restated Security
---------------------------
Agreement, dated as of the Effective Date, executed and delivered by the
Borrowers pursuant to the terms of this Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
---------
Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
-----------
"Borrowing Request" means a loan request and certificate duly executed
-----------------
by an Authorized Officer of a Borrower, substantially in the form of Exhibit
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B-1 hereto.
---
"Business Day" means (i) any day excluding Saturday, Sunday and any day
------------
which is a legal holiday under the laws of the State of New York or is a day
on which banking institutions located in such state are authorized or
required by law or other governmental action to close, and (ii) with respect
to all notices, determinations, fundings and payments in connection with any
LIBO Rate loan, any day that (a) is a Business Day described in clause (i)
above, and (b) is a day for trading by and between banks in Dollar deposits
in the London interbank market.
"Capital Expenditures" means, for any period, the sum of the aggregate
--------------------
amount of all expenditures (including under leasing and similar arrangements)
of any Person for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures.
"Capitalized Lease Liabilities" means all monetary obligations of any
-----------------------------
Person under any leasing or similar arrangement which, in accordance with
GAAP, would be classified as capitalized leases, and, for purposes of this
Agreement and each other Loan Document, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with GAAP, and
the stated maturity thereof shall be the date of the last payment of rent or
any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
--------------------------
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any state of the United States or of the
District of Columbia and rated A-1 by Standard & Poor's Corporation
or P-1 by Xxxxx'x Investors Service, Inc., or
(ii) any Lender (or its holding company);
(c) demand or time deposits maintained with, or any certificate of
deposit or bankers' acceptance maturing not more than one year after such
time which is issued by, either
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in clause
------
(c)(i)) which
------
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c); and
(ii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation
of such Lender (or other commercial banking institution) thereunder.
"Casino Licenses" means, collectively, all licenses that are required
---------------
to be granted by any applicable federal, state, local, tribal or other
regulatory body, gaming board or other agency that has jurisdiction over
(i) any casino now or hereafter located on Paradise Island, The Bahamas, and
(ii) any other casinos otherwise owned or operated by the Borrowers or any of
their respective Significant Subsidiaries that are singly or in the aggregate
of equal or greater importance to the ongoing operations of the Borrowers and
their respective Significant Subsidiaries as those casinos specified in
clause (i) and (if and when applicable), this clause.
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"CERCLA" means the Comprehensive Environmental Response, Compensation
------
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
-------
Liability Information System List.
"Change in Control" means
-----------------
(a) the failure of the WLG Group to control and have the power to
vote individually or in aggregate, directly or indirectly, at least 15% of
all of the outstanding shares of all classes of voting stock of SIHL (on a
fully diluted basis); or
(b) any "person" or "group" (as such terms are used in Rule 13d-5
under the Exchange Act, and Sections 13(d) and 14(d) of the Exchange Act)
of persons (other than the WLG Group) becomes, directly or indirectly, in
a single transaction or in a related series of transactions by way of
merger, consolidation, or other business combination or otherwise, the
"beneficial owner" (as such term is used in Rule 13d-3 of the Exchange
Act) of more than 28% of the outstanding shares of all classes of voting
stock of SIHL (on a fully diluted basis); or
(c) during any period of 24 consecutive months, individuals who at
the beginning of such period constituted the Board of Directors of SIHL
(together with any new directors whose election to such Board or whose
nomination for election by the stockholders of SIHL was approved by the
WLG Group or a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of SIHL then
in office; or
(d) the failure of SIHL to directly own, free and clear of all Liens
(other than Liens in favor of the Secured Parties) 100% of the issued and
outstanding shares of capital stock of SIBL, on a fully-diluted basis.
"CIBC" is defined in the preamble.
---- --------
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
----
otherwise modified from time to time.
"Collateral Documents" means each Pledge Agreement, each Security
--------------------
Agreement, each Mortgage, each Debenture and each other agreement delivered
by an Obligor which grants to or any Secured Party a security interest in or
Lien on any property (real or personal) of such Obligor.
"Commitment" means, as the context may require, a Lender's Loan
----------
Commitment or the Issuer's (or a Lender's) Letter of Credit Commitment.
"Commitment Amount" means, prior to the Effective Date, $373,000,000,
-----------------
and from and after the Effective Date, $200,000,000, as such amount may be
reduced from time to time pursuant to Section 2.2.1 and 2.2.2 or increased
------------- -----
from time to time pursuant to Section 2.2.3.
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"Commitment Termination Date" means the earliest to occur of
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(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is terminated in full or
reduced to zero pursuant to Section 2.2; and
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(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the
---------- ---
Commitments shall terminate automatically and without further action.
"Commitment Termination Event" means the earliest to occur of
----------------------------
(a) the occurrence of any Event of Default described in clauses (a)
-----------
through (d) of Section 8.1.9; or
--- -------------
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans to be due and payable
pursuant to Section 8.3, or
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(ii) in the absence of such declaration, the giving of notice
by the Administrative Agent, acting at the direction of the Required
Lenders, to SIHL that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
----------------------
executed by an Authorized Officer of SIHL, substantially in the form of
Exhibit F hereto, as amended, supplemented, amended and restated or otherwise
---------
modified from time to time, together with such changes thereto as the
Administrative Agent may from time to time reasonably request for the purpose
of monitoring SIHL's compliance with the financial covenants contained herein.
"Consolidated EBITDA" means, for any period, the sum, without
-------------------
duplication, of the amounts for such period of (i) Net Income, (ii) Interest
Expense (including amortization of financing fees), (iii) provisions for
taxes based on income, (iv) total depreciation expense, (v) total
amortization expense, (vi) other non-recurring and non-cash items reducing
Net Income, (vii) pre-opening expenses and (viii) up to $2,500,000 of
severance payments incurred during the period from September 11, 2001 through
March 31, 2002, less any non-recurring and non-cash items increasing Net
----
Income, all of the foregoing as determined on a consolidated basis for SIHL
and its Subsidiaries in conformity with GAAP.
"Consolidated Net Worth" means, on any date of determination, the Net
----------------------
Worth of SIHL and its Subsidiaries on such date.
"Contingent Liability" means any agreement, undertaking or arrangement
--------------------
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable (i) by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, (ii) to otherwise assure a creditor against loss for
Indebtedness of any other Person (other than by endorsements of instruments
in the course of collection), or (iii) for the payment of dividends or other
distributions upon the shares of any other Person. The amount of any
Person's obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding principal
amount (or maximum principal amount, if larger) of the debt, obligation or
other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
------------------------------
conversion and certificate duly executed by an Authorized Officer of a
Borrower, substantially in the form of Exhibit C hereto.
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"Controlled Group" means all members of a controlled group of
----------------
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with any
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Core Assets" means the Ocean Club and the Atlantis, and the real
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property upon which the Ocean Club and the Atlantis are located.
"Co-Syndication Agents" is defined in the preamble.
--------------------- --------
"Credit Extension" means, as the context may require,
----------------
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by the Issuer and
participation in such Letter of Credit by the Lenders pursuant to the
terms of this Agreement.
"Credit Extension Request" means, as the context may require, any
------------------------
Borrowing Request or Issuance Request.
"Debentures" means the debentures set forth on Schedule II hereto,
---------- -----------
executed by each owner of the Bahamas Property constituting real property, in
each case as amended, supplemented, consolidated, spread, severed, partially
released, partially reconveyed, restated and otherwise modified from time to
time.
"Debt" means, without duplication, (i) the aggregate outstanding
----
principal and stated amount of all Indebtedness of SIHL and its Subsidiaries
of the nature referred to in clauses (a), (b), (c), (e) and (f) of the
----------- --- --- --- ---
definition of "Indebtedness" and (ii) any Contingent Liabilities of SIHL and
its Subsidiaries in respect of any types of the Indebtedness described in
clause (i) above.
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"Default" means any Event of Default or any condition, occurrence or
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event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Defaulting Lender" means
-----------------
(a) any Lender that fails in its obligation to fund any Loan
pursuant to Section 2.1 or participate in any Letter of Credit
------------
Outstandings pursuant to the terms of this Agreement and such failure
continues for three consecutive Business Days; provided that the refusal
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of a Lender to make a Loan because it in good faith asserts that a
Borrower has failed to satisfy a condition precedent to borrowing
contained in Article V shall not result in such Lender becoming a
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"Defaulting Lender";
(b) any Lender as to which any event of the type described in
Section 8.1.9 occurs (with all references in such Section to "SIHL" or
--------------
"such Person" instead being to such Lender);
(c) any Lender as to which any governmental authority (including the
Office of Thrift Supervision, the Federal Deposit Insurance Company, the
Office of the Comptroller of Currency or the Federal Reserve Board)
directly or indirectly seizes, takes possession of or undertakes,
authorizes, or orders similar action with respect to, or authorizes, or
orders the liquidation, dissolution, winding up, sale, transfer or other
disposition of, or takes steps or institutes proceedings or otherwise
proceeds to liquidate, dissolve, wind up, sell, transfer or otherwise
dispose of, such Lender or all or any part of such Lender's property or
appoints or authorizes or orders the appointment of a receiver,
liquidator, sequestrator, trustee, custodian, conservator or other officer
or entity having similar powers over such Lender or over all or any part
of such Lender's property.
"Disbursement" is defined in Section 2.6.2.
------------ -------------
"Disbursement Date" is defined in Section 2.6.2.
----------------- -------------
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
-------------------
Schedule I as it may be amended, supplemented or otherwise modified from time
----------
to time by SIHL with the written consent of the Required Lenders.
"Disposition" (or similar words such as "Dispose", and any derivation
-----------
thereof) is defined in Section 7.2.11.
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"Dollar" and the sign "$" mean lawful money of the United States.
------ -
"Dollar Equivalent" means, on any date of determination, the equivalent
-----------------
in Dollars of any Foreign Currency, determined by using the quoted spot rate
at which the Administrative Agent's principal office in New York, New York
offers to exchange Dollars for such Foreign Currency at the opening of
business on such date.
"Domestic Office" means, relative to any Lender, the office of such
---------------
Lender (or any successor or assign of such Lender) within the United States
as currently on file with the Administrative Agent or designated in the
Lender Assignment Agreement or as may be designated from time to time by
notice from such Lender, as the case may be, to SIHL and the Administrative
Agent.
"Effective Date" means the date this Agreement becomes effective
--------------
pursuant to Section 10.8.
------------
"Eligible Assignee" means (A) any of the following entities: (i) a
-----------------
commercial bank organized under the laws of the United States or any state
thereof; (ii) a savings and loan association or savings bank organized under
the laws of the United States or any state thereof; (iii) a commercial bank
organized under the laws of any other country or a political subdivision
thereof (provided that (x) such bank is acting through a branch or agency
--------
located in the United States or (y) such bank is organized under the laws of
a country that is a member of the Organization for Economic Cooperation and
Development or a political subdivision of such country); and (iv) any other
entity which is an "accredited investor" (as defined in Regulation D under
the Securities Act) which extends credit or buys loans as one of its
businesses including insurance companies, mutual funds and lease financing
companies or (B) a Lender, an Affiliate of a Lender or an Approved Fund; or
(C) any other Person (other than a natural Person) approved by (1) the
Administrative Agent, (2) the Issuer, and (3) unless an Event of Default has
occurred and is continuing, Borrower (each such approval not to be
unreasonably withheld or delayed); provided that no Affiliate of Borrower
--------
shall be an Eligible Assignee.
"Environmental Laws" means all applicable federal, state or local
------------------
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"Euro" means the single currency of Participating Member States of the
----
European Union.
"Event of Default" is defined in Section 8.1.
---------------- -----------
"Exchange Act" means the Securities and Exchange Act of 1934, as
------------
amended.
"Existing Credit Agreement" is defined in the second recital.
------------------------- --------------
"Existing Credit Agreement Borrowers" is defined in the second recital.
----------------------------------- --------------
"Existing Indentures" means the 8 5/8% Senior Subordinated Notes
-------------------
Indenture, the 8 7/8% Senior Subordinated Notes Indenture and the 9% Senior
Subordinated Notes Indenture.
"Existing Lenders" is defined in the second recital.
---------------- --------------
"Existing Subordinated Notes" means (a) the 9% Senior Subordinated
---------------------------
Notes due 2007 executed and delivered by SIHL and SINA evidencing the
Subordinated Debt issued pursuant to the 9% Senior Subordinated Notes
Indenture, (b) the 8 7/8% Senior Subordinated Notes due 2011 executed and
delivered by SIHL and SINA evidencing the Subordinated Debt issued pursuant
to the 8 7/8% Senior Subordinated Notes Indenture and (c) the 8 5/8% Senior
Subordinated Notes due 2007 executed and delivered by SIHL and SINA
evidencing the Subordinated Debt issued pursuant to the 8 5/8% Senior
Subordinated Notes Indenture.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
------------------
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letters" means, collectively, the confidential letter agreements
-----------
by and among the Borrowers (or any one of them) and any Lender entering into
a fee arrangement with such Person.
"Fiscal Quarter" means any quarter, ending on March 31, June 30,
--------------
September 30 or December 31 of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
-----------
ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g. the "2001 Fiscal Year") refer to the
----
Fiscal Year ending on the December 31 occurring during such calendar year.
"Foreign Currency" means Euros, French Francs, Pounds Sterling and any
----------------
additional currency, other than Dollars, that is freely transferable,
convertible into Dollars and approved by the Administrative Agent and the
Issuer (which approval shall not be unreasonably withheld).
"Foreign Currency Letter of Credit" means any Letter of Credit
---------------------------------
denominated in a Foreign Currency.
"Foreign Currency Letter of Credit Commitment Amount" means $3,000,000.
---------------------------------------------------
"Foreign Currency Letter of Credit Outstandings" means any Letter of
----------------------------------------------
Credit Outstandings in respect of Foreign Currency Letters of Credit.
"Foreign Pledge Agreement" means any supplemental pledge agreement
------------------------
governed by the laws of a jurisdiction other than a State of the United
States executed and delivered by SIHL or any of its Subsidiaries pursuant to
the terms of this Agreement or the Existing Credit Agreement, in form and
substance satisfactory to the Administrative Agent, as may be necessary or
desirable under the laws of organization or incorporation of a Subsidiary or
Person in which an equity or similar interest is to be pledged to the
Administrative Agent pursuant to the terms of Section 7.1.7, to further
-------------
protect or perfect the Lien on and security interest in any collateral being
pledged pursuant to a Pledge Agreement.
"French Francs" means the lawful currency of the French Republic.
-------------
"F.R.S. Board" means the Board of Governors of the Federal Reserve
------------
System or any successor thereto.
"Funding Date" is defined in Section 2.3.
------------ -----------
"GAAP" is defined in Section 1.4.
---- -----------
"Governmental Authority" means The Commonwealth of The Bahamas, the
----------------------
United States of America, any state, local or municipal entity located within
the foregoing, and (in each case), any political subdivision thereof and any
agency, department, commission, board, bureau or instrumentality of any of
the foregoing or any quasi-governmental authority, now existing or hereafter
created, having jurisdiction over the Bahamas Property, the real property in
the State of New Jersey that is subject to a Mortgage, any Borrower, any
Obligor or any Lender Party.
"Guarantor" means each Significant Subsidiary; provided, however, that,
--------- -------- -------
without limiting the generality of the foregoing, each Subsidiary of SIHL
(including Sun International Timeshare Limited) that is required to be a
guarantor of Subordinated Debt shall be or become a Guarantor hereunder.
"Guaranty" means the Amended and Restated Subsidiary Guaranty, dated as
--------
of the Effective Date, executed and delivered by an Authorized Officer of
each Guarantor, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Guaranty Supplement" means each Guaranty Supplement executed and
-------------------
delivered by an Authorized Officer of a Guarantor pursuant to this Agreement,
as amended, supplemented, amended and restated or otherwise modified from
time to time.
"Hazardous Material" means
------------------
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material, all as amended or hereafter
amended.
"Hedging Obligations" means, with respect to any Person, all
-------------------
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements
or arrangements designed to protect such Person against fluctuations in
interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
------ ------ ------ ---------
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
---------------------------
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
such Obligor to be in default of any of its obligations under Section
-------
7.2.4.
-----
"including" means including without limiting the generality of any
---------
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem
-------
generis shall not be applicable to limit a general statement, which is
followed by or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
"Increasing Lender" is defined in Section 2.2.3.
----------------- -------------
"Indebtedness" of any Person means, without duplication:
------------
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit (including the Letters of Credit), whether
or not drawn, and banker's acceptances issued for the account of such
Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of such
Person as of the date at which Indebtedness is to be determined (other
than current liabilities of a nature other than the current portion of
Indebtedness of the type described in clause (a), (b) or (c) of this
----------- --- ---
definition);
(e) all mandatorily redeemable preferred stock;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer and as such is automatically
liable for the obligations of such partnership or joint venture.
"Indemnified Liabilities" is defined in Section 10.4.
----------------------- ------------
"Indemnified Parties" is defined in Section 10.4.
------------------- ------------
"Instruments" means any contract, agreement, indenture, mortgage,
-----------
financing statement, document or writing (whether by formal agreement, letter
or otherwise) under which any obligation is evidenced, assumed or undertaken,
or any Lien (or right or interest therein) is granted or perfected.
"Interest Coverage Ratio" means, as of the last day of any Fiscal
-----------------------
Quarter, the ratio computed for the period consisting of such Fiscal Quarter
and each of the three immediately preceding Fiscal Quarters of:
(a) Consolidated EBITDA (for all such Fiscal Quarters)
and
(b) the sum (for all such Fiscal Quarters) of Interest Expense
(which, for the purposes of this clause only, shall include capitalized
interest).
"Interest Expense" means, for any period, the consolidated interest
----------------
expense (as defined under GAAP) of SIHL and its Subsidiaries for such period
(including that portion attributable to Capitalized Lease Liabilities in
accordance with GAAP and capitalized interest), exclusive of any amortization
of fees during such period.
"Interest Period" means, relative to any LIBO Rate Loans, the period
---------------
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or
-----------
2.4 and shall end on (but exclude) the day which numerically corresponds to
---
such date one, two, three or six months (or a period of such other length as
may be requested by the Borrowers and as may be acceptable to the
Administrative Agent) thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), as a Borrower may
select in its relevant notice (if a Borrower does not so select then such
Borrower shall be deemed to have selected one month) pursuant to Section 2.3
-----------
or 2.4; provided, however, that
--- -------- -------
(a) the Borrowers shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than five different dates;
(b) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall
end on the Business Day next preceding such numerically corresponding
day);
(c) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month) shall, subject to clause (e)
below, end on the last Business Day of the calendar month at the end of
such Interest Period;
(d) no Interest period with respect to any portion of the Loans
shall extend beyond the date on which a permanent reduction of the
Commitment Amount is scheduled to occur unless the sum of (a) the
aggregate principal amount of Loans that are Base Rate Loans plus (b) the
----
aggregate principal amount of Loans that are LIBO Rate Loans with Interest
Period expiring on or before such date plus (c) the excess of the
----
Commitment Amount then in effect over the aggregate principal amount of
Loans then outstanding equals or exceeds the permanent reduction of the
Commitment Amount that is scheduled to occur on such date; and
(e) no Interest Period may end later than the Stated Maturity Date.
"Investment" means, relative to any Person,
----------
(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any
other Person totaling less than 100%.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and
shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property.
"Issuance Request" means a Letter of Credit request and certificate
----------------
duly executed by an Authorized Officer of a Borrower, substantially in the
form of Exhibit B-2 hereto.
-----------
"Issuer" means CIBC or another Lender, as applicable, in its capacity
------
as the issuer of the Letters of Credit, as requested from time to time by a
Borrower.
"Legal Requirements" with respect to any Person or property, means all
------------------
laws, statutes, codes, acts, ordinances, permits, licenses, authorizations,
directions and requirements of all Governmental Authorities, departments,
commissions, boards, courts, authorities, agencies, officials and officers,
and any material deed restrictions or other requirements of record,
applicable to such Person or such property, or any portion thereof or
interest therein or any use or condition of such property or any portion
thereof or interest therein (including those relating to zoning, planning,
subdivision, building, safety, health, use, environmental quality and other
similar matters).
"Kersaf" is defined in the definition of the term "Trademark Agreement".
------
"Lender Assignment Agreement" means a Lender Assignment Agreement,
---------------------------
substantially in the form of Exhibit D hereto.
---------
"Lender Parties" means, collectively, each Agent, the Issuer and each
--------------
Lender (and including, for purposes of the Rate Protection Agreements, any
Affiliate of any Lender that is a counterparty to such Rate Protection
Agreement), and their respective successors, transferees and assigns.
"Lenders" is defined in the preamble.
------- --------
"Letter of Credit" is defined in Section 2.1.2.
---------------- -------------
"Letter of Credit Commitment" means as to the Issuer, the Issuer's
---------------------------
obligation to issue Letters of Credit pursuant to Section 2.1.2 and, with
-------------
respect to each Lender, the obligations of such Lender to participate in such
Letters of Credit pursuant to Section 2.6.1.
-------------
"Letter of Credit Commitment Amount" means, on any date, a maximum
----------------------------------
amount of $30,000,000 (or, if less, the then existing Commitment Amount).
"Letter of Credit Outstandings" means, on any date, an amount equal to
-----------------------------
the sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit (after converting the
aggregate Stated Amounts of all Foreign Currency Letters of Credit to the
Dollar Equivalents thereof),
plus
----
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations (after converting the aggregate Reimbursement
Obligations with respect to Disbursements made in a Foreign Currency to
the Dollar Equivalents thereof) in respect of such Letters of Credit.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
---------
the rate of interest equal to (a) the rate of interest that appears on page
3750 of the Dow Xxxxx Telerate Screen as at or about 11:00 a.m. (New York
City Time) two Business Days prior to the beginning of such Interest Period
for delivery on the first day of such Interest Period or (b) if such a rate
does not appear on page 3750 of the Dow Xxxxx Telerate screen, the average
(rounded upwards, if necessary, to the nearest 1/100 of 1%) of the rates per
annum at which Dollar deposits in immediately available funds are offered to
the Administrative Agent in the interbank market as at or about 11:00 a.m.
(New York time) two Business Days prior to the beginning of such Interest
Period for delivery on the first day of such Interest Period and for a period
approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
--------------
Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
----------------------------
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
---------------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent, two Business Days before the first day
of such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
------------
as currently on file with the Administrative Agent or designated in the
Lender Assignment Agreement or such other office of a Lender as designated
from time to time by notice from such Lender to SIHL and the Administrative
Agent, whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
------------------------
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the
F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise)
or charge against or interest in property to secure payment of a debt or
performance of an obligation.
"Loan" is defined in Section 2.1.1.
---- -------------
"Loan Commitment" means, relative to any Lender, such Lender's
---------------
obligation to make Loans pursuant to Section 2.1.1.
-------------
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
-------------
each Collateral Document, each Guaranty, each Borrowing Request, each
Issuance Request, each Fee Letter, each Rate Protection Agreement and each
other agreement, document or instrument delivered in connection herewith or
therewith.
"Material Adverse Effect" means any material adverse effect on (i) the
-----------------------
condition (financial or otherwise), results of operations, properties,
assets, business, revenues or business prospects of SIHL and its Subsidiaries
taken as a whole, (ii) the ability of an Obligor to consummate the
transactions contemplated hereby to occur on the Effective Date, (iii) the
ability of an Obligor to perform its obligations under this Agreement and the
other Loan Documents or (iv) the rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents. In
determining whether any individual event or occurrence of the foregoing types
would result in a Material Adverse Effect, notwithstanding that a particular
event or occurrence does not itself have such effect, a Material Adverse
Effect shall be deemed to have occurred if the cumulative effect of such
event or occurrence and all other events or occurrences of the foregoing
types which have occurred would result in a Material Adverse Effect.
"Mohegan Sun Casino" means the hotel and casino located in Montville,
------------------
Connecticut, U.S.A., as so named as of the date hereof.
"Mortgage" means each mortgage, deed of trust or agreement executed and
--------
delivered by a Borrower or any other Obligor in favor of the Administrative
Agent for the benefit of the Secured Parties pursuant to the requirements of
this Agreement or the Existing Credit Agreement, in each case as amended,
supplemented, amended and restated or otherwise modified.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Net Equity Proceeds" means with respect to the sale or issuance by
-------------------
SIHL to any Person of any stock or other equity interests, warrants or
options or the exercise of any such warrants or options in respect thereof,
the excess of:
------
(a) the gross proceeds received by SIHL from such sale, issuance or
exercise
over
----
(b) all underwriting, broker and out-of-pocket fees and expenses
paid by SIHL to other than an Affiliate of SIHL in connection therewith.
"Net Income" means, for any period, the aggregate of all amounts
----------
(exclusive of extraordinary gains and extraordinary losses (it being
understood that the sale or other Disposition to consumers of residential
lots, homes, time-shares or condominiums on Paradise Island held for
development (excluding in all cases the Core Assets) shall be included in the
calculation of Net Income and that the sale or other Disposition to
non-consumers of residential lots, homes, time-shares or condominiums on
Paradise Island shall be excluded from the calculation of Net Income)) which,
in accordance with GAAP, would be included as net income on the most recently
available consolidated financial statements of SIHL for such period; provided
--------
that Net Income shall not include (i) any non-cash interest income until such
amounts are received by SIHL or its Subsidiaries in cash, and (ii) the net
income (or loss) of any Person, other than a Subsidiary, in which SIHL or any
of its Subsidiaries has an interest, except that the amount of any dividends
or distributions actually paid in cash to SIHL or any of its Subsidiaries
during such period shall be included in Net Income (even if the amount of
such cash dividends or distributions received exceed SIHL's allocated portion
of such Person's earnings under GAAP).
"Net Worth" at any time means the excess of total assets of SIHL and
---------
its Subsidiaries at such time over total liabilities of SIHL and its
Subsidiaries at such time, in each case as determined on a consolidated basis
in accordance with GAAP.
"Note" means a promissory note of a Borrower payable to any Lender,
----
substantially in the form of Exhibit A hereto (as such promissory note may be
---------
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Obligations" means all present or future obligations (monetary or
-----------
otherwise, absolute or contingent) of the Borrowers and each other Obligor
arising under or in connection with this Agreement and each other Loan
Document.
"Obligor" means the Borrowers, the Guarantors or any other Subsidiaries
-------
of SIHL obligated under any Loan Document.
"Ocean Club" means the Ocean Club located on Paradise Island, The
----------
Bahamas.
"Omnibus Termination Agreement" means the Amended and Restated Omnibus
-----------------------------
Termination Agreement, dated January 1, 2001, among SIHL and the other
parties thereto.
"Optional Increase" is defined in Section 2.2.3.
----------------- -------------
"Ordinary Shares" means the ordinary shares of common stock of SIHL,
---------------
par value $0.001 per share.
"Organic Document" means, as applicable and relative to any Obligor,
----------------
its certificate of incorporation, its by-laws, its certificate of
partnership, its partnership agreement, and all shareholder agreements,
voting trusts and similar arrangements applicable to any of its authorized
shares of capital stock.
"Participant" is defined in Section 10.11.
----------- -------------
"Participating Member State" means each state so described in any
--------------------------
legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency (whether
known as the euro or otherwise), being in part the implementation of the
third stage of economic and monetary union as contemplated in the Treaty of
Rome of March 25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the
Maastricht Treaty (which was signed at Maastricht on February 7, 1992, and
came into force on November 1, 1993), as amended from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
----
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
------------
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which
any Borrower or any corporation, trade or business that is, along with any
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning
of section 4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under section 4069 of
ERISA.
"Percentage" means, relative to any Lender, the percentage on file with
----------
the Administrative Agent (which Percentages give effect to the inclusion of a
Lender on the Effective Date that was not an Existing Lender), as such
percentage may be adjusted from time to time pursuant to (a) Section 2.2.3,
-------------
(b) Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11 or (c) Section 4.10.
------------- ------------
"Perfection Certificate" means the Perfection Certificate executed and
----------------------
delivered pursuant to Section 5.1.6.
-------------
"Permitted Encumbrances" means the exceptions to title (i) to the
----------------------
Bahamas Property that are listed in Schedule B of the title insurance policy
issued as of August 12, 1997 by the Title Insurer of such property, and (ii)
in the case of real property in New Jersey on which a Mortgage was delivered
to the Administrative Agent, to such real property listed on the title
insurance policy issued by the Title Insurer of such property.
"Permitted Investment" means Investments in or acquisitions of the
--------------------
capital stock of, or partnership and/or other ownership interests in, a
Person engaged in the hotel, resort and/or gaming industry, and/or the
acquisition of parcels of real property or assets that can be used in the
hotel, resort and/or gaming industry.
"Person" means any natural person, corporation, partnership, firm,
------
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
----
"Pledge Agreement" means, as the context may require, the SIHL Pledge
----------------
Agreement, the SIBL Pledge Agreement, the SINA Pledge Agreement and the
Subsidiary Pledge Agreement.
"Pounds Sterling" means the lawful currency of the United Kingdom of
---------------
Great Britain and Northern Ireland.
"Quarterly Payment Date" means the last day of each February, May,
----------------------
August, and November or, if any such day is not a Business Day, the next
succeeding Business Day.
"Rate Protection Agreement" means, collectively, any interest rate
-------------------------
swap, cap, collar or similar agreement entered into by SIHL or any of its
Subsidiaries under which the counterparty to such agreement is (or at the
time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate of a Lender.
"Register" is defined in Section 2.9.
-------- -----------
"Reimbursement Obligation" is defined in Section 2.6.3.
------------------------ -------------
"Release" means a "release", as such term is defined in CERCLA.
-------
"Relinquishment Agreement" means the Relinquishment Agreement, dated
------------------------
February 7, 1998, between the Mohegan Tribal Gaming Authority and TCA.
"Required Lenders" means, at any time, Lenders holding more than 50% of
----------------
the then aggregate outstanding principal amount of the Loans then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having
more than 50% of the Commitments.
"Reset Date" is defined in Section 2.6.7.
---------- -------------
"Resource Conservation and Recovery Act" means the Resource
--------------------------------------
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
-- ---
from time to time.
"Restricted Payment" means, with respect to SIHL and the Subsidiaries,
------------------
(a) the declaration, payment or making of any dividend or
distribution (in cash, property or obligations) on any shares of any class
of capital stock (now or hereafter outstanding) of SIHL or on any
warrants, options or other rights with respect to any shares of any class
of capital stock (now or hereafter outstanding) of SIHL (other than
dividends or distributions payable in its common stock or warrants to
purchase its common stock or splitups or reclassifications of its stock
into additional or other shares of its common stock; or
(b) the application by SIHL or any Subsidiary of any of its funds,
property or assets to the purchase, redemption, sinking fund or other
retirement of, or the purchase or making by any Subsidiary of any deposit
in respect of, or the redemption by such Subsidiary of any shares of any
class of capital stock (now or hereafter outstanding) of SIHL, or any
warrants, options or other rights with respect to any shares of any class
of capital stock (now or hereafter outstanding) of SIHL; provided,
--------
however, that the exercise of options, warrants or similar instruments on
-------
a cashless basis by way of partial redemptions of the newly-issued shares
(or other structures with substantially the same economic effect) shall
not be included as Restricted Payments hereunder.
"Restricted Payment Amount" means, as of the date of determination, the
-------------------------
aggregate of (a) $25,000,000, (b) 25% of SIHL's Net Income after
September 30, 2001 and (c) 50% of any Net Equity Proceeds received after
September 30, 2001 minus the amount of Restricted Payments, if any, made
-----
after September 30, 2001.
"S&P" means Standard & Poor's Ratings Services.
---
"Secured Parties" means, collectively, (i) the Lender Parties and
---------------
(ii) each Person that is a counterparty to one or more Rate Protection
Agreements.
"Security Agreement" means, as the context may require, the Borrower
------------------
Security Agreement or the Subsidiary Security Agreement.
"Senior Funded Debt" means, with respect to SIHL and its Subsidiaries
------------------
as of any time, Debt outstanding at such time less the amount of Subordinated
Debt then outstanding.
"Senior Leverage Ratio" means, as of the last day of any Fiscal
---------------------
Quarter, the ratio of (a) Senior Funded Debt outstanding as of the last day
of such Fiscal Quarter to (b) Consolidated EBITDA for the four Fiscal Quarter
--
Period then ended; provided, that in calculating Consolidated EBITDA for such
--------
period, any acquisitions or Dispositions during such period shall have been
deemed to have occurred on the first day of such period.
"SIBL" is defined in the preamble.
----
"SIBL Group" means, collectively SIBL and each of its Subsidiaries
----------
existing on the Effective Date, and Sun International Representation, Inc., a
Florida corporation and each of its Subsidiaries existing on the Effective
Date.
"SIBL Pledge Agreement" means the Amended and Restated Pledge
---------------------
Agreement, dated as of the Effective Date, executed and delivered by SIBL
pursuant to the terms of this Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Significant Subsidiary" means, at any date of determination, Sun
----------------------
International Development Limited and any Subsidiary of SIHL (other than SIBL
and SINA) that, together with its Subsidiaries, (i) for the most recent
Fiscal Quarter of SIHL accounted for (or, in the case of any Subsidiary that
is acquired following the Effective Date, would have accounted for) more than
5% of the Consolidated EBITDA of SIHL and its Subsidiaries during such Fiscal
Quarter or (ii) as of the end of the most recent Fiscal Quarter of SIHL was
the owner of (or, in the case of any Subsidiary that is acquired following
the Effective Date, would have been the owner of) more than 5% of the
consolidated assets of SIHL and its Subsidiaries at the end of such Fiscal
Quarter, all as set forth on the most recently available consolidated
financial statements of SIHL for such Fiscal Quarter.
"SIHL" is defined in the preamble.
---- --------
"SIHL Pledge Agreement" means the Amended and Restated Pledge
---------------------
Agreement, dated as of the Effective Date, executed and delivered by SIHL
pursuant to the terms of this Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"SINA" is defined in the preamble.
---- --------
"SINA Pledge Agreement" means the Amended and Restated Pledge
---------------------
Agreement, dated as of the Effective Date, executed and delivered by SINA
pursuant to the terms of this Agreement, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Stated Amount" of each Letter of Credit means the total amount
-------------
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
------------------ -----------
"Stated Maturity Date" means November 8, 2006.
--------------------
"Subordinated Debt" means, collectively, (i) the Indebtedness evidenced
-----------------
by the Existing Subordinated Notes and (ii) all other unsecured subordinated
Indebtedness of SIHL or a wholly-owned Subsidiary for money borrowed which is
incurred under the terms of any Subordinated Note Indenture and evidenced by
Subordinated Notes and which matures on a date that is at least one year
after the Stated Maturity Date.
"Subordinated Debt Issuer" means SINA, SIHL and (if and when
------------------------
applicable), each other Guarantor that may after the date hereof incur or
issue any Subordinated Debt.
"Subordinated Noteholder" means, at any time, any holder of a
-----------------------
Subordinated Note.
"Subordinated Note Indenture" means, collectively, (i) the Existing
---------------------------
Indentures and (ii) each other Indenture, note purchase agreement or other
agreement evidencing the terms or agreements relating to Subordinated Debt,
if any, to be executed and delivered by SIHL or a wholly-owned Subsidiary in
connection with the incurrence by SIHL or a wholly-owned Subsidiary of
Subordinated Debt containing covenants and events of default relating to such
Subordinated Debt which are no more restrictive in any material respect on
SIHL or such wholly-owned Subsidiary, as the case may be, than the comparable
provisions of the Existing Indentures and containing subordination provisions
relating to such Subordinated Debt which are no less favorable in any
material respect to the Agents and the Lenders than those contained in the
Existing Indentures, as each such Subordinated Note Indenture may be amended,
supplemented, amended and restated or otherwise modified in accordance with
the terms of Section 7.2.13.
--------------
"Subordinated Notes" means, collectively, (i) the Existing Subordinated
------------------
Notes and (ii) any other subordinated notes, if any, issued pursuant to a
Subordinated Note Indenture, as such Subordinated Notes may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 7.2.13.
--------------
"Subordination Agreement" means a Subordination Agreement executed and
-----------------------
delivered to the Administrative Agent pursuant to clause (b) of Section 7.2.2
---------- -------------
by a Borrower and any Subsidiary of SIHL that makes a loan to a Borrower, in
a form satisfactory to the Administrative Agent.
"Subordination Provisions" is defined in Section 8.1.15.
------------------------ --------------
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership or other entity (whether now or hereafter acquired or existing)
of which more than 50% of the outstanding capital stock, partnership
interests or similar interests having ordinary voting power (irrespective of
whether at the time capital stock or interests of any other class or classes
of such corporation shall or might have voting power upon the occurrence of
any contingency) is at the time directly or indirectly owned by such Person,
by such Person and one or more other Subsidiaries of such Person, or by one
or more other Subsidiaries of such Person.
"Subsidiary Pledge Agreement" means the Subsidiary Pledge Agreement,
---------------------------
dated as of the Effective Date, executed and delivered by each Significant
Subsidiary of SIHL pursuant to the terms of this Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Subsidiary Security Agreement" means the Security Agreement, dated as
-----------------------------
of the Effective Date, executed and delivered by each Significant Subsidiary
of SIHL pursuant to the terms of this Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Taxes" is defined in Section 4.6.
----- -----------
"TCA" means Trading Cove Associates, a Connecticut general partnership.
---
"Title Insurer" means any Person that issues a title insurance policy
-------------
on any real property on which a Mortgage or a Debenture is placed.
"Total Leverage Ratio" means, as of the last day of any Fiscal Quarter,
--------------------
the ratio of (a) Debt outstanding on the last day of such Fiscal Quarter to
--
(b) Consolidated EBITDA for the four Fiscal Quarter period then ended;
provided, that in calculating Consolidated EBITDA for such period, any
--------
acquisitions or Dispositions during such period shall have been deemed to
have occurred on the first day of such period.
"Trademark Agreement" means the Trade Name and Trademark Agreement,
-------------------
dated as of July 3, 2001, by and among SIHL, Sun International Investments
Limited, WGL Group and Sun International Management Limited ("Kersaf"),
pursuant to which the Borrowers and their Subsidiaries will cease using the
names "Sun" and "Sun International", and Kersaf will have exclusive rights to
use such names.
"type" means, relative to any Loan, the portion thereof, if any, being
----
maintained as a Base Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its fifty
------------- ----
States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is defined in
------------
section 3(1) of ERISA.
"wholly-owned Subsidiary" of any Person means any corporation,
-----------------------
partnership, association or other business entity of which 100% of the total
voting power of shares of stock, partnership interests or other equity
interest entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, general partners, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other wholly-owned Subsidiaries of such Person
or a combination thereof.
"WLG Group" means World Leisure Group Limited, a British Virgin Islands
---------
corporation and its Affiliates.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
--------------------
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each Note,
Borrowing Request, Issuance Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
----------------
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
----------------------------------------
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
--------------
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those U.S. generally accepted accounting principles ("GAAP")
----
applied in the preparation of the financial statements referred to in Section
-------
6.5. If any preparation in the financial statements referred to in Section 6.5
--- -----------
or Section 7.1.1 hereafter occasioned by the promulgation of rules, regulations,
-------------
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in any results,
amounts, calculations, ratios, standards or terms found in this Agreement from
those which would be derived or be applicable absent such changes, SIHL may
reflect such changes in the financial statements required to be delivered
pursuant to Section 7.1.1, but calculations of financial covenants shall be made
-------------
without giving effect to any such changes. Upon the request of SIHL or any
Lender the parties hereto agree to enter into negotiations in order to amend the
financial covenants and other terms of this Agreement if there occur any changes
in GAAP that have a material effect on the financial statements of the SIHL, so
as to equitably reflect such changes with the desired result that the criteria
for evaluating SIHL's financial condition and such other terms shall be the same
in all material respects after such changes as if the changes had not been made.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Amendment and Restatement; Commitments. The Borrowers
--------------------------------------
(subject to the terms of this Agreement) and the Lenders (including certain
Existing Lenders), the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Issuer hereby agree that the Existing Credit
Agreement is hereby amended and restated in its entirety to become effective
and binding on the Borrowers and the Lenders (including certain Existing
Lenders), the Administrative Agent, the Co-Syndication Agents, the
Co-Documentation Agents and the Issuer pursuant to the terms of this
Agreement, and the Existing Credit Agreement is hereby amended and restated
in its entirety to read as set forth in this Agreement; and the commitments
which certain Existing Lenders have agreed to extend to the Borrowers under
the Existing Credit Agreement shall be extended or advanced to the Borrowers
upon the amended and restated terms and conditions contained in this
Agreement with the intent that the terms of this Agreement shall supersede
the terms of the Existing Credit Agreement (which shall hereafter have no
further effect upon the parties thereto, other than for accrued fees and
expenses, and indemnification provisions, accrued and owing under the terms
of the Existing Credit Agreement, on or prior to the date hereof or arising
(in the case of an indemnification) under the terms of the Existing Credit
Agreement); provided that any Rate Protection Agreements with any one or more
--------
Existing Lenders (or their respective Affiliates) shall continue unamended
and in full force and effect. In furtherance of the foregoing, on the terms
and subject to the conditions of this Agreement (including Article V),
---------
(a) each Lender severally agrees to make Loans pursuant to the
Commitments described in Section 2.1.1; and
-------------
(b) the Issuer agrees that it will issue Letters of Credit pursuant
to Section 2.1.2, and each Lender severally agrees that it will
--------------
participate in such Letters of Credit in accordance with Section 2.6.1.
-------------
SECTION 2.1.1. Commitment of Each Lender. From time to time on any
-------------------------
Business Day occurring prior to the Commitment Termination Date, each Lender
will, subject to the terms of this Agreement, make loans (relative to such
Lender, and of any type, its "Loans") to a Borrower equal to such Lender's
-----
Percentage of the aggregate amount of the Borrowing requested by such
Borrower to be made on such day. The commitment of each Lender described in
this Section 2.1.1 is herein referred to as its "Commitment". On the terms
------------- ----------
and subject to the conditions hereof, the Borrowers may from time to time
borrow, prepay and reborrow Loans; provided, however, that notwithstanding
-------- -------
any provision in this Agreement to the contrary, the Lenders and the Issuer
shall not be obligated to make Credit Extensions to SIHL in an aggregate
amount in excess of $30,000,000.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
---------------------------
Business Day occurring prior to the Commitment Termination Date, the Issuer
will, subject to the terms of this Agreement,
(a) issue one or more letters of credit (a "Letter of Credit") for
----------------
the account of a Borrower or a Guarantor in the Stated Amount requested by
SIHL on such day; or
(b) extend the Stated Expiry Date of an existing Letter of Credit
previously issued hereunder to a date not later than the earlier of (x)
the Commitment Termination Date and (y) one year from the date of such
extension.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Loans. No Lender
-----------------------------------------------
shall be permitted or required to make any Loan if, after giving effect
thereto, such Lender's Percentage of all Loans and Letter of Credit
Outstandings would exceed such Lender's Percentage of the Commitment Amount
or if the aggregate outstanding principal amount of all Loans and Letter of
Credit Outstandings
(a) of all Lenders would exceed the Commitment Amount; or
(b) to a particular Borrower would exceed the maximum aggregate
amount of Credit Extensions set forth in Section 2.1.1 that can be
--------------
extended to such Borrower.
SECTION 2.1.4. Issuer Not Permitted or Required to Issue Letters of
-----------------------------------------------------
Credit. The Issuer shall not be permitted or required to issue any Letter of
------
Credit if, after giving effect thereto,
(a) the aggregate amount of all Letter of Credit Outstandings would
exceed the Letter of Credit Commitment Amount;
(b) the sum of the aggregate amount of all Letter of Credit
Outstandings plus the aggregate principal amount of all Loans then
outstanding would exceed the Commitment Amount then in effect; or
(c) the provisions of Section 2.1.1 would not be complied with.
-------------
SECTION 2.2. Reduction/Increase of Commitment Amount. The Commitment
---------------------------------------
Amount is subject to (i) reduction from time to time pursuant to
Sections 2.2.1 and 2.2.2 and (ii) increase from time to time pursuant to
-------------- -----
Section 2.2.3.
SECTION 2.2.1. Optional Reduction. SIHL may, from time to time on any
------------------
Business Day, voluntarily reduce the Commitment Amount and such voluntary
Commitment reductions shall be binding on all Borrowers; provided, however,
-------- -------
that all such reductions shall require at least three Business Days' prior
notice to the Administrative Agent and be permanent, and any partial
reduction of the Commitment Amount shall be in a minimum amount of $1,000,000
and in an integral multiple of $1,000,000.
SECTION 2.2.2. Mandatory Reduction. The Commitment Amount shall be
-------------------
automatically and permanently reduced on the date that is 300 days following
the occurrence of an Asset Sale by the amount of the Net Cash Proceeds (as
such terms are defined in the Existing Indentures), if any, that would be
required to be applied as the Asset Sale Offer Amount under the terms of the
Existing Indentures.
SECTION 2.2.3. Optional Increase. (a) Provided that no Default or Event
-----------------
of Default then exists, SIHL may on any Business Day prior to the Commitment
Termination Date, request from time to time in writing that the then
effective Commitment Amount be increased by an aggregate amount not to exceed
$150,000,000. Any request under this Section to increase the Commitment
Amount shall be submitted by the Borrowers to the Administrative Agent,
specify the proposed effective date (which date shall be not less than 5 days
after the date of such request) and specify the amount of such increase
(which shall be in integral multiples of $1,000,000). No Lender shall have
any obligation, express or implied, to offer to increase its Commitment.
Only the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and those Lenders agreeing to increase their
Commitments (the "Increasing Lenders") shall be required for an increase in
------------------
the Commitment Amount pursuant to this Section.
(b) The Borrowers may accept some or all of the offered amounts from
the then-current Lenders or designate new lenders which qualify as Eligible
Assignees and are reasonably acceptable to the Administrative Agent and
the Issuer as additional Lenders hereunder (each, an "Additional
-----------
Increasing Lender"), which Additional Increasing Lenders may assume all
-----------------
or a portion of the increase in the applicable Commitment Amount. The
Administrative Agent and SIHL shall have discretion to adjust the
allocation of the increased Commitment Amount among Increasing Lenders
and Additional Increasing Lenders. Each Additional Increasing Lender
shall become an additional party hereto as an Additional Increasing
Lender concurrently with the effectiveness of the proposed increase in
the applicable Commitment Amount upon its execution of an instrument of
joinder to this Agreement which is in form and substance reasonably
acceptable to the Administrative Agent and which, in any event,
contains the representations, warranties, indemnities and other
protections afforded to the Administrative Agent and the other Lenders.
(c) Subject to the foregoing, any increase requested by SIHL shall
be effective as of the date proposed by SIHL and shall be in the principal
amount equal to (i) the amount which Increasing Lenders are willing to
assume as increases to the amount of their Commitments plus (ii) the
----
amount offered by any Additional Increasing Lenders. Upon the
effectiveness of any such increase, if requested by the applicable
Lender, the Borrowers shall issue replacement Notes to each Increasing
Lender and new Notes to each Additional Increasing Lender, and the
applicable Percentages of each Lender will be adjusted to give effect
to the increase in the applicable Commitment Amount. To the extent
that the adjustment of Percentages results in loss or expenses to any
Lender as a result of the prepayment of any LIBO Rate Loan on a date
other than the scheduled last day of the Interest Period applicable
thereto, the Borrowers shall be responsible for such loss or expenses
pursuant to Section 4.4.
-----------
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
-------------------
the Administrative Agent on or before 12:00 noon, New York time, on a
Business Day, a Borrower may from time to time irrevocably request, on not
less than one, in the case of Base Rate Loans, or three, in the case of LIBO
Rate Loans, nor (in either case), more than five Business Days' notice, that
a Borrowing be made in a minimum amount of $1,000,000 and an integral
multiple of $1,000,000, or in the unused amount of the Commitments. On the
terms and subject to the conditions of this Agreement, each Borrowing shall
be comprised of the type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request (the "Funding Date"). On or before
------------
11:00 a.m., New York time, on such Funding Date, each Lender shall deposit
with the Administrative Agent same day funds in an amount equal to such
Lender's Percentage of the requested Borrowing. Such deposit will be made to
an account which the Administrative Agent shall specify from time to time by
notice to the Lenders. Unless the Administrative Agent shall have been
notified by any Lender prior to the Funding Date for any Loans that such
Lender does not intend to make available to the Administrative Agent the
amount of such Lender's Loan requested on such Funding Date, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such Funding Date and the
Administrative Agent may, in its sole discretion, but shall not be obligated
to, make available to the Borrowers a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such
amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Alternate Base Rate. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefore, the Administrative Agent shall promptly notify the
Borrowers and the Borrowers shall within five Business Days pay such
corresponding amount to the Administrative Agent together with interest
thereon, for each day from such Funding Date until the date such amount is
paid to Administrative Agent, at the rate payable under this Agreement for
Base Rate Loans. Nothing in this Section shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that the Borrowers may have against any Lender as a
result of any default by such Lender hereunder. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make any
Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
-------------------------------------
Continuation/Conversion Notice to the Administrative Agent on or before
11:00 a.m., New York time, on a Business Day, a Borrower may from time to
time irrevocably elect, on not less than three nor more than five Business
Days' notice that all, or any portion in an aggregate minimum amount of
$1,000,000 and an integral multiple of $1,000,000, of any Loans made to it
be, in the case of Base Rate Loans, converted into LIBO Rate Loans or, in the
case of LIBO Rate Loans, be converted into a Base Rate Loan or continued as a
LIBO Rate Loan (in the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days before
the last day of the then current Interest Period with respect thereto, such
LIBO Rate Loan shall, on such last day, automatically convert to a Base Rate
Loan); provided, however, that (i) each such conversion or continuation shall
-------- -------
be made pro rata among the applicable outstanding Loans of all Lenders, and
(ii) no portion of the outstanding principal amount of any Loans may be
continued as, or be converted into, LIBO Rate Loans when any Event of Default
has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
-------
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such LIBO Rate Loan;
provided, however, that such LIBO Rate Loan shall nonetheless be deemed to
-------- -------
have been made and to be held by such Lender, and the obligation of the
Borrowers, to repay such LIBO Rate Loan shall nevertheless be to such Lender
for the account of such foreign branch, Affiliate or international banking
facility. In addition, each Borrower and each Lender hereby consents and
agrees that, for purposes of any determination to be made for purposes of
Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed that each
----------- --- --- ---
Lender elected to fund all LIBO Rate Loans by purchasing Dollar deposits in
its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
-------------------
Agent an Issuance Request on or before 11:00 a.m., New York City time, on a
Business Day, SIHL may, from time to time irrevocably request, on not less
than five Business Days' notice, in the case of an initial issuance of a
Letter of Credit, and not less than five Business Days' notice prior to the
existing Stated Expiry Date (or, if a Letter of Credit has an automatic
extension provision, at least five Business Days' notice prior to the date
that such Letter of Credit will, by its terms, be extended or, if earlier,
the date on which a notice from the Issuer is required to be delivered to the
beneficiary of the Letter of Credit informing the beneficiary that the Letter
of Credit will not be extended) in the case of a request for the extension of
the Stated Expiry Date of a Letter of Credit, that the Issuer issue, or
extend the Stated Expiry Date of, as the case may be, a Letter of Credit in
Dollars or a Foreign Currency (provided, that the Dollar Equivalent of the
--------
aggregate amount of Foreign Currency Letters of Credit shall not exceed the
Foreign Currency Letter of Credit Commitment Amount) in such form as may be
requested by SIHL and approved by the Issuer, solely for the purposes
described in Section 7.1.9. Each Letter of Credit shall by its terms be
-------------
stated to expire on a date (its "Stated Expiry Date") no later than the
------------------
earlier to occur of (i) the Commitment Termination Date or (ii) one year from
the date of its issuance. The Issuer will make available to the beneficiary
thereof the original of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
----------------------------
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender shall be deemed to have irrevocably purchased, to the
extent of its Percentage, a participation interest in such Letter of Credit
(including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Lender shall, to the extent of its Percentage, be
responsible for reimbursing promptly (and in any event within three Business
Days following the Disbursement Date) the Issuer for Reimbursement
Obligations arising under the Letter of Credit issued by the Issuer which
have not been reimbursed by the Borrowers in accordance with Section 2.6.3.
-------------
In addition, such Lender shall, to the extent of its Percentage, be entitled
to receive (i) a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.2 with respect to each Letter of Credit (other than
-------------
the issuance fees payable to the Issuer with respect to such Letter of Credit
pursuant to the last sentence of Section 3.3.2) and (ii) from the date that
-------------
such Lender has reimbursed the Issuer in accordance with the first sentence
of this Section, (A) the interest payable pursuant to Section 2.6.2 and, if
-------------
applicable, (B) the interest payable pursuant to Section 3.2.2 with respect
-------------
to any Reimbursement Obligation not paid when due. To the extent that any
Lender has reimbursed the Issuer for a Disbursement as required by this
Section, such Lender shall be entitled to receive its ratable portion of any
amounts subsequently received (from a Borrower or otherwise) in respect of
such Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify SIHL and the
-------------
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
------------------
"Disbursement"). Subject to the terms and provisions of such Letter of
-------------
Credit and this Agreement, the Issuer shall make such Disbursement to the
beneficiary (or its designee) of such Letter of Credit. Prior to 5:00 p.m.,
New York City time, on the Disbursement Date, the Borrowers will (or any one
of them) reimburse the Administrative Agent, for the account of the Issuer,
for all amounts which the Issuer has disbursed under such Letter of Credit
(in the currency in which such Disbursement was made), together with interest
thereon (in the currency in which such Disbursement was made) at a rate per
annum equal to the rate then in effect for Base Rate Loans (with the then
Applicable Margin for Loans accruing on such amount) for the period from the
Disbursement Date through the date of such reimbursement. Without limiting
in any way the foregoing and notwithstanding anything to the contrary
contained herein or in any separate application for any Letter of Credit,
each Borrower hereby acknowledges and agrees that it shall be jointly and
severally obligated to reimburse the Issuer upon each Disbursement of a
Letter of Credit (including Letters of Credit issued for the account of the
other Borrowers or a Guarantor), and each Borrower shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether
the account party on such Letter of Credit is such Borrower or a Guarantor).
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
------------- --------------
Obligation") of each Borrower under Section 2.6.2 to reimburse the Issuer
---------- -------------
with respect to each Disbursement (including interest thereon), and, upon the
failure of the Borrowers to reimburse the Issuer, each Lender's obligation
under Section 2.6.1 to reimburse the Issuer, shall be absolute and
-------------
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which any Borrower, any Obligor or such
Lender, as the case may be, may have or have had against the Issuer or any
such Lender, including any defense based upon the failure of any Disbursement
to conform to the terms of the applicable Letter of Credit (if, in the
Issuer's good faith opinion, such Disbursement is determined to be
appropriate) or any non-application or misapplication by the beneficiary of
the proceeds of such Letter of Credit; provided, however, that after paying
-------- -------
in full its Reimbursement Obligation hereunder, nothing herein shall
adversely affect the right of any Borrower or such Lender, as the case may
be, to commence any proceeding against the Issuer for any wrongful
Disbursement made by the Issuer under a Letter of Credit as a result of acts
or omissions constituting gross negligence or willful misconduct on the part
of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
--------------------
continuation of any Default of the type described in Section 8.1.9 or, with
-------------
notice from the Administrative Agent, upon the occurrence and during the
continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding hereunder
shall, without demand upon or notice to any Borrower, be deemed to have
been paid or disbursed, in the applicable currency or currencies, by the
Issuer under such Letters of Credit (notwithstanding that such amount may
not in fact have been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the Borrowers
of their obligations under this Section, the Borrowers shall be
immediately obligated to reimburse the Issuer for the amount, and in the
currency, deemed to have been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral
security pursuant to a cash collateral agreement in form and substance
satisfactory to the Administrative Agent for the Obligations in connection
with the Letters of Credit issued by the Issuer. At such time when the
Defaults or Events of Default giving rise to the deemed disbursements
hereunder shall have been cured or waived, the Administrative Agent shall
return to SIHL all amounts then on deposit with the Administrative Agent
pursuant to this Section which have not been applied to the partial
satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. Each Borrower,
------------------------------------
each other Obligor and, to the extent set forth in Section 2.6.1, each Lender
-------------
shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuer shall not be (except to the
extent of its own gross negligence or willful misconduct) responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) the failure of the beneficiary of a Letter of Credit to comply
fully with conditions required in order to demand payment under a Letter
of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of
the rights or powers granted to the Issuer or any Lender. In furtherance and
extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in connection with such
Letter of Credit in good faith (and not constituting gross negligence or
willful misconduct) shall be binding upon each Borrower and each other
Obligor and each such Lender, and shall not put the Issuer under any
resulting liability to any Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.6.6. Dollar Equivalent Determinations. For purposes of
--------------------------------
determining the amount of Foreign Currency Letter of Credit Outstandings and
for purposes of calculating fees payable under Section 3.3.2 with respect to
-------------
Foreign Currency Letter of Credit Outstandings, the principal amount of such
Foreign Currency Letter of Credit Outstandings shall be deemed to be, as of
any date of determination, the Dollar Equivalent thereof at such date. The
initial Dollar Equivalent of any Foreign Currency Letter of Credit shall be
determined by the Administrative Agent and/or the Issuer, as the case may be,
on the date of issuance thereof. If a Disbursement is made by the Issuer
under any Foreign Currency Letter of Credit, the Dollar Equivalent of such
Disbursement shall be determined by the Issuer on the Disbursement Date
related thereto, and the Issuer shall notify the Administrative Agent and the
applicable Borrower promptly of such Dollar Equivalent.
SECTION 2.7. Currency Fluctuation, etc. Not later than 12:00 p.m.,
---------------------------
New York time, on each Quarterly Payment Date, the Administrative Agent shall
determine the Dollar Equivalent as of such Quarterly Payment Date with
respect to each Foreign Currency for which there are at such time outstanding
Foreign Currency Letters of Credit or in respect thereof (after giving effect
to any Loans to be made or repaid or Letters of Credit to be issued or
Reimbursement Obligations to be repaid on such date). The Dollar Equivalent
so determined shall become effective on the first Business Day immediately
following the relevant Quarterly Payment Date (a "Reset Date") and shall
----------
remain effective until the next succeeding Reset Date.
SECTION 2.8. Notes. Each Borrower agrees that, upon the request to
-----
the Administrative Agent by any Lender, each such Borrower will execute and
deliver to such Lender a Note payable to the order of such Lender in a
maximum principal amount equal to the amount of Credit Extensions that can be
made to a particular Borrower, which shall, in the aggregate, equal such
Lender's Percentage of the original Commitment Amount. Each Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Note (or on any continuation
of such grid), which notations, if made, shall evidence, inter alia, the date
----- ----
of, the outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall be
conclusive and binding on the Borrowers absent manifest error; provided,
--------
however, that the failure of any Lender to make any such notations shall not
-------
limit or otherwise affect any Obligations of any Borrower or any other
Obligor.
SECTION 2.9. Register. Each Borrower hereby designates the
--------
Administrative Agent to serve as such Borrower's agent, solely for the
purpose of this Section 2.9, to maintain a register (the "Register") on which
----------- --------
the Administrative Agent will record each Lender's Commitment, each Lender's
Percentage, the Loans made by each Lender and each repayment in respect of
the principal amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Assignment and Assumption
Agreement delivered to the Administrative Agent pursuant to Section 10.11.1.
---------------
Failure to make any recordation, or any error in such recordation, shall not
affect any Borrower's obligation in respect of such Loans. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent and the Lenders shall treat each Person
in whose name a Loan (and, as provided in Section 2.7, the Note evidencing
-----------
such Loan, if any) is registered as the owner thereof for all purposes of
this Agreement, notwithstanding notice or any provision herein to the
contrary.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Each Borrower shall repay
--------------------------
in full the unpaid principal amount of its Loans upon the Stated Maturity Date.
Prior thereto, the Borrowers may (or shall, as applicable), make the
repayments and prepayments set forth below.
(a) Each Borrower may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any of its Loans, and such Borrower may select whether such
prepayment shall be allocated to the Base Rate Loans, LIBO Rate Loans or
both (and the amounts so allocated to each); provided, however, that
-------- -------
(i) any such prepayment shall be made first to Base Rate Loans
to the full extent thereof before application to LIBO Rate Loans, in
each case in a manner which minimizes the amount of any payments
required to be made to the Borrowers pursuant to Section 4.4;
------------
(ii) all such voluntary prepayments shall require at least one
but no more than five Business Days' prior written notice to the
Administrative Agent; and
(iii) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $1,000,000 and an integral multiple of
$1,000,000.
(b) The Borrowers shall, on each date when any reduction in the
Commitment Amount shall become effective, including pursuant to Section
-------
2.2, make a mandatory prepayment of the Loans made to it, and if required
---
deliver cash collateral for Letter of Credit Outstandings, equal to the
excess, if any, of the aggregate outstanding principal amount of all Loans
and Letter of Credit Outstandings over the Commitment Amount as so reduced
and, as so reduced, applicable to such Borrower.
(c) The Borrowers shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3,
----------- -----------
repay all of their Loans, unless, pursuant to Section 8.3, only a
-----------
portion of all Loans is so accelerated.
(d) The Borrowers shall, on each Quarterly Payment Date, deliver
cash collateral for Foreign Currency Letters of Credit in an amount equal
to the excess, if any, of the Dollar Equivalent of all Foreign Currency
Letter of Credit Outstandings over 105% of the Foreign Currency Letter of
Credit Commitment Amount.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
-----------
prepayment of principal of any Loans shall cause a reduction in the
Commitment Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding
--------------------
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
-----------
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
-----
Request or Continuation/Conversion Notice, a Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of
the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
-------------------
any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of a Borrower
shall have become due and payable, such Borrower shall pay, but only to the
extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Base Rate plus the highest
Applicable Margin for Base Rate Loans then listed within such definition plus a
margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
-------------
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) with respect to LIBO Rate Loans, on the date of any payment or
prepayment, in whole or in part, of principal outstanding on such LIBO
Rate Loans;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three months,
on the third month anniversary of such Interest Period); and
(e) on that portion of any Loans the maturity of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
----------- -----------
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. SIHL agrees to pay the fees set forth in this
----
Section 3.3. All such fees shall be non-refundable.
-----------
SECTION 3.3.1. Commitment Fee. SIHL agrees to pay to the Administrative
--------------
Agent for the account of each Lender for the period (including any portion
thereof when its Commitment is suspended by reason of any Borrower's
inability to satisfy any condition of Article V) commencing on the Effective
---------
Date and continuing through the Commitment Termination Date, a commitment fee
at the rate of the Applicable Commitment Fee Rate per annum, in each case on
such Lender's Percentage of the average daily unused portion of the
Commitment Amount (net of Letter of Credit Outstandings). Such commitment
fees shall be payable by SIHL, in arrears on each Quarterly Payment Date,
commencing with the first such day following the Effective Date, and on the
Commitment Termination Date.
SECTION 3.3.2. Letter of Credit Fee. SIHL agrees to pay to the
--------------------
Administrative Agent, for the pro rata account of the Issuer and each other
--- ----
Lender, a Letter of Credit fee, in Dollars, in an amount equal to the then
Applicable Margin for LIBO Rate Loans, multiplied by the average daily
undrawn Stated Amount (or the Dollar Equivalent thereof with respect to
Foreign Currency Letters of Credit) of all Letters of Credit outstanding
during the applicable period, with such fees being payable quarterly in
arrears on each Quarterly Payment Date (or more frequently if requested by
the Administrative Agent). SIHL further agrees to pay to the Issuer an
issuance fee in an amount, in Dollars, equal to 1/4 of 1% per annum of the
Stated Amount (or the Dollar Equivalent thereof with respect to Foreign
Currency Letters of Credit) of the Letter of Credit issued by the Issuer
thereof, with such fees being payable quarterly in arrears on each Quarterly
Payment Date (or more frequently if requested by the Administrative Agent).
SECTION 3.3.3. Other Fees. The Borrowers agree to pay to each Lender for
----------
its own account upfront fees in such amounts and on such dates as the
Borrowers and such Lender have agreed to.
SECTION 3.4. Guaranty Provisions. Each Borrower hereby jointly and
-------------------
severally irrevocably guarantees the payment of all Obligations as set forth
in this Section 3.4.
-----------
SECTION 3.4.1. Guaranty. Each Borrower hereby absolutely, unconditionally
--------
and irrevocably jointly and severally
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the other Borrowers and each other
Obligor, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation
of the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C.ss.362(a), and the operation of Sections 502(b) and 506(b)
of the United States Bankruptcy Code, 11 U.S.C.ss.502(b) andss.506(b));
and
(b) indemnifies and holds harmless each Lender Party and each holder
of a Note for any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by such Lender Party or such
holder, as the case may be, in enforcing any rights under Section 3.4;
-----------
provided that in the case of the guaranty of a Borrower of the Obligations of
--------
other than its direct or indirect Subsidiaries, such guaranty shall be
limited to the maximum amount that can be guaranteed without rendering such
guaranty unenforceable under fraudulent conveyance or similar laws. This
guaranty and the provisions of this Section 3.4 constitutes a guaranty of
-----------
payment when due and not of collection, and each Borrower specifically agrees
that it shall not be necessary or required that any Lender Party exercise any
right, assert any claim or demand or enforce any remedy whatsoever against
the Borrowers or any other Obligor (or any other Person) before or as a
condition to the obligations of such Borrower hereunder. Each Borrower
acknowledges and agrees that it shall be jointly and severally liable for the
Obligations arising under Letters of Credit issued for Subsidiaries of SIHL,
notwithstanding that such Borrower is not the account party of any particular
Letter of Credit.
SECTION 3.4.2. Acceleration of Guaranty. Each Borrower agrees that, in
------------------------
the event of a Default of the type set forth in Section 8.1.9 and if such
-------------
event shall occur at a time when any of the Obligations of the other
Borrowers and each other Obligor may not then be due and payable, such
Borrower will pay to the Administrative Agent for the account of the Lender
Parties forthwith the full amount which would be payable hereunder by such
Borrower or Obligor if all such Obligations were then due and payable.
SECTION 3.4.3. Guaranty Absolute, etc. Section 3.4 shall in all respects
----------------------- -----------
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the
Borrowers and each other Obligor have been paid in full, all obligations of
each Borrower hereunder shall have been paid in full and all Commitments
shall have terminated. Each Borrower guarantees that the Obligations of the
other Borrowers and each other Obligor will be paid strictly in accordance
with the terms of this Agreement and each other Loan Document under which
they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender Party with respect thereto. The liability of each Borrower under
Section 3.4 shall be absolute, unconditional and irrevocable irrespective of:
-----------
(a) any lack of validity, legality or enforceability of this
Agreement or any other Loan Document;
(b) the failure of any Lender Party
(i) to assert any claim or demand or to enforce any right or
remedy against any other Borrower, any other Obligor or any other
Person (including any other guarantor) under Section 3.4 of this
-----------
Agreement, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of any other
Borrower or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the other Borrowers or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of any other Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of the
Obligations of any other Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Borrower hereby waives
any right to or claim of) any defense or setoff, counterclaim, recoupment
or termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or any
other event or occurrence affecting, the Obligations of any other
Borrower, any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of this Agreement or
any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of,
or consent to departure from, any other guaranty, held by any Lender Party
or any holder of any Note securing any of the Obligations of any other
Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any other
Borrower, any other Obligor, any surety or any guarantor.
SECTION 3.4.4. Reinstatement, etc. Each Borrower agrees that Section 3.4
------------------- -----------
shall continue to be effective or be reinstated, as the case may be, if at
any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of any other
Borrower, any other Obligor or otherwise, all as though such payment had not
been made.
SECTION 3.4.5. Waiver, etc. Each Borrower hereby waives promptness,
------------
diligence, notice of acceptance and any other notice with respect to any of
the Obligations of any other Borrower or any other Obligor and Section 3.4
-----------
and any requirement that any Lender Party or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any property
subject thereto, or exhaust any right or take any action against any other
Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of any other
Borrower or any other Obligor, as the case may be.
SECTION 3.4.6. Postponement of Subrogation, etc. No Borrower will
---------------------------------
exercise any rights which it may acquire by way of rights of subrogation
under Section 3.4, by any payment made hereunder or otherwise, until the
-----------
prior payment, in full and in cash, of all Obligations of the Borrowers and
each other Obligor. Any amount paid to any Borrower on account of any such
subrogation rights prior to the payment in full of all Obligations of the
Borrowers and each other Obligor shall be held in trust for the benefit of
the Lender Parties and shall immediately be paid to the Administrative Agent
and credited and applied against the Obligations of the Borrowers and each
other Obligor, whether matured or unmatured, in accordance with the terms
hereof; provided, however, that if (a) any Borrower has made payment to the
-------- -------
Lender Parties and each holder of a Note of all or any part of the
Obligations of any other Borrower or any other Obligor, and (b) all
Obligations have been paid in full and all Commitments have been permanently
terminated, each Lender Party agrees that, at such Borrower's request, the
Administrative Agent, on behalf of the Lender Parties, will execute and
deliver to such Borrower appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation
to such Borrower of an interest in the Obligations of such other Borrower and
each other Obligor resulting from such payment by the Borrower paying any
such amount. In furtherance of the foregoing, for so long as any Obligations
or Commitments remain outstanding, each Borrower shall refrain from taking
any action or commencing any proceeding against the other Borrowers or any
other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments made under the provisions of Section 3.4 to any Lender Party.
-----------
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
--------------------------
(which determination shall, so long as such Lender shall then be taking the
same action with respect to all other similar loans it may have outstanding
to other borrowers, upon notice thereof to the Borrowers and the Lenders, be
conclusive and binding on the Borrowers) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a LIBO Rate Loan, the obligations of all Lenders to make, continue,
maintain or convert any such Loans shall, upon notice of such determination
to the Borrowers and Administrative Agent, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing
such suspension no longer exist, and all LIBO Rate Loans shall automatically
convert into Base Rate Loans at the end of the then current Interest Periods
with respect thereto or sooner, if required by such law or assertion. Any
Lender affected by such event or condition shall use its commercially
reasonable efforts (including to change its applicable lending office with
respect to some or all of its LIBO Rate Loans) to avoid the effect of such
event or condition, so long as such Lender will not be materially
disadvantaged and such change is not inconsistent with such Lender's internal
policies.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
--------------------
have determined that (a) dollar deposits in the relevant amount and for the
relevant Interest Period are not available to CIBC in its relevant market, or
(b) by reason of circumstances affecting CIBC's relevant market, adequate
means do not exist for ascertaining the interest rate applicable hereunder to
LIBO Rate Loans, then, so long as the Administrative Agent shall then be
taking the same action with respect to all other similar loans it may have
outstanding to other borrowers, upon notice from the Administrative Agent to
the Borrowers and the Lenders, the obligations of all Lenders under Section
--------
2.3 and Section 2.4 to make or continue any Loans as, or to convert any Loans
--- -----------
into, LIBO Rate Loans shall forthwith be suspended until the Administrative
Agent shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. Provided that each
------------------------------------
Lender requesting reimbursement under this Section 4.3 is then taking the
-----------
same action with respect to all other similar loans it has outstanding to
other borrowers of a class similar to the Borrowers (including as to the
aggregate amount of credit extensions made to such other borrowers), the
Borrowers agree to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such
Lender in respect of, making, continuing or maintaining (or of its obligation
to make, continue or maintain) any Loans as, or of converting (or of its
obligation to convert) any Loans into, LIBO Rate Loans caused by the
imposition of any reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
required by any central bank, regulator or other governmental authority
(including the Bank of England) having authority over any Lender, in each
case to the extent not already specifically addressed by the provisions of
the definition of "LIBOR Reserve Percentage", except as to any increased cost
or reduced amount that results from the imposition of Taxes (liability for
which is determined pursuant to Section 4.6). The Lender requesting
-----------
reimbursement under this Section shall promptly notify the Administrative
Agent and SIHL in writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the Borrowers directly
to such Lender within ten days of its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers; provided, however, that the Borrowers shall have no obligation to
-------- -------
make any payment to any Lender under this Section 4.3 unless SIHL receives
notice of such increased costs or reduced amounts within six months after
they are incurred or realized. Any Lender claiming any amounts payable
pursuant to this Section shall use its commercially reasonable efforts
(including to change its applicable lending office with respect to some or
all of its LIBO Rate Loans) in order to avoid the need for or reduce the
amount of any such additional amounts that would thereafter accrue, so long
as such Lender will not be materially disadvantaged and such change is not
inconsistent with such Lender's internal policies.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
--------------
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to make, continue or maintain any portion of the principal amount of
any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan) as a result of,
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last day
of the Interest Period applicable thereto, whether pursuant to Section 3.1
-----------
or otherwise, including all such loss or expense arising as a result of
the provisions of Section 4.11;
------------
(b) the Borrowers' failure to borrow any LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor due
to the Borrowers' action or inaction,
then, upon the written notice of such Lender to SIHL (with a copy to the
Administrative Agent), the Borrowers shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
-----------------------
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank,
regulator or other governmental authority affects or would affect the amount
of capital required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's
capital as a consequence of its Commitment or the Loans made, or the Letters
of Credit issued or participated in, by such Lender is reduced to a level
below that which such Lender or such controlling Person could have achieved
but for the occurrence of any such circumstance, then, in any such case so
long as such Lender shall then be taking the same action with respect to all
other similar loans it may have outstanding to other borrowers, within ten
Business Days following notice by such Lender to the Borrowers, the Borrowers
shall pay directly to such Lender additional amounts sufficient to compensate
such Lender or such controlling Person for such reduction in rate of return;
provided, however, that the Borrowers shall have no obligation to make any
-------- -------
payment to any Lender under this Section 4.5 unless the Borrowers receive
notice of such reduction in rate of return within six months after the
reduced rate of return is realized. A statement of such Lender as to any
such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrowers. In determining such amount, such Lender may use
any reasonable method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable. Any Lender claiming any amounts
payable pursuant to this Section shall use its commercially reasonable
efforts (including to change its applicable lending office with respect to
some or all of its LIBO Rate Loans) to avoid or materially reduce any amounts
which the Borrowers are obligated to pay pursuant to this Section 4.5, so
long as such Lender will not be materially disadvantaged and such change is
not inconsistent with such Lender's internal policies.
SECTION 4.6. Taxes. (a) All payments by SIHL, each other Borrower or
-----
any other Guarantor of principal of, and interest on, the Loans and all other
amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes
and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by any Lender's net income or receipts (such
non-excluded items being called "Taxes"). In the event that any withholding
-----
or deduction from any payment to be made by SIHL, each other Borrower or any
other Guarantor hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then SIHL, such Guarantor or such
Borrower (as applicable) will
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative Agent
or any Lender with respect to any payment received by the Administrative
Agent or such Lender hereunder, the Administrative Agent or such Lender may
pay such Taxes and each of SIHL, each other Borrower and each other Guarantor
will (without duplication) promptly pay such additional amounts (including
any penalties, interest or expenses) as is necessary in order that the net
amount received by such person after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such person would
have received had such Taxes not been asserted.
(b) If either SIHL, any other Borrower or any other Guarantor fails
to pay any Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent, for the account of the respective
Lenders, the required receipts or other required documentary evidence,
SIHL, each other Guarantor and each other Borrower shall jointly and
severally indemnify the Lenders for any incremental Taxes, interest or
penalties that may become payable by any Lender as a result of any such
failure. For purposes of this Section 4.6, a distribution hereunder by the
-----------
Administrative Agent or any Lender to or for the account of any Lender
shall be deemed a payment by SIHL, such Guarantor and such Borrower.
(c) Each Lender that is not organized under the laws of the United
States or a State thereof shall, not later than the first payment of
interest or other amounts hereunder to such Lender, deliver to each
Borrower and the Administrative Agent two duly completed copies of
Internal Revenue Service Form W-8BEN (or any successor form) claiming
complete exemption from U.S. Federal withholding tax on payments of
interest hereunder; provided, however, that in the case of a Lender that
-------- -------
is not legally entitled to deliver such Form (or successor form) as of the
date of the first payment of interest or other amounts hereunder to such
Lender, such Lender shall deliver written notice of its inability to
provide such form on such date and no such Lender shall be obligated to
deliver such Form (or successor form) earlier than the date of the first
payment of interest or other amounts hereunder next following the date as
of which such Lender becomes legally entitled to deliver such Form or
successor form. Each such Lender shall further deliver two duly completed
copies of such Form (or successor form) prior to the expiration of the
most recently delivered Form. By the delivery of such Form (or successor
form), such Lender shall be deemed to have represented that it is entitled
to receive payments of interest hereunder without the imposition of U.S.
Federal withholding tax.
(d) In addition, any Lender claiming any indemnity payment or
additional amount payable pursuant to this Section shall use commercially
reasonable efforts to file any certificate or document reasonably
requested by SIHL or to change the jurisdiction of its applicable lending
office if the making of such a filing or change would avoid the need for
or reduce the amount of any such indemnity payment or additional amount
which may thereafter accrue and such filing or change is not, in the sole
determination of such Lender, inconsistent with that Lender's internal
policies.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
----------------------------
provided, all payments by SIHL, each other Borrower and each other Guarantor
pursuant to this Agreement or any other Loan Document shall be made by SIHL,
such Guarantor and such Borrower (without duplication) to the Administrative
Agent for the pro rata account of the Lenders entitled to receive such
--- ----
payment. All such payments required to be made to the Administrative Agent
shall be made, without setoff, recoupment, deduction, counterclaim or other
defense, not later than 12:00 noon, New York time, on the date due, in same
day or immediately available funds, to such account as the Administrative
Agent shall specify from time to time by notice to the Borrowers. Funds
received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day and such extension
of time shall be included in computing interest and fees, if any, in
connection with such extension. The Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such payments
received by the Administrative Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the
period for which such interest or fee is payable over a year comprised of
360 days (or, in the case of interest on a Base Rate Loan, 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise be
due on a day which is not a Business Day, such payment shall (except as
otherwise required by clause (b) or (c) of the definition of the term
---------- ---
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
-------------------
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligation
(other than pursuant to the terms of Sections 4.3, 4.4, 4.5 and 4.6) in
------------ --- --- ---
excess of its pro rata share of payments then or therewith obtained by all
--- ----
Lenders, such Lender shall purchase from the other Lenders such
participations in Credit Extensions made by them as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any portion of
-------- -------
the excess payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and each Lender which has
sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together
with an amount equal to such selling Lender's ratable share (according to the
proportion of (a) the amount of such selling Lender's required repayment to
the purchasing Lender to (b) the total amount so recovered from the
--
purchasing Lender), of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each of SIHL,
each other Borrower and each other Guarantor agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as
-----------
fully as if such Lender were the direct creditor of SIHL, such Borrower or
such Guarantor in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under
this Section to share in the benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
------
Event of Default described in clauses (a) through (d) of Section 8.1.9 or,
----------- --- -------------
with the consent of the Required Lenders, upon the occurrence of any other
Event of Default, have the right to appropriate and apply to the payment of
the Obligations owing to it (whether or not then due), and (as security for
such Obligations) each of SIHL, each other Borrower and each other Guarantor
hereby grants to each Lender a continuing security interest in, any and all
balances, credits, deposits, accounts or money of each of SIHL, such
Guarantor and such Borrower then or thereafter maintained with such Lender;
provided, however, that any such appropriation and application shall be
-------- -------
subject to the provisions of Section 4.8. Each Lender agrees promptly to
-----------
notify SIHL, such Guarantor or such Borrower and the Administrative Agent
after any such setoff and application made by such Lender; provided, however,
-------- -------
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Lender may have.
SECTION 4.10. Defaulting Lender. (a) Upon any Lender becoming a
-----------------
Defaulting Lender, (i) the Administrative Agent shall endeavor to promptly
notify each other Lender of the amount owed or potentially owed, as the case
may be, by such Defaulting Lender and (ii) the Commitment Amount shall be
reduced by an amount equal to the unutilized portion of such Defaulting
Lender's Percentage thereof then in effect (the "Unutilized Portion");
------------------
provided, however, that, with the prior written consent of the Administrative
-------- -------
Agent, SIHL may request a non-defaulting Lender to, whereupon such
non-defaulting Lender may (in its sole discretion and without the consent of
any other Lender), by promptly notifying SIHL and the Administrative Agent,
increase its Commitment in an amount equal to the Unutilized Portion, in
which case, upon receipt by SIHL and the Administrative Agent of such notice,
(x) the Commitment of such non-defaulting Lender shall be so increased and
(y) the amount of the Commitment Amount then in effect shall be equal to the
amount of the Commitment Amount in effect immediately prior to the time such
Defaulting Lender became a Defaulting Lender and (iii) the Percentage of such
Defaulting Lender shall be reduced to zero.
(b) No Defaulting Lender shall be entitled to receive any fees
accrued on and after the date such Lender became a Defaulting Lender.
(c) Notwithstanding anything contained herein to the contrary, no
Defaulting Lender shall be entitled to receive any payments hereunder on
account of any Loans or Notes until all amounts that are due and payable
with respect to any Loans as to which such Defaulting Lender is not a
Lender or a participant shall have been paid in full.
(d) Nothing in this Section shall be deemed to release any
Defaulting Lender from fulfilling its obligations under this Agreement or
otherwise or to prejudice the rights which SIHL, the Borrowers or any
other Lender or the Administrative Agent may have against any such
Defaulting Lender.
SECTION 4.11. Replacement Lender. In the event that SIHL, any other
------------------
Borrower or any other Guarantor becomes obligated to pay any additional
material amounts to any Lender pursuant to Section 4.3 or 4.5 (which amounts
----------- ---
are not due or payable to all Lenders generally under such Sections) or such
Lender is not able to make LIBO Rate Loans pursuant to Section 4.1, as a
-----------
result of any event or condition described in any of such Sections, or any
Lender is subject to a withholding tax for which it seeks a gross up pursuant
to Section 4.6, then, unless such Lender has removed or cured the conditions
-----------
creating the cause of such obligation to pay such additional amounts or
agrees (in the case of Taxes) not to require any Obligor to pay such gross up
amount under Section 4.6, SIHL may designate one or more substitute lenders
-----------
(and such Lender agrees to be replaced by such substitute lender upon and in
accordance with the terms set forth in this Section) reasonably acceptable to
the Administrative Agent and Issuer (such lender or lenders each called a
"Replacement Lender") to have assigned to it pursuant to Section 10.11.1, and
------------------- ---------------
to purchase, such Lender's rights and obligations with respect to its entire
Loans and Commitment hereunder, without recourse to or warranty by, or
expense to, such Lender for a purchase price equal to the outstanding
principal amount payable to such Lender with respect to its Loans and
Commitment hereunder, plus any accrued and unpaid interest and accrued and
unpaid fees in respect of such Lender's Loans and Commitment owing to such
Lender. SIHL agrees that, so long as the Borrowers are not then obligated to
pay any gross up for Taxes under a Loan Document to the Administrative Agent,
it will first designate the Administrative Agent as the Replacement Lender in
the case of another Lender that has required the Borrowers (or any Obligor)
to pay any gross up for Taxes under a Loan Document and the Administrative
Agent shall have the right (but be under no obligation) to have assigned to
them an equal amount of the Loans and Commitments (and corresponding rights
and obligations) of the Lender being replaced. Upon any assignment and
purchase by the Replacement Lender and payment of all other amounts owing to
the Lender being replaced hereunder (including under Section 4.6), and the
-----------
payment to the Administrative Agent of the processing fee due to it under
Section 10.11.1, such Lender shall no longer be a party hereto or have any
---------------
rights or obligations hereunder, and the Replacement Lender shall succeed to
the rights and obligations of such Lender with respect to its Loans and
Commitment hereunder; provided that the rights of such replaced Lender
--------
pursuant to Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the rights and
------------ --- --- --- ---- ----
obligations of such Lender pursuant to Article IX and Sections 10.3 and 10.4,
---------- ------------- ----
shall survive any assignment described in this Section.
ARTICLE V
CONDITIONS TO EFFECTIVENESS
SECTION 5.1. Effectiveness. The effectiveness of this Agreement shall
-------------
be subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
-----------
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
-----------------
received from each Borrower and Significant Subsidiary a certificate, dated
the date hereof, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement and each other Loan
Document executed by it; and
(c) upon which certificate each Lender Party may conclusively rely
until it shall have received a further certificate of the Secretary or
Assistant Secretary of such Obligor canceling or amending such prior
certificate.
SECTION 5.1.2. Delivery of this Agreement, Notes. The Administrative
---------------------------------
Agent shall have received (x) duly executed counterparts of this Agreement
delivered by each Borrower and each Lender and (y) for the account of each
Lender requesting Notes pursuant to Section 2.8, its Notes duly executed and
-----------
delivered by each Borrower.
SECTION 5.1.3. Debentures. The Administrative Agent shall have received
----------
(a) counterparts of the Debentures, amended and modified as required to
reflect the provisions of this Agreement (as reasonably determined by the
Administrative Agent), each duly executed by an Authorized Officer of the
owner of the property covered thereby, (b) evidence of the completion (or
satisfactory arrangements for the completion) of all recordings and filings
of the Debentures as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable effectively to create a valid first mortgage
Lien (or, in the case of personal property, floating charge Lien) against the
properties purported to be covered thereby in the full amount of the
aggregate principal amount of all Credit Extensions which may at any time be
outstanding, subject only to the Permitted Encumbrances, and (c) such other
approvals, opinions or documents as the Administrative Agent may reasonably
request with respect to the Debentures.
SECTION 5.1.4. Exchange Approval. The Administrative Agent shall have
-----------------
received a copy of a letter from The Central Bank of The Bahamas to SIBL,
SIHL and the other Guarantors organized under the laws of The Commonwealth of
The Bahamas, in a form and substance satisfactory to the Administrative
Agent, confirming that it is aware of this Agreement and the Pledge
Agreements and undertaking to make available to SIBL, SIHL and such
Guarantors such foreign exchange as may be necessary to enable SIBL, SIHL and
such Guarantors to fulfill their payment obligations under this Agreement in
Dollars and to pledge the collateral under the Pledge Agreements and
Debentures.
SECTION 5.1.5. Endorsement to Title Insurance Policies. The
---------------------------------------
Administrative Agent shall have received an endorsement (known as CLTA Form
110.5), dated on or about the date hereof, duly issued by the Title Insurer
which issued the mortgagee's title insurance policies on the Debentures,
confirming coverage under the mortgagee's title insurance policy on the
Debentures and insuring that the Debentures constitute valid first Liens
against the properties purported to be covered thereby, free and clear of all
defects and encumbrances other than the Permitted Encumbrances. In lieu of
such endorsement, the Borrowers may provide a new mortgagee's title insurance
policy on the Debentures in form and substance, and in amounts, reasonably
satisfactory to the Administrative Agent and its counsel, providing
comparable coverage (up to a $200,000,000 limit, which limit shall increase
accordingly if the Commitment Amount is increased at any time and from time
to time pursuant to Section 2.2.3) to the existing mortgagee's title
-------------
insurance policy. All premiums, title examination, surveys, departmental
violations, judgment and Uniform Commercial Code search charges (as
applicable) and other charges and fees shall have been paid in full or
provided for in a manner satisfactory to the applicable Title Insurer and the
Administrative Agent, and the Administrative Agent shall have received
satisfactory evidence of such payment or provision.
SECTION 5.1.6. Perfection Certificate. The Administrative Agent shall
----------------------
have received a fully completed and duly executed Perfection Certificate
substantially in the form of Exhibit G attached hereto.
SECTION 5.1.7. Opinions of Counsel. The Administrative Agent shall have
-------------------
received opinions, dated the date hereof and addressed to the Administrative
Agent and all Lenders, from
(a) Dickstein, Shapiro, Xxxxx & Xxxxxxxx LPP, counsel to the
Obligors, in form and substance satisfactory to the Administrative Agent;
(b) Xxxxxxx Xxxxx, General Counsel to SIHL and counsel to the other
Obligors, in form and substance satisfactory to the Administrative Agent;
and
(c) Xxxxxxx Xxxxxx, Bahamian counsel to certain Obligors, in form
and substance satisfactory to the Administrative Agent.
SECTION 5.1.8. Effective Date Certificate. The Administrative Agent shall
--------------------------
have received, with counterparts for each Lender, the Borrower Effective Date
Certificate, dated the date hereof, duly executed and delivered by an
Authorized Officer of each Borrower, in which certificate each Borrower
shall, among other things, agree and acknowledge that the statements made
therein shall be deemed to be true and correct representations and warranties
of such Person, made as of such date (and under this Agreement), and, at the
time such certificate is delivered, such statements shall in fact be true and
correct. All documents and agreements required to be appended to the
Borrower Effective Date Certificate shall be in form and substance
satisfactory to the Administrative Agent.
SECTION 5.1.9. Fees and Expenses. The Lenders and the Agents shall have
-----------------
received all fees and expenses required to be paid by SIHL and its
Subsidiaries on or before the Effective Date.
SECTION 5.1.10. Guaranty. The Administrative Agent shall have received,
--------
with counterparts for each Lender, the Guaranty, dated as of the date hereof,
duly executed and delivered by each Guarantor.
SECTION 5.1.11. Pledge Agreements. The Administrative Agent shall have
-----------------
received executed counterparts of each Pledge Agreement, each dated as of the
date hereof, duly executed and delivered by an Authorized Officer of each
Borrower and each Significant Subsidiary, as applicable, together with (i)
the certificates evidencing all of the issued and outstanding shares of
capital stock pledged pursuant to the applicable Pledge Agreement, which
certificates shall in each case be accompanied by undated powers of transfer
duly executed in blank, or, if any such shares of capital stock are
uncertificated securities or are held through a securities intermediary, the
Administrative Agent shall have obtained "control" (as defined in the UCC)
over such shares of capital stock and such other instruments and documents as
the Administrative Agent shall deem necessary or, in the reasonable opinion
of the Administrative Agent, desirable under applicable law to perfect the
security interest of the Administrative Agent in such shares of capital stock
and (ii) all promissory notes evidencing intercompany Indebtedness payable to
the Borrowers or each Significant Subsidiary duly endorsed to the order of
the Administrative Agent.
SECTION 5.1.12. Security Agreements. The Administrative Agent shall have
-------------------
received executed counterparts of each Security Agreement, each dated as of
the Effective Date, duly executed and delivered by an Authorized Officer of
each Borrower and each Significant Subsidiary, as applicable, together with
(i) executed UCC financing statements (Form UCC-1) naming such Obligor as the
debtor and the Administrative Agent as the secured party, or other similar
instruments or documents, suitable for filing under the UCC of all
jurisdictions as may be necessary or, in the opinion of the Administrative
Agent, desirable to perfect the security interest of the Administrative Agent
in the interests of such Obligor in the collateral pledged pursuant to the
applicable Security Agreement (provided that perfection of security interests
--------
in motor vehicles shall not be required), (ii) executed copies of proper UCC
termination statements (Form UCC-3), if any, necessary to release all Liens
and other rights of any Person (other than Liens permitted under
Section 7.2.3) in any collateral described in the applicable Security
Agreement previously granted by any Person, together with such other UCC
termination statements (Form UCC-3) as the Administrative Agent may
reasonably request from such Obligor; and (iii) certified copies of UCC
Requests for Information or Copies (Form UCC-11), or a similar search report
certified by a party reasonably acceptable to the Administrative Agent, dated
a date reasonably near to the date hereof, listing all effective financing
statements which name such Obligor (under its present names and any previous
names) as the debtor and which are filed in the jurisdictions in which
filings are to be made pursuant to clause (i) above, together with copies of
----------
such financing statements.
SECTION 5.2. All Credit Extensions. The obligation of each Lender to
---------------------
fund any Loan or the Issuer to issue any Letter of Credit on the occasion of
any Credit Extension shall be subject to the satisfaction of each of the
conditions precedent set forth in Sections 5.2.1, 5.2.2 and 5.2.3.
-------------- ----- -----
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
--------------------------------------------
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
-------------
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true
and correct
(a) the representations and warranties set forth in Article VI and
----------
in the other Loan Documents shall be true and correct in all material
respects with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date); and
(b) no Default shall have then occurred and be continuing, and
neither SIHL nor any Subsidiary is in material violation of any law or
governmental regulation or court order or decree.
SECTION 5.2.2. Credit Extension Request. The Administrative Agent shall
------------------------
have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each
of the delivery of a Borrowing Request or Issuance Request and the acceptance
by the applicable Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the relevant Borrower that on the
date of such Credit Extension (both immediately before and after giving
effect to such Credit Extension and the application of the proceeds thereof)
the statements made in Section 5.2.1 are true and correct in all material
-------------
respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
-----------------------
submitted pursuant hereto by or on behalf of SIHL or any of its Subsidiaries
or any other Obligors shall be reasonably satisfactory in form and substance
to the Administrative Agent and its counsel; the Administrative Agent and its
counsel shall have received all information, approvals, opinions, documents
or instruments as such Agent or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter into
this Agreement and to make Credit Extensions hereunder, each of the Borrowers
represents and warrants unto the Agents, the Issuer and each Lender as set
forth in this Article VI.
----------
SECTION 6.1. Organization, etc. Each of SIHL and the Obligors is a
------------------
corporation or partnership validly organized and existing and in good
standing under the laws of the State or jurisdiction of its incorporation or
organization, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its business
requires such qualification (except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole), and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under this Agreement and each other Loan
Document to which it is a party and to own and hold under lease its property
and to conduct its business substantially as currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
------------------------------------------
delivery and performance by each of the Borrowers of this Agreement and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed
or to be executed by it are within such Borrower's and each such other
Person's corporate or partnership powers (as applicable), have been duly
authorized by all necessary corporate or partnership action, and do not
(a) contravene such Borrower's or other Person's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting any Borrower
or any such other Person; or
(c) result in, or require the creation or imposition of, any Lien on
any of any Borrower's or any such other Person's properties, other than
pursuant to a Loan Document.
SECTION 6.3. Government Approval, Regulation, etc. Except for those
-------------------------------------
that have been duly obtained or made and are in full force and effect, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or other Person is
required for the due execution, delivery or performance by the Borrowers or
any other Obligor of this Agreement or any other Loan Document to which it is
a party. Neither SIHL nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and each other
--------------
Loan Document executed by a Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of such
Borrower enforceable in accordance with their respective terms; and each Loan
Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and
binding obligation of such Obligor enforceable in accordance with its terms.
SECTION 6.5. Financial Information. The consolidated balance sheet of
----------------------
SIHL and its Subsidiaries as at December 31, 2000, and the related
consolidated statements of earnings and cash flow of SIHL and its
Subsidiaries, have been prepared in accordance with GAAP consistently
applied, and present fairly the consolidated financial condition of the
corporations covered thereby as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 6.6. No Material Adverse Change. Except for changes in the
--------------------------
financial condition of SIHL and its Subsidiaries, taken as a whole, reflected
in the Borrowers' projections dated October 19, 2001 (copies of which have
been delivered to the Lenders), since September 30, 2001, there has been no
material adverse change in the financial condition, operations, assets,
business or properties of SIHL and its Subsidiaries, taken as a whole.
SECTION 6.7. Litigation, Labor Controversies, etc. Except as disclosed
-------------------------------------
in Item 6.7 ("Litigation") of the Disclosure Schedule,
--------
(i) no labor controversy, litigation, arbitration or governmental
investigation or proceeding is pending or, to the knowledge of any
Borrower, threatened, against SIHL or any of its Subsidiaries which would
reasonably be expected to materially adversely affect the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole, or which purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document;
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to clause (a) which would reasonably be expected to
----------
materially adversely affect the businesses, operations, assets, revenues
or properties of SIHL and its Subsidiaries, taken as a whole; and
(iii) no judgments or orders for the payment of money in excess of
$5,000,000, individually or in the aggregate (to the extent not covered by
insurance (other than self-insurance) from a carrier not contesting its
obligations to make payment under the applicable insurance policy), has
been rendered against SIHL or any of its Subsidiaries that is organized
under the laws of The Commonwealth of The Bahamas.
SECTION 6.8. Subsidiaries. SIHL does not have any Subsidiaries, except
------------
those Subsidiaries
(a) which are identified in Item 6.8(a) ("Existing Subsidiaries") of
-----------
the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.10.
------- ----- ------
Significant Subsidiaries as of the Effective Date are identified with
an asterisk on Item 6.8(a) of the Disclosure Schedule. Each Subsidiary as
-----------
well as each Borrower that is executing a Pledge Agreement or a supplement to
a Pledge Agreement is listed on Item 6.8(b) of the Disclosure Schedule.
-----------
SECTION 6.9. Ownership of Properties. The Borrowers and each of their
-----------------------
respective Significant Subsidiaries owns good and valid title to all of its
material properties and assets, real and personal, tangible and intangible,
of any nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or claims
(including infringement claims with respect to patents, trademarks,
copyrights and the like) except as permitted pursuant to Section 7.2.3.
-------------
SECTION 6.10. Taxes. The Borrowers and each of their respective
-----
Significant Subsidiaries has filed all material tax returns and reports
required by law to have been filed by it and has paid or will pay when due
all material taxes and governmental charges thereby shown to be owing, except
any such taxes or charges which are being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the
-------------------------
twelve-consecutive-month period prior to the date of the execution and
delivery of this Agreement, and since such date and prior to the date of any
Credit Extension hereunder, no steps have been taken to terminate any Pension
Plan, and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by SIHL or any member of
its Controlled Group of any material liability, fine or penalty. Except as
disclosed in Item 6.11 ("Employee Benefit Plans") of the Disclosure Schedule,
---------
neither SIHL nor any member of its Controlled Group has any material
contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in
Part 6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
------------------------ ---------
("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by SIHL or any of its Subsidiaries have been, and continue
to be, owned or leased by SIHL and its Subsidiaries in material compliance
with all Environmental Laws;
(b) there are no pending and, to the knowledge of any Borrower, (i)
there are no threatened and (ii) have been no past,
(i) claims, complaints, notices or requests for information
received by SIHL or any of its Subsidiaries with respect to any
alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to SIHL or any of its
Subsidiaries regarding potential material liability under any
Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to the knowledge of any Borrower, previously
owned or leased by SIHL or any of its Subsidiaries that, singly or in the
aggregate, have, or would reasonably be expected to have, a material
adverse effect on the financial condition, operations, assets, business or
properties of SIHL and its Subsidiaries, taken as a whole;
(d) SIHL and its Subsidiaries have been issued and are in material
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters which are necessary for
their businesses;
(e) no property now or previously owned or leased by SIHL or any of
its Subsidiaries is listed or proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or, to the
knowledge of any Borrower, previously owned or leased by SIHL or any of
its Subsidiaries that, singly or in the aggregate, have, or would
reasonably be expected to have, a material adverse effect on the financial
condition, operations, assets, business or properties of SIHL and its
Subsidiaries, taken as a whole;
(g) neither SIHL nor any Subsidiary of SIHL has directly transported
or directly arranged for the transportation of any Hazardous Material to
any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state
list or which is the subject of federal, state or local enforcement
actions or other investigations which would reasonably be expected to lead
to material claims against SIHL or such Subsidiary thereof for any
remedial work, damage to natural resources or personal injury, including
claims under CERCLA;
(h) to the knowledge of the Borrowers, there are no polychlorinated
biphenyls or friable asbestos present at any property now or previously
owned or leased by SIHL or any Subsidiary of SIHL that, singly or in the
aggregate, have, or would reasonably be expected to have, a material
adverse effect on the financial condition, operations, assets, business or
properties of SIHL and its Subsidiaries, taken as a whole; and
(i) to the knowledge of the Borrowers, no conditions exist at, on or
under any property now or previously owned or leased by SIHL or any of its
Subsidiaries which, with the passage of time, or the giving of notice or
both, would reasonably be expected to give rise to any material liability
under any Environmental Law.
SECTION 6.13. Regulations U and X. None of the Borrowers is engaged in
-------------------
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Credit Extensions will be used to
purchase or carry margin stock or for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or X. Terms for which meanings
are provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.14. Accuracy of Information. All factual information furnished
-----------------------
by or on behalf of SIHL or its Subsidiaries in writing to the Administrative
Agent or any Lender for purposes of or in connection with this Agreement or
any transaction contemplated hereby and all other such factual information
hereafter furnished by or on behalf of SIHL or its Subsidiaries to the
Administrative Agent or any Lender pursuant to the terms of this Agreement
will be true and accurate in every material respect on the date as of which
such information is dated or certified and as of the date of execution and
delivery of this Agreement by the Administrative Agent and such Lender, and
such information is not, or shall not be, as the case may be, incomplete by
omitting to state any material fact necessary to make such information not
misleading. Insofar as any of the factual information described above
includes assumptions, estimates, projections or opinions, no representation
or warranty is made herein with respect thereto; provided, however, that to
-------- -------
the extent any such assumptions, estimates, projections or opinions are based
on factual matters, SIHL or its Subsidiaries has reviewed such factual
matters and nothing has come to its attention in the context of such review
which would lead it to believe that such factual matters were not or are not
true and correct in all material respects or that such factual matters omit
to state any material fact necessary to make such assumptions, estimates,
projections or opinions not misleading in any material respect.
SECTION 6.15. Protection under Security Instruments. The Debentures,
-------------------------------------
together with the financing statements (if any) filed with respect thereto,
constitutes a valid, first mortgage lien on, and (where applicable), a valid
perfected floating lien on and security interest in, the property subject
thereto, subject only to Permitted Encumbrances and Liens permitted on such
property by Section 7.2.3.
-------------
SECTION 6.16. No Condemnation Proceedings. There is no action, suit or
---------------------------
proceeding (including any proceeding in condemnation or eminent domain or
under any Environmental Law) pending or, to the knowledge of any Borrower or
any other Guarantor, threatened which adversely affects the title to, or the
use, operation or value of, the hotel and casino operations that are subject
to the Debentures.
SECTION 6.17. Insurance. SIHL or its Subsidiaries have obtained or
---------
caused to be obtained insurance coverage covering the Bahamas Property which
meets in all respects the requirements of this Agreement, and such coverage
is in full force and effect.
SECTION 6.18. Seniority of Obligations, etc. Each Subordinated Debt
------------------------------
Issuer has (or will have) the power and authority to incur the Indebtedness
(if any) evidenced by the Subordinated Notes as provided for under each
Subordinated Note Indenture and has (or will have) duly authorized, executed
and delivered each Subordinated Note Indenture, as applicable. Each
Subordinated Debt Issuer has (or will have) issued, pursuant to due
authorization, the Subordinated Notes under each Subordinated Note
Indenture. Once executed and delivered by a Subordinated Debt Issuer, each
Subordinated Note Indenture will constitute the legal, valid and binding
obligation of such Subordinated Debt Issuer enforceable against such
Subordinated Debt Issuer in accordance with its terms. The Subordination
Provisions of the Subordinated Notes and contained in each Subordinated Note
Indenture will be enforceable against the holders of the Subordinated Notes
by the holder of any "Senior Indebtedness", "Senior Debt" or similar term
referring to the Obligations, as applicable in such Subordinated Note
Indenture, which has not effectively waived the benefits thereof. All
monetary Obligations, including those to pay principal of and interest
(including post-petition interest, whether or not permitted as a claim under
applicable law) on the Loans and Reimbursement Obligations, and fees and
expenses in connection therewith, constitute (or will constitute) "Senior
Indebtedness", "Senior Debt" or similar term referring to the Obligations, as
applicable in such Subordinated Note Indenture, and all such Obligations are
(or will be) entitled to the benefits of the subordination created by such
Subordinated Note Indenture. SIHL and each of its Subsidiaries acknowledges
that each Lender Party is entering into this Agreement, and is extending its
Commitments, in reliance upon the Subordination Provisions of (or to be
contained in) each Subordinated Note Indenture, the Subordinated Notes and
this Section.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each of the Borrowers agrees with
---------------------
the Agents, the Issuer and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in full, each of
the Borrowers will perform the obligations set forth in this Section 7.1.
-----------
SECTION 7.1.1. Financial Information, Reports, Notices, etc. SIHL will
---------------------------------------------
furnish, or will cause to be furnished, to each Lender, the Issuer and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of
SIHL, consolidated balance sheets of SIHL and its Subsidiaries and the
SIBL Group (as applicable) as of the end of such Fiscal Quarter and
consolidated statements of earnings and cash flow of SIHL and its
Subsidiaries and the SIBL Group (as applicable), in each case for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, certified by
the chief financial Authorized Officer of SIHL;
(b) as soon as available and in any event within 105 days after the
end of each Fiscal Year of SIHL, a copy of the annual audit report for
such Fiscal Year for SIHL and its Subsidiaries, including therein a
consolidated balance sheet of SIHL and its Subsidiaries as of the end of
such Fiscal Year and consolidated statements of earnings and cash flow of
SIHL and its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) by Xxxxxx Xxxxxxxx LLP or other
independent public accountants acceptable to the Required Lenders,
together with a certificate from such accountants containing a computation
of, and showing compliance with, each of the financial ratios and
restrictions contained in Section 7.2.4;
-------------
(c) commencing with the period ending December 31, 2001, (A) as soon
as available and in any event within the time periods set forth above in
clauses (a) and (b) for the relevant Fiscal Quarter, a Compliance
---------------------
Certificate, executed by the chief financial Authorized Officer of SIHL,
(i) showing compliance with the financial covenants set forth in Section
-------
7.2.4, (ii) showing the amount of Capital Expenditures that were made
-----
during such Fiscal Quarter, and (iii) certifying as to the absence of any
Default and (B) within 60 days after the end of each Fiscal Year of SIHL,
a certificate in substantially the form of Exhibit H from the chief
----------
financial Authorized Officer of SIHL showing the calculation (estimated in
good faith, subject to adjustment upon delivery of the Compliance
Certificate for such Fiscal Year end within 105 days after the end of such
Fiscal Year) of the Total Leverage Ratio as of such Fiscal Year end;
(d) as soon as possible and in any event within three days after an
executive officer of SIHL knows of the occurrence of each Default, a
statement of the chief financial Authorized Officer of SIHL setting forth
details of such Default and the action which SIHL has taken and proposes
to take with respect thereto;
(e) as soon as possible and in any event within three days after an
executive officer of SIHL knows of (x) the occurrence of any adverse
development with respect to any litigation, action, proceeding, or labor
controversy described in Section 6.7 or (y) the commencement of any labor
-----------
controversy, litigation, action, proceeding of the type described in
Section 6.7, notice thereof and copies of all documentation relating
------------
thereto;
(f) promptly after the sending or filing thereof, copies of all
reports which SIHL sends to any of its securityholders, and all reports
and registration statements which SIHL or any of its Subsidiaries files
with the Securities and Exchange Commission or any national securities
exchange;
(g) immediately upon becoming aware of the institution of any steps
by any Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which
could result in the requirement that any Borrower furnish a bond or other
security to the PBGC or such Pension Plan, or the occurrence of any event
with respect to any Pension Plan which could result in the incurrence by
any Borrower of any material liability, fine or penalty, or any material
increase in the contingent liability of any Borrower with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto;
(h) promptly following any amendment, waiver or other modification
made to the Relinquishment Agreement or the Omnibus Termination Agreement,
or delivery of any notice of default or termination of the Relinquishment
Agreement or the Omnibus Termination Agreement, a copy of such amendment,
waiver, modification or notice;
(i) promptly following the delivery or receipt, as the case may be,
of any written notice or communication pursuant to or in connection with
any Subordinated Note Indenture or any of the Subordinated Notes, a copy
of such notice or communication; and
(j) such other information respecting the condition or operations,
financial or otherwise, of SIHL or any of its Subsidiaries as the Issuer
or any Lender through the Administrative Agent may from time to time
reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. Each Borrower will, and will
--------------------------
cause each of their respective Subsidiaries to, comply in all material
respects with all applicable laws, rules, regulations and orders, such
compliance to include (without limitation):
(a) in the case of the Borrowers and their respective Significant
Subsidiaries, the maintenance and preservation of its corporate existence
(except as otherwise permitted by this Agreement) and qualification as a
foreign corporation; and
(b) the payment, before the same becomes delinquent, of all material
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. Each Borrower will, and will
-------------------------
cause each of their respective Significant Subsidiaries to, maintain,
preserve, protect and keep its properties in reasonably good repair, working
order and condition, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times unless SIHL determines in good faith that the
continued maintenance of any of their respective properties (other than the
Core Assets) is no longer economically desirable.
SECTION 7.1.4. Insurance. (a) Each Borrower will, and will cause each of
---------
their respective Significant Subsidiaries to, maintain or cause to be
maintained with responsible insurance companies insurance with respect to its
properties and business against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses,
and will, upon request of the Administrative Agent, furnish to the Lender
Parties at reasonable intervals a certificate of an Authorized Officer of
SIHL setting forth the nature and extent of all insurance maintained by the
Borrowers and their respective Significant Subsidiaries in accordance with
this Section.
(b) In addition, without limiting the foregoing, SIBL shall (and
cause members of the SIBL Group to) comply with the following
requirements:
SIBL will, and will cause its Subsidiaries to, maintain
(for so long as such property is subject to a lien in favor of
the Secured Parties) insurance noting the Administrative Agent's
interest as joint loss payee with SIBL (or such Subsidiary) on
behalf of the Secured Parties (to the extent of their interest)
against loss or damage by fire, hurricane, flood, windstorm,
tempest, seawave, earthquake, riot, civil commotion, aircraft and
articles dropped therefrom to the full value thereof (not subject
to average) all buildings and the contents thereof, structures
and erections situate upon any freehold or leasehold property of
SIBL and its Subsidiaries, and in particular shall maintain with
respect thereto:
(i) "All Risks" insurance on the buildings situate thereon in
an amount not less than the replacement building value;
(ii) "All Risks" insurance on all inventory, furnishings,
fittings and equipment situate thereon or in transit thereto; and
(iii) "All Risks" public liability third party insurance in an
amount as is usual for companies carrying on a similar business;
(iv) and shall keep the Bahamas Property and all buildings and
contents thereof and structures and erections so insured with an
insurer approved by the Administrative Agent. Such insurance
insuring the collateral in which the Lender Parties have a security
interest shall include clauses in form satisfactory to the
Administrative Agent; and
(v) ensure that the relevant insurer undertakes to advise the
Secured Parties promptly after acquiring knowledge:
(A) of any cancellation of the insurance, at least 30
days before such cancellation is due to take effect;
(B) of any alteration in or termination of or expiry of
the insurance, at least 30 days before such alteration,
termination or expiry is due to take effect;
(C) of any delay or failure to pay any premium or to
renew the insurance, at least 30 days prior to the date of
renewal thereof; and
(D) of any act or omission or any event of which the
insurer has knowledge and which might invalidate or render
unenforceable (as between SIHL, such Subsidiary and such
insurer) in whole or in part such insurance.
SECTION 7.1.5. Books and Records. Each Borrower will, and will cause each
-----------------
of their respective Significant Subsidiaries to, keep books and records which
accurately reflect all of their respective business affairs and transactions
and permit the Administrative Agent, the Issuer and each Lender or any of
their respective representatives, at reasonable times and intervals, to visit
all of its offices, to discuss its financial matters with its officers and
independent public accountant (and each Borrower hereby authorizes such
independent public accountant to discuss its and such Subsidiaries' financial
matters with each Lender or its representatives whether or not any
representative of any Borrower or such Subsidiary is present) and to examine
any of its books or other corporate records. Following the occurrence of an
Event of Default, SIHL shall pay any fees of such independent public
accountant incurred in connection with the Administrative Agent's, the
Issuer's or any Lender's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Covenant. Each Borrower will, and will cause
----------------------
each of their respective Subsidiaries to,
(a) use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws;
(b) immediately notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or inquiries
relating to compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 7.1.6.
-------------
SECTION 7.1.7. Future Investments in Significant Subsidiaries. To the
----------------------------------------------
extent permitted by this Agreement,
(a) upon any Borrower or any Guarantor directly or indirectly
acquiring additional capital stock of or other equity interests in any
Person that constituted a Pledged Share Issuer (as defined in a Pledge
Agreement); or
(b) upon SIHL or any Subsidiary of SIHL directly or indirectly
acquiring or otherwise having a Significant Subsidiary (including if a
non-Significant Subsidiary becomes a Significant Subsidiary) following the
Effective Date; or
(c) upon SIHL or any of its Subsidiaries directly or indirectly
making an Investment in a Person;
SIHL shall notify the Administrative Agent of such acquisition, and shall
cause any Significant Subsidiary acquired or designated after the Effective
Date to execute and deliver a Security Agreement and, if such Person owns any
real property with a fair market value in excess of $5,000,000, a Mortgage
(or, if applicable, a supplement to an existing Mortgage), and any other
instruments, documents or filings reasonably requested by the Administrative
Agent to perfect its security interest in the collateral described in such
Security Agreement and such Mortgage, and SIHL and each other Obligor shall,
pursuant to a Pledge Agreement (as supplemented, if necessary, by a Foreign
Pledge Agreement), pledge to the Administrative Agent, for its benefit and
that of the Secured Parties, (i) in the case of clauses (a) and (b) above,
----------- ---
all of the additional or outstanding capital stock or equity interests so
acquired within 30 days of acquisition or (ii) in the case of clause (c)
----------
above, the promissory note, duly endorsed in favor of the Administrative
Agent (if such Investment is by way of a loan or advance) or the capital
stock, equity or other ownership interest in a Significant Subsidiary (if
such Investment is in the form of other than a loan or advance), in each case
made or issued by each Borrower and each Significant Subsidiary that is in
the chain of ownership in connection with such Investment, and, in the case
of clauses (a), (b) and (if applicable) (c) above, also deliver to the
----------- --- ---
Administrative Agent undated stock powers for such certificates, executed in
blank (or, if any such shares of capital stock or equity interests are
uncertificated, confirmation and evidence satisfactory to the Administrative
Agent that the security interest in such uncertificated securities or equity
interests has been transferred to and perfected by the Administrative Agent,
for the benefit of the Issuer and the Lenders, in accordance with Article 8
and Article 9 of the U.C.C. or any other analogous local law which may be
applicable), and to the extent any Subsidiary designated as a Significant
Subsidiary is not already a party to a Guaranty, such Significant Subsidiary
shall execute and deliver to the Administrative Agent a Guaranty Supplement
together with, if requested by the Administrative Agent, such opinions of
legal counsel for the Obligors from counsel reasonably satisfactory to the
Administrative Agent relating thereto, which legal opinions shall be in form
and substance reasonably satisfactory to the Administrative Agent. Without
limiting the foregoing requirements, SIHL agrees that it will cause each
Subsidiary that is required to deliver a guaranty of any Subordinated Debt to
also execute and deliver a Guaranty Supplement to the Administrative Agent
prior to or contemporaneously delivering a guaranty of Subordinated Debt.
SECTION 7.1.8. Use of Proceeds. The Borrowers shall apply the proceeds of
---------------
each Credit Extension in accordance with the seventh recital; without
---------------
limiting the foregoing, no proceeds of any Loan will be used to acquire any
equity security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S.
Board Regulation U other than shares of capital stock of SIHL.
SECTION 7.1.9. Priority of Lenders' Liens. Each Borrower will, and will
--------------------------
cause their Subsidiaries to, do all things necessary to ensure that at all
times the claims of the Secured Parties against the Obligors under this
Agreement and the other Loan Documents that provide for Collateral Documents
are prior to and superior to the claims of all other creditors, except as
expressly permitted in this Agreement.
SECTION 7.1.10. Access to Property. Each Borrower shall permit the
------------------
Administrative Agent and its agents, consultants, employees and
representatives access to inspect its material properties upon giving
reasonable notice (except during the continuance of an Event of Default when
no notice shall be required).
SECTION 7.1.11. Other Amounts. SIHL shall maintain deposits in a
-------------
collateral account with the Administrative Agent in an amount reasonably
requested from time to time by, and on terms and conditions satisfactory to,
the Administrative Agent sufficient to pay any duties that may become due
with respect to the Loan Documents, which amount may be applied by the
Administrative Agent to the payment of such duties at any time after the
occurrence and during the continuance of an Event of Default.
SECTION 7.2. Negative Covenants. Each of the Borrowers agrees with the
------------------
Agents, the Issuer and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in full, each of
the Borrowers will perform the obligations set forth in this Section 7.2.
-----------
SECTION 7.2.1. Business Activities. SIHL will not, and will not permit
-------------------
any of its Subsidiaries to, engage in any business activity, except those
described in the first recital, the development and sale of time sharing and
-------------
resort home properties, and (in each case), such activities as may be
incidental or related thereto.
SECTION 7.2.2. Indebtedness. SIHL will not, and will not permit any of
------------
its Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
(a) Indebtedness of the Borrowers and the Guarantors in respect of
the Credit Extensions and other Obligations;
(b) unsecured Indebtedness of a Borrower owing to a Subsidiary of
SIHL (including another Borrower), but only if such Borrower and such
Subsidiary have executed and delivered to the Administrative Agent a
Subordination Agreement and such Indebtedness shall be evidenced by a note
(which shall, unless the Administrative Agent shall otherwise agree, be in
the form of Exhibit A to a Pledge Agreement and shall, pursuant to a
Pledge Agreement, be pledged to the Administrative Agent for its benefit
and that of the Secured Parties);
(c) Indebtedness which is identified in Item 7.2.2(c) ("Ongoing
-------------
Indebtedness") of the Disclosure Schedule;
(d) Indebtedness which is incurred by SIHL or any of its
Subsidiaries to a vendor of any assets permitted to be acquired pursuant
to Section 7.2.7 to finance its acquisition of such assets;
-------------
(e) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, but excluding
Indebtedness of the types set forth in clauses (a), (b) and (c) of the
------------ --- ---
definition of Indebtedness or Contingent Liabilities in respect of such
types of Indebtedness);
(f) Indebtedness in respect of Capitalized Lease Liabilities to the
extent permitted in Section 7.2.7;
-------------
(g) Indebtedness of Guarantors (other than a Borrower) owing to a
Borrower; provided that such Indebtedness shall not result in such
--------
Borrower being treated as a conduit entity within the meaning of U.S.
Treasury regulations section 1.881-3(a)(2)(ii)(B)(2)(iii) and which shall
be evidenced by a note (which shall, unless the Administrative Agent shall
otherwise agree, be in the form of Exhibit A to the applicable Borrower
Pledge Agreement and shall, pursuant to a Borrower Pledge Agreement, be
pledged to the Administrative Agent for its benefit and that of the
Secured Parties);
(h) Indebtedness of a Guarantor (other than a Borrower) owing to
another Guarantor (other than a Borrower); provided that such Indebtedness
--------
shall not result in such Guarantor being treated as a conduit entity
within the meaning of U.S. Treasury regulations section
1.881-3(a)(2)(ii)(B)(2)(iii) and which shall be evidenced by a note (which
shall, unless the Administrative Agent shall otherwise agree, be in the
form of Exhibit A to the Subsidiary Pledge Agreement) and shall, pursuant
to a Subsidiary Pledge Agreement, be pledged to the Administrative Agent
for its benefit and that of the Secured Parties;
(i) unsecured Subordinated Debt of SIHL or its wholly-owned
Subsidiaries;
(j) Indebtedness of a Subsidiary (other than a Guarantor) owing to
another Subsidiary that is not a Guarantor;
(k) Indebtedness of SIHL or its Subsidiaries in the form of
Contingent Liabilities of the obligations of third parties;
(l) from and after July 1, 2002, unsecured Indebtedness evidenced by
senior notes of SIHL and/or certain of its wholly-owned Subsidiaries in an
aggregate principal amount not to exceed $300,000,000, so long as (i) the
net proceeds thereof are used to retire Indebtedness outstanding hereunder
or Subordinated Debt of SIHL and its Subsidiaries, (ii) as of the last day
of the most recent Fiscal Quarter end preceding the incurrence of such
Indebtedness, the Total Leverage Ratio was less than 4.5:1; (iii) both
before and after the incurrence of such Indebtedness, no Default has
occurred and is continuing or would result therefrom and (iv) the
scheduled principal payments thereunder do not begin prior to November 1,
2007; and
(m) other unsecured Indebtedness of SIHL and its Subsidiaries not to
exceed $15,000,000;
provided, however, that no Indebtedness otherwise permitted by clause (d) or
-------- ------- ----------
clauses (f) through (and including) (m) shall be permitted if, either before
----------- ---
or after giving effect to the incurrence of such Indebtedness, any Default
under Section 7.2.4 has occurred and is then continuing or, on a pro forma
------------- --- -----
basis, would result therefrom.
SECTION 7.2.3. Liens. SIHL will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations granted pursuant to
any Loan Document and Permitted Encumbrances;
(b) Liens described in Item 7.2.3(c) ("Existing Liens") of the
-------------- ---------------
Disclosure Schedule to secure payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2;
---------- -------------
(c) Liens granted to secure payment of Indebtedness of the type
permitted and described in clauses (d) or (f) of Section 7.2.2 and
------------ --- --------------
covering only those assets acquired with the proceeds of such
Indebtedness;
(d) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(e) Liens of carriers, warehousemen, mechanics, materialmen and
landlords, and other similar Liens imposed by law, incurred in the
ordinary course of business for sums not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;
(f) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(g) judgment Liens in existence less than 15 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies;
(h) Liens granted by SIHL or any of its Subsidiaries to other than
Subordinated Noteholders (or trustees or representatives of Subordinated
Noteholders) to secure other than Subordinated Debt, consisting of a
security interest in cash, Cash Equivalent Investments and/or marketable
securities to secure obligations of SIHL or such Subsidiaries which are
incurred pursuant to clause (k) of Section 7.2.2; provided that, the
---------- --------------
Secured Parties hereby agree that the Lien in such cash, Cash Equivalent
Investments and/or marketable securities created by the Loan Documents
shall be automatically subordinated to any Lien permitted under this
clause in respect of the Indebtedness incurred under clause (k) of Section
---------- -------
7.2.2;
-----
(i) Liens on deposits or similar payments made in connection with
Investments permitted by Section 7.2.5 or the acquisition of assets
--------------
permitted by the terms of this Agreement; provided that the maximum
--------
aggregate amount of such deposits or similar payments shall not exceed
$20,000,000; and
(j) Liens incurred in connection with the extension, renewal or
refinancing of Indebtedness secured by the Liens described in clauses (b)
or (c) above; provided that any extension, renewal or replacement Lien
--------
shall (i) be limited to the property covered by the existing Lien and (ii)
secure Indebtedness which is no greater in amount and have material terms
no less favorable to the Lenders than the Indebtedness secured by the
existing Lien.
SECTION 7.2.4. Financial Condition. SIHL will not permit:
-------------------
(a) the Interest Coverage Ratio as of the last day of any Fiscal
Quarter ending on or about a date set forth below to be less than the
ratio set forth opposite such date:
Fiscal Quarter Ending Interest Coverage Ratio
--------------------- -----------------------
December 31, 2001 2.75:1
March 31, 2002 2.50:1
June 30, 2002 2.25:1
September 30, 2002 2.25:1
December 31, 2002 2.50:1
March 31, 2003 2.75:1
June 30, 2003 and thereafter 3.00:1
(b) Consolidated Net Worth as of the last day of any Fiscal Quarter
to be less than an amount equal to the sum of (i) 90% of Consolidated Net
Worth as of September 30, 2001, plus (ii) 75% of Net Income of SIHL and
----
its Subsidiaries for each of the preceding full Fiscal Quarters occurring
from and after September 30, 2001 (without deduction for losses), plus
----
(iii) 50% of Net Equity Proceeds (if any) received by SIHL during each of
the preceding full Fiscal Quarters occurring from and after September 30,
2001;
(c) the Total Leverage Ratio as of the last day of any Fiscal
Quarter ending on a date set forth below to be greater than the ratio set
forth opposite such date:
Fiscal Quarter Ending Total Leverage Ratio
--------------------- --------------------
December 31, 2001 4.25:1
March 31, 2002 4.50:1
June 30, 2002 5.00:1
September 30, 2002 5.00:1
December 31, 2002 4.75:1
March 31, 2003 4.50:1
June 30, 2003 and thereafter 4.25:1
(d) the Senior Leverage Ratio as of the last day of any Fiscal
Quarter to be greater than 2.75:1.
SECTION 7.2.5. Investments. SIHL will not, and will not permit any of its
-----------
Subsidiaries to, make, incur, assume or suffer to exist any Investment in any
other Person, except (without duplication):
(a) Investments identified in Item 7.2.5(a) ("Ongoing Investments")
-------------
of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments permitted as Indebtedness pursuant to clause (b),
----------
clause (g), clause (h) and clause (j) of Section 7.2.2;
---------- ---------- ---------- -------------
(d) in the ordinary course of business, Investments by SIHL in the
Guarantors, or by any Guarantor in any other Guarantor, by way of
contributions to or purchases of capital to the extent that all capital
stock of other equity interests evidencing such Investments are pledged to
the Administrative Agent for the benefit of the Secured Parties pursuant
to Section 7.1.7;
-------------
(e) Investments made with Net Equity Proceeds by SIHL in an amount
equal to the amount of such Net Equity Proceeds in a venture (or in a
Person engaged in a venture) of the type permitted by Section 7.2.1,
--------------
whether or not such Investment is in a Subsidiary of SIHL, or, after
giving effect to such Investment, the Person in which such Investment is
made becomes a Subsidiary of SIHL; and
(f) subject to Section 7.2.1, (i) from the Effective Date until
--------------
September 30, 2002, Investments in an aggregate amount not to exceed
$75,000,000 and (ii) from and after October 1, 2002 and so long as the
Total Leverage Ratio as of the last day of the most recent Fiscal Quarter
end was less than 4.5:1, other Investments;
provided, however, that
-------- -------
(g) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(h) no Investment otherwise permitted by clause (f) shall be
-----------
permitted to be made if, immediately before or after giving effect
thereto, any Default of the type set forth in clauses (a) through (d) of
----------- ---
Section 8.1.9 or any other Event of Default shall have occurred and be
--------------
continuing or would result therefrom; and
(i) notwithstanding anything to the contrary contained herein, an
Investment or other acquisition of all or any portion of the capital stock
or other equity interest in any Person permitted in this Section may be
pursued or made only if such Investment or acquisition is not opposed by
the board of directors (or equivalent managerial body) of such Person
prior to the expenditure of any funds in connection therewith.
SECTION 7.2.6. Restricted Payments, etc. SIHL will not, and will not
-------------------------
permit any of the Subsidiaries to,
(a) declare or make a Restricted Payment or make any deposit for any
Restricted Payment; provided that notwithstanding the foregoing, SIHL
--------
shall be permitted to declare or make a Restricted Payment if (w) as of
the last day of the most recent Fiscal Quarter end, the Total Leverage
Ratio was less than 4.5:1, (x) both before and after giving effect to such
Restricted Payment, no Default has occurred and is continuing or would
result therefrom, (y) SIHL shall have delivered a Compliance Certificate
to the Administrative Agent certifying to that effect and evidencing, on a
pro forma basis after giving effect to such Restricted Payment, compliance
with each of the covenants set forth in Section 7.2.4, and (z) the
--------------
aggregate amount of all Restricted Payments when aggregated with the
principal amount of, and accrued interest (and premium, if any) on, any
Subordinated Notes redeemed, purchased or defeased in accordance with
clause (b)(ii) shall not exceed the Restricted Payment Amount;
--------------
(b) (i) make any payment or prepayment of principal of, or interest
on, any Subordinated Notes (A) on any day other than, in the case of
interest only, the stated scheduled date for such payment of interest set
forth in the applicable Subordinated Notes or in the applicable
Subordinated Note Indenture, or (B) which would violate the terms of this
Agreement or the Subordination Provisions of such Subordinated Note
Indenture; or (ii) redeem, purchase or defease any Subordinated Notes;
provided, that notwithstanding the foregoing, SIHL shall be permitted to
--------
prepay, purchase, redeem or defease Subordinated Notes if (x) as of the
last day of the most recent Fiscal Quarter end, the Total Leverage Ratio
was less than 4.5:1, (y) both before and after giving effect thereto, no
Default has occurred and is continuing or would result therefrom and (z)
the principal amount so paid, prepaid, purchased, redeemed or defeased,
when aggregated with the amount of Restricted Payments paid under clause
------
(a) does not exceed the Restricted Payment Amount; and
---
(c) make any deposit for any of the foregoing purposes in excess of
the amounts permitted by clause (a) or (b).
---------- ---
SECTION 7.2.7. Capital Expenditures, etc. SIHL will not, and will not
--------------------------
permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in connection with the maintenance of existing assets or to
acquire fixed assets to replace other fixed assets no longer useful in the
business of SIHL and its Subsidiaries which in any Fiscal Year aggregate in
excess of $45,000,000; provided, however, that to the extent the amount of
-------- -------
Capital Expenditures permitted to be made in any Fiscal Year without giving
effect to this proviso (the "Base Amount") exceeds the aggregate amount of
-----------
Capital Expenditures actually made during such Fiscal Year, such excess
amount may be carried forward to (but only to) the next succeeding Fiscal
Year (any such amount to be certified by SIHL to the Administrative Agent in
the Compliance Certificate delivered for the last Fiscal Quarter of such
Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year
shall be deemed to be used prior to SIHL and its Subsidiaries using the Base
Amount for such succeeding Fiscal Year, without giving effect to such
carry-forward); and provided, further, that in no event may the carry-forward
-------- -------
of unused Capital Expenditures exceed $30,000,000 for any Fiscal Year. The
Lenders acknowledge and agree that, except as to the limitations set forth
above, SIHL and its Subsidiaries shall be permitted to make other Capital
Expenditures.
SECTION 7.2.8. Transactions with Affiliates. SIHL will not, and will not
----------------------------
permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist any arrangement or contract with any of its other Affiliates unless
such arrangement or contract is fair and equitable to SIHL or such Subsidiary
and is an arrangement or contract of the kind which would be entered into by
a prudent Person in the position of SIHL or such Subsidiary with a Person
which is not one of its Affiliates.
SECTION 7.2.9. Restrictive Agreements, etc. The Borrowers will not, and
----------------------------
will not permit any of their respective Significant Subsidiaries to, enter
into any agreement (excluding (i) this Agreement and any other Loan Document,
(ii) in the case of clause (a)(i) below, any agreement governing any
-------------
Indebtedness permitted by clauses (d) or (f) of Section 7.2.2 as to the
----------- ---- -------------
assets financed with the proceeds of such Indebtedness and (iii) in the case
of clause (a) below, as required under applicable laws binding on SINA and
----------
its Subsidiaries) prohibiting
(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or (ii)
ability of SIHL or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of the Borrowers or any of their respective
Significant Subsidiaries to make any payments, directly or indirectly, to
any Borrower by way of dividends, advances, repayments of loans or
advances, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on Investments, or the ability of
any Borrower or any such Significant Subsidiary to make any payment,
directly or indirectly, to any Borrower.
SECTION 7.2.10. Consolidation, Merger, etc. The Borrowers will not, and
---------------------------
will not permit any of their respective Significant Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with, any other
Person, or purchase or otherwise acquire all of the capital stock or all or
substantially all of the assets of any Person (or of any division thereof)
except
(a) any wholly-owned Subsidiary that is a Guarantor may liquidate or
dissolve voluntarily into, and may merge with and into, SIHL or any other
wholly-owned Guarantor, and the assets or stock of any wholly-owned
Subsidiary that is a Guarantor may be purchased or otherwise acquired by
SIHL or any other wholly-owned Subsidiary that is a Guarantor;
(b) so long as no Default of the type set forth in clauses (a)
------------
through (d) of Section 8.1.9 or any other Event of Default has occurred
--- --------------
and is continuing or would occur as a result of, and after giving effect
thereto, SIHL or any of its Subsidiaries may purchase all or substantially
all of the assets or all of the capital stock of any Person if permitted
(without duplication) by Section 7.2.7 to be made as a Capital Expenditure
-------------
or if permitted as an Investment pursuant to clauses (e) or (f) of Section
----------- --- -------
7.2.5; and
------
(c) any Subsidiary that is not a Guarantor, a Borrower nor a
Significant Subsidiary may liquidate or dissolve voluntarily into, and may
merge with and into, any other Subsidiary, a Guarantor or any other
Person.
SECTION 7.2.11. Asset Dispositions, etc. SIHL will not, and will not
------------------------
permit any of its Subsidiaries to sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights (collectively
referred to as a "Disposition"), with respect to, any assets of SIHL or any
-----------
Subsidiary (including accounts receivable and capital stock of Subsidiaries)
to any Person, unless (a) such Disposition is of any Core Asset (or of any
interest therein, including without limitation, the ownership interest in the
Person holding title to such Core Asset or any real property upon which any
Core Asset is situated) and the prior written consent of all Lenders (which
may be granted or withheld in their sole discretion) shall have been
obtained; (b) such Disposition is of the Relinquishment Agreement or the
Omnibus Termination Agreement (or any interest therein, including without
limitation, the ownership interest in the Person(s) holding title to the
Relinquishment Agreement or the Omnibus Termination Agreement) and the prior
written consent of the Required Lenders (which may be granted or withheld in
their sole discretion) shall have been obtained (and in the event of such a
Disposition, all representations, covenants and other provisions in this
Agreement which relate to the agreements so disposed of will be deemed to be
removed from this Agreement and the other Loan Documents); (c) such
Disposition is of any real property contiguous to Core Assets (or of any
interest therein, including without limitation, the ownership interest in the
Person holding title to such real property or any real property upon which
Core Assets are situated) and the terms of such Disposition do not contain
any restrictions, agreements or covenants that will interfere in any material
adverse respect with access to or the operations of any Core Assets; (d) such
Disposition is not a disposition described in clauses (a) through (c) above;
and (e) in the case of any Disposition (including without limitation those
described in the preceding clauses (a) through (d)), the Net Cash Proceeds
(as such term is defined in the Existing Indentures) thereof are applied in
conformity with the provisions of the Existing Indentures and, to the extent
applicable, Section 2.2.2. Notwithstanding the foregoing or any provision of
-------------
this Agreement to the contrary, the Borrowers may consummate the transactions
contemplated by the Trademark Agreement (including, without limitation,
causing the names of the Borrowers and certain Subsidiaries to be changed).
Upon a Disposition permitted by this Section the Lien in favor of the Secured
Parties upon the assets so sold, transferred, leased, contributed or conveyed
shall automatically terminate and be released.
SECTION 7.2.12. Modification of Certain Agreements. SIHL will not, and
----------------------------------
will not permit any of its Subsidiaries to, agree to or, in the case of the
Relinquishment Agreement, vote in favor of, any material amendment or other
modification to the Relinquishment Agreement, the Omnibus Termination
Agreement, or (to the extent not restricted by law) permit the Relinquishment
Agreement or the Omnibus Termination Agreement to be materially amended
without the prior written consent of the Required Lenders, which may be
withheld in the sole discretion of the Required Lenders; it being
acknowledged and agreed by the parties hereto that any amendment or other
modification which would have the effect of (i) reducing any fees paid to
SIHL or any Subsidiary under the Relinquishment Agreement, (ii) shortening
the term of the Relinquishment Agreement or (iii) allowing the fees or other
amounts payable under the Relinquishment Agreement to be paid to any Person
or Persons other than TCA, SIHL or a Guarantor, shall, in each case, be
deemed to be material.
SECTION 7.2.13. Modification of Subordinated Debt Documents. (a) Without
-------------------------------------------
the prior written consent of the Required Lenders, SIHL will not, and will
not permit any of its Subsidiaries to, consent to any amendment, supplement
or other modification of any of the terms or provisions contained in, or
applicable to, any Subordinated Debt (including any Subordinated Note
Indenture or any of the Subordinated Notes), or any guarantees delivered in
connection with any Subordinated Debt (collectively, the "Restricted
-----------
Agreements"), or make any payment in order to obtain an amendment thereof or
----------
change thereto, if the effect of such amendment, supplement, modification or
change is to (i) increase the principal amount of, or increase the interest
rate on, or add or increase any fee with respect to such Subordinated Debt or
any such Restricted Agreement, advance any dates upon which payments of
principal or interest are due thereon or change any of the covenants with
respect thereto in a manner which is more restrictive to SIHL or any of its
Subsidiaries or (ii) change any event of default or condition to an event of
default with respect thereto, change the redemption, prepayment or defeasance
provisions thereof or change the Subordination Provisions thereof.
(b) Without the prior written consent of the Required Lenders, SIHL
will not, and will not permit any of its Subsidiaries to, consent to any
amendment, supplement or other modification of any of the terms or
provisions contained in, or applicable to, any senior debt permitted under
Section 7.2.2(l) or any guarantees delivered in connection with any such
-----------------
senior debt if the effect of such amendment, supplement, modification or
change is to advance any dates upon which payments of principal are due
thereon to a date prior to November 1, 2007.
SECTION 7.2.14. Rate Protection Agreements. SIHL will not, and will not
--------------------------
permit any of its Subsidiaries to, enter into any Rate Protection Agreements
with an aggregate notional principal amount of Indebtedness in excess of
$350,000,000.
SECTION 7.2.15. Assets/Revenues in Other than Significant Subsidiaries.
------------------------------------------------------
SIHL will not permit more than (i) 15% of the consolidated revenues of SIHL
and its Subsidiaries during any Fiscal Quarter or (ii) 15% of the
consolidated assets of SIHL and its Subsidiaries at the end of any Fiscal
Quarter, to be generated or owned by other than the Borrowers or Significant
Subsidiaries that are Guarantors.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
----------------------------
or occurrences described in this Section 8.1 shall constitute an "Event of
----------- ---------
Default".
-------
SECTION 8.1.1. Non-Payment of Obligations. Any Borrower shall default
--------------------------
(i) in the payment or prepayment when due of any principal on any Credit
Extension or repayment of any Reimbursement Obligation, or (ii) in the
payment when due of any interest on any Credit Extension or any commitment
fee (and such default shall continue unremedied for a period of three
Business Days), or (iii) in the payment of any other Obligation (and such
default shall continue unremedied for a period of 15 days following the
submission of an invoice to the relevant Borrower and SIHL in respect of such
other Obligation).
SECTION 8.1.2. Breach of Warranty. The representations and warranties of
------------------
SIHL or any other Obligor made or deemed to be made hereunder or in any other
Loan Document executed by it or any other writing or certificate furnished by
or on behalf of any Obligor to the Administrative Agent, the Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to
Article V) is or shall be incorrect when made in any material respect.
---------
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. Any
----------------------------------------------------
Borrower shall default in the due performance and observance of any of its
obligations under Sections 7.1.1, 7.1.4, 7.1.6 or 7.1.7 or Section 7.2.
-------------- ----- ----- ----- -----------
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
--------------------------------------------------
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 15 days after notice
thereof shall have been given to the relevant Obligor and SIHL by the
Administrative Agent.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
-----------------------------
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of any Borrower or any Significant Subsidiary
-------------
having a principal amount, individually or in the aggregate, in excess of
$7,500,000, or a default shall occur in the performance or observance of any
obligation or condition with respect to such Indebtedness of any Borrower or
any Significant Subsidiary which results in the acceleration of the maturity
of any such Indebtedness or such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or holders of such
Indebtedness of any Borrower or any Significant Subsidiary, or any trustee or
agent for such holders, to cause such Indebtedness to become due and payable
prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
---------
in excess of $7,500,000 (to the extent not covered by insurance (other than
self-insurance)) shall be rendered against any Borrower or any Significant
Subsidiary and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
-------------
with respect to any Pension Plan
(a) the institution of any steps by any Borrower, any member of
their respective Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, such Borrower or any
such member could be required to make a contribution to such Pension Plan,
or would reasonably expect to incur a liability or obligation to such
Pension Plan, that would be secured under existing law or otherwise prior
to or pari passu with the Secured Parties, in an amount in excess of
$5,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA for an
amount in excess of $5,000,000.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
-----------------
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Borrower or any of their
----------------------------
respective Significant Subsidiaries or any Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for such Person or any
property of any thereof, or make a general assignment for the benefit of
creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Person or for a substantial part
of the property of any thereof, and such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days, provided that
each such Person hereby expressly authorizes the Administrative Agent, the
Issuer and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend their
rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of any such Person, and, if any such
case or proceeding is not commenced by such Person, such case or
proceeding shall be consented to or acquiesced in by such Person or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that each such Person hereby expressly authorizes
the Administrative Agent, the Issuer and each Lender to appear in any
court conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
----------------------------
Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any Obligor party thereto; SIHL
or any other Obligor or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by such Loan Document.
SECTION 8.1.11. Amendments to, or Termination of, Certain Agreements.
----------------------------------------------------
Subject to Section 7.2.11(b), the Relinquishment Agreement or the Omnibus
-----------------
Termination Agreement shall, in whole or in part, be amended, supplemented,
modified, terminated, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any party thereto, in each case if the
effect of such amendment, supplement, modification, termination or other
action, is materially adverse to the financial condition, operations, assets,
business or properties of SIHL and its Subsidiaries, taken as a whole.
SECTION 8.1.12. Loss of Bahamian Approvals. The approval of the Exchange
--------------------------
Control of The Central Bank of The Commonwealth of The Bahamas with respect
to this Agreement or the Notes delivered by SIBL or SIHL, and the undertaking
to make available to SIBL or SIHL and the other Obligors such foreign
exchange as may be necessary to enable SIBL or SIHL and the other Obligors to
fulfill their payment obligations in Dollars, ceases to be in full force and
effect and SIBL or SIHL shall fail to renew the same within 30 days or
alternative arrangements shall not have been made by SIBL or SIHL for payment
of the Obligations in Dollars.
SECTION 8.1.13. Loss or Revocation of Casino License. Any Casino License
-------------------------------------
is revoked, suspended, rescinded, denied or not renewed when required in
accordance with its terms and as a result the casino or casinos governed
thereby are not able to operate for a period of 14 or more days.
SECTION 8.1.14. Loss of Property; Change in Management. SIBL or any of the
--------------------------------------
Obligors or any material part of the revenues or assets of SIBL, the Obligors
or the Bahamas Property (as the case may be) is seized, nationalized,
expropriated or compulsorily purchased or any applicable authority resolves
to make an order for such seizure, nationalization, expropriation or
compulsory purchase or the management of SIBL or any Obligor is wholly or
partially displaced or its authority in the conduct of its business is wholly
or partially curtailed and such action would reasonably be expected to have a
material adverse effect on the financial condition, operations, assets,
business or properties of SIHL and its Subsidiaries, taken as a whole.
SECTION 8.1.15. Failure of Subordination. The subordination provisions
------------------------
relating to any Subordinated Note Indenture or contained in any Subordinated
Notes (the "Subordination Provisions") shall fail to be enforceable by the
------------------------
Lender Parties (which have not effectively waived the benefits thereof) in
accordance with the terms thereof, or the principal or interest on any Loan,
Reimbursement Obligation or other monetary Obligations shall fail to
constitute Senior Indebtedness, "Senior Debt" or the same (or any other
similar) term used to define the monetary Obligations; or any Subordinated
Debt Issuer (or guarantor of any Subordinated Debt) shall, directly or
indirectly, disavow or contest in any manner (i) the effectiveness, validity
or enforceability of any of the Subordination Provisions, or (ii) that any of
such Subordination Provisions exist for the benefit of the Lender Parties.
SECTION 8.1.16. Redemption. Any judgment shall be entered in favor of a
----------
Subordinated Noteholder rescinding the Subordination Provisions of any
Subordinated Debt or any event shall occur which, under the terms of or any
other agreement or Subordinated Note Indenture, as the case may be, shall
require any Subordinated Debt Issuer to purchase, redeem or otherwise acquire
or offer to purchase, redeem or otherwise acquire all or any portion of the
principal amount of any such Subordinated Debt prior to its final stated
maturity date (other than as a result of the conversion of such Subordinated
Debt into the equity of SIHL without the requirement of any monetary
consideration being paid by or on behalf of SIHL).
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
--------------------
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
----------- --- -------------
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
--------------------------------
(other than any Event of Default described in clauses (a) through (d) of
----------- ---
Section 8.1.9) shall occur for any reason, whether voluntary or involuntary,
-------------
and be continuing, the Administrative Agent, upon the direction of the
Required Lenders, shall by notice to the Borrowers declare all or any portion
of the outstanding principal amount of the Loans and other Obligations to be
due and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
ARTICLE IX
THE ADMINISTRATIVE AGENT,
CO-SYNDICATION AGENTS AND
CO-DOCUMENTATION AGENTS
SECTION 9.1. Actions. Each Lender and the Issuer hereby appoint CIBC as
-------
its Administrative Agent under and for purposes of this Agreement and each
other Loan Document. Each Lender and the Issuer authorize the Administrative
Agent to act on behalf of the Issuer or Lender under this Agreement and each
other Loan Document as Administrative Agent and, in the absence of other
written instructions from the Required Lenders received from time to time by
the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or
as otherwise advised by counsel), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of such Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Each Lender and the Issuer hereby indemnify (which
indemnity shall survive any termination of this Agreement) the Administrative
Agent according to such Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against, the Administrative Agent in any way relating to or
arising out of this Agreement and any other Loan Document, including
reasonable attorneys' fees, and as to which the Administrative Agent is not
reimbursed by an Obligor; provided, however, that no Lender or Issuer shall
-------- -------
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted solely from the
Administrative Agent's gross negligence or willful misconduct. The
Administrative Agent shall not be required to take, or omit to take, any
action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement or any other Loan
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of the Administrative Agent shall be or become, in the
Administrative Agent's determination, inadequate, the Administrative Agent
may call for additional indemnification from the Lenders and cease to do the
acts indemnified against hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
----------------------
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of
such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender
severally and each Borrower jointly and severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date the Administrative Agent
made such amount available to the applicable Borrower to the date such amount
is repaid to the Administrative Agent, at the interest rate applicable at the
time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent nor any of
-----------
its directors, officers, employees or agents shall be liable to any Secured
Party for any action taken or omitted to be taken by it under this Agreement
or any other Loan Document, or in connection herewith or therewith, except
for its own willful misconduct or gross negligence, nor responsible for any
recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, nor for the creation, perfection or priority of any Liens purported
to be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security,
nor to make any inquiry respecting the performance by any Obligor of its
obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by the Administrative Agent shall not obligate it to make
any further inquiry or to take any action. The Administrative Agent shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Administrative
Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
---------
any time upon at least 60 days' prior notice to SIHL and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which, with the
prior written consent of SIHL, not to be unreasonably withheld or delayed,
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any State
thereof) or a U.S. branch or agency of a commercial banking institution, and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder, such
successor Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as the
Administrative Agent, the provisions of (i) this Article IX shall inure to
----------
its benefit as to any actions taken or omitted to be taken by it while it was
the Administrative Agent under this Agreement and (ii) Section 10.3 and
------------
Section 10.4 shall continue to inure to its benefit.
------------
SECTION 9.5. Loans by Agents. Each Agent shall have the same rights and
---------------
powers with respect to (x) the Credit Extensions made by either of them or
any of their respective Affiliates, and (y) the Notes held by either of them
or any of their respective Affiliates as any other Lender and may exercise
the same as if it were not an Agent, as applicable. Each of Agent and their
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with any Borrower or any Subsidiary or
Affiliate of SIHL as if such Agent were not an Agent hereunder, including
being a counterparty to a Rate Protection Agreement.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
----------------
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the
other Loan Documents and such other documents, information and investigations
as such Lender has deemed appropriate, made its own credit decision to extend
its Commitment. Each Lender also acknowledges that it will, independently of
each Agent and each other Lender, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this
Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
------------
notice to each Lender of each notice or request required or permitted to be
given to such Agent by any Borrower pursuant to the terms of this Agreement
unless concurrently delivered to the Lenders by a Borrower. The
Administrative Agent will distribute to each Lender each document or
instrument received for its account and copies of all other communications
received by the Administrative Agent from each Borrower for distribution to
the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 9.8. Administrative Agent Independent Rights. Each of the
---------------------------------------
parties hereto hereby agrees that (i) the Administrative Agent will be a
joint and several creditor of each and every Obligation of each Borrower and
the Obligors under the Credit Agreement and each other Loan Document,
(ii) subject to the provisions hereof, the Administrative Agent shall have
its own independent right to demand performance by a Borrower and each other
Obligor of the Obligations under this Agreement and each other Loan Document
and (iii) any payments made directly to the Administrative Agent in respect
of the Obligations shall have been deemed to have been made by such Borrower
or such other Obligor for the benefit of the Lender Parties.
SECTION 9.9. The Co-Syndication Agents, the Co-Documentation Agents, the
------------------------------------------------------------
Co-Lead Arrangers and the Joint Book Runners. Notwithstanding anything else
--------------------------------------------
to the contrary contained in this Agreement or any other Loan Document, none
of the Co-Syndication Agents, the Co-Documentation Agents, the Co-Lead
Arrangers or the Joint Book Runners, in such capacities, shall have any
rights, duties or responsibilities under this Agreement or any other Loan
Document, or any fiduciary relationship with any Secured Party, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any Loan Document or
otherwise exist against any Co-Syndication Agent, Co-Documentation Agent,
Co-Lead Arranger or Joint Book Runner in such capacity.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
-------------------------
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented
to by the Borrowers and the Required Lenders; provided, however, that no such
-------- -------
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders shall be effective unless consented to by each
Lender;
(b) modify this Section 10.1, decrease the percentage contained in
------------
the definition of "Required Lenders", release (i) all or substantially all
collateral security or (ii) a Guarantor from its obligations under a
Guaranty or under Section 3.4, except as otherwise specifically provided
-----------
in any Loan Document, or extend the Commitment Termination Date shall be
made without the consent of each Lender (it being agreed that no consent
need be obtained in the case of the release of collateral in accordance
with Section 7.2.11);
--------------
(c) increase the aggregate amount of Credit Extensions required to
be made by or participated in by a Lender, reduce any fees described in
Article III payable to a Lender, extend the due date for, or reduce the
------------
amount of, any scheduled repayment or prepayment of principal of or
interest on any Loan (or reduce the principal amount of or rate of
interest on any Loan) of a Lender shall be made without the consent of
such adversely affected Lender;
(d) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(e) affect adversely the interests, rights or obligations of any
Agent in its capacity as an Agent or the Issuer in its capacity as the
Issuer shall be made without consent of such Agent or the Issuer, as the
case may be; or
(f) waive payment defaults shall be made without the consent of each
Lender.
No failure or delay on the part of any Lender Party in exercising any power
or right under this Agreement or any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on any Borrower or any other
Obligor in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any Lender under this
Agreement or any other Loan Document shall, except as may be otherwise stated
in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver
or approval thereafter to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
-------
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth below its signature hereto or
set forth in the Lender Assignment Agreement or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid
or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when received.
SECTION 10.3. Payment of Costs and Expenses. The Borrowers jointly and
-----------------------------
severally agree to pay on demand all expenses of the Administrative Agent
(including reasonable out-of-pocket expenses incurred by the Administrative
Agent in connection with the reasonable fees and out-of-pocket expenses of
counsel to the Administrative Agent and of local counsel, if any, who may be
retained by counsel to the Administrative Agent) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of any Collateral
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements and modifications to any thereof
and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms
hereof or of any Collateral Document or any other Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrowers further jointly and severally agree to pay, and to save the
Administrative Agent, the Issuer and the Lenders harmless from all liability
for, any stamp or other taxes which may be payable in connection with the
execution or delivery of this Agreement, the Credit Extensions hereunder, or
the issuance of the Notes or any other Loan Documents. The Borrowers also
jointly and severally agree to reimburse the Administrative Agent, the Issuer
and each Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) incurred by the Administrative
Agent, the Issuer or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by each Lender and the extension of the
Commitment, the Borrowers hereby jointly and severally indemnify, exonerate
and hold each of the Agents, the Issuer, the Co-Lead Arrangers, the Joint
Book Runners and each Lender and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties")
-------------------
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
------------
Liabilities"), incurred by the Indemnified Parties or any of them as a result
-----------
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties, so long as the same
shall not have constituted a breach thereof by such Indemnified Party
(including any action brought by or on behalf of any Borrower as the
result of any determination by the Required Lenders pursuant to Article V
---------
not to fund any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by SIHL or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or not
such Agent, the Issuer or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by SIHL or any of its
Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by SIHL or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries,
costs, expenses or claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the control of, SIHL or
such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrowers
jointly and severally hereby agree to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrowers under Sections
-------- ---------
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
--- --- --- --- ---- ----
Section 9.1, shall in each case survive any termination of this Agreement,
-----------
the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by each Obligor in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
------------
Loan Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
--------
each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
----------------------------------------------
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be executed by each Borrower and the Agents and be deemed to
be an original and all of which shall constitute together but one and the
same agreement. This Agreement shall become effective when (i) counterparts
hereof executed on behalf of the Borrowers, the Issuer, the Agents and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall
have been received by the Administrative Agent and notice thereof shall have
been given by the Administrative Agent to SIHL and each Lender, (ii) the
conditions precedent set forth in Section 5.1 shall have been satisfied or
-----------
waived in full, and (iii) the Administrative Agent (or, in the case of
amounts payable under the Fee Letters, the applicable Lender) shall have
received for its own account, or for the account of such Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
------------
and 10.3, if then invoiced.
----
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
-------------------------------
AND EACH OTHER LOAN DOCUMENT (OTHER THAN THE FOREIGN PLEDGE AGREEMENTS, THE
MORTGAGES AND THE DEBENTURES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement and the other Loan Documents (including the Fee Letters) constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written or
oral, with respect thereto. In the event of any conflict between the terms
and conditions of this Agreement and the terms and conditions of any
Debentures or the Mortgages the terms and conditions of this Agreement shall
prevail.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
-------- -------
(a) neither any Borrower nor any other Obligor may assign or
transfer its rights or obligations hereunder without the prior written
consent of all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
-------------
SECTION 10.11. Sale and Transfer of Loans and Note; Participations in
-------------------------------------------------------
Loans and Note. Each Lender may assign, or sell participations in, its
--------------
Loans, Letters of Credit participations and Commitment to one or more other
Persons in accordance with this Section 10.11.
-------------
SECTION 10.11.1. Assignments.
-----------
(a) Each Commitment, Loan, Letter of Credit or participation
therein, or other Obligation may (a) be assigned in any amount to another
Lender or to an Affiliate or Approved Fund of the assigning Lender or
another Lender with the giving of notice to the Borrowers and the
Administrative Agent or (b) be assigned in an aggregate amount of not less
than $5,000,000 (or such lesser amount as shall constitute the aggregate
amount of the Commitments, Loans, Letters of Credit and participations
therein, and other Obligations of the assigning Lender) to any other
Eligible Assignee (treating any two or more Approved Funds with the same
investment advisor as a single Eligible Assignee) (each such assignee in
clauses (a) and (b) being an "Assignee Lender") with the giving of notice
to the Borrowers and with the consent of the Borrowers (unless an Event of
Default has occurred and is continuing) and the Administrative Agent
(which consent of the Borrowers and the Administrative Agent shall not be
unreasonably withheld or delayed), provided that, in the case of any
--------
assignment to an Affiliate or Approved Fund of the assigning Lender, the
Borrowers shall not be required to pay any amount under Sections 4.3, 4.4,
------------------
4.5 or 4.6 that is greater than the amount which it would have been
----------
required to pay had no assignment to an Affiliate or Approved Fund been
made. To the extent of any such assignment in accordance with either
clause (a) or (b) above, the assigning Lender shall be relieved of its
obligations with respect to its Commitments, Loans, Letters of Credit or
participations therein, or other Obligations or the portion thereof so
assigned. The parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the
Register, a Lender Assignment Agreement, together with a processing and
recordation fee of $3,500 (provided that (i) no such processing and
--------
recordation fee shall be payable if the Assignee Lender is an Affiliate of
the assignor or a Person under common management with the assignor, and
(ii) only one such fee shall be required in connection with a simultaneous
assignment to a group of Approved Funds with the same investment advisor)
and such forms (including an administrative questionnaire if the Assignee
Lender was not previously a Lender), certificates or other evidence, if
any, with respect to United States federal income tax withholding matters
as the Assignee Lender under such Lender Assignment Agreement may be
required to deliver to the Borrowers and the Administrative Agent pursuant
to Section 4.6. Upon such execution, delivery, acceptance and recordation,
-----------
from and after the effective date specified in such Lender Assignment
Agreement, (y) the Assignee Lender thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder, and (z) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Lender Assignment Agreement, relinquish
its rights (other than any rights which expressly survive the termination
of this Agreement) and be released from its obligations under this
Agreement (and, in the case of a Lender Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto;
provided that, anything contained in any of the Loan Documents to the
contrary notwithstanding, if such Lender is the Issuer with respect to any
outstanding Letters of Credit such Lender shall continue to have all
rights and obligations of the Issuer with respect to such Letters of
Credit until the cancellation or expiration of such Letters of Credit and
the reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such Assignee
Lender and any remaining Commitment of such assigning Lender and the
assigning Lender shall, upon the effectiveness of such assignment or as
promptly thereafter as practicable, surrender its applicable Notes, if
any, to Administrative Agent for cancellation, and thereupon new Notes
shall, if so requested by the Assignee Lender and/or the assigning Lender,
be issued to the Assignee Lender and/or the assigning Lender, to reflect
the new Commitments and/or outstanding Loans of the Assignee Lender and/or
the assigning Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
-------
10.11.1(a) 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 Section 10.11.2.
---------------
(b) Upon its receipt of a Lender Assignment Agreement executed by an
assigning Lender and an Assignee Lender representing that it is an
Eligible Assignee, together with the processing and recordation fee (if so
required) referred to in Section 10.11.1(a) and any forms, certificates or
------------------
other evidence with respect to United States federal income tax
withholding matters that such Assignee Lender may be required to deliver
to the Administrative Agent pursuant to Section 4.6, the Administrative
-----------
Agent shall, if the Administrative Agent (and if necessary, the Borrower)
has consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to Section 10.11.1(a)), (a)
--------------------
accept such Lender Assignment Agreement by executing a counterpart thereof
as provided therein (which acceptance shall evidence any required consent
of the Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to the Borrowers. The Administrative Agent shall maintain a copy
of each Lender Assignment Agreement delivered to and accepted by it as
provided in this Section 10.11.1(b).
------------------
(c) If the consent of the Borrowers to an assignment or to an
Eligible Assignee is required hereunder (including a consent to an
assignment which does not meet the minimum assignment thresholds specified
in Section 10.11.1(a)), the Borrowers shall be deemed to have given their
------------------
consent ten Business Days after the date notice thereof has been delivered
by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Borrowers prior to such fifth Business
Day.
(d) Notwithstanding anything to the contrary set forth above, any
Lender may (without requesting the consent of any Borrower or the
Administrative Agent) pledge its Loans to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve Bank.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
--------------
more commercial banks or other financial institutions (each of such
commercial banks and other financial institutions being herein called a
"Participant") participating interests in any of the Loans, Loan Commitment,
------------
Letter of Credit Commitment and Letter of Credit Outstandings participated in
by it, or other interests of such Lender hereunder; provided, however, that
-------- -------
(a) no participation contemplated in this Section 10.11 shall
--------------
relieve such Lender from its Commitment or its other obligations hereunder
or under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations;
(c) each Obligor and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, and no Lender shall take or refrain from taking any action
hereunder or under any other Loan Document upon the instruction or in
accordance with the direction of any Participant except that such Lender
may agree with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in clause
------
(b) or (c) of Section 10.1; and
--- --- ------------
(e) no Obligor shall be required to pay any amount under Section
-------
4.3, 4.4, 4.5, or 4.6 that is greater than the amount which it would have
----------------------
been required to pay had no participating interest been sold.
Each Obligor acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
------------ --- --- --- --- --- ---- ----
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall
------------------
preclude any Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with SIHL or any of its Affiliates in which SIHL or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY
-------------------------------------------
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY AGENT, THE
ISSUER, THE LENDERS, OR THE OBLIGORS SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL
-------- -------
OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE
FOUND. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK AND
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. EACH BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS
(THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 111 EIGHTH
-------------
AVENUE, 00xx XXXXX, XXX XXXX, XXX XXXX 00000, XXXXXX XXXXXX, AS ITS AGENT TO
RECEIVE, ON SUCH PERSON'S BEHALF AND ON BEHALF OF SUCH PERSON'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH
MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY
MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH PERSON IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE
ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT SUCH BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE
OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. EACH AGENT, THE ISSUER, THE LENDERS,
--------------------
EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUER,
THE LENDERS OR THE BORROWERS. EACH BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE ISSUER, AND THE
LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Judgment Currency. The Obligations of each Borrower and
-----------------
each other Obligor in respect of any sum due to any Lender or the
Administrative Agent hereunder, under the Notes or under or in respect of any
other Loan Document shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum was originally
------------------
denominated (the "Original Currency"), be discharged only to the extent that
-----------------
on the Business Day following receipt by such Lender or the Administrative
Agent of any sum adjudged to be so due in the Judgment Currency, such Lender
or the Administrative Agent, in accordance with normal banking procedures,
purchases the Original Currency with the Judgment Currency. If the amount of
Original Currency so purchased is less than the sum originally due to such
Lender or the Administrative Agent, each Borrower agrees as a separate
obligation and notwithstanding any such judgment, to indemnify each Lender
and the Administrative Agent, as the case may be, against such loss, and if
the amount of Original Currency so purchased exceeds the sum originally due
to such Lender and the Administrative Agent, as the case may be, each Lender
and the Administrative Agent agree to remit any excess to the applicable
Obligor. If, for the purpose of obtaining judgment in any court, it is
necessary to convert a sum due under any Loan Document in another currency
into Dollars or into a Foreign Currency, as the case may be, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which, in accordance with normal
banking procedures, the applicable Secured Party could purchase such other
currency with Dollars or with such Foreign Currency, as the case may be, in
New York City, at the close of business on the Business Day immediately
preceding the day on which final judgment is given, together with any
premiums and costs of exchange payable in connection with such purchase.
SECTION 10.16. Confidentiality. Each of the Lenders and the Agents shall
---------------
keep confidential all non-public information obtained pursuant to the
requirements of or in connection with this Agreement which has been
identified as such by SIHL in accordance with their customary procedures for
handling confidential information of this nature and in accordance with safe
and sound banking practices. Subject to Sections 10.11.1 and 10.11.2, such
---------------- -------
Lenders and Agents may make disclosure (i) to prospective Assignee Lenders or
Participants in connection with the contemplated assignment or participation
of all or any part of their Loans and Commitment so long as any such
information so disclosed is identified as confidential and such prospective
Assignee Lender or Participant is instructed to maintain the confidentiality
thereof, (ii) to their examiners, Subsidiaries, outside auditors, counsel and
other professional advisors in connection with this Agreement and (iii) as
required or requested by any governmental authority or representative thereof
or pursuant to legal process; provided that, unless specifically prohibited
--------
by applicable law or court order, each Lender or Agent, as the case may be,
shall endeavor to notify SIHL of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure
of such information; and provided, further, that in no event shall any Lender
-------- -------
be obligated or required to return any materials furnished by any Obligor.
SECTION 10.17. Schedules. The information set forth in the Schedules
---------
(including the Disclosure Schedule) to this Agreement is qualified in its
entirety by reference to the specific provisions of this Agreement and is not
intended to constitute, and shall not be construed as constituting,
representations or warranties of the party to which such Schedules relate
except as and to the extent provided in this Agreement. Inclusion of
information in the Schedules shall not be construed as an admission that such
information is material for purposes of the specific provisions of this
Agreement to which such information relates. Information included in the
Schedules that is not required to be so included under the specific
provisions of this Agreement shall be deemed to be included for information
purposes only and information of a similar nature need not be included
elsewhere, at the discretion of the party providing such information. Any
information disclosed by a party in any Schedule shall be deemed to be
disclosed in all the Schedules of such party and for all purposes under this
Agreement to the extent the specific provisions of this Agreement require
such disclosure.
SECTION 10.18. Replacement of Lenders. Each Lender or the ultimate parent
----------------------
company thereof may be rated by S&P, Xxxxx'x or Xxxxxxxx'x Bank Watch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not
rated by InsuranceWatch Ratings Service)). If a proposed Assignee Lender or
its ultimate parent entity is not so rated, then the Borrowers may withhold
their consent to any assignment to such Assignee Lender pursuant to
Section 10.11.1. In the event that S&P, Xxxxx'x or Xxxxxxxx'x BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not
rated by InsuranceWatch Ratings Service)) shall downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of
any rated Lender or its ultimate parent company, and the resulting rating
shall be below BBB-, Baa3 or C (or BB, in the case of Lender that is an
insurance company (or B, in the case of an insurance company not rated by
InsuranceWatch Ratings Service)), then the Issuer and SIHL shall have the
right, but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace such Lender with an Assignee Lender in
accordance with and subject to the restrictions contained in Section 10.11.1,
---------------
and such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 10.11.1)
---------------
all its interests, rights and obligations in respect of its Commitments,
outstanding Loans and participating interest in Letter of Credit Outstanding
under this Agreement to such Assignee Lender; provided, however, that (i) no
-------- -------
such assignment shall conflict with any law, rule and regulation or order of
any governmental authority, (ii) such Assignee Lender shall pay to such
Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender
hereunder and all other amounts accrued for such Lender's account or owed to
it hereunder and (iii) SIHL and the Issuer agree that the certificate of
deposit rating and long-term senior unsecured debt rating of each Lender or
the ultimate parent company thereof that is a signatory to this Agreement on
the Effective Date (or, if no such rating is available, the "individual"
rating by IBCA Limited (and, if neither rating is available for such original
Lender, then such rating of the parent holding company of such Lender)) is
acceptable, and following the Effective Date such Lender shall be subject to
this Section only if the applicable rating is downgraded below that in effect
on the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
SUN INTERNATIONAL BAHAMAS LIMITED
By:_____________________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx
SUN INTERNATIONAL HOTELS LIMITED
By:_____________________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx
17013259
SUN INTERNATIONAL NORTH AMERICA, INC.
By:_____________________________________
Title:
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx
Table of Contents
(continued)
Page
17013259 -iv-
Table of Contents
Page
17013259 -i-
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..............................2
SECTION 1.1. Defined Terms........................................2
SECTION 1.2. Use of Defined Terms................................27
SECTION 1.3. Cross-References....................................27
SECTION 1.4. Accounting and Financial Determinations.............27
ARTICLE II COMMITMENTS, BORROWING PROCEDURES, NOTES AND LETTERS OF
CREDIT.......................................................27
SECTION 2.1. Amendment and Restatement; Commitments..............27
SECTION 2.2. Reduction/Increase of Commitment Amount.............29
SECTION 2.3. Borrowing Procedure.................................30
SECTION 2.4. Continuation and Conversion Elections...............31
SECTION 2.5. Funding.............................................31
SECTION 2.6. Issuance Procedures.................................31
SECTION 2.7. Currency Fluctuation, etc...........................35
SECTION 2.8. Notes...............................................35
SECTION 2.9. Register............................................35
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES...................35
SECTION 3.1. Repayments and Prepayments..........................35
SECTION 3.2. Interest Provisions.................................36
SECTION 3.3. Fees................................................37
SECTION 3.4. Guaranty Provisions.................................38
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS.......................41
SECTION 4.1. LIBO Rate Lending Unlawful..........................41
SECTION 4.2. Deposits Unavailable................................41
SECTION 4.3. Increased LIBO Rate Loan Costs, etc.................41
SECTION 4.4. Funding Losses......................................42
SECTION 4.5. Increased Capital Costs.............................42
SECTION 4.6. Taxes...............................................43
SECTION 4.7. Payments, Computations, etc.........................44
SECTION 4.8. Sharing of Payments.................................45
SECTION 4.9. Setoff..............................................45
SECTION 4.10. Defaulting Lender...................................46
SECTION 4.11. Replacement Lender..................................46
ARTICLE V CONDITIONS TO EFFECTIVENESS..................................47
SECTION 5.1. Effectiveness.......................................47
SECTION 5.2. All Credit Extensions...............................50
ARTICLE VI REPRESENTATIONS AND WARRANTIES...............................51
SECTION 6.1. Organization, etc...................................51
SECTION 6.2. Due Authorization, Non-Contravention, etc...........51
SECTION 6.3. Government Approval, Regulation, etc................52
SECTION 6.4. Validity, etc.......................................52
SECTION 6.5. Financial Information...............................52
SECTION 6.6. No Material Adverse Change..........................52
SECTION 6.7. Litigation, Labor Controversies, etc................52
SECTION 6.8. Subsidiaries........................................53
SECTION 6.9. Ownership of Properties.............................53
SECTION 6.10. Taxes...............................................53
SECTION 6.11. Pension and Welfare Plans...........................53
SECTION 6.12. Environmental Warranties............................53
SECTION 6.13. Regulations U and X.................................55
SECTION 6.14. Accuracy of Information.............................55
SECTION 6.15. Protection under Security Instruments...............55
SECTION 6.16. No Condemnation Proceedings.........................55
SECTION 6.17. Insurance...........................................56
SECTION 6.18. Seniority of Obligations, etc.......................56
ARTICLE VII COVENANTS....................................................56
SECTION 7.1. Affirmative Covenants...............................56
SECTION 7.2. Negative Covenants..................................62
ARTICLE VIII EVENTS OF DEFAULT............................................70
SECTION 8.1. Listing of Events of Default........................70
SECTION 8.2. Action if Bankruptcy................................73
SECTION 8.3. Action if Other Event of Default....................74
ARTICLE IX THE ADMINISTRATIVE AGENT, CO-SYNDICATION AGENTS AND
CO-DOCUMENTATION AGENTS......................................74
SECTION 9.1. Actions.............................................74
SECTION 9.2. Funding Reliance, etc...............................75
SECTION 9.3. Exculpation.........................................75
SECTION 9.4. Successor...........................................75
SECTION 9.5. Loans by Agents.....................................76
SECTION 9.6. Credit Decisions....................................76
SECTION 9.7. Copies, etc.........................................76
SECTION 9.8. Administrative Agent Independent Rights.............76
SECTION 9.9. The Co-Syndication Agents, the Co-Documentation
Agents, the Co-Lead Arrangers and the Joint
Book Runners........................................76
ARTICLE X MISCELLANEOUS PROVISIONS.....................................77
SECTION 10.1. Waivers, Amendments, etc............................77
SECTION 10.2. Notices.............................................78
SECTION 10.3. Payment of Costs and Expenses.......................78
SECTION 10.4. Indemnification.....................................78
SECTION 10.5. Survival............................................79
SECTION 10.6. Severability........................................79
SECTION 10.7. Headings............................................80
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.......80
SECTION 10.9. Governing Law; Entire Agreement.....................80
SECTION 10.10. Successors and Assigns..............................80
SECTION 10.11. Sale and Transfer of Loans and Note;
Participations in Loans and Note....................80
SECTION 10.12. Other Transactions..................................83
SECTION 10.13. Forum Selection and Consent to Jurisdiction.........83
SECTION 10.14. Waiver of Jury Trial................................84
SECTION 10.15. Judgment Currency...................................84
SECTION 10.16. Confidentiality.....................................85
SECTION 10.17. Schedules...........................................85
SECTION 10.18. Replacement of Lenders..............................86
Table of Contents
(continued)
SECTION PAGE
------- ----
17013259 -iv-
Table of Contents
SECTION PAGE
------- ----
17013259 -iv-
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Debentures
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Borrower Effective Date Certificate
EXHIBIT F - Form of Compliance Certificate
EXHIBIT G Form of Perfection Certificate
EXHIBIT H Form of Total Leverage Ratio Certificate