Exhibit
4.11
CREDIT AGREEMENT
dated as of
June 5, 2006
Between
CONSTELLATION BRANDS, INC.,
The SUBSIDIARY GUARANTORS Party Hereto,
The LENDERS Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
CITICORP NORTH AMERICA, INC.,
as Syndication Agent
J.P. MORGAN SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Bookrunners
and
THE BANK OF NOVA SCOTIA
and
SUNTRUST BANK
as Co-Documentation Agents
U.S.$3,500,000,000
TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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SECTION 1.01. Defined Terms |
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1 |
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SECTION 1.02. Classification of Loans and Borrowings |
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34 |
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SECTION 1.03. Terms Generally |
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34 |
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SECTION 1.04. Accounting Terms; GAAP |
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34 |
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SECTION 1.05. Currency Equivalents |
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35 |
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ARTICLE II |
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THE CREDITS |
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SECTION 2.01. The Commitments |
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35 |
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SECTION 2.02. Loans and Borrowings |
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37 |
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SECTION 2.03. Requests for Borrowings |
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38 |
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SECTION 2.04. Swingline Loans |
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39 |
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SECTION 2.05. Letters of Credit |
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40 |
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SECTION 2.06. Funding of Borrowings |
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47 |
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SECTION 2.07. Interest Elections |
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48 |
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SECTION 2.08. Termination and Reduction of the Commitments |
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49 |
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SECTION 2.09. Repayment of Loans; Evidence of Debt |
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50 |
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SECTION 2.10. Prepayment of Loans |
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53 |
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SECTION 2.11. Fees |
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58 |
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SECTION 2.12. Interest |
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59 |
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SECTION 2.13. Alternate Rate of Interest |
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60 |
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SECTION 2.14. Increased Costs |
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61 |
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SECTION 2.15. Break Funding Payments |
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62 |
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SECTION 2.16. Taxes |
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63 |
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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64 |
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SECTION 2.18. Mitigation Obligations; Replacement of Lenders |
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66 |
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ARTICLE III |
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GUARANTEE |
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SECTION 3.01. The Guarantee |
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67 |
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SECTION 3.02. Obligations Unconditional |
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67 |
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SECTION 3.03. Reinstatement |
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72 |
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SECTION 3.04. Subrogation |
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73 |
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SECTION 3.05. Remedies |
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73 |
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SECTION 3.06. Instrument for the Payment of Money |
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73 |
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SECTION 3.07. Continuing Guarantee |
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73 |
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SECTION 3.08. Rights of Contribution |
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73 |
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SECTION 3.09. General Limitation on Guarantee Obligations |
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74 |
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SECTION 3.10. Borrower Guarantee with Respect to Hedging Agreements |
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74 |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 4.01. Organization; Powers |
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75 |
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SECTION 4.02. Authorization; Enforceability |
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75 |
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SECTION 4.03. Governmental Approvals; No Conflicts |
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75 |
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SECTION 4.04. Financial Condition; No Material Adverse Change |
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76 |
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SECTION 4.05. Properties |
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76 |
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SECTION 4.06. Litigation |
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77 |
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SECTION 4.07. Environmental Matters |
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77 |
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SECTION 4.08. Compliance with Laws and Agreements |
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79 |
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SECTION 4.09. Investment and Holding Company Status |
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79 |
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SECTION 4.10. Taxes |
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79 |
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SECTION 4.11. ERISA |
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79 |
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SECTION 4.12. Disclosure |
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80 |
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SECTION 4.13. Use of Credit |
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80 |
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SECTION 4.14. Capitalization |
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80 |
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SECTION 4.15. Subsidiaries and Investments |
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80 |
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SECTION 4.16. Solvency |
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81 |
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ARTICLE V |
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CONDITIONS |
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SECTION 5.01. Effective Date |
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81 |
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SECTION 5.02. Initial Borrowing of Loans |
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85 |
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SECTION 5.03. Release of Funds from Escrow Account |
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86 |
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SECTION 5.04. Each Credit Event |
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86 |
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ARTICLE VI |
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AFFIRMATIVE COVENANTS |
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SECTION 6.01. Financial Statements and Other Information |
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87 |
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SECTION 6.02. Notices of Material Events |
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88 |
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SECTION 6.03. Existence; Conduct of Business |
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89 |
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SECTION 6.04. Payment of Obligations |
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89 |
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SECTION 6.05. Maintenance of Properties; Insurance |
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89 |
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SECTION 6.06. Books and Records; Inspection Rights |
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89 |
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SECTION 6.07. Compliance with Laws |
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90 |
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SECTION 6.08. Use of Proceeds |
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90 |
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SECTION 6.09. Certain Obligations Respecting Subsidiaries |
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90 |
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SECTION 6.10. Commitment Letter |
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93 |
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SECTION 6.11. Certain Matters Relating to the Vincor Acquisition |
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94 |
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ARTICLE VII |
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NEGATIVE COVENANTS |
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SECTION 7.01. Indebtedness |
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95 |
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SECTION 7.02. Liens |
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97 |
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SECTION 7.03. Fundamental Changes |
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99 |
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SECTION 7.04. Disposition of Property |
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100 |
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SECTION 7.05. Acquisition of Property |
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101 |
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SECTION 7.06. Investments |
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102 |
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SECTION 7.07. Restricted Payments |
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103 |
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SECTION 7.08. Transactions with Affiliates |
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105 |
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SECTION 7.09. Certain Restrictions |
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105 |
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SECTION 7.10. Certain Financial Covenants |
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106 |
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SECTION 7.11. Subordinated Indebtedness |
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106 |
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SECTION 7.12. Senior Unsecured Indebtedness |
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108 |
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SECTION 7.13. Modifications of Certificate of Incorporation |
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108 |
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SECTION 7.14. Vincor Acquisition Entities |
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108 |
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ARTICLE VIII |
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EVENTS OF DEFAULT |
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ARTICLE IX |
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THE ADMINISTRATIVE AGENT |
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ARTICLE X |
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MISCELLANEOUS |
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SECTION 10.01. Notices |
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114 |
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SECTION 10.02. Waivers; Amendments |
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115 |
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SECTION 10.03. Expenses; Indemnity; Damage Waiver |
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117 |
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SECTION 10.04. Successors and Assigns |
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118 |
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SECTION 10.05. Survival |
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122 |
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SECTION 10.06. Counterparts; Integration; Effectiveness |
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122 |
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SECTION 10.07. Severability |
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123 |
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SECTION 10.08. Right of Setoff |
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123 |
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SECTION 10.09. Governing Law; Jurisdiction; Etc. |
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123 |
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SECTION 10.10. WAIVER OF JURY TRIAL |
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124 |
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SECTION 10.11. Headings |
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124 |
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SECTION 10.12. Treatment of Certain Information; Disclosure |
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124 |
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SECTION 10.13. Credit Agreement under Indentures; Existing Credit Agreement |
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125 |
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SECTION 10.14. USA PATRIOT Act |
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126 |
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SECTION 10.15. Judgment Currency |
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126 |
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SECTION 10.16. Cleanup Period |
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126 |
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SECTION 10.17. Delivery of Lender Addenda |
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127 |
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SCHEDULE I
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Indebtedness and Liens |
SCHEDULE II
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Disclosed Matters |
SCHEDULE III
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Subsidiaries and Investments |
SCHEDULE IV
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Stock Options and Stock Based Plans |
SCHEDULE V
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Certain Adjustment Amounts |
SCHEDULE VI
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Senior Unsecured Notes |
SCHEDULE VII
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Non-Controlled Joint Venture Entities |
SCHEDULE VIII
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Certain U.S. Subsidiaries |
SCHEDULE IX
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Vincor Agreements |
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EXHIBIT A
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Form of Assignment and Assumption |
EXHIBIT B-1
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Form of U.S. Pledge Agreement |
EXHIBIT B-2
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Form of U.K. Equity Pledge Agreement |
EXHIBIT B-3
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Form of Australian Equity Pledge Agreement |
EXHIBIT B-4
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Form of Luxembourg Equity Pledge Agreement |
EXHIBIT B-5
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Form of New Zealand Equity Pledge Agreement |
EXHIBIT B-6
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Form of Canadian Pledge Agreement |
EXHIBIT C
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Form of Guarantee Assumption Agreement |
EXHIBIT D-1
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Form of Opinion of U.S. Counsel to the Obligors |
EXHIBIT D-2
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Form of Opinion of U.K. Counsel to the Obligors |
EXHIBIT D-3
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Form of Opinion of Luxembourg Counsel to the Obligors |
EXHIBIT D-4
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Form of Opinion of Australian Counsel to the Obligors |
EXHIBIT D-5
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Form of Opinion of New Zealand Counsel to the Obligors |
EXHIBIT D-6
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Form of Opinion of Nova Scotia Counsel to the Obligors |
EXHIBIT E
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Form of Opinion of Special New York Counsel to JPMorgan Chase |
EXHIBIT F
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Form of Intercompany Note |
EXHIBIT G-1
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Form of Officers Certificate pursuant to 5.01(a)(v) |
EXHIBIT G-2
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Form of Officers Certificate pursuant to 5.01(d) |
EXHIBIT H
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Form of Lender Addendum |
EXHIBIT I
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Form of Escrow Agreement |
- iv -
CREDIT AGREEMENT dated as of June 5, 2006, between CONSTELLATION BRANDS, INC., the
SUBSIDIARY GUARANTORS party hereto, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as
Administrative Agent, CITICORP NORTH AMERICA, INC., as Syndication Agent, and J.P. MORGAN
SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and Bookrunners and THE
BANK OF NOVA SCOTIA and SUNTRUST BANK, as Co-documentation Agents.
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
ABR means, when used in reference to any Loan or Borrowing, that such Loan, or the
Loans constituting such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.
Acquisition means an acquisition by the Borrower or any of its Subsidiaries of a
business of any Person or a business line or division of any Person (whether by way of purchase of
assets or stock, including any tender for outstanding shares of stock, by merger or consolidation,
by acceptance of a contribution of capital from another Person, or otherwise). For purposes hereof,
the term Acquisition shall include the Vincor Acquisition.
Adjusted Cash Flow means, for any period (the calculation period), the
sum, for the Borrower and its Consolidated Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) Operating Cash Flow for the calculation
period minus (b) Capital Expenditures made during the calculation period (excluding Capital
Expenditures made from the proceeds of Indebtedness other than Indebtedness hereunder).
Adjusted LIBO Rate means, for the Interest Period for any Eurodollar Borrowing, an
interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such
Interest Period.
Adjustment Amount means, for any period, (i) the amount for such period specified on
Schedule V hereto and (ii) in connection with any Acquisition or Disposition after the date hereof
the sum of (x) all non-cash non-recurring charges for such period (which charges are reasonably
acceptable to the Administrative Agent) and (y) all non-recurring cash charges associated with cost
savings acceptable under Regulation SX of the Securities Act of 1933, as amended, in each case
against net operating income of the Borrower, any Subsidiary or the Person subject to an
Acquisition.
Administrative Agent means JPMorgan Chase, in its capacity as administrative agent
for the Lenders hereunder, together with its successors and assigns.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified (provided that no Subsidiary will be deemed to be an
Affiliate of the Borrower or of any other Subsidiary).
Agreement means this credit agreement and all Schedules and Exhibits forming part of
this credit agreement.
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.
Alternative Currency means any currency (other than U.S. Dollars) so long as at such
time, (a) such currency is dealt with in the London interbank deposit market, (b) such currency is
freely transferable and convertible into U.S. Dollars in the London foreign exchange market and (c)
no central bank or other governmental authorization in the country of issue of such currency is
required to permit use of such currency by any Issuing Lender for issuance, renewal, extension or
amendment of any Alternative Currency Letter of Credit or funding or making drawings thereunder
and/or to permit the Borrower to pay the reimbursement obligation of any drawing thereunder and to
pay the interest thereon, unless such authorization has been obtained and is in full force and
effect.
Alternative Currency Equivalent shall mean, with respect to any amount in Dollars,
the amount of the relevant Alternative Currency that could be purchased with such amount of Dollars
using the foreign exchange rate(s) specified in the definition of Dollar Equivalent below, as
determined by the relevant Issuing Lender.
Alternative Currency LC Exposure means, at any time, the sum of (a) the Dollar
Equivalent of the aggregate undrawn amount of all outstanding Alternative Currency Letters of
Credit at such time plus (b) the Dollar Equivalent of the aggregate amount of all LC
Disbursements under Alternative Currency Letters of Credit that have not yet been reimbursed by or
on behalf of the Borrower at such time. The Alternative Currency LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total Alternative Currency LC Exposure in respect of
all Alternative Currency Letters of Credit that constitute utilizations of such Revolving Lenders
Revolving Commitments.
Alternative Currency Letter of Credit means a Letter of Credit issued by an Issuing
Lender in an Alternative Currency pursuant to Section 2.05(c).
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Alternative Currency Letter of Credit Report has the meaning assigned to such term
in Section 2.05(c)(ii).
AmalCo means CBV Canada Holdings Limited, a Canadian corporation incorporated under
the CBCA and a Wholly-Owned Subsidiary of the Borrower.
Applicable Percentage means (a) with respect to any Revolving Lender for purposes of
Sections 2.04 or 2.05, the percentage of the total Revolving Commitments represented by such
Revolving Lenders Revolving Commitment, (b) with respect to any Revolving Lender in respect of any
indemnity claim under Section 10.03(c) arising out of an action or omission of the Administrative
Agent, the Swingline Lender or any Issuing Lender under this Agreement relating to Swingline Loans
or Letters of Credit, the percentage of the total Revolving Commitments represented by such
Revolving Lenders Revolving Commitment and (c) with respect to any Lender in respect of any
indemnity claim under Section 10.03(c) arising out of an action or omission of the Administrative
Agent under this Agreement (other than one relating to Swingline Loans or Letters of Credit), the
percentage of the total Commitments or Loans of all Classes hereunder represented by the aggregate
amount of such Lenders Commitments or Loans of all Classes hereunder. If the Revolving Commitments
have terminated or expired, the Applicable Percentage for any Revolving Lender shall be determined
based upon the Revolving Commitments of such Revolving Lender most recently in effect (and giving
effect to any assignments).
Applicable Rate means, for any day, (i) in the case of any Tranche B Term Loan, with
respect to any (x) ABR Borrowing, 0.50% and (y) Eurodollar Borrowing, 1.50% and (ii) (x) in the
case of any Revolving Loan or Tranche A Term Loan, with respect to any ABR Borrowing (including any
Swingline ABR Borrowing) or Eurodollar Borrowing or Swingline FFBR Borrowing, as the case may be,
or (y) with respect to the commitment fees payable hereunder, the rate per annum set forth in the
schedule below, as applicable, based upon the Debt Ratio as of the most recent determination date:
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Revolving |
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Loan |
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and |
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Swingline |
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Loan: ABR |
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Tranche A |
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Rate |
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Revolving |
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Term |
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and |
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Loan: |
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Tranche A |
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Loan: |
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Swingline |
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Eurodollar |
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Term Loan: |
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Eurodollar |
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Commitment |
Debt Ratio: |
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FFBR Rate |
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Rate |
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ABR Rate |
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Rate |
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Fee Rate |
Category 1 |
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< 2.50 to 1 |
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0.00 |
% |
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1.00 |
% |
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0.00 |
% |
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1.00 |
% |
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0.375 |
% |
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Category 2 |
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³ 2.50 to 1 |
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0.25 |
% |
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1.25 |
% |
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0.25 |
% |
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1.25 |
% |
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0.50 |
% |
For purposes of the foregoing, (i) the Debt Ratio shall be determined as of the end of each
fiscal quarter of the Borrowers fiscal year based upon the Borrowers consolidated financial
statements delivered pursuant to Section 4.04(a)(i) or Section 6.01(a) or (b) and
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(ii) subject to the foregoing provisions of this definition, each change in the Applicable Rate
resulting from a change in the Debt Ratio shall be effective during the period commencing on and
including the date of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding the effective date
of the next such change; provided that (A) subject to clauses (B) and (c), at all times
prior to the first delivery after the Effective Date of financial statements pursuant to Section
6.01(a) or (b), the Debt Ratio shall be deemed to be as specified in the certificate of the
Borrower delivered on the Effective Date pursuant to Section 5.01(a)(vi), (B) the Debt Ratio shall
be deemed to be in Category 2 at any time that an Event of Default has occurred and is continuing
and (C) the Debt Ratio shall be deemed to be in Category 2 if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to Section 6.01(a) or
(b), during the period from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
Notwithstanding the foregoing, the Applicable Rate for any Incremental Term Loan of any
Series shall be the respective rates specified in the Incremental Term Loan Agreement for such
Series; provided that, if the interest rate for either Type of any Series
of Incremental Term Loans shall be greater than 0.25% above the interest rate for the
corresponding Type of Tranche B Term Loans (including any original issue discount (OID)
in respect of such Incremental Term Loans in calculation of such interest, with such OID being
equated to such increased interest rate in a manner determined by the Administrative Agent and
consistent with GAAP based on an assumed four-year life to maturity), the Applicable Rate for such
Type of Tranche B Term Loans shall be automatically adjusted upwards on the date upon which the
Incremental Term Loan Commitments of such Series are established pursuant to Section 2.01(e) so
that the interest rate for such Type of such Series of Incremental Term Loans is 0.25% above such
interest rate for such Type of Tranche B Term Loans.
Applicable U.S. Subsidiary means any Subsidiary (i) organized under the laws of
United States of America or a State thereof for the purpose of holding (directly or indirectly) the
equity interests of one or more Foreign Subsidiaries and (ii) which, if such Subsidiary were to
become a Subsidiary Guarantor hereunder, the Borrower and the Administrative Agent have determined
would result in adverse tax consequences under Section 956 of the Code. The Applicable U.S.
Subsidiaries as of the Effective Date are specified in Part A of Schedule III hereto.
Approved Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered, advised by or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangement Effective Date means the date on which the Certificate of Arrangement is
issued pursuant to the CBCA.
Arrangement Resolution has the meaning specified in the Vincor Arrangement
Agreement.
- 4 -
Articles of Arrangement has the meaning specified in the Vincor Arrangement
Agreement.
Assignment and Assumption means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
Australian Equity Pledge Agreement means each Mortgage of Shares, substantially in
the form of Exhibit B-3, executed and delivered by Constellation Australia in favor of the
Administrative Agent, creating in favor of the Administrative Agent, for the benefit of the
Lenders, a security interest in the shares of BRL Hardy, up to but not exceeding such portion
thereof that does not represent more than 65% of the aggregate outstanding voting stock issued by
BRL Hardy.
Board means the Board of Governors of the Federal Reserve System of the United
States of America.
Borrower means Constellation Brands, Inc., a Delaware corporation.
Borrowing means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan. For all purposes of this Agreement, the date of a Borrowing
initially shall be the date on which the Borrowing is made and, in the case of a Eurodollar
Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.
Borrowing Request means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
BRL Hardy means Hardy Wine Company Limited ACN 008 273 907 (f/k/a BRL Hardy
Limited), a company organized under the laws of Australia.
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 (i) if such day relates to a Borrowing or continuation of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a Eurodollar Borrowing or a
notice by the Borrower with respect to any such Borrowing, continuation, payment, prepayment or
Interest Period, that is also a day on which dealings in deposits denominated in Dollars are
carried out in the London interbank market and (ii) if such day relates to an Alternative Currency
Letter of Credit Report in respect to any Alternative Currency Letter of Credit, such day shall
also be a day on which dealings in the spot market for the purchase of Dollars with the relevant
Alternative Currency are carried out in the London foreign exchange market.
Canadian Acquisition Subsidiary means Constellation Canada Holdings Limited, a
Canadian corporation incorporated under the CBCA and a Wholly-Owned Subsidiary of the Borrower.
- 5 -
Canadian Dollars or C$ refers to lawful money of Canada.
Canadian Pledge Agreement means a Pledge Agreement substantially in the form of
Exhibit B-6 executed and delivered by ULC Subsidiary in favor of the Administrative Agent, creating
in favor of the Administrative Agent for the benefit of the Lenders a security interest in the
partnership interests of LP (Canada), up to but not exceeding such portion thereof as does not
represent more than 65% of the aggregate outstanding voting ownership interests issued by LP
(Canada).
Canandaigua B.V. means Canandaigua B.V., a company organized under the laws of The
Netherlands and a Wholly-Owned Subsidiary of the Borrower.
Canandaigua Limited means Canandaigua Limited, a company organized under the laws of
England and Wales and a Wholly-Owned Subsidiary of the Borrower.
Capital Expenditures means, for any period, expenditures (including the aggregate
amount of Capital Lease Obligations incurred during such period) made by the Borrower or any of its
Consolidated Subsidiaries to acquire or construct fixed assets, plant and equipment (including
renewals, improvements and replacements, but excluding repairs) during such period computed in
accordance with GAAP. Notwithstanding the foregoing, no Acquisition permitted pursuant to Section
7.05(b) or 7.05(c) shall be treated as a Capital Expenditure.
Capital Lease of any Person means any lease of (or other arrangement conveying the
right to use) real or personal Property, or a combination thereof, which obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any Capital Lease, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
Casualty Event means, with respect to any Property of any Person, any loss of or
damage to, or any condemnation or other taking of, such Property for which such Person or any of
its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other
compensation.
Certificate of Arrangement has the meaning specified in the Vincor Arrangement
Agreement.
CBCA means the Canada Business Corporations Act, as amended.
CBI Australia means CBI Australia Holdings Pty Limited ACN 103 359 299 an unlisted
proprietary company incorporated in the Australian Capital Territory and a Wholly-Owned Subsidiary
of the Borrower.
CBI Preferred Stock means senior mandatorily convertible preferred stock of the
Borrower (of one or more series), but only so long as such preferred stock (i) is mandatorily
- 6 -
convertible into Class A common stock of the Borrower, (ii) except as provided in the foregoing
clause (i) or in the anti-dilution adjustments for such preferred stock, is not convertible
(including at the option of any Person) into any debt or equity security of the Borrower or any
Subsidiary at any time and (iii) has an aggregate liquidation preference (for all series) not
exceeding U.S.$530,000,000 (plus any accrued and unpaid dividends thereon, subject to the terms of
Section 7.07).
CBI Preferred Stock Payments means quarterly cash dividend payments on the CBI
Preferred Stock.
Change in Control means (i) any person or group (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof (the Exchange Act)), other
than Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have beneficial ownership of all
shares that such Person has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 25% of the voting power of
the total outstanding Voting Stock of the Borrower voting as one class (provided that the
Permitted Holders beneficially own (as so defined) a percentage of Voting Stock having a lesser
percentage of the voting power than such other Person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a majority of the Board of
Directors of the Borrower), (ii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower (together with any new
directors whose election to such Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of 66 2/3% of
the directors then still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for any reason to
constitute a majority of such Board of Directors then in office, or (iii) any event that requires
the Borrower, pursuant to the provisions of any instrument evidencing or governing any Senior
Unsecured Indebtedness or any Subordinated Indebtedness, to redeem, or make an offer to redeem or
repurchase, all or any portion of such Senior Unsecured Indebtedness or Subordinated Indebtedness,
as the case may be, as a result of a change of control (however defined).
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 any Issuing Lender (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lenders or such Issuing Lenders holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
Circular has the meaning specified in the Vincor Arrangement Agreement.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans constituting such Borrowing, are Revolving Loans, Tranche A Term Loans, Tranche B Term
Loans, Incremental Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment,
- 7 -
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment or Incremental Term Loan
Commitment.
Cleanup Period has the meaning specified in Section 10.16.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Collateral means, collectively, the Collateral specified in the U.S. Pledge
Agreement and all collateral pledged pursuant to the Foreign Pledge Agreements.
Collateral Account has the meaning assigned to such term in Section 4.01 of the U.S.
Pledge Agreement.
Commissioner shall have the meaning assigned to such term in Section 6.11(c).
Committed LC Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Committed Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements under Committed Letters of Credit that have not yet been reimbursed
by or on behalf of the Borrower at such time. The Committed LC Exposure of any Revolving Lender at
any time shall be its Applicable Percentage of the total Committed LC Exposure in respect of all
Committed Letters of Credit that constitute utilizations of such Revolving Lenders Revolving
Commitments.
Commitment means a Revolving Commitment, Tranche A Term Loan Commitment, Tranche B
Term Loan Commitment or Incremental Term Loan Commitment, or any combination thereof (as the
context requires).
Commitment Letter means the Commitment Letter dated as of April 7, 2006 between the
Borrower, JPMorgan Chase, Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Citigroup
Global Markets Inc. and The Bank of Nova Scotia, as amended, supplemented and otherwise in effect
from time to time.
Committed Letter of Credit means a Letter of Credit issued by an Issuing Lender in
Dollars pursuant to Section 2.05(a).
Companies Act means the Companies Act of 1985 of England and Wales, as amended from
time to time.
Competition Act means the federal Competition Act (Canada), as amended.
Computershare means Computershare Trust Company of Canada, a trust company licensed
to carry on business in all Provinces in Canada.
Consolidated Subsidiary means, for any Person, each Subsidiary of such Person
(whether now existing or hereafter created or acquired) the financial statements of which are
required to be consolidated with the financial statements of such Person in accordance with GAAP.
For purposes hereof, upon the Effective Date, Vincor and its Subsidiaries shall be deemed to be
Consolidated Subsidiaries of the Borrower.
- 8 -
Consolidated Tangible Assets means, as at any date, the total assets of the
Borrower and its Consolidated Subsidiaries (determined on a consolidated basis without duplication
in accordance with GAAP) that would be shown as tangible assets on a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries after eliminating all amounts properly attributable
to minority interests, if any, in the stock and surplus of Subsidiaries. For purposes hereof,
tangible assets means all assets of the Borrower and its Consolidated Subsidiaries other
than assets that should be classified as intangibles including goodwill, minority interests,
research and development costs, trademarks, trade names, copyrights, patents and franchises,
unamortized debt discount and expense, all reserves and any write-up in the book value of assets.
Constellation Australia means Constellation Australia Pty Limited ACN 103 362 232,
an unlisted proprietary company incorporated in the Australian Capital Territory and a Wholly-Owned
Subsidiary of the CBI Australia.
Constellation International Holdings means Constellation International Holdings
Limited, a New York corporation (f/k/a Canandaigua Europe Limited) and a Wholly-Owned Subsidiary of
the Borrower.
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.
Covered Taxes means any and all present or future withholding taxes, including
levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
Director has the meaning specified in the Vincor Arrangement Agreement.
Debt Incurrence means a Foreign Subsidiary Debt Incurrence, a Senior Debt Incurrence
or a Subordinated Debt Incurrence, as applicable.
Debt Ratio means, as at the last day of any fiscal quarter of the Borrower (or, for
purposes of the certificate of the Borrower delivered pursuant to Section 5.01(a)(vi), as at the
Effective Date) (in any case, the day of determination), the ratio of (a) the sum of (i)
the aggregate amount of Indebtedness of the Borrower and its Consolidated Subsidiaries as at such
day of determination (determined on a consolidated basis, without duplication, in accordance with
GAAP, but excluding any Revolving Loans) plus (ii) the average of the aggregate outstanding
principal amounts of Revolving Loans as at such day of determination and as at the last days of
each of the three immediately preceding fiscal quarters (including, as applicable, Revolving
Loans under (and as defined in) the Existing Credit Agreement) to (b) Operating Cash Flow for the
period of four consecutive fiscal quarters ending on such day of determination.
Default means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
- 9 -
Designated Revolving Borrowing means a Borrowing of Revolving Loans (a) for
which the related Borrowing Request certifies that the proceeds thereof will be applied to finance
one or more Acquisitions in compliance with Section 7.05 and (b) that is prepaid with the Net
Available Proceeds of a Senior Debt Incurrence or a Subordinated Debt Incurrence within 180 days of
the making of such Borrowing.
Disclosed Matters means the actions, suits, proceedings, intellectual property
matters, environmental matters and, to the extent not reasonably likely to result in a Material
Adverse Effect, matters of the type described in Section 4.06(a)(ii), in each case disclosed in
Schedule II.
Disposition means any sale, assignment, transfer or other disposition of any
Property (whether now owned or hereafter acquired) by the Borrower or any of its Subsidiaries
(other than any Inactive Subsidiary or Non-Controlled Joint Venture Entity) to any other Person
including, without limitation, any sale of Receivable Assets as part of a Permitted Receivable
Financing but excluding (a) any sale, assignment, transfer or other disposition of any Property
sold or disposed of in the ordinary course of business and on ordinary business terms and (b) any
Sale and Leaseback Transaction.
Disqualified Stock means any capital stock or other ownership interest that, by its
terms (or by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the happening of any
event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the date six months after the final maturity of the Loans hereunder, (b) is secured by any
assets of the Borrower or any Subsidiary or is Guaranteed by any Subsidiary or (c) is exchangeable
or convertible at the option of the holder into Indebtedness of the Borrower or any Subsidiary.
Notwithstanding the preceding sentence, any capital stock or other ownership interest that
would constitute Disqualified Stock solely because the holders thereof have the right to require
the respective issuer thereof to repurchase such capital stock or other ownership interest upon the
occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the
terms of such capital stock or other ownership interest provide that such issuer may not repurchase
or redeem any such capital stock or other ownership interest pursuant to such provisions unless
such repurchase or redemption complies with the provisions of Section 7.07.
Dissent Rights has the meaning specified in the Circular.
Dollar or $ refers to lawful money of the United States of America.
Dollar Equivalent means, as used in each Alternative Currency Letter of Credit
Report and with respect to any Alternative Currency Letter of Credit, the amount of Dollars that
would be required to purchase the amount of the relevant Alternative Currency with respect to such
Alternative Currency Letter of Credit, as specified in such Alternative Currency Letter of Credit
Report as determined by the Administrative Agent pursuant to Section 1.05 using the applicable
Exchange Rate with respect to such Alternative Currency.
- 10 -
Effective Date means the date requested by the Borrower pursuant to Section
5.01(a)(v) and on which the conditions specified in Section 5.01 are satisfied (or waived in
accordance with Section 10.02).
Environmental Claim means, with respect to any Person, (a) any written notice,
claim, demand or other written communication (collectively, a claim) by any other Person
alleging or asserting such Persons liability for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property, personal injuries, fines or
penalties arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by such Person, or
(ii) circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law. The term Environmental Claim shall include, without limitation, any
written claim by any governmental authority for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and any claim by any
third party seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment.
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.
Environmental Liability means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
Equity Issuance means (a) any issuance or sale by the Borrower or any of its
Subsidiaries after the Effective Date of (i) any of its capital stock, (ii) any warrants or options
exercisable in respect of its capital stock or (iii) any other security or instrument representing
an equity interest (or the right to obtain any equity interest) in the Borrower or any of its
Subsidiaries (excluding any such security or instrument the issuance of which constitutes a Debt
Incurrence) or (b) the receipt by the Borrower or any of its Subsidiaries after the Effective Date
of any capital contribution (whether or not evidenced by any equity security issued by the
recipient of such contribution); provided that Equity Issuance shall not include (x) any
such issuance or sale by any Subsidiary of the Borrower to the Borrower, any Wholly-Owned
Subsidiary thereof or any Joint Venture Entity (y) any capital contribution by any Person other
than the Borrower or any Subsidiary thereof to any Joint Venture Entity or (z) any capital
contribution by the Borrower, any Wholly-Owned Subsidiary thereof or any Joint Venture Entity to
any Subsidiary of the Borrower or any Joint Venture Entity.
- 11 -
Equity Rights means, with respect to any Person, any subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including any shareholders or
voting trust agreements) to which such Person is a party for the issuance, sale, registration or
voting of, or securities convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
Escrow Agent means Computershare, in its capacity as escrow agent under the Escrow
Agreements.
Escrow Agreement means an Escrow Agreement substantially in the form of Exhibit I
between Vincor, Canadian Acquisition Subsidiary, the Administrative Agent and Computershare.
Escrow Account means the account subject to the Escrow Agreement and specified in
Section 4.1(a) of Schedule C of the Vincor Arrangement Agreement.
Eurodollar means, when used in reference to any Loan or Borrowing, that such Loan,
or the Loans constituting 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 Article VIII.
- 12 -
Exchange Rate means, on any day, with respect to any Alternative Currency, the
rate at which such Alternative Currency may be exchanged into Dollars based upon the spot selling
rate at which a relevant reference dealer chosen by the Administrative Agent (which reference
dealer may be an Affiliate of the Administrative Agent) offers to sell such Alternative Currency in
the London foreign exchange market at approximately 11:00 a.m. (London time) for delivery two
Business Days later.
Excluded Entities means, collectively, (i) Inactive Subsidiaries, Joint Venture
Entities, Applicable U.S. Subsidiaries and Foreign Subsidiaries (in the case of each such
Subsidiary, for so long as it does not provide any Guarantee of any Indebtedness of any Obligor),
(ii) for so long as it shall conduct no business other than holding Indebtedness of Canandaigua
Limited and having Indebtedness outstanding to Constellation International Holdings, Canandaigua
B.V, (iii) for so long as it shall conduct no business other than holding equity interests in LP
(Canada) and acting as the general partner thereof and conducting activities described in Section
7.14(i), GP (Canada), (iv) for so long as it shall have assets with a fair market value of less
than U.S.$5,000,000 and gross revenues of less than U.S.$10,000,000 (in each case calculated as at
the end of and for the most recently-ended fiscal quarter), Constellation Brands Ireland Limited
and (v) at any time prior to the date on which it is required to become a Subsidiary Guarantor
pursuant to Section 6.09(b) of this Agreement, each Specified Vincor Entity.
Excluded Taxes means, with respect to the Administrative Agent, any Lender, any
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement or is attributable to such
Foreign Lenders failure or inability to comply with Section 2.16(e), except to the extent that
such Foreign Lenders assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
2.16(a).
Existing Credit Agreement means the Credit Agreement dated as of December 22, 2004
between the Borrower, certain Subsidiaries, certain lenders, certain other parties and JPMorgan
Chase, as Administrative Agent.
Federal Funds Base Rate means, for any Interest Period for any Swingline Loan, the
rate per annum (rounded upwards, if necessary to the nearest 1/100 of 1%) determined by the
Swingline Lender to be equal to the rate charged to the Swingline Lender on Federal funds
transactions for such Interest Period with members of the Federal Reserve System arranged by
Federal funds brokers on such day.
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Federal Funds Effective Rate means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on such day for the immediately preceding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for such preceding Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
FFBR means, when used in reference to any Swingline Loan, that such Swingline Loan
bears interest at a rate determined by reference to the Federal Funds Base Rate.
Final Order has the meaning specified in the Vincor Arrangement Agreement.
Financial Officer means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of the Borrower.
FinCo means CB International Finance S.a.r.l., a company organized under the laws of
Luxembourg and a Wholly-Owned Subsidiary of the Borrower with (i) a registered office at S, rue
Guillaume Kroll, L-1882 Luxembourg, (ii) share capital of U.S.$15,000 and (iii) the trade register
number of B.93.303.
Fixed Charges means, for any period, the sum, for the Borrower and its Consolidated
Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP), of
the following: (a) all payments of principal of Indebtedness scheduled to be made during such
period unless refinanced or otherwise paid with the proceeds of Indebtedness or Equity Issuances
(to the extent permitted under this Agreement) plus (b) all Interest Expense for such
period plus (c) the aggregate amount of federal, state, provincial and foreign income taxes
paid during such period to the extent that net operating income for such period pursuant to clause
(a) of the definition of Operating Cash Flow in this Section has been calculated before giving
effect to such taxes plus (d) the aggregate amount of cash dividends made by the Borrower
pursuant to Section 7.07 during such period.
Fixed Charges Ratio means, as at any date, the ratio of (a) Adjusted Cash Flow for
the period of four consecutive fiscal quarters ending on or most recently ended prior to such date
to (b) Fixed Charges for such period (it being understood that, as specified in the definitions of
Interest Expense and Operating Cash Flow, neither Adjusted Cash Flow nor Fixed Charges will be
adjusted on a pro forma basis with respect to any Acquisition or Disposition).
Foreign Pledge Agreement means (i) with respect to the capital stock of Matthew
Clark, a U.K. Equity Pledge Agreement in substantially the form of Exhibit B-2, (ii) with respect
to the capital stock of BRL Hardy, an Australian Equity Pledge Agreement in substantially the form
of Exhibit B-3, (iii) with respect to the capital stock of FinCo, a Luxembourg Equity Pledge
Agreement in substantially the form of Exhibit B-4, (iv) with respect to the capital stock of
Nobilo Wine Group, a New Zealand Equity Pledge Agreement in substantially the form of Exhibit B-5,
(v) with respect to the partnership interests of LP (Canada), a Canadian Pledge Agreement in
substantially the form of Exhibit B-6, and (vi) with
- 14 -
respect to the capital stock of any other applicable Subsidiary of the Borrower organized
under the laws of any country other than the United States of America or a State thereof, a pledge
agreement, mortgage of shares or similar agreement in form and substance reasonably satisfactory to
the Administrative Agent, executed and delivered by the Borrower or any other Subsidiary (to the
extent required under Section 6.09) in favor of the Administrative Agent creating in favor of the
Administrative Agent, for the benefit of the Lenders, a security interest in the shares of stock of
other equity interests of such first Subsidiary.
Foreign Lender means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
Foreign Subsidiaries means any Subsidiary organized under the laws of any country
other than the United States of America, or a State thereof, which (if such Subsidiary were to
become a Subsidiary Guarantor hereunder) the Borrower and the Administrative Agent have determined
would either result in adverse tax consequences under Section 956 of the Code or would contravene
any applicable law, rule or regulation. The Foreign Subsidiaries as of the Effective Date are
specified in Part A of Schedule III hereto.
Foreign Subsidiary Debt Incurrence means the incurrence by any Subsidiary after the
Effective Date of any Foreign Subsidiary Indebtedness.
Foreign Subsidiary Indebtedness means Indebtedness incurred in compliance with
Section 7.01(f).
GAAP means generally accepted accounting principles in the United States of America.
Governmental Authority means the government of the United States of America, the
government of Canada, any other nation or any political subdivision thereof, whether state,
provincial or local, and any agency, authority, instrumentality, stock exchange, regulatory body,
securities commission, bureau, board, court, central bank, Person or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
GP (Canada) means CB Nova Scotia ULC, an unlimited liability company organized under
the laws of Nova Scotia and a Wholly-Owned Subsidiary of ULC Subsidiary.
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
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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 Assumption Agreement means a Guarantee Assumption Agreement substantially
in the form of Exhibit C by an entity that, pursuant to Section 6.09(b) is required to become a
Subsidiary Guarantor hereunder in favor of the Administrative Agent.
Guaranteed Obligations has the meaning set forth in Section 3.01.
Hazardous Materials means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Hedging Agreement means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement (and, for avoidance of doubt, excluding any type of
hedging arrangement other than in respect of interest rate protection, foreign currency exchange or
commodity price protection).
Hedging Guaranteed Obligations has the meaning set forth in Section 3.10.
Immaterial Acquisition Approvals has the meaning set forth in Section 4.03(a)(iii).
Inactive Subsidiary means, as at any date, any Subsidiary of the Borrower that as at
the end of and for the fiscal quarter ending on or most recently ended prior to such date, shall
have assets with a fair market value of less than U.S.$5,000,000 and gross revenues of less than
U.S.$5,000,000, as so certified in the certificate of a Financial Officer of the Borrower delivered
with respect to such fiscal quarter pursuant to Section 6.01(c). For purposes hereof, the fair
market value of any trade name, trademark, service mark, logo, trade dress, trademark or service
mark registration, or application for trademark or service mark registration (including any rights
relating thereto) held by any Subsidiary shall be determined without giving effect to any licenses
or user agreements granted by such Subsidiary to any other Person. The Inactive Subsidiaries as of
the date hereof are specified in Part A of Schedule III hereto.
Incremental Principal Payment Dates means, for any Series of Incremental Term Loans,
the dates specified in the Incremental Term Loan Agreement for such Series as the dates upon which
payments of principal in respect of the Incremental Term Loans of such Series are to be made.
Incremental Term Loan means an Incremental Term Loan provided for by Section
2.01(e), which may be an ABR Loan and/or a Eurodollar Loan.
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Incremental Term Loan Agreement means, with respect to any Series of Incremental
Term Loans, an agreement between the Borrower and one or more Lenders pursuant to which each such
Lenders agrees to become obligated in respect of an Incremental Term Loan Commitment of such Series
hereunder.
Incremental Term Loan Availability Date means the day one year prior to the Term
Loan Maturity Date for Tranche B Term Loans or, if such day is not a Business Day, the next
preceding Business Day.
Incremental Term Loan Availability Period means the period from and including the
Effective Date to and including the Incremental Term Loan Availability Date.
Incremental Term Loan Commitment of any Series means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Incremental Term Loans of such Series,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08 or 2.10 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 Lenders Incremental Term Loan Commitment of any Series
will be specified in the Incremental Term Loan Agreement for such Series, or will be set forth in
the Assignment and Assumption pursuant to which such Lender shall have assumed its Incremental Term
Loan Commitment of such Series, as applicable.
Incremental Term Loan Lender means, in respect of any Series of Incremental Term
Loans, a Lender with an Incremental Term Loan Commitment of such Series or, if the Incremental Term
Loan Commitments of such Series have terminated or expired, a Lender with outstanding Incremental
Term Loans of such Series.
Indebtedness of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional sale or other title
retention agreements relating to Property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of Property or
services (excluding current accounts payable incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on Property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty (other than documentary letters of credit related to trade payables
with a maturity date of 90 days or less, which letters of credit are not Letters of Credit issued
pursuant to this Agreement), (j) all obligations, contingent or otherwise, of such Person in
respect of bankers acceptances and (k) the Maximum Receivable Exposure under all Permitted
Receivable Financings entered into by such Person. For purposes of this Agreement, 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
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Persons 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 Covered Taxes other than Excluded Taxes.
Initial Lenders means, collectively, JPMorgan Chase, Citicorp North America, Inc.
and The Bank of Nova Scotia.
Intercompany Note means a promissory note of a Foreign Subsidiary in substantially
the form of Exhibit F.
Interest Coverage Ratio means, as at any date of determination thereof, the ratio of
(a) Operating Cash Flow for the period of four fiscal quarters ending on or most recently ended
prior to such date to (b) Interest Expense for such period.
Interest Election Request means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07.
Interest Expense means, for any period, the sum, for the Borrower and its
Consolidated Subsidiaries (determined on a consolidated basis without duplication in accordance
with GAAP), of the following: (a) all interest in respect of Indebtedness (including the interest
component of any payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period) plus (b) the net amounts
payable (or minus the net amounts receivable) under Interest Rate Protection Agreements
accrued during such period (whether or not actually paid or received during such period)
minus (c) all interest income during such period.
Notwithstanding the foregoing, if during any period for which Interest Expense is being
determined the Borrower shall have consummated any Acquisition or Disposition for aggregate
consideration of U.S.$50,000,000 or more then, for all purposes of this Agreement (other than for
purposes of the definition of Fixed Charges), Interest Expense shall be determined on a pro
forma basis as if such Acquisition or Disposition (and any Indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with such Acquisition or repaid as a result of
such Disposition) had been made or consummated (and such Indebtedness incurred or repaid) on the
first day of such period (and interest on any such Indebtedness shall be deemed to be calculated
for such period at a rate per annum equal to the actual rate of interest in effect in respect of
Indebtedness under this Agreement outstanding during such period).
Interest Payment Date means (a) with respect to any ABR Borrowing, each Quarterly
Date, (b) with respect to any Eurodollar Borrowing, the last day of the Interest Period applicable
to such Borrowing and, in the case of a Eurodollar 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 and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
Interest Period means (a) with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months or (with the consent of each Lender
- 18 -
directly affected thereby) any other period thereafter, as the Borrower may elect and (b) with
respect to any Swingline FFBR Borrowing, the period commencing on the date of such Borrowing and
ending on the date that is two weeks after such Swingline Loan is made, as the Borrower may elect;
provided, that
(i) if any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day; and
(ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period.
Interest Rate Protection Agreement means any Hedging Agreement that consists of an
interest rate protection agreement or other interest rate hedging arrangement providing for the
transfer or mitigation of interest risks either generally or under specific contingencies.
Interim Order has the meaning specified in the Vincor Arrangement Agreement.
Investment means, for any Person: (a) the making of any deposit with, or advance,
loan, extension of credit or capital contribution to, or the acquisition (whether for cash,
Property, services or securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities of, or the purchase of any assets
constituting a business unit of, or the making of any other investment in, any Person; or (b) the
entering into any Hedging Agreement.
Investment Canada Act means the federal Investment Canada Act, as amended.
Irish Equity Pledge Agreement means a Pledge Agreement in form and substance
reasonably acceptable to the Administrative Agent, executed and delivered by Constellation
International Holdings Limited in favor of the Administrative Agent, creating in favor of the
Administrative Agent, for the benefit of the Lenders, a security interest in the shares of
Constellation Brands Ireland Limited up to but not exceeding such portion thereof as does not
represent more than 65% of the aggregate outstanding Voting Stock issued by Constellation Brands
Ireland Limited.
Issuing Lender means each of (i) JPMorgan Chase, (ii) The Bank of Nova Scotia and
(iii) each other Lender added hereto as an Issuing Lender as contemplated by Section 2.05(k).
Joint Venture Entity means any corporation, limited liability company, partnership,
association or other entity less than 100% of the ownership interests of which
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(excluding, in the case of a corporation, directors qualifying shares) are owned by the Borrower
or any Wholly-Owned Subsidiary thereof.
JPMorgan Chase means JPMorgan Chase Bank, N.A.
LC Disbursement means a payment made by an Issuing Lender pursuant to a Letter of
Credit.
LC Exposure means, with respect to any Revolving Lender, the Committed LC Exposure
and Alternative Currency LC Exposure of such Revolving Lender.
Lender Addendum means, with respect to any Lender party hereto on the Effective
Date, a Lender Addendum, substantially in the form of Exhibit H, to be executed and delivered by
such Lender on or before the Effective Date as provided in Section 10.17.
Lenders means each Lender that has executed a Lender Addendum, and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term Lenders includes the Swingline Lender.
Letter of Credit means any Committed Letter of Credit or Alternative Currency Letter
of Credit issued by an Issuing Lender pursuant to Section 2.05.
Letter of Credit Documents means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations.
Letter of Transmittal has the meaning specified in the Circular.
LIBO Rate means, for the Interest Period for any Eurodollar Borrowing, the
applicable rate appearing on the Screen at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for the offering of deposits in
Dollars with a maturity comparable to such Interest Period.
In the event that such rate is not available at such time for any reason, then the LIBO Rate
with respect to such Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/16 of 1%) at which deposits in Dollars in the amount of
U.S.$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
Lien means, (a) with respect to any asset, any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) with
respect to any asset, the interest of a vendor or a lessor under any conditional sale agreement,
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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) with respect to any
security other than the capital stock of any class of the Borrower, any purchase option, call or
similar right of a third party relating to such security.
Loan Documents means, collectively, this Agreement, the Letter of Credit Documents,
the Security Documents, the Commitment Letter and the fee letters referred to therein and each
Incremental Term Loan Agreement.
Loans means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
LP (Canada) means Constellation Canada Limited Partnership, a limited partnership
organized under the laws of Ontario and 99% owned by ULC Subsidiary and 1% owned by GP (Canada).
Luxembourg Equity Pledge Agreement means a Pledge Agreement, substantially in the
form of Exhibit B-4, executed and delivered by the Borrower in favor of the Administrative Agent,
creating in favor of the Administrative Agent, for the benefit of the Lenders, a security interest
in the shares of FinCo up to but not exceeding such portion thereof as does not represent more than
65% of the aggregate outstanding Voting Stock issued by FinCo.
Margin Stock means margin stock within the meaning of Regulations T, U and X of
the Board.
Material Adverse Effect means a material adverse effect on (a) the business, assets,
operations or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the
legal ability of any Obligor, or the financial capacity of all of the Obligors collectively, to
perform any of its or their material obligations under this Agreement or any of the other
applicable Loan Documents or (c) the rights of or benefits available to the Lenders under this
Agreement or any of the other Loan Documents.
Material Indebtedness means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding $40,000,000 (or any lower
principal amount that would, were the Borrower or such Subsidiary to default in the payment of such
Indebtedness or in the observance of any covenant in respect thereof, cause an event of default
(as so defined) under the 1999 Indenture or the Senior Subordinated Notes Indenture (whether or not
any such event of default is cured or waived thereunder). For purposes of determining Material
Indebtedness, the principal amount of the obligations of any Person in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if such Hedging Agreement were terminated at
such time.
Matthew Clark means Matthew Clark Limited, a company organized under the laws of
England and Wales and a Wholly-Owned Subsidiary of the Borrower.
- 21 -
Maximum Receivable Exposure means, for any Permitted Receivable Financing, the
maximum aggregate amount (expressed in U.S. Dollars) of Receivable Assets that all Receivable
Financiers in respect thereof are required to purchase, fund or otherwise finance.
Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
Net Available Proceeds means:
(i) in the case of any Disposition, the amount of Net Cash Payments received in connection
with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of proceeds of insurance,
condemnation awards and other compensation received by the Borrower and its Subsidiaries (other
than Non-Controlled Joint Venture Entities) in respect of such Casualty Event net of (A)
expenses incurred by the Borrower and its Subsidiaries in connection therewith and (B)
contractually required repayments of Indebtedness (other than Indebtedness to the Lenders
hereunder) to the extent secured by a Lien on such Property and any income and transfer taxes
payable by the Borrower or any of its Subsidiaries in respect of such Casualty Event; and
(iii) in the case of any Debt Incurrence, the aggregate amount of all cash received by the
Borrower and its Subsidiaries (other than Non-Controlled Joint Venture Entities) in respect
thereof (net of expenses incurred by the Borrower and its Subsidiaries in connection therewith)
but excluding, in the case of any Senior Debt Incurrence or Subordinated Debt Incurrence, the
first $900,000,000 of aggregate cash received by the Borrower therefrom at any time after the
Effective Date and prior to March 1, 2007.
Net Cash Payments means, with respect to any Disposition, the aggregate amount of
all cash payments received by the Borrower and its Subsidiaries directly or indirectly in
connection with such Disposition; provided that (a) Net Cash Payments shall be net of (i)
the amount of any legal, title and recording tax expenses, commissions and other fees and expenses
paid by the Borrower and its Subsidiaries in connection with such Disposition, (ii) any Federal,
state, local, provincial and foreign income or other taxes reasonably estimated to be payable by
the Borrower and its Subsidiaries as a result of such Disposition or in connection with the
repatriation to the Borrower of any proceeds of a Disposition in a jurisdiction other than the
United States of America and (iii) any repayments by the Borrower or any of its Subsidiaries of
Indebtedness to the extent that (x) such Indebtedness is secured by a Lien on the Property that is
the subject of such Disposition and (y) the transferee of (or holder of a Lien on) such Property
requires that such Indebtedness be repaid as a condition to the purchase of such Property and (b)
in the case of any Joint Venture Entity, Net Cash Payments shall include such cash payments only to
the extent distributed or otherwise transferred to the Borrower or any of its other Subsidiaries.
New Zealand Equity Pledge Agreement means the Security Agreement, substantially in
the form of Exhibit B-5, executed and delivered by Nobilo Holdings in favor of
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the Administrative Agent, creating in favor of the Administrative Agent, for the benefit of the
Lenders, a security interest in the shares of Nobilo Wine Group, up to but not exceeding such
portion thereof that does not represent more than 65% of the aggregate outstanding voting stock
issued by Nobilo Wine Group.
Newco (US) means Constellation Americas Holdings Limited, a corporation organized
under the laws of New York and a Wholly-Owned Subsidiary of the Borrower.
1999 Indenture means the Indenture dated as of February 25, 1999 between the
Borrower, certain Subsidiaries and BNY Midwest Trust Company (successor Trustee to Harris Trust and
Savings Bank), as trustee.
Nobilo Holdings means Nobilo Holdings, a company organized under the laws of New
Zealand and a Wholly-Owned Subsidiary of the Borrower.
Nobilo Wine Group means Nobilo Wine Group Limited, a company organized under the
laws of New Zealand and a Wholly-Owned Subsidiary of the Borrower.
Non-Controlled Joint Venture Entity means, as of any date, any Joint Venture Entity
that is not Controlled by the Borrower or any Subsidiary as of such date. The Non-Controlled Joint
Venture Entities as of the date hereof are specified in Schedule VII hereto.
Non-Guarantor Pledgor means each of Canandaigua Limited, Constellation Australia,
Nobilo Holdings and ULC Subsidiary.
Obligor means the Borrower and each Subsidiary Guarantor.
Operating Cash Flow means, for any period, the sum, for the Borrower and its
Consolidated Subsidiaries (determined on a consolidated basis without duplication in accordance
with GAAP), of the following: (a) net operating income (calculated before income taxes, interest
income, Interest Expense, extraordinary and unusual items and income or loss attributable to equity
in Affiliates) for such period plus (b) depreciation and amortization (to the extent
deducted in determining net operating income) for such period plus (c) the Adjustment
Amount for such period.
Notwithstanding the foregoing, if during any period for which Operating Cash Flow is being
determined the Borrower or any of its Subsidiaries shall have consummated any Acquisition or
Disposition for aggregate consideration of U.S.$50,000,000 or more then, for all purposes of this
Agreement (other than for purposes of the definition of Adjusted Cash Flow), Operating Cash Flow
shall be determined on a pro forma basis as if such Acquisition or Disposition had
been made or consummated on the first day of such period.
Other Taxes means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made under any
Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document, but excluding all United States Federal taxes other than withholding taxes.
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PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in
compliance with Section 6.04;
(b) carriers, warehousemens, mechanics, materialmens, repairmens and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are
not overdue by more than 90 days or are being contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance or indemnity bonds, bonds to secure the
payment of excise taxes or customs duties in connection with the sale or importation of goods
and other obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VIII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
Property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected Property or
interfere with the ordinary conduct of business of the Borrower or any Subsidiary thereof;
(g) Liens arising under (i) standard custodial, bailee or depositary arrangements
(including deposit accounts with banks and other financial institutions) and (ii) standard
customer agreements in respect of accounts for the purchase and sale of securities and other
Property with brokerage firms or other types of financial institutions;
(h) Liens on goods imported by the Borrower or any Subsidiary in favor of customs and
revenue authorities arising in the ordinary course of business and as a matter of law or
pursuant to a bond to secure payment of customs duties in connection with such importation;
(i) Liens with respect to reimbursement agreements pertaining to documentary letters of
credit relating to trade payables with a maturity date of 90 days or less, which Liens cover
the goods delivered under such letters of credit;
(j) Liens of a lessor or a sublessor with respect to Property under an operating lease and
any restriction or encumbrance to which the interest or title of such lessor or
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sublessor may be subject, which Liens do not materially impair the usefulness of such Property
in the business of the lessee of such Property; and
(k) Liens with respect to operating leases or operating subleases granted to others in the
ordinary course of business that do not interfere with operation of the business of the grantor
thereof;
provided that the term Permitted Encumbrances shall not include any Lien securing
Indebtedness, and Permitted Encumbrances of the type described in the foregoing clause (g) shall
not secure any obligations (including obligations under Hedging Agreements), other than obligations
incidental to the respective custodial, bailee or depositary arrangements or customer agreements
referred to in said clause (g).
Permitted Holders means (i) the Estate of Marvin Sands, Marilyn Sands, her
descendents (whether by blood or adoption), her descendents spouses or Andrew Stern, or the estate
of any of the foregoing individuals, or the Mac and Sally Sands Foundation, Incorporated, (ii)
trusts which are for the benefit of Marilyn Sands, her descendents, her descendents spouses or
Andrew Stern, or any trust for the benefit of any such trust which trusts are under the control of
any or a combination of Marilyn Sands, her descendents, her descendents spouses or Andrew Stern or
any trustee of such trusts or (iii) partnerships, limited liability companies or any other entities
which are controlled by the Estate of Marvin Sands, any or a combination of Marilyn Sands, her
descendents, her descendents spouses, Andrew Stern, the estate of any of the foregoing
individuals, a trust referred to in the foregoing clause (ii) or an entity that satisfies the
conditions of this clause (iii).
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within one year from the date of acquisition
thereof and having, at such date of acquisition, a credit rating of at least A-1 from
Standard & Poors or P-1 from Moodys;
(c) investments in certificates of deposit, bankers acceptances and time deposits
maturing within one year from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any office of (x) any commercial
bank organized under the laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than U.S.$500,000,000 or (y) any
Lender hereunder;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) of this definition and entered into with a financial
institution satisfying the criteria described in clause (c) of this definition; and
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(e) money market funds that (i) (x) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, and (y)
substantially all of whose assets are invested in the types of assets described in clauses (a)
through (d) of this definition or (ii) are issued or offered by any of the Lenders hereunder;
and
(f) foreign investments substantially comparable to any of the foregoing in connection
with managing the cash of any Foreign Subsidiary.
Permitted Receivable Financing means any transaction involving one or more sales,
contributions or other conveyances by the Borrower or any Subsidiary of any Receivable Assets to a
special purpose entity (which may be a Subsidiary or Affiliate of the Borrower), which special
purpose entity finances such sales, contributions or other conveyances by in turn conveying an
interest in such Receivable Assets to one or more Receivable Financiers; provided that (a)
such transaction shall not involve any recourse to the Borrower or any Subsidiary (other than such
special purpose entity) for any reason other than (i) repurchases of non-eligible Receivable
Assets, (ii) indemnification for losses (including any adjustments for dilutions), other than
credit losses related to the Receivable Assets conveyed in such transaction, and (iii) payment of
costs, fees, expenses and indemnities relating to such transaction, (b) the terms of such
transaction, including the discount at which Receivable Assets are conveyed to any such Receivable
Financier and any termination events, shall be reasonably consistent with those prevailing in the
market for similarly structured transactions involving Receivable Assets and originators of similar
credit quality and a pool Receivable Assets of similar characteristics and (c) the terms of such
transaction shall provide for a specified Maximum Receivable Exposure for such Receivable
Financiers.
Person means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of
ERISA.
Pledge Agreements means, collectively, the U.S. Pledge Agreement and the Foreign
Pledge Agreements.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase as its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.
Principal Payment Date means with respect to any Term Loan, each date on which
principal of such Term Loan is payable pursuant to Section 2.09(a)(ii) or (iii) and, with respect
to each Series of Incremental Term Loans, each Incremental Principal Payment Date.
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Property means any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible.
Quarterly Dates means the 1st day of March, June, September
and December in each year, the first of which shall be the first such day after the date hereof;
provided that if any such day is not a Business Day, then such Quarterly Date shall be the
next succeeding Business Day.
Receivable Assets means, collectively, any accounts receivable and property relating
thereto (including the rights to any collections in respect thereof).
Receivable Financier means any Person (other than a Subsidiary or Affiliate of the
Borrower) that finances the acquisition by a special purpose entity of Receivable Assets from the
Borrower or any Subsidiary.
Register has the meaning set forth in Section 10.04(c).
Regulation FD has the meaning set forth in Section 10.12(b).
Related Parties means, with respect to any specified Person, such specified Persons
Affiliates and the respective directors, officers, employees, agents, advisors and trustees of such
specified Person and such specified Persons Affiliates.
Release means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment,
including the movement of Hazardous Materials through ambient air, soil, surface water, ground
water, wetlands, land or subsurface strata.
Required Lenders means, at any time, subject to the last paragraph of Section
10.02(b), Lenders having Revolving Exposures, outstanding Term Loans and unused Commitments
representing at least 51% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time. The Required Lenders of a particular Class of Loans means
Lenders having Revolving Exposures, outstanding Term Loans and unused Commitments of such Class
representing at least 51% of the total Revolving Exposures, outstanding Term Loans and unused
Commitments of such Class at such time.
Restricted Payment means any dividend or other distribution (whether in cash,
securities or other Property) with respect to any shares of any class of capital stock of the
Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other
Property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of capital stock of the
Borrower or such Subsidiary or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower or such Subsidiary (or any other transaction that has a substantially
similar effect).
Revolving Availability Period means the period from and including the Effective Date
to but excluding the earlier of the Revolving Commitment Termination Date and the date of
termination of the Revolving Commitments.
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Revolving Commitment means, with respect to each Revolving Lender, the commitment,
if any, of such Revolving Lender to make Revolving Loans and to acquire participations in Letters
of Credit and Swingline Loans hereunder, representing the maximum aggregate amount of such
Revolving Lenders Revolving Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 or 2.10 and (b) reduced or increased from time to time pursuant to
assignments by or to such Revolving Lender pursuant to Section 10.04. The initial amount of each
Revolving Lenders Revolving Commitment is set forth opposite the name of such Lender on its Lender
Addendum under the heading Revolving Commitment, or in the Assignment and Assumption pursuant to
which such Revolving Lender shall have assumed its Revolving Commitment, as applicable. The initial
aggregate amount of the Revolving Lenders Revolving Commitments is U.S.$500,000,000.
Revolving Commitment Termination Date means June 5, 2011 (provided that if
such day is not a Business Day, the Revolving Commitment Termination Date shall be the immediately
preceding Business Day).
Revolving Exposure means, with respect to any Revolving Lender at any time, the sum
of the outstanding principal amount of such Revolving Lenders Revolving Loans and its LC Exposure
and Swingline Exposure at such time.
Revolving Lender means (a) initially, a Lender that has a Revolving Commitment set
forth opposite the name of such Lender on its Lender Addendum and (b) thereafter, a Lender from
time to time holding a Revolving Commitment or a Lender from time to time with any Revolving
Exposure.
Revolving Loan means a Loan made pursuant to Section 2.01(a), which may be an ABR
Loan and/or a Eurodollar Loan.
Sale and Leaseback Transaction means a transaction or series of transactions
pursuant to which the Borrower or any Subsidiary thereof shall sell or transfer to any Person
(other than the Borrower or a Subsidiary thereof) any Property, whether now owned or hereafter
acquired, and, as part of the same transaction or series of transactions, the Borrower or any
Subsidiary thereof shall rent or lease as lessee, or similarly acquire the right to possession or
use of, such Property or one or more Properties which it intends to use for the same purpose or
purposes as such Property, and in circumstances that give rise to a Capital Lease Obligation of the
Borrower or one or more of its Subsidiaries.
Screen means Page 3750 of the Telerate Service of Bridge Information Services (or
any successor thereto or substitute therefor, the Service) with respect to the LIBO Rate
for deposits in Dollars; provided that if the Administrative Agent determines that there is
no such relevant display page for the LIBO Rate for deposits in Dollars, Screen shall mean the
relevant display page for the LIBO Rate for deposits in Dollars (as determined by the
Administrative Agent) of the Reuter Monitor Money Rates Service (or any successor thereto or
substitute therefor).
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Security Documents means, collectively, the Pledge Agreements, the Escrow Agreement
and any Uniform Commercial Code financing statements required by the U.S. Pledge Agreement.
Senior Debt Incurrence means the incurrence by the Borrower or any of its
Subsidiaries after the Effective Date of any Senior Unsecured Indebtedness.
Senior Debt Ratio means, as at the last day of any fiscal quarter of the Borrower
(the day of determination), the ratio of (a) the sum of (i) the aggregate amount of
Indebtedness of the Borrower and its Consolidated Subsidiaries as at such day of determination
(determined on a consolidated basis, without duplication, in accordance with GAAP, but excluding
any Revolving Loans and any Subordinated Indebtedness) plus (ii) the average of the
aggregate outstanding principal amounts of Revolving Loans as at such day of determination and as
at the last days of each of the three immediately preceding fiscal quarters to (b) Operating Cash
Flow for the period of four consecutive fiscal quarters ending on such day of determination.
Senior Subordinated Note Indenture means Supplemental Indenture No. 7, dated as of
January 23, 2002, to the 1999 Indenture among the Borrower, as issuer, certain Subsidiaries, as
guarantors, and BNY Midwest Trust Company, as trustee, with respect to the
8 1/8% Senior Subordinated Notes due 2012 in an original aggregate
principal amount of U.S. $250,000,000.
Senior Subordinated Notes means Senior Subordinated Notes issued pursuant to the
Senior Subordinated Note Indenture.
Senior Unsecured Indebtedness means Indebtedness outstanding in respect of the
Senior Unsecured Notes and other Indebtedness of the Borrower incurred in compliance with Section
7.01(c)(ii).
Senior Unsecured Notes means the Borrowers Senior Unsecured Notes issued pursuant
to the indentures on the attached Schedule VI.
Series has the meaning set forth in Section 2.01(e).
Solvent means, with respect to any Person at any time, that (a) the fair value of
the Property of such Person is greater than the total amount of liabilities (including without
limitation contingent liabilities) of such Person, (b) the present fair saleable value of the
Property of such Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond such Persons
ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in a
business and is not about to engage in a business for which such Persons property would constitute
an unreasonably small capital.
Specified Vincor Entity means each Wholly-Owned Subsidiary of Vincor that is
organized under the laws of a State of the United States of America.
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Specified Vincor Obligations means Indebtedness under a Vincor Agreement specified
in Part A of Schedule I that is designated in Part A of Schedule I to be repaid on or as promptly
as practicable following the Effective Date.
Standard & Poors means Standard & Poors Ratings Services, a Division of The
McGraw-Hill Companies, Inc.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Administrative Agent is
subject for Eurodollar funding (currently referred to as Eurodollar Liabilities in Regulation D
of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurodollar funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
Stock Based Plans means, collectively, (i) the stock option and other stock purchase
plans specified on Schedule IV hereto and (ii) all other stock option, stock-based incentive
compensation and stock purchase plans and other stock-based plans of the Borrower or any of its
Subsidiaries adopted from time to time hereafter in the ordinary course of business.
Subject Lender has the meaning assigned to such term in Section 10.04(i).
Subordinated Debt Incurrence means the incurrence by the Borrower or any of its
Subsidiaries after the Effective Date of any Subordinated Indebtedness.
Subordinated Indebtedness means, collectively, (a) Indebtedness of the Borrower in
respect of the Senior Subordinated Notes and (b) other Indebtedness incurred in accordance with the
provisions of Section 7.11.
Subsidiary means, with respect to any Person (the parent) at any date, any
corporation, limited liability company, partnership, association or other entity (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 partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent. Unless otherwise specified, Subsidiary means a Subsidiary
of the Borrower.
Subsidiary Guarantor means each of the Subsidiaries of the Borrower identified under
the caption SUBSIDIARY GUARANTORS on the signature pages hereto and each Subsidiary of the
Borrower that becomes a Subsidiary Guarantor after the date hereof pursuant to Section 6.09(b).
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Swingline Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means Bank of America, N.A., a national banking association, in its
capacity as lender of Swingline Loans hereunder, or such other Lender as the Borrower may from time
to time select as the Swingline Lender hereunder pursuant to Section 2.04(e).
Swingline Loan means a Loan made pursuant to Section 2.04.
Taxes means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
Term Loan Commitments means, collectively, the Tranche A Term Loan Commitments, the
Tranche B Term Loan Commitments and the Incremental Term Loan Commitments.
Term Loan Maturity Date means: (a) with respect to the Tranche A Term Loans, June 5,
2011 (provided that if such day is not a Business Day, the Tranche A Term Loan Maturity
Date shall be the immediately preceding Business Day), (b) with respect to the Tranche B Term
Loans, June 5, 2013 (provided that if such date is not a Business Day, the Tranche B Term
Loan Maturity Date shall be the immediately preceding Business Day) and (c) with respect to the
Incremental Term Loans of any Series, the date specified in the Incremental Term Loan Agreement of
such Series as the final date upon which any payment of principal in respect of Incremental Term
Loans of such Series is to be made.
Term Loans means, collectively, the Tranche A Term Loans, the Tranche B Term Loans
and the Incremental Term Loans.
Tranche A Term Loan means a Loan made pursuant to Section 2.01(c), which may be an
ABR Loan and/or a Eurodollar Loan.
Tranche A Term Loan Commitment means, with respect to each Lender, the commitment,
if any, of such Lender to make one or more Tranche A Term Loans hereunder on the Effective Date,
expressed as an amount representing the maximum aggregate principal amount of the Tranche A Term
Loans to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 or 2.10 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 Lenders
Tranche A Term Loan Commitment is set forth opposite the name of such Lender on its Lender Addendum
under the caption Tranche A Term Loan Commitment, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Tranche A Term Loan Commitment, as applicable. The initial
aggregate amount of the Lenders Tranche A Term Loan Commitments is U.S.$1,200,000,000.
Tranche A Term Loan Lender means (a) initially, a Lender that has a Tranche A Term
Loan Commitment set forth opposite the name of such Lender on its Lender
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Addendum and (b) thereafter, a Lender from time to time holding a Tranche A Term Loan Commitment or
an outstanding Tranche A Term Loan.
Tranche B Term Loan means a Loan made pursuant to Section 2.01(c), which may be an
ABR Loan and/or a Eurodollar Loan.
Tranche B Term Loan Commitment means, with respect to each Lender, the commitment,
if any, of such Lender to make one or more Tranche B Term Loans hereunder on the Effective Date,
expressed as an amount representing the maximum aggregate principal amount of the Tranche B Term
Loans to be made by such Lender hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 or 2.10 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 Lenders
Tranche B Term Loan Commitment is set forth opposite the name of such Lender on its Lender Addendum
under the caption Tranche B Term Loan Commitment, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Tranche B Term Loan Commitment, as applicable. The initial
aggregate amount of the Lenders Tranche B Term Loan Commitments is U.S.$1,800,000,000.
Tranche B Term Loan Lender means (a) initially, a Lender that has a Tranche B Term
Loan Commitment set forth opposite the name of such Lender on its Lender Addendum and (b)
thereafter, a Lender from time to time holding a Tranche B Term Loan Commitment or an outstanding
Tranche B Term Loan.
Transactions means the execution, delivery and performance by each Obligor of this
Agreement and the other Loan Documents to which such Obligor is intended to be a party, the
borrowing of Loans, the use of the proceeds thereof, the consummation of the Vincor Acquisition and
the issuance of Letters of Credit hereunder.
2006 Senior Notes means Borrowers 8 5/8% Senior
Unsecured Notes due August 1, 2006 in an aggregate principal amount of U.S.$200,000,000.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans constituting such Borrowing, is determined by reference to
the Adjusted LIBO Rate, the Alternate Base Rate or, in the case of Swingline Loans, the Alternate
Base Rate or the Federal Funds Base Rate.
U.K. Equity Pledge Agreement means a Mortgage of Shares, substantially in the form
of Exhibit B-2, executed and delivered by Canandaigua Limited in favor of the Administrative Agent,
creating in favor of the Administrative Agent, for the benefit of the Lenders, a security interest
in the shares of Matthew Clark, up to but not exceeding such portion thereof as does not represent
more than 65% of the aggregate outstanding Voting Stock issued by Matthew Clark.
ULC Subsidiary means 3112751 Nova Scotia Company, an unlimited liability company
organized under the laws of Nova Scotia and an indirect Wholly-Owned Subsidiary of the Borrower.
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Uniform Commercial Code has the meaning assigned thereto in the U.S. Pledge
Agreement.
U.S. Dollars or U.S.$ refers to lawful money of the United States of
America.
U.S. Pledge Agreement means a Pledge Agreement substantially in the form of Exhibit
B-1 between the Borrower, the Subsidiary Guarantors and the Administrative Agent.
Vincor means Vincor International Inc., a Canadian corporation incorporated under
the CBCA.
Vincor Acquisition means the acquisition of Vincor by the Borrower (indirectly
through Canadian Acquisition Subsidiary) pursuant to the Vincor Arrangement Agreement, whereby
Vincor will become a Wholly-Owned Subsidiary of Canadian Acquisition Subsidiary.
Vincor Acquisition Entities means, collectively, Newco (US), Constellation
International Ventures, Inc., ULC Subsidiary, GP (Canada), LP (Canada), Canadian Acquisition
Subsidiary and AmalCo.
Vincor Agreements means each commitment letter, credit agreement, loan agreement,
indenture and other agreement or instrument constituting or evidencing or establishing terms and
conditions for Indebtedness of Vincor or any of its Subsidiaries, in each case as identified on
Schedule IX.
Vincor Arrangement Agreement means the Arrangement Agreement dated April 2, 2006
between the Borrower, Canadian Acquisition Subsidiary and Vincor (including the Plan of Arrangement
attached thereto as Schedule C), as in effect on the date hereof.
Vincor Shareholder has the meaning ascribed to the term Shareholder in the Vincor
Arrangement Agreement.
Vincor Shares has the meaning ascribed to the term Common Shares in the Vincor
Arrangement Agreement.
Voting Stock means stock of the class or classes pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of a corporation (irrespective of whether or not at
the time stock of any other class or classes shall have or might have voting power by reason of the
happening of any contingency).
Wholly-Owned Subsidiary means, with respect to any Person, any corporation, limited
liability company, partnership, association or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation, directors qualifying
shares) are directly or indirectly owned or controlled by such Person or one or more Wholly-Owned
Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
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Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a Revolving Loan) or by Type (e.g., a
Eurodollar Loan) or by Class and Type (e.g., a Revolving Eurodollar Loan); each Series of
Incremental Term Loans shall be deemed a separate Class of Loans hereunder. Borrowings also may be
classified and referred to by Class (e.g., a Revolving Borrowing) or by Type (e.g., a Eurodollar
Borrowing) or by Class and Type (e.g., a Revolving Eurodollar Borrowing); and each Series of
Incremental Term Loan Borrowings and Incremental Term Loan Commitments shall be deemed a separate
Borrowing and Commitment hereunder. Swingline ABR Loans and Swingline FFBR Loans shall be deemed to
be Loans of the same Class but different Types.
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 Persons successors and assigns, (c) the words herein,
hereof and hereunder, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words asset and Property shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
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SECTION 1.05. Currency Equivalents. At any time that any Alternative Currency Letter
of Credit is issued and outstanding:
(a) For purposes of determining (i) whether the amount of any issuance, renewal or
extension of any Alternative Currency Letter of Credit, together with all other Letters of
Credit then issued, and all Borrowings then outstanding, would exceed the aggregate amount of
Commitments, (ii) the aggregate unutilized amount of the Commitments and (iii) the outstanding
aggregate principal amount of Borrowings or aggregate face amount of issued Alternative
Currency Letters of Credit, the face amount of any Alternative Currency Letter of Credit shall
be deemed to be the Dollar Equivalent of the face amount of such Alternative Currency Letter of
Credit determined as of the date of such determination. In connection with any issuance,
renewal or extension of an Alternative Currency Letter of Credit where a required minimum or
multiple amount is expressed in Dollars, the minimum or multiple amount will be the relevant
Alternative Currency Equivalent of such Dollar amount (rounded to the nearest 1,000 units of
the relevant Alternative Currency).
(b) Not later than 1:00 p.m., New York City time, on the last Business Day of each
calendar month (each such day, a Calculation Date), the Administrative Agent shall
(i) determine the Exchange Rate as of such Calculation Date to be used for calculating the
Dollar Equivalent amounts of each Alternative Currency in which there is an outstanding
Alternative Currency Letter of Credit or an unreimbursed LC Disbursement denominated in an
Alternative Currency and (ii) give notice thereof to the Borrower. The Exchange Rates so
determined shall become effective on the first Business Day immediately following the relevant
Calculation Date (a Reset Date), shall remain effective until the next succeeding
Reset Date and shall for all purposes of this Agreement (other than converting into Dollars
under Sections 2.05(f), (g), (j), (l) and (n) and 2.11(b) the obligations of the Borrower and
the Dollar Revolving Lenders in respect of LC Disbursements denominated in an Alternative
Currency that have not been reimbursed when due) be the Exchange Rates employed in converting
any amounts between the applicable currencies.
(c) Not later than 5:00 p.m., New York City time, on each Reset Date, the Administrative
Agent shall (i) determine the Alternative Currency LC Exposure on such date (after giving
effect to any Alternative Currency Letters of Credit issued, renewed or terminated or requested
to be issued, renewed or terminated on such date) and (ii) notify the Borrower and each Issuing
Lender of the results of such determination.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
(a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Revolving Lender agrees to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not result in (i) such
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Lenders Revolving Exposure exceeding such Lenders Revolving Commitment and (ii) the sum of the
total Revolving Exposures exceeding the total Revolving Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
(b) Tranche A Term Loans. Subject to the terms and conditions set forth herein, each
Tranche A Term Loan Lender agrees to make a Tranche A Term Loan to the Borrower on the Effective
Date in a principal amount not exceeding its Tranche A Term Loan Commitment. Amounts repaid in
respect of Tranche A Term Loans may not be reborrowed hereunder.
(c) Tranche B Term Loans. Subject to the terms and conditions set forth herein, each
Tranche B Term Loan Lender agrees to make a Tranche B Term Loan to the Borrower on the Effective
Date in a principal amount not exceeding its Tranche B Term Loan Commitment. Amounts repaid in
respect of Tranche B Term Loans may not be reborrowed hereunder.
(d) Limit on Revolving Loans. Notwithstanding the foregoing provisions of this Section
2.01, in no event shall the total Revolving Exposure, after giving effect to any borrowing on any
date of Revolving Loans, Swingline Loans or issuance, renewal or extension of any Letter of Credit
hereunder, exceed the lesser of (i) U.S.$500,000,000 and (ii) the aggregate outstanding principal
amount of the Revolving Commitments on such date.
(e) Incremental Term Loans. In addition to Borrowings of Revolving Loans, Tranche A
Term Loans and Tranche B Term Loans specified in Section 2.01(a), (b) and (c), respectively, at any
time and from time to time prior to the Incremental Term Loan Availability Date, the Borrower may
request that the Lenders offer to enter into commitments to make Incremental Term Loans to the
Borrower in U.S. Dollars. It is understood in each case that such offer may be made by any
financial institution that is to become a Lender hereunder in connection with the making of such
offer under this paragraph (e), so long as the Administrative Agent shall have consented to such
financial institution being a Lender hereunder (such consent shall not be unreasonably withheld).
In the event that one or more of the Lenders offer, in their sole discretion, to enter into such
commitments, and such Lenders and the Borrower agree as to the amount of such commitments that
shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be
payable by the Borrower in connection therewith and the Applicable Rate and (in the case of
Incremental Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and
such Lenders shall execute and deliver an Incremental Term Loan Agreement and such Lenders shall
become obligated to make Incremental Term Loans under this Agreement in an amount equal to the
amount of their respective Incremental Term Loan Commitments as specified in such Incremental Term
Loan Agreement. The Incremental Term Loans to be made pursuant to any Incremental Term Loan
Agreement in response to any such request by the Borrower shall be deemed to be a separate
Series of Incremental Term Loans for all purposes of this Agreement.
Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of
Incremental Term Loan Commitments entered into pursuant to any request specified above (and,
accordingly, the minimum aggregate principal amount of any Series of Incremental Term Loans) shall
be $75,000,000, (ii) the aggregate outstanding principal amount of Incremental Term Loans of all
Series, together with the aggregate unutilized Incremental
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Term Commitments of all Series, shall not exceed $500,000,000 at any time, (iii) the Incremental
Term Loan Commitments of any Series shall terminate on the earlier of the Incremental Term Loan
Availability Date and the date after the date of the respective Incremental Term Loan Agreement for
such Series as agreed upon by the Borrower and the Incremental Term Loan Lenders and (iv) in no
event shall the Incremental Term Loan Agreement for any Series of Incremental Term Loans provide
for the final maturity of the Incremental Term Loans of such Series to be earlier than the Tranche
B Term Loan Maturity Date, or for the weighted average life to maturity of the Incremental Term
Loans of such Series to be less than the weighted average life to maturity of the Tranche B Term
Loans as of the date of such Incremental Term Loan Agreement (such determination of average life to
be made by the Administrative Agent).
Following agreement by the Borrower and one or more of the Lenders as provided above, subject
to the terms and conditions set forth herein, each Incremental Term Loan Lender of any Series
agrees to make Incremental Term Loans of such Series to the Borrower from time to time during the
period from and including the date of the respective Incremental Term Loan Agreement for such
Series to and including the earlier of the Incremental Term Loan Availability Date and the date
after the date of such Incremental Term Loan Agreement as agreed upon by the Borrower and the
Incremental Term Loan Lenders, in an aggregate principal amount up to but not exceeding the amount
of the Incremental Term Loan Commitment of such Series of such Incremental Term Loan Lender.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing consisting
of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for any other Lenders
failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.13, each Borrowing shall be constituted
entirely of ABR Loans or Eurodollar Loans (as the Borrower may request) in accordance herewith.
Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the commencement of the
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount of
U.S.$3,000,000 or a larger multiple of U.S.$100,000. At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate amount equal to U.S.$3,000,000 or a larger multiple of
U.S.$100,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments of the applicable Class or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(g). Each Swingline
Loan shall be in an amount equal to U.S.$500,000 or a larger multiple of U.S.$100,000. Borrowings
of more than one Type and
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Class may be outstanding at the same time; provided that there shall not at any time be
more than a total of thirty (30) Eurodollar Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods. Notwithstanding any other provision of
this Agreement, the Borrower shall not be entitled to request, or to elect to convert to or
continue as a Eurodollar Borrowing: (i) any Revolving Borrowing if the Interest Period requested
therefor would end after the Revolving Commitment Termination Date; (ii) any Term Loan Borrowing if
the Interest Period requested therefor would end after the Term Loan Maturity Date for the relevant
Class; or (iii) unless the Borrower shall confirm to the Administrative Agent in connection with
such request or election that the Borrower intends to compensate each Lender pursuant to Section
2.15 (to the extent required to do so thereunder), any Term Loan Borrowing if the Interest Period
requested therefor would commence before and end after any Principal Payment Date unless, after
giving effect thereto, the aggregate principal amount of the Tranche A Term Loans, Tranche B Term
Loans or Incremental Term Loans, as the case may be, having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate principal amount of the Tranche
A Term Loans, Tranche B Term Loans or Incremental Term Loans, respectively, permitted to be
outstanding after giving effect to the payments of principal required to be made on such Principal
Payment Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York
City time, on the date of the proposed Borrowing; provided that any such notice of a
Revolving ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(g) may be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing
Request in a form approved by such Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing, Tranche A Term Loan
Borrowing, Tranche B Term Loan Borrowing or Incremental Term Loan Borrowing (including, if
applicable, the respective Series of Incremental Term Loans to which such Borrowing relates);
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be a
period contemplated by the definition of the term Interest Period; and
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(vi) the location and number of the Borrowers account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one months
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Revolving Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
U.S.$50,000,000 or (ii) the total Revolving Exposure exceeding the total Revolving Commitments;
provided that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Interest Rates. Swingline Loans shall be ABR Loans or FFBR Loans (with an Interest
Period of two weeks), as selected by the Borrower, except that the Swingline Lender and the
Borrower may agree that the interest rate in respect of a Swingline Loan made by the Swingline
Lender, for a period ending on the date that is not earlier than one day and not later than fifteen
days after such Swingline Loan is made, be at an alternative rate of interest (and with such
applicable margins and prepayment premiums) as may from time to time be offered by the Swingline
Lender to the Borrower in its sole discretion; provided that upon any sale pursuant to
Section 2.04(d) of participations in any Swingline Loan the interest on which is determined by
reference to the Federal Funds Base Rate or any such alternative rate, such Swingline Loans shall
automatically be converted into an ABR Loan.
(c) Notice of Swingline Loans by the Borrower. To request a Swingline Loan, the
Borrower shall notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan.
Each such notice shall be irrevocable and shall specify the requested date (which shall be a
Business Day), amount and Type of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline
Lender shall make each Swingline Loan available to the Borrower by means of a credit to a deposit
account designated by the Borrower (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(g), by remittance to the respective
Issuing Lender) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(d) Participations by Lenders in Swingline Loans. The Swingline Lender may by written
notice given to the Administrative Agent not later than 10:00 a.m., New York City time,
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on any Business Day require the Revolving Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Loans outstanding. Such notice to the Administrative Agent shall
specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Revolving Lender, specifying in such notice such Revolving Lenders Applicable Percentage of such
Swingline Loan or Swingline Loans on the applicable Business Day as provided above. Each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above in
this paragraph, to pay to the Administrative Agent, for account of the Swingline Lender, such
Revolving Lenders Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant
to this paragraph is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Revolving Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in
any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any
amounts received by the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative Agent; any such
amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant
to this paragraph shall not relieve the Borrower of any default in the payment thereof.
(e) Replacement of Swingline Lender. The Borrower may at any time, and from time to
time, request that the then-current Swingline Lender be replaced with another Lender hereunder
designated by the Borrower and reasonably satisfactory to the Administrative Agent. Any such
replacement shall be effected pursuant to a written instrument, in form and substance reasonably
satisfactory to the Administrative Agent, under which such new Lender agrees to become the
Swingline Lender hereunder, and the predecessor Swingline Lender is relieved of all of its
obligations hereunder as the Swingline Lender; provided that in no event shall any such
replacement occur unless the principal of and interest on all of the Swingline Loans of the
predecessor Swingline Lender shall have been paid in full.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in addition to the
Loans provided for in Section 2.01, the Borrower may request an Issuing Lender to issue, at any
time and from time to time during the Revolving Availability Period, Committed Letters of Credit
for its own account in such form as is acceptable to such Issuing Lender in its reasonable
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determination. Committed Letters of Credit issued hereunder shall constitute utilization of the
Revolving Commitments specified by the Borrower at the time it requests such Committed Letter of
Credit to be issued hereunder.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request the issuance of a
Committed Letter of Credit (or the amendment, renewal or extension of an outstanding Committed
Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the respective Issuing Lender) to
the respective Issuing Lender and the Administrative Agent (reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Committed
Letter of Credit, or identifying the Committed Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which shall be a Business
Day), the date on which such Committed Letter of Credit is to expire (which shall comply with
paragraph (e) of this Section) and the amount of such Committed Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Committed Letter of Credit. If requested by the respective Issuing
Lender, the Borrower also shall submit a letter of credit application on such Issuing Lenders
standard form in connection with any request for a Committed Letter of Credit. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, an Issuing Lender relating to any Committed Letter of Credit,
the terms and conditions of this Agreement shall control.
(c) Alternative Currency Letters of Credit.
(i) Requests for Offers. From time to time during the Revolving Availability Period
the Borrower may request the Issuing Lenders to make offers to issue a Letter of Credit denominated
in an Alternative Currency for account of the Borrower. Each Issuing Lender may, but shall have no
obligation to, make such offers on terms and conditions that are satisfactory to such Issuing
Lender, and the Borrower may, but shall have no obligation to, accept any such offers. The issuance
of each Alternative Currency Letter of Credit shall be subject to the conditions of Section 5.02
and to such other conditions as are agreed upon by the Borrower and the Issuing Lender issuing such
Alternative Currency Letter of Credit. Subject to the other provisions of this Section 2.05, each
such Alternative Currency Letter of Credit shall be issued, and subsequently, renewed, extended,
amended and confirmed, on such terms as the Borrower and such Issuing Lender shall agree,
including, without limitation, expiry, drawing conditions, reimbursement, interest, fees and
provision of cover. Each Alternative Currency Letter of Credit shall constitute utilization of the
Revolving Commitments specified by the Borrower at the time it requests such Alternative Currency
Letter of Credit to be issued hereunder.
(ii) Reports to Administrative Agent. Each Issuing Lender shall deliver to the
Administrative Agent and each other Issuing Lender a report in respect of each Alternative Currency
Letter of Credit (each such report, an Alternative Currency Letter of Credit Report) on
and as of the date on which (x) such Alternative Currency Letter of Credit is issued, (y) the
issuance, renewal, extension or amendment of a Committed Letter of Credit, if any Alternative
Currency Letter of Credit is then outstanding, and (z) the Revolving Commitments
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are to be reduced pursuant to Section 2.08, specifying for each such Alternative Currency Letter of
Credit (after giving effect to issuance thereof, as applicable):
(A) the date on which such Alternative Currency Letter of Credit was or is being issued;
(B) the Alternative Currency of such Alternative Currency Letter of Credit;
(C) the aggregate undrawn amount of such Alternative Currency Letter of Credit (in such
Alternative Currency);
(D) the aggregate unpaid amount of LC Disbursements under such Alternative Currency Letter
of Credit (in such Alternative Currency);
(E) the Dollar Equivalent of the Alternative Currency LC Exposure in respect of such
Alternative Currency Letter of Credit; and
(F) the Dollar Equivalent of the aggregate amount of Alternative Currency LC Exposures in
respect of Alternative Currency Letters of Credit issued by such Issuing Lender.
Each Alternative Currency Letter of Credit Report shall be delivered to the Administrative
Agent and the Issuing Lenders by 10:00 a.m. (New York City time) on the date on which it is
required to be delivered. The Borrower agrees to promptly provide the Issuing Lenders with such
reasonably requested information as may be needed to prepare an Alternative Currency Letter of
Credit Report.
(d) Limitations on Amounts. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate LC Exposure of all Issuing Lenders (determined
for these purposes without giving effect to the participations therein of the Revolving Lenders
pursuant to paragraph (f) of this Section) shall not exceed U.S.$200,000,000, (ii) the total
Revolving Exposure shall not exceed the total Revolving Commitments and (iii) the aggregate LC
Exposure of such Issuing Lender (determined for these purposes without giving effect to the
participations therein of the Revolving Lenders pursuant to paragraph (f) of this Section) shall
not exceed the maximum LC Exposure for such Issuing Lender, if any, specified in the instrument
contemplated by clause (k) below.
(e) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date twelve months after the date of the issuance of such Letter
of Credit (or, in the case of any renewal or extension thereof, twelve months after the
then-current expiration date of such Letter of Credit, so long as such renewal or extension occurs
within three months of such then-current expiration date) and (ii) the date that is five Business
Days prior to the Revolving Commitment Termination Date.
(f) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter
of Credit increasing the amount thereof) by any Issuing Lender in respect of the Revolving
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Commitments, and without any further action on the part of such Issuing Lender or the Revolving
Lenders, such Issuing Lender hereby grants to each Revolving Lender, and each such Revolving Lender
hereby acquires from such Issuing Lender, a participation in such Letter of Credit equal to such
Revolving Lenders Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for account of the respective
Issuing Lender, such Lenders Applicable Percentage of (x) each LC Disbursement made by an Issuing
Lender in respect of each Committed Letter of Credit and (y) the Dollar Equivalent, using the
Exchange Rates on the date such payment is required, of each LC Disbursement made by such Issuing
Lender in an Alternative Currency, promptly upon the request of such Issuing Lender at any time
from the time of such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or
at any time after any reimbursement payment is required to be refunded to the Borrower for any
reason. Each such payment shall be made in the same manner as provided in Section 2.06 with respect
to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
respective Issuing Lender the amounts so received by it from the Revolving Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to the respective
Issuing Lender or, to the extent that the Lenders have made payments pursuant to this paragraph to
reimburse such Issuing Lender, then to such Lenders and such Issuing Lender as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing
Lender for any LC Disbursement shall not constitute a Loan and shall not relieve the Borrower of
its obligation to reimburse such LC Disbursement.
(g) Reimbursement. If an Issuing Lender shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such Issuing Lender in respect of such LC
Disbursement (i) under a Committed Letter of Credit by paying to the Administrative Agent an amount
in Dollars equal to such LC Disbursement not later than 12:00 noon, New York City time, on (x) the
Business Day that the Borrower receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, or (y) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such time
(provided that, if such LC Disbursement is not less than $100,000, the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or
2.04 that such payment be financed with a Revolving ABR Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrowers obligation to make such payment
shall be discharged and replaced by the resulting Revolving ABR Borrowing or Swingline Loan) and
(ii) under an Alternative Currency Letter of Credit by paying to the Administrative Agent an amount
in the relevant Alternative Currency equal to such LC
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Disbursement or, if the Lenders have paid in Dollars to acquire a participation, an amount of
Dollars equal to such LC Disbursement not later that 12:00 noon, London time, on (x) the Business
Day that the Borrower receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., London time, or (y) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time.
If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lenders Applicable Percentage thereof, together with, in the case of an
LC Disbursement under an Alternative Currency Letter of Credit, the Dollar Equivalent of the
Lenders Applicable Percentage thereof, using the Exchange Rates which would apply were such Lender
to pay such amount on the date such notice is delivered to such Lender.
(h) Obligations Absolute. The Borrowers obligation to reimburse LC Disbursements as
provided in paragraph (g) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by the respective
Issuing Lender under a Letter of Credit against presentation of a draft or other document that does
not comply strictly with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of the Borrowers obligations
hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Lender, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by the respective Issuing Lender or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the respective Issuing Lender; provided that the
foregoing shall not be construed to excuse an Issuing Lender from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by such Issuing Lenders gross negligence or willful misconduct when determining
whether drafts and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that:
(i) an Issuing Lender may accept documents that appear on their face to be in substantial
compliance with the terms of a Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the contrary, and may
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make payment upon presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
(ii) an Issuing Lender shall have the right, in its sole discretion, to decline to accept
such documents and to make such payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be exercised by an Issuing
Lender when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).
(i) Disbursement Procedures. The Issuing Lender for any Letter of Credit shall, within
a reasonable time following its receipt thereof, examine all documents purporting to represent a
demand for payment under such Letter of Credit. Such Issuing Lender shall promptly after such
examination notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether such Issuing Lender has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse such Issuing Lender and the Lenders with
respect to any such LC Disbursement.
(j) Interim Interest. If the Issuing Lender for any Letter of Credit shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (g) of this Section, then Section 2.12(d) shall apply; provided further
that, in case of any LC Disbursement made under an Alternative Currency Letter of Credit, the
amount of interest due with respect thereto shall be payable in U.S. Dollars and shall accrue on
the Dollar Equivalent thereof calculated using the Exchange Rates on the date such LC Disbursement
was made. Interest accrued pursuant to this paragraph shall be for account of such Issuing Lender,
except that interest accrued on and after the date of payment by any Lender pursuant to paragraph
(g) of this Section to reimburse such Issuing Lender shall be for account of such Lender to the
extent of such payment.
(k) Addition / Termination of Issuing Lenders. Any Lender may be added as an Issuing
Lender (each such Lender, an Additional Issuing Lender) at any time pursuant to a written
agreement among the Borrower, the Administrative Agent and such Additional Issuing Lender and to be
in form and substance reasonably satisfactory to such Additional Issuing Lender and the
Administrative Agent. The Administrative Agent shall notify the Lenders of each Additional Issuing
Lender. From and after the effective date of any such addition, (i) the Additional Issuing Lender
shall have all the rights and obligations of an Issuing Lender under this Agreement with respect to
Letters of Credit to be issued by it thereafter and (ii) references herein to the term Issuing
Lender shall be deemed to include such Additional Issuing Lender.
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In addition, any Issuing Lender, with the consent of the Borrower, may cease being an Issuing
Lender (each such Issuing Lender, a Terminating Issuing Lender) at any time pursuant to a
written agreement among the Borrower, the Administrative Agent and such Terminating Issuing Lender
and to be in form and substance reasonably satisfactory to such Terminating Issuing Lender, the
Administrative Agent and the Borrower. The Administrative Agent shall notify the Lenders of each
Terminating Issuing Lender. At the time such termination is effective, the Borrower shall pay all
unpaid fees accrued for account of the respective Terminating Issuing Lender. After the termination
of a Terminating Issuing Lender, such Terminating Issuing Lender shall remain a party hereto as an
Issuing Lender and shall continue to have all the rights and obligations of an Issuing Lender with
respect to the Letters of Credit issued by it prior to such termination, but shall not be required
to issue additional Letters of Credit.
(l) Cash Collateralization. If an Event of Default shall occur and be continuing and
the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Lenders with LC Exposure representing at least
66- 2/3% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall immediately deposit into the Collateral
Account an amount in cash equal to, in the case of an Event of Default, the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that (i) the portions
of such amount attributable to Alternative Currency Letters of Credit or LC Disbursements
denominated in Alternative Currencies shall be deposited in the applicable Alternative Currencies
in the actual amounts of such undrawn Alternative Currency Letters of Credit and LC
Disbursements and (ii) the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VIII. For purposes of this paragraph, Alternative
Currency LC Exposure shall be calculated using the Exchange Rates on the date notice demanding cash
collateralization is delivered to the Borrower. Such deposit shall be held by the Administrative
Agent in the Collateral Account as collateral in the first instance for the LC Exposure under this
Agreement and thereafter for the payment of the Secured Obligations under and as defined in the
U.S. Pledge Agreement, and for these purposes the Borrower hereby grants a security interest to the
Administrative Agent for the benefit of the Lenders in the Collateral Account and in any financial
assets (as defined in the Uniform Commercial Code) or other Property held therein.
(m) Existing Letters of Credit. Pursuant to (i) section 2.05 of the Existing Credit
Agreement, JPMorgan Chase, as an Issuing Lender thereunder, has issued various Letters of
Credit under and as defined in the Existing Credit Agreement, and (ii) the The Bank of Nova Scotia
has issued various Letters of Credit as listed identified on Schedule IX. On the Effective Date,
subject to the satisfaction of the conditions to effectiveness of the obligations of the Lenders
hereunder set forth in Article V, each of such Letters of Credit under the Existing Credit
Agreement and Letters of Credit issued by the The Bank of Nova Scotia shall automatically, and
without any action on the part of any Person, become a Letter of Credit hereunder and constitute a
utilization of the Revolving Commitments. Each Letter of Credit issued by The Bank of Nova Scotia
will constitute a Letter of Credit under this Agreement notwithstanding that it does not comply
with Section 2.05(e) of this Agreement; provided that
- 46 -
any replacement, varied or amended Letter of Credit issued by The Bank of Nova Scotia as listed in
Schedule IX after the date hereof must comply with all provisions of this Section 2.05.
(n) Conversion. In the event that the Loans become immediately due and payable on any
date pursuant to Article VIII, all amounts (i) that the Borrower is at the time or thereafter
becomes required to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Alternative Currency Letter of Credit (other than amounts in respect
of which the Borrower has deposited cash collateral pursuant to paragraph (l) of this Section, if
such cash collateral was deposited in the applicable Alternative Currency to the extent so
deposited or applied), (ii) that the Revolving Lenders are at the time or thereafter become
required to pay to the Administrative Agent and the Administrative Agent is at the time or
thereafter becomes required to distribute to the Issuing Lenders pursuant to paragraph (g) of the
Section in respect of unreimbursed LC Disbursements made under any Alternative Currency Letter of
Credit and (iii) of each Revolving Lenders participation in any Alternative Currency Letter of
Credit under which an LC Disbursement has been made shall, automatically and with no further action
required, be converted into the Dollar Equivalent, calculated using the Exchange Rates on such date
(or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is
made), of such amounts. On and after such conversion, all amounts accruing and owed to the
Administrative Agent, the Issuing Lenders or any Revolving Lender in respect of the obligations
described in this paragraph shall accrue and be payable in Dollars at the rates otherwise
applicable hereunder.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York
City time, to the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by
promptly remitting the amounts so received, in like funds, to an account of the Borrower designated
by the Borrower in the applicable Borrowing Request; provided that Revolving ABR Borrowings
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(g) shall be
remitted by the Administrative Agent to the respective Issuing Lender.
(b) Presumption by the Administrative Agent. Unless the Administrative Agent shall
have received notice from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lenders share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If
- 47 -
such Lender pays such amount to the Administrative Agent, then such amount shall constitute such
Lenders Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Elections for Borrowings. Each Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have the
Interest Period specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert any Borrowing made to it to a Borrowing of a different Type or
to continue such Borrowing as a Borrowing of the same Type and, the Borrower, in the case of a
Eurodollar Borrowing, may elect the Interest Period for Borrowings made to it, all as provided in
this Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans constituting such Borrowing, and the Loans constituting each such portion shall
be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time that a Borrowing
Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the
Type resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.
(c) Information in Interest Election Requests. Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies (including, if
applicable, the respective Series of Incremental Term Loans to which such Interest Election
Request relates) and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clause (iii) of this paragraph shall be specified for
each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day; and
(iii) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor
after giving effect to such election, each of which shall be a period contemplated by the
definition of the term Interest Period.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
months duration.
- 48 -
(d) Notice by the Administrative Agent to Lenders. Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each relevant Lender of the
details thereof and of each such Lenders portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to deliver a timely
Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing under clause (a),
(b), (h) or (i) of Article VIII and the Administrative Agent, at the request of the Required
Lenders, so notifies the Borrower, then, so long as such Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of the Commitments.
(a) Scheduled Termination. Unless previously terminated, (i) the Tranche A Term Loan
Commitments and the Tranche B Term Loan Commitments shall terminate at 5:00 p.m., New York City
time, on the Effective Date, (ii) the Incremental Term Loan Commitments of each Series shall
terminate on the Incremental Term Loan Availability Date and (iii) the Revolving Commitments shall
terminate on the Revolving Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time terminate, or
from time to time reduce, the Commitments of any Class; provided that (i) each reduction of
the Commitments of any Class pursuant to this Section shall be in an amount that is U.S.$3,000,000
or a larger multiple of U.S.$100,000, or the remaining amount of the Commitments of such Class and
(ii) except as provided in Section 2.08(d) (but subject to Section 2.10(c)), the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment
of the Revolving Loans in accordance with Section 2.10, the total Revolving Exposure would exceed
the total Revolving Commitments.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall notify the
Administrative Agent of any election to terminate or reduce the Commitments of any Class under
paragraph (b) of this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction of the
Commitments of any Class shall be permanent. Each reduction of the Commitments of any
- 49 -
Class shall be made ratably among the Lenders in accordance with their respective Commitments
of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay the Loans as
follows:
(i) to the Administrative Agent for account of the Revolving Lenders the outstanding
principal amount of the Revolving Loans on the Revolving Commitment Termination Date;
(ii) to the Administrative Agent for account of the Tranche A Term Loan Lenders the
outstanding principal amount of the Tranche A Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal Payment Date
(subject to adjustment pursuant to the first sentence of paragraph (b) of this Section):
|
|
|
|
|
Principal Payment Date |
|
Amount (U.S.$) |
September 1, 2006
|
|
|
45,000,000 |
|
December 1, 2006
|
|
|
45,000,000 |
|
|
|
|
|
|
March 1, 2007
|
|
|
45,000,000 |
|
June 1, 2007
|
|
|
45,000,000 |
|
September 1, 2007
|
|
|
45,000,000 |
|
December 1, 2007
|
|
|
45,000,000 |
|
|
|
|
|
|
March 1, 2008
|
|
|
45,000,000 |
|
June 1, 2008
|
|
|
45,000,000 |
|
September 1, 2008
|
|
|
60,000,000 |
|
December 1, 2008
|
|
|
60,000,000 |
|
|
|
|
|
|
March 1, 2009
|
|
|
60,000,000 |
|
June 1, 2009
|
|
|
60,000,000 |
|
September 1, 2009
|
|
|
75,000,000 |
|
December 1, 2009
|
|
|
75,000,000 |
|
|
|
|
|
|
March 1, 2010
|
|
|
75,000,000 |
|
June 1, 2010
|
|
|
75,000,000 |
|
September 1, 2010
|
|
|
75,000,000 |
|
December 1, 2010
|
|
|
75,000,000 |
|
|
|
|
|
|
March 1, 2011
|
|
|
75,000,000 |
|
June 1, 2011
|
|
|
75,000,000 |
|
- 50 -
(iii) to the Administrative Agent for account of the Tranche B Term Loan Lenders the
outstanding principal amount of the Tranche B Term Loans on each Principal Payment Date set
forth below in the aggregate principal amount set forth opposite such Principal Payment Date
(subject to adjustment pursuant to the first sentence of paragraph (b) of this Section):
|
|
|
|
|
Principal Payment Date |
|
Amount (U.S.$) |
September 1, 2006
|
|
|
4,500,000 |
|
December 1, 2006
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2007
|
|
|
4,500,000 |
|
June 1, 2007
|
|
|
4,500,000 |
|
September 1, 2007
|
|
|
4,500,000 |
|
December 1, 2007
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2008
|
|
|
4,500,000 |
|
June 1, 2008
|
|
|
4,500,000 |
|
September 1, 2008
|
|
|
4,500,000 |
|
December 1, 2008
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2009
|
|
|
4,500,000 |
|
June 1, 2009
|
|
|
4,500,000 |
|
September 1, 2009
|
|
|
4,500,000 |
|
December 1, 2009
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2010
|
|
|
4,500,000 |
|
June 1, 2010
|
|
|
4,500,000 |
|
September 1, 2010
|
|
|
4,500,000 |
|
December 1, 2010
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2011
|
|
|
4,500,000 |
|
June 1, 2011
|
|
|
4,500,000 |
|
September 1, 2011
|
|
|
4,500,000 |
|
December 1, 2011
|
|
|
4,500,000 |
|
|
|
|
|
|
March 1, 2012
|
|
|
4,500,000 |
|
June 1, 2012
|
|
|
4,500,000 |
|
September 1, 2012
|
|
|
423,000,000 |
|
December 1, 2012
|
|
|
423,000,000 |
|
|
|
|
|
|
March 1, 2013
|
|
|
423,000,000 |
|
June 1, 2013
|
|
|
423,000,000 |
|
(iv) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earliest of (A) the Revolving Commitment Termination Date, (B) the
- 51 -
fifteenth day after such Loan is made (but not earlier than one Business Day after such
Swingline Loan is made) and (C) in the case of any Swingline FFBR Loan, the earlier of (x) the
last day of the Interest Period for such Loan and (y) the last day of each March, June,
September and December in each year; provided that (i) if any such day is not a
Business Day, then the Borrower shall pay such Swingline Loan on the next preceding Business
Day and (ii) on each date that a U.S. Dollar Revolving Borrowing is made, the Borrower shall
repay all Swingline ABR Loans then outstanding; and
(v) to the Administrative Agent for the account of each Incremental Term Loan Lender of
any Series the outstanding principal amount of each Incremental Term Loan of such Lender of
such Series on the respective Incremental Term Loan Principal Payments Dates for the
Incremental Term Loans of such Series.
(b) Adjustment of Amortization Schedule. The scheduled repayments of Borrowings of
Term Loans of each Class to be made pursuant to clause (a)(ii) and (iii) above shall be reduced as
provided in Sections 2.10(a) and 2.10(b)(vi). To the extent not previously paid, all Term Loans of
each Class shall be due and payable on the Term Loan Maturity Date for such Class.
(c) Manner of Payment. Prior to any repayment or prepayment of any Borrowings of any
Class hereunder, the Borrower shall select the Borrowing or Borrowings of the applicable Class to
be paid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, four Business Days before the scheduled
date of such payment; provided that, in the case of a payment by the Borrower, unless
otherwise specified by the Borrower, each payment of Borrowings by the Borrower of any Class shall
be applied to pay any outstanding ABR Borrowings of such Class before any other Borrowings by the
Borrower of such Class. If the Borrower fails to make a selection of the Borrowing or Borrowings by
the Borrower to be repaid or prepaid within the applicable time period, such payment shall be
applied, first, to pay any outstanding ABR Borrowings of the applicable Class and, second, to other
Borrowings of the Borrower of such Class in the order of the remaining duration of their respective
Interest Periods (the Borrowing with the shortest remaining Interest Period to be paid first). Each
payment of a Borrowing shall be applied ratably to the Loans included in such Borrowing.
(d) Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(e) Maintenance of Loan Accounts by the Administrative Agent. The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the
Class and Type thereof and each Interest Period therefor, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the
Lenders and each Lenders share thereof.
- 52 -
(f) Effect of Entries. The entries made in the accounts maintained pursuant to
paragraph (d) or (e) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(g) Promissory Notes. Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender,
to such Lender and its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing made to it identified by the Borrower in whole or in part, subject
to the requirements of this Section; provided that the aggregate principal amount of any
prepayment on any date pursuant to this paragraph shall be at least equal to U.S.$2,000,000. Any
prepayment of a Tranche A Term Loan Borrowing, Tranche B Term Loan Borrowing or an Incremental Term
Loan Borrowing pursuant to this paragraph shall be applied (i) at the Borrowers option,
first to reduce up to the next four scheduled repayments thereof in direct chronological
order and second to reduce the remaining scheduled repayments thereof on a pro rata basis,
or (ii) if the Borrower so elects or does not designate its option under the immediately preceding
clause (i), to reduce the remaining scheduled payments thereof on a pro rata basis.
(b) Mandatory Prepayments All Loans. The Borrower will make prepayments of the
Loans hereunder as follows:
(i) Casualty Events. Upon the date 270 days following the receipt by the Borrower
of the proceeds of insurance, condemnation award or other compensation in respect of any
Casualty Event affecting any Property of the Borrower or any of its Subsidiaries (other than
any Non-Controlled Joint Venture Entity) (or upon such earlier date as the Borrower or such
Subsidiary, as the case may be, shall have determined not to repair or replace the Property
affected by such Casualty Event), the Borrower shall prepay the Loans in an aggregate amount,
if any, equal to 100% of the Net Available Proceeds of such Casualty Event not theretofore
applied to the repair or replacement of such Property, such prepayment to be effected in each
case in the manner and to the extent specified in clause (vi) below; provided that,
notwithstanding the foregoing, the Borrower shall not be required to make a prepayment under
this clause (i) to the extent that
(A) the Borrower advises the Administrative Agent at the time of receipt thereof that
it or such Subsidiary intends to reinvest such Net Available Proceeds into the business of
the Borrower and its Subsidiaries, and
- 53 -
(B) such Net Available Proceeds are in fact so applied to such reinvestment within
270 days of receipt thereof (it being understood that, in the event Net Available Proceeds
from more than one Casualty Event are held by the Borrower, or have been applied to the
prepayment of Revolving Loans, such Net Available Proceeds shall be deemed to be utilized
in the same order in which such Casualty Event occurred and, accordingly, any such Net
Available Proceeds so held or applied to the prepayment of Revolving Loans for more than
270 days shall be forthwith applied to the prepayment of Loans as provided above),
it being understood that, if the Borrower does not so advise the Administrative Agent that it
intends to use such Net Available Proceeds to make such reinvestment as provided above, or does
not in fact apply such Net Available Proceeds to reinvestments within the time periods
specified above, the Borrower shall immediately prepay Loans in an amount equal to the amount
specified above.
(ii) Dispositions. In the event that the Net Available Proceeds of any Disposition
(herein, the Current Disposition), and of all prior Dispositions consummated in the
then-current fiscal year of the Borrower as to which a prepayment has not yet been made under
this paragraph, shall exceed U.S.$30,000,000 then, no later than 365 days after the occurrence
of the Current Disposition, the Borrower will deliver to the Lenders a statement, certified by
a Financial Officer of the Borrower, in reasonable detail, of the amount of the Net Available
Proceeds of the Current Disposition and of all such prior Dispositions and will prepay Loans in
an aggregate amount equal to 100% of such excess amount of the Net Available Proceeds of the
Current Disposition and such prior Dispositions, such prepayment to be effected in each case in
the manner and to the extent specified in clause (vi) below; provided that,
notwithstanding the foregoing, so long as the Current Disposition is not a Disposition of
Receivable Assets as part of a Permitted Receivable Financing, the Borrower shall not be
required to make a prepayment under this clause (iii) to the extent that
(A) the Borrower advises the Administrative Agent at the time of such Disposition, or
as promptly as is reasonably practical thereafter, that it intends to use such Net
Available Proceeds to finance one or more Acquisitions pursuant to Section 7.05(b), or
otherwise to reinvest the proceeds thereof into the business of the Borrower and its
Subsidiaries, and
(B) such Net Available Proceeds are in fact so applied to such Acquisition(s) or
reinvestment within 365 days of such Disposition (it being understood that, in the event
Net Available Proceeds from more than one Disposition are held by the Borrower, or have
been applied to the prepayment of Revolving Loans, such Net Available Proceeds shall be
deemed to be utilized in the same order in which such Dispositions occurred and,
accordingly, any such Net Available Proceeds so held or applied to the prepayment of
Revolving Loans for more than 365 days shall be forthwith applied to the prepayment of
Loans as provided above),
- 54 -
it being understood that, if the Borrower does not so advise the Administrative Agent that it
or such Subsidiary intends to use such Net Available Proceeds to finance one or more
Acquisitions or make such reinvestment as provided above, or does not in fact apply such Net
Available Proceeds to one or more Acquisitions or reinvestments within the time periods
specified above, the Borrower shall immediately prepay Loans in an amount equal to the amount
specified above.
Notwithstanding the foregoing, to the extent that the amount of the required prepayment on
any date is not greater than U.S.$50,000,000, the Borrower shall not be required to make any
prepayment of a Eurodollar Borrowing until the expiration(s) of the then-current Interest
Periods.
(iii) Senior Debt Incurrence. On or prior to the date 90 days after the date of
any Senior Debt Incurrence, the Borrower shall prepay Loans in an aggregate amount equal to the
Net Available Proceeds thereof, such prepayment to be effected in each case in the manner and
to the extent specified in clause (vi) below; provided that, notwithstanding the
foregoing, the Borrower shall not be required to make a prepayment under this clause (iii) with
respect to the Net Available Proceeds of Senior Debt Incurrences after the date hereof to the
extent that
(A) the Borrower advises the Administrative Agent at the time of the relevant Senior
Debt Incurrence that it intends to use such Net Available Proceeds, in compliance with
Section 7.01(c)(ii)(A), to finance one or more Acquisitions pursuant to Section 7.05(b),
to prepay a Designated Revolving Borrowing in respect of which the related Acquisition has
been consummated as of the time of the relevant Senior Debt Incurrence, to repay, prepay
or redeem Senior Unsecured Indebtedness, or a combination of such Acquisitions and
payments,
(B) such Net Available Proceeds are held by the Borrower in a segregated investment
or other account (or, alternatively, applied to the prepayment of a Designated Revolving
Borrowing or other Revolving Loans), until so used to finance one or more Acquisitions, or
to repay, prepay or redeem such Senior Unsecured Indebtedness, as contemplated above, and
(C) such Net Available Proceeds are in fact so applied to such Acquisition(s), or to
the repayment, prepayment or redemption of such Senior Unsecured Indebtedness, within 180
days of such Senior Debt Incurrence (it being understood that, in the event Net Available
Proceeds from more than one Senior Debt Incurrence are held by the Borrower, or have been
applied to the prepayment of Revolving Loans, such Net Available Proceeds shall be deemed
to be utilized in the same order in which such Senior Debt Incurrences occurred and,
accordingly, any such Net Available Proceeds so held or applied to the prepayment of
Revolving Loans (other than any Designated Revolving Borrowing) for more than 180 days
shall be forthwith applied to the prepayment of Loans as provided above),
- 55 -
it being understood that, if the Borrower does not so advise the Administrative Agent that it
intends to use such Net Available Proceeds to finance one or more Acquisitions, to prepay a
Designated Revolving Borrowing or to repay, prepay or redeem such Senior Unsecured
Indebtedness, or does not in fact apply such Net Available Proceeds to one or more
Acquisitions, to the prepayment of a Designated Revolving Borrowing or to the repayment,
prepayment or redemption of such Senior Unsecured Indebtedness within the time periods
specified above, the Borrower shall immediately prepay Loans in an amount equal to the amount
specified above.
(iv) Subordinated Debt Incurrence. On or prior to the date 90 days after the date
of any Subordinated Debt Incurrence, the Borrower shall prepay Loans in an aggregate amount
equal to the portion of the Net Available Proceeds thereof that exceeds (in the aggregate for
all Subordinated Debt Incurrences after the date hereof that are not excluded by virtue of the
exclusion in clause (iii) of the definition of Net Available Proceeds) U.S.$200,000,000, such
prepayment to be effected in each case in the manner and to the extent specified in clause (vi)
below; provided that, notwithstanding the foregoing, the Borrower shall not be required
to make a prepayment under this clause (iv) to the extent that
(A) the Borrower advises the Administrative Agent at the time of the relevant
Subordinated Debt Incurrence that it intends to use such Net Available Proceeds to finance
one or more Acquisitions pursuant to Section 7.05(b), to make one or more Investments
permitted under Section 7.06(e), to prepay a Designated Revolving Borrowing in respect of
which the related Acquisition has been consummated as of the time of the relevant
Subordinated Debt Incurrence, to repay, prepay or redeem Subordinated Indebtedness or
Senior Unsecured Indebtedness, or a combination of such Acquisitions, Investments and
payments,
(B) such Net Available Proceeds are held by the Borrower in a segregated investment
or other account (or, alternatively, applied to the prepayment of a Designated Revolving
Borrowing or other Revolving Loans), until so used to finance one or more Acquisitions or
pay such Indebtedness, as contemplated above, and
(C) such Net Available Proceeds are in fact so applied to such Acquisition(s) or to
the payment, repayment or redemption of such Indebtedness within 180 days of such Debt
Incurrence (it being understood that, in the event Net Available Proceeds from more than
one Subordinated Debt Incurrence are held by the Borrower, or have been applied to the
prepayment of Revolving Loans, such Net Available Proceeds shall be deemed to be utilized
in the same order in which such Subordinated Debt Incurrences occurred and, accordingly,
any such Net Available Proceeds so held or applied to the prepayment of Revolving Loans
(other than any Designated Revolving Borrowing) for more than 180 days shall be forthwith
applied to the prepayment of Loans as provided above),
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it being understood that, if the Borrower does not so advise the Administrative Agent that it
intends to use such Net Available Proceeds to finance one or more Acquisitions or to make one
or more Investments, or pay, repay or redeem such Indebtedness, or does not in fact apply such
Net Available Proceeds to one or more Acquisitions or Investments or pay such Indebtedness
within the time periods specified above, the Borrower shall immediately prepay Loans in an
amount equal to the amount specified above.
(v) Foreign Subsidiary Debt Incurrence. On or prior to the date 90 days after the
date of any Foreign Subsidiary Debt Incurrence, the Borrower shall prepay Loans in an aggregate
amount equal to the Net Available Proceeds thereof unless such Net Available Proceeds are
applied or maintained for working capital or other general corporate purposes of the applicable
Foreign Subsidiary, such prepayment to be effected in each case in the manner and to the extent
specified in clause (vi) below.
(vi) Application. Prepayments by the Borrower pursuant to this paragraph (b) shall
be applied as follows:
first, such prepayment shall be applied to any then outstanding Term
Loans, ratably in accordance with the then-outstanding aggregate principal amounts
thereof; and
second, after the payment in full of any then outstanding Term Loans,
such prepayment shall be applied to any then outstanding Revolving Loans (without
reduction of Revolving Commitments), ratably in accordance with the then-outstanding
aggregate principal amounts thereof.
Each such prepayment of the Term Loans of any Class pursuant to this clause (b)(vi) shall
be applied (i) at the Borrowers option, first to reduce up to the next four scheduled
repayments thereof in direct chronological order and second to reduce the remaining
scheduled repayments thereof on a pro rata basis or (ii) if the Borrower so elects or does not
designate its option under the immediately preceding clause (i), to reduce the remaining
scheduled repayments thereof on a pro rata basis.
(vii) Escrow Agreement. If any funds are returned to the Administrative Agent in
accordance with the terms of clause 6(b) of the Escrow Agreement, the Administrative Agent on
behalf of the Borrower shall prepay Loans in an aggregate amount equal to the amount of such
funds, such prepayment to be effected in the manner and to the extent specified in clause (vi)
above.
(c) Mandatory Prepayments Revolving Loans. The Borrower will prepay the Revolving
Loans hereunder if requested by the Required Revolving Lenders (through the Administrative Agent)
if the Administrative Agent or such Lenders determine on any date that the total Revolving
Exposure, after giving effect to any Borrowing on any date of Revolving Loans or issuance, renewal
or extension of any Letter of Credit hereunder exceeds the aggregate outstanding principal amount
of the Revolving Commitments on such date, in an aggregate principal amount equal to such excess.
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(d) Notices, Etc. The Borrower shall notify the Administrative Agent (and, in the case
of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case
of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.08(c), then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08(c). Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise the relevant Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a
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 and shall be made
in the manner specified in Section 2.09(c).
SECTION 2.11. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for account
of each Revolving Lender a commitment fee, which shall accrue at the Applicable Rate on the daily
amount of the unused Revolving Commitments of such Revolving Lender during the period from and
including the Effective Date to but excluding the earlier of the date such Revolving Commitment terminates and the applicable Revolving Commitment Termination Date. Accrued
commitment fees shall be payable on each Quarterly Date and on the earlier of the date the
Revolving Commitments terminate and the Revolving Commitment Termination Date, commencing on the
first such date to occur after the date hereof. For purposes of this Section 2.11(a), outstanding
Swingline Loans shall not constitute a usage of the Revolving Commitments. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the Administrative Agent
for account of each Revolving Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Rate applicable
to interest on Eurodollar Revolving Loans on the average daily amount of such Lenders LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date on which such Lenders
Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure,
and (ii) to each Issuing Lender, a fronting fee, which shall accrue at the rate set forth in the
instrument of such Issuing Lender contemplated
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by Section 2.05(j) on the average daily amount of the LC Exposure of such Issuing Lender (excluding
any portion thereof attributable to unreimbursed LC Disbursements and determined for these purposes
without giving effect to the participations therein of the Revolving Lenders pursuant to paragraph
(f) of Section 2.05) during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as such Issuing Lenders standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including each Quarterly Date shall be
payable on the third Business Day following such Quarterly Date, commencing on the first such date
to occur after the Effective Date; provided that all such fees shall be payable on the date
on which the Revolving Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees payable to any Issuing
Lender pursuant to this paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the last day). For the
purposes of calculating the average daily balance of the LC Exposure for any period under this
Section 2.11(b), the average daily amount of the Alternative Currency LC Exposure for such period
shall be calculated by multiplying (x) the average daily balance of each Alternative Currency
Letter of Credit (expressed in the Alternative Currency of such Alternative Currency Letter of
Credit) by (y) the Exchange Rate for each such Alternative Currency in effect on the last Business
Day of such period or by such other reasonable method that the Administrative Agent deems
appropriate.
(c) Administrative Agent Fees. The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between
the Borrower and the Administrative Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
U.S. Dollars and in immediately available funds, to the Administrative Agent (or to the respective
Issuing Lender, in the case of fees payable to it) for distribution, in the case of commitment fees
and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under
any circumstances.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (other than in respect of
Swingline Loans, as to which paragraph (c) below shall apply) shall bear interest at a rate per
annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing plus the Applicable Rate.
(c) Swingline ABR and FFBR Borrowings. Each ABR Borrowing constituting a Swingline
Loan shall bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Rate. Each Swingline Borrowing the interest on which is determined by reference to the
Federal Funds Base Rate for any Interest Period therefor shall bear interest at a rate per
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annum, for each day during such Interest Period, equal to the Federal Funds Base Rate for such
period plus the Applicable Rate plus 0.50%. Each Swingline Borrowing the interest
on which is determined at an alternate rate of interest as contemplated in Section 2.04(b), shall
bear interest at the respective alternate rate of interest so agreed for the period so contemplated
by Section 2.04(b).
(d) Default Interest. Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the rate applicable
to ABR Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans, upon termination of
the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (d) of
this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of a Revolving ABR Loan prior to the Revolving Commitment Termination
Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of
such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Borrowing
prior to the end of the Interest Period therefor, accrued interest on such Borrowing shall be
payable on the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of the Interest
Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted
LIBO Rate or the LIBO Rate for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans, the Administrative Agent is
advised by the Required Lenders of such Class that the Adjusted LIBO Rate or the LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
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notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be converted to, or continued as, an
ABR Borrowing and (ii) any Borrowing Request that requests a Eurodollar Borrowing shall be made as
an ABR Borrowing.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Lender; or
(ii) impose on any Lender or any Issuing Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lenders of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or such Issuing Lender of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
such Issuing Lender hereunder (whether of principal, interest or otherwise), then the Borrower will
upon request pay to such Lender or such Issuing Lender, as the case may be, such additional amount
or amounts as will compensate such Lender or such Issuing Lender, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any Issuing Lender determines that any
Change in Law regarding capital requirements has or would have the effect of reducing the rate of
return on such Lenders or such Issuing Lenders capital or on the capital of such Lenders or such
Issuing Lenders holding company, if any, as a consequence of this Agreement or the Loans made by,
or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
such Issuing Lender, to a level below that which such Lender or such Issuing Lender or such
Lenders or such Issuing Lenders holding company could have achieved but for such Change in Law
(taking into consideration such Lenders or such Issuing Lenders policies and the policies of such
Lenders or such Issuing Lenders holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender or such Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Lender or such Lenders
or such Issuing Lenders holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender or an Issuing Lender setting
forth the amount or amounts necessary to compensate such Lender or such Issuing Lender or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error (such certificate, in the
case of any amount payable as specified in paragraph (a) of this Section, shall set forth in
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reasonable detail the calculation of such amount). The Borrower shall pay such Lender or such
Issuing Lender, as the case may be, the amount shown as due on any such certificate within 30 days
after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lenders or such Issuing Lenders right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or an Issuing Lender pursuant to this Section
for any increased costs or reductions incurred more than six months prior to the date that such
Lender or such Issuing Lender, as the case may be, notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lenders or such Issuing Lenders
intention to claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any principal
of any Eurodollar Loan or Swingline FFBR Loan other than on the last day of an Interest Period
therefor (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of an Interest Period therefor, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section 2.10(d) and is
revoked in accordance herewith), (d) the Borrowing of any Term Loan the Interest Period for which
commences before and ends after any Principal Payment Date (unless, after giving effect thereto,
the aggregate principal amount of the Tranche A Term Loans, Tranche B Term Loans or Incremental
Term Loans, as the case may be, having Interest Periods that end after such Principal Payment Date
shall be equal to or less than the aggregate principal amount of the Tranche A Term Loans, Tranche
B Term Loans or Incremental Term Loans, respectively, permitted to be outstanding after giving
effect to the payments of principal required to be made on such Principal Payment Date), or (e) the
assignment of any Eurodollar Loan other than on the last day of an Interest Period therefor as a
result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such event (including
such loss, cost and expense as calculated below but otherwise excluding any lost profit):
(a) in the case of a Eurodollar Loan, the loss to any Lender attributable to any such
event shall be deemed to include an amount determined by such Lender to be equal to the excess,
if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment, conversion,
Borrowing, failure or assignment to the last day of then current Interest Period for such Loan
(or (x) in the case of a failure to borrow, convert or continue, the duration of the Interest
Period that would have resulted from such borrowing, conversion or continuation and (y) in the
case of a Borrowing of any Term Loan, the period from the date of such Borrowing to the
applicable Principal Payment Date) if the interest rate payable on such deposit were equal to
the Adjusted LIBO Rate for such Interest Period (or, in the case of any Borrowing of Term
Loans, such other period), over (ii) the amount of interest that such Lender would earn
on such principal amount for such period if such Lender were to invest such principal amount
for such
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period at the interest rate that would be bid by such Lender (or an affiliate of such Lender)
for deposits in U.S. Dollars from other banks in the Eurodollar market at the commencement of
such period; and
(b) in the case of a Swingline FFBR Loan, the loss to the Swingline Lender attributable to
any such event shall be deemed to include an amount determined by the Swingline Lender to be
equal to the excess, if any, of (i) the Federal Funds Base Rate for the period commencing on
the date of such payment to but not including the last day of the Interest Period for such
Swingline FFBR Loan, over (ii) the Federal Funds Base Rate for such Interest Period.
A certificate of any Lender setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error (such certificate to include in reasonable detail the calculation of such
amount or amounts). The Borrower shall pay such Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Covered Taxes. Any and all payments by or on account of any
obligation of the Borrower or Subsidiary Guarantor hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower or such Subsidiary Guarantor shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or Issuing Lender (as
the case may be) receives an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower or such Subsidiary Guarantor shall make such deductions and (iii) the
Borrower or such Subsidiary Guarantor shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower or Subsidiary
Guarantor shall pay any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Indemnification by the Borrowers. The Borrower or Subsidiary Guarantor shall
indemnify the Administrative Agent, each Lender and each Issuing Lender, within 30 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent, such Lender or such Issuing Lender, as the case may
be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or an Issuing Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Lender, shall be conclusive absent manifest error
(such certificate to include in reasonable detail the calculation of such amount).
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(d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower or any Subsidiary Guarantor to a Governmental Authority, the
Borrower or such Subsidiary Guarantor, as the case may be, 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) Foreign Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower located, or
any treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(f) Refund. If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Indemnified Tax or Other Tax as to which it has
been indemnified by the Borrower or any Subsidiary Guarantor under this Section 2.16, it shall pay
over such refund to the Borrower or such Subsidiary Guarantor (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower or such Subsidiary Guarantor under this
Section 2.16 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the relevant Governmental Authority with respect to such refund);
provided, that the Borrower or such Subsidiary Guarantor, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower or such
Subsidiary Guarantor (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This Section
shall not be construed to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems confidential) to the
Borrower, any Subsidiary Guarantor or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) Payments by the Obligors. Each Obligor shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or
under Section 2.14, 2.15 or 2.16, or otherwise) or under any other Loan Document (except to the
extent otherwise provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off or counterclaim; provided that if a new
Loan is to be made by any Lender on a date the Borrower is to repay any principal of an outstanding
Loan of such Lender, such Lender shall apply the proceeds of such new Loan to the payment of the
principal to be repaid and only an amount equal to the difference between the principal to be
borrowed and the principal to be repaid shall be made available by such Lender to the
Administrative Agent as provided in Section 2.06 or paid by the Borrower to the Administrative
Agent pursuant to this paragraph, as the case may be. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest
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thereon. All such payments shall be made to the Administrative Agent at an office specified by it,
except as otherwise expressly provided in the relevant Loan Document, and except payments to be
made directly to an Issuing Lender or the Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments received by it for
account of any other Person to the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder or under
any other Loan Document shall be made in U.S. Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to
pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein: (i) each
Borrowing of a particular Class shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.11 shall be made for account of the relevant Revolving Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class under Section 2.08
shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata
according to the amounts of their respective Commitments of such Class; (ii) each Borrowing of any
Class shall be allocated pro rata among the relevant Lenders according to the amounts of their
respective Commitments of such Class (in the case of the making of Loans) or their respective Loans
of such Class (in the case of conversions and continuations of Loans); (iii) each payment or
prepayment of principal of Revolving Loans, Tranche A Term Loans, Tranche B Term Loans and
Incremental Term Loans by the Borrower shall be made for account of the relevant Lenders pro rata
in accordance with the respective unpaid principal amounts of the Loans of such Class held by them;
and (iv) each payment of interest on Revolving Loans, Tranche A Term Loans, Tranche B Term Loans
and Incremental Term Loans by the Borrower shall be made for account of the relevant Lenders pro
rata in accordance with the amounts of interest on such Loans then due and payable to the
respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon then due than the proportion
received by any other Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the
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aggregate amount of principal of and accrued interest on their respective Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by any Obligor pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Obligor consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such Obligor rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of such Obligor in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the Administrative Agent
for account of the Lenders or an Issuing Lender hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such
Issuing Lender, as the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders or such Issuing Lender, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender or such Issuing Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(d), 2.05(f) or (g), 2.06(b) or
2.17(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative Agent for account of
such Lender to satisfy such Lenders obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for account of any Lender pursuant to Section 2.16, then such Lender
shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.14 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 Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or assignment.
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(b) Replacement of Lenders. If any Lender requests compensation under Section
2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to Section 2.16, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrower may exercise its rights under Section
10.04(i).
ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. The Subsidiary Guarantors hereby jointly and severally
guarantee to each Lender and the Administrative Agent and their respective successors and assigns
the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of
the principal of and interest on the Loans made by the Lenders to the Borrower and all other
amounts from time to time owing to the Lenders or the Administrative Agent by the Borrower under
this Agreement and by any Obligor under any of the other Loan Documents, and all obligations of the
Borrower or any of its Subsidiaries to any Lender (or any Affiliate of any Lender) in respect of
any Hedging Agreement, in each case strictly in accordance with the terms hereof and thereof (such
obligations being herein collectively called the Guaranteed Obligations). The Subsidiary
Guarantors hereby further jointly and severally agree that if the Borrower or any of its
Subsidiaries shall fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of the Subsidiary Guarantors
under Section 3.01 are absolute and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the Borrower under this
Agreement or any other agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the Guaranteed Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section that the obligations of the Subsidiary Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and all circumstances.
In full recognition and in furtherance of the foregoing, each Subsidiary Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of Section 3.01 in accordance
with its terms and without affecting, limiting, reducing, discharging or terminating the
liability of such Subsidiary Guarantor, or the rights, remedies, powers and privileges of the
Administrative Agent and the Lenders under this Agreement or any other agreement or instrument
referred to herein or therein, the Administrative Agent and the Lenders may, at any time and
from time to time and without notice or demand of any kind or nature whatsoever:
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(i) amend, supplement, modify, extend, renew, waive, accelerate or otherwise
change the time for payment or performance of, or the terms of, all or any part of the
Guaranteed Obligations (including any increase or decrease in the rate or rates of
interest on all or any part of the Guaranteed Obligations);
(ii) amend, supplement, modify, extend, renew, waive or otherwise change, or enter
into or give, any Loan Document or any agreement, security document, guarantee, approval,
consent or other instrument with respect to all or any part of the Guaranteed Obligations,
any Loan Document or any such other instrument or any term or provision of the foregoing
(it being understood that this clause (ii) shall not be deemed to constitute a consent by
any Subsidiary Guarantor to any such amendment with respect to any Loan Document to which
it is a party);
(iii) accept or enter into new or additional agreements, security documents,
guarantees (including letters of credit) or other instruments in addition to, in exchange
for or relative to any Loan Document, all or any part of the Guaranteed Obligations or any
collateral now or in the future serving as security for the Guaranteed Obligations;
(iv) accept or receive (including from any other Subsidiary Guarantor) partial
payments or performance on the Guaranteed Obligations (whether as a result of the exercise
of any right, remedy, power or privilege or otherwise);
(v) accept, receive and hold any additional collateral for all or any part of the
Guaranteed Obligations (including from any other Subsidiary Guarantor);
(vi) release, reconvey, terminate, waive, abandon, allow to lapse or expire, fail to
perfect, subordinate, exchange, substitute, transfer, foreclose upon or enforce any
collateral, security documents or guarantees (including letters of credit or the
obligations of any other Subsidiary Guarantor) for or relative to all or any part of the
Guaranteed Obligations;
(vii) apply any collateral or the proceeds of any collateral or guarantee (including
any letter of credit or the obligations of any other Subsidiary Guarantor) to all or any
part of the Guaranteed Obligations in such manner and extent as the Administrative Agent
or any Lender may in its discretion determine;
(viii) release any Person (including any other guarantor) from any personal liability
with respect to all or any part of the Guaranteed Obligations;
(ix) settle, compromise, release, liquidate or enforce upon such terms and in such
manner as the Administrative Agent or the Lenders may determine or as applicable law may
dictate all or any part of the Guaranteed Obligations or any collateral on or guarantee
(including any letter of credit issued with respect to) of all or any part of the
Guaranteed Obligations;
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(x) consent to the merger or consolidation of, the sale of substantial assets
by, or other restructuring or termination of the corporate existence of the Borrower or
any other Person (including any other Subsidiary Guarantor);
(xi) proceed against the Borrower, such or any other Subsidiary Guarantor or any
other guarantor of (including any issuer of any letter of credit issued with respect to)
all or any part of the Guaranteed Obligations or any collateral provided by any Person and
exercise the right, remedies, powers and privileges of the Administrative Agent and the
Lenders under this Agreement or any other agreement or instrument referred to herein or
therein, or otherwise in such order and such manner as the Administrative Agent or any
Lender may, in its discretion, determine, without any necessity to proceed upon or against
or exhaust any collateral, right, remedy, power or privilege before proceeding to call
upon or otherwise enforce Section 3.01 as to any Subsidiary Guarantor;
(xii) foreclose upon any deed of trust, mortgage or other instrument creating or
granting liens on any interest in real Property by judicial or nonjudicial sale or by deed
in lieu of foreclosure, bid any amount or make no bid in any foreclosure sale or make any
other election of remedies with respect to such liens or exercise any right of set-off;
(xiii) obtain the appointment of a receiver with respect to any collateral for all or
any part of the Guaranteed Obligations and apply the proceeds of such receivership as the
Administrative Agent or any Lender may in its discretion determine (it being agreed that
nothing in this clause (xiii) shall be deemed to make the Administrative Agent or any
Lender a party in possession in contemplation of law, except at its option);
(xiv) enter into such other transactions or business dealings with any other
Subsidiary Guarantor, the Borrower, any Subsidiary or Affiliate of the Borrower or any
other guarantor of all or any part of the Guaranteed Obligations as the Administrative
Agent or any Lender may desire; and
(xv) do all or any combination of the actions set forth in this Section.
(b) The enforceability and effectiveness of this Article and the liability of the
Subsidiary Guarantors, and the rights, remedies, powers and privileges of the Administrative
Agent and the Lenders, under this Agreement or any other agreement or instrument referred to
herein or therein, shall not be affected, limited, reduced, discharged or terminated, and each
Subsidiary Guarantor hereby expressly waives any defense now or in the future arising, by
reason of:
(i) the illegality, invalidity, irregularity, authenticity, or unenforceability of
all or any part of the Guaranteed Obligations, this Agreement or any other agreement or
instrument referred to herein or therein, or any agreement, security document, guarantee
or other instrument relative to all or any part of the Guaranteed Obligations;
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(ii) any disability or other defense of the Borrower or any other Subsidiary
Guarantor with respect to all or any part of the Guaranteed Obligations or any other
guarantor of all or any part of the Guaranteed Obligations (including any issuer of any
letters of credit), including the effect of any statute of limitations that may bar the
enforcement of all or any part of the Guaranteed Obligations or the obligations of any
such other guarantor;
(iii) the illegality, invalidity, irregularity, authenticity or unenforceability of
any security or guarantee (including any letter of credit) for all or any part of the
Guaranteed Obligations or the lack of perfection or continuing perfection or failure of
the priority of any lien on any collateral for all or any part of the Guaranteed
Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of the Borrower or any
other Subsidiary Guarantor (other than subject to Section 3.05, by reason of the full
payment and performance of all Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to marshal assets in favor
of the Borrower or any other Person (including any other guarantor), to exhaust any
collateral for all or any part of the Guaranteed Obligations, to pursue or exhaust any
right, remedy, power or privilege it may have against any other Subsidiary Guarantor, the
Borrower, any other guarantor, all or any part of the Guaranteed Obligations (including
any Issuing Lender in respect of Letters of Credit) or any other Person or to take any
action whatsoever to mitigate or reduce such or any other Subsidiary Guarantors liability
under this Article, neither the Administrative Agent nor any Lender being under any
obligation to take any such action notwithstanding the fact that all or any part of the
Guaranteed Obligations may be due and payable and that the Borrower may be in default of
its obligations under this Agreement or any other agreement or instrument referred to
herein or therein;
(vi) any failure of the Administrative Agent or any Lender to give notice after any
Default of sale or other disposition of any collateral (including any notice of any
judicial or nonjudicial foreclosure or sale of any interest in real Property serving as
collateral for all or any part of the Guaranteed Obligations) for all or any part of the
Guaranteed Obligations to the Borrower, any Subsidiary Guarantor or any other Person or
any defect in, or any failure by any Subsidiary Guarantor or any other Person to receive,
any notice that may be given in connection with any sale or disposition of any collateral;
(vii) any failure of the Administrative Agent or any Lender to comply with applicable
laws in connection with the sale or other disposition of any collateral for all or any
part of the Guaranteed Obligations, including any failure to conduct a commercially
reasonable sale or other disposition of any collateral for all or any part of the
Guaranteed Obligations;
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(viii) any judicial or nonjudicial foreclosure or sale of, or other election of
remedies with respect to, any interest in real Property or other collateral serving as
security for all or any part of the Guaranteed Obligations, even though such foreclosure,
sale or election of remedies may impair the subrogation rights of any Subsidiary Guarantor
or may preclude any Subsidiary Guarantor from obtaining reimbursement, contribution,
indemnification or other recovery from any other Subsidiary Guarantor, the Borrower any
other guarantor or any other Person and even though the Borrower may not, as a result of
such foreclosure, sale or election of remedies, be liable for any deficiency;
(ix) any benefits the Borrower, any Subsidiary Guarantor or any other guarantor may
otherwise derive from Sections 580(a), 580(b), 580(d) or 726 of the California Code of
Civil Procedure or any comparable provisions of the laws of any other jurisdiction;
(x) any act or omission of the Administrative Agent, any Lender or any other person
that directly or indirectly results in or aids the discharge or release of the Borrower or
any other Subsidiary Guarantor, of all or any part of the Guaranteed Obligations or any
security or guarantee (including any letter of credit) for all or any part of the
Guaranteed Obligations by operation of law or otherwise;
(xi) any law which provides that the obligation of a surety or guarantor must neither
be larger in amount nor in other respects more burdensome than that of the principal or
which reduces a suretys principal obligation;
(xii) the possibility that the obligations of the Borrower to the Administrative
Agent and the Lenders may at any time and from time to time exceed the aggregate liability
of the Subsidiary Guarantors under this Article;
(xiii) any counterclaim, set-off or other claim which the Borrower or any other
Subsidiary Guarantor has or alleges to have with respect to all or any part of the
Guaranteed Obligations;
(xiv) any failure of the Administrative Agent or any Lender to file or enforce a
claim in any bankruptcy or other proceeding with respect to any Person;
(xv) the election by the Administrative Agent or any Lender, in a bankruptcy
proceeding of any Person, of the application or nonapplication of Section 1111(b)(2) of
the United States Bankruptcy Code;
(xvi) any extension of credit or the grant of any lien under Section 364 of the
United States Bankruptcy Code;
(xvii) any use of cash collateral under Section 363 of the United States Bankruptcy
Code;
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(xviii) any agreement or stipulation with respect to the provision of adequate
protection in any bankruptcy proceeding of any Person;
(xix) the avoidance of any lien in favor of the Administrative Agent or any Lender
for any reason;
(xx) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any part of the Guaranteed
Obligations (or any interest on all or any part of the Guaranteed Obligations) in or as a
result of any such proceeding;
(xxi) any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, including by reason of Sections
2809, 2810, 2819, 2839, 2845, 2850, 2899, 3275 and 3433 of the California Civil Code, and
any future judicial decisions or legislation or of any comparable provisions of the laws
of any other jurisdiction; or
(xxiii) diligence, presentment, demand of payment, protest and all notices
whatsoever.
(c) Each Subsidiary Guarantor represents and warrants to the Administrative Agent that it
has established adequate means of obtaining financial and other information pertaining to the
business, operations and condition (financial and otherwise) of the Borrower and its properties
on a continuing basis and that such Subsidiary Guarantor is now and will in the future remain
fully familiar with the business, operations and condition (financial and otherwise) of the
Borrower and its properties. Each Subsidiary Guarantor further represents and warrants that it
has reviewed and approved this Agreement and the related Loan Documents and is fully familiar
with the transactions contemplated by such Loan Documents and that it will in the future remain
fully familiar with such transaction and with any new Loan Documents and the transaction
contemplated by such Loan Documents. Each Subsidiary Guarantor hereby expressly waives and
relinquishes any duty on the part of the Administrative Agent or the Lenders (should any such
duty exist) to disclose to such or any other Subsidiary Guarantor any matter of fact or other
information related to the business, operations or condition (financial or otherwise) of the
Borrower or its properties or to any Loan Documents or the transactions undertaken pursuant to,
or contemplated by, such Loan Documents, whether now or in the future known by the
Administrative Agent or any Lender.
SECTION 3.03. Reinstatement. The obligations of the Subsidiary Guarantors under this
Article shall be automatically reinstated if and to the extent that for any reason any payment by
or on behalf of the Borrower in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Subsidiary Guarantors jointly and
severally agree that they will indemnify the Administrative Agent and each Lender on demand for all
reasonable costs and expenses (including fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or
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restoration, including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Subsidiary Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law (including any such
right arising under the United States Bankruptcy Code) or otherwise by reason of any payment by it
pursuant to the provisions of this Article until such time as the obligations under this Agreement
have been indefeasibly paid and satisfied in full and the Commitments have terminated. Each
Subsidiary Guarantor understands that, by reason of the foregoing provisions of this Section, the
exercise by the Administrative Agent or any Lender of the rights, remedies, powers and privileges
that it has under this Article and under the other Loan Documents will result in nonreimbursable
liabilities under this Agreement. Nevertheless, each Subsidiary Guarantor hereby authorizes and
empowers the Administrative Agent and the Lenders to exercise, in its or their sole discretion, any
combination of such rights, remedies, powers and privileges as they, in their sole discretion,
shall deem appropriate.
SECTION 3.05. Remedies. Each Subsidiary Guarantor jointly and severally agrees that,
as between the Subsidiary Guarantors and the Lenders, the obligations of the Borrower under this
Agreement may be declared to be forthwith due and payable as provided in Article VIII (and shall be
deemed to have become automatically due and payable in the circumstances provided in Article VIII)
for purposes of Section 3.01 notwithstanding any stay, injunction or other prohibition preventing
such declaration (or such obligations from becoming automatically due and payable) as against the
Borrower and that, in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by the Subsidiary Guarantors for purposes of
Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each Subsidiary Guarantor hereby
acknowledges that the guarantee in this Article constitutes an instrument for the payment of money,
and consents and agrees that any Lender or the Administrative Agent, at its sole option, in the
event of a dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder, shall
have the right to bring motion-action under New York CPLR Section 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this Article is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary Guarantors hereby agree, as
between themselves, that if any Subsidiary Guarantor shall become an Excess Funding Guarantor (as
defined below) by reason of the payment by such Subsidiary Guarantor of any Guaranteed Obligations,
each other Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor (but subject to
the next sentence), pay to such Excess Funding Guarantor an amount equal to such Subsidiary
Guarantors Pro Rata Share (as defined below and determined, for this purpose, without reference to
the properties, debts and liabilities of such Excess Funding Guarantor) of the Excess Payment (as
defined below) in respect of such Guaranteed Obligations. The payment obligation of a Subsidiary
Guarantor to any Excess Funding Guarantor under this
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Section shall be subordinate and subject in right of payment to the prior payment in full of
the obligations of such Subsidiary Guarantor under the other provisions of this Article and such
Excess Funding Guarantor shall not exercise any right or remedy with respect to such excess until
payment and satisfaction in full of all of such obligations.
For purposes of this Section, (i) Excess Funding Guarantor means, in respect of any
Guaranteed Obligations, a Subsidiary Guarantor that has paid an amount in excess of its Pro Rata
Share of such Guaranteed Obligations, (ii) Excess Payment means, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro Rata
Share of such Guaranteed Obligations and (iii) Pro Rata Share means, for any Subsidiary
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the aggregate present
fair saleable value of all properties of such Subsidiary Guarantor (excluding any shares of stock
of any other Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of such
Subsidiary Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities,
but excluding the obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the
amount by which the aggregate fair saleable value of all properties of all of the Subsidiary
Guarantors exceeds the amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of the Borrower and the
Subsidiary Guarantors hereunder and under the other Loan Documents) of all of the Subsidiary
Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a party hereto on the
Effective Date, as of the Effective Date, and (B) with respect to any other Subsidiary Guarantor,
as of the date such Subsidiary Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In any action or proceeding
involving any state corporate law, or any state, Federal, provincial or foreign bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors generally (including
financial assistance rules under the laws of England, including Sections 151 to and including 158
of the Companies Act), if the obligations of any Subsidiary Guarantor under Section 3.01 would
otherwise, taking into account the provisions of Section 3.08, be held or determined to be void,
invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the
amount of its liability under Section 3.01, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by such Subsidiary
Guarantor, any Lender, the Administrative Agent or any other Person, be automatically limited and
reduced to the highest amount that is valid and enforceable and not subordinated to the claims of
other creditors as determined in such action or proceeding (or, in the case of Canandaigua Limited,
be limited so as not to guarantee the portion of the Loans that are not permitted to be guaranteed
under such financial assistance rules).
SECTION 3.10. Borrower Guarantee with Respect to Hedging Agreements. Subject to the
relevant requirements and limitations set forth in Sections 7.01 and 7.06, the Borrower hereby
guarantees the prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of all amounts owing from time to time by any Subsidiary of the Borrower under any
Hedging Agreement entered into by such Subsidiary with any Lender or any Affiliate of any Lender in
strict accordance with the terms thereof (such obligations being herein collectively called the
Hedging Guaranteed Obligations). The Borrower hereby further agrees
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that if any Subsidiary shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Hedging Guaranteed Obligations, the Borrower will promptly
pay the same, without any demand or notice whatsoever, and that in the case of any extension of
time of payment or renewal of any of the Hedging Guaranteed Obligations, the same will be promptly
paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance
with the terms of such extension or renewal.
Sections 3.02 through 3.07, inclusive, shall apply, mutatis mutandis, to the
Guarantee by the Borrower contained in the preceding paragraph, as if each reference in said
Sections to the Guaranteed Obligations were a reference to the Hedging Guaranteed Obligations and
each reference in said Sections to the Administrative Agent or to any Lender were a reference
to the Lender or Affiliate thereof that is a party to the applicable Hedging Agreement referred to
in the preceding paragraph.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders as follows (provided that such
representations and warranties in the case of Vincor and its Subsidiaries are subject to Section
10.16). Unless indicated otherwise, any reference in this Article IV to Subsidiary or
Subsidiaries assumes that the Vincor Acquisition has been consummated and that Vincor and its
Subsidiaries (other than, except with respect to Sections 4.06(a) and 4.07, Specified Vincor
Entities at any time during the Cleanup Period) are Subsidiaries of the Borrower.
SECTION 4.01. Organization; Powers. Each of the Borrower and its Subsidiaries
(excluding Inactive Subsidiaries and Non-Controlled Joint Venture Entities) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions are within each
Obligors corporate powers and (other than with respect to Borrowings of Incremental Term Loans
until such date as any such Borrowings are made) have been duly authorized by all necessary
corporate and, if required, by all necessary shareholder action. This Agreement has been duly
executed and delivered by each Obligor and constitutes, and each of the other Loan Documents to
which it is a party when executed and delivered by such Obligor will constitute, a legal, valid and
binding obligation of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability affecting the enforcement of creditors rights
and (b) the application of general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by,
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any Governmental Authority, except (i) for such as have been obtained or made and are in full
force and effect,(ii) for filings and recordings in respect of the Liens created pursuant to the
Security Documents and (iii) for consents, approvals, registrations or filings in connection with
the Vincor Acquisition either (x) that are specified in Schedule A to the Vincor Arrangement
Agreement (all of which required consents, approvals, registrations and filings shall have been
obtained as of the Effective Date) or (y) in the case of any consents, approvals, registrations and
filings that are not specified in Schedule A to the Vincor Arrangement Agreement, the absence of
which could not reasonably be expected to have a Material Adverse Effect (collectively for this
clause (y), Immaterial Acquisition Approvals), (b) will not violate any applicable law or
regulation or any order of any Governmental Authority (other than any such violations resulting
from a failure to obtain any Immaterial Acquisition Approvals) or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries, (c) will not violate or result
in a default under any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or assets (other than any applicable Disclosed Matters), or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) except for the Liens
created pursuant to the Security Documents, will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) Financial Condition. The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity and cash flows as of and
for the fiscal year ended February 28, 2006, reported on by KPMG LLP, independent public
accountants, certified by a financial officer of the Borrower. Such financial statements have been
prepared in accordance with GAAP and present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and its Consolidated Subsidiaries
(excluding Vincor and its Subsidiaries) as of such date and for such period. The Borrower and its
Consolidated Subsidiaries (excluding Vincor and its Subsidiaries) do not have any material
liabilities or obligations (contingent or otherwise) that are not reflected in such financial
statements or the footnotes thereto that would otherwise be required to be reflected therein in
accordance with GAAP.
(b) No Material Adverse Change. Since February 28, 2006, there has been no material
adverse change in the business, assets, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole.
SECTION 4.05. Properties.
(a) Property Generally. Each of the Borrower and its Subsidiaries (excluding Inactive
Subsidiaries and Non-Controlled Joint Venture Entities) has good title to, or valid leasehold
interests in, all its real and personal Properties material to its business, subject only to Liens
permitted by Section 7.02 and except for minor defects in title or leasehold interests that do not
interfere with its ability to conduct its business as currently conducted or to utilize such
Properties for their intended purposes or where failure to have such title or interest could not
reasonably be expected to have a Material Adverse Effect.
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(b) Intellectual Property. Except as set forth in Schedule II, each of the
Borrower and its Subsidiaries (other than Inactive Subsidiaries and Non-Controlled Joint Venture
Entities) owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the Borrower and such
Subsidiaries does not infringe upon the rights of any other Person, except for any failure to own
or license any such trademarks, tradenames, copyrights, patents and other intellectual property, or
any such infringements, that, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
SECTION 4.06. Litigation.
(a) Actions, Suits and Proceedings. There are no actions, suits, investigations or
proceedings by or before any arbitrator or Governmental Authority now pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries
(i) that could reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect (other than the applicable Disclosed Matters) or (ii) that involve this Agreement or the
Transactions (other than the applicable Disclosed Matters).
(b) Disclosed Matters. Since the date hereof, there has been no change in the status
of the Disclosed Matters that, individually or in the aggregate, has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 4.07. Environmental Matters. Except as described in the Disclosed Matters,
each of the Borrower and its Subsidiaries has obtained all environmental, health and safety
permits, licenses and other authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent failure to have any such
permit, license or authorization could not reasonably be expected to have a Material Adverse
Effect. Each of such permits, licenses and authorizations is in full force and effect and each of
the Borrower and its Subsidiaries is in compliance with the terms and conditions thereof, and is
also in compliance with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in any applicable Environmental Law
or in any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter
issued, entered, promulgated or approved thereunder, except as described in Disclosed Matters and
except to the extent failure to comply therewith could not (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
In addition, except as described in Disclosed Matters:
(a) No Pending Environmental Matters. No notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the Borrower or any of its
Subsidiaries to have any environmental, health or safety permit, license or other authorization
required under any Environmental Law in connection with the conduct of the business of the
Borrower or any of its Subsidiaries or with respect to any generation, treatment, storage,
recycling, transportation, discharge or disposal, or any Release of any
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Hazardous Materials generated by the Borrower or any of its Subsidiaries, in each case in
circumstances which could reasonably be expected to have a Material Adverse Effect.
(b) No Permits Required; Certain Specific Representations. Neither the Borrower
nor any of its Subsidiaries owns, operates or leases a treatment, storage or disposal facility
requiring a permit under the Resource Conservation and Recovery Act of 1976, as amended, or
under any comparable state, local, provincial or foreign statute except as otherwise authorized
by Environmental Laws and/or environmental, health and safety permits and licenses; and
(i) no polychlorinated biphenyls (PCBs) are or have been present at any site or
facility now or, during the Borrowers period of ownership, operation or lease, previously
owned, operated or leased by the Borrower or any of its Subsidiaries;
(ii) no asbestos or asbestos-containing materials is or has been present at any site
or facility now or, during the Borrowers period of ownership, operation or lease,
previously owned, operated or leased by the Borrower or any of its Subsidiaries;
(iii) there are no underground storage tanks or surface impoundments for Hazardous
Materials, active or abandoned, at any site or facility now or, during the Borrowers
period of ownership, operation or lease, previously owned, operated or leased by the
Borrower or any of its Subsidiaries; and
(iv) no Hazardous Materials have been otherwise Released at, on or under any site or
facility now or, during the Borrowers period of ownership, operation or lease, previously
owned, operated or leased by the Borrower or any of its Subsidiaries;
that, in the case of any of clauses (i) through (iv) above, could reasonably be expected to
have a Material Adverse Effect.
(c) No Hazardous Material Transported to NPL Sites. Neither the Borrower nor any
of its Subsidiaries has transported or arranged for the transportation of any Hazardous
Material to any location that is listed on the National Priorities List (NPL) under
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(CERCLA), listed for possible inclusion on the NPL by the Environmental Protection
Agency in the Comprehensive Environmental Response and Liability Information System, as
provided for by 40 C.F.R. § 300.5 (CERCLIS), or on any similar state or local list or
that is the subject of Federal, state or local enforcement actions or other investigations that
may lead to Environmental Claims against the Borrower or any of its Subsidiaries, except to the
extent any such listing, enforcement action or other investigation could not reasonably be
expected to (either individually or in the aggregate) have a Material Adverse Effect.
(d) No Notifications or Listings. No oral or written notification of a Release of
a Hazardous Material has been filed by or on behalf of the Borrower or any of its
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Subsidiaries and no site or facility now or, to the Borrowers knowledge, previously
owned, operated or leased by the Borrower or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring investigation or
clean-up that in any such case could reasonably be expected to result in remediation costs and
fines that in the aggregate could reasonably be expected to have a Material Adverse Effect.
(e) No Liens or Restrictions. No Liens have arisen under or pursuant to any
Environmental Laws on any site or facility owned, operated or leased by the Borrower or any of
its Subsidiaries, and no government action has been taken or is in process that could subject
any such site or facility to such Liens and neither the Borrower nor any of its Subsidiaries
would be required to place any notice or restriction relating to the presence of Hazardous
Materials at any site or facility owned by it in any deed to the real property on which such
site or facility is located, except to the extent any such event or action could not (either
individually or in the aggregate) reasonably be expected to have a Material Adverse Effect.
(f) Full Disclosure. All environmental investigations, studies, audits, tests,
reviews or other analyses conducted by or that are in the possession of the Borrower or any of
its Subsidiaries in relation to facts, circumstances or conditions at or affecting any site or
facility now or previously owned, operated or leased by the Borrower or any of its Subsidiaries
and that could reasonably be expected to have a Material Adverse Effect have been made
available to the Lenders.
SECTION 4.08. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its Property and all indentures, agreements and other instruments binding upon
it or its Property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. On the date hereof, no Default has
occurred and is continuing.
SECTION 4.09. Investment and Holding Company Status. Neither the Borrower nor any of
its Subsidiaries is an investment company as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.
SECTION 4.10. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which such Person has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be expected to have in
a Material Adverse Effect.
SECTION 4.11. ERISA. Except to the extent not reasonably expected to have a Material
Adverse Effect, the Borrower and its ERISA Affiliates have fulfilled their respective obligations
under the minimum funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions of ERISA and the Code,
and have not incurred any liability to the PBGC or any Plan or
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Multiemployer Plan (other than to make contributions, pay annual PBGC premiums or pay out
benefits in the ordinary course of business).
SECTION 4.12. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Obligors to the Lenders in
connection with the negotiation of this Agreement and the other Loan Documents or the Transactions
or delivered hereunder or thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time and does not omit information that would render such projections
misleading in any material respect.
SECTION 4.13. Use of Credit. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of extending credit for
the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no
part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin
Stock.
SECTION 4.14. Capitalization. Except for conversion rights associated with the
Borrowers Class B common stock, conversion rights and Equity Rights associated with the CBI
Preferred Stock, purchase rights and options associated with Stock Based Plans and as disclosed in
Schedule IV, as of the Effective Date there are no outstanding Equity Rights with respect to the
Borrower. As of the Effective Date, except Stock Based Plans, there are no outstanding obligations
of the Borrower or any of its Subsidiaries to repurchase, redeem, or otherwise acquire any shares
of capital stock of the Borrower nor are there any outstanding obligations of the Borrower or any
of its Subsidiaries to make payments to any Person, such as phantom stock payments, where the
amount thereof is calculated with reference to the fair market value or equity value of the
Borrower or any Subsidiary. The Borrower has heretofore delivered to the Administrative Agent a
complete and correct copy of each Stock Based Plans specified on Schedule IV (as in effect as of
the Effective Date).
SECTION 4.15. Subsidiaries and Investments.
(a) Subsidiaries. Set forth in Part A of Schedule III (subject to the footnotes
therein) is a complete and correct list of all of the Subsidiaries of the Borrower as of the
Effective Date (excluding any Subsidiaries of first-tier Foreign Subsidiaries), together with,
for each such Subsidiary (other than the Specified Vincor Entities), (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary,
(iii) the nature of the ownership interests held by each such Person and the percentage of
ownership of such Subsidiary represented by such ownership interests and (iv) whether such
Subsidiary is as of the Effective Date a Foreign Subsidiary, an Applicable U.S. Subsidiary or an
Inactive Subsidiary. Set forth in Part A(1) of Schedule III, is a complete and correct list of all
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Specified Vincor Entities. Except as disclosed in Part A of Schedule III, (x) each of the
Borrower and each such Subsidiary owns, free and clear of Liens (other than Liens created pursuant
to the Security Documents), and (except with respect to Joint Venture Entities) has the
unencumbered right to vote, all outstanding ownership interests in each Person shown to be held by
it in Part A of Schedule III, (y) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and nonassessable and (z) there are
no outstanding Equity Rights with respect to such Person (other than Joint Venture Entities).
(b) Restrictions on Subsidiaries. None of the Subsidiaries of the Borrower is, on the
date hereof, subject to any indenture, agreement, instrument or other arrangement of the type
described in Section 7.09 (and not permitted by clauses (i) through (iv) thereof).
SECTION 4.16. Solvency. The Borrower and the Subsidiary Guarantors, taken as a whole,
are, and immediately after the making of each Borrowing and issuance, renewal and extension of each
Letter of Credit will be, Solvent.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. This Agreement, and the obligations of the Lenders to
make Loans and of the Issuing Lenders to issue Letters of Credit hereunder shall not become
effective until the date requested by the Borrower pursuant to paragraph (a)(v) below,
provided that on such requested date each of the following conditions has been satisfied
(or waived in accordance with Section 10.02):
(a) Financing Documents. The Administrative Agent shall have received each of the
following documents, each of which shall be satisfactory to the Administrative Agent (and to
the extent specified below, to each Lender) in form and substance:
(i) Executed Counterparts. From each party hereto (subject to Section 10.17)
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 (or other
electronic) transmission of a signed signature page to this Agreement) that such party has
signed a counterpart of this Agreement.
(ii) Opinions of Counsel to the Obligors. Favorable written opinions
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
(u) Nixon Peabody LLP, U.S. counsel for the Obligors, in the form of Exhibit D-1, and
covering such other customary matters relating to the Borrower, this Agreement or the
Transactions as the Administrative Agent shall reasonably request, (v) McDermott, Will and
Emery, U.K. counsel for certain of the Obligors, in the form of Exhibit D-2, and covering
such other customary matters relating to Canandaigua Limited and the U.K. Equity Pledge
Agreement as the Administrative Agent shall reasonably request, (w) Clifford Chance,
Luxembourg counsel for certain of the Obligors, in the form of Exhibit D-3, and covering
such other customary matters relating to FinCo and the Luxembourg Equity Pledge
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Agreement as the Administrative Agent shall reasonably request, (x) Clayton Utz,
Australian counsel for certain of the Obligors, in the form of Exhibit D-4, and covering
such other customary matters relating to BRL Hardy and the Australian Equity Pledge
Agreement as the Administrative Agent shall reasonably request, (y) Chapman & Tripp, New
Zealand counsel for certain of the Obligors, in the form of Exhibit D-5, and covering such
other customary matters relating to Nobilo Wine Group and the New Zealand Equity Pledge
Agreement as the Administrative Agent shall reasonably request and (z) Stewart McKelvey
Stirling Scales, Nova Scotia counsel for certain of the Obligors, in the form of Exhibit
D-6, and covering such other customary matters relating to ULC Subsidiary and the Canadian
Pledge Agreement as the Administrative Agent shall reasonably request (and each such
Person hereby instructs such counsel to deliver such opinions to the Lenders and the
Administrative Agent).
(iii) Opinion of Special New York Counsel to JPMorgan Chase. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel
to JPMorgan Chase, in the form of Exhibit E (and JPMorgan Chase hereby instructs such
counsel to deliver such opinion to the Lenders).
(iv) Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of each Obligor and Non-Guarantor Pledgors, the authorization
and consummation of the Transactions and any other legal matters relating to the Obligors
and Non-Guarantor Pledgors, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel (it being understood
in respect of any Obligor that documents and certificates in substantially similar forms
to documents and certificates delivered in respect of such Obligor under the Existing
Credit Agreement shall be deemed to be reasonably satisfactory for purposes of this clause
(v)).
(v) Officers Certificate. A certificate in the form of Exhibit G-1, dated
the Effective Date and signed by the President, a Vice President or a Financial Officer of
the Borrower, (A) notifying the Administrative Agent of a requested Effective Date under
this Agreement and (B) certifying to the effect specified in Section 5.01(e).
(vi) Security Documents. The (w) U.S. Pledge Agreement, duly executed and
delivered by the Borrower, the Subsidiaries specified therein and the Administrative Agent
and, to the extent required, any additional certificates identified under the name of an
Obligor in Annex 1 thereto accompanied by undated stock powers executed in blank, (w) the
U.K. Equity Pledge Agreement, duly executed and delivered by Canandaigua Limited, together
with certificates evidencing the applicable shares of Matthew Clark, (x) the Luxembourg
Equity Pledge Agreement, duly executed and delivered by the Borrower, together with
certificates evidencing the applicable shares of FinCo, (y) the Australian Equity
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Pledge Agreement, duly executed and delivered by Constellation Australia, together with
certificates evidencing the applicable shares of BRL Hardy and (z) the New Zealand Equity
Pledge Agreement, duly executed and delivered by Nobilo Holdings, together with
certificates evidencing the applicable shares of Nobilo Wine Group. In addition, the
Borrower shall have taken such other action as the Administrative Agent shall have
reasonably requested in order to perfect the security interests created pursuant to such
Security Documents.
(vii) Canadian Pledge Agreement. The Canadian Pledge Agreement, duly executed
and delivered by ULC Subsidiary, together with certificates evidencing the requisite
equity interests of LP (Canada) and, to the extent any of the interests pledged thereby
are not certificated, (x) the Administrative Agent shall have received a custodian
acknowledgment agreement in form and substance reasonably satisfactory to the Initial
Lenders and (y) all necessary registrations in respect of such interests and the
applicable security interests thereon shall have been made.
(viii) Other Documents. Such other documents as the Administrative Agent or
any Lender or special New York counsel to JPMorgan Chase may reasonably request.
(b) Vincor Acquisition.
(i) Acquisition Documents. The Administrative Agent shall have received:
(A) copies of the Vincor Arrangement Agreement, the Circular, the Letter of
Transmittal, the Arrangement Resolution as approved and adopted in accordance with
the Initial Order, the Interim Order, the Articles of Arrangement and the Final Order
as issued approving the Plan of Arrangement and of all other material documents and
materials filed or released publicly by the Borrower or Vincor in connection with the
Vincor Acquisition, certified as true, correct and complete copies thereof as of the
Effective Date by the President, a Vice President or a Financial Officer of the
Borrower;
(B) to the extent that as of the Effective Date Vincor Shareholders holding
Vincor Shares constituting more than 20% of the issued and outstanding Vincor Shares
have in connection with the Vincor Acquisition properly exercised Dissent Rights, a
certificate of the Borrower specifying the number of Vincor Shares subject to such
Dissent Rights; and
(C) a certificate of the Borrower certifying that the total funds payable in
Canadian Dollars required to consummate the Vincor Acquisition do not exceed
$1,300,000,000.
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(ii) Preliminary Consummation of Vincor Acquisition. (A) Prior to or
simultaneously with the Effective Date, the Vincor Acquisition shall have been consummated
substantially in accordance with the terms of the Vincor Arrangement Agreement, subject to
any waivers permitted in the Vincor Arrangement Agreement, provided that:
(1) the Articles of Arrangement shall not yet have been filed with the Director,
(2) the conditions in section 5.1 of the Vincor Arrangement Agreement shall have
been satisfied,
(3) the conditions in section 5.2 of the Vincor Arrangement Agreement shall have
been satisfied or waived (provided that, with respect to the condition in
section 5.2(d) thereof only, the Borrower may not waive such condition if such waiver
would be materially adverse to the Lenders (as reasonably determined by the Initial
Lenders), unless consented to by the Initial Lenders (such consent not to be
unreasonably withheld or delayed)), and
(4) any required approvals or consents of holders of Indebtedness of Vincor and
its Subsidiaries not being refinanced upon consummation of the Vincor Acquisition
shall have been obtained and be in full force and effect; and
(B) subject only to the issuance of the Certificate of Arrangement pursuant to the
CBCA, Vincor shall be a Wholly-Owned Subsidiary of Canadian Acquisition Subsidiary.
(c) Financing Approvals. All governmental, shareholder and other third-party
approvals necessary (or, in the reasonable judgment of the Administrative Agent, advisable) in
connection with the Transactions (excluding the Vincor Acquisition) shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have expired without
any action being taken or threatened in writing by any competent Governmental Authority which
would restrain, prevent or otherwise impose adverse conditions on the Transactions (excluding
the Vincor Acquisition).
(d) Officers Certificate; Borrowing Request. The Administrative Agent shall have
received (i) a certificate in the form of Exhibit G-2, dated the Effective Date and signed by
the President, a Vice President or a Financial Officer of the Borrower, confirming each of the
matters set forth in Section 5.02(a) and (b) and calculating the Debt Ratio as of the Effective
Date (after giving effect to the Vincor Acquisition) and (ii) a Borrowing Request with respect
to the Loans to be made on the Effective Date.
(e) No Other Facilities. Prior to and during the syndication of the Commitments
and Loans evidenced by this Agreement there shall be no offering, placement or arrangement of
any other bank financing or debt securities by or on behalf of the Borrower or Vincor or any
affiliate thereof Controlled by either the Borrower or Vincor.
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(f) Escrow Agreement. The Administrative Agent shall have received the Escrow
Agreement executed and delivered by each party thereto in form and substance reasonably
satisfactory to the Administrative Agent.
The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Lenders to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 10.02) on or prior to 3:00 p.m., New York City time, on June 8, 2006 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
The obligation of any Lender to make its initial extension of credit hereunder is also subject
to the payment by the Borrower of such fees as the Borrower shall have agreed to pay to any Lender
or the Administrative Agent in connection herewith, including the reasonable fees and expenses of
Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to JPMorgan Chase, and Fraser Milner
Casgrain LLP, special Canadian counsel to JPMorgan Chase, local Nova Scotia counsel for JPMorgan
Chase, in connection with the negotiation, preparation, execution and delivery of this Agreement
and the other Loan Documents and the extensions of credit hereunder (to the extent that statements
for such fees and expenses have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the Lenders of the satisfaction (or
waiver in accordance with Section 10.02) of the conditions specified in this Section 5.01, and such
notice shall be conclusive and binding.
SECTION 5.02. Initial Borrowing of Loans. The obligation of each Lender to make the
initial Loans made on the Effective Date is subject to the satisfaction of the following
conditions:
(a) the representations and warranties of the Borrower set forth in Sections 4.01, 4.02,
4.09, 4.13 and 4.16 (with respect to the Borrower and Canadian Acquisition Subsidiary only),
and of each Obligor in each of the other Loan Documents to which it is a party (but as to such
other Loan Documents, in all material respects), shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter
of Credit, as applicable (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and
(b) at the time of and immediately after giving effect to such Borrowing, no (i) Default
arising under clause (a) or (b) of Article VIII, (ii) Event of Default arising under clause (h)
or (i) of Article VIII with respect to Borrower or any Vincor Acquisition Entity and (iii)
Event of Default arising as a result of a breach of any covenant restricting the activities of
Canadian Acquisition Subsidiary or otherwise governing the Vincor Acquisition, shall have
occurred and be continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in the preceding sentence.
The Administrative Agent shall apply (or cause to be applied) the proceeds of the Loans
borrowed pursuant to this Section 5.02 first to repay all Indebtedness owing under the
Existing Credit Agreement and second, to a deposit to the Loan Escrow Account under the
Escrow Agreement.
SECTION 5.03. Release of Funds from Escrow Account. As provided in the Escrow
Agreement, on the Arrangement Effective Date (subject to the receipt of the Certificate of
Arrangement issued pursuant to the CBCA and to satisfaction of the other conditions specified
therein): (a) the Escrow Agent shall transfer an amount of funds on deposit in or credited to the
Escrow Account equal to the aggregate amount of the Specified Vincor Obligations referred to in
Section 6.08(c) to the relevant financial institutions (pursuant to written transfer instructions
provided by the Borrower) to repay such Specified Vincor Obligations in full and (b) the remaining
funds on deposit in or credited to the Escrow Account shall be available for payment of the
consideration in respect of the Vincor Shares as provided in Section 4.1(a) of Schedule C of the
Vincor Arrangement Agreement. The Borrower agrees that it will not, and will not cause any
applicant under the Escrow Agreement to, direct any release pursuant to clause 6 of the Escrow
Agreement until the Certificate of Arrangement is issued pursuant to the CBCA.
SECTION 5.04. Each Credit Event. The obligation of each Lender to make any Loan
(excluding any Borrowing of Revolving Loans pursuant to Section 5.02, as to which the conditions
precedent set forth therein shall apply), and of each Issuing Lender to issue, amend, renew or
extend any Letter of Credit, is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in this Agreement shall
be true and correct on and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific
date); and
(b) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have
occurred and be continuing.
Each Borrowing pursuant to this Section 5.04 and each issuance, amendment, renewal or extension of
a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in the preceding sentence.
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ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The Borrower will furnish to
the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year of the Borrower (or ten (10) days
after such shorter period as may be required for filing the Borrowers Annual Report on Form
10-K with the Securities and Exchange Commission), the audited consolidated balance sheet and
related statements of operations, stockholders equity and cash flows of the Borrower and its
Consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or
other independent public accountants of recognized national standing (without a going concern
or like qualification or exception and without any qualification or exception as to the scope
of such audit) to the effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 55 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower (or ten (10) days after such shorter period as may be required for filing
the Borrowers Quarterly Report on Form 10-Q with the Securities and Exchange Commission), the
consolidated balance sheet and related statements of operations and cash flows of the Borrower
and its Consolidated Subsidiaries as of the end of and for such fiscal quarter (for the
statement of operations only) 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 the
previous fiscal year (or, in the case of the balance sheet, as of the end of the previous
fiscal year), all certified by a Financial Officer of the Borrower as presenting fairly in all
material respects the financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) of this
Section, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth calculations in
form and detail satisfactory to the Administrative Agent demonstrating compliance with Sections
7.01(f), 7.01(g), 7.01(h), 7.06(e), 7.06(g) and 7.10, (iii) setting forth a calculation of the
Debt Ratio as at the end of the respective fiscal period (and
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indicating which Category of Applicable Rate shall become effective upon the delivery of such
financial statements as contemplated by the definition of the term Applicable Rate in Section
1.01), (iv) stating whether any change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in Section 4.04 and, if any such
change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate and (v) certifying that, except as otherwise specified, no
Subsidiaries that were Inactive Subsidiaries as at the delivery of the immediately preceding
certificate under this paragraph (c) (or, in the case of the first such delivery, as at the
date hereof) has ceased to be an Inactive Subsidiary;
(d) concurrently with any delivery of financial statements under clause (a) of this
Section, a certificate of the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any of its Subsidiaries
with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally or to holders of Senior Unsecured
Indebtedness or Subordinated Indebtedness generally, as the case may be; and
(f) promptly following any request therefor, such other information (including without
limitation information regarding the operations, business affairs and financial condition) of
the Borrower or any of its Subsidiaries, or compliance with the terms of this Agreement and the
other Loan Documents, as the Administrative Agent or any Lender may reasonably request.
SECTION 6.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any of its Affiliates
that could reasonably be expected to have a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to have a Material Adverse Effect;
(d) the assertion of any Environmental Claim by any Person against, or with respect to the
activities of, the Borrower or any of its Subsidiaries and any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or authorizations, other
than any Environmental Claim or alleged violation that could not
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(either individually or in the aggregate) reasonably be expected to have a Material Adverse
Effect; and
(e) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 6.03. Existence; Conduct of Business. Except as otherwise expressly permitted
hereunder, the Borrower will, and will cause each of its Subsidiaries (other than Non-Controlled
Joint Venture Entities) to, do or cause to be done all things necessary to preserve, renew and keep
in full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises relating to the conduct of its business (except where the failure to do so (in each case
other than with respect to the existence of the Borrower), individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect); provided that the foregoing
shall not prohibit the Vincor Acquisition or any merger, consolidation, liquidation, disposition or
dissolution otherwise permitted under Section 7.03.
SECTION 6.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries (other than Non-Controlled Joint Venture Entities) to, pay its obligations, including
Tax liabilities, that, if not paid, could reasonably be expected to have a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to
have a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries (other than any Non-Controlled Joint Venture Entities) to, (a) keep and
maintain all Property relating to the conduct of its business in good working order and condition,
ordinary wear and tear excepted (except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect and except for
Dispositions permitted by Section 7.04), and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating in the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries (other than any Non-Controlled Joint Venture Entities) to, keep proper
books of record and account in which full, true and correct entries are made of all material
dealings and transactions in relation to its business and activities. The Borrower will, and will
cause each of its Subsidiaries (other than any Non-Controlled Joint Venture Entities), to permit
any representatives designated by the Administrative Agent or any Lender at their sole cost and
expense (except during the continuance of any Default or Event of Default, in which
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case, without limiting the provisions of Section 10.03, all costs and expenses shall be paid or
reimbursed by the Borrower), upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
SECTION 6.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries (other than Non-Controlled Joint Venture Entities) to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its Property, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 6.08. Use of Proceeds. The proceeds of the Term Loans will be used solely to
(a) repay Indebtedness owing under the Existing Credit Agreement and to cancel any commitment
thereunder, (b) finance the Vincor Acquisition (including the payment of fees and expenses related
thereto) and (c) repay Specified Vincor Obligations identified in Part A of Schedule I. The
proceeds of the Revolving Loans will be used solely (i) for purposes described in clause (c) above,
(ii) to provide working capital for the Borrower and its Subsidiaries and (iii) to provide funds
for other general corporate purposes of the Borrower and it Subsidiaries (including without
limitation prepayment of the 2006 Senior Notes (but not any other Senior Unsecured Indebtedness or
Subordinated Indebtedness) and, subject to any requirements specified in Section 7.05(b), making
any Acquisition). The proceeds of the Incremental Term Loans of each Series will be used as
provided in the Incremental Term Loan Agreement of for such Series. No part of the proceeds of any
Loan or other extension of credit hereunder will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board, including Regulations U
and X. Letters of Credit will be issued only to support general corporate purposes of the Borrower
and its Subsidiaries.
SECTION 6.09. Certain Obligations Respecting Subsidiaries.
(a) Ownership of Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of
the Borrowers Subsidiaries is a Wholly-Owned Subsidiary (other than Joint Venture Entities and any
Subsidiary that would become a Joint Venture Entity in connection with any disposition of Property
permitted pursuant to Section 7.04, Inactive Subsidiaries.
(b) Subsidiary Guarantors. The Borrower will take such action, and will cause each of
its Subsidiaries to take such action, from time to time as shall be necessary to ensure that all
Subsidiaries of the Borrower that are not Excluded Entities are Subsidiary Guarantors hereunder,
provided that no Specified Vincor Entity shall be required to be a Subsidiary Guarantor for
so long as the requirements under Rule 3-10(g) of Regulation S-X of the United States Securities
and Exchange Commission (the SEC) would be applicable with respect to such Specified
Vincor Entity if it were an issuer of a registered security that is guaranteed or a guarantor of a
registered security under a registration statement filed with the SEC. In furtherance of the
foregoing, in the event that (x) the Borrower or any of its Subsidiaries shall acquire or form any
new Subsidiary after the date hereof that is not at such time an Excluded Entity or (y) any
Excluded Entity shall cease to be an Excluded Entity but shall continue to be a
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Subsidiary of the Borrower, the Borrower will cause (or will cause its Subsidiaries to cause) such
new Subsidiary or previously Excluded Entity to (i) become a Subsidiary Guarantor hereunder, and
a Subsidiary Guarantor under the U.S. Pledge Agreement, by delivering to the Administrative Agent
a Guarantee Assumption Agreement; (ii) take the actions, if any, required to be taken by such new
Subsidiary or previously Excluded Entity under paragraph (d) below; and (iii) deliver such proof of
corporate action, incumbency of officers, opinions of counsel and other documents as is consistent
with those delivered by each Obligor pursuant to Section 5.01 on the Effective Date or as the
Administrative Agent shall have requested.
(c) Applicable U.S. Subsidiaries. Without limiting the obligations of the Borrower
under paragraph (b) above, the Borrower will cause any Applicable U.S. Subsidiary that is not an
Obligor hereunder and that enters into (or otherwise gives) any Guarantee of any Indebtedness of
the Borrower or any other Obligor to, concurrently with the entry into (or giving) of such
Guarantee, become a Subsidiary Guarantor hereunder (and the Borrower will cause such Applicable
U.S. Subsidiary to deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents as is consistent with those delivered by each Obligor pursuant to
Section 5.01 on the Effective Date).
(d) Pledge Agreements. If after the date hereof (x) any Obligor, including any
Subsidiary (herein, a Paragraph (b) Obligor) that becomes a Subsidiary Guarantor pursuant
to paragraph (b) above and therefor an Obligor hereunder, shall acquire or form any new Subsidiary
(it being understood that the term new Subsidiary includes any entity that is a Subsidiary of any
Paragraph (b) Obligor at the time it becomes an Obligor hereunder), or (y) any Excluded Entity
shall cease to be an Excluded Entity but shall continue to be a Subsidiary of the Borrower, then,
in addition to any actions that may be required to be taken as a result thereof pursuant to
paragraph (b) above, each Obligor (including any Paragraph (b) Obligor) will, to the extent that
such actions had not already been taken, take the following actions with respect to such new
Subsidiary or previously Excluded Entity:
(i) if such new Subsidiary or previously Excluded Entity is organized under the laws of
the United States of America or a State thereof, each Obligor that holds any of the shares of
capital stock or other ownership interests in such new Subsidiary or previously Excluded Entity
shall take such action (including delivering the certificates, if any, evidencing such shares
or other ownership interests, accompanied by undated stock or other powers executed in blank)
as shall be necessary to create and perfect valid and enforceable first priority Liens in such shares and other ownership interests under the U.S. Pledge Agreement (or, if necessary, a
supplement thereto);
(ii) if such new Subsidiary or previously Excluded Entity is organized under the laws of a
jurisdiction other than the United States of America or a State thereof, the Borrower shall
ensure that each Obligor that holds any of the shares of capital stock or other ownership
interests in such new Subsidiary or previously Excluded Entity shall execute and deliver a
Foreign Pledge Agreement (or, as applicable, a supplement to a relevant existing Foreign Pledge
Agreement) with respect to such shares of capital stock or other ownership interests and take
such other action (including delivering the certificates, if any, evidencing such shares or
other ownership interests, accompanied by undated stock or other powers executed in blank) as
shall be necessary to create and
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perfect valid and enforceable first priority Liens in such shares and other ownership interests
under the law governing such Foreign Pledge Agreement; and
(iii) deliver such proof of corporate action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by each Obligor pursuant to Section
5.01 on the Effective Date or as the Administrative Agent shall have reasonably requested;
provided, however, that (A) the foregoing shall not require any action that the
Borrower and the Administrative Agent have determined would either result in adverse tax
consequences under Section 956 of the Code or would contravene any applicable law, rule or
regulation, (B) notwithstanding anything in this Agreement or the Pledge Agreements to the
contrary, none of the Borrower or any of its Subsidiaries shall be required to pledge more than 65%
of the outstanding shares of Voting Stock of any Foreign Subsidiary or any Subsidiary specified on
Schedule VIII (for so long as, in the case of any such Subsidiary specified on Schedule VIII, the
Borrower and the Administrative Agent have determined that such pledge would either result in
adverse tax consequences under Section 956 if the Code or would contravene any applicable law, rule
or regulation) and (C) the foregoing shall not require the Borrower or any of its Subsidiaries to
pledge any shares of stock or other ownership interests in Inactive Subsidiaries, Joint Venture
Entities and, (i) for so long as it shall conduct no business other than holding Indebtedness of
Canandaigua Limited and having Indebtedness outstanding to the Constellation International
Holdings, Canandaigua B.V., (ii) for so long as it shall have assets with a fair market value of
less than U.S.$5,000,000 and gross revenues of less than U.S.$10,000,000 (in each case, calculated
as at the end of, and for the most recently ended, fiscal quarter), Constellation Brands Ireland
Limited and (iii) any Specified Vincor Entity to the extent that the Borrowers ownership interest
therein is indirectly held through a Foreign Subsidiary.
Without limiting the foregoing, the Borrower will cause Constellation International Holdings
Limited within 60 days after the Effective Date to (a) execute and deliver the Irish Pledge
Agreement, and (b) deliver to the Administrative Agent documents specified in clauses (ii) and
(iii) above with respect thereto.
(e) Shares of Subsidiary Stock. In the event that any additional shares of stock shall
be issued to any Obligor by any Subsidiary of the Borrower (other than any Joint Venture Entity),
such Obligor agrees forthwith to deliver to the Administrative Agent pursuant to the U.S. Pledge
Agreement and, if applicable, any Foreign Pledge Agreement, the certificates evidencing such shares
of stock, accompanied by undated stock powers executed in blank and to take such other action as
the Administrative Agent shall reasonably request to perfect the security interest created therein
pursuant to such Pledge Agreement; provided that notwithstanding anything in this Agreement
to the contrary, the Obligors shall not be required to pledge more than 65% of the outstanding
shares of Voting Stock of any Foreign Subsidiary or any Subsidiary specified on Schedule VIII (for
so long as, in the case of any such Subsidiary specified on Schedule VIII, the Borrower and the
Administrative Agent have determined that such pledge would either result in adverse tax
consequences under Section 956 of the Code or would contravene any applicable law, rule or
regulation).
(f) Intercompany Notes. If required by the terms of Section 7.06(e)(i), the Borrower
shall, concurrently with the making of any loan or advance to a Foreign Subsidiary specified
therein, cause such Foreign Subsidiary to execute an Intercompany Note in favor of the Borrower and
shall forthwith deliver to the Administrative Agent pursuant to the U.S. Pledge Agreement such
Intercompany Note, accompanied by an undated bond power executed in blank, and shall take such
other action as the Administrative Agent shall reasonably request to perfect the security interest
created therein pursuant to such Pledge Agreement (provided that no such pledge will be
required to the extent that the Borrower and the Administrative Agent have determined that such
pledge would result in adverse tax consequences under Section 956 of the Code).
(g) Further Assurances with Respect to the Pledge Agreements. The Borrower will, and
will cause each of its Subsidiaries (other than Excluded Entities) to, take such action from time
to time (including executing and delivering such assignments, security agreements and other
instruments) as shall be reasonably requested by the Administrative Agent to create, in favor of
the Administrative Agent for the benefit of the Lenders, perfected security interests and Liens in
all Collateral required to be pledged by such Subsidiary under the U.S. Pledge Agreement and, if
applicable, any Foreign Pledge Agreement, which Collateral shall include all shares of stock and
other ownership interests of each direct and indirect Subsidiary of the Borrower, subject to the
proviso to Section 6.09(d) and the provisions of the U.S. Pledge Agreement.
(h) Further Assurances with Respect to Specified Vincor Entities. The Borrower will
use commercially reasonable efforts to (A) dissolve or legally wind-up each Specified Vincor Entity
(including by way of merger into, or transfer of all of the assets to, one or more Subsidiary
Guarantors or, in the case of any such Specified Vincor Entity that would constitute a Foreign
Subsidiary, by merger into, or transfer of all of the assets to, one or more Foreign Subsidiaries)
or (B) transfer all of the stock or assets of, each Specified Vincor Entity designated in Schedule
III or (C) otherwise give effect to a corporate reorganization or restructuring the purpose of
which is to cause one or more of the Specified Vincor Entities to become a Wholly-Owned Subsidiary
of the Borrower that is not a Foreign Subsidiary on or prior to the end of the Cleanup Period; it
being understood that to the extent any such Specified Vincor Entity shall not have been so
dissolved, wound up, reorganized or restructured prior to the end of the Cleanup Period, such
Specified Vincor Entity shall cease to constitute an Excluded Entity under clause (iv) of the
definition of such term and shall accordingly be subject to the requirements of this Section 6.09.
SECTION 6.10. Commitment Letter. The Borrower will comply with its obligations under
the Commitment Letter and the fee letters referred to therein, provided that the Commitment
Letter shall have no further force or effect after the Effective Date other than with respect to
those provisions of the Commitment Letter that are expressly stated therein to survive the
Effective Date or any date corresponding thereto.
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SECTION 6.11. Certain Matters Relating to the Vincor Acquisition.
(a) Conduct of Vincor Acquisition. In connection with the Vincor Acquisition, the
Borrower will cause Canadian Acquisition Subsidiary to:
(i) comply with the CBCA, the Competition Act, the Investment Canada Act and the
Securities Act (Ontario), as amended, and other relevant securities laws, and all other
applicable laws and regulations and requirements of any Governmental Authority relevant in the
context of the Vincor Acquisition, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect; and
(ii) subject to any requirements of the CBCA or Securities Act (Ontario) or other
applicable law, not issue any press release or make any public statement during the course of
the Vincor Acquisition that contains any information or statement concerning this Agreement or
the Lenders without first obtaining the prior approval of the information or statement from the
Initial Lenders.
(b) Vincor Agreements. As promptly as practicable following the Arrangement Effective
Date, the Borrower shall cause Vincor to repay or prepay all Indebtedness then due and owing under
any Vincor Agreement and shall cancel or terminate, as applicable, all funding commitments
thereunder.
(c) Notices, Etc. The Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of any of the following events:
(i) the Commissioner of Competition appointed under the Competition Act (the
Commissioner) shall have provided written notice that she intends to oppose the
Vincor Acquisition or seek dissolution of the Vincor Acquisition or divestiture of Vincor
Shares or assets;
(ii) the Commissioner shall have rescinded or amended a written notice previously
delivered by the Commissioner stating that she does not intend to oppose the Vincor
Acquisition;
(iii) the Commissioner shall have made, or threatened to make, an application or require
that proceedings be initiated under the Competition Act in respect of the Vincor Acquisition;
(iv) the Commissioner shall have declined to issue an advance ruling certificate or a no
action letter in respect of the Vincor Acquisition pursuant to the Competition Act;
(v) the Commissioner shall have withdrawn, or purported to have withdrawn, an advance
ruling certificate or a no action letter previously issued in respect of the Vincor Acquisition
pursuant to the Competition Act; and
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(vi) any approval required pursuant to the Investment Canada Act shall have been refused
or declined, or any demand or application shall have been made under Part VII of the Investment
Canada Act.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 7.01. Indebtedness. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the Effective Date the principal or face amount of which does
not exceed $10,000,000 with respect to each individual item of Indebtedness or that is
otherwise set forth in Part A of Schedule I, and any extension, renewal, refinancing or
replacement of any such Indebtedness so long as (i) such existing Indebtedness being extended,
renewed, refinanced or replaced pursuant to this clause (b) does not constitute Senior
Unsecured Indebtedness or Subordinated Indebtedness and (ii) at the time of such extension,
renewal, refinancing or replacement, and after giving effect thereto, (A) the Borrower shall be
in compliance with Section 7.10 (the determination of such ratios to be calculated under the
assumption that such extension, renewal, refinancing or replacement occurred at the beginning
of the respective period) and (B) no Default or Event of Default shall have occurred and be
continuing hereunder; provided that the principal of and interest on, and all other
amounts owing in respect of Indebtedness under the Existing Credit Agreement (other than in
respect of letters of credit which,
as provided in Section 2.05(m) are to become Letters of Credit hereunder) and Specified
Vincor Obligations shall in any event be repaid in full as promptly as practicable following
the Arrangement Effective Date;
(c) (i) Indebtedness outstanding in respect of the Senior Unsecured Notes and (ii) other
unsecured Indebtedness (other than Subordinated Indebtedness); provided that the
following conditions shall be satisfied with respect to such other Indebtedness (each of which
shall be fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(A) the Net Available Proceeds of such other Indebtedness shall be applied to (x)
prepay Loans in accordance with Section 2.10(b)(iii), (y) refinance or pay at maturity the
Senior Unsecured Indebtedness (in accordance with Section 7.12) or (z) finance one or more
Acquisitions pursuant to Section 7.05(b) (provided that the aggregate principal
amount of such Senior Unsecured Indebtedness the Net Available Proceeds of which is
applied to finance one or
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more such Acquisitions shall not exceed U.S.$750,000,000 unless at the time such
Indebtedness is incurred, the Senior Debt Ratio is less than or equal to 3.0 to 1 (the
determination of such ratio to be calculated as of the last day of the most recently-ended
fiscal quarter of the Borrower under the assumption that such Indebtedness was issued at
the beginning of the applicable calculation period);
(B) the terms of such Indebtedness shall not provide for payment of any portion of
the principal thereof prior to the date six months after the final maturity of the Loans
hereunder;
(C) terms in respect of financial and other covenants, events of default and
mandatory prepayments applicable to such Indebtedness shall be no more restrictive in any
material respect on the Borrower or any of its Subsidiaries than the terms of the Senior
Unsecured Notes;
(D) at the time of issuance of such Indebtedness, and after giving effect thereto,
the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to
be calculated under the assumption that such Indebtedness was issued at the beginning of
the respective period and that any other Indebtedness to be retired with the proceeds
thereof was in fact retired on such date of issuance), and the Borrower shall have
delivered to the Administrative Agent a certificate of its chief financial officer to such
effect setting forth in reasonable detail the computations necessary to determine such
compliance (including, if applicable, computations in reasonable detail as to the
satisfaction of the conditions specified in clauses (A) above);
(E) at the time of such issuance, and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing hereunder; and
(F) prior to such issuance, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect specified in the foregoing clauses (C),
(D) and (E) (and setting forth in reasonable detail the computations necessary to
determine compliance with said clause (D) and including, if applicable, computations in
reasonable detail as to the satisfaction of the conditions specified in the foregoing
clause (A));
(d) Subordinated Indebtedness;
(e) Indebtedness (i) of any Subsidiary to the Borrower or to any other Subsidiary or (ii)
of the Borrower to any Subsidiary Guarantor or to any other Subsidiary (provided, that
(x) the aggregate principal amount of such Indebtedness of the Borrower outstanding to such
other Subsidiaries shall at no time exceed U.S.$200,000,000 and (y) such Indebtedness of the
Borrower shall be subordinated to the obligations of the Borrower to pay principal of and
interest on the Loans, the reimbursement obligation in respect of each LC Disbursement and all
other amounts payable hereunder on terms and conditions no less favorable to the Lenders than
the terms and conditions of the Senior Subordinated Note Indentures);
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(f) Indebtedness of any one or more Foreign Subsidiaries denominated in Dollars or in any
other currency that is convertible into Dollars in an aggregate principal amount not exceeding
U.S.$600,000,000 (or the spot rate equivalent thereof in such other currency as reasonably
determined by the Borrower) at any time outstanding;
(g) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary, provided that:
(i) the aggregate principal amount of Indebtedness of all Foreign Subsidiaries having
the benefit of such Guarantees may not exceed U.S.$600,000,000 at any one time;
(ii) the aggregate principal amount of Indebtedness of all Joint Venture Entities
having the benefit of such Guarantees may not exceed U.S.$200,000,000 at any one time (or
at any time the Senior Debt Ratio is less than or equal to 2.5 to 1 (the determination of
such ratio to be calculated as of the last day of the most recently-ended fiscal quarter
of the Borrower), $300,000,000 at any one time); and
(iii) any Guarantee by a Subsidiary of Subordinated Indebtedness incurred in
compliance with Section 7.11 shall comply with the requirements Section 7.11(b);
(h) Guarantees by the Borrower or any Subsidiary of Indebtedness of any Person (other than
the Borrower or any of its Subsidiaries); provided that the aggregate principal amount
of Indebtedness in respect of all such Guarantees shall not exceed U.S.$50,000,000 at any time
outstanding;
(i) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations
and any Indebtedness assumed in connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement and (ii) the
aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed
$200,000,000 at any time outstanding;
(j) other Indebtedness to the extent not otherwise permitted by the forgoing paragraphs of
this Section of the Borrower and its Subsidiaries; provided that at any time after
giving effect thereto the aggregate principal amount of such Indebtedness shall not exceed
U.S.$100,000,000; and
(k) the Maximum Receivable Exposure under all Permitted Receivable Financings.
SECTION 7.02. Liens. The Borrower will not, nor will it permit any of its Subsidiaries
to, create, incur, assume or permit to exist any Lien on any Property or asset now
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owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:
(a) Liens created pursuant to the Security Documents;
(b) Permitted Encumbrances;
(c) any Lien on any Property or asset of the Borrower or any of its Subsidiaries existing
on the Effective Date which Lien secures any item of Indebtedness the principal or face amount
of which does not exceed $10,000,000 or that is otherwise set forth in Part B of Schedule I;
provided that (x) no such Lien shall extend to any other Property or asset of the
Borrower or any of its Subsidiaries and (y) any such Lien shall secure only those obligations
which it secures on the date hereof and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(d) any Lien upon tangible Property acquired after the date hereof by the Borrower or any
of its Subsidiaries, which Lien either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof, or (B) was created solely for the
purpose of securing Indebtedness permitted under Section 7.01(i) representing, or incurred to
finance, refinance or refund, the cost of such Property; provided that (i) such Lien
shall not apply to any other Property or assets of the Borrower or any Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date of such acquisition and
extensions, renewals and replacements thereof permitted under clause (h) below;
(e) any Lien on Property or assets of any Foreign Subsidiary specified in Section 7.01(f)
securing Indebtedness of such Foreign Subsidiary permitted thereunder, (provided that
such Lien shall not in any event apply to any Property or assets of the Borrower or any other
Subsidiary);
(f) any Lien in favor of a special purpose company or Receivable Financier created or
deemed to exist pursuant to a Permitted Receivable Financing, but only to the extent that such
Lien relates to the applicable Receivable Assets conveyed by the Borrower or any Subsidiary;
(g) any Lien on any Property or assets securing Indebtedness of the Borrower or any of its
Subsidiaries permitted to be incurred by this Agreement in an aggregate amount not to exceed
U.S.$50,000,000 at any time outstanding;
(h) any purchase option or similar right on securities held by the Borrower or any of its
Subsidiaries in any Joint Venture Entity permitted by Section 7.06(g) which option or similar
right is granted to a third-party who holds securities in such Joint Venture Entity; and
(i) any extension, renewal or replacement of the foregoing; provided,
however, that the Liens permitted hereunder shall not be spread to cover any additional
Indebtedness or Property (other than a substitution of like Property).
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SECTION 7.03. Fundamental Changes. The Borrower will not, nor will it permit any of
its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its assets, or all or
substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that (x) the Borrower or any Subsidiary may
enter into transactions permitted by Section 7.05 and (y) if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into: (i) the
Borrower if the Borrower shall be the continuing or surviving corporation, (ii) any
Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary (so long as such
Wholly-Owned Subsidiary is the continuing or surviving corporation), (iii) if such Subsidiary
is a Foreign
Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary (so
long as such Wholly-Owned Subsidiary is the continuing or surviving corporation) or (iv) if
such Subsidiary is not a Foreign Subsidiary, any Foreign Subsidiary (provided that, if
such Foreign Subsidiary is the continuing or surviving corporation, such Foreign Subsidiary
shall subsequently be merged or consolidated with or into a Wholly-Owned Subsidiary of the
Borrower that is not a Foreign Subsidiary and such Wholly-Owned Subsidiary shall be the
continuing or surviving corporation);
(b) the Borrower or any such Subsidiary may convey, sell, lease, transfer or otherwise
dispose of any or all of its Property (upon voluntary liquidation or otherwise) either (A) in
compliance with the provisions of Section 7.04(i), (ii) or (iv) or (B) in the case of any such
Subsidiary, to (i) the Borrower, (ii) subject to clause (iii), any Wholly-Owned Subsidiary of
the Borrower that is not a Foreign Subsidiary (unless any such conveyance, sale, lease,
transfer or other disposition constitutes an Investment in a Foreign Subsidiary that is
permitted pursuant to Section 7.06) or (iii) if such Subsidiary is a Foreign Subsidiary, any
Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary (including a conveyance,
sale, lease, transfer or other disposition of such Property from a Foreign Subsidiary
temporarily to a Subsidiary that is not a Foreign Subsidiary with a subsequent conveyance,
sale, lease, transfer or other disposition of substantially the same property to another
Foreign Subsidiary);
(c) the Borrower or any Subsidiary of the Borrower may merge or consolidate with any other
Person if, in the case of a merger or consolidation of the Borrower, the Borrower is the
surviving corporation, and, in any other case, the surviving corporation is a Wholly-Owned
Subsidiary of the Borrower that is not a Foreign Subsidiary or, if such merging or
consolidating Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower
that is a Foreign Subsidiary; and
(d) the Borrower may, for the purpose of transferring its jurisdiction of incorporation
from Delaware to another state of incorporation, merge with and into a Wholly-Owned Subsidiary
in a transaction constituting a tax-free reorganization under 368(a)(1)(F) of the Code, so long
as:
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(x) the Borrower shall give the Lenders and the Administrative Agent at least 15 days
prior written notice of the occurrence of such merger;
(y) such Subsidiary shall execute and deliver an instrument in form and substance
satisfactory to each Lender and the Administrative Agent pursuant to which such Subsidiary
shall, effective upon such merger, assume all of the obligations of the Borrower hereunder
and under the Security Documents (and execute and deliver such other instruments as the
Administrative Agent shall request to ensure the continued perfection and priority of any
Liens granted by the Borrower pursuant to the Security Documents); and
(z) such Subsidiary shall deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with those delivered by
the Borrower pursuant to Section 5.01 hereof upon the Effective Date or as any Lender or
the Administrative Agent shall have requested;
provided, that (A) if any such merger shall be between a Subsidiary Guarantor and a
Subsidiary not a Subsidiary Guarantor, and such Subsidiary Guarantor is not the continuing or
surviving corporation, then the continuing or surviving corporation shall have assumed all of the
obligations of such Subsidiary Guarantor hereunder and under the other Loan Documents and (B) if
any such sale is by a Subsidiary Guarantor to a Subsidiary of the Borrower not a Subsidiary
Guarantor, then such Subsidiary shall have assumed all of the obligations of such Subsidiary
Guarantor hereunder and under the other Loan Documents.
SECTION 7.04. Disposition of Property. The Borrower will not, nor will it permit any
of its Subsidiaries (other than Non-Controlled Joint Venture Entities) to, convey, sell, lease,
transfer, issue or otherwise dispose of (each a Transfer), in one transaction or a series of
transactions, any part of its business or Property, whether now owned or hereafter acquired
(including, without limitation, receivables and leasehold interests); provided that the Borrower or
any Subsidiary may Transfer (i) any inventory or other Property sold or otherwise disposed of in
the ordinary course of business and on ordinary business terms, (ii) Receivable Assets pursuant to
any Permitted Receivable Financing, (iii) any Property to the extent permitted by Section
7.03(b)(B) and (iv) other Property so long as:
(a) the amount of such other Property Transferred in any single fiscal year by the
Borrower and its Subsidiaries shall have a fair market value not in excess of 15% of the
Consolidated Tangible Assets as at the last day of the fiscal quarter of the Borrower ending
prior to the date of determination (and, to the extent any such other property constitutes the
stock of any Subsidiary and results in such Subsidiary becoming a Joint Venture Entity, the
amount of such stock Transferred for purposes of this clause (a) shall be deemed to be a
ratable amount of the total assets of such Subsidiary (determined by reference to the
percentage of stock of such Subsidiary Transferred) immediately before giving effect to the
Transfer); and
(b) to the extent any such other Property constitutes the stock of any Subsidiary and
results in such Subsidiary becoming a Joint Venture Entity, the Borrower would at the time of
such Transfer be permitted to make an Investment in such Subsidiary (as a
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Joint Venture Entity) under Section 7.06(g) in an amount equal to the amount of the Borrowers
(or any other Subsidiarys) Investment in such Subsidiary after giving effect to such Transfer.
SECTION 7.05. Acquisition of Property. The Borrower will not, nor will it permit any
of its Subsidiaries to, acquire any business or Property from, or capital stock of, or be a party
to any Acquisition of, any Person; provided that:
(a) the Borrower or any such Subsidiary may (i) purchase inventory and other Property to
be sold or used in the ordinary course of business, (ii) make Investments permitted under
Section 7.06 and (iii) make Capital Expenditures;
(b) the Borrower may (either directly, or indirectly through its Wholly-Owned
Subsidiaries) acquire the business and related assets from, or capital stock of, or enter into
a joint venture with, or be a party to an Acquisition of, another Person, so long as at the
time thereof and after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing hereunder and the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer to such effect; provided that
(i) at the time of any such transaction, and after giving effect thereto, the Borrower shall be
in compliance with Section 7.10(a), (b) and (c) (the determination of such ratios to be
calculated under the assumption that such transaction was consummated at the beginning of the
respective period) and, to the extent the aggregate consideration to be delivered by the
Borrower and its Subsidiaries in connection with such transaction shall exceed U.S.$50,000,000,
the Borrower shall have furnished to the Administrative Agent a certificate of a Financial
Officer to such effect setting forth in reasonable detail the computations necessary to
determine such compliance, (ii) the Borrower will not use the proceeds of any Revolving Loan to
fund any such transaction and/or pay any related fees or expenses if, after giving effect to
the Borrowing thereof, the aggregate amount of the unused Revolving Commitments, together with
the then aggregate outstanding amount of Revolving Loans theretofore applied by the Borrower
for working capital purposes of the Borrower and its Subsidiaries, shall be less than
$100,000,000 (and, if the proceeds of any such Revolving Loans so applied to fund any such
transaction and/or pay any related fees or expenses is equal to or greater than $250,000,000,
the Borrower shall deliver the Administrative Agent concurrently with the Borrowing thereof a
certificate of a Financial Officer certifying that the condition specified in this clause (ii)
is satisfied) and (iii) in the case of an Acquisition of a Person, such Acquisition has been
approved by the board of directors of such Person prior to the commencement of any tender
offer, proxy contest or the like in respect thereof; and
(c) the Borrower and the Vincor Acquisition Entities may consummate the Vincor
Acquisition.
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SECTION 7.06. Investments. The Borrower will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the Effective Date in amounts which do not exceed
$10,000,000 with respect to each individual Investment or that are otherwise set forth in Part
B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Borrower and its Wholly-Owned Subsidiaries in the Borrower and its
Wholly-Owned Subsidiaries (excluding Foreign Subsidiaries) (including (x) any Investment in the
Vincor Acquisition Entities in connection with the Transactions and the repayment or prepayment
of Indebtedness under the Vincor Agreements and (y) the reclassification or conversion of any
such Investments to debt or equity or any combination thereof);
(e) Investments by the Borrower and its Wholly-Owned Subsidiaries in Foreign Subsidiaries
(including (x) any Investment in the Vincor Acquisition Entities in connection with the
Transactions and the repayment or prepayment of Indebtedness under the Vincor Agreements and
(y) the reclassification or conversion of any such Investments to debt or equity or any
combination thereof); provided, that if such Investments consist of loans or advances
by the Borrower to any Foreign Subsidiary, such Foreign Subsidiary shall execute and deliver an
Intercompany Note evidencing such Investments and the Borrower shall comply with the
requirements of Section 6.09(f);
(f) Investments consisting of (i) security deposits with utilities, lessors and other like
Persons made in the ordinary course of business, (ii) pledges and deposits made in the ordinary
course of business in compliance with workers compensation, unemployment insurance and other
social security laws or regulations or (iii) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance or indemnity
bonds and other obligations of a like nature, in each case in the ordinary course of business;
(g) Investments by the Borrower and its Subsidiaries in Joint Venture Entities (and
Investments by Joint Venture Entities in other Persons);
(h) acquisitions permitted pursuant to Section 7.05;
(i) Hedging Agreements entered into in the ordinary course of business and not for
speculative purposes;
(j) Investments (x) by the Borrower and its Wholly-Owned Subsidiaries in Foreign
Subsidiaries that are Wholly-Owned Subsidiaries of the Borrower and (y) by Foreign Subsidiaries
in other Foreign Subsidiaries of the Borrower that are Wholly-Owned Subsidiaries of the
Borrower, made directly or indirectly (including through any Obligor), in each case in
connection with the corporate reorganization or restructuring of
- 102 -
Vincor and its Subsidiaries after the Effective Date (provided that if the ownership
interests of any such Foreign Subsidiary (or any parent Foreign Subsidiary thereof) whose
assets are the subject such Investment are required to be pledged to the Administrative Agent
pursuant to Section 6.09, the requisite amount of ownership interests of the Foreign Subsidiary
that is the recipient of such Investment (or the applicable parent Foreign Subsidiary thereof)
shall also be pledged to the Administrative Agent as provided in Section 6.09 following
consummation of such reorganization);
(k) additional Investments by the Borrower or any of its Subsidiaries not otherwise
permitted by the foregoing paragraphs of this Section up to but not exceeding U.S.$100,000,000
in the aggregate at any one time outstanding; and
(l) any note issued by a Foreign Subsidiary to the Borrower or any Subsidiary Guarantor so
long as (i) no cash or other Property shall be paid or otherwise transferred by the Borrower or
such Subsidiary Guarantor to any Foreign Subsidiary in exchange for the issuance of such note
and (ii) such note shall be payable solely in shares of capital stock of a Subsidiary.
The aggregate amount of an Investment at any one time outstanding for purposes of clauses (e), (g)
and (j) above shall be deemed to be equal to (A) the aggregate amount of cash, together with the
aggregate fair market value of Property, loaned, advanced, contributed, transferred or otherwise
invested that gives rise to such Investment minus (B) the aggregate amount of dividends,
distributions or other payments received in cash in respect of such Investment or any sale or other
disposition thereof (subject to the terms of Section 7.04); the amount of an Investment shall not
in any event be reduced by reason of any write-off of such Investment nor increased by any increase
in the amount of earnings retained in the Person in which such Investment is made that have not
been dividended, distributed or otherwise paid out.
SECTION 7.07. Restricted Payments.
(a) The Borrower will not, nor will it permit any of its Subsidiaries (other than Joint
Venture Entities) to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that the Borrower may (i) declare and pay dividends with respect to its
capital stock payable solely in additional shares of its capital stock (other than Disqualified
Stock), (ii) make Restricted Payments in respect of stock appreciation rights, or other stock-based
awards, under any stock option plan of the Borrower (including without limitation any Stock Based
Plan) so long as no Default shall have occurred and be continuing or would result therefrom, (iii)
cancel or terminate any warrants, options or any other rights to acquire any shares of capital
stock of the Borrower in
exchange for the issuance of any other warrants, options or rights to acquire shares of
capital stock of the Borrower, (iv) repurchase its capital stock to the extent provided in
paragraph (b) below and (v) declare and make Restricted Payments in cash, subject (in the case of
this clause (v)) to the satisfaction of each of the following conditions on the date of such
Restricted Payment and after giving effect thereto:
(A) no Default shall have occurred and be continuing;
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(B) except with respect to the CBI Preferred Stock Payments, the aggregate amount of
Restricted Payments made during any fiscal year, including the fiscal year ending February
28, 2004, shall not exceed an amount equal to 50% of consolidated net income of the
Borrower and its Consolidated Subsidiaries for such fiscal year;
(C) except with respect to the CBI Preferred Stock Payments, the Debt Ratio for the
period of four consecutive fiscal quarters most recently ended prior to the date of any
such Restricted Payment shall not exceed 2.00 to 1; and
(D) except with respect to the CBI Preferred Stock Payments, the Borrower shall have
delivered to the Administrative Agent, at least 10 Business Days (but not more than 20
Business Days) prior to the date of declaration of any such Restricted Payment, a
certificate of a Financial Officer of the Borrower setting forth computations in
reasonable detail demonstrating satisfaction of the foregoing conditions as at the date of
such certificate and stating that such Financial Officer believes in good faith that none
of such conditions will fail to be satisfied on the date of payment of such Restricted
Payment,
it being understood that to the extent the conditions specified in the foregoing clauses (A)
through (C) are satisfied on the date of declaration of such Restricted Payment by the board of
directors of the Borrower, such Restricted Payment may be made at any time within the 60-day period
thereafter, regardless of whether such conditions continue to be satisfied.
(b) The Borrower may make Restricted Payments consisting of repurchases of its capital stock;
provided that:
(i) the aggregate amount of all such Restricted Payments made during the term of this
Agreement shall not exceed (i) U.S.$100,000,000 in the case of the Borrowers 2007 fiscal year
and (ii) for each successive fiscal year of the Borrower thereafter, 120% of the amount
permitted during the immediately preceding fiscal year;
(ii) after giving effect to any such Restricted Payment, the Borrower shall be in
compliance, on a pro forma basis, with Section 7.10 during the four quarter
period most-recently ended under the assumption that such Restricted Payment, and any related
borrowing, shall have been made or incurred at the beginning of such period (and, to the extent
requested by the Administrative Agent, the Borrower shall have delivered a calculation
demonstrating such pro forma compliance satisfactory to the Administrative Agent); and
(iii) the Borrower will not make any Restricted Payment under this paragraph (b) unless at
the time thereof, and after giving effect thereto, no Default shall have occurred and be
continuing.
(c) Nothing in this Section shall be deemed to prohibit the making or paying of any dividends
or other distributions (in any type of Property), or entering into any agreement to pay or make
dividends or other distributions, directly or indirectly, by any Subsidiary of the Borrower to the
Borrower or to any other Subsidiary of the Borrower.
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SECTION 7.08. Transactions with Affiliates. The Borrower will not, nor will it permit
any of its Subsidiaries (other than Non-Controlled Joint Venture Entities) to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its Affiliates;
provided that (x) any Affiliate who is an individual may serve as a director, officer or
employee of the Borrower or any of its Subsidiaries and receive reasonable compensation for his or
her services in such capacity and (y) the Borrower and its Subsidiaries may enter into transactions
with any Affiliate of the Borrower or any Subsidiary if the monetary or business consideration
arising therefrom would be substantially as advantageous to the Borrower and its Subsidiaries as
the monetary or business consideration which would obtain in a comparable transaction with a Person
not an Affiliate.
During any period that the Borrower is a public company regulated by, and required to file
regular periodic reports with, the Securities and Exchange Commission, any compensation paid to an
executive officer of the Borrower or any Subsidiary (who is an Affiliate) which has been
specifically approved by the board of directors of the Borrower (or by the Human Resources
Committee of the board of directors of the Borrower or other committee responsible for such
approval) during such period will be deemed to be reasonable for purposes of the foregoing.
Notwithstanding the foregoing, the Borrower and/or any Subsidiary may enter into so-called
split-dollar life insurance agreements with Affiliates, so long as the aggregate amount of premiums
payable by the Borrower during any fiscal year pursuant to such agreements shall not exceed
U.S.$2,000,000 in the aggregate.
SECTION 7.09. Certain Restrictions. The Borrower will not permit any of its
Subsidiaries (other than Joint Venture Entities) to enter into, after the date hereof, any
indenture, agreement, instrument or other arrangement that, directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes materially adverse
conditions upon, the incurrence or payment of Indebtedness, the granting of Liens, the declaration
or payment of dividends, the making of loans, advances, guarantees or
Investments or the sale, assignment, transfer or other disposition of Property;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law, by this Agreement or, in the case of any restrictions or conditions other than in respect of
the declaration or payment of dividends by Subsidiaries, restrictions or conditions imposed by any
evidence of Senior Unsecured Indebtedness, Subordinated Indebtedness or Foreign Subsidiary
Indebtedness (so long as no such restriction or condition is materially more restrictive on the
Borrower or any Subsidiary than the corresponding provisions of the 1999 Indenture or the Senior
Subordinated Note Indentures as in effect on the date hereof), (ii) the foregoing shall not apply
to customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary or its assets or capital stock pending such sale; provided that such
restrictions and conditions apply only to the Subsidiary or its assets or capital stock that are to
be sold and such sale is permitted hereunder, (iii) as applied to Liens, the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions or conditions apply only to the property or assets
securing such Indebtedness, (iv) as applied to Liens, the foregoing shall not apply to restrictions
or conditions imposed by any agreement relating to Indebtedness of Foreign Subsidiaries obligated
in respect of such Indebtedness and (v) as applied to Liens, the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment thereof.
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SECTION 7.10. Certain Financial Covenants.
(a) Debt Ratio. The Borrower will not permit the Debt Ratio to exceed the following
respective ratios at any time during the following respective periods:
|
|
|
Period |
|
Ratio |
From the date hereof through February 28, 2007
|
|
5.00 to 1 |
|
|
|
From 1 March 2007 through February 29, 2008
|
|
4.00 to 1 |
|
|
|
From 1 March 2008 and at all times thereafter
|
|
3.50 to 1 |
(b) Senior Debt Ratio. The Borrower will not permit the Senior Debt Ratio to exceed
the following respective ratios at any time during the following respective periods:
|
|
|
Period |
|
Ratio |
From the date hereof through February 28, 2007
|
|
4.75 to 1 |
|
|
|
From March 1, 2007 through February 29, 2008
|
|
3.75 to 1 |
|
|
|
From March 1, 2008 and all times thereafter
|
|
3.00 to 1 |
(c) Interest Coverage Ratio. The Borrower will not permit the Interest Coverage Ratio
to be less 3.00 to 1 at any time.
(d) Fixed Charges Ratio. The Borrower will not permit the Fixed Charges Ratio to be
less than 1.00 to 1 as at the last day of any fiscal quarter of each fiscal year.
SECTION 7.11. Subordinated Indebtedness. The Borrower may after the date hereof incur
additional Subordinated Indebtedness subject to the following conditions (each of which shall have
been fulfilled in form and substance reasonably satisfactory to the Administrative Agent):
(a) such Indebtedness shall be subordinated to the obligations of the Borrower to pay
principal of and interest on the Loans, the reimbursement obligation in respect of each LC
Disbursement and all other amounts payable hereunder on terms and conditions no less favorable
to the Lenders than the terms and conditions of the Senior Subordinated Note Indentures;
(b) such Indebtedness shall be an obligation of the Borrower only, and none of its
Subsidiaries shall be contingently or otherwise obligated in respect thereof, unless
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subordinated to the obligations of such Subsidiary to pay principal of and interest on the
Loans, the reimbursement obligations and all other amounts payable hereunder on terms and
conditions no less favorable to the Lenders than the terms and conditions of the Senior
Subordinated Note Indentures;
(c) the Net Available Proceeds of such Indebtedness shall be applied to (i) prepay Loans
in accordance with Section 2.10(b)(iv), (ii) repay or prepay Subordinated Indebtedness (in
accordance with this Section 7.11) or Senior Unsecured Indebtedness (in accordance with Section
7.12) or (iii) finance one or more Acquisitions pursuant to Section 7.05(b);
(d) the terms of such Indebtedness shall not provide for payment of any portion of the
principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(e) terms in respect of financial and other covenants, events of default and mandatory
prepayments applicable to such Indebtedness shall be terms that are at the time customary in
the market for subordinated debt being incurred by the Borrower, and in transactions,
comparable to the Borrowers proposed debt issuance;
(f) at the time of issuance of such Indebtedness, and after giving effect thereto, the
Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be
calculated under the assumption that such Indebtedness was issued, at the beginning of the
respective period and that any other Indebtedness to be retired with the proceeds thereof was
in fact retired on such date of issuance);
(g) at the time of such issuance, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing hereunder; and
(h) prior to such issuance the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect specified in the foregoing clauses (a), (b),
(e), (f) and (g) (and setting forth in reasonable detail the computations necessary to
determine compliance with said clause (f)).
Neither the Borrower nor any of its Subsidiaries shall purchase, redeem, retire or otherwise
acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for,
the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount owing in respect of, any
Subordinated Indebtedness (or enter into any transaction that has a substantially similar effect),
except that (i) the Borrower may make payments on the regularly-scheduled payment dates with
respect to the principal of and interest on the Subordinated Indebtedness as in effect on the date
hereof (or, as to any Subordinated Indebtedness issued after the date hereof, as originally in
effect) and (ii) so long as no Default shall have occurred and be continuing (or will occur as a
result of such payment), from the proceeds of other Subordinated Indebtedness issued in accordance
with the first paragraph of this Section, the Borrower may redeem or prepay such Subordinated
Indebtedness.
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SECTION 7.12. Senior Unsecured Indebtedness. Neither the Borrower nor any of its
Subsidiaries shall purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or other
acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or
any other amount owing in respect of, Senior Unsecured Indebtedness (or enter into any transaction
that has a substantially similar effect), except that the Borrower may (i) make payments on the
regularly-scheduled payment dates with respect to the principal of and interest on Senior Unsecured
Indebtedness, (ii) make any optional prepayment of the 2006 Senior Notes and (iii) so long as no
Default shall have occurred and be continuing (or will occur as a result of such payment), from the
proceeds of Senior Unsecured Indebtedness incurred in accordance with Section 7.01(c) or the
proceeds of Subordinated Indebtedness issued in accordance with Section 7.11(a), redeem any Senior
Unsecured Indebtedness being refinanced with such proceeds. Neither the Borrower nor any of its
Subsidiaries will consent to any modification, supplement or waiver of any of the provisions of any
Senior Unsecured Indebtedness if such amendment, supplement or waiver could reasonably be expected
to have a Material Adverse Effect on (x) the legal ability or financial capacity of any Obligor to
perform any of its obligations under this Agreement or any of the other Loan Documents to which it
is a party or (y) the rights of or benefits available to the Lenders under this Agreement or any of
the other Loan Documents.
SECTION 7.13. Modifications of Certificate of Incorporation. Notwithstanding the
provisions of clause (d) of Section 7.03, the Borrower will not modify or supplement its
Certificate of Incorporation as in effect on the date hereof in any manner materially adverse to
the interests of the Lenders without the prior consent of the Administrative Agent (with the
approval of the Required Lenders).
SECTION 7.14. Vincor Acquisition Entities. Notwithstanding any other term or condition
of this Article VII, the Borrower will not permit any Vincor Acquisition Entity that is not a
Subsidiary Guarantor to (i) create, incur or assume any Indebtedness owed to any Person other than
the Borrower or any Subsidiary thereof (subject to Section 7.01), (ii) convey, sell, lease,
transfer or otherwise dispose of any part of its business or Property other than as permitted under
Sections 7.03 and 7.04 or (iii) make any Investment; provided that, notwithstanding the
foregoing, any Vincor Acquisition Entity shall be permitted to engage in any of the foregoing
transactions (including through the Borrower or any Wholly Owned Subsidiary of the Borrower) to the
extent such transactions are (x) reasonably necessary in connection with the Vincor Acquisition or
to otherwise effect any corporate reorganization or restructuring in connection therewith
(including subsequent thereto) or (y) incidental to the business and activities of a holding
company.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events (Events of Default) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due
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and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement
or under any other Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or
any of its Subsidiaries in this Agreement or any other Loan Document or any amendment or
modification hereof or thereof, or in any report, certificate, financial statement or other
document furnished pursuant to this Agreement or any other Loan Document or any amendment or
modification hereof or thereof, shall prove to have been incorrect when made or deemed made in
any material respect;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 6.02(a) or (e), 6.03 (with respect to the Borrowers existence), 6.08,
6.10 (with respect to covenants, conditions or agreements contained in any fee letter referred
to in the Commitment Letter other than the payment of amounts due thereunder as to which clause
(b) above shall govern) or in Article VII;
(e) any Obligor shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article) or any other Loan Document and such failure shall continue unremedied for a period of
45 or more days after notice thereof from the Administrative Agent (given at the request of any
Lender) to the Borrower;
(f) the Borrower or any of its Subsidiaries shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with all applicable grace periods
having expired) the holder or holders of any Material Indebtedness or any trustee or agent on
its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the Property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any of
its Subsidiaries (other than any Inactive Subsidiaries and Non-Controlled Joint Venture
Entities) or its debts, or of a substantial part of its assets, under any Federal, state,
provincial or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
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sequestrator, administrator, conservator, monitor or similar official for the Borrower or any
of its Subsidiaries (other than any Inactive Subsidiaries and Non-Controlled Joint Venture
Entities) or for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for a period of 60 or more days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any of its Subsidiaries (other than any Inactive Subsidiaries and
Non-Controlled Joint Venture Entities) shall (i) voluntarily commence any proceeding or file
any petition or make any assignment seeking liquidation, reorganization, a plan of arrangement
or other relief under any Federal, state, provincial or foreign bankruptcy, insolvency,
administration, 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, administrator, conservator, monitor or similar
official for the Borrower or any of its Subsidiaries (other than any Non-Controlled Joint
Venture Entities) or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(j) the Borrower or any of its Subsidiaries (other than any Inactive Subsidiaries and
Non-Controlled Joint Venture Entities) shall become unable, admit in writing its inability or
fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
U.S.$30,000,000 (exclusive of any judgment amount to the extent covered by insurance, bond,
surety or similar instrument where the insurer or holder of such bond, surety or instrument, as
the case may be, has not contested liability in respect of such judgment so long as the
Borrower or such Subsidiary is seeking to recover under such insurance, bond, surety or similar
instrument) shall be rendered against the Borrower or any of its Subsidiaries (other than any
Inactive Subsidiaries and Non-Controlled Joint Venture Entities) or any combination thereof and
the same shall remain undischarged for a period of 45 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or any such Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Events that have occurred, could reasonably be expected to
have a Material Adverse Effect;
(m) a reasonable basis shall exist for the assertion against the Borrower or any of its
Subsidiaries of (or there shall have been asserted against the Borrower or any of its
Subsidiaries) claims or liabilities, whether accrued, absolute or contingent, based on or
arising from the generation, storage, transport, handling or disposal of Hazardous Materials by
the Borrower or any
of its Subsidiaries or Affiliates, or any predecessor in interest of the Borrower or any
of its Subsidiaries or Affiliates, or relating to any site or facility owned, operated or
leased by the Borrower or any of its Subsidiaries or Affiliates,
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which claims or liabilities (insofar as they are payable by the Borrower or any of its
Subsidiaries but after deducting any portion thereof which is reasonably expected to be paid by
other creditworthy Persons jointly and severally liable therefor), in the judgment of the
Required Lenders are reasonably likely to be determined adversely to the Borrower or any of its
Subsidiaries, and the amount thereof is reasonably likely to have a Material Adverse Effect;
(n) a Change in Control shall occur; or
(o) any Lien or Liens created by the Security Documents with respect to any material
portion of the Collateral shall at any time not constitute valid and perfected Liens on such
collateral intended to be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the Administrative Agent
for the benefit of the Lenders, free and clear of all other Liens (other than Liens permitted
under Section 7.02 or under the respective Security Documents), or, except for expiration or
termination in accordance with its terms or otherwise permitted hereunder, any of the Security
Documents with respect to any material portion of the Collateral shall for whatever reason be
terminated or cease to be in full force and effect, or the enforceability thereof shall be
contested by any Obligor;
then, and in every such event (other than an event with respect to any Obligor described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Obligors accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by each Obligor; and in case of any event with respect to any Obligor
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Obligors accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by each Obligor.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby appoints the Administrative Agent as its
agent hereunder and under the other Loan Documents and as its trustee in respect of the Foreign
Pledge Agreements and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto.
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The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a)
the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have
any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that
the Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except
as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document
or any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article V or elsewhere herein or therein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for an
Obligor), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Related
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Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right, with the consent of
the Borrower (such consent not to be unreasonably withheld and not to be required if an Event of
Default shall have occurred and be continuing), to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agents resignation hereunder, the provisions
of this Article and Section 10.03 shall continue in effect for the benefit of such retiring
Administrative 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 Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Without the authorization of the Required Lenders, neither the Administrative Agent nor any
Lender shall send to the Borrower or the Trustee under the Senior Subordinated Note Indentures any
notice of a Default or Event of Default hereunder if such notice would result in a payment block in
respect of the Senior Subordinated Notes.
The Administrative Agent in its capacity as trustee or otherwise under any Foreign Pledge
Agreement:
(a) shall not be liable for any failure, omission, or defect in perfecting the security
constituted or created by such Foreign Pledge Agreement including, without limitation, any
failure to (i) register the same in accordance with the provisions of any of the documents of
title of the Chargor (as defined in the U.K. Equity Pledge Agreement) to any of the assets
thereby charged or (ii) effect or procure registration of or otherwise protect the security
created by this deed under any registration laws in any jurisdiction;
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(b) may accept without inquiry such title as the Chargor (as defined in the U.K. Equity
Pledge Agreements) or the Mortgagor (as defined in each Australian Equity Pledge Agreement) may
have to the Shares (as so respectively defined); and
(c) shall not be under any obligation to hold any title deed or any other documents in
connection with any Foreign Pledge Agreement or to take any steps to protect or preserve the
same. The Administrative Agent may permit the Chargor (as defined in the U.K. Equity Pledge
Agreements) or the Mortgagor (as defined in each Australian Equity Pledge Agreement) to retain
all such title deeds and other documents in its possession.
Except as otherwise provided in the Foreign Pledge Agreements, all moneys which under the
trusts therein contained are received by the Administrative Agent in its capacity as trustee or
otherwise may be invested in the name of or under the control of the Administrative Agent in any
investment for the time being authorized by English law (in the case of the U.K. Equity Pledge
Agreements), Australian law (in the case of the Australian Equity Pledge Agreements),
Luxembourg law (in the case of the Luxembourg Equity Pledge Agreement) or New Zealand Law (in the
case of the New Zealand Equity Pledge Agreements), in each case for the investment by trustees of
trust money or in any other investments which may be selected by the Administrative Agent.
Additionally, the same may be placed on deposit in the name of or under the control of the
Administrative Agent at such bank or institution (including JPMorgan Chase) and upon such terms as
the Administrative Agent may think fit.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent
by telecopy, as follows:
(i) if to the Borrower or any Subsidiary Guarantor, to it at 370 Woodcliff Drive, Suite
300, Fairport, New York 14450, Attention of Thomas Mullin, Esq. (Telecopy No. (585) 218-3603);
(ii) if to the Administrative Agent, to Loan and Agency Services, 1111 Fannin,
10th Floor, Houston, TX 77002, Attention of Cherry Arnaez (Telecopy No.
(713) 750-2782);
(iii) if to an Issuing Lender, to it at such address as may be notified by it to the other
parties hereto;
(iv) if to the Swingline Lender, to it at such address as may be notified by it to the
other parties hereto; and
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(v) if to a Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
(b) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case of any such change
by a Lender, by notice to the Borrower and the Administrative Agent. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
(c) 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 Borrower 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.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent, any Issuing Lender or any Lender in exercising any right or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Lenders and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any Obligor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Lender may have had notice or knowledge of such Default at the
time.
(b) Amendments. Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the
Required Lenders; provided that no such agreement shall (i) increase any Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender adversely affected thereby, (iii) postpone the scheduled
date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any such scheduled payment, or
postpone the scheduled date of expiration of any Commitment, without the written consent of each
Lender adversely affected thereby, (iv) alter the manner in which payments or prepayments of
principal, interest or other amounts
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hereunder shall be applied as among the Lenders or Types or Classes of Loans, without the written
consent of each Lender adversely affected thereby, (v) change any of the provisions of this Section
or the definition of the term Required Lenders or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder, without the written
consent of each Lender or (vi) release all or substantially all of the Subsidiary Guarantors from
their guarantee obligations under Article III without the written consent of each Lender; and
provided further that (x) no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent, any Issuing Lender or the Swingline Lender
hereunder without the prior written consent of the Administrative Agent, such Issuing Lender or the
Swingline Lender, as the case may be, (y) any modification or supplement of Article III shall
require the consent of each Subsidiary Guarantor and (z) subject to the foregoing clause (vi), any
Subsidiary Guarantor may be released from its guarantee obligations under Article III if such
Subsidiary Guarantor is the subject of a Disposition permitted by this Agreement or if such
Subsidiary Guarantor becomes an Inactive Subsidiary (and any other release of a Subsidiary
Guarantor not described in the foregoing clause (vi) may be effected only with the consent of the
Required Lenders).
Anything in this Agreement to the contrary notwithstanding, no waiver or modification of any
provision of this Agreement that has the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of a Loan of any Class shall
be effective against the Lenders of such Class for purposes of the Commitments of such Class unless
the Required Lenders of such Class shall have concurred with such waiver or modification, and no
waiver or modification of any provision of this Agreement or any other Loan Document that could
reasonably be expected to adversely affect the Lenders of any Class in a manner that does not
affect all Classes equally shall be effective against the Lenders of such Class unless the Required
Lenders of such Class shall have concurred with such waiver or modification.
(c) Amendments to Security Documents. No Security Document nor any provision thereof
may be waived, amended or modified, nor may the Liens thereof be spread to secure any additional or
other obligations (excluding any Incremental Term Loans incurred pursuant to Section 2.01(e), but
including any other increase in Loans hereunder) of the Obligors except pursuant to an agreement or
agreements in writing entered into by the Borrower or any Subsidiary party thereto, and by the
Administrative Agent with the consent of the Required Lenders; provided that, (i) without
the written consent of each Lender, no such agreement shall release the Borrower or all or
substantially all of its Subsidiaries from their respective obligations under the Security
Documents and (ii) without the written consent of each Lender, no such agreement shall release all
or substantially all of the collateral security or otherwise terminate all or substantially all of
the Liens under the Security Documents, alter the relative priorities of the obligations entitled
to the Liens created under the Security Documents (except in connection with securing additional or
other obligations equally and ratably with the Loans and other obligations hereunder) with respect
to all or substantially all of the collateral security provided thereby, except that (A) no such
consent shall be required, and the Administrative Agent is hereby authorized (and so agrees with
the Borrower and the Subsidiary Guarantors), to release any Lien covering property (and to release
any such Subsidiary Guarantor) that is the subject of either a Disposition permitted hereunder or a
Disposition to which the Required Lenders have
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consented and (B) no such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent without the prior written consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of
this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing Lender in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the Administrative Agent, any
Issuing Lender or any Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Issuing Lender or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or negotiations in respect
thereof, provided that to the extent that the costs and expenses referred to in this clause
(iii) consist of fees, costs and expenses of counsel, the Borrower shall be obligated to pay such
fees, costs and expenses for only two counsel acting for the Lenders (in addition to any counsel
for the Administrative Agent) and (iv) and all costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or perfection of any
security interest contemplated by any Security Document or any other document referred to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Issuing Lender and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an Indemnitee) against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery
of this Agreement or any agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by any Issuing Lender to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or
from any Property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent
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jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent, an Issuing Lender or the Swingline Lender
under paragraph (a) or (b) of this Section (and without limiting the Borrowers obligation to do
so), each Lender severally agrees to pay to the Administrative Agent, such Issuing Lender or the
Swingline Lender, as the case may be, such Lenders Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Lender or the Swingline Lender in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable law,
no Obligor shall assert, and each Obligor hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns permitted
hereby, except that (i) (unless in connection with a transaction expressly permitted under Section
7.03) no Obligor may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by any
Obligor without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section 10.04. 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, Participants referred to in paragraph (e) below and the directors,
officers, employees, attorneys, agents, advisors and trustees of each of the Administrative Agent,
each Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in clause (ii)
below, 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 Commitment(s), Loan(s), LC
Exposure and Swingline Exposure) with the prior written consent (such consent not to be
unreasonably withheld) of:
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(A) the Borrower; provided that no consent of the Borrower shall be required
for an assignment (x) to a Lender, an Affiliate of a Lender or an Approved Fund, (y) if an
Event of Default has occurred and is continuing under clause (a), (b), (h) or (i) of
Article VIII, to any other assignee or (z) in connection with the syndication contemplated
by the Commitment Letter;
(B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of any Term Loan to a Lender, an Affiliate of a
Lender or an Approved Fund; and
(C) the Issuing Lender, provided that no such consent of the Issuing Lender
shall be required for the assignment of any Term Loan.
(ii) Certain Conditions to Assignments. Assignments shall be subject to the
following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund of such assigning Lender or an assignment of the entire remaining amount of
the assigning Lenders Commitment(s), Loan(s), LC Exposure or Swingline Exposure, the
amount of the Commitment(s), Loan(s), LC Exposure or Swingline Exposure of the assigning
Lender subject to each such assignment (determined as of the date of the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent) shall
not be less than U.S.$5,000,000 (or, in the case of any assignment of a Term Loan or Term
Loan Commitment, U.S.$1,000,000) unless each of the Borrower and the Administrative Agent
otherwise consent; provided that no such consent of the Borrower shall be required
if an Event of Default has occurred and is continuing under clause (a), (b), (h) or (i) of
Article VIII;
(B) each partial assignment of any Commitment, Loan, LC Exposure or Swingline
Exposure shall be made as an assignment of a proportionate part of all the assigning
Lenders rights and obligations under this Agreement in respect of its Commitment, Loan,
LC Exposure and Swingline Exposure;
(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
U.S.$3,500 payable by the assigning Lender; and
(D) the assignee, if it shall not already be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and recording thereof
pursuant to paragraph (c) of this Section 10.04, from and after the effective date specified in
each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning
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Lender thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lenders 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 hereof). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this Section
10.04 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
10.04.
(c) Maintenance of Register by the Administrative Agent. The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in New
York City a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment(s) of, and principal
amount of the Loan(s), LC Exposure and Swingline Exposure held by, each Lender pursuant to the
terms hereof from time to time (the Register). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, each Issuing Lender and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, any Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly
completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignees
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 10.04 and any
written consent to such assignment required by paragraph (b) of this Section 10.04, the
Administrative Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of the Borrower, the
Administrative Agent, any Issuing Lender or the Swingline Lender, sell participations to one or
more Lenders or other entities (a Participant) in all or a portion of such Lenders
rights and obligations under this Agreement and the other Loan Documents (including all or a
portion of its Commitment(s), Loan(s), LC Exposure and Swingline Exposure held by it);
provided that (i) such Lenders obligations under this Agreement and the other Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Lenders and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lenders rights and obligations under this Agreement and the
other Loan Documents. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and the other Loan Documents and to approve any amendment, modification or waiver of any provision
of this Agreement or any other Loan Document; provided that such agreement or instrument
may
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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) hereof that affects such
Participant. Subject to paragraph (f) of this Section 10.04, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 hereof to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section 10.04. To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 10.08 hereof as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.17(d) hereof as though it were a Lender hereunder.
Notwithstanding anything in this paragraph to the contrary, any bank that is a member of the Farm
Credit System that (a) has purchased a participation from CoBank in the minimum amount of
U.S.$10,000,000 on or after the Effective Date, (b) is, by written notice to the Borrower and the
Administrative Agent (Voting Participant Notification), designated by CoBank as being entitled to
be accorded the rights of a voting participant hereunder (any bank that is a member of the Farm
Credit System so designated being called a Voting Participant) and (c) receives the prior written
consent of the Borrower and the Administrative Agent to become a Voting Participant, shall be
entitled to vote (and the voting rights of CoBank shall be correspondingly reduced), on a dollar
for dollar basis, as if such participant were a Lender, on any matter requiring or allowing a
Lender to provide or withhold its consent, or to otherwise vote on any proposed action. To be
effective, each Voting Participant Notification shall, with respect to any Voting Participant, (i)
state the full name, as well as all contact information required of an assignee as set forth in Exhibit A hereto and (ii) state the dollar amount of the
participation purchased. The Borrower and the Administrative Agent shall be entitled to
conclusively rely on information contained in notices delivered pursuant to this paragraph.
(f) Limitations on Rights of Participants. A Participant shall not be entitled to
receive any greater payment under Sections 2.14, 2.15 and 2.16 hereof 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 Borrowers prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.16 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Certain Pledges. Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank or a Farm Credit Bank, and this Section 10.04 shall not apply
to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Borrower or Affiliates. Anything in this Section 10.04 to
the contrary notwithstanding, no Lender may assign or participate any interest in any Commitment,
Loan, LC Exposure or Swingline Exposure held by it hereunder to the Borrower or any of its
Affiliates or Subsidiaries without the prior consent of each Lender.
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(i) Replacement of Lenders. If (i) any Lender requests compensation under
Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for account of any Lender pursuant to Section 2.16, or if any Lender
defaults in its obligation to fund Loans hereunder or (ii) the Borrower shall seek any amendment,
modification or waiver of any provision of this Agreement or any Security Document that shall
require under Section 10.02 (or the terms of such Security Document) the consent of each Lender,
and any Lender shall not consent thereto at a time when Lenders having Revolving Exposures,
outstanding Term Loans and unused Commitments representing at least 66
2/3% of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at such time have so consented thereto, then the Borrower may, with respect to
any such Lender identified in the foregoing clauses (i) or (ii) (in any case, a Subject
Lender), at its sole expense and effort, upon notice to such Subject Lender and the
Administrative Agent, require such Subject Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in this Section 10.04), all of its
interests, rights and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) such Subject Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (ii) 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
Subject Lender shall not be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver or consent by such Subject Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation under this Section 10.04(i) cease to apply.
SECTION 10.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Lender or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03 and
10.03 and Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
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Administrative Agent constitute the entire contract between and among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 5.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page to this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by such
Lender or Affiliate thereof to or for the credit or the account of any Obligor against any of and
all the obligations of any Obligor now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights of each Lender
under this Section are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and unconditionally
submits, for itself and its Property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Commitment Letter, 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 the Commitment shall affect any right that the
Administrative Agent, any Issuing Lender or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the Commitment Letter against any Obligor or its
properties in the courts of any jurisdiction.
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(c) Waiver of Venue. Each Obligor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the Commitment Letter in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01 except that process may not be
served by telecopy. Nothing in this Agreement or the Commitment Letter will affect the right of any
party to this Agreement or the Commitment Letter to serve process in any other manner permitted by
law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE COMMITMENT
LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain Information; Disclosure.
(a) The Borrower acknowledges that from time to time financial advisory, investment banking
and other services may be offered or provided to the Borrower or one or more of its Subsidiaries
(in connection with this Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and the Borrower hereby authorizes each Lender, subject to applicable
Federal or State securities laws, to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender
to enter into this Agreement, to any such subsidiary or affiliate, it being understood that any
such subsidiary or affiliate shall be bound by the provisions of paragraph (b) below as if it were
a Lender hereunder. Such authorization shall survive the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.
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(b) Notwithstanding anything to the contrary herein, neither the Lenders, nor the
Administrative Agent may disclose to any Person any information that constitutes material
non-public information regarding the Borrower or its securities for purposes of Regulation FD
promulgated by the Securities and Exchange Commission of the Securities and Exchange Commission
(Regulation FD) or any other federal or state securities laws (it being acknowledged and
agreed that the provisions of this Section 10.12 with respect to such information are reasonably
necessary to comply with Regulation FD and/or such other federal and state securities laws) (such
information referred to collectively herein as the Borrower Information), except that the
Administrative Agent and each of the Lenders may disclose Borrower Information (i) to its and its
affiliates directors, officers, employees and agents, including trustees, 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 Borrower Information and instructed to keep
such Borrower Information confidential) to
the extent requested by any regulatory authority or the National Association of Insurance
Commissioners, (ii) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iii) to any other party to this Agreement, (iv) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (v) subject to an agreement containing provisions substantially the same
as those of this paragraph, to any (x) assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement so long as such
assignee, Participant or any prospective assignee or Participant agrees to be bound by this Section
10.12(b), (y) direct or indirect contractual counterparties in swap agreements or such contractual
counterparties professional advisors or (z) pledgee of, or assignee of a security interest in, all
or any portion of its rights under this Agreement, pursuant to Section 10.04(g), (vi) to the extent
such Borrower Information (A) is or becomes generally available to the public on a non-confidential
basis through no fault or action by any of the Lenders or the Administrative Agent, or (B) is or
becomes available to such Lenders or the Administrative Agent on a nonconfidential basis from a
source other than the Borrower and (vii) with the consent of the Borrower.
SECTION 10.13. Credit Agreement under Indentures; Existing Credit Agreement.
(a) It is the intention of the parties hereto that this Agreement constitutes one of the
successive renewals, substitutions, refinancings or replacements of the Credit Agreement dated as
of June 29, 1993 between the Borrower, the Subsidiaries of the Borrower identified on the signature
pages thereof under the caption Subsidiary Guarantors, the lenders named therein and JPMorgan
Chase Bank, N.A., as agent, referred to in the definition of Credit Agreement in Section 101 of
the Senior Subordinated Note Indentures and that, accordingly, this Agreement constitutes the
Credit Agreement under and as defined in the Senior Subordinated Notes Indentures.
(b) It is the intention of the parties hereto that this Agreement constitutes one of the
successive renewals, substitutions, refinancings or replacements of the Credit Agreement referred
to in each of the indentures listed in Part A of Schedule I, and that, accordingly, this Agreement
constitutes the Credit Agreement under and as defined in each such indenture.
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(c) Notwithstanding anything to the contrary in this Agreement, to the extent that compliance
by the Borrower with any provision of Article VI or VII would violate or conflict with any
provision of the Existing Credit Agreement, then such provision of Article VI or VII (as
applicable) shall have no force or effect until on and after the Effective Date.
SECTION 10.14. USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the Act), it is required to obtain, verify and record information that
identifies the name and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Act.
SECTION 10.15. Judgment Currency. This is an international loan transaction in which
the specification of Dollars or an Alternative Currency, as the case may be (the Specified
Currency), and any payment in New York County or the country of the Specified Currency, as the
case may be (the Specified Place), is of the essence, and the Specified Currency shall be
the currency of account in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Borrower under this Agreement shall not be discharged by an amount paid
in another currency or in another place, whether pursuant to a judgment or otherwise, to the extent
that the amount so paid on conversion to the Specified Currency and transfer to the Specified Place
under normal banking procedures does not yield the amount of the Specified Currency at the
Specified Place due hereunder. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in the Specified Currency into another currency (the
Second Currency), the rate of exchange which shall be applied shall be that at which in
accordance with normal banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding that on which such judgment is
rendered. The obligation of the Borrower in respect of any such sum due from it to the
Administrative Agent or any Lender hereunder shall, notwithstanding the rate of exchange actually
applied in rendering such judgment, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such Lender, as the case may be, of any sum
adjudged to be due hereunder in the Second Currency to the Administrative Agent or such Lender, as
the case may be, the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase and transfer to the Specified Place the Specified Currency
with the amount of the Second Currency so adjudged to be due; and the Borrower hereby, as a
separate obligation and notwithstanding any such judgment, agrees to indemnify the Administrative
Agent or such Lender, as the case may be, against, and to pay the Administrative Agent or such
Lender, as the case may be, on demand in the Specified Currency, any difference between the sum
originally due to the Administrative Agent or such Lender, as the case may be, in the Specified
Currency and the amount of the Specified Currency so purchased and transferred.
SECTION 10.16. Cleanup Period. The Lenders and the Administrative Agent acknowledge
and agree that if, at any time during the period (herein, the Cleanup Period) commencing
on the date hereof through but not including the 180th day following the
Effective Date, (i) Vincor or any of its Subsidiaries shall fail (or the Borrower shall fail to
cause Vincor or any of its Subsidiaries) to
comply with any of the covenants herein or in any of the other Loan Documents, (ii) if any of
the representations or warranties made herein or in any of the other
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Loan Documents (or in any report, financial statement, certificate or other document furnished in
connection herewith or therewith) with respect to Vincor or any of its Subsidiaries shall prove to
have been incorrect in any material respect or (iii) any event or condition that constitutes a
default or an event of default under any Vincor Agreement occurs as a result of or in connection
with the Vincor Acquisition or Vincor or any of its Subsidiaries is otherwise in breach or
violation of any Vincor Agreement, then, notwithstanding anything herein to the contrary, such
failure to comply with covenants (other than any such failure that is caused or authorized by the
Borrower, it being understood that mere knowledge of a failure to comply shall not constitute
authorization for purposes hereof), any such incorrectness with respect to representations or
warranties and any such default, event of default, breach or violation shall not constitute (x) a
Default or Event of Default hereunder or (y) a failure by the Borrower to have satisfied any of the
conditions in Section 5.02 or 5.04, in each case until after the expiration of the Cleanup Period
(and then only to the extent that the same is continuing).
SECTION 10.17. Delivery of Lender Addenda. Each Lender (other than the Swingline
Lender and the Issuing Lender) shall become a party to this Agreement by delivering to the
Administrative Agent a Lender Addendum duly executed by such Lender and the Borrower and, by
executing its Lender Addendum, each such Lender agrees to be bound by the provisions hereof with
the Commitments set forth opposite its name in such Lender Addendum.
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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.
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CONSTELLATION BRANDS, INC.
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By: |
/s/ Thomas D. Roberts
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|
|
Name: |
Thomas D. Roberts |
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|
|
Title: |
Senior Vice President and Treasurer |
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|
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JPMORGAN CHASE BANK, N.A., as Swingline Lender, Issuing Lender and
Administrative Agent
|
|
|
By: |
/s/ Bruce Borden
|
|
|
|
Name: |
Bruce Borden |
|
|
|
Title: |
Vice President |
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|
CITICORP NORTH AMERICA, INC., as Syndication Agent
|
|
|
By: |
/s/ Robert H. Chen
|
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|
|
Name: |
Robert H. Chen |
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|
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Title: |
Vice President |
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|
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J.P. MORGAN SECURITIES, INC., as Joint Lead Arranger and Bookrunner
|
|
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By: |
/s/ Adam Bernard
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|
|
Name: |
Adam Bernard |
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|
|
Title: |
Vice President |
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|
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CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Bookrunner
|
|
|
By: |
/s/ Robert H. Chen
|
|
|
|
Name: |
Robert H. Chen |
|
|
|
Title: |
Director |
|
Credit Agreement
|
|
|
|
|
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THE BANK OF NOVA SCOTIA, as
Co-Documentation Agent
|
|
|
By: |
/s/ Michael Bradley
|
|
|
|
Name: |
Michael Bradley |
|
|
|
Title: |
Managing Director |
|
|
|
SUNTRUST BANK, as Co-Documentation Agent
|
|
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By: |
/s/ Susan M. Hall
|
|
|
|
Name: |
Susan M. Hall |
|
|
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Title: |
Managing Director |
|
Credit Agreement
|
|
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|
|
SUBSIDIARY GUARANTORS
ALLBERRY, INC.
CLOUD PEAK CORPORATION
CONSTELLATION AVIATION, INC.
CONSTELLATION TRADING COMPANY, INC.
CONSTELLATION WINES U.S., INC.
FRANCISCAN VINEYARDS, INC.
MT. VEEDER CORPORATION
R.M.E., INC.
THE ROBERT MONDAVI CORPORATION
ROBERT MONDAVI AFFILIATES
ROBERT MONDAVI INVESTMENTS
ROBERT MONDAVI PROPERTIES, INC.
ROBERT MONDAVI WINERY
|
|
|
By: |
/s/ Thomas D. Roberts
|
|
|
|
Name: |
Thomas D. Roberts |
|
|
|
Title: |
Vice President and Assistant Treasurer |
|
|
|
BARTON INCORPORATED
BARTON BRANDS, LTD.
BARTON BEERS, LTD.
BARTON BEERS OF WISCONSIN, LTD.
BARTON BRANDS OF CALIFORNIA, INC.
BARTON BRANDS OF GEORGIA, INC.
BARTON CANADA, LTD.
BARTON DISTILLERS IMPORT CORP.
MONARCH IMPORT COMPANY
BARTON FINANCIAL CORPORATION
|
|
|
By: |
/s/ Thomas D. Roberts
|
|
|
|
Name: |
Thomas D. Roberts |
|
|
|
Title: |
Vice President |
|
Credit Agreement
The form of Lender Addendum at Exhibit H had been entered into with the Lenders listed below
on or prior to June 5, 2006, the date of funding under the Credit Agreement. The Lender Addendum
with respect to each Lender contains the commitments set forth opposite such Lenders name below.
Subsequent to June 5, 2006, certain of the Lenders listed below have assigned all or a portion of
their loans under the Credit Agreement pursuant to the terms of the Credit Agreement. Such
assignments may also occur in the future.
|
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|
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|
|
|
Revolving |
|
Initial Lenders |
|
Tranche A |
|
|
Tranche B |
|
|
Loan |
|
Australia & New Zealand Banking Group Limited |
|
$ |
7,060,000.00 |
|
|
|
|
|
|
$ |
2,940,000.00 |
|
Allied Irish Banking PLC |
|
$ |
10,590,000.00 |
|
|
$ |
15,000,000.00 |
|
|
$ |
4,410,000.00 |
|
Banca Nazionale Del Lavoro SpA |
|
$ |
21,180,000.00 |
|
|
|
|
|
|
$ |
8,820,000.00 |
|
Banco Bilbao Vizcaya Argentaria S.A. |
|
$ |
7,060,000.00 |
|
|
|
|
|
|
$ |
2,940,000.00 |
|
Banco Espirito Santo S.A. |
|
$ |
5,290,000.00 |
|
|
|
|
|
|
$ |
2,210,000.00 |
|
Bank of America, N.A. |
|
$ |
31,760,000.00 |
|
|
$ |
20,000,000.00 |
|
|
$ |
13,240,000.00 |
|
Bank of Communications |
|
$ |
3,530,000.00 |
|
|
|
|
|
|
$ |
1,470,000.00 |
|
Bank of New York |
|
$ |
17,650,000.00 |
|
|
|
|
|
|
$ |
7,350,000.00 |
|
Bank of Nova Scotia |
|
$ |
24,710,000.00 |
|
|
|
|
|
|
$ |
8,820,000.00 |
|
Bank of Tokyo-Mitsubishi UFJ Trust Company |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Barclays Bank PLC |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Bayerische Landesbank, New York Branch |
|
$ |
21,180,000.00 |
|
|
|
|
|
|
$ |
8,820,000.00 |
|
Citicorp North America, Inc. |
|
$ |
31,760,000.00 |
|
|
|
|
|
|
$ |
13,240,000.00 |
|
Citizens Bank, N.A. |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
CoBank, ACB |
|
$ |
194,120,000.00 |
|
|
$ |
325,000,000.00 |
|
|
$ |
80,880,000.00 |
|
Commerzbank AG, New York and Grand Cayman Branches |
|
$ |
7,060,000.00 |
|
|
|
|
|
|
$ |
2,940,000.00 |
|
Commonwealth Bank of Australia |
|
$ |
39,880,000.00 |
|
|
$ |
25,000,000.00 |
|
|
$ |
16,620,000.00 |
|
Credit
Industriel et Commercial |
|
$ |
22,940,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
9,560,000.00 |
|
Deutsche Bank Trust Company Americas |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Erste Bank |
|
$ |
7,060,000.00 |
|
|
$ |
6,000,000.00 |
|
|
$ |
2,940,000.00 |
|
Fortis Capital Corp. |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
FCS Commercial Finance Group |
|
$ |
28,240,000.00 |
|
|
$ |
5,000,000.00 |
|
|
$ |
11,760,000.00 |
|
Firstrust Bank |
|
$ |
3,530,000.00 |
|
|
|
|
|
|
$ |
1,470,000.00 |
|
Harris Nesbitt Financing, Inc. |
|
$ |
22,940,000.00 |
|
|
$ |
5,000,000.00 |
|
|
$ |
9,560,000.00 |
|
HSBC Bank USA, National Association |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Hua Nan Commercial Bank Ltd. |
|
$ |
5,290,000.00 |
|
|
|
|
|
|
$ |
2,210,000.00 |
|
ING Capital LLC |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Israel Discount Bank Limited |
|
$ |
7,060,000.00 |
|
|
|
|
|
|
$ |
2,940,000.00 |
|
JPMorgan Chase Bank, N.A. |
|
$ |
31,740,000.00 |
|
|
|
|
|
|
$ |
14,730,000.00 |
|
Lasalle Bank N.A. |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Lloyds TSB Bank, PLC |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Manufacturers and Traders Trust Company |
|
$ |
22,940,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
9,560,000.00 |
|
Merrill Lynch Capital Corporation |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Metropolitan Life Insurance Co. |
|
$ |
14,120,000.00 |
|
|
$ |
57,000,000.00 |
|
|
$ |
5,880,000.00 |
|
Mizuho Corporate Bank Ltd. |
|
$ |
14,120,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
5,880,000.00 |
|
Morgan Stanley Senior Funding, Inc. |
|
$ |
7,060,000.00 |
|
|
|
|
|
|
$ |
2,940,000.00 |
|
National Australia Bank Ltd |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
National City Bank |
|
$ |
14,120,000.00 |
|
|
$ |
6,000,000.00 |
|
|
$ |
5,880,000.00 |
|
Norinchukin Bank Ltd |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Cooperative Centrale Raiffeisen-Boerenleenbank B.A. |
|
$ |
138,350,000.00 |
|
|
$ |
44,000,000.00 |
|
|
$ |
57,650,000.00 |
|
Raymond James Bank, FSB |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Sovereign Bank |
|
$ |
21,180,000.00 |
|
|
|
|
|
|
$ |
8,820,000.00 |
|
Sumitomo Mitsui Banking Corporation |
|
$ |
14,120,000.00 |
|
|
|
|
|
|
$ |
5,880,000.00 |
|
Suntrust Banks, Inc. |
|
$ |
31,760,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
13,240,000.00 |
|
The Governor and Company of the Bank of Ireland |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
U.S. Bank National Association |
|
$ |
22,940,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
9,560,000.00 |
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving |
|
Initial Lenders |
|
Tranche A |
|
|
Tranche B |
|
|
Loan |
|
United Overseas Bank Ltd |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Wachovia Bank, National Association |
|
$ |
22,940,000.00 |
|
|
|
|
|
|
$ |
9,560,000.00 |
|
Webster Bank, National Association |
|
$ |
7,060,000.00 |
|
|
$ |
1,000,000.00 |
|
|
$ |
2,940,000.00 |
|
Wells Fargo Bank NA |
|
$ |
22,940,000.00 |
|
|
$ |
10,000,000.00 |
|
|
$ |
9,560,000.00 |
|
Westpac Banking Corporation |
|
$ |
21,180,000.00 |
|
|
|
|
|
|
$ |
8,820,000.00 |
|
Eaton Vance Management Inc. |
|
|
|
|
|
$ |
100,000,000.00 |
|
|
|
|
|
Fidelity Investments |
|
|
|
|
|
$ |
60,000,000.00 |
|
|
|
|
|
Babson Capital Management LLC |
|
|
|
|
|
$ |
55,000,000.00 |
|
|
|
|
|
General Electric Capital Corporation |
|
|
|
|
|
$ |
50,000,000.00 |
|
|
|
|
|
Franklin Advisors Inc. |
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|
|
|
|
$ |
36,000,000.00 |
|
|
|
|
|
Trust Company of the West |
|
|
|
|
|
$ |
33,000,000.00 |
|
|
|
|
|
Ares Management LP |
|
|
|
|
|
$ |
30,000,000.00 |
|
|
|
|
|
Invesco |
|
|
|
|
|
$ |
30,000,000.00 |
|
|
|
|
|
Stone Tower Debt Advisors LLC |
|
|
|
|
|
$ |
30,000,000.00 |
|
|
|
|
|
New York Life Investment Management |
|
|
|
|
|
$ |
29,000,000.00 |
|
|
|
|
|
Stanfield Capital Partners |
|
|
|
|
|
$ |
28,000,000.00 |
|
|
|
|
|
KKR Financial Corp. |
|
|
|
|
|
$ |
27,000,000.00 |
|
|
|
|
|
Riversource Investments LLC |
|
|
|
|
|
$ |
27,000,000.00 |
|
|
|
|
|
Blackstone Group L.P. |
|
|
|
|
|
$ |
26,000,000.00 |
|
|
|
|
|
Octagon Credit Investors |
|
|
|
|
|
$ |
26,000,000.00 |
|
|
|
|
|
Sankatie Advisors LLC |
|
|
|
|
|
$ |
25,000,000.00 |
|
|
|
|
|
American Money Management Corp |
|
|
|
|
|
$ |
20,000,000.00 |
|
|
|
|
|
Highland Capital Management Co. |
|
|
|
|
|
$ |
20,000,000.00 |
|
|
|
|
|
Four Corners Capital Management |
|
|
|
|
|
$ |
19,000,000.00 |
|
|
|
|
|
AIG Global Investment Group |
|
|
|
|
|
$ |
18,000,000.00 |
|
|
|
|
|
Citigroup Alternative Investments |
|
|
|
|
|
$ |
17,000,000.00 |
|
|
|
|
|
Credit Suisse Asset Management Group |
|
|
|
|
|
$ |
16,000,000.00 |
|
|
|
|
|
Oakhill Partners |
|
|
|
|
|
$ |
16,000,000.00 |
|
|
|
|
|
CypressTree Investment Management, Inc. |
|
|
|
|
|
$ |
15,000,000.00 |
|
|
|
|
|
Hamilton Floating Rate Fund |
|
|
|
|
|
$ |
15,000,000.00 |
|
|
|
|
|
Bear Stearns Asset Management |
|
|
|
|
|
$ |
14,000,000.00 |
|
|
|
|
|
GE Asset Management |
|
|
|
|
|
$ |
14,000,000.00 |
|
|
|
|
|
Hartford Investment Services Inc. |
|
|
|
|
|
$ |
13,000,000.00 |
|
|
|
|
|
Putnam Investments |
|
|
|
|
|
$ |
13,000,000.00 |
|
|
|
|
|
Denali Capital |
|
|
|
|
|
$ |
10,500,000.00 |
|
|
|
|
|
ABP Capital Investments US, Inc. |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Aladdin Capital |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Carlyle High Yield |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Deutsche Asset Management |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Marathon Asset Management |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
McDonnell Investment Management, LLC |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
MJX Asset Management, LLC |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Nomura Corporate Research and Asset Management, Inc. |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Prudential Insurance Co. |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Symphony Asset Management |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
West Gate Horizons Advisors LLC |
|
|
|
|
|
$ |
10,000,000.00 |
|
|
|
|
|
Deerfield Capital Management LLC |
|
|
|
|
|
$ |
9,000,000.00 |
|
|
|
|
|
Lyon Capital Management |
|
|
|
|
|
$ |
9,000,000.00 |
|
|
|
|
|
Aegon USA, Inc. |
|
|
|
|
|
$ |
7,000,000.00 |
|
|
|
|
|
IKB Capital Corporation |
|
|
|
|
|
$ |
7,000,000.00 |
|
|
|
|
|
Silvermine Capital |
|
|
|
|
|
$ |
7,000,000.00 |
|
|
|
|
|
Sumitomo Trust & Banking |
|
|
|
|
|
$ |
7,000,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving |
|
Initial Lenders |
|
Tranche A |
|
|
Tranche B |
|
|
Loan |
|
Whitehorse Capital Partners, LP |
|
|
|
|
|
$ |
7,000,000.00 |
|
|
|
|
|
GSO Capital Partners |
|
|
|
|
|
$ |
6,500,000.00 |
|
|
|
|
|
40/86 Advisors |
|
|
|
|
|
$ |
6,000,000.00 |
|
|
|
|
|
HIM MONEGY |
|
|
|
|
|
$ |
6,000,000.00 |
|
|
|
|
|
Lightpoint Capital Management LLC |
|
|
|
|
|
$ |
6,000,000.00 |
|
|
|
|
|
UBS Principal Fund |
|
|
|
|
|
$ |
6,000,000.00 |
|
|
|
|
|
Apidos Capital |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Avenue Capital Management, LLC |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
CIT Group |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Credit Suisse First Boston International |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
GSC Partners |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Gulf Stream Asset Management |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Harch Capital Management Inc. |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
ING Pilgrim |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Loews Corporation |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Loomis Sayles & Co., L.P. |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Oppenheimer Funds, Inc. |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
PPM America Incorporated |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Suntrust-CLO |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Sutter/Wells Fargo Asset Management |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
Van Kampen American Capital Prime Rate Income Tst |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
WR Huff Asset Management |
|
|
|
|
|
$ |
5,000,000.00 |
|
|
|
|
|
American Capital Strategies, Ltd. |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Aozora Bank |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Callidus Capital Management, LLC |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Capital Source |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Centre Pacific |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Goldman Sachs Asset Management |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Hypo Vereinsbank |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Katonah Capital |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Lufkin Advisors, LLC |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
SAC Capital |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Swiss RE Financial Products |
|
|
|
|
|
$ |
4,000,000.00 |
|
|
|
|
|
Aetna |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
American Capital Access |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Chatham Asset Management |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Deutsche Bank Proprietary Positioning |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Dimaio Ahmad Capital |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Halycon Distressed Securities, L.P. |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Kilimanjaro Advisors, LLC |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Kingsland Capital |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Mackay Shields |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Morgan Stanley Investment Management |
|
|
|
|
|
$ |
3,000,000.00 |
|
|
|
|
|
Blue Mountain Capital |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Brightwater Capital Management |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Collineo Asset Management, Inc. |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Columbus Nova Credit Investments Group |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving |
|
Initial Lenders |
|
Tranche A |
|
|
Tranche B |
|
|
Loan |
|
Dresdner Kleinwort Wasserstein |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
DZ Bank |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
ING Capital Arb Fund |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Kingstreet Capital Management LLC |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
MFS Family of Funds |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Nationwide |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revolving |
|
Initial Lenders |
|
Tranche A |
|
|
Tranche B |
|
|
Loan |
|
Navigare Partners LLC |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Nicholas Applegate Capital |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Northwestern Mutual Life |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Pacific Life Insurance Company |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Phoenix American Life Insurance
Company |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Primus Financial Products LLC |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Rabo Prop |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
RABO-CLO |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Salomon Asset Management |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Seix Advisors |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
St. Paul Travelers |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Tall Tree Investment Management, LLC |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
TD Securities |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Trimaran Advisors LLC |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
Wachovia-CLO |
|
|
|
|
|
$ |
2,000,000.00 |
|
|
|
|
|
East West Banking Corp. |
|
|
|
|
|
$ |
1,000,000.00 |
|
|
|
|
|
|
Totals |
|
$ |
1,200,000,000.00 |
|
|
$ |
1,800,000,000.00 |
|
|
$ |
500,000,000.00 |
|
SCHEDULES TO
CREDIT AGREEMENT
dated as of June 5, 2006
between
CONSTELLATION BRANDS, INC.,
The SUBSIDIARY GUARANTORS Party Thereto,
The LENDERS Party Thereto
JPMORGAN CHASE BANK, N.A., as Administrative Agent
CITICORP NORTH AMERICA, INC., as Syndication Agent
J.P. MORGAN SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and Bookrunners
and
THE BANK OF NOVA SCOTIA, as Documentation Agent
(the Credit Agreement)
SCHEDULE I
INDEBTEDNESS AND LIENS
PART A INDEBTEDNESS
1. The Senior Unsecured Notes.
2. The Senior Subordinated Notes.
3. The Senior Subordinated Note Indenture.
4. Loan Facility Agreement between Alto De Casablanca, S.A., as Borrower, and Scotiabank Sud
Americano, providing for a loan facility in an amount up to $12,000,000.
5. Credit Facility, dated as of December 16, 2002, between Matthew Clark plc (nka Matthew
Clark Limited) and Allied Irish Banks p.l.c. providing for uncommitted £5,000,000 revolving cash
facility and uncommitted £2,000,000 derivative facility (forward foreign exchange contracts and/or
spot foreign exchange contracts).
6. Credit Facility, dated as of August 13, 2004, between Matthew Clark plc (nka Matthew Clark
Limited), certain of its Subsidiaries and Barclays Bank plc providing for short-term facilities in
an aggregate amount of up to £30,000,000, secured by a General Unlimited Guarantee, dated as of
August 13, 2004, made by Matthew Clark Limited in favor of Barclays Bank plc for the benefit of
Matthew Clark Wholesale Limited, Forth Wines Limited, Matthew Clark Wholesale Bond Limited and
Matthew Clark Brands Limited.
7. Indenture, dated as of February 25, 1999, among the Borrower as issuer, certain principal
Subsidiaries, as Guarantors, and BNY Midwest Trust Company (successor Trustee to Harris Trust and
Savings Bank), as Trustee (the 1999 Indenture).
8. Supplemental Indenture No. 2, dated as of August 4, 1999, to the 1999 Indenture, with
respect to the 8 5/8% Senior Notes in the amount of $200,000,000 due in 2006 by and among the
Borrower, as Issuer, certain principal Subsidiaries, as Guarantors, and BNY Midwest Trust Company
(successor Trustee to Harris Trust and Savings Bank), as Trustee.
9. Supplemental Indenture No. 4, dated as of May 15, 2000 (as amended by Supplemental
Indenture No. 5 dated as of September 14, 2000), to the 1999 Indenture, with respect to the 8 1/2%
Series C Senior Notes in the amount of £154,000,000 due in 2009 by and among the Borrower, as
Issuer, certain principal Subsidiaries, as Guarantors, and BNY Midwest Trust Company (successor
Trustee to Harris Trust and Savings Bank), as Trustee.
10. Indenture with respect to 8 1/2% Series B Senior Notes in the amount of £1,000,000 due in
2009, dated as of November 17, 1999, by and among the Borrower, as Issuer, certain principal
Subsidiaries, as Guarantors, and BNY Midwest Trust Company (successor Trustee to Harris Trust and
Savings Bank), as Trustee.
11. Indenture with respect to 8% Series B Senior Notes in the amount of $200,000,000 due in
2008, dated as of February 21, 2001, by and among the Borrower, as Issuer, certain principal
Subsidiaries, as Guarantors, and BNY Midwest Trust Company, as Trustee.
12. Investments listed on Part B of Schedule III of the Credit Agreement that also constitute
Indebtedness for purposes of Section 7.01 of the Credit Agreement.
13. Facility Agreement, dated as of December 23, 2003 by and among BRL Hardy and its
Subsidiaries, as borrowers, the Borrower, as guarantor, and Commonwealth Bank of Australia, as
lender, and subsequent variation letters dated September 6, 2004 and February 15, 2005 and First
Variation Deed dated April 27, 2005, with total credit facility limit AUD 214,100,000 (the
Commonwealth Bank Credit Agreement).
14. Guaranty by the Borrower of the obligations of BRL Hardy and its Subsidiaries under the
Commonwealth Bank Credit Agreement.
15. Equipment Lease between BRL Hardy and Commonwealth Bank of Australia in the amount of AUD
19,617,000.
16. Borrowers guaranty of CB International Finance S.A.R.L.s obligation as supported by a
letter of credit under the Ruffino joint venture agreement (in which CB International Finance
S.A.R.L. has a 40% ownership of Ruffino S.r.l., an Italian joint venture), including the obligation
to purchase the interests of the other joint venturers upon their election between January 1, 2010
and December 31, 2010.
17. Guaranty by the Borrower of the obligations of Allied Drinks Distributors, Ltd and its
Subsidiaries under the Rabobank Ireland plc Revolving Cash Advance Facility.
18. Revolving Cash Advance Facility between Nobilo Wine Group Limited and Coöperatieve
Centrale Raiffeisen-Boerenleenbank B.A. for up to NZD 90,000,000 dated May 2006.
19. Guaranty by the Borrower of the obligations of Nobilo Wine Group Limited and its
Subsidiaries under the Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A Revolving Cash Advance
Facility.
20. Short Term Money Market Facility Agreement between Hardy Wine Group Ltd. and Citibank N.A.
for AUD 10,000,000 dated November 5, 2004.
21. Guaranty by the Borrower of the obligations of Hardy Wine Company under the Citibank N.A.
Short Term Money Market Facility Agreement.
22. The Vincor Agreements.
Specified Vincor Obligations (as defined in the Credit Agreement):
1. Senior Credit Agreement, dated as of July 30, 2004, between Vincor International Inc. and a
banking syndicate, providing for a revolving commitment in the aggregate amount of C$175,000,000, a
non-revolving term credit facility of C$170,000,000 and a non-revolving credit facility of
C$50,000,000. To be repaid with Term Loans.
2. Senior secured notes, dated as of July 30, 2004, between Vincor International Inc. and John
Hancock Life Insurance Company and its affiliates with an aggregate principal amount of
US$100,000,000. To be repaid with Revolving Loans.
3. Australian credit facility with Westpac Banking Corporation with a limit of AUS$15,000,000.
To be repaid with Revolving Loans.
4. New Zealand credit facility with Westpac Banking Corporation with a limit of
NZD$10,000,000. To be repaid with Revolving Loans.
PART B LIENS
1. Liens created by the Security Documents in connection with the Credit Agreement.
2. Any Equity Rights with respect to any interest in any Joint Venture Entity.
3. BRL Hardy Registered Charge 650666, registered on July 2, 1998, between Barossa Valley
Estate Ltd, as Charger, and VGC Co-Operative Ltd, as Chargee. First ranking fixed and floating
charge no amount stated.
4. BRL Hardy Registered Charge 801192, registered on May 22, 2001, between Barossa Valley
Estate Ltd, as Chargor, and St. George Bank Ltd, as Chargee. Fixed and floating charge with
maximum prospective liability of A$50,000,000.
5. BRL Hardy Registered Charge, registered on July 31, 1997, between Barossa Valley Estate
Ltd, as Chargor, and State Bank of South Australia, as Chargee. Fixed and floating charge no
amount stated.
6. Statutory Lien covering all of the Borrowers equity interests in CoBank, ACB, as
collateral security for CoBank, ACBs Loans to Borrower, under this Credit Agreement.
7. Liens granted in connection with the Equipment Lease between BRL Hardy and the Commonwealth
Bank of Australia referenced in item 15 on Part A of this Schedule I.
8. Liens securing the Indebtedness under the Vincor Agreements.
SCHEDULE II
DISCLOSED MATTERS
NONE
SCHEDULE III
SUBSIDIARIES AND INVESTMENTS
PART A SUBSIDIARIES
SUBSIDARIES
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest:1, 2 |
|
Percentage Owned: |
|
Type of Sub:3 |
Barton Incorporated |
|
Delaware |
|
Borrower |
|
7750.765335 shares Class A |
|
100% |
|
|
|
|
|
|
|
|
7745.075439 shares Class B |
|
|
|
|
Barton Beers, Ltd. |
|
Maryland |
|
Barton Incorporated |
|
100 shares common stock |
|
100% |
|
|
Monarch Import Company |
|
Illinois |
|
Barton Beers, Ltd. |
|
1,000 shares common stock |
|
100% |
|
|
Barton Brands, Ltd. |
|
Delaware |
|
Barton Incorporated |
|
250 shares common stock |
|
100% |
|
|
Barton Canada, Ltd. |
|
Illinois |
|
Barton Brands, Ltd. |
|
1,000 shares common stock |
|
100% |
|
|
Barton Brands of California, Inc. |
|
Connecticut |
|
Barton Incorporated |
|
200 shares common stock |
|
100% |
|
|
Barton Brands of Georgia, Inc. |
|
Georgia |
|
Barton Incorporated |
|
20,000 shares common stock |
|
100% |
|
|
Barton Distillers Import Corp. |
|
New York |
|
Barton Incorporated |
|
50 shares common stock |
|
100% |
|
|
Barton Financial Corporation |
|
Delaware |
|
Barton Incorporated |
|
1,000 shares common stock |
|
100% |
|
|
Schenley Distilleries Inc./
Les Distilleries Schenley Inc. |
|
Canada |
|
Barton Incorporated |
|
10,000 shares common stock |
|
100% |
|
Foreign Subsidiary |
|
|
|
1 |
|
In certain cases, the registered owner may
have preemptive rights in the shares of the Subsidiary. |
|
2 |
|
In certain cases, the shares may be subject
to Liens pursuant to the Credit Agreement. |
|
3 |
|
Where indicated, the Subsidiary is a Foreign
Subsidiary, an Inactive Subsidiary, Applicable U.S. Subsidiary or Excluded
Entity (each as defined in the Credit Agreement). |
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest:1, 2 |
|
Percentage Owned: |
|
Type of Sub:3 |
Barton Beers of Wisconsin, Ltd. |
|
Wisconsin |
|
Barton Incorporated |
|
254.7 shares capital stock |
|
100% |
|
|
Constellation Wines U.S., Inc. (f/k/a, |
|
New York |
|
Borrower |
|
100 shares common stock |
|
100% |
|
|
Canandaigua Wine Company, Inc.) |
|
|
|
|
|
|
|
|
|
|
Canandaigua World Sales Limited |
|
Barbados |
|
Canandaigua Wine Company, Inc. |
|
1,000 shares |
|
100% |
|
Inactive Subsidiary |
Constellation International Holdings Limited |
|
New York |
|
Borrower |
|
10 shares common stock |
|
100% |
|
Applicable U.S. |
|
|
|
|
|
|
|
|
|
|
Subsidiary |
Constellation Aviation, Inc. |
|
New York |
|
Borrower |
|
100 shares common stock |
|
100% |
|
|
Canandaigua Limited4 |
|
England and Wales |
|
Constellation International Holdings Limited |
|
92,954,506 ordinary shares |
|
100% |
|
Foreign Subsidiary |
Canandaigua B.V. |
|
Netherlands |
|
Constellation International Holdings Limited |
|
40,000 shares |
|
100% |
|
Excluded Entity |
Franciscan Vineyards, Inc. |
|
Delaware |
|
Borrower |
|
5,099 Class A common |
|
100% |
|
|
|
|
|
|
|
|
5,099 Class B common |
|
100% |
|
|
|
|
|
|
|
|
628,500 Class C common |
|
100% |
|
|
|
|
|
|
|
|
901,087 preferred shares |
|
100% |
|
|
Cloud Peak Corporation |
|
California |
|
Franciscan Vineyards, Inc. |
|
1,000 shares common stock |
|
100% |
|
|
Allberry, Inc. |
|
California |
|
Franciscan Vineyards, Inc. |
|
1,000 shares common stock |
|
100% |
|
|
|
|
|
4 |
|
This Subsidiary is a Foreign Subsidiary and
has other Subsidiaries that are not listed here, all of which are Foreign
Subsidiaries or otherwise Excluded Entities for purposes of the Credit
Agreement. |
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest:1, 2 |
|
Percentage Owned: |
|
Type of Sub:3 |
M.J. Lewis Corp. |
|
California |
|
Franciscan Vineyards, Inc. |
|
1,000 shares common stock |
|
100% |
|
Inactive Subsidiary |
Mt. Veeder Corporation |
|
California |
|
Franciscan Vineyards, Inc. |
|
1,000 shares common stock |
|
100% |
|
|
Franciscan Trio Sub, LLC |
|
Delaware |
|
Franciscan Vineyards, Inc. |
|
Membership Interests |
|
100% |
|
Inactive Subsidiary |
Triple Wines, LLC |
|
Delaware |
|
Franciscan Trio Sub, LLC |
|
Membership Interests |
|
100% |
|
Inactive Subsidiary |
CBI Australia Holdings Pty Limited 4 |
|
Australia |
|
Constellation International Holdings Limited |
|
349,359,608 ordinary shares |
|
100% |
|
Foreign Subsidiary |
CB International Finance S.A.R.L.4 |
|
Luxembourg |
|
Borrower |
|
500 shares |
|
100% |
|
Foreign Subsidiary |
Constellation Brands Ireland Limited 4 |
|
Ireland |
|
Constellation International Holdings Limited |
|
1 ordinary share |
|
100% |
|
Foreign Subsidiary |
Nobilo Holdings 4 |
|
New Zealand |
|
Constellation International Holdings Limited |
|
111,635,000 shares |
|
100% |
|
Foreign Subsidiary |
Constellation Wines Japan KK |
|
Japan |
|
Constellation International Holdings Limited |
|
200 shares |
|
100% |
|
Inactive Subsidiary |
Constellation Trading Company, Inc. |
|
New York |
|
Borrower |
|
100 shares common stock |
|
100% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest:1, 2 |
|
Percentage Owned: |
|
Type of Sub:3 |
RMD Acquisition Corp. |
|
Delaware |
|
Borrower |
|
100 shares |
|
100% |
|
Inactive Subsidiary |
The Robert Mondavi Corporation, a California corporation and successor by merger to RMD Acquisition Corp., a California
corporation5 |
|
California |
|
Borrower Robert Mondavi Properties, Inc. |
|
10 shares .1419707267030010 shares |
|
98.6%
1.4% |
|
|
The Robert Mondavi Corporation, a Delaware corporation |
|
Delaware |
|
The Robert Mondavi Corporation, a California corporation |
|
|
|
100% |
|
Inactive Subsidiary |
|
|
|
|
|
|
|
|
|
|
|
Robert Mondavi Affiliates |
|
California |
|
The Robert Mondavi Corporation, a California corporation |
|
5,500 shares of common stock |
|
100% |
|
|
R.M.E., Inc. |
|
California |
|
The Robert Mondavi Corporation, a California corporation |
|
324,603 shares of capital stock |
|
100% |
|
|
Robert Mondavi Winery |
|
California |
|
R.M.E., Inc. |
|
2,083 shares of Class B common |
|
100% |
|
|
|
|
|
|
|
|
stock |
|
|
|
|
Robert Mondavi Properties, Inc. |
|
California |
|
R.M.E., Inc. |
|
1,800 shares of common stock |
|
100% |
|
|
Robert Mondavi Investments |
|
California |
|
Robert Mondavi Properties, Inc. |
|
100,000 shares of common stock |
|
100% |
|
|
Robert Mondavi Foreign Sales Corp. |
|
Barbados |
|
The Robert Mondavi Corporation, a California corporation |
|
1,000 shares of common stock |
|
100% |
|
Inactive Subsidiary |
Vintage Chips Co. |
|
California |
|
The Robert Mondavi Corporation, a California corporation |
|
100,000 shares |
|
100% |
|
Inactive Subsidiary |
Robert Mondavi Imports, Inc. |
|
California |
|
The Robert Mondavi Corporation, a California corporation |
|
5,500 shares |
|
100% |
|
Inactive Subsidiary |
|
|
|
5 |
|
This Subsidiary, and not The Robert Mondavi
Corporation, a Delaware corporation, is the Subsidiary Guarantor for purposes
of the Credit Agreement. |
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest:1, 2 |
|
Percentage Owned: |
|
Type of Sub:3 |
Inversiones RMC Limitada |
|
Chile |
|
The Robert Mondavi Corporation, a California corporation |
|
6,000,000 shares |
|
100% |
|
Inactive Subsidiary |
Robert Mondavi GmbH |
|
Germany |
|
The Robert Mondavi Corporation, a California corporation |
|
50,000 shares |
|
100% |
|
Inactive Subsidiary |
Robert Mondavi Australia Holdings Pty Ltd. |
|
Australia |
|
The Robert Mondavi Corporation, a California corporation |
|
166,667 shares |
|
100% |
|
Inactive Subsidiary |
Robert Mondavi Australia Pty Ltd. |
|
Australia |
|
Robert Mondavi Australia Holdings Pty Ltd. |
|
647,059 shares |
|
100% |
|
Inactive Subsidiary |
Robert Mondavi Export Sales Co. |
|
California |
|
Robert Mondavi Winery |
|
5,000 shares |
|
100% |
|
Inactive Subsidiary |
Constellation Americas Holdings Limited |
|
New York |
|
Borrower |
|
100 shares of common stock |
|
100% |
|
Applicable U.S. Subsidiary |
Constellation International Ventures, Inc. |
|
New York |
|
Borrower |
|
100 shares of common stock |
|
100% |
|
Applicable U.S. Subsidiary |
3112751 Nova Scotia Company4 |
|
Nova Scotia |
|
Constellation International Ventures, Inc. |
|
[28,540,806] shares of common stock |
|
10% |
|
Foreign Subsidiary |
|
|
|
|
|
Constellation Americas Holdings Limited |
|
[256,867,013] shares of common stock |
|
90% |
|
|
Barton Mexico, S.A. de C.V.4 |
|
Mexico |
|
Barton Incorporated |
|
150 Class A shares |
|
75% |
|
Foreign Subsidiary |
|
|
|
|
|
|
49,800 Class B shares |
|
100% |
|
|
|
|
|
|
Barton Canada, Ltd. |
|
50 Class A shares |
|
25% |
|
|
JOINT VENTURE ENTITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage |
Name: |
|
Jurisdiction: |
|
Owners: |
|
Nature of interest: |
|
Owned: |
Alto de Casablanca S.A.6 |
|
Chile |
|
Franciscan Vineyards, Inc. |
|
3,155,320 shares common stock |
|
70% |
|
|
|
|
Asesoria E Inversiones Leo S.A. |
|
505,640 shares common stock |
|
11.22% |
|
|
|
|
Sociedad Inversora Ercilla Limitada |
|
846,640 shares common stock |
|
18.78% |
Empresas Vitivinicolas S.A. 6 |
|
Chile |
|
Franciscan Vineyards, Inc. |
|
330,589 shares common stock |
|
70% |
|
|
|
|
Asesoria E Inversiones Leo S.A. |
|
141,680 shares common stock |
|
30% |
Planet 10 Spirits, LLC |
|
Delaware |
|
Barton Brands, Ltd. |
|
Membership Interest |
|
50% |
|
|
|
|
jstar Brands LLC |
|
|
|
50% |
|
|
|
6 |
|
This entity and its Subsidiaries (if any)
organized in a foreign jurisdiction are Foreign Subsidiaries for all purposes
of the Credit Agreement. |
SPECIFIED VINCOR ENTITIES
1. Vincor International Partnership, a Nevada general partnership
2. Vincor International II, LLC, a Delaware limited liability company
3. Vincor Holdings, Inc., a Delaware corporation
4. Inniskillin Napa Vineyards, Inc., a California corporation
5. R.H. Phillips, Inc., a California corporation
6. Vincor (USA) Inc., a California corporation
7. The Hogue Cellars, Ltd., a Washington corporation
8. Vintage New World, Inc., a Washington corporation
9. Latitudes Wine Company LLC, a Washington corporation
10. Vincor Finance LLC, a Delaware limited liability company
Disclosure with respect to Section 4.15(a) (Outstanding Equity Rights)
The voting rights attributable to certain shares of the Borrowers Class A Common Stock underlying
certain depositary interests that represent an interest in such shares are governed by the
arrangements relating to the establishment of such depositary interests and the trading of such
depositary interests on the Australian Stock Exchange Limited.
Equity Rights, if any, relating to the Vincor Acquisition Entities or Vincor International, Inc. or
its Subsidiaries.
SCHEDULE IV
STOCK OPTIONS AND STOCK BASED PLANS
1. |
|
Constellation Brands, Inc. Long-Term Stock Incentive Plan, as amended. |
|
2. |
|
Constellation Brands, Inc. Incentive Stock Option Plan, as amended. |
|
3. |
|
Constellation Brands UK Sharesave Scheme. |
|
4. |
|
Constellation Brands, Inc. 1989 Employee Stock Purchase Plan, as restated on
June 27, 2001. |
SCHEDULE V
CERTAIN ADJUSTMENT AMOUNTS
The one time incurrence of fees, costs and expenses associated with the Vincor Acquisition in an
aggregate amount of not more than $89,000,000.
SCHEDULE VI
SENIOR UNSECURED NOTES
1. Supplemental Indenture No. 2, dated as of August 4, 1999, to the 1999 Indenture, with
respect to the 8 5/8% Senior Notes in the amount of $200,000,000 due in 2006 by and among the
Borrower, as Issuer, certain principal Subsidiaries, as Guarantors, and BNY Midwest Trust Company
(successor Trustee to Harris Trust and Savings Bank), as Trustee (as the same has been amended,
modified or supplemented).
2. Supplemental Indenture No. 4, dated as of May 15, 2000 (as amended by Supplemental
Indenture No. 5 dated as of September 14, 2000), to the 1999 Indenture, with respect to the 8 1/2%
Series C Senior Notes in the amount of £154,000,000 due in 2009 by and among the Borrower, as
Issuer, certain principal Subsidiaries, as Guarantors, and BNY Midwest Trust Company (successor
Trustee to Harris Trust and Savings Bank), as Trustee (as the same has been amended, modified or
supplemented).
3. Indenture with respect to 8 1/2% Series B Senior Notes in the amount of £1,000,000 due in
2009, dated as of November 17, 1999, by and among the Borrower, as Issuer, certain principal
Subsidiaries, as Guarantors, and BNY Midwest Trust Company (successor Trustee to Harris Trust and
Savings Bank), as Trustee (as the same has been amended, modified or supplemented).
4. Indenture with respect to 8% Series B Senior Notes in the amount of $200,000,000 due in
2008, dated as of February 21, 2001, by and among the Borrower, as Issuer, certain principal
Subsidiaries, as Guarantors, and BNY Midwest Trust Company, as Trustee (as the same has been
amended, modified or supplemented).
SCHEDULE VII
NON-CONTROLLED JOINT VENTURE ENTITIES
1. |
|
BRL Hardy owns 2,155,407 ordinary shares of Barossa Valley Estate Limited, representing a 50%
ownership interest in such company. |
2. |
|
BRL Hardy owns 164 ordinary shares of Willunga Basin Water Company Pty Ltd, representing a
10.9% ownership interest in such company. |
3. |
|
BRL Hardy, Huntfield Nominees Pty Ltd, R.J. Nominees Pty Ltd and B.F. Martin Pty Ltd jointly
own 216 ordinary shares of Willunga Basin Water Company Pty Ltd, representing a 14.4%
ownership interest in such company. |
4. |
|
BRL Hardy owns 120,447 ordinary shares of Berren Asset Management Limited (BAML),
representing a 26% ownership interest in such company. BAML is the Responsible Entity of The
International Wine Investment Fund, a managed investment scheme (IWIF). IWIF owns
14,499,980 CDIs (listed on the Australian Stock Exchange) in the Borrower. |
5. |
|
BRL Hardy owns 500 Class B voting common shares of Medallion Wine Marketing, Inc., a British
Columbia, Canada company, representing a 50% ownership interest in such company. |
6. |
|
BRL Hardy owns 5,000 shares of Churchill Cellars Limited (a 50% ownership interest) which is
the exclusive agent for all of BRL Hardys wines in Canadas Eastern Provinces, excluding
Quebec. |
7. |
|
BRL Hardy owns an interest in the Wegman/BRL Hardy Joint Venture Development Padthaway, an
unincorporated joint venture among BRL Hardy and Barzel Corporation Pty Ltd. |
8. |
|
BRL Hardy owns a 50% interest in the Gartner-BRL Hardy Coonawarra Joint Venture, an
unincorporated joint venture among BRL Hardy, Michael John Gartner and Alice Winifred Gartner. |
9. |
|
BRL Hardy owns a 19% interest in the Ausvine Viticultural Management Joint Venture at
Coonawarra. |
10. |
|
BRL Hardy is party to a joint venture agreement with Moolanda Pty Ltd, an unincorporated
joint venture. |
11. |
|
BRL Hardy is party to the Heads of Agreement among BRL Hardy, Tilbooroo Nominees Pty Ltd and
A&A Kidman Pty Ltd, an unincorporated lease/development arrangement to develop at least 20
hectares of the land. |
12. |
|
BRL Hardy owns a 10% interest in the Kamberra Vineyard Partnership, an unincorporated
partnership among BRL Hardy, Julian Reynolds, Arthur John Reynolds, John Larsen, Neville
Walker, FABAL Management Pty Limited, Jade Securities Pty Limited as Trustee of BEK Unit
Trust, Hilltops Agribusiness Management as Trustee of Moppity Park Unit Trust, Rukmal
Wijesooriya and Helga Investments Pty Limited. |
13. |
|
Nobilo Vintners owns a 24.9% interest in the Springfield Partnership, an unincorporated
partnership between Nobilo Vintners and David Rudd Ltd. |
14. |
|
Robert Mondavi Investments owns a 50% interest in Opus One Winery LLC, a California limited
liability company. |
15. |
|
CB International Finance S.a.r.l has a 40% ownership of Ruffino S.r.l., an Italian joint
venture, and the Borrower is a Guarantor for CB International Finance S.a.r.l. under this
arrangement. |
16. |
|
BRL Hardy has a 50% ownership of Pemberton Vineyards Joint Venture, an Australian entity. |
17. |
|
Sumac Ridge Estate Winery Ltd. has a 48% ownership of 436167 British Columbia Ltd, Nominee
Company, a British Columbia entity. |
SCHEDULE VIII
CERTAIN SUBSIDIARIES
NONE
SCHEDULE IX
VINCOR AGREEMENTS
1. Senior Credit Agreement, dated as of July 30, 2004, between Vincor International Inc. and a
banking syndicate, providing for a revolving commitment in the aggregate amount of C$175,000,000, a
non-revolving term credit facility of C$170,000,000 and a non-revolving credit facility of
C$50,000,000. To be repaid with Term Loans.
2. Certain capital lease arrangements involving Vincor International, Inc. or its Subsidiaries
outstanding as of the Effective Date, including without limitation the following:
|
a. |
|
NkMip mortgage payable with Bank of Montreal for C$41,483 |
|
|
b. |
|
CWD capital lease with GE Financing/IBM for C$2,632,458 |
|
|
c. |
|
NkMip equipment lease(s) with Bank of Montreal for C$929,108 |
3. Senior secured notes, dated as of July 30, 2004, between Vincor International Inc. and John
Hancock Life Insurance Company and its affiliates with an aggregate principal amount of
US$100,000,000. To be repaid with Revolving Loans.
4. Australian credit facility with Westpac Banking Corporation with a limit of AUS$15,000,000.
To be repaid with Revolving Loans.
5. New Zealand credit facility with Westpac Banking Corporation with a limit of
NZD$10,000,000. To be repaid with Revolving Loans.
6. Various notes issued by Vincor U.K. PLC to employees of Western Wines in an aggregate
outstanding amount of approximately GBP 10.75 million, which will remain outstanding after closing.
BANK OF NOVA SCOTIA LETTERS OF CREDIT
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing
Letters of Credit (LC) issued by The Bank of Nova Scotia under Existing Credit Agreement |
|
|
Issue Date |
|
|
|
|
|
|
|
|
LC Number |
|
(mm/dd/yyyy) |
|
Maturity Date |
|
Name of Beneficiary |
|
Currency |
|
Outstanding amount |
Name of LC Applicant: Vincor International Inc. |
|
|
|
|
|
|
S18572/70765
|
|
1/1/1994
|
|
12/31/2006
|
|
Royal Trust RCA for Ed Arnold
|
|
CAD
|
|
|
1,308,600.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/103031
|
|
2/10/1998
|
|
9/15/2008
|
|
2725312 Canada Inc. c/o
Penreal Advisors Ltd.
|
|
CAD
|
|
|
50,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/203802
|
|
3/3/2004
|
|
12/1/2006
|
|
Westpac Banking Corporation
|
|
AUD
|
|
|
15,000,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/203819
|
|
3/3/2004
|
|
12/1/2006
|
|
Westpac Banking Corporation
|
|
NZD
|
|
|
10,000,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/213399
|
|
8/31/2004
|
|
8/27/2006
|
|
Barclays Bank PLC
|
|
GBP
|
|
|
3,500,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/227115
|
|
7/8/2005
|
|
6/30/2007
|
|
The Corporation of the City of
Niagara Falls
|
|
CAD
|
|
|
45,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing
Letters of Credit (LC) issued by The Bank of Nova Scotia under Existing Credit Agreement |
|
|
Issue Date |
|
|
|
|
|
|
|
|
LC Number |
|
(mm/dd/yyyy) |
|
Maturity Date |
|
Name of Beneficiary |
|
Currency |
|
Outstanding amount |
S18572/239951
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Donald Triggs
Retirement Trust Fund
|
|
CAD
|
|
|
2,575,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239974
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Donald Dychuck
Retirement Trust Fund
|
|
CAD
|
|
|
181,480.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239979
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Richard Jones
Retirement Trust Fund
|
|
CAD
|
|
|
927,733.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239988
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Frank Syer Retirement
Trust Fund
|
|
CAD
|
|
|
257,430.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239989
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Jonathan Bamberger
Retirement Trust Fund
|
|
CAD
|
|
|
400,782.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239990
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The John (Jay) Wright
Retirement Trust Fund
|
|
CAD
|
|
|
510,000.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/239994
|
|
4/18/2006
|
|
4/17/2007
|
|
BMO Trust Company as Trustee
of The Roger Provost
Retirement Trust Fund
|
|
CAD
|
|
|
386,468.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/240013
|
|
4/18/2006
|
|
4/17/2007
|
|
North Star Trust Company of
Chicago as trustee of The Rich
Hanen Retirement Trust Fund
|
|
USD
|
|
|
280,725.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/240022
|
|
4/18/2006
|
|
4/17/2007
|
|
North Star Trust Company of
Chicago as trustee of The
Michael Jaeger Retirement
Trust Fund
|
|
USD
|
|
|
416,506.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of LC Applicant: Vincor U.K. plc |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211847
|
|
7/28/2004
|
|
2/21/2008
|
|
Michael Anthony Keyes Paul
|
|
GBP
|
|
|
1,949,651.66 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211848
|
|
7/28/2004
|
|
2/21/2008
|
|
Anthony William Vaughan
Fairbank
|
|
GBP
|
|
|
1,562,792.03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211849
|
|
7/28/2004
|
|
2/21/2008
|
|
Jonathan William David
Woodriffe
|
|
GBP
|
|
|
1,462,238.75 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Existing
Letters of Credit (LC) issued by The Bank of Nova Scotia under Existing Credit Agreement |
|
|
Issue Date |
|
|
|
|
|
|
|
|
LC Number |
|
(mm/dd/yyyy) |
|
Maturity Date |
|
Name of Beneficiary |
|
Currency |
|
Outstanding amount |
S18572/211850
|
|
7/28/2004
|
|
2/21/2008
|
|
Paul David James Letheren
|
|
GBP
|
|
|
1,558,990.20 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211851
|
|
7/28/2004
|
|
2/21/2008
|
|
Brian Howard Bunn
|
|
GBP
|
|
|
1,017,279.49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211852
|
|
7/28/2004
|
|
2/21/2008
|
|
Edward Charles William Adams
|
|
GBP
|
|
|
1,028,441.25 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211853
|
|
7/28/2004
|
|
2/21/2008
|
|
Harry Rollo Gabb
|
|
GBP
|
|
|
974,825.83 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211854
|
|
7/28/2004
|
|
2/21/2008
|
|
Roger Paul Higgs
|
|
GBP
|
|
|
1,040,139.17 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211855
|
|
7/28/2004
|
|
2/21/2008
|
|
Investec Trustees (Jersey)
Limited as sole trustee of the
Reid Trust
|
|
GBP
|
|
|
1,017,279.49 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
S18572/211996
|
|
7/28/2004
|
|
2/21/2007
|
|
Stephen Russell Smith
|
|
GBP
|
|
|
2,095,129.63 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Totals
|
|
CAD
|
|
|
6,642,493.00 |
|
|
|
|
|
|
|
|
|
USD
|
|
|
697,231.00 |
|
|
|
|
|
|
|
|
|
GBP
|
|
|
17,206,767.50 |
|
|
|
|
|
|
|
|
|
AUD
|
|
|
15,000,000.00 |
|
|
|
|
|
|
|
|
|
NZD
|
|
|
10,000,000.00 |
|
EXHIBIT A
[Form of Assignment and Assumption]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the Assignor)
and [Insert name of Assignee] (the Assignee). Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified
below (as amended, the Credit
Agreement), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the Assigned Interest). Such sale and assignment
is without recourse to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.
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Assignor:
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Assignee:
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[and is an Affiliate/Approved Fund of [identify Lender]1 ] |
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3.
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Borrower:
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Constellation Brands, Inc. |
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4.
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Administrative Agent:
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JPMorgan Chase Bank, N.A., as the administrative agent under |
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the Credit Agreement |
Assignment and Assumption
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5.
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Credit Agreement:
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The Credit Agreement dated as of June 5, 2006 among |
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Constellation Brands, Inc., the Lenders parties thereto, and |
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JPMorgan Chase Bank, N.A., as Administrative Agent |
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Assigned Interest: |
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Aggregate Amount of |
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Amount of |
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Percentage Assigned |
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Commitment/Loans |
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of |
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Facility Assigned2 |
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for all Lenders |
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Assigned |
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Commitment/Loans3 |
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$ |
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Effective Date: ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
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2 |
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Fill in the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. Revolving Commitment, Tranche A
Commitment, Tranche B Commitment, etc.) |
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Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
Assignment and Assumption
- 2 -
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By: |
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Title: |
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ASSIGNEE
[NAME OF ASSIGNEE]
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By: |
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Title: |
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Assignment and Assumption
- 3 -
The undersigned hereby consent to the within assignment:4
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CONSTELLATION BRANDS, INC.
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By: |
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Name: |
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Title: |
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and as Issuing Lender
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By: |
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Name: |
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Title: |
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Consents to be included to the extent required by Section 10.04(b) of the Credit
Agreement. |
Assignment and Assumption
- 4 -
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other Loan Document or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of the Credit Agreement or any other Loan Document or (iv)
the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under the Credit Agreement or any other Loan
Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement or any other Loan Document, (ii) it satisfies the requirements, if any, specified
in the Credit Agreement or any other Loan Document that are required to be satisfied by it in order
to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement or any other Loan Document as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it has received a copy of the Credit Agreement or any other Loan Document,
together with copies of the most recent financial statements delivered pursuant to Section 8.01
thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender, and (v) if it
is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement or any other Loan Document, duly
completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under
the Credit Agreement or any other Loan Document, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement or any other Loan
Document are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest,
Assignment and Assumption
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued from and after the
Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.
Assignment and Assumption
- 2 -
EXHIBIT B-1
[Form of Pledge Agreement]
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of June 5, 2006 between CONSTELLATION BRANDS, INC., a corporation
duly organized and validly existing under the laws of the State of Delaware (the Borrower ); each
of the Subsidiaries of the Borrower identified under the caption PLEDGORS on the signature pages
hereof (individually, a Pledgor and, collectively, the Pledgors and, together with the
Borrower, the Obligors); and JPMORGAN CHASE BANK, N.A., as administrative agent for the lenders
or other financial institutions or entities party, as lenders, to the Credit Agreement referred to
below (in such capacity, together with its successors in such capacity, the Administrative
Agent ).
The Borrower, the Subsidiary Guarantors (being the parties listed in Schedule I to this Pledge
Agreement), and the Administrative Agent are parties to a Credit Agreement dated as of June 5, 2006
(as modified and supplemented and in effect from time to time, the Credit Agreement ), providing,
subject to the terms and conditions thereof, for extensions of credit (by making of loans and
issuing letters of credit) to be made by said lenders to the Borrower in an aggregate principal or
face amount not exceeding $3,500,000,000 (which amount may, in the circumstances therein provided,
be increased to $4,000,000,000). In addition, the Borrower may from time to time be obligated to
certain of said lenders and other parties in respect of Other Indebtedness (as hereinafter
defined). In addition, the Obligors (or any of them) may from time to time be obligated to various
of the Lenders (or their Affiliates) in respect of certain Hedging Agreements under and as defined
in the Credit Agreement (such indebtedness being herein referred to as Swap Indebtedness, it
being understood that such Swap Indebtedness shall continue to be secured hereunder whether or not
any such Obligors counterparty under any Hedging Agreement remains a Lender).
To induce said lenders and other parties to enter into the Credit Agreement and to make loans
and extend credit to the Borrower thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Obligor has agreed to pledge,
hypothecate and grant a security interest in the Collateral (as hereinafter defined) as security
for the Secured Obligations (as so defined). Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used herein as defined
therein. In addition, as used herein:
Collateral has the meaning assigned to such term in Section 3 hereof.
Collateral Account has the meaning assigned to such term in Section 4.01 hereof.
Equity Collateral has the meaning assigned to such term in Section 3(d) hereof.
Issuers means, collectively, (a) the respective corporations and other entities identified
beside the names of the Obligor on Annex 1 hereto under the caption Issuer and (b) any other
entity that shall at any time be a Subsidiary of any of the Obligors, excluding, however, (i) any
Inactive Subsidiary, (ii) any Joint Venture Entity, (iii) any Applicable U.S. Subsidiary, (iv) for
so long as it shall conduct no business other than holding Indebtedness of Canandaigua Limited and
Pledge Agreement
having Indebtedness outstanding to the Borrower, Canandaigua B.V., (v) for so long as it shall have
assets with a fair market value of less than U.S.$5,000,000 and gross revenues of less than
U.S.$10,000,000 (in each case calculated at the end of and for the most recently-ended fiscal
quarter), Constellation Brands Ireland Limited, (vi) any Specified Vincor Entity to the extent that
the Borrowers ownership interest therein is indirectly held through a Foreign Subsidiary, and
(vii) for so long as it shall conduct no business other than holding equity interests in
Constellation Canada Partnership Limited and acting as the general partner thereof and conducting
activities described in Section 7.14(i) of the Credit Agreement, CB Nova Scotia ULC.
Pledged Interests has the meaning assigned to such term in Section 3(b) hereof.
Pledged Partnership Interests has the meaning assigned to such term in Section 3(b) hereof.
Pledged Stock has the meaning assigned to such term in Section 3(a) hereof.
Secured Obligations means, collectively, (a) in the case of the Borrower, the principal of
and interest on the Loans made by the Lenders to the Borrower and all other amounts from time to
time owing to the Lenders or the Administrative Agent by the Borrower under the Loan Documents
(including, without limitation, all LC Exposure and interest thereon) and all Swap Indebtedness,
(b) in the case of the Subsidiary Guarantors, all obligations of the Subsidiary Guarantors under
the Credit Agreement and the other Loan Documents (including, without limitation, in respect of
their Guarantee under Article III of the Credit Agreement) and all Swap Indebtedness and (c) all
obligations of the Obligors to the Lenders and the Administrative Agent hereunder.
Swap Indebtedness has the meaning assigned to such term in the recitals hereof.
Uniform Commercial Code means the Uniform Commercial Code as in effect from time to time in
the State of New York.
Section 2. Representations and Warranties. Each Obligor represents and warrants to the Lenders
and the Administrative Agent that:
(a) Such Obligor is the sole beneficial owner of the Collateral in which it purports
to grant a security interest pursuant to Section 3 hereof and no Lien exists or will exist
upon such Collateral at any time, and no right or option to acquire the same exists in
favor of any other Person, except for Liens permitted under Section 7.02 of the Credit
Agreement and except for the pledge and security interest in favor of the Administrative
Agent for the benefit of the Lenders (and their applicable Affiliates, in the case of Swap
Indebtedness) created or provided for herein, which pledge and security interest shall
constitute a first priority perfected pledge and security interest in and to all of such
Collateral.
(b) The Pledged Interests of such Obligor identified in Annex 1 hereto are, and all
other Pledged Interests in which such Obligor shall hereafter grant a security interest
pursuant to Section 3 hereof will be, duly authorized, validly issued and fully paid and
non assessable, and none of such Pledged Interests will be subject to any contractual
restriction, or any restriction under the charter, articles of association, by-laws or
operating agreement, as the
Pledge Agreement
- 2 -
case may be, of the respective Issuer of such Pledged Interests, upon the transfer of such
Pledged Interests (except for any such restriction contained herein or in or otherwise
permitted by the Credit Agreement).
(c) The Pledged Interests of such Obligor identified in Annex 1 hereto constitute
(unless otherwise specified) all of the issued and outstanding shares of capital stock,
units, partnership interests or other equity interests or limited liability company
interests, as the case may be, of any class of the Issuers beneficially owned by such
Obligor on the date hereof (whether or not registered in the name of such Obligor) and said
Annex 1 correctly identifies, as at the date hereof, the respective Issuers of such Pledged
Interests and in the case of the Pledged Stock and Pledged Partnership Interests, the
respective class and par value of the shares or units, as the case may be, comprising such
Pledged Stock and the respective number of shares or units, as the case may be (and
registered owners thereof) represented by each certificate evidencing such Pledged Stock
and Pledged Partnership Interests (as applicable).
Section 3. Collateral. As collateral security for the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the Secured Obligations, each Obligor hereby
mortgages, charges, pledges, assigns and grants to the Administrative Agent, for the benefit of the
Lenders (and their applicable Affiliates, in the case of Swap Indebtedness) as hereinafter
provided, a security interest in all of such Obligors right, title and interest in the following
property, whether now owned by such Obligor or hereafter acquired and whether now existing or
hereafter coming into existence, and wherever located (all being collectively referred to herein as
Collateral ):
(a) the respective shares of common stock of the Issuers evidenced by the certificates
identified in Part A of Annex 1 hereto under the name of such Obligor and all other shares
of capital stock of whatever class of the Issuers, now or hereafter owned by such Obligor,
together with in each case the certificates evidencing the same, in each case subject to
the limitation set forth in the proviso below with respect to shares of any Foreign
Subsidiary (collectively, the Pledged Stock );
(b) the partnership units or other interests of the Issuers identified in Part B of
Annex 1 hereto under the name of such Obligor, and all partnership units or other interests
of the Issuers, now or hereafter owned by such Obligor (the Pledged Partnership
Interests, respectively, and, together with the Pledged Stock, collectively the Pledged
Interests);
(c) all shares, securities, moneys or property representing a dividend or distribution
of profits on any of the Pledged Interests, or representing a distribution or return of
capital upon or in respect of the Pledged Interests, or resulting from a split up,
revision, reclassification or other like change of the Pledged Interests or otherwise
received in exchange therefor, and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged Interests, in each case subject to
the limitation set forth in the proviso below with respect to shares of any Foreign
Subsidiary or any entity identified on Schedule VIII to the Credit Agreement (such
entities, together the Foreign Subsidiaries, the Limited Pledge Entities );
(d) without affecting the obligations of such Obligor under any provision prohibiting
such action hereunder or under the Credit Agreement, in the event of any consolidation or
Pledge Agreement
- 3 -
merger in which an Issuer is not the surviving corporation or other entity, all shares of
each class of the capital stock, partnership units or other ownership interests of the
successor corporation, limited partnership, general partnership or other entity (unless
such successor corporation, limited partnership, general partnership or other entity is
such Obligor itself) formed by or resulting from such consolidation or merger, in each case
subject to the limitation set forth in the proviso below with respect to shares of any
Limited Pledge Entity (the Pledged Stock and Pledged Interests, collectively together with
all other certificates, shares, interests, securities, properties or moneys as may from
time to time be pledged hereunder pursuant to clause (a), (b) or (c) above and this clause
(d) being herein collectively called the Equity Collateral );
(e) subject to Section 6.09(f) of the Credit Agreement, in the case of the Borrower,
all Intercompany Notes executed by any Foreign Subsidiary in favor of the Borrower;
(f) the balance from time to time in the Collateral Account; and
(g) all proceeds of any of the property of such Obligor described in the preceding
clauses of this Section 3 (including, without limitation, all causes of action, claims and
warranties now or hereafter held by any Obligor in respect of any of the items listed
above) and, to the extent related to any property described in said clauses or such
proceeds, all books, correspondence, credit files, records, invoices and other papers;
provided that, in the case of any pledge of the shares of stock, ownership interests or other
equity interests of a Limited Pledge Entity, only a portion of the issued and outstanding shares,
ownership interests or other equity interests of such Limited Pledge Entity representing 65% of the
aggregate voting shares, ownership interests or other equity interests in such Limited Pledge
Entity shall be deemed to be delivered in pledge hereunder by such Obligor.
In addition to the foregoing, the parties contemplate that (i) the pledge of the shares of
capital stock of Matthew Clark Limited provided for in this Agreement will be supplemented by a
U.K. Pledge Agreement executed and delivered by Canandaigua Limited, for the benefit of the Lenders
(and their applicable Affiliates, in the case of Swap Indebtedness) (through the Administrative
Agent), which U.K. Pledge Agreement will provide for the pledge of such shares in accordance with
the applicable requirements of the laws of England and Wales, (ii) the pledge of shares of capital
stock of Hardy Wine Company Limited provided for in this Agreement will be supplemented by
Australian Equity Pledge Agreements executed and delivered by Constellation Australia Pty Limited,
for the benefit of the Lenders (and their applicable Affiliates, in the case of Swap Indebtedness)
(through the Administrative Agent), which Australian Equity Pledge Agreements will provide for the
pledge of such shares in accordance with the applicable requirements of the laws of Australia,
(iii) the pledge of the shares of capital stock of Nobilo Wine Group Limited provided for in this
Agreement will be supplemented by New Zealand Pledge Agreements executed and delivered by Nobilo
Holdings Limited, for the benefit of the Lenders (and their applicable Affiliates, in the case of
Swap Indebtedness) (through the Administrative Agent), which New Zealand Pledge Agreements will
provide for the pledge of such shares in accordance with the applicable
requirements of the laws of New Zealand, (iv) the pledge of the shares of capital stock of CB
International Finance S.A.R.L. provided for in this Agreement will be supplemented by a Luxembourg
Pledge Agreement executed and delivered by Constellation Brands, Inc. for the benefit of the
Lenders (and their applicable
Pledge Agreement
- 4 -
Affiliates, in the case of Swap Indebtedness) (through the Administrative Agent), which
Luxembourg Pledge Agreement will provide for the pledge of such shares in accordance with the
applicable requirements of the laws of Luxembourg and (v) the pledge of the shares of capital stock
of LP (Canada) provided for in this Agreement, will be supplemented by a Canadian Pledge Agreement
executed and delivered by ULC Subsidiary, for the benefit of the Lenders (and their applicable
Affiliates, in the case of Swap Indebtedness) (through the Administrative Agent), which Canadian
Pledge Agreements will provide for the pledge of such shares in accordance with the applicable
requirements of the laws of Nova Scotia.
Section 4. Cash Proceeds of Collateral.
4.01 Collateral Account. The Administrative Agent shall cause JPMorgan Chase to establish a
single, segregated trust account (the Collateral Account), which shall be a securities account
(as defined in Section 8-501(a) of the Uniform Commercial Code) and in respect of which the
Administrative Agent shall be the entitlement holder (as defined in Section 8-102(a)(7) of the
Uniform Commercial Code), into which there shall be deposited from time to time the cash proceeds
of any of the Collateral (including proceeds of insurance thereon) required to be delivered to the
Administrative Agent pursuant hereto and into which the Obligors shall deposit such additional
amounts as provided in Section 2.05(l) of the Credit Agreement, as they may be required to pledge
as additional collateral security thereunder. The balance from time to time in the Collateral
Account shall constitute part of the Collateral hereunder and shall not constitute payment of the
Secured Obligations until applied as hereinafter provided. Except as expressly provided in the next
sentence, the Administrative Agent shall remit the collected balance standing to the credit of the
Collateral Account to or upon the order of the respective Obligor as such Obligor through the
Borrower shall from time to time instruct. However, at any time following the occurrence and during
the continuance of an Event of Default, the Administrative Agent may (and, if instructed by the
Lenders as specified in the Credit Agreement, shall) in its (or their) discretion apply or cause to
be applied (subject to collection) the balance from time to time standing to the credit of the
Collateral Account to the payment of the Secured Obligations in the manner specified in Section
5.08 hereof. The balance from time to time in the Collateral Account shall be subject to withdrawal
only as provided herein. In addition to the foregoing, each Obligor agrees that, at any time after
the occurrence and during the continuance of an Event of Default, if the proceeds of any Collateral
hereunder shall be received by it, such Obligor shall, upon the request of the Administrative
Agent, as promptly as possible deposit such proceeds into the Collateral Account. Until so
deposited, all such proceeds shall be held in trust by the applicable Obligor for and as the
property of the Administrative Agent and shall not be commingled with any other funds or property
of any Obligor.
4.02 Investment of Balance in Collateral Account. Amounts on deposit in the Collateral Account
shall be invested from time to time in such Permitted Investments as the respective Obligor through
the Borrower (or, after the occurrence and during the continuance of a Default, the Administrative
Agent) shall determine, which Permitted Investments shall be held in the name and be under the control of the Administrative Agent,
provided that at any time after the occurrence and during the continuance of an Event of Default,
the Administrative Agent may (and, if instructed by the Lenders as specified in the Credit
Agreement, shall) in its (or their) discretion at any time and from time to time elect to liquidate
any such Permitted Investments and to apply or cause to be applied the proceeds thereof to the
payment of the Secured Obligations in the manner specified in Section 5.08 hereof.
Pledge Agreement
- 5 -
4.03 Cover for LC Exposure. Upon receipt of any amounts to be deposited into the Collateral
Account as cover for LC Exposure under the Credit Agreement pursuant to Section 2.05(l) thereof,
the Administrative Agent shall (i) cause JPMorgan Chase to establish a single, segregated trust
sub-account in the Collateral Account (designated LC Exposure Sub-Account), which shall be a
securities account (as defined in Section 8-501(a) of the Uniform Commercial Code) and in respect
of which the Administrative Agent shall be the entitlement holder (as defined in Section 8
102(a)(7) of the Uniform Commercial Code) and (ii) deposit such amounts in such sub-account, and
all amounts held therein shall constitute collateral security first for the LC Exposure outstanding
from time to time and second as collateral security for the other Secured Obligations hereunder.
Section 5. Further Assurances; Remedies. In furtherance of the grant of the pledge and
security interest pursuant to Section 3 hereof, the Obligors hereby jointly and severally agree
with each Lender and the Administrative Agent as follows:
5.01 Delivery and Other Perfection. Each Obligor shall:
(a) if any of the shares, units, ownership interests, partnership interests, other
equity interests, securities, moneys or property required to be pledged by such Obligor
under clauses (a) through (d), inclusive, of Section 3 hereof are received by such Obligor,
forthwith (subject to Section 5.04(c)) transfer and deliver to the Administrative Agent
such shares, units, ownership interests, partnership interests, other equity interests or
securities so received by such Obligor (together with the certificates for any such shares,
units and securities duly endorsed in blank or accompanied by undated stock powers duly
executed in blank), all of which thereafter shall be held by the Administrative Agent,
pursuant to the terms of this Agreement, as part of the Collateral, take such other action
as the Administrative Agent shall deem necessary or appropriate to duly record the Lien
created hereunder in such shares, units, ownership interests, partnership interests, other
equity interests, securities, moneys or property referred to in said clauses (a) through
(d), inclusive;
(b) in the case of the Borrower, deliver and pledge to the Administrative Agent any
and all Intercompany Notes, endorsed and/or accompanied by such instruments of assignment and transfer in such form and substance as the
Administrative Agent may request; provided, that so long as no Default shall have occurred
and be continuing, the Administrative Agent shall, promptly upon request of the Borrower,
make appropriate arrangements for making any Intercompany Notes pledged by the Borrower
available to the Borrower for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent deemed appropriate by the Administrative Agent,
against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing statement, notice,
instrument, document, agreement or other papers that may be necessary or desirable (in the
reasonable judgment of the Administrative Agent) to create, preserve, perfect or validate
the security interest granted pursuant hereto or to enable the Administrative Agent to
exercise and enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, following an Event of Default and during the
continuance thereof, causing any or all of the Equity Collateral to be transferred of
record into the name of the Administrative Agent or its nominee (and the Administrative
Agent agrees that if any Equity Collateral is transferred into its name or the name of its
nominee, the Administrative Agent
Pledge Agreement
- 6 -
will thereafter promptly give to the respective Obligor copies of any notices and
communications received by it with respect to the Equity Collateral pledged by such Obligor
hereunder);
(d) keep full and accurate books and records relating to the Collateral, and stamp or
otherwise mark such books and records in such manner as the Administrative Agent may
reasonably require in order to reflect the security interests granted by this Agreement;
(e) subject to Section 6.06 of the Credit Agreement, permit representatives of the
Administrative Agent, upon reasonable notice, at any time during normal business hours to
inspect and make abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Administrative Agent to be present at such Obligors place of
business to receive copies of all communications and remittances relating to the
Collateral, and forward copies of any notices or communications received by such Obligor
with respect to the Collateral, all in such manner as the Administrative Agent may require;
and
(f) in the case of the Borrower, upon the occurrence and during the continuance of any
Event of Default, upon request of the Administrative Agent, promptly notify (and the
Borrower hereby authorizes the Administrative Agent so to notify) each Foreign Subsidiary that is an obligor in respect of any Intercompany
Note that any payments due or to become due in respect of such Intercompany Note are to be
made directly to the Administrative Agent.
5.02 Other Financing Statements and Liens. Except as otherwise permitted under Section 7.02 of
the Credit Agreement, without the prior written consent of the Administrative Agent (granted with
the authorization of the Lenders as specified in the Credit Agreement), no Obligor shall file or
suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any
financing statement or like instrument with respect to the Collateral in which the Administrative
Agent is not named as the sole secured party for the benefit of the Lenders (and their applicable
Affiliates, in the case of Swap Indebtedness).
5.03 Preservation of Rights. The Administrative Agent shall not be required to take steps
necessary to preserve any rights against prior parties to any of the Collateral.
5.04 Special Provisions Relating to Equity Collateral.
(a) Except with respect to a Limited Pledge Entity, the Obligors will cause the Equity
Collateral to constitute at all times 100% of in the case of the Pledged Stock and Pledged
Partnership Interests, the total number of shares of each class of capital stock or units, as the
case may be, of each applicable Issuer then outstanding. With respect to any Issuer that is a
Limited Pledge Entity, the Obligors will cause the Equity Collateral to constitute at all times not
less than 65% of the total number of voting shares of each class of capital stock or units or other
ownership interests of such Issuer then outstanding.
(b) For the avoidance of doubt, so long as no Event of Default shall have occurred and be
continuing, the Obligors shall have the right to exercise all voting, consensual and other powers
of ownership pertaining to the Equity Collateral for all purposes not inconsistent with the
Pledge Agreement
- 7 -
terms of this Agreement, the Credit Agreement or any other instrument or agreement executed and
delivered to the Administrative Agent in connection therewith, provided that the Obligors jointly
and severally agree that they will not vote the Equity Collateral in any manner that is
inconsistent with the terms of this Agreement, the Credit Agreement or any such other instrument or
agreement.
(c) For the avoidance of doubt, unless and until an Event of Default has occurred and is
continuing, the Obligors shall be entitled to receive and retain any dividends and/or other
distributions of income or profit on the Equity Collateral paid in cash.
(d) If any Event of Default shall have occurred, then so long as such Event of Default shall
continue, and whether or not the Administrative Agent or any Lender exercises any available right
to declare any Secured Obligation due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit Agreement or any other
agreement relating to such Secured Obligation, all dividends and other distributions on the Equity
Collateral shall be paid directly to the Administrative Agent and retained by it in the Collateral
Account as part of the Equity Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, the Obligors jointly and severally agree to
execute and deliver to the Administrative Agent appropriate additional dividend, distribution and
other orders and documents to that end, provided that if such Event of Default is cured, any such
dividend or distribution theretofore paid to the Administrative Agent shall, upon request of the
Obligors (except to the extent theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to the Obligors.
5.05 Events of Default, Etc. During the period during which an Event of Default shall have
occurred and be continuing:
(a) the Administrative Agent shall have all of the rights and remedies with respect to
the Collateral of a secured party under the Uniform Commercial Code (whether or not said
Code is in effect in the jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of ownership pertaining to the Collateral
as if the Administrative Agent were the sole and absolute owner thereof (and each Obligor
agrees to take all such action as may be appropriate to give effect to such right);
(b) the Administrative Agent in its discretion may, in its name or in the name of the
Obligors or otherwise, demand, sue for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for any of the Collateral, but
shall be under no obligation to do so; and
(c) the Administrative Agent may, upon ten Business Days prior written notice to the
Obligors of the time and place, with respect to the Collateral or any part thereof that
shall then be or shall thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell, lease, assign or
otherwise dispose of all or any part of such Collateral, at such place or places as the
Administrative Agent deems best, and for cash or for credit or for future delivery (without
thereby assuming any credit
Pledge Agreement
- 8 -
risk), at public or private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the Administrative Agent
or any Lender or anyone else may be the purchaser, lessee, assignee or recipient of any or
all of the Collateral so disposed of at any public sale (or, to the extent permitted by
law, at any private sale) and thereafter hold the same absolutely, free from any claim or
right of whatsoever kind, including any right or equity of redemption (statutory or
otherwise), of the Obligors, any such demand, notice and right or equity being hereby
expressly waived and released. The Administrative Agent may, without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which the sale may be
so adjourned.
The proceeds of each collection, sale or other disposition under this Section 5.05 shall be
applied in accordance with Section 5.08 hereof.
The Obligors recognize that, by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, and applicable state securities laws, the Administrative Agent may be
compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to
those who will agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The Obligors acknowledge that
any such private sales may be at prices and on terms less favorable to the Administrative Agent
than those obtainable through a public sale without such restrictions, and, notwithstanding such
circumstances, agree that any such private sale shall be deemed to have been made in a commercially
reasonable manner and that the Administrative Agent shall have no obligation to engage in public
sales and no obligation to delay the sale of any Collateral for the period of time necessary to
permit the respective Issuer or issuer thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other realization of or upon the
Collateral pursuant to Section 5.05 hereof are insufficient to cover the costs and expenses of such
realization and the payment in full of the Secured Obligations, the Obligors shall remain liable
for any deficiency.
5.07 Private Sale. None of the Administrative Agent, the Lenders nor any of their respective
Affiliates shall incur any liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 5.05 hereof conducted in a commercially reasonable
manner. Subject to the Administrative Agent and the Lenders exercising any rights or remedies in a
commercially reasonable manner, each Obligor hereby waives any claims against the Administrative
Agent, any Lender or any of their respective Affiliates arising by reason of the fact that the
price at which the Collateral may have been sold at such a private sale was less than the price
that might have been obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if the Administrative Agent accepts the first offer received and does not
offer the Collateral to more than one offeree.
5.08 Application of Proceeds. Except as otherwise herein expressly provided and except as
provided below in this Section 5, the proceeds of any collection, sale or other realization of all
or any part of the Collateral pursuant hereto, and any other cash at the time held by the
Pledge Agreement
- 9 -
Administrative Agent under Section 4 hereof or this Section 5, shall be applied by the
Administrative Agent:
First, to the payment of the costs and expenses of such collection, sale or other
realization, including reasonable out of pocket costs and expenses of the Administrative
Agent and the reasonable fees and expenses of its agents and counsel, and all reasonable
expenses incurred and advances made by the Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each case equally and
ratably in accordance with the respective amounts thereof then due and owing or as the
Lenders holding the same may otherwise agree; and
Finally, to the payment to the respective Obligor, or their respective successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in the LC Exposure
Sub Account of the Collateral Account pursuant to
Section 4.04 hereof shall be applied first to
the LC Exposure outstanding from time to time and second to the other Secured Obligations in the
manner provided above in this Section 5.
As used in this Section 5, proceeds of Collateral means cash, securities and other property
realized in respect of, and distributions in kind of, Collateral, including any thereof received
under any reorganization, liquidation or adjustment of debt of the Obligors or any Issuer of or
obligor on any of the Collateral.
5.09 Attorney-in-Fact. Without limiting any rights or powers granted by this Agreement to the
Administrative Agent while no Event of Default has occurred and is continuing, upon the occurrence
and during the continuance of any Event of Default pursuant to which the then outstanding principal
amount of and accrued interest on the Loans are declared to be immediately due and payable, and
five Business Days after the occurrence and during the continuance of any other Event of Default,
the Administrative Agent is hereby appointed the attorney in fact of each Obligor for the purpose
of carrying out the provisions of this Section 5 and taking any action and executing any
instruments that the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney in fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the Administrative Agent
shall be entitled under this Section 5 to make collections in respect of the Collateral, the
Administrative Agent shall have the right and power to receive, endorse and collect all checks made
payable to the order of any Obligor representing any dividend, payment or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the same.
5.10 Perfection; Certain Releases. (a) Prior to or concurrently with the execution and
delivery of this Agreement, each Obligor (i) (a) shall file such financing statements and other
documents, if any, in such offices as the Administrative Agent may request to perfect the security
interests granted by Section 3 of this Agreement (including, without limitation, to perfect the
security interests in the Pledged Partnership Interests) and (b) authorizes the Administrative
Agent and anybody acting on its behalf to take any of the foregoing actions and (ii) deliver to the
Administrative
Pledge Agreement
- 10 -
Agent all certificates identified in Part A of Annex 1 hereto, accompanied by undated stock powers
duly executed in blank.
(b) Upon receipt by the Administrative Agent of a certificate signed by the President,
a Vice President or a Financial Officer of the Borrower to the effect that any of the
shares, units, ownership interests, partnership interests, other equity interests,
securities, moneys or property pledged by an Obligor under clauses (a) through (d),
inclusive, of Section 3 hereof are no longer required to be so pledged pursuant to the Loan
Documents, the Administrative Agent is hereby authorized and directed to take such action
at the request and expense of the Borrower as shall be reasonably necessary to release the
pledge and grant of the security interest in such shares, units, ownership interests,
partnership interests, other equity interests or securities (and the certificates, if any,
for any such shares, units and securities duly endorsed in blank or accompanied by undated
stock powers duly executed in blank).
5.11 Termination. Upon the date on which all Secured Obligations shall have been paid in full
and the Commitments of the Lenders under the Credit Agreement and all LC Exposure and Swap
Indebtedness shall have expired or been terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith (i) cause to be assigned, transferred and delivered, against
receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral
and money received in respect thereof, to or on the order of the respective Obligor and (ii)
execute and deliver to the respective Obligor upon such termination such Uniform Commercial Code
termination statements and such other documentation as shall be reasonably requested by such
Obligor to effect the termination and release of the Liens on the Collateral.
5.12 Further Assurances. Each Obligor agrees that, from time to time upon the written request
of the Administrative Agent, such Obligor will execute and deliver such further documents and do
such other acts and things as the Administrative Agent may reasonably request in order fully to
effect the purposes of this Agreement.
Section 6. Miscellaneous.
6.01 Notices. All notices, requests, consents and demands hereunder shall be in writing and
telecopied or delivered to the intended recipient at its Address for Notices specified pursuant
to Section 10.01 of the Credit Agreement and shall be deemed to have been given at the times
specified in said Section 10.01.
6.02 No Waiver. No failure on the part of the Administrative Agent or any of its agents to
exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the
Administrative Agent or any of its agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or remedy. The remedies
herein are cumulative and are not exclusive of any remedies provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived, altered or amended only by an
instrument in writing duly executed by each Obligor and the Administrative Agent (with the consent
of the requisite Lenders specified in Section 10.02(c) of the Credit
Pledge Agreement
- 11 -
Agreement). Any such amendment or waiver shall be binding upon the Administrative Agent and each
Lender, each holder of any of the Secured Obligations and each Obligor.
6.04 Expenses. The Obligors jointly and severally agree to reimburse each of the Lenders and
the Administrative Agent for all reasonable costs and expenses of the Lenders and the
Administrative Agent (including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Event of Default and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner of participation in or other
involvement with (w) performance by the Administrative Agent of any obligations of the Obligors in
respect of the Collateral that the Obligors have failed or refused to perform, (x) bankruptcy,
insolvency, receivership, foreclosure, winding up or liquidation proceedings, or any actual or
attempted sale, or any exchange, enforcement, collection, compromise or settlement in respect of
any of the Collateral, and for the care of the Collateral and defending or asserting rights and
claims of the Administrative Agent in respect thereof, by litigation or otherwise, including
expenses of insurance, (y) judicial or regulatory proceedings and (z) workout, restructuring or other negotiations or proceedings (whether or not the workout, restructuring
or transaction contemplated thereby is consummated) and (ii) the enforcement of this Section 6.04,
and all such costs and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to Section 3 hereof.
6.05 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of each Obligor, the Administrative Agent, the Lenders (and
their applicable Affiliates, in the case of Swap Indebtedness) and each holder of any of the
Secured Obligations (provided, however, that no Obligor shall assign or transfer its rights
hereunder without the prior written consent of the Administrative Agent, it being understood that
any transaction involving any Obligor permitted under Section 7.03 of the Credit Agreement shall
not be deemed to be an assignment for purposes of this Section 6.05).
6.06 Counterparts. This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the parties hereto may
execute this Agreement by signing any such counterpart.
6.07 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
law of the State of New York.
6.08 Captions. The captions and section headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation of any provision of this
Agreement.
6.09 Agents and Attorneys-in-Fact. The Administrative Agent may employ agents and attorneys in
fact in connection herewith and shall not be responsible for the negligence or misconduct of any
such agents or attorneys in fact selected by it in good faith.
6.10 Severability. If any provision hereof is invalid and unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed in favor of the
Administrative Agent and the Lenders in order to carry out the intentions of the parties hereto as
nearly as may be
Pledge Agreement
- 12 -
possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other jurisdiction.
6.11 Additional Obligors. As contemplated in Section 6.09 of the Credit Agreement, new
Subsidiaries of the Borrower acquired or formed by the Borrower after the date hereof may become a
Subsidiary Guarantor under the Credit Agreement and an Obligor under this Agreement, by executing and delivering to the Administrative Agent a
Guarantee Assumption Agreement in the form of Exhibit C to the Credit Agreement. Accordingly, upon
the execution and delivery of any such Guarantee Assumption Agreement by any such Subsidiary, such
new Subsidiary shall automatically and immediately, and without any further action on the part of
any Person, become an Obligor for all purposes of this Agreement, and Annex 1 hereto shall be
supplemented in the manner specified in such Guarantee Assumption Agreement.
6.12 The Administrative Agent. As provided in Article IX of the Credit Agreement, each Lender
has appointed JPMorgan Chase as its Administrative Agent for purposes of this Agreement. Following
the payment in full of all Secured Obligations outstanding under the Credit Agreement and the
termination or expiration of the Commitments and LC Exposure thereunder, the provisions of said
Article IX shall be deemed to continue in full force and effect for the benefit of the
Administrative Agent under this Agreement until the payment in full of the Swap Indebtedness. In
that connection, following such payment in full and expiration and termination of the Commitments
and LC Exposure, the term Required Lenders (as used in said Article IX) shall be deemed to refer
to Lenders or other Persons holding Secured Obligations representing at least 65% of the aggregate
Secured Obligations.
Pledge Agreement
- 13 -
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be duly executed
and delivered as of the day and year first above written.
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CONSTELLATION BRANDS, INC.
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By |
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Name: |
Thomas D. Roberts |
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Title: |
Senior Vice President and Treasurer |
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Pledge Agreement
- 14 -
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PLEDGORS
ALLBERRY, INC.
CLOUD PEAK CORPORATION
CONSTELLATION AVIATION, INC.
CONSTELLATION TRADING COMPANY, INC.
CONSTELLATION WINES U.S., INC.
FRANCISCAN VINEYARDS, INC.
MT. VEEDER CORPORATION
R.M.E. INC.
THE ROBERT MONDAVI CORPORATION
ROBERT MONDAVI AFFILIATES
ROBERT MONDAVI INVESTMENTS
ROBERT MONDAVI PROPERTIES, INC.
ROBERT MONDAVI WINERY
3112751 NOVA SCOTIA COMPANY
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By |
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Name: |
Thomas D. Roberts |
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Title: |
Vice President and Assistant Treasurer |
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BARTON INCORPORATED
BARTON BRANDS, LTD.
BARTON BEERS, LTD.
BARTON BEERS OF WISCONSIN, LTD.
BARTON BRANDS OF CALIFORNIA, INC.
BARTON BRANDS OF GEORGIA, INC.
BARTON CANADA, LTD.
BARTON DISTILLERS IMPORT CORP.
MONARCH IMPORT COMPANY
BARTON FINANCIAL CORPORATION
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By |
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Name: |
Thomas D. Roberts |
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Title: |
Vice President |
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Pledge Agreement
- 15 -
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NOBILO HOLDINGS
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By |
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Name: |
Thomas S. Summer |
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Title: |
Director |
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By |
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Name: |
Robert Sands |
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Title: |
Director |
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CANANDAIGUA LIMITED
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By |
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Name: |
Thomas S. Summer |
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Title: |
Finance Director |
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By |
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Name: |
Robert Sands |
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Title: |
Director |
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CONSTELLATION AUSTRALIA PTY LIMITED
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By |
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Name: |
Thomas D. Roberts |
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Title: |
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Pledge Agreement
- 16 -
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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By |
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Name: |
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Title: |
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Address for Notices:
1 Chase Manhattan Plaza,
8th Floor New York, NY 10081
Attention: Loan and Agency Services Group
(Telecopy No. 212-552-5658)
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Pledge Agreement
- 17 -
SCHEDULE 1
SUBSIDIARY GUARANTORS
Allberry, Inc.
Cloud Peak Corporation
Constellation Aviation, Inc.
Constellation Trading Company, Inc.
Constellation Wines U.S., Inc.
Franciscan
Vineyards, Inc.
Mt. Veeder Corporation
R.M.E. Inc.
The Robert Mondavi Corporation
Robert Mondavi Affiliates
Robert Mondavi Investments
Robert Mondavi Properties, Inc.
Robert Mondavi Winery
Barton Incorporated
Barton Brands, Ltd.
Barton Beers, Ltd
Barton Beers of Wisconsin, Ltd.
Barton Brands of California, Inc.
Barton Brands of Georgia, Inc.
Barton Canada, Ltd.
Barton Distillers Import Corp.
Monarch Import Company
Barton Financial Corporation
Pledge Agreement
ANNEX 1
PART A
PLEDGED STOCK
U.S. ISSUERS
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Certificate |
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Issuer |
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No. |
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Registered Owner |
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Number of Shares |
Allberry, Inc.
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1 |
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Franciscan Vineyards, Inc.
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1,000 shares of
common stock, no par
value |
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Barton Beers, Ltd.
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10 |
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Barton Incorporated
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100 shares of
common stock, $0.0l
par value |
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Barton Brands, Ltd.
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9 |
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Barton Incorporated
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250 shares of
common stock, $1.00
par value |
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Barton Brands of
California, Inc.
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4 |
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Barton Incorporated
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200 shares of
common stock, no
par value |
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Barton Brands of
Georgia, Inc.
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13 |
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Barton Incorporated
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20,000 shares of
common stock, $1.00
par value |
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Barton Beers of
Wisconsin, Ltd.
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70 |
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Barton Incorporated
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254.7 shares of
common stock, $100
par value |
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Barton Canada, Ltd.
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1 |
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Barton Brands, Ltd.
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1,000 shares of
common stock, $1.00
par value |
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Barton Distillers
Import Corp.
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10 |
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Barton Incorporated
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50 shares of common
stock, $100 par value |
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Barton Financial
Corporation
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1 |
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Barton Incorporated
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1,000 shares of
common stock, $1.00
par value |
Pledge Agreement
- 2 -
U.S. ISSUERS
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Certificate |
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Issuer |
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No. |
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Registered Owner |
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Number of Shares |
Barton Incorporated
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81,88 |
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Constellation Brands, Inc.
(f/k/a Canandaigua Brands,
Inc.)
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7750.765335 of Class
A common stock,
$0.01 par value; |
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7745.075439 of Class
B common stock,
$0.01 par value |
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Cloud Peak Corporation
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1 |
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Franciscan Vineyards, Inc.
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1,000 shares of
common stock, no par
value |
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Constellation Wines U.S.,
Inc. (f/k/a Canandaigua
Wine Company, Inc.)
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2 |
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Constellation Brands, Inc.
(f/k/a Canandaigua Brands,
Inc.)
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100 shares of
common stock, no
par value |
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Franciscan Vineyards, Inc.
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A-13, B-5, C-5, P-24 |
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Constellation Brands, Inc.
(f/k/a Canandaigua Brands,
Inc.)
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5,099 shares of Class
A common stock,
$0.20 par value; |
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5,099 shares of Class
B common stock,
$0.20 par value; |
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628,500 shares of
Class C common
stock, $10.00 par
value; |
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901,087 shares of
preferred stock, $10.00
par value |
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Mt. Veeder Corporation
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1 |
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Franciscan Vineyards, Inc.
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1,000 shares of
common stock, no par
value |
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Monarch Import Company
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2 |
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Barton
Beers, Ltd.
|
|
1,000 shares of
common stock, $1.00
par value |
|
|
|
|
|
|
|
|
|
Constellation Aviation,
Inc. (f/k/a Roberts Trading
Corp.)
|
|
|
5 |
|
|
Constellation Brands, Inc. (f/k/a
Canandaigua Brands, Inc.)
|
|
100 shares of
common stock, no
par value |
|
|
|
|
|
|
|
|
|
Constellation Trading
Company, Inc.
|
|
1
|
|
Constellation Brands, Inc.
|
|
100 shares of common
stock, $0.01 par value |
Pledge Agreement
- 3 -
U.S. ISSUERS
|
|
|
|
|
|
|
|
|
Certificate |
|
|
|
|
Issuer |
|
No. |
|
Registered Owner |
|
Number of Shares |
The Robert Mondavi Corporation |
|
1 |
|
Constellation Brands, Inc. |
|
10 shares of common stock |
|
|
|
|
|
|
|
The Robert
Mondavi Corporation |
|
2 |
|
Robert Mondavi Properties, Inc. |
|
.1419707267030010 share of common stock |
|
|
|
|
|
|
|
R.M.E., Inc. |
|
24 |
|
The Robert Mondavi Corporation |
|
324,603 shares of capital stock |
|
|
|
|
|
|
|
Robert Mondavi Affiliates |
|
2 |
|
The Robert Mondavi Corporation |
|
5,500 shares of common stock |
|
|
|
|
|
|
|
Robert
Mondavi Investments |
|
1 |
|
Robert Mondavi Properties, Inc. |
|
100,000 shares of common stock |
|
|
|
|
|
|
|
Robert Mondavi Properties, Inc. |
|
2 |
|
R.M.E., Inc. |
|
1,800 shares of common stock |
|
|
|
|
|
|
|
Robert Mondavi Winery |
|
CBC 13, CBC 17 |
|
R.M.E., Inc. |
|
2,083 shares of Class B common stock |
Pledge Agreement
- 4 -
FOREIGN ISSUERS
|
|
|
|
|
|
|
|
|
Issuer |
|
Certificate No. |
|
Registered Owner |
|
Number of Shares5 |
Matthew Clark
Limited
|
|
|
0025077 |
|
|
Canandaigua Limited
|
|
57,538,323 ordinary
shares |
|
|
|
|
|
|
|
|
|
Hardy Wine Company
Limited
|
|
|
13411, 13413 |
|
|
Constellation Australia
Pty Limited
|
|
153,203,603 ordinary
shares |
|
|
|
|
|
|
|
|
|
CB International
Finance S.A.R.L.
|
|
|
N/A |
|
|
Constellation Brands,
Inc.
|
|
325 shares |
|
|
|
|
|
|
|
|
|
Nobilo Wine Group
Limited
|
|
|
1 |
|
|
Nobilo Holdings
|
|
30,558,422 ordinary
shares |
|
|
|
5 |
|
The number of shares listed for each foreign issuer represents 65% of the
issued and outstanding voting capital stock of such issuer. |
Pledge Agreement
- 5 -
PART B
PLEDGED INTERESTS
|
|
|
|
|
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|
Issuer |
|
Certificate No. |
|
Registered Owner |
|
Number of Shares |
Constellation Canada
Limited Partnership
|
|
B-1
|
|
3112751 Nova Scotia
Company
|
|
65 Class B Units |
|
|
|
|
|
|
|
Constellation Canada
Limited Partnership
|
|
B-4
|
|
3112751 Nova Scotia
Company
|
|
23,725 Class B Units |
|
|
|
|
|
|
|
Constellation Canada
Limited Partnership
|
|
B-6
|
|
3112751 Nova Scotia
Company
|
|
455,597,862 Class B Units |
Pledge Agreement
- 6 -
EXHIBIT B-2
[Form of U.K. Equity Pledge Agreement]
U.K. Equity Pledge Agreement
THIS MORTGAGE OF SHARES is dated June 5, 2006 and made between:
(1) |
|
Canandaigua Limited (the Chargor); and |
|
(2) |
|
JPMorgan Chase Bank N.A. (the Administrative Agent); |
WHEREAS:
(A) |
|
Constellation Brands, Inc. (the Borrower), the Subsidiary Guarantors (the Subsidiary
Guarantors), certain lenders and the Administrative Agent are parties to a Credit Agreement
dated as of June 5, 2006 (as modified and supplemented and in effect from time to time, the
Credit Agreement), providing, subject to the terms and conditions thereof, for extensions of
credit (by making of loans and issuing letters of credit) to be made by said lenders to the
Borrower in an aggregate principal or face amount not exceeding $3,500,000,000). |
|
(B) |
|
The Borrower and/or any Subsidiary Guarantors may from time to time be obligated to various
of the Lenders (and their affiliates) in respect of certain Hedging Agreements under and as
defined in the Credit Agreement entered into by the Borrower (such indebtedness being herein
referred to as Swap Indebtedness). |
|
(C) |
|
As a condition precedent to and pursuant to the provisions of the Credit Agreement the
Chargor has agreed to enter into this Mortgage of Shares for the purpose of providing security to
the Lenders for the Secured Liabilities. |
IT IS AGREED as follows:
1. |
|
Definitions |
|
|
|
In this Mortgage of Shares: |
|
|
|
Act means the Law of Property Act 1925; |
|
|
|
Authorisation means any consent, approval, licence, condition, permit, registration,
filing, exemption, resolution or giving of notice under any applicable law or other
authorisation (and includes any required renewals of the same); |
|
|
|
Business Day means a day, other than a Saturday or Sunday, when banks are open for
general business (excluding specific business for the purpose of settlement of euro
transactions) in London; |
|
|
|
Chargeable Shares means: |
|
(a) |
|
all of the Chargors right, title and interest in up to 65% of the Shares, which
amount of the Shares shall be constituted by: |
|
(i) |
|
the Shares represented by the certificates received by the Administrative Agent
pursuant to Clause 4.2 in order of receipt by the Administrative Agent; or |
|
|
(ii) |
|
if share certificates in respect of more than 65% of the Shares are received by
the Administrative Agent at the same time, the Shares |
|
|
|
represented by the certificates, in numerical order of issuance, commencing
with the first certificate issued, |
|
|
|
in each case, up to and including the certificate which, when aggregated with the
preceding certificates, represents 65% of the Shares; |
|
|
(b) |
|
following any increase in the share capital of the Company, all of the Chargors
right, title and interest in the Shares represented by such further certificates as may be
identified by the Administrative Agent at that time as necessary to ensure that security
is held pursuant to the terms hereof over 65% of the Shares (in respect of which the
Administrative Agents written certification as to the affected certificates shall be
conclusive evidence); |
|
|
Company means Matthew Clark Limited, a company organised under the laws of England and
Wales; |
|
|
|
Constitutional Document means, in relation to any Person, any bylaw, memorandum, article
of association, certificate of incorporation or other document concerning the constitution
of that Person; |
|
|
|
Contract means any instrument, agreement, side letter, deed, indenture, mortgage,
assignment, transfer, conveyance, assurance, bill of exchange, letter of credit, deed of
trust, guarantee, indemnity, bond or other document, instrument or obligation (including
any leasing or hire-purchase agreement); |
|
|
|
Credit Agreement has the meaning assigned to it in WHEREAS clause (A); |
|
|
|
Discharge means any time, indulgence, composition, intermediate payment, arrangement,
waiver, renewal, compromise, release, reduction, settlement, arrangement, failure to
perfect, take up, exercise or enforce, non-presentation or non-observance or failure to
realise full value; |
|
|
|
Disposal means any lease, sub-lease, licence, sale, transfer, assignment, pledge,
surrender, cancellation, novation or any agreement in connection with the same or any
other form of disposition or alienation; |
|
|
|
Enforcement Event means an Event of Default pursuant to Article VIII of the Credit
Agreement; |
|
|
|
Finance Parties means the Lenders (and their affiliates) and the Administrative Agent; |
|
|
|
Loan Document has the meaning assigned to such term in the Credit Agreement;
Party means a party to this Mortgage of Shares; |
|
|
|
Security Assets means all assets, rights and property of the Chargor the subject of any
Security Interest created hereby; |
|
|
|
Security Interest means any security effected under or pursuant to this Mortgage of
Shares; |
2
|
|
Secured Liabilities means all present and future obligations and liabilities whether
actual or contingent and whether owed jointly or severally or in any other capacity
whatsoever of the Borrower to any Finance Party under any Loan Document (including
liabilities which would be treated as such but for the liquidation or dissolution of, or
similar event affecting, the Borrower), or in respect of its guarantee of any Swap
Indebtedness, but excludes any obligation which, if it were so included, would result in
this Mortgage of Shares contravening section 151 of the Companies Act 1985; |
|
|
|
Security Period means the period beginning on the date of this Mortgage of Shares and
ending on the date on which the Secured Liabilities have been paid and discharged
unconditionally and irrevocably in full and no commitment or other obligation is
outstanding or capable of arising under any Loan Document; |
|
|
|
Share Accruals means any dividend, income, stock, share, security, right, moneys or
property which may accrue, be offered or otherwise derive from a Share (whether by way of
redemption, bonus, preference, option or otherwise); |
|
|
|
Shares means all the shares in the share capital of the Company from time to time (and
includes any Share Accruals). |
|
2. |
|
Construction |
|
2.1 |
|
Capitalised terms defined in the Credit Agreement have, unless expressly defined in this
Mortgage of Shares, the same meaning in this Mortgage of Shares. |
|
2.2 |
|
The provisions of Section 1.03 of the Credit Agreement apply to this Mortgage of Shares as
though they were set out in full in this Mortgage of Shares except that references to the Credit
Agreement are to be construed as references to this Mortgage of Shares. |
|
2.3 |
|
A reference in this Mortgage of Shares to: |
|
(a) |
|
a Clause is a reference to a clause of this Mortgage of Shares; |
|
|
(b) |
|
a specific time for the performance of an obligation is a reference to the time in the
place where that obligation is to be performed; |
|
|
(c) |
|
a cost includes any cost (including any enforcement cost), expense or fee (including
any legal fee); |
|
|
(d) |
|
invalidity includes, in relation to any Person or any right or obligation of any such
Person, any invalidity, illegality, irregularity, unenforceability, incapacity, limitation,
disability, lack of power, authority or legal personality or dissolution or change in membership
or status and the term invalid shall be construed accordingly; |
|
|
(e) |
|
a judgement includes any decree, order, injunction, prohibition or other judicial
determination (whether granted by a court, tribunal, pursuant to proceedings, arbitration
proceedings or otherwise) and includes any execution, attachment or other enforcement thereof; |
3
|
(f) |
|
a law includes any statute, law, rule, regulation, directive, statutory instrument,
decree, guideline, ordinance, code, code of practice, article, order, court order, concession,
restriction or other rule whether imposed by any jurisdiction, government (or political
sub-division or agency thereof), supranational body or other authority or supervisory
organisation (whether local, national, European or international) and includes any of the
aforesaid not having the force of law but compliance with which is customary; |
|
|
(g) |
|
a liability includes any loss, cost, claim, damage, expense, fine, penalty or other
liability (including any liability to pay taxes); |
|
|
(h) |
|
proceedings includes any suit, demand, allegation, process, proceeding, injunction,
Mareva injunction, garnishment, execution, levy, controversy, arbitration, dispute, specific
performance, claim, proceedings, judgement or other action (whether actual or threatened and
whether before or after judgement); |
|
|
(i) |
|
a provision includes any covenant, term, condition, clause, proviso, paragraph,
representation, warranty or other provision; |
|
|
(j) |
|
a right includes any right, power, benefit, claim, remedy, immunity, option, election
or discretion (express or implied); |
2.4 |
|
The index and headings in this Mortgage of Shares shall be ignored in construing it. |
|
2.5 |
|
For the purposes of sub-clause 94(1)(c) of the Act, the obligation of the Lenders to make
further advances pursuant to the Credit Agreement shall be deemed to be incorporated into this
Mortgage of Shares, mutatis mutandis. |
|
2.6 |
|
This Mortgage of Shares is intended to and shall take effect as a deed notwithstanding that
it may be executed under hand by one or more Parties. |
|
2.7 |
|
All provisions hereof and rights hereunder shall remain in force and be exercisable
throughout the Security Period. |
|
2.8 |
|
The charge and mortgage contained in this Mortgage of Shares are granted with full title
guarantee in accordance with the Law of Property (Miscellaneous Provisions) Act 1994. |
|
2.9 |
|
This Mortgage of Shares creates those Security Interests it purports to create and is not
liable to be avoided or otherwise set aside on the liquidation or administration of the Chargor
or otherwise. |
|
2.10 |
|
A person who is not a party to this Mortgage of Shares has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this Mortgage of Shares. |
|
3. |
|
Fixed security |
4
|
|
The Chargor, as continuing security for the payment of the Secured Liabilities, with full
title guarantee, hereby mortgages and charges and agrees to mortgage and charge to the
Administrative Agent (as agent and trustee for the Lenders) by way of a first ranking
equitable mortgage, the Chargeable Shares and the Share Accruals. |
|
|
|
PROVIDED THAT all dividends and other amounts paid or payable constituting Share Accruals
referred to above may, until the security constituted hereby becomes enforceable in
accordance with the terms hereof, be paid directly to the Chargor. |
|
4. |
|
Undertakings |
|
4.1 |
|
Secured Liabilities: the Secured Liabilities shall be discharged in the manner provided for
in the Loan Documents. Any such discharge shall operate in satisfaction pro tanto of this
covenant. |
|
4.2 |
|
Share Certificates Etc: |
|
(a) |
|
On or before the date hereof the Chargor shall deliver to the Administrative Agent
share certificates relating to the Chargeable Shares together with a stock transfer form
relating to such shares, executed by the Chargor but left undated and blank as regards the
identity of the transferee (provided that the Chargor shall further ensure that such
certificates are prepared and delivered in such form as may enable the 65% proportion in
respect of which security is granted hereunder to be clearly identified and segregated,
whether before or after any increase in the share capital of the Company). |
|
|
(b) |
|
All certificates and other documents of title relating to the Security Assets arising
after the date hereof shall forthwith upon receipt by the Chargor be deposited with or to
the order of the Administrative Agent in such manner as the Administrative Agent shall
require. |
|
(a) |
|
The Chargor shall pay all calls or other payments which may become due in connection
with the Security Assets. |
|
|
(b) |
|
The Chargor shall copy to the Administrative Agent and comply with any request for
information in connection with section 212 of the Companies Act 1985 or any similar
provision of any Constitutional Document (to the extent relevant). The Administrative
Agent may provide any information which it has on behalf of the Chargor. |
5. |
|
Voting Powers |
|
|
|
The full voting and other powers and rights in respect of the Shares for the time being
the subject of this Mortgage of Shares shall be exercised on all matters exclusively by
the Chargor until an Enforcement Event, when such voting and other powers and rights shall
be exercisable by the Administrative Agent or its nominees (as the case may be) in such
manner as they see fit (but subject to any restrictions and limitations provided for or
referred to in this Mortgage of Shares). |
5
6. |
|
Perfection of security and power of attorney |
|
6.1 |
|
The Chargor shall, at its own expense, take whatever action the Administrative Agent may
reasonably require for: |
|
(a) |
|
perfecting, protecting or maintaining the security intended to be created by this
Mortgage of Shares over the Security Assets (including any filing or registration); |
|
|
(b) |
|
facilitating the realisation of the Security Assets or the exercise of any right
exercisable by the Administrative Agent in respect of the Security Assets. |
6.2 |
|
The Chargor, by way of security for the performance of the Chargors obligations hereunder,
appoints the Administrative Agent (in accordance with section 4 of the Powers of Attorney Act
1971) to be its attorney for the duration of the Security Period to take any action whatsoever
which the Chargor is obliged to take under, or pursuant to, this Mortgage of Shares. |
|
6.3 |
|
The Chargor ratifies and confirms any action which the Administrative Agent may take pursuant
to its appointment under this Clause. |
|
7. |
|
Enforcement of security |
|
7.1 |
|
For the purposes of all powers implied by statute, the Secured Liabilities are deemed to have
become due on the date of this Mortgage of Shares. |
|
7.2 |
|
Following an Enforcement Event the security constituted by this Mortgage of Shares shall
become immediately enforceable and the Administrative Agent may: |
|
(a) |
|
exercise any right possessed by it pursuant to this mortgage under the Act or
available to a secured creditor; |
|
|
(b) |
|
complete and take any other action required in connection with the stock transfer form
described in Clause 4.2(a); |
|
|
(c) |
|
make any Disposal of the Security Assets or any part thereof; and |
|
|
(d) |
|
collect, recover or compromise and give a good discharge for any moneys payable in
respect of the Security Assets. |
8. |
|
Application of proceeds |
|
|
|
Any moneys received by the Administrative Agent in respect of the Security Assets after
this Mortgage of Shares has become enforceable shall be applied in or towards satisfaction
of the following and in the following order of priority (but without prejudice to the
right of the Administrative Agent to recover any shortfall from the Chargor): |
|
(a) |
|
all costs incurred by the Administrative Agent (including its remuneration hereunder); |
|
|
(b) |
|
all liabilities of the Administrative Agent incurred in connection herewith; |
6
|
(c) |
|
payment of the Secured Liabilities or such part of them as is then due and payable, in
each case equally and rateably in accordance with the respective amounts thereof then due
and owing or as the Lenders holding the same may otherwise agree; and |
|
|
(d) |
|
the surplus (if any) to the Chargor or other person entitled to it. |
9. |
|
Exclusion of liability |
|
9.1 |
|
The Administrative Agent shall not be: |
|
(a) |
|
responsible for performing any obligation of the Chargor in relation to the Security
Assets (including the making of any claim or taking of any enforcement action in connection with
any payment relating thereto); or |
|
|
(b) |
|
liable, by reason of taking possession of any of the Security Assets, to account as
mortgagee in possession or for any loss on realisation or for any default or omission for which a
mortgagee in possession might otherwise be liable. |
9.2 |
|
The Chargor alone shall be responsible for all Contracts, engagements, acts, omissions,
defaults and liabilities incurred by the Administrative Agent (acting in good faith) in
connection herewith. |
|
9.3 |
|
The Administrative Agent shall not be liable in any way or responsible to the Chargor for any
liability arising from any act, default, omission or misconduct on the part of any of its
officers other than wilful misconduct or gross negligence. |
|
9.4 |
|
The protections afforded to purchasers from a mortgagee by sections 104 and 107 of the Act
and to persons dealing with an administrative receiver by section 42(3) of the Insolvency Act
shall apply equally to entities dealing with the Administrative Agent. |
|
9.5 |
|
The Administrative Agent shall not be concerned to enquire as to the exercise of any right
hereunder by the Administrative Agent, whether any amount remains due under the Loan Documents or
to check the application of any money borrowed. |
|
10. |
|
Continuing security |
|
10.1 |
|
Except as provided in Section 13 hereof, this security shall be continuing and will extend
to the ultimate balance of all sums payable by the Borrower under the Loan Documents, regardless
of any Discharge. |
|
10.2 |
|
Except as provided in Section 13 hereof, where any Discharge is made which is avoided or
must be restored on insolvency, liquidation or otherwise, the liability of the Chargor under this
Mortgage of Shares shall continue as if such Discharge had not occurred. |
|
10.3 |
|
The Administrative Agent may concede or compromise any claim that any payment, security or
Disposal is liable to avoidance or restoration. |
|
10.4 |
|
Except as provided in Section 13 hereof, the obligations of the Chargor under this Mortgage
of Shares will not be affected by anything (including any omission) which, but for this
provision, would in any way affect any of its obligations under this |
7
|
|
Mortgage of Shares including (whether or not known to it or the Administrative Agent): |
|
(a) |
|
any Discharge; |
|
|
(b) |
|
any invalidity; or |
|
|
(c) |
|
any alteration (however fundamental), |
|
|
in connection with any Person, Loan Document or any Contract relating to any Person
(including any obligation or security for such obligation thereunder). |
|
10.5 |
|
The Chargor waives any right it may have of first requiring the Administrative Agent (or any
officer thereof) to proceed against or enforce any other rights or security or claim payment from
any person before enforcing the security constituted by this Mortgage of Shares. |
|
10.6 |
|
Until the expiry of the Security Period, the Administrative Agent may refrain from applying
or enforcing any other moneys, security or rights held or received by it in respect of any
Secured Liability, or apply and enforce the same in such manner and order as it sees fit and the
Chargor shall not be entitled to the benefit of the same. |
|
10.7 |
|
The Chargor shall not at any time: |
|
(a) |
|
be subrogated to any rights, security or moneys held, received or receivable by the
Administrative Agent or be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of any other Obligors liability under
this Mortgage of Shares; |
|
|
(b) |
|
claim, rank, prove or vote as a creditor of any other Obligor or its estate in
competition with the Administrative Agent; or |
|
|
(c) |
|
receive, claim or have the benefit of any payment, distribution or security from or on
account of any other Obligor, or exercise any right of set-off against any other Obligor. |
10.8 |
|
This Mortgage of Shares is in addition to and is not in any way prejudiced by any other
security now or subsequently held by the Administrative Agent. |
|
11. |
|
Expenses and Notices |
|
|
|
The (i) obligation to pay costs and expenses to the Administrative Agent detailed in
Section 10.03 of the Credit Agreement and (ii) the notice provisions detailed in Section
10.01 of the Credit Agreement, shall be deemed to be incorporated into this Mortgage of
Shares, mutatis mutandis. |
|
12. |
|
Miscellaneous |
8
12.1 |
|
Time deposits: without prejudice to any right of set-off any Finance Party may have under
any Loan Document or otherwise, if a time deposit matures on any account the Chargor has with the
Administrative Agent at a time within the Security Period when: |
|
(a) |
|
this security has become enforceable; and |
|
|
(b) |
|
no amount of the Secured Liabilities is due and payable, |
|
|
that time deposit shall automatically be renewed for any further maturity which the
Administrative Agent considers appropriate. |
|
12.2 |
|
Suspense account: if the Administrative Agent receives, or is deemed to be affected by,
notice (whether actual or constructive) of any Lien affecting any Security Asset and/or the
proceeds of sale of any Security Asset, it may open a new account for the Chargor. If the
Administrative Agent does not open a new account, it shall neverthele |