EXECUTION VERSION
BRIDGE CREDIT AGREEMENT
dated as of
February 1, 2002
among
▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY
COORS BREWING COMPANY
The Lenders Party Hereto
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
BANK ONE, N.A.
FIRST UNION NATIONAL BANK,
as Co-Documentation Agents,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Syndication Agent,
JPMORGAN CHASE BANK,
as Administrative Agent
and
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED,
as London Agent
___________________________
JPMORGAN CHASE BANK
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
BANK ONE, N.A.
FIRST UNION SECURITIES, INC.,
as Co-Arrangers
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms 1
SECTION 1.02. Classification of Loans and Borrowings 14
SECTION 1.03. Terms Generally 14
SECTION 1.04. Accounting Terms; GAAP 14
SECTION 1.05. Exchange Rates 15
ARTICLE II
The Credits
SECTION 2.01. Commitments 15
SECTION 2.02. Loans and Borrowings 15
SECTION 2.03. Requests for Borrowings 15
SECTION 2.04. [omitted] 16
SECTION 2.05. Funding of Borrowings 16
SECTION 2.06. Interest Elections 16
SECTION 2.07. Termination and Reduction of Commitments 17
SECTION 2.08. Repayment of Loans; Evidence of Debt 18
SECTION 2.09. [omitted] 18
SECTION 2.10. Prepayment of Loans 18
SECTION 2.11. Fees 19
SECTION 2.12. Interest 19
SECTION 2.13. Alternate Rate of Interest 20
SECTION 2.14. Increased Costs 20
SECTION 2.15. Break Funding Payments 21
SECTION 2.16. Taxes 21
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs 22
SECTION 2.18. Mitigation Obligations; Replacement of Lenders 23
SECTION 2.19. [omitted] 24
SECTION 2.20. Additional Reserve Costs 24
SECTION 2.21. Redenomination of Certain Designated Foreign Currencies 24
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers 25
SECTION 3.02. Authorization; Enforceability 25
SECTION 3.03. Governmental Approvals; No Conflicts 25
SECTION 3.04. Financial Condition; No Material Adverse Change 25
SECTION 3.05. Properties 26
SECTION 3.06. Litigation and Environmental Matters 26
SECTION 3.07. Compliance with Laws and Agreements 26
SECTION 3.08. Investment and Holding Company Status 26
SECTION 3.09. Taxes 26
SECTION 3.10. ERISA 26
SECTION 3.11. Disclosure 27
SECTION 3.12. Margin Stock 27
SECTION 3.13. Subsidiaries; Guarantee Requirement 27
ARTICLE IV
Conditions
SECTION 4.01. Effective Date 27
SECTION 4.02. [omitted] 28
SECTION 4.03. [omitted] 28
SECTION 4.04. [omitted] 28
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information 28
SECTION 5.02. Notices of Material Events 29
SECTION 5.03. Existence; Conduct of Business 30
SECTION 5.04. Payment of Obligations 30
SECTION 5.05. Maintenance of Properties; Insurance 30
SECTION 5.06. Books and Records; Inspection Rights 30
SECTION 5.07. Compliance with Laws 30
SECTION 5.08. Use of Proceeds 30
SECTION 5.09. Guarantee Requirement 30
SECTION 5.10. Indebtedness 30
SECTION 5.11. Senior Notes 31
ARTICLE VI
Negative Covenants
SECTION 6.01. Subsidiary Indebtedness 31
SECTION 6.02. Liens 32
SECTION 6.03. Sale and Leaseback Transactions 33
SECTION 6.04. Fundamental Changes 33
SECTION 6.05. Transactions with Affiliates 33
SECTION 6.06. Leverage Ratio 33
SECTION 6.07. Interest Coverage Ratio 33
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default 34
SECTION 7.02. [omitted] 35
SECTION 7.03. [omitted] 35
ARTICLE VIII
Guarantee 35
ARTICLE IX
The Agents 36
ARTICLE X
Miscellaneous
SECTION 10.01. Notices 38
SECTION 10.02. Waivers; Amendments 39
SECTION 10.03. Expenses; Indemnity; Damage Waiver 40
SECTION 10.04. Successors and Assigns 40
SECTION 10.05. Survival 42
SECTION 10.06. Counterparts; Integration; Effectiveness 42
SECTION 10.07. Severability 43
SECTION 10.08. Right of Setoff 43
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process 43
SECTION 10.10. WAIVER OF JURY TRIAL 43
SECTION 10.11. Headings 44
SECTION 10.12. Confidentiality 44
SECTION 10.13. Interest Rate Limitation 44
SECTION 10.14. Conversion of Currencies 44
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.17 -- Payment Instructions
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiary Guarantors
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A-1 -- [omitted]
Exhibit A-2 -- [omitted]
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Mandatory Costs Rate
Exhibit D -- Form of Subsidiary Guarantee Agreement
Exhibit E-1 -- Form of Opinion of Assistant Secretary of the Company
Exhibit E-2 -- Form of Opinion of US Counsel to the Company
Exhibit E-3 -- Form of Opinion of UK Counsel to the Company
BRIDGE CREDIT AGREEMENT dated as of February 1,
2002 among ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY, a Colorado
corporation (the "Company"), COORS BREWING COMPANY, a
Colorado corporation ("CBC"), the LENDERS party
hereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as
Syndication Agent, ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as
London Agent, and JPMORGAN CHASE BANK, as
Administrative Agent.
The Company intends to acquire (the "Acquisition") directly
or through wholly owned subsidiaries all the outstanding shares of Bass
Holdings Limited, a company incorporated under the laws of England and
Wales ("BHL"), from Interbrew UK Holdings Limited ("Interbrew UK"),
certain intellectual property of Brandbrew S.A. ("Brandbrew") from
Brandbrew, certain export assets identified in the business purchase
agreement referred to in the Share Purchase Agreement owned by Bass
Brewers Worldwide Ltd. ("BBW") from BBW, the Caffreys brand rights
identified in the assignment agreement made in connection with the Share
Purchase Agreement from BHL (together, the "Acquired Business"). In
connection with the Acquisition, the Company intends to loan BHL the
funds necessary to repay Indebtedness owed to Interbrew UK as specified
in the Share Purchase Agreement and to cause it to repay such
Indebtedness. The aggregate consideration for the Acquisition and the
repayment of such Indebtedness will be approximately 1,200,000,000 British
pound sterling. In connection with the Acquisition, the Company will (a) obtain
the credit facility provided for under this Agreement and (b) establish the
Five-Year Facility (such term and each other capitalized term used but not
otherwise defined herein having the meaning assigned to it in Article I)
in an aggregate principal amount not to exceed $1,100,004,400.
The Borrowers have requested that the Lenders establish the
credit facility provided for herein under which the Borrowers may obtain
Loans in US Dollars or Sterling, in an aggregate principal amount of up
to $825,000,000. The Loans will be used to provide a portion of the
funds required for the purchase of the Acquired Business and to pay
related fees and expenses. The Lenders are willing to establish such
credit facility upon the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base
Rate.
"Acquired Business" has the meaning assigned to such term in
the preamble hereto.
"Acquired Car Leasing Business" means the business carried
on by Bass Brewers Car Leasing.
"Acquisition" has the meaning assigned to such term in the
preamble hereto.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO
Rate for such Interest Period divided by (b) 1.00 minus the Statutory
Reserves applicable to such Eurocurrency Borrowing.
"Administrative Agent" means JPMorgan Chase Bank, in its
capacity as administrative agent for the Lenders hereunder, or any
successor administrative agent appointed in accordance with Article IX.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
"Agents" means, collectively, the Administrative Agent and
the London Agent.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan or
Borrowing denominated in US Dollars, and with respect to any payment
hereunder that does not relate to a particular Loan or Borrowing, the
Administrative Agent and (b) with respect to a Loan or Borrowing
denominated in Sterling, the London Agent.
"Applicable Rate" means, for any day, with respect to any
ABR Loan or Eurocurrency Loan, as the case may be, the applicable rate
per annum set forth below under the caption "ABR Spread", or
"Eurocurrency Spread", as the case may be, based upon the ratings by S&P
and ▇▇▇▇▇'▇, respectively, applicable on such date to the Index Debt:
Index Debt Ratings ABR Eurocurrency
(S&P/▇▇▇▇▇'▇): Spread Spread
Category 1
BBB+/Baa1 or higher 0.000% 0.875%
Category 2
BBB/Baa2 0.000% 1.000%
Category 3
BBB-/Baa3 0.250% 1.250%
Category 4
BBB-/Ba1 or
BB+/Baa3 0.500% 1.500%
Category 5
BB+/Ba1 0.750% 1.750%
Category 6
BB/Ba2 or lower 1.250% 2.250%
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt (other than by
reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have established
a rating in Category 6; (ii) if the ratings established or deemed to
have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall fall
(A) within different Categories but each such rating shall be within a
Category at or above Category 4, the Applicable Rate shall be based on
the higher of the two ratings, unless one of the ratings is two or more
Categories lower than the other, in which case the Applicable Rate shall
be determined by reference to the Category next below that of the higher
of the two ratings, (B) within Category 4, the Applicable Rate shall be
determined by reference to Category 4 and (C) except in the case where
Category 4 applies, within different Categories but at least one of such
ratings shall be within a Category at or below Category 5, the
Applicable Rate shall be determined by reference to the lower of the two
ratings; and (iii) if the ratings established or deemed to have been
established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency, irrespective of when notice
of such change shall have been furnished by the Borrower to the Agent
and the Lenders pursuant to Section 5.01(f) hereof or otherwise. Each
change in the Applicable Rate shall apply during the period commencing
on the effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the rating
system of ▇▇▇▇▇'▇ or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations,
the Company and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability
of ratings from such rating agency and, pending the effectiveness of any
such amendment, the Applicable Rate shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of
any party whose consent is required by Section 10.04), and accepted by
the Administrative Agent, in the form of Exhibit B or any other form
approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale-
Leaseback Transaction, the present value (discounted at the rate set
forth or implicit in the terms of the lease included in such Sale-
Leaseback Transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and
labor costs and other items which do not constitute payments for
property rights) during the remaining term of the lease included in such
Sale-Leaseback Transaction (including any period for which such lease
has been extended). In the case of any lease which is terminable by the
lessee upon payment of a penalty, the Attributable Debt shall be the
lesser of the Attributable Debt determined assuming termination upon the
first date such lease may be terminated (in which case the Attributable
Debt shall also include the amount of the penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the Attributable Debt
determined assuming no such termination.
"BHL" has the meaning assigned to such term in the preamble
hereto.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or CBC.
"Borrowing" means Loans of the same Type made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to
which a single Interest Period is in effect.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in US Dollars, $5,000,000, and (b) in the case of a
Borrowing denominated in Sterling, 5,000,000 British pound sterling.
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, $1,000,000, and (b) in the case of a
Borrowing denominated in Sterling, 1,000,000 British pound sterling.
"Borrowing Request" means a request by a Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are authorized
or required by law to remain closed; provided that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in deposits in
the applicable currency in the London interbank market.
"Calculation Date" means the last Business Day of each
fiscal quarter of the Company.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"CBC" means Coors Brewing Company, a Colorado corporation.
"Change in Control" means (a) at any time when the Permitted
Holders do not beneficially own Equity Interests representing more than
50% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of the Company, the acquisition of
ownership, directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof), other than any Permitted Holder, of
Equity Interests representing more than 30% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests
of the Company; (b) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the Company by Persons who
were neither (i) nominated by the board of directors of the Company nor
(ii) appointed by directors so nominated; or (c) the acquisition of
direct or indirect Control of the Company by any Person or group, other
than any Permitted Holder.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender's holding company, if
any) with any request, guideline or directive (whether or not having the
force of law, but if not having the force of law, being of a type with
which such Person would ordinarily comply) of any Governmental Authority
made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Loans hereunder on the Effective Date,
expressed as an amount representing the maximum principal amount of the
Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $825,000,000.
"Company" means ▇▇▇▇▇▇ ▇▇▇▇▇ Company, a Colorado
corporation.
"Consolidated EBITDA" means, for any period, consolidated
net income of the Company and the Subsidiaries for such period plus,
without duplication and to the extent deducted in determining such
consolidated net income, the sum of (i) Consolidated Interest Expense
for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization (or
other impairment of intangible assets) for such period, (iv) any non-
cash charges for such period (provided, that any cash payment made with
respect to any such non-cash charge shall be subtracted in computing
Consolidated EBITDA during the period in which such cash payment is
made), (v) cash charges for such period related to the sale, transfer or
other disposition of Specified Assets in an aggregate amount for all
periods for all such cash charges not to exceed $50,000,000, and (vi)
extraordinary non-cash losses for such period (provided, that any cash
payments made in respect of items that are the subject of any such
extraordinary non-cash loss shall be subtracted in computing
Consolidated EBITDA during the periods in which such cash payments are
made), determined without giving effect to any extraordinary gains for
such period (other than up to $10,000,000 of extraordinary cash gains
realized in such period) to the extent included in determining
consolidated net income of the Company and the Subsidiaries, all
determined on a consolidated basis in accordance with GAAP; provided
that for the purposes of computing the ratios set forth in Sections 6.06
and 6.07 and identifying the Significant Subsidiaries, Consolidated
EBITDA in respect of the fiscal quarter ending March 31, 2002, and the
fiscal quarters ended December 30, 2001 and September 30, 2001, shall
include the consolidated EBITDA of the Acquired Business, which shall be
deemed to equal for any such quarter (i) if pro forma quarterly
consolidated financial statements of the Acquired Business meeting the
requirements of Regulation S-X under the Securities Act of 1933 are
available, the actual consolidated quarterly EBITDA of the Acquired
Business for such quarter, calculated in the manner set forth above, or
(ii) if such pro forma quarterly consolidated financial statements of
the Acquired Business meeting the requirements of Regulation S-X under
the Securities Act of 1933 are not available, the annual consolidated
EBITDA of the Acquired Business, calculated in the manner set forth
above on the basis of audited annual consolidated financial statements
of the Acquired Business for the four fiscal quarters ended December 30,
2001, divided by four.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Company and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP (and giving
effect on a net basis to payments made or received under interest rate
protection agreements or other interest rate hedging arrangements),
including (a) the amortization of debt discounts to the extent included
in interest expense in accordance with GAAP, (b) the amortization of all
fees (including fees with respect to interest rate protection agreements
or other interest rate hedging arrangements) payable in connection with
the incurrence of Indebtedness to the extent included in interest
expense in accordance with GAAP, (c) commissions, discounts and other
fees and charges owed in respect of letters of credit to the extent
included in interest expense in accordance with GAAP and (d) the portion
of any rents payable under capital leases allocable to interest expense
in accordance with GAAP. For purposes of determining the ratio set
forth in Section 6.07 for the four fiscal quarter periods ended at June
30, 2002, September 29, 2002, and December 29, 2002, Consolidated
Interest Expense shall be determined by multiplying Consolidated
Interest Expense for the period commencing April 1, 2002 by (i) 4, in
the case of the period ended June 30, 2002, (ii) 2, in the case of the
period ended September 29, 2002, and (iii) 4/3, in the case of the
period ended December 29, 2002.
"Consolidated Net Tangible Assets" means, at any time, the
aggregate amount of assets (less applicable accumulated depreciation,
depletion and amortization and other reserves and other properly
deductible items) of the Company and the Subsidiaries, minus (a) all
current liabilities of the Company and the Subsidiaries (excluding (i)
liabilities that by their terms are extendable or renewable at the
option of the obligor to a date more than 12 months after the date of
determination and (ii) current maturities of long-term debt) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other intangible assets of the Company and the
Subsidiaries, all as set forth in the most recent consolidated balance
sheet of the Company and the Subsidiaries delivered pursuant to Section
5.01, determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt" means, on any date, all
Indebtedness of the Company and the Subsidiaries on such date (other
than obligations referred to in clause (i) of the definition of
"Indebtedness" to the extent they support liabilities that do not
themselves constitute Indebtedness), determined, without duplication, on
a consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies
of a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would
become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means a Subsidiary that is not a
Foreign Subsidiary.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with
Section 10.02).
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or operation of
the Euro in one or more member states.
"Environmental Laws" means all applicable and legally
binding laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any
Hazardous Material or to environmental or workplace health and safety
matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any
Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" means shares of capital stock,
partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity
interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) that, together with the Company, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined
in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice
period is waived); (b) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (c) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to
any Plan; (d) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Company or any of its
ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Company or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Euro" or "_" means the single currency of the European
Union as constituted by the Treaty on European Union and as referred to
in the EMU Legislation.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Section 7.01.
"Exchange Rate" means on any day, for purposes of
determining the US Dollar Equivalent of any other currency, the rate at
which such other currency may be exchanged into US Dollars, as set forth
at approximately 11:00 a.m., London time, on such day on the Bloomberg
Index WCR page for such currency, or if such rate does not appear on the
Bloomberg Index WCR, on the Reuters World Currency Page for such
currency. In the event that such rate does not appear on any Reuters
World Currency Page, the Exchange Rate shall be determined by reference
to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Company, or,
in the absence of such an agreement, such Exchange Rate shall instead be
the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such currency are then being conducted, at or
about 10:00 a.m., Local Time, on such date for the purchase of US
Dollars for delivery two Business Days later; provided that if at the
time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent may, after consultation with the
Company, use any reasonable method it deems appropriate to determine
such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" means, with respect to any Lender or Agent,
(a) income or franchise taxes imposed on (or measured by) its net income
or net profits by the United States of America (or any political
subdivision thereof), or by the jurisdiction under which such recipient
is organized or in which its principal office or any lending office from
which it makes Loans hereunder is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by
any other jurisdiction described in clause (a) above, (c) any
withholding tax that is imposed (i) by the United States of America on
payments by any Borrower organized or resident for tax purposes in the
United States or (ii) by the United Kingdom on payments by any Borrower
organized or resident for tax purposes in the United Kingdom, in either
case to the extent such tax is in effect and would apply as of the date
such Lender or Agent becomes a party to this Agreement or relates to
payments received by a Lender Affiliate or a new lending office
designated by such Lender and is in effect and would apply at the time
such Lender Affiliate receives such payment or such lending office is
designated, (d) any withholding tax that is attributable to such
Lender's or Agent's failure to comply with Section 2.16(e), (e) Taxes
imposed by any jurisdiction (i) in which the Borrower is not organized
or resident for tax purposes, (ii) through which no payment is made by
or on behalf of the Borrower under this Agreement, and (iii) with
respect to which there is no other connection between the making of a
payment by or on behalf of a Borrower under this Agreement and such
jurisdiction that would directly result in the imposition of Taxes by
such jurisdiction on that payment, and (f) Taxes imposed by the United
Kingdom on a payment under this Agreement to a Lender that was a
Qualifying Lender on the date it became a party to this Agreement if
such Taxes are imposed solely as a result of the relevant Lender ceasing
to be a Qualifying Lender, other than as a result of any change in any
law, treaty, published practice or concession by any relevant
Governmental Authority after the date such Lender becomes a party to
this Agreement.
"Existing Credit Agreement" means the $200,000,000 Revolving
Credit Agreement dated as of October 23, 1997, among the Company,
Nationsbank of Texas, N.A., as agent and the banks party thereto.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Five-Year Facility" means the $1,100,004,400 senior
unsecured credit facilities made available to the Company, CBC and
Golden Acquisition Limited under the Credit Agreement dated as of the
date hereof among the Company, CBC, Golden Acquisition Limited, the
lenders named therein and JPMC, as administrative agent, as amended from
time to time.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States or any
state thereof.
"GAAP" means generally accepted accounting principles in the
United States of America, as construed in accordance with Section 1.04.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided,
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
"Guarantee Requirement" means, at any time, that the
Subsidiary Guarantee Agreement (or a supplement referred to therein)
shall have been executed by each Significant Subsidiary (other than a
Foreign Subsidiary) existing at such time, shall have been delivered to
the Administrative Agent and shall be in full force and effect;
provided, however, that, with respect to any Person that becomes a
Significant Subsidiary (other than a Foreign Subsidiary) after the date
hereof, the Guarantee Requirement shall be satisfied if such Person
executes a supplement to the Subsidiary Guarantee Agreement within 15
days of becoming a Significant Subsidiary.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or
other pollutants, including petroleum or petroleum distillates, asbestos
or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement. The "principal amount" of the
obligations of the Company or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Company or such Subsidiary
would be required to pay to the counterparty thereunder in accordance
with the terms of such Hedging Agreement if such Hedging Agreement were
terminated at such time.
"Indebtedness" of any Person means, without duplication,
(a) all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds (other than performance bonds), debentures, notes or
similar instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements
relating to property acquired by such Person (other than customary title
retention provisions in supply contacts entered into in the ordinary
course of business with payment terms not exceeding 90 days), (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby
has been assumed, provided, that the amount of Indebtedness of such
Person existing at any time under this clause shall be deemed to be an
amount equal to the maximum amount secured by (or with a right to be
secured by) such Liens pursuant to the terms of the instruments
embodying such Indebtedness of others, (g) all Guarantees by such Person
of Indebtedness of others, provided, that the amount of any such
Guarantee at any time shall be deemed to be an amount equal to maximum
amount for which such Person may be liable pursuant to the terms of the
instrument embodying such Guarantee, (h) all Capital Lease Obligations
of such Person, (i) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters
of guaranty, (j) all obligations of such Person in respect of Hedging
Agreements, (k) all obligations, contingent or otherwise, of such Person
in respect of bankers' acceptances and (l) all Securitization
Transactions of such Person. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership
in which such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership interest in or
other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other
Person or subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated January 2002 relating to the Company and the
Transactions.
"Interest Coverage Ratio" means, for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Interest Election Request" means a request by a Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December and (b)
with respect to any Eurocurrency Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period.
"Interest Period" means, with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that
is one, two, three or six months; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such
next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business
Day, and (ii) any Interest Period that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of
such Borrowing.
"JPMC" means JPMorgan Chase Bank.
"Judgment Currency" has the meaning assigned to such term in
Section 10.14(b).
"Lender Affiliate" means, (a) with respect to any Lender,
(i) an Affiliate of such Lender or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is
administered or managed by a Lender or an Affiliate of such Lender and
(b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in
bank loans and similar extensions of credit and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" means the Persons listed on Schedule 2.01, their
successors and any other Person that shall have become a party hereto
pursuant to Section 10.04, other than any such Person that ceases to be
a party hereto pursuant to Section 10.04.
"Leverage Ratio" means, at any time, the ratio of
(a) Consolidated Total Debt at such time to (b) Consolidated EBITDA for
the most recent period of four consecutive fiscal quarters of the
Company ended at or prior to such time.
"LIBO Rate" means, for any Interest Period, (a) with respect
to any Eurocurrency Borrowing denominated in US Dollars, the rate per
annum determined by the Applicable Agent at approximately 11:00 a.m.,
London time, on the Quotation Day for such Interest Period by reference
to the British Bankers' Association Interest Settlement Rates for
deposits in US Dollars (as reflected on the applicable Telerate screen),
for a period equal to such Interest Period, or, if an interest rate is
not ascertainable pursuant to the foregoing provisions of this
definition, the interest rate per annum determined by the Applicable
Agent to be the average of the rates per annum at which deposits in US
Dollars are offered for such Interest Period to major banks in the
London interbank market by JPMC at approximately 11:00 a.m., London
time, on the Quotation Day for such Interest Period, and (b) with
respect to any Eurocurrency Borrowing denominated Sterling, the interest
rate per annum determined by the Applicable Agent to be the average of
the rates per annum at which deposits in Sterling are offered for such
Interest Period to major banks in the London interbank market by JPMC at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset, (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) relating to such asset and
(c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan Documents" this Agreement, the Subsidiary Guarantee
Agreement and each promissory note delivered pursuant to this Agreement.
"Loan Parties" means the Borrowers and the Subsidiary
Guarantors.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing
denominated in US Dollars, New York City time and (b) with respect to a
Loan or Borrowing denominated in Sterling, London time.
"London Agent" means ▇.▇. ▇▇▇▇▇▇ Europe Limited, in its
capacity as London agent for the Lenders hereunder, or any successor
thereto appointed in accordance with Article IX.
"Margin Stock" means "margin stock" as defined in Regulation
U of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole, (b) the
ability of the Loan Parties, taken as a whole, to perform any of their
obligations under the Loan Documents or (c) the rights of or benefits
available to the Lenders under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans) of any one or more of the Company and its Subsidiaries in an
aggregate principal amount exceeding $25,000,000.
"Maturity Date" means the nine month anniversary of the
Effective Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any issuance of Senior
Notes, (a) the cash proceeds received in respect thereof, including any
cash received in respect of any non-cash proceeds, but only as and when
received, net of (b) the all fees, discounts, commissions and
out-of-pocket expenses paid by the Company and its Subsidiaries to third
parties (other than Affiliates) in connection therewith.
"Obligations" means (a) the due and punctual payment of (i)
the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans made to any Borrower, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, and (ii) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Loan Parties under this Agreement and the other Loan
Documents, and (b) the due and punctual payment and performance of all
obligations of the Company or any Subsidiary, monetary or otherwise,
under each interest rate Hedging Agreement relating to Obligations
referred to in the preceding clause (a) entered into with any
counterparty that was a Lender (or an Affiliate thereof) at the time
such hedging agreement was entered into.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, or similar taxes, charges or
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of this Agreement or any other Loan Document
other than an Assignment and Acceptance that does not require the
consent of the Company and a sale of a participation pursuant to Section
10.04.
"Participant" has the meaning set forth in Section 10.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing
similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 60 days or are being contested in compliance
with Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under Section 7.01(j);
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in
the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of
business of the Company or any Subsidiary;
(g) any interest or title of a lessor in the property
subject to any lease other than (A) a capital lease or (B) a lease
entered into as part of a sale and leaseback transaction subject
to Section 6.03;
(h) Liens in favor of customs or revenue authorities imposed
by law and arising in the ordinary course of business in
connection with the importation of goods;
(i) interests of suppliers in respect of customary title
retention provisions in supply contacts entered into in the
ordinary course of business and with payment terms not exceeding
90 days; and
(j) rights of set-off in favor of financial institutions
(other than in respect of amounts deposited to secure
Indebtedness);
provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Holders" means (a) the ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Trust,
(b) any trustee of such Trust acting in its capacity as such, (c) any
Person that is a beneficiary of such trust on the date hereof, (d) any
other trust or similar arrangement for the benefit of such beneficiaries
and (e) the successors of any such Persons.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than
a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in
effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
"Qualifying Lender" means a Lender which is, on the date a
payment falls due under this Agreement, (a) beneficially entitled to,
and within the charge to United Kingdom corporation tax in respect of,
that payment and that is a Lender in respect of an advance made by a
person that was a bank for purposes of Section 349 of the Income and
Corporation Taxes Act 1988 (as currently defined in section 840A of the
Income and Corporation Taxes Act 1988) at the time the advance was made,
(b) a person to whom that payment may be made without deduction or
withholding for or on account of United Kingdom taxes by reason of an
applicable double taxation treaty between the United Kingdom and the
country in which that Lender is, or is treated as, resident or carrying
on a business pursuant to which there is a valid and extant claim of
such person or (c) beneficially entitled to interest payable to that
Lender in respect of an advance under this Agreement and is (i) a
company resident in the United Kingdom for United Kingdom tax purposes;
(ii) a partnership each member of which is a company resident in the
United Kingdom for United Kingdom tax purposes; or (iii) a company not
so resident in the United Kingdom which carries on a trade in the United
Kingdom through a branch or agency and which brings into account
interest payable in respect of that advance in computing its chargeable
profits (within the meaning given by Section 11(2) of the Income and
Corporation Taxes Act 1988).
"Quotation Day" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market
practice in the relevant interbank market for prime banks to give
quotations for deposits in the currency of such Borrowing for delivery
on the first day of such Interest Period. If such quotations would
normally be given by prime banks on more than one day, the Quotation Day
will be the last of such days.
"Receivables" means accounts receivable (including, without
limitation, all rights to payment created by or arising from the sales
of goods, leases of goods or the rendition of services, no matter how
evidenced and whether or not earned by performance) and payments owing
to the Company or any Subsidiary from public house businesses in the
United Kingdom in respect of loans made by BHL or any Subsidiary of BHL
to such businesses.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's
Affiliates.
"Required Lenders" means, at any time, Lenders having
outstanding Loans or unused Commitments representing more than 50% of
the aggregate outstanding Loans or unused Commitments, as the case may
be, at such time.
"Reset Date" has the meaning assigned to such term in
Section 1.05.
"Sale-Leaseback Transactions" means any arrangement whereby
the Company or a Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease property that it
intends to use for substantially the same purpose or purposes as the
property sold or transferred; provided that any such arrangement entered
into within 180 days after the acquisition, construction or substantial
improvement of the subject property shall not be deemed to be a "Sale-
Leaseback Transaction".
"S&P" means Standard & Poor's.
"Securitization Transaction" means (a) any transfer by the
Company or any Subsidiary of Receivables or interests therein and all
collateral securing such Receiveables, all contracts and contract rights
and all guarantees or other obligations in respect of such Receivables,
all other assets that are customarily transferred or in respect of which
security interests are customarily granted in connection with asset
securitization transactions involving such Receivables and all proceeds
of any of the foregoing (i) to a trust, partnership, corporation or
other entity (other than the Company or a Subsidiary other than a SPE
Subsidiary), which transfer is funded in whole or in part, directly or
indirectly, by the incurrence or issuance by the transferee or any
successor transferee of indebtedness or other securities that are to
receive payments from, or that represent interests in, the cash flow
derived from such Receivables or interests in Receivables, or
(ii) directly to one or more investors or other purchasers (other than
the Company or any Subsidiary), or (b) any transaction in which the
Company or a Subsidiary incurs Indebtedness or other obligations secured
by Liens on Receivables. The "amount" or "principal amount" of any
Securitization Transaction shall be deemed at any time to be (A) in the
case of a transaction described in clause (a) of the preceding sentence,
the aggregate principal or stated amount of the Indebtedness or other
securities referred to in such clause or, if there shall be no such
principal or stated amount, the uncollected amount of the Receivables
transferred pursuant to such Securitization Transaction net of any such
Receivables that have been written off as uncollectible, and (B) in the
case of a transaction described in clause (b) of the preceding sentence,
the aggregate outstanding principal amount of the Indebtedness secured
by Liens on the subject Receivables.
"Senior Notes" means senior unsecured notes of the Company
or CBC issued on or after the Effective Date.
"Share Purchase Agreement" means the Share Purchase
Agreement dated December 24, 2001 among Interbrew S.A., Interbrew UK
Holdings Limited, Brandbrew S.A., Bass Holdings Limited, Golden
Acquisition Limited, Coors Worldwide, Inc. and the Company.
"Significant Subsidiary" means (a) each "Borrowing
Subsidiary" under the Five-Year Facility (as defined therein), (b) any
Subsidiary that directly or indirectly owns or Controls any other
Significant Subsidiary, (c) each Subsidiary identified as a Significant
Subsidiary on Schedule 3.13, (d) any Subsidiary designated from time to
time by the Company as a Significant Subsidiary by written notice to the
Administrative Agent and (e) any other Subsidiary (other than a SPE)
(i) the consolidated EBITDA of which for the most recently ended period
of four fiscal quarters for which financial statements have been
delivered pursuant to Section 5.01(a) or (b) was more than the lesser of
(A) 5% of the Company's Consolidated EBITDA for such period and (B)
$25,000,000 or (ii) the consolidated assets of which as of the last day
of the most recent period for which financial statements have been
delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery
of any such statements, December 30, 2001) were greater than 5% of the
Company's consolidated total assets as of such date as shown on such
financial statements (or, prior to the delivery of such financial
statements, on the pro forma consolidated balance sheet referred to in
Section 3.04(d)). The Company covenants that it will designate
Subsidiaries as Significant Subsidiaries as contemplated by clause (d)
of the preceding sentence as necessary in order that the total
consolidated assets and the consolidated EBITDA of the Significant
Subsidiaries (together with the directly owned assets and EBITDA of the
Company) will represent not less than 90% of consolidated total assets
or Consolidated EBITDA of the Company at any relevant date or for any
relevant period referred to above. For purposes of making the
determinations required by this definition, the EBITDA and assets of
Foreign Subsidiaries shall be converted into US Dollars at the rates
used in preparing the consolidated balance sheets of the Company.
"SPE Subsidiary" means any Subsidiary formed solely for the
purpose of, and that engages only in, one or more Securitization
Transactions.
"Specified Assets" means the Capehill Brewery, the ▇▇▇▇▇
Brewery and any of the malting facilities of BHL or any of its
Subsidiaries located in the United Kingdom.
"Specified Event" shall mean an Event of Default specified
in paragraph (h) or (i) of Section 7.01.
"Statutory Reserves" means, with respect to any currency,
any reserve, liquid asset or similar requirements established by any
Governmental Authority of the United States or of the jurisdiction of
such currency or any jurisdiction in which Loans in such currency are
made or funded to which banks in such jurisdiction are subject for any
category of deposits or liabilities customarily used to fund loans in
such currency or by reference to which interest rates applicable to
Loans in such currency are determined, in each case expressed as a
decimal.
"Sterling" or means the lawful money of the United Kingdom.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated
financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that
is, as of such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Company. At all
times after the Acquisition, BHL and the subsidiaries of BHL acquired in
the Acquisition will constitute Subsidiaries.
"Subsidiary Guarantee Agreement" means a Subsidiary
Guarantee Agreement substantially in the form of Exhibit D, made by the
Subsidiary Guarantors in favor of the Administrative Agent for the
benefit of the Lenders and the Agents.
"Subsidiary Guarantors" means each Person listed on
Schedule 3.13 and each other Person that becomes party to a Subsidiary
Guarantee Agreement as a Subsidiary Guarantor, and the permitted
successors and assigns of each such Person, but excluding any Person
that ceases to be a Subsidiary Guarantor in accordance with the
provisions of the Loan Documents.
"Syndication Agent" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding,
Inc.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Transactions" means the execution, delivery and performance
by the Loan Parties of this Agreement and the other Loan Documents, the
borrowing of Loans and the use of the proceeds thereof, the Acquisition
and the other transactions contemplated to be effected on the Effective
Date in connection therewith.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.
"US Dollars" or "US$" refers to lawful money of the United
States of America.
"US Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount, and (b) with
respect to any amount in Sterling, the equivalent in US Dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05
using the Exchange Rate with respect to Sterling at the time in effect
under the provisions of such Section.
"Wholly Owned Subsidiary" means any Subsidiary all the
Equity Interests in which, other than directors' qualifying shares
and/or other nominal amounts of Equity Interests that are required to be
held by Persons (other than the Company or its Wholly Owned
Subsidiaries, as applicable) under applicable law, are owned, directly
or indirectly, by the Company.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by
Type (e.g., a "Eurocurrency Loan"). Borrowings also may be classified
and referred to by Type (e.g., a "Eurocurrency Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation". The word "will" shall be construed to
have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time
to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible
assets and properties. References herein to the taking of any action
hereunder of an administrative nature by any Borrower shall be deemed to
include references to the Company taking such action on such Borrower's
behalf and the Agents are expressly authorized to accept any such action
taken by the Company as having the same effect as if taken by such
Borrower.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that if the Company notifies the Administrative
Agent that the Company requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Company that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall
have been withdrawn or such provision amended in accordance herewith (it
being understood that the financial statements delivered under Section
5.01(a) or (b) shall in all cases be prepared in accordance with GAAP as
in effect at the applicable time).
SECTION 1.05. Exchange Rates. Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent
shall (i) determine the Exchange Rate as of such Calculation Date with
respect to Sterling and (ii) give notice thereof to the Lenders and the
Company. The Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Calculation Date
(a "Reset Date") or other date of determination, shall remain effective
until the next succeeding Reset Date, and shall for all purposes of this
Agreement (other than Section 10.14 or any other provision expressly
requiring the use of a current Exchange Rate) be the Exchange Rates
employed in converting any amounts between US Dollars and Sterling. The
Exchange Rate in effect on the Effective Date shall be deemed to be the
Exchange Rate applicable as of the close of business in London on the
Business Day immediately preceding the Effective Date.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make a Loan or Loans
to the Company and/or CBC in US Dollars or Sterling on the Effective
Date in an aggregate principal amount not greater than its Commitment.
Amounts prepaid or repaid in respect of Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall
be made as part of a Borrowing consisting of Loans of the same Type made
by the Lenders ratably in accordance with their respective Commitments.
The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.13, each Borrowing shall be
comprised entirely of (A) in the case of a Borrowing denominated in US
Dollars, Eurocurrency Loans or ABR Loans and (B) in the case of a
Borrowing denominated in Sterling, Eurocurrency Loans, in each case as
the applicable Borrower may request in accordance herewith. Each Lender
at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
applicable Borrower to repay such Loan in accordance with the terms of
this Agreement and that such Borrower's obligation to make payments
pursuant to Section 2.16 shall not increase.
(c) At the commencement of each Interest Period for any
Borrowing, such Borrowing shall be in an aggregate amount that is at
least equal to the Borrowing Minimum and an integral multiple of the
Borrowing Multiple. Borrowings of more than one Type may be outstanding
at the same time; provided that there shall not at any time be more than
a total of ten Eurocurrency Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement,
no Borrower shall be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a
Borrowing, the applicable Borrower, or the Company on behalf of the
applicable Borrower, shall notify the Applicable Agent of such request
by telephone (a) in the case of a Eurocurrency Borrowing, not later than
2:00 p.m., Local Time, three Business Days before the date of the
proposed Borrowing, and (b) in the case of an ABR Borrowing, not later
than 2:00 p.m., Local Time, one Business Day before the date of the
proposed Borrowing; provided that any such notice of an ABR Borrowing to
replace a Eurocurrency Borrowing Request deemed ineffective pursuant to
clause (i) of Section 2.13, may be given not later than 12:00 noon,
Local Time, on the date of the proposed Borrowing; and provided further
that any such notice in respect of any Borrowing to be made on the
Effective Date may be given at such later time or on such shorter notice
as the Applicable Agent may agree. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Borrowing
Request in a form approved by the Applicable Agent and signed by the
applicable Borrower, or by the Company on behalf of the applicable
Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose
behalf the Company is requesting such Borrowing);
(ii) the currency and aggregate principal amount of the
requested Borrowing;
(iii) the date of the requested Borrowing, which shall be a
Business Day;
(iv) the Type of the requested Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.05 or other disbursement
instructions that shall have been given by the applicable Borrower
to the Applicable Agent.
If no currency is specified with respect to any requested Eurocurrency
Borrowing, then the applicable Borrower shall be deemed to have selected
US Dollars. If no election as to the Type of Borrowing is specified,
then the requested Borrowing shall be (i) in the case of a Borrowing
denominated in US Dollars, an ABR Borrowing and (ii) in the case of any
other Borrowing, a Eurocurrency Borrowing. If no Interest Period is
specified with respect to any requested Eurocurrency Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Applicable Agent shall
advise each Lender that will make a Loan as part of the requested
Borrowing of the details thereof and of the amount of the Loan to be
made by such Lender as part of the requested Borrowing.
SECTION 2.04. [omitted]
SECTION 2.05. Funding of Borrowings. (a) Each Lender
shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds in the
applicable currency by 11:00 a.m., Local Time, to the account of the
Applicable Agent most recently designated by it for such purpose for
Loans of such currency by notice to the applicable Lenders. The
Applicable Agent will make such Loans available to the relevant Borrower
by promptly crediting the amounts so received, in like funds, to an
account of such Borrower notified by the Borrower to the Applicable
Agent (i) in the United States, in the case of Loans denominated in US
Dollars and (ii) in the United Kingdom, in the case of Eurocurrency
Loans denominated in Sterling, or otherwise in accordance with
disbursement instructions given by such Borrower to the Applicable
Agent.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Applicable Agent such Lender's
share of such Borrowing, the Applicable Agent may assume that such
Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the relevant Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Applicable Agent, then the applicable Lender
and such Borrower severally agree to pay to the Applicable Agent
forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to
such Borrower to but excluding the date of payment to the Applicable
Agent, at (i) in the case of such Lender, the rate reasonably determined
by the Applicable Agent to be the cost to it of funding such amount or
(ii) in the case of such Borrower, the interest rate applicable to the
subject Loan. If such Lender pays such amount to the Applicable Agent,
then such amount shall constitute such Lender's Loan included in such
Borrowing and the Applicable Agent shall return to such Borrower any
amount (including interest) paid by such Borrower to the Applicable
Agent pursuant to this paragraph.
SECTION 2.06. Interest Elections. (a) Each Borrowing
initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurocurrency Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request.
Thereafter, the relevant Borrower may elect to convert such Borrowing to
a Borrowing of a different Type or to continue such Borrowing and, in
the case of a Eurocurrency Borrowing, may elect Interest Periods
therefor, all as provided in this Section and on terms consistent with
the other provisions of this Agreement. A Borrower may elect different
options with respect to different portions of an affected Borrowing, in
which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, a
Borrower, or the Company on its behalf, shall notify the Applicable
Agent of such election by telephone by the time that a Borrowing Request
would be required under Section 2.03 if such Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Interest
Election Request in a form approved by the Administrative Agent and
signed by the relevant Borrower, or by the Company on its behalf.
Notwithstanding any contrary provision herein, this Section shall not be
construed to permit any Borrower to (i) change the currency of any
Borrowing, (ii) elect an Interest Period for Eurocurrency Loans that
does not comply with Section 2.02(d) or (iii) convert any Borrowing to a
Borrowing of a Type not available under the Commitments.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) the Type of the resulting Borrowing; and
(iv) if the resulting Borrowing is to be a Eurocurrency
Borrowing, the Interest Period to be applicable thereto after
giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing
but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each Lender holding a Loan to
which such request relates of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) If the Company or CBC fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing, and
does not advise the Applicable Agent that such Borrowing will be repaid
at the end of the Interest Period applicable thereto by 2:00 p.m., Local
Time, three Business Days before the end of such Interest Period, then
at the end of such Interest Period, such Borrowing shall be continued as
a Eurocurrency Borrowing with an Interest Period of one month's
duration.
SECTION 2.07. Termination and Reduction of Commitments.
(a) Unless previously terminated, the Commitments shall terminate (i) at
5:00 p.m., New York City time, on the Effective Date, or (ii) if the
initial borrowing hereunder shall not have occurred by February 28,
2002.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments; provided that each reduction of the
Commitments shall be in an amount that is an integral multiple of the
Borrowing Multiple and not less than the Borrowing Minimum, or the
entire amount of the Commitments.
(c) The Company shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b)
of this Section at least three Business Days prior to the effective date
of such termination or reduction, specifying the effective date of such
election. Promptly following receipt of any such notice, the
Administrative Agent shall advise the London Agent and the applicable
Lenders of the contents thereof. Each notice delivered by the Company
pursuant to this Section shall be irrevocable. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the applicable Lenders in
accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to the
Applicable Agent for the accounts of the applicable Lenders the then
unpaid principal amount of each Borrowing of such Borrower on the
Maturity Date. Each Borrower agrees to repay the principal amount of
each Loan made to such Borrower and the accrued interest thereon in the
currency of such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(c) Subject to the Register described in Section 10.04, the
Administrative Agent shall maintain accounts (including the Register
described in Section 10.04) in which it shall record (i) the amount of
each Loan made hereunder, the Type and currency thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by any Agent
hereunder for the accounts of the Lenders and each Lender's share
thereof. The London Agent shall furnish to the Administrative Agent,
promptly after the making of any Loan or Borrowing with respect to which
it is the Applicable Agent or the receipt of any payment of principal or
interest with respect to any such Loan or Borrowing, information with
respect thereto that will enable the Administrative Agent to maintain
the accounts referred to in the preceding sentence. The Administrative
Agent shall notify in writing the London Agent promptly after the making
of any Loan or Borrowing with respect to which it is the Applicable
Agent or the receipt of payment of any principal with respect to any
such Loan or Borrowing.
(d) Subject to the Register described in Section 10.04, the
entries made in the accounts maintained pursuant to paragraph (b) or (c)
of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure
of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it to any
Borrower be evidenced by a promissory note. In such event, each
applicable Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to such Lender and its registered assigns and in
a form approved by the Administrative Agent, acting reasonably.
Thereafter, the Loans evidenced by each such promissory note and
interest thereon shall at all times (including after assignment pursuant
to Section 10.04) be represented by one or more promissory notes in such
form payable to the payee named therein and its registered assigns.
SECTION 2.09. [omitted]
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall
have the right at any time and from time to time to prepay any Borrowing
of such Borrower in whole or in part, subject to prior notice in
accordance with paragraph (d) of this Section.
(b) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Company or any Subsidiary in respect
of any Senior Notes, the Company shall, within three Business Days after
such Net Proceeds are received, prepay or cause CBC to prepay Borrowings
in an aggregate amount equal to 100% of such Net Proceeds (or, if less,
an amount equal to the outstanding Borrowings).
(c) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the applicable Borrower shall select the Borrowing
or Borrowings to be prepaid and shall specify such selection in the
notice of such prepayment pursuant to paragraph (d) of this Section.
(d) The applicable Borrower, or the Company on behalf of
the applicable Borrower, shall notify the Applicable Agent by telephone
(confirmed by telecopy) of any prepayment of a Borrowing hereunder (i)
in the case of a Eurocurrency Borrowing, not later than 11:00 a.m.,
Local Time, three Business Days before the date of such prepayment and
(ii) in the case of an ABR Borrowing, not later than 11:00 a.m., Local
Time, one Business Day before the date of such prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid.
Promptly following receipt of any such notice, the Applicable Agent
shall advise the applicable Lenders of the contents thereof. Except to
the otherwise required in connection with any mandatory prepayment, each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.
(e) In the event the amount of any prepayment required to
be made pursuant to this Section shall exceed the aggregate principal
amount of the ABR Loans outstanding (the amount of any such excess being
called the "Excess Amount"), the applicable Borrower shall have the
right, in lieu of making such prepayment in full, to prepay all the
outstanding ABR Loans and to deposit an amount equal to the Excess
Amount with the Applicable Agent in a cash collateral account maintained
(pursuant to documentation reasonably satisfactory to the Applicable
Agent) by and in the sole dominion and control of the Applicable Agent,
which shall have the exclusive right of withdrawal for application in
accordance with this paragraph (e). Any amounts so deposited shall be
held by the Applicable Agent as collateral for the Obligations and
applied to the prepayment of the applicable Eurocurrency Loans at the
ends of the current Interest Periods applicable thereto. At the request
of the applicable Borrower, amounts so deposited shall be invested by
the Applicable Agent, at the applicable Borrower's risk and expense, in
high quality overnight or short-term cash equivalent investments of
prime financial institutions (which may include the Administrative
Agent) maturing prior to the date or dates on which the Applicable Agent
anticipates that such amounts will be applied to prepay Eurocurrency
Loans; any interest earned on such Permitted Investments will be for the
account of the applicable Borrower, and the applicable Borrower will
deposit with the Administrative Agent the amount of any loss on any such
investment to the extent necessary in order that the amount of the
prepayment to be made with the deposited amounts is not reduced.
SECTION 2.11. Fees. (a) The Company agrees to pay to
the Administrative Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the Company and
the Administrative Agent.
(b) All fees payable hereunder shall be paid on the dates
due, in immediately available funds. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurocurrency Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis
of a year of 360 days, except that (i) interest on Borrowings
denominated in Sterling and (ii) interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on
the Prime Rate shall be computed on the basis of a year of 365 days (or
366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or
LIBO Rate shall be determined by the Applicable Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing
denominated in any currency:
(a) the Applicable Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Applicable Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest
Period;
then the Applicable Agent shall give notice thereof to the Company and
the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Applicable Agent notifies the Company and the
Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Borrowing Request that requests a Eurocurrency Borrowing
in such currency shall be ineffective and the applicable Borrower may
instead request an ABR Borrowing not later than 12:00 noon, Local Time,
on the date of the proposed Borrowing and (ii) any Interest Election
Request that requests the conversion or continuation of any Borrowing as
a Eurocurrency Borrowing in such currency shall be ineffective, and such
Borrowing shall be converted to or continued on the last day of the
Interest Period applicable thereto (A) if such Borrowing is denominated
in US Dollars, as an ABR Borrowing, or (B) if such Borrowing is
denominated in Sterling, as a Borrowing bearing interest at such rate as
the Lenders and the Company may agree adequately reflects the costs to
the Lenders of making or maintaining their Loans (or, in the absence of
such agreement, shall be repaid as of the last day of the current
Interest Period applicable thereto).
SECTION 2.14. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans
made by such Lender, other than a condition related to Taxes,
which is governed by Section 2.16;
and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurocurrency Loan (or of
maintaining its obligation to make any such Loan) or to increase the
cost to such Lender or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Company will pay or cause the other Borrowers to
pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law
regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or
the Loans made by such Lender to a level below that which such Lender or
such Lender's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy), then
from time to time the Company will pay or cause CBC to pay to such
Lender such additional amount or amounts as will compensate such Lender
or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's holding
company, as the case may be, as specified in paragraph (a) or (b) of
this Section, and setting forth in reasonable detail the calculations
used by such Lender to determine such amount, shall be delivered to the
Company and shall be conclusive absent manifest error. The Company
shall pay or cause CBC to pay to such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of
such Lender's right to demand such compensation; provided that the
Company shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 360
days prior to the date that such Lender notifies the Company of the
Change in Law giving rise to such increased costs or reductions and
delivers a certificate with respect thereto as provided in paragraph (c)
above; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 360-day period
referred to above shall be extended to include the period of retroactive
effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurocurrency Loan other than on the
last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan to
a Loan of a different Type or Interest Period other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow
(including as a result of a return of funds to the Lenders under the
last sentence of Section 4.01), convert, continue or prepay any Loan on
the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.07(c) and is
revoked in accordance therewith), or (d) the assignment or deemed
assignment of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the
Company pursuant to Section 2.18, then, in any such event, the
applicable Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. Such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such Loan had such event not
occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of
the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest
rate such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount
and period from other banks in the London interbank market. A
certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section, and setting
forth in reasonable detail the calculations used by such Lender to
determine such amount or amounts, shall be delivered to the applicable
Borrower and shall be conclusive absent manifest error. The applicable
Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Subject to all the provisions of
this Section 2.16 and except as required by law, any and all payments by
or on account of any Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Taxes;
provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, the London Agent
or the applicable Lender, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Loan Parties shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable
law.
(c) The relevant Borrower shall indemnify the
Administrative Agent, the London Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by such Agent or such Lender, as the case may
be, on or with respect to any payment by or on account of any obligation
of any Borrower hereunder or under any other Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto (except to
the extent such penalties, interest or costs are attributable to the
gross negligence or wilful misconduct by a Lender or Agent), whether or
not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Company by a Lender, or by an Agent, on its own behalf or on behalf
of a Lender, shall be conclusive absent manifest error. Such Lender or
Agent shall give the Company written notice of any payment of
Indemnified Taxes or Other Taxes to be made hereunder with respect to
which the Company has an indemnity obligation, but the failure of such
Lender or Agent to give such notice shall not limit its right to receive
indemnification hereunder, except that a failure to give such notice
will constitute gross negligence or wilful misconduct for purposes of
the first sentence of this clause (c) to the extent penalties, interest
or costs are incurred solely as a result of the failure to give such
notice. Such Lender or Agent shall use reasonable efforts to cooperate
with the Company in seeking a refund of such payment of Indemnified
Taxes or Other Taxes.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such
Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Any Lender or Agent that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction
in which a Borrower is located, or any treaty to which such jurisdiction
is a party, with respect to payments under this Agreement shall deliver
to the Company (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by
the Company as will permit such payments to be made without withholding
or at a reduced rate. Such Lender or Agent shall indemnify and hold
harmless the Company and such Borrower from any penalties, interest or
other costs incurred by such Borrower solely as a result of the failure
of such Lender or Agent to comply properly with such documentation
requirements. This Section shall not be construed to require any Agent
or any Lender to make available its tax returns (or any other
information relating to its taxes which it reasonably deems
confidential) to any Borrower or any other Person.
(f) Each Lender, on the date it becomes a Lender hereunder
will designate lending offices for the Loans to be made by it and
provide documentation to the Company (with a copy to the Administrative
Agent) pursuant to Section 2.16(e) such that, on such date, it will not
be liable for any withholding tax that is imposed by the United States
of America on payments by any Borrower that is organized or resident for
tax purposes within such jurisdiction.
(g) If a Lender or an Agent (each a "Finance Party")
receives a refund or credit in respect of Indemnified Taxes or Other
Taxes pursuant to this Section 2.16 and, in the case of a credit, such
credit reduces the Tax liability of the Finance Party and is in the good
faith opinion of the relevant Finance Party both identifiable and
quantifiable without requiring such Finance Party or its professional
advisers to expend a material amount of time or incur a material cost in
so identifying or quantifying, the Finance Party will pay over the
amount of such refund or credit to the relevant Borrower to the extent
the Finance Party has received indemnity payments or additional amounts
pursuant to this Section 2.16, net of all out-of-pocket expenses
incurred in obtaining such refund or credit and without interest (other
than interest paid by the relevant Governmental Authority with respect
to such refund or credit); provided, however, that the relevant
Borrower, upon the request of the Finance Party, agrees to repay the
amount it received to the Finance Party within 30 days of such request,
plus penalties, interest or other charges imposed by the relevant
Governmental Authority (except to the extent such penalties or other
charges are incurred solely as a result of the gross negligence or
wilful misconduct of the relevant Finance Party), if the refund or
credit is subsequently disallowed or cancelled. Amounts payable to a
Borrower under this clause (g) with respect to a refund received by a
Finance Party will be paid to the relevant Borrower within 30 days of
receipt of such refund by the Finance Party. Amounts payable under this
clause (g) with respect to a credit realized by a Finance Party will be
paid within 30 days of the determination by the Finance Party that the
credit reduced the Tax liability of such Finance Party.
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) Each Borrower shall make each payment
required to be made by it hereunder or under any other Loan Document
(whether of principal, interest or fees, or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, Local
Time (unless a different time is specified under a particular provision
hereof or thereof), on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Applicable Agent, be
deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be
made to the Applicable Agent to the applicable account specified in
Schedule 2.17 or, in any such case, to such other account as the
Applicable Agent shall from time to time specify in a notice delivered
to the Company; provided that payments pursuant to Sections 2.14, 2.15,
2.16 and 10.03 shall be made directly to the Persons entitled thereto.
The Applicable Agent shall distribute any such payments received by it
for the account of any Lender or other Person promptly following receipt
thereof to the appropriate lending office or other address specified by
such Lender or other Person. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder of principal or interest in
respect of any Loan shall be made in the currency of such Loan; all
other payments hereunder and under each other Loan Document shall be
made in US Dollars. Any payment required to be made by an Agent
hereunder shall be deemed to have been made by the time required if such
Agent shall, at or before such time, have taken the necessary steps to
make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by such Agent to
make such payment.
(b) If at any time insufficient funds are received by and
available to any Agent from any Borrower to pay fully all amounts of
principal, interest and fees then due from such Borrower hereunder, such
funds shall be applied (i) first, towards payment of interest and fees
then due from such Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
then due from such Borrower hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on its Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of their
respective Loans and accrued interest thereon; provided that (i) if any
such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by any Borrower pursuant to and
in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other
than to the Company or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Borrower rights
of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Applicable Agent shall have received notice
from the relevant Borrower prior to the date on which any payment is due
hereunder that such Borrower will not make such payment, the Applicable
Agent may assume that such Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption,
distribute to the applicable Lenders the amount due. In such event, if
such Borrower has not in fact made such payment, then each of the
applicable Lenders severally agrees to repay to the Applicable Agent
forthwith on demand the amount so distributed to such Lender with
interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the
Applicable Agent, at a rate determined by the Applicable Agent in
accordance with banking industry practices on interbank compensation.
(e) If any Lender shall fail to make any payment required
to be made by it to any Agent pursuant to this Agreement, then the
Agents may, in their discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by them for the account
of such Lender to satisfy such Lender's obligations to the Agents until
all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.14,
or if any Borrower is required to pay any additional amount pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Loans hereunder or
to assign (in accordance with and subject to the restrictions contained
in Section 10.04) its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the reasonable judgment of such
Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such
Lender. The Company hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation
or assignment.
(b) If any Lender requests compensation under Section 2.14,
or if any Loan Party is required to pay any additional amount pursuant
to Section 2.16, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Company may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.04), all its
interests, rights and obligations under the Loan Documents to an
assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i)
the Company shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and
fees) or the Company (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
SECTION 2.19. [omitted].
SECTION 2.20. Additional Reserve Costs. (a) If and so
long as any Lender is required to make special deposits with the Bank of
England, to maintain reserve asset ratios or to pay fees, in each case
in respect of such Lender's Loans (to the extent not reflected in
Statutory Reserves), such Lender may require the relevant Borrower to
pay, contemporaneously with each payment of interest on each of such
Loans, additional interest on such Loans at a rate per annum equal to
the Mandatory Costs Rate calculated in accordance with the formula and
in the manner set forth in Exhibit C hereto.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any
monetary or other authority (including any such requirement imposed by
the European Central Bank or the European System of Central Banks, but
excluding requirements reflected in the Statutory Reserves or the
Mandatory Costs Rate) in respect of any of such Lender's Loans, such
Lender may require the relevant Borrower to pay, contemporaneously with
each payment of interest on each of such Lender's Loans subject to such
requirements, additional interest on such Loans at a rate per annum
specified by such Lender to be the cost to such Lender of complying with
such requirements in relation to such Loans.
(c) Any additional interest owed pursuant to paragraph (a)
or (b) above shall be determined by the relevant Lender, which
determination shall be conclusive absent manifest error, and notified to
the relevant Borrower (with a copy to the Administrative Agent) at least
five Business Days before each date on which interest is payable for the
relevant Loans, and such additional interest so notified to the relevant
Borrower by such Lender shall be payable to the Administrative Agent for
the account of such Lender on each date on which interest is payable for
such Loans.
SECTION 2.21. Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this Agreement to
make a payment denominated in Sterling shall, in the event that the
United Kingdom adopts the Euro as its lawful currency after the date
hereof, be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). In such event, if the basis of
accrual of interest expressed in this Agreement in respect of Sterling
shall be inconsistent with any convention or practice in the London
interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which the United Kingdom adopts
the Euro as its lawful currency; provided that if any Borrowing in
Sterling is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Borrowing, at the end of the
then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this
Agreement or any of the other Loan Documents and (ii) without increasing
any Commitment of any Lender, all references in this Agreement to
minimum amounts (or integral multiples thereof) denominated in Sterling
shall, immediately upon the adoption by the United Kingdom of the Euro
as its lawful currency, be replaced by references to such minimum
amounts (or integral multiples thereof) as shall be specified herein
with respect to Borrowings denominated in Euro.
(c) Each provision of this Agreement shall be subject to
such reasonable changes of construction as the Administrative Agent and
the Company may from time to time agree to be appropriate to reflect the
adoption of the Euro by the United Kingdom and any relevant market
conventions or practices relating to the Euro.
ARTICLE III
Representations and Warranties
Each of the Borrowers represents and warrants to the Lenders
that:
SECTION 3.01. Organization; Powers. Each of the Company
and the Subsidiaries is duly organized, validly existing and in good
standing (to the extent such concept is applicable) under the laws of
the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where
the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is
qualified to do business, and is in good standing (to the extent such
concepts are applicable), in every jurisdiction where such qualification
is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions are within each Loan Party's corporate powers and have been
duly authorized by all necessary corporate or partnership and, if
required, stockholder action. Each of the Loan Documents has been duly
executed and delivered by each Loan Party party thereto and constitutes
a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law or regulation or any
order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, material agreement or other material
instrument binding upon the Company or any of the Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be
made by the Company or any of the Subsidiaries, (d) will not result in
the creation or imposition of any Lien on any asset of the Company or
any of the Subsidiaries and (e) will not violate the charter, by-laws or
other organizational documents of the Company or any of the
Subsidiaries, except, in the case of clause (a), (b), (c) and (d), to
the extent that failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity
and cash flows (i) as of and for the fiscal year ended December 31,
2000, reported on by PricewaterhouseCoopers LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended September 30, 2001, certified by its chief
financial officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and
cash flows of the Company and the consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above.
(b) The pro forma unaudited consolidated balance sheet and
consolidated statements of income, stockholders equity and cash flows of
the Acquired Business (which for these purposes shall include certain
immaterial non-acquired assets) for the fiscal years ended September 30,
1999, August 26, 2000, December 31, 2000 and December 31, 2001,
certified by Golden Acquisition Limited's chief financial officer, when
furnished to the Administrative Agent, to the best of the Company's
knowledge, will fairly present in all material respects the consolidated
financial condition of the Acquired Business and its subsidiaries
(exclusive of those assets and operations of BHL not constituting part
of the Acquired Business) as at such dates and their consolidated
results of operations, shareholders' equity and cash flows for the
periods then ended in conformity with GAAP, subject to the absence of
footnotes.
(c) The pro forma consolidated balance sheet of the Company
as of December 30, 2001, prepared giving effect to the Transactions as
if the Transactions had occurred on such date, when furnished to the
Lenders (i) will have been prepared in good faith based on the same
assumptions used to prepare the pro forma financial statements included
in the Information Memorandum (which assumptions are believed by the
Company to be reasonable), (ii) will be based on the best information
available to the Company after due inquiry, (iii) will accurately
reflect all adjustments necessary to give effect to the Transactions and
(iv) will present fairly, in all material respects, the pro forma
financial position of the Company and its consolidated Subsidiaries as
of December 30, 2001, as if the Transactions had occurred on such date.
The representations and warranties set forth in clauses (iii) and (iv)
are limited to the best of the Company's knowledge to the extent they
relate to the Acquired Business and its subsidiaries.
(d) The pro forma consolidated balance sheet of the Company
as of December 30, 2001, and the pro forma consolidated statements of
income and cash flow of the Company for the fiscal year ended December
30, 2001, prepared giving effect to the Transactions as if the
Transactions had occurred on such date, included in the model contained
in the Information Memorandum (i) have been prepared in good faith based
on assumptions believed by the Company to be reasonable, (ii) are based
on the best information available to the Company after due inquiry,
(iii) accurately reflect all adjustments necessary to give effect to the
Transactions and (iv) present fairly, in all material respects, the pro
forma financial position of the Company and its consolidated
Subsidiaries as of December 30, 2001, as if the Transactions had
occurred on such date. The representations and warranties set forth in
clauses (iii) and (iv) are limited to the best of the Company's
knowledge at the Effective Date to the extent they relate to the
Acquired Business and its subsidiaries.
(e) Since December 31, 2000, there has not occurred or
become known any condition or change that has affected or would
reasonably be expected to affect materially and adversely the business,
assets, liabilities or condition, financial or otherwise, of the Company
and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and the
Subsidiaries has good title to, valid leasehold interests in, or valid
licenses of, all its real and personal property material to its
business, except for defects in title that, individually or in the
aggregate, would not reasonably be expected to result in a Material
Adverse Effect.
(b) Each of the Company and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, except for any
intellectual property the failure to own or license which, individually
or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, and the use thereof by the Company and the
Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the
knowledge of the Company, threatened against or affecting the Company or
any of the Subsidiaries (i) as to which there is a reasonable possi-
bility of an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters)
or (ii) that involve this Agreement or any other Loan Document or the
Transactions.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received written notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no
change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood
of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
the Company and the Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to be in
compliance, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither the Company nor any of the Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject
to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and the
Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid
all Taxes required to have been paid by it, except (a) Taxes that are
being contested in good faith by appropriate proceedings and for which
the Company or such Subsidiary, as applicable, has set aside on its
books adequate reserves or (b) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other
such ERISA Events, could reasonably be expected to result in a Material
Adverse Effect. The actuarial present value of accumulated plan
benefits under each Plan (based on the assumptions used for purposes of
FASB Statement 35) multiplied by 115% did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the net
assets of the Plan available for providing benefits under such Plan.
SECTION 3.11. Disclosure. Neither the Information
Memorandum nor any of the other reports, financial statements,
certificates or other written or formally presented information
furnished by or on behalf of the Company to any Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder
(as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Company represents
only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time; and provided further
that the representations and warranties set forth in this sentence are
limited to the best of the Company's knowledge to the extent they relate
to information or materials obtained by the Company from the Acquired
Business and its subsidiaries prior to the Effective Date.
SECTION 3.12. Margin Stock. Neither the Company nor any of
the Subsidiaries is engaged principally, or as one of its primary
activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock. None of the Loans will be used to
purchase or carry any Margin Stock, to refinance any Indebtedness
originally incurred for any such purpose or in any other manner that
would violate any provision of Regulation U or X of the Board.
SECTION 3.13. Subsidiaries; Guarantee Requirement. (a)
Schedule 3.13 correctly sets forth, as of the date hereof, (i) the name
and jurisdiction of organization of each Domestic Subsidiary that is a
Significant Subsidiary and (ii) the ownership of all the outstanding
Equity Interests in each such Domestic Subsidiary (other than any Equity
Interests owned by Persons other than the Company and the Subsidiaries).
(b) The Guarantee Requirement has been and remains
satisfied.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the
Lenders to make Loans shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance
with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative Agent,
the London Agent and the Lenders and dated the Effective Date) of
(i) ▇▇▇ ▇▇▇▇, Assistant Secretary of the Company, substantially
in the form of Exhibit E-1, (ii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special US
counsel for the Company, substantially in the form of Exhibit E-2
and (iii) ▇▇▇▇▇▇▇▇▇ & May, special UK counsel for the Company,
substantially in the form of Exhibit E-3. The Borrowers hereby
request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties, the authorization
of the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(d) The Guarantee Requirement shall be satisfied.
(e) The Administrative Agent shall have received (or shall
be satisfied that it will receive promptly after the Effective
Date) all fees and other amounts due and payable on or prior to
the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to
be reimbursed or paid by the Company hereunder or under any other
Loan Document.
(f) The Acquisition shall have been completed in accordance
with applicable law and the terms of the Share Purchase Agreement
as heretofore provided to the Lenders, without modification or
waiver of any material term or condition thereof not approved by
the Administrative Agent, or, if the Acquisition will be
consummated on a day that is not a Business Day, the Company shall
have delivered written notice to the Lenders on the last Business
Day prior to the anticipated date of such consummation advising
the Lenders that the Company expects that the Acquisition will on
such non-Business Day be so completed.
(g) No Specified Event shall have occurred and be
continuing.
(h) The representations and warranties set forth in
Sections 3.01, 3.02 and 3.03 shall be true and correct in all
material respects in respect of each Borrower.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make
Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.02) at or
prior to 3:00 p.m., New York City time, on February 28, 2002 (and, in
the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
Each of the parties hereto hereby authorizes and directs the
Administrative Agent to deposit the proceeds of the Acquisition Loans
into a trust account to be held by ABN Amro Bank N.V. pending the
consummation of the Acquisition in accordance with the terms of a
Completion Agreement having substantially the terms set forth in the
draft thereof dated January 29, 2001, previously made available to the
Lenders, and such changes therefrom as may be approved by the
Administrative Agent or are not adverse to the interests of the Company
or the Lenders. Unless the Acquisition is on or prior to the next
succeeding Business Day completed in accordance with applicable law and
the terms of the Share Purchase Agreement as heretofore provided to the
Lenders, without modification or waiver of any material term or
condition thereof not approved by the Administrative Agent, the Company
shall ensure that ABN Amro Bank N.V. shall return such funds to the
Administrative Agent for return to the Lenders on such Business Day.
SECTION 4.02. [omitted]
SECTION 4.03. [omitted]
SECTION 4.04. [omitted]
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and
the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Company covenants and agrees with
the Lenders as to itself and its subsidiaries and CBC covenants and
agrees with the Lenders as to itself and its subsidiaries that:
SECTION 5.01. Financial Statements and Other Information.
The Company will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Company, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as
of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by PricewaterhouseCoopers LLP or other independent
public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Company (commencing
with the fiscal quarter ending June 30, 2002), its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of the Company
and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-
end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial
Officer of the Company (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.06 and 6.07,
(iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate and, if the effect of
such change shall have been deferred under Section 1.04 for
purposes of Section 6.06 or 6.07 or any other provision hereof,
reconciling, as applicable, the calculations referred to in clause
(ii) above or any calculations required under any other provision
with the financial statements delivered under clause (a) or (b)
above, and (iv) confirming compliance with the requirements set
forth in the definition of "Significant Subsidiary" and attaching
a revised form of Schedule 3.13 showing all additions to and
removals from the list of Significant Subsidiaries since the date
of the most recently delivered Schedule 3.13 (or confirming that
there have been no changes from such most recently delivered
Schedule 3.13);
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be
limited to the extent required by accounting rules or guidelines
or in accordance with the normal commercial practices of such
accounting firm);
(e) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and
other materials filed by the Company or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or
with any national securities exchange, or distributed by the
Company to its shareholders generally, as the case may be;
(f) promptly after ▇▇▇▇▇'▇ or S&P shall have announced a
change in the rating established or deemed to have been
established for the Index Debt, written notice of such rating
change;
(g) on or prior to June 30, 2002, each of the financial
statements referred to in paragraphs (b) and (c) of Section 3.04;
and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and
financial condition of the Company or any Subsidiary, or
compliance with the terms of the Loan Documents, as any Agent or
any Lender may reasonably request.
Reports required to be delivered pursuant to clauses (a),
(b) and (e) above shall be deemed to have been delivered on the date on
which the Company posts such reports on the Company's website on the
Internet at ▇▇▇.▇▇▇▇▇.▇▇▇ (or such other address as the Company shall
provide to the Lenders) or when such reports are posted on the SEC's
website at ▇▇▇.▇▇▇.▇▇▇ and such posting shall be deemed to satisfy the
reporting requirements of clauses (a) and (b) above; provided, that the
Company shall deliver paper copies of such reports to any Agent or
Lender upon request.
SECTION 5.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt written
notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Affiliate thereof that
could reasonably be expected to result in a Material Adverse
Effect;
(c) the (i) occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect,
(ii) receipt of any notice indicating any intention by the Pension
Benefit Guaranty Corporation to terminate any Plan, or (iii)
receipt of any notice indicating any intention by a multiemployer
plan to obtain any withdrawal liability from the Company or any of
its Subsidiaries or ERISA Affiliates (provided such withdrawal
liability could reasonably be expected to exceed $10,000,000); and
(d) any other development that has resulted, or could
reasonably be expected to result, in a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the
Company setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of the Subsidiaries to, do or cause to be done
all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
not prohibited by Section 6.04.
SECTION 5.04. Payment of Obligations. The Company will,
and will cause each of the Subsidiaries to, pay its material obliga-
tions, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP (or generally
applicable accounting principles in the relevant jurisdiction) and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of the Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and
(b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of the Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. The Company will, and will cause each of the Subsidiaries
to, permit any representatives designated by the Administrative Agent or
any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as
reasonably requested. All visitation requests by Lenders shall be made
through the Administrative Agent, and the Agents and Lenders shall
endeavor to coordinate such visits in order to minimize expense and
inconvenience to the Company.
SECTION 5.07. Compliance with Laws. The Company will, and
will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority, including
Environmental Laws and ERISA, applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans
will be used solely to fund the Acquisition and to pay related fees and
expenses.
SECTION 5.09. Guarantee Requirement tc \l2 "SECTION 5.09.
Guarantee Requirement . The Company will cause the Guarantee
Requirement to be satisfied at all times.
SECTION 5.10. Indebtedness. On or prior to the Effective
Date, the Company will (a) terminate the Existing Credit Agreement
(which termination may be conditioned on the consummation of the
Acquisition) and pay all amounts outstanding thereunder and (b) ensure
that, as of the Effective Date, after giving effect to the Transactions,
the Company and the Subsidiaries will have no outstanding Indebtedness
or preferred stock, other than (i) $80,000,000 in aggregate principal
amount of 6.76% Series A Senior Notes due July 15, 2002 of the Company,
and Guarantees by Subsidiary Guarantors thereof, (ii) $20,000,000 in
aggregate principal amount of 6.95% Series B Senior Notes due July 15,
2005 of the Company, and Guarantees by Subsidiary Guarantors thereof,
(iii) Indebtedness under the Five-Year Facility, (iv) Indebtedness in
respect of the $5,000,000 City of Wheat Ridge, Colorado Industrial
Development Revenue Bonds (▇▇▇▇▇▇ ▇▇▇▇▇ Company Project) Series 1993 (v)
Hedging Agreements in effect on the Effective Date, (vi) Senior Notes in
an amount not to exceed the difference between $825,000,000 and the
aggregate amount of the Loans outstanding hereunder, (vii) the $300,000
letter of credit issued by Wachovia Bank for the benefit of Continental
Casualty Company, (viii) the $5,185,754 letter of credit issued by
Wachovia Bank for the benefit of Bank One, N.A., as trustee for the
bonds referred to in clause (iv) above, (ix) two letters of credit
issued by ▇▇▇▇▇ Fargo for the benefit of the State of Colorado Inspector
of Oils, each in the amount of $35,000, (x) the $356,448.40 letter of
credit issued by JPMorgan Chase Bank for the benefit of Jefferson County
and (xi) other Indebtedness listed on Schedule 6.01.
SECTION 5.11. Senior Notes. (a) The Borrowers shall
provide to the Administrative Agent in no event later than 90 days from
the Effective Date, all audited and other financial statements
(including pro forma financial statements) and schedules of the type
that the Securities and Exchange Commission would require in a
registered public offering of the Senior Notes. Such financial
statements and schedules shall be deemed to have been delivered on the
date on which the Company posts such financial statements and schedules
on the Company's website on the Internet at ▇▇▇.▇▇▇▇▇.▇▇▇ (or such other
address as the Company shall provide to the Lenders) and such posting
shall be deemed to satisfy the reporting requirement of this Section
5.11(a); provided, that the Company shall deliver paper copies of such
reports to any Agent or Lender upon request.
(b) The Borrowers shall provide to the Administrative Agent
no later than 90 days from the Effective Date, a complete preliminary
prospectus or preliminary offering memorandum or preliminary private
placement memorandum suitable in the reasonable view of the Borrowers
for use in a customary "road show" relating to the Senior Notes and
containing or incorporating by reference all financial statements and
other data required to be included or incorporated by reference therein
(including all audited financial statements, all unaudited financial
statements (which in the case of unaudited quarterly financial
statements of the Company shall have been reviewed by the independent
accountants for the Company as provided in Statement on Auditing
Standards No. 71) and all appropriate pro forma financial statements
prepared in accordance with, or reconciled to, generally accepted
accounting principles in the United States and prepared in accordance
with Regulation S-X under the Securities Act of 1933, as amended) and
all other data that the Securities and Exchange Commission would require
in a registered offering of the Senior Notes on Form S-3 or that would
be necessary for an underwriter to receive customary "comfort"
(including "negative assurance" comfort) from independent accountants in
connection with the offering of the Senior Notes.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder
have been paid in full, the Company covenants and agrees with the
Lenders as to itself and its subsidiaries and CBC covenants and agrees
with the Lenders as to itself and its subsidiaries that:
SECTION 6.01. Subsidiary Indebtedness.
The Company will not permit any Subsidiary to create, incur, assume or
permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth
on Schedule 6.01 or in Section 5.10 and extensions, renewals or
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or add additional
Subsidiaries as obligors in respect of such Indebtedness;
(c) Indebtedness of any Subsidiary to the Company or any
other Subsidiary; provided that no such Indebtedness shall be
assigned to, or subjected to any Lien in favor of, a Person other
than the Company or a Subsidiary;
(d) Indebtedness, including Capital Lease Obligations, of
any Subsidiary incurred to finance the acquisition, construction
or improvement by such Subsidiary of, and secured by, any fixed or
capital assets, and extensions, renewals and replacements of any
of the foregoing Indebtedness referred to in this paragraph that
do not increase the outstanding principal amount thereof and are
not secured by any additional assets or Guaranteed by any other
Subsidiaries; provided that such Indebtedness is incurred prior to
or within 180 days after such acquisition or the completion of
such construction or improvement;
(e) Indebtedness of any Person that becomes a Subsidiary
after the date hereof; provided that such Indebtedness exists at
the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in
respect of letters of credit backing obligations (other than
Indebtedness) of any Subsidiary;
(g) Indebtedness consisting of (or connected with)
industrial development, pollution control or other revenue bonds
or similar instruments issued or guaranteed by any Governmental
Authority;
(h) Securitization Transactions to the extent that the
aggregate amount, without duplication, of all Securitization
Transactions do not at any time exceed $100,000,000 in respect of
Securitization Transactions relating to loans made to bars, pubs
and other similar establishments in the United Kingdom and
$200,000,000 in respect of other Securitization Transactions;
(i) (i) Indebtedness created under the Five-Year Facility
and Guarantees by Subsidiary Guarantors in respect of the Five-
Year Facility and (ii) Senior Notes, all the Net Proceeds of which
have been used to prepay Loans hereunder, and Guarantees by
Subsidiary Guarantors of such Senior Notes; and
(j) Other Indebtedness not expressly permitted by clauses
(a) through (i) above; provided that the sum, without duplication,
of (i) the outstanding Indebtedness permitted by this clause (j),
(ii) the aggregate principal amount of the outstanding obligations
secured by Liens permitted by Section 6.02(j) and (iii) the
Attributable Debt in respect of Sale-Leaseback Transactions
permitted by Section 6.03(b) does not at any time exceed 10% of
Consolidated Net Tangible Assets.
SECTION 6.02. Liens. tc \l2 "SECTION 6.02. Liens. The
Company will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof (or on improvements or
accessions thereto or proceeds therefrom) and set forth on
Schedule 6.02; provided that (i) such Lien shall not apply to any
other property or asset of the Company or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on
the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing
on any property or asset of any Person that becomes a Subsidiary
after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Company or
any Subsidiary other than improvements and accessions to the
assets to which it originally applies and proceeds of such assets,
improvements and accessions and (iii) such Lien shall secure only
those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed
or improved by the Company or any Subsidiary; provided that
(i) such Liens secure Indebtedness permitted by clause (d) of
Section 6.01, (ii) such Liens and the Indebtedness secured thereby
are incurred prior to or within 180 days after such acquisition or
the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets
and (iv) such Liens shall not apply to any other property or
assets of the Company or any Subsidiary;
(e) Liens securing (or in connection with) industrial
development, pollution control or other revenue bonds or similar
instruments issued or guaranteed by any Governmental Authority;
(f) Liens in favor of any Governmental Authority to secure
obligations pursuant to the provisions of any contract or statute;
(g) Liens to secure obligations of a Subsidiary to the
Company or any other Subsidiary;
(h) sales of Receivables pursuant to, and Liens existing or
deemed to exist in connection with, Securitization Transactions;
provided that the aggregate amount of all such Securitization
Transactions shall not at any time exceed the applicable amount
specified in Section 6.01(h);
(i) Rights of first refusal of the Company's joint venture
partner with respect to the Company's Equity Interests in the
Rocky Mountain Metal Container LLC; and
(j) Liens not expressly permitted by clauses (a) through (i)
above; provided that the sum, without duplication, of (i) the
outstanding Indebtedness permitted by Section 6.01(j), (ii) the
aggregate principal amount of the outstanding obligations secured
by Liens permitted by this clause (j) and (iii) the Attributable
Debt in respect of Sale-Leaseback Transactions permitted by
Section 6.03(b) does not at any time exceed 10% of Consolidated
Net Tangible Assets.
SECTION 6.03. Sale and Leaseback Transactions. tc \l2
"SECTION 6.03. Sale and Leaseback Transactions. The Company will not,
and will not permit any of its Subsidiaries to, enter into any Sale-
Leaseback Transaction except:
(a) any Sale-Leaseback Transaction to which the Company or
any Subsidiary is a party as of the date hereof; and
(b) other Sale-Leaseback Transactions; provided that the
sum, without duplication, of (i) the outstanding Indebtedness
permitted by Section 6.01(j), (ii) the aggregate principal amount
of outstanding obligations secured by Liens permitted by Section
6.02(j) and (iii) the aggregate Attributable Debt in respect of
Sale-Leaseback Transactions permitted by this clause (b) does not
at any time exceed 10% of Consolidated Net Tangible Assets.
SECTION 6.04. Fundamental Changes. (a) The Company will
not merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of
transactions, and whether directly or through the merger of one or more
Subsidiaries) assets representing all or substantially all the assets of
the Company and the Subsidiaries (whether now owned or hereafter
acquired), or liquidate or dissolve, except that if at the time thereof
and immediately after giving effect thereto no Default shall have
occurred and be continuing, any Person may merge into the Company in a
transaction in which the Company is the surviving corporation.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Company and its
Subsidiaries on the date of this Agreement or by BHL and its
subsidiaries on the date of (and after giving effect to) the
Acquisition, businesses reasonably related thereto and Securitization
Transactions.
SECTION 6.05. Transactions with Affiliates. The Company
will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not
less favorable to the Company or such Subsidiary than could be obtained
on an arm's-length basis from unrelated third parties and
(b) transactions between or among the Company and its Subsidiaries not
involving any other Affiliate.
SECTION 6.06. Leverage Ratio. The Company will not permit
the Leverage Ratio at any time after June 29, 2002, to exceed 3.80:1.00.
SECTION 6.07. Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio for any period of four consecutive
fiscal quarters ending on or after June 30, 2002 to be less than
3.50:1.00.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) any Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to
in clause (a) of this Article) payable under this Agreement, when
and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in connection
with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder,
or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder,
shall prove to have been incorrect in any material respect when
made or deemed made;
(d) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in
Section 5.02, 5.03 (with respect to any Borrower's existence),
5.08, 5.09 or 5.10 or in Article VI;
(e) the Company or any Subsidiary shall fail to observe or
perform any covenant, condition or agreement contained in this
Agreement or any other Loan Document (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent or any Lender to the Company;
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest) in respect of any
Material Indebtedness, when and as the same shall become due and
payable, and such failure shall continue after any applicable
grace period;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled
maturity, or that enables or permits the holder or holders of any
Material Indebtedness or any trustee or agent on its or their
behalf to cause any Material Indebtedness to become due or to
require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity (or, in the case of any
Securitization Transaction constituting Material Indebtedness,
that enables or permits the investors or purchasers to terminate
purchases of Receivables or interests therein or to require the
repurchase of all outstanding Receivables by the Company or a
Subsidiary); provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Significant Subsidiary or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, seques-
trator, conservator or similar official for the Company or any
Significant Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Company or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Significant Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of
creditors, (vi) take any action for the purpose of effecting any
of the foregoing or (vii) become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered
against the Company, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to attach
or levy upon any assets of the Company or any Subsidiary to
enforce any such judgment;
(k) an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;
(l) the guarantee of any Subsidiary Guarantor under the
Subsidiary Guarantee Agreement or the Company's guarantee under
Article VIII shall not be (or shall be asserted by the Company or
any Subsidiary Guarantor not to be) valid or in full force and
effect;
(m) an "Event of Default" shall have occurred and be
continuing under and as defined in the Five-Year Facility at any
time when the Five-Year Facility shall remain outstanding; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event described in clause
(h) or (i) of this Section), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take
either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately, and (ii) declare the Loans then outstanding
to be due and payable in whole or in part (in which case any principal
not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall
become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
each Borrower; and in case of any event described in clause (h) or (i)
of this Section, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without present-
ment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
SECTION 7.02. [omitted]
SECTION 7.03. [omitted]
ARTICLE VIII
Guarantee
In order to induce the Lenders to extend credit to CBC
hereunder, the Company hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the payment
when and as due of the Obligations of CBC. The Company further agrees
that the due and punctual payment of such Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from
it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any such Obligation.
The Company waives presentment to, demand of payment from
and protest to CBC of any of the Obligations, and also waives notice of
acceptance of its obligations and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the
failure of any Agent or Lender to assert any claim or demand or to
enforce any right or remedy against any Loan Party under the provisions
of this Agreement, any other Loan Document or otherwise; (b) any
extension or renewal of any of the Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms
or provisions of this Agreement or any other Loan Document or agreement;
(d) any default, failure or delay, wilful or otherwise, in the
performance of any of the Obligations; or (e) any other act, omission or
delay to do any other act which may or might in any manner or to any
extent vary the risk of the Company or otherwise operate as a discharge
of a guarantor as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation.
The Company further agrees that its agreement hereunder
constitutes a guarantee of payment when due (whether or not any
bankruptcy or similar proceeding shall have stayed the accrual or
collection of any of the Obligations or operated as a discharge thereof)
and not merely of collection, and waives any right to require that any
resort be had by any Agent or Lender to any balance of any deposit
account or credit on the books of any Agent or Lender in favor of CBC or
any other Person.
The obligations of the Company hereunder shall not be
subject to any reduction, limitation, impairment or termination for any
reason, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever, by reason of the
invalidity, illegality or unenforceability of any of the Obligations,
any impossibility in the performance of any of the Obligations or
otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any Obligation is rescinded
or must otherwise be restored by any Agent or Lender upon the bankruptcy
or reorganization of CBC or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Agent or Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of CBC to pay any
Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Company
hereby promises to and will, upon receipt of written demand by any Agent
or Lender, forthwith pay, or cause to be paid, to the Applicable Agent
or Lender in cash an amount equal to the unpaid principal amount of such
Obligation then due, together with accrued and unpaid interest thereon.
The Company further agrees that if payment in respect of any Obligation
shall be due in a currency other than US Dollars and/or at a place of
payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil
disturbance or other event, payment of such Obligation in such currency
or at such place of payment shall be impossible or, in the reasonable
judgment of any Agent or Lender, not consistent with the protection of
its rights or interests, then, at the election of the Administrative
Agent, the Company shall make payment of such Obligation in US Dollars
(based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify each Agent and Lender
against any losses or reasonable out-of-pocket expenses that it shall
sustain as a result of such alternative payment.
Upon payment by the Company of any sums as provided above,
all rights of the Company against CBC arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible
payment in full of all the Obligations owed by CBC to the Agents and the
Lenders.
Nothing shall discharge or satisfy the liability of the
Company hereunder except the full performance and payment of the
Obligations.
ARTICLE IX
The Agents
In order to expedite the transactions contemplated by this
Agreement, the Persons named in the heading of this Agreement are hereby
appointed to act as Administrative Agent and London Agent on behalf of
the Lenders. Each of the Lenders, each assignee of any Lender hereby
irrevocably authorizes the Agents to take such actions on behalf of such
Lender or assignee and to exercise such powers as are delegated to the
Agents by the terms of the Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative
Agent and, to the extent expressly provided herein, the London Agent are
hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments
of principal of and interest on the Loans and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender its
proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Company of any Event of Default specified
in this Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute
to each Lender copies of all notices, financial statements and other
materials delivered by the Company or any other Loan Party pursuant to
this Agreement or the other Loan Documents as received by the
Administrative Agent. Without limiting the generality of the foregoing,
the Administrative Agent is hereby expressly authorized to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guarantee
Agreement in the event that all the capital stock of such Guarantor
shall be sold, transferred or otherwise disposed of to a Person other
than the Company or an Affiliate of the Company in a transaction not
prohibited by Section 6.04.
With respect to the Loans made by it hereunder, each Agent
in its individual capacity and not as Agent shall have the same rights
and powers as any other Lender and may exercise the same as though it
were not an Agent, and the Agents and their Affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Company or any Subsidiary or other Affiliate thereof
as if it were not an Agent.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) no Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan
Documents that such Agent is required to exercise upon receipt of notice
in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided
in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose, and no Agent shall
be liable for the failure to disclose, any information relating to the
Company or any of its Subsidiaries that is communicated to or obtained
by the institution serving as Agent or any of its Affiliates in any
capacity. No Agent shall be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.02) or in the absence of its
own gross negligence or wilful misconduct. No Agent shall be deemed to
have knowledge of any Default unless and until written notice thereof is
given to such Agent by a Borrower (in which case such Agent shall give
written notice to each other Lender), and no Agent shall be responsible
for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in
any Loan Document, other than to confirm receipt of items expressly
required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it
to be genuine and to have been signed or sent by the proper Person.
Each Agent also may rely upon any statement made to it orally or by
telephone and in good faith believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. Each
Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed
by such Agent. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties
of each Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
In taking any discretionary action hereunder, or in
determining whether any provision hereof is applicable to any event,
transaction or circumstance, the Administrative Agent may, in its
discretion, but shall not be required (unless required by any other
express provision hereof) to, communicate such proposed action or
determination to the Lenders prior to taking or making the same, and
shall be entitled (subject to any otherwise applicable requirement of
Section 10.02(b)), in the absence of any contrary communication received
from any Lender within a reasonable period of time specified in such
communication from the Administrative Agent, to assume that such
proposed action or determination is satisfactory to such Lender.
Subject to the appointment and acceptance of a successor
Agent as provided in this paragraph, any Agent may resign at any time by
notifying the Lenders and the Company. Upon any such resignation, the
Required Lenders shall have the right, with (so long as no Default has
occurred and is continuing) the consent of the Company (not to be
unreasonably withheld or delayed), to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a bank with an
office in New York, New York or London, as applicable, or an Affiliate
of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After the Agent's resignation
hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while it was acting
as Agent.
Each Lender agrees (a) to reimburse the Agents, on demand,
in the amount of its pro rata share (based on the amount of its Loans
and available Commitments hereunder) of any expenses incurred for the
benefit of the Lenders by the Agents, including counsel fees and
compensation of agents and employees paid for services rendered on
behalf of the Lenders, that shall not have been reimbursed by the
Company or any other Loan Party and (b) to indemnify and hold harmless
each Agent and any of its Related Parties, on demand, in the amount of
such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against it in its capacity as
Agent or any of them in any way relating to or arising out of this
Agreement or any other Loan Document or action taken or omitted by it or
any of them under this Agreement or any other Loan Document, to the
extent the same shall not have been reimbursed by the Company or any
other Loan Party; provided that no Lender shall be liable to an Agent or
any such other indemnified Person for any portion of such liabilities,
taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are determined by a court
of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Agent or
any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such
documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon
the Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.
The institutions named as Syndication Agent and as Co-
Documentation Agents in the heading of this Agreement shall not, in
their capacities as such, have any duties or responsibilities of any
kind under this Agreement.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. (a) Except in the case of notices
and other communications expressly permitted to be given by telephone
(and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Company, to it at ▇▇▇▇▇▇ ▇▇▇▇▇ Company, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to CBC, to it in care of the Company as provided in
paragraph (a) above;
(iii) if to the Administrative Agent, to JPMorgan Chase
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan Chase Bank,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iv) if to the London Agent, to ▇.▇. ▇▇▇▇▇▇ Europe Limited,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention of Loans Agency Division (Telecopy No. 011-44-171-777-
2360); with a copy to the Administrative Agent as provided in
paragraph (b) above; and
(v) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications
pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable
Lender. The Administrative Agent or the Company may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular
notices or communications.
(c) Any party hereto may change its address or telecopy
number for notices and other communications hereunder by notice to the
other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or
delay by any Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Agents and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of any Loan Document
or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether any Agent
or any Lender may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by
the Company and the Required Lenders or by the Company and the
Administrative Agent with the consent of the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements
in writing entered into by the Administrative Agent and the Loan Party
or Loan Parties that are parties thereto, in each case with the consent
of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the
date of any scheduled payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such scheduled payment, or postpone the
scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.17(b) or
(c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change
any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders required to waive, amend or modify any
rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender, or (vi) release
the Company or all or substantially all the Subsidiary Guarantors from,
or limit or condition, its or their obligations under Article VIII or
the Subsidiary Guarantee Agreement, without the written consent of each
Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent hereunder or under
any other Loan Document without the prior written consent of such Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Company shall pay (i) all reasonable out-of-pocket expenses
incurred by the Agents, the Syndication Agent and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for
the Agents, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this
Agreement or the other Loan Documents or any amendments, modifications
or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), and
(ii) all out-of-pocket expenses incurred by any Agent or any Lender,
including the fees, charges and disbursements of any counsel for any
Agent or any Lender, in connection with the enforcement or protection of
its rights in connection with any Loan Document, including its rights
under this Section, or in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The Company shall indemnify each Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, other than Taxes, which are governed by Section
2.16, incurred by or asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or delivery of the
Loan Documents or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the
Transactions or any other transactions contemplated hereby or thereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Company or any of the Subsidiaries, or
any Environmental Liability related in any way to the Company or any of
the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to such Agent such
Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against such Agent in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based
upon its share of the sum of the total outstanding Loans or unused
Commitments at the time, as the case may be.
(d) To the extent permitted by applicable law, the Company
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions
of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that (i) no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except
in accordance with this Section. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of
each of the Agents and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender
or a Lender Affiliate, each of the Company and the Administrative Agent
must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or a Lender Affiliate or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount
of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent)
shall not be less than $5,000,000 unless each of the Company and the
Administrative Agent otherwise consent, (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and (iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire and
the documentation required to be delivered under Section 2.16(e) and
(f); and provided further that any consent of the Company otherwise
required under this paragraph shall not be required if an Event of
Default under Section 7.01(a), (b), (h) or (i) has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation
in such rights and obligations in accordance with paragraph (e) of this
Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices in The City
of New York a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of and interest on
the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Agents and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available
for inspection by the Company and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Acceptance and
record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or
the Administrative Agent , sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers,
the Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to paragraph
(f) of this Section, the Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same
extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.14 or 2.16 than the applicable Lender
would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Company's prior written consent. A
Participant shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply
with Sections 2.16(e), (f) and (g) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Bank, identified as such in
writing from time to time by the Granting Bank to the Administrative
Agent and the Company, the option to provide to the Borrowers all or any
part of any Loan that such Granting Bank would otherwise be obligated to
make to the Borrowers pursuant to Section 2.01; provided that
(i) nothing herein shall constitute a commitment to make any Loan by any
SPC and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof. The making
of a Loan by an SPC hereunder shall be deemed to utilize the Commitment
of the Granting Bank to the same extent, and as if, such Loan were made
by the Granting Bank and such Granting Bank shall for all purposes
remain the Lender of record hereunder. Each party hereto hereby agrees
that no SPC shall be liable for any payment under this Agreement for
which a Lender would otherwise be liable, for so long as, and to the
extent, the related Granting Bank makes such payment. No SPC (or any
Person receiving a payment through such SPC) shall be entitled to
receive any greater payment under Section 2.14 or 2.16 (or any other
increased costs protection provision) than the applicable Lender would
have been entitled to receive with respect to the interests transferred
to such SPC. In furtherance of the foregoing, each party hereto hereby
agrees that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the
laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 10.04
other than Section 10.04(d), any SPC may (i) with notice to, but without
the prior written consent of, the Company and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion
of its interests in any Loans to its Granting Bank or to any financial
institutions (if consented to by the Company and Administrative Agent)
providing liquidity and/or credit facilities to or for the account of
such SPC to fund the Loans made by such SPC or to support the securities
(if any) issued by such SPC to fund such Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans (but
not relating to any Borrower, except with the Company's consent) to any
rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties herein or in any
other Loan Document and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other
Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this
Agreement and any other Loan Document and the making of any Loans,
regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall
continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable
under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.14, 2.15, 2.16 and 10.03 and Article IX
shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any other Loan Document or any
provision hereof or thereof.
SECTION 10.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any fee letters
executed by the Company and the Administrative Agent or the Syndication
Agent or any of their Affiliates constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to
the subject matter hereof. It is agreed that the fee letters referred to
in the preceding sentence will remain in full force and effect following
the execution of this Agreement, and that any default by the Company in
the performance of its obligations thereunder will constitute an Event
of Default hereunder. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have
received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 10.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at
any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of any Borrower against
any of and all the obligations of such Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County
and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that any Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or any
other Loan Document against any Borrower or its properties in the courts
of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01.
Nothing in this Agreement or any other Loan Document will affect the
right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and
the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and shall not affect the construction of,
or be taken into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each Agent and each Lender
agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations
or by any subpoena or similar legal process, (d) to any other party to
this Agreement, (e) in connection with (and to the extent necessary for)
the exercise of any remedies hereunder or under any other Loan Document
or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, (i) to any assignee of
or Participant in, or any prospective assignee of or Participant in, any
of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Company or any Subsidiary and its
obligations, (g) with the consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result
of a breach of this Section or (ii) becomes available to any Agent or
any Lender on a nonconfidential basis from a source other than the
Company. For the purposes of this Section, "Information" means all
information received from the Company relating to the Company or its
business, other than any such information that is available to any Agent
or any Lender on a nonconfidential basis prior to disclosure by the
Company. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited
to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated
and the interest and Charges payable to such Lender in respect of other
Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at
the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a
sum owing hereunder in one currency into another currency, each party
hereto agrees, to the fullest extent that it may effectively do so, that
the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum
due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than the currency in which such
sum is stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day following
receipt by the Applicable Creditor of any sum adjudged to be so due in
the Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to
the Applicable Creditor in the Agreement Currency, such Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify the Applicable Creditor against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to
the Applicable Creditor in the Agreement Currency, the Applicable
Creditor shall refund the amount of such excess to the applicable
Borrower. The obligations of the parties contained in this
Section 10.14 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY,
by
_________________________
Name:
Title:
COORS BREWING COMPANY,
by
_________________________
Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
_________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED, as
London Agent,
by
_________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Syndication Agent,
by
_________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH, as
Lender,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
LENDER: __________________________,
by
_________________________
Name:
Title:
by
_________________________
Name:
Title:
Header A is suppressed and there is a Advance to Line
1.5 added.
