1
EXHIBIT 10.1
EXECUTION COPY
$1,800,000,000
AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
Dated as of December 20, 1996
among
▇▇▇▇ CORPORATION,
▇▇▇▇ CORPORATION CANADA LTD.,
THE FOREIGN SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as General Administrative Agent
and
THE BANK OF NOVA SCOTIA,
as Canadian Administrative Agent
____________________________________
CHASE SECURITIES INC.,
as Arranger
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS................................................... 1
1.1 Defined Terms................................................. 1
1.2 Other Definitional Provisions................................. 33
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT
COMMITMENTS.......................................................... 33
2.1 U.S. Revolving Credit Commitments 33
2.2 Repayment of U.S. Revolving Credit Loans;
Evidence of Debt............................................ 34
2.3 Procedure for U.S. Revolving Credit Borrowing................. 35
2.4 Termination or Reduction of U.S. Revolving Credit
Commitments................................................. 35
2.5 Borrowings of U.S. Revolving Credit Loans
and Refunding of Loans...................................... 36
SECTION 3. AMOUNT AND TERMS OF SWING LINE
COMMITMENTS......................................................... 38
3.1 Swing Line Commitments....................................... 38
3.2 Procedure for Swing Line Borrowings;
Interest Rate.............................................. 39
3.3 Repayment of Swing Line Loans; Evidence of Debt.............. 39
3.4 Refunding of Swing Line Borrowings........................... 40
3.5 Participating Interests...................................... 40
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES............................. 41
4.1 CAF Advances................................................. 41
4.2 Procedure for CAF Advance Borrowing.......................... 41
4.3 CAF Advance Payments......................................... 44
4.4 Evidence of Debt............................................. 44
4.5 Certain Restrictions......................................... 45
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN
COMMITMENTS......................................................... 45
5.1 Canadian Revolving Credit Commitments........................ 45
-i-
3
Page
----
5.2 Repayment of Canadian Revolving Credit
Loans; Evidence of Debt........................... 46
5.3 Procedure for Canadian Revolving
Credit Borrowing.................................. 47
5.4 Termination or Reduction of Canadian
Revolving Credit Commitments...................... 47
SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY......................................... 47
6.1 Acceptance Commitments............................... 47
6.2 Creation of Acceptances.............................. 48
6.3 Discount of Acceptances.............................. 49
6.4 Stamping Fees........................................ 49
6.5 Acceptance Reimbursement Obligations................. 49
6.6 Converting Canadian Revolving Credit Loans
to Acceptances and Acceptances to Canadian
Revolving Credit Loans............................ 51
6.7 Allocation of Acceptances............................ 52
6.8 Special Provisions Relating to Acceptance Notes...... 52
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT.................................................. 53
7.1 Multicurrency Commitments........................... 53
7.2 Repayment of Multicurrency Loans; Evidence
of Debt........................................... 53
7.3 Procedure for Multicurrency Borrowing............... 54
7.4 Termination or Reduction of Multicurrency
Commitments....................................... 54
SECTION 8. ALTERNATE CURRENCY FACILITIES......................... 54
8.1 Terms of Alternate Currency Facilities.............. 54
8.2 Reporting of Alternate Currency Outstandings. ...... 56
SECTION 9. LETTERS OF CREDIT..................................... 57
9.1 Letters of Credit................................... 57
9.2 Procedure for Issuance of Letters of Credit......... 58
9.3 Participating Interests............................. 58
9.4 Payments............................................ 59
9.5 Further Assurances.................................. 59
-ii-
4
Page
----
9.6 Obligations Absolute........................... 60
9.7 Letter of Credit Application................... 60
9.8 Purpose of Letters of Credit................... 60
9.9 Currency Adjustments........................... 61
SECTION 10. GENERAL PROVISIONS APPLICABLE TO LOANS................. 61
10.1 Interest Rates and Payment Dates............... 61
10.2 Conversion and Continuation Options............ 62
10.3 Minimum Amounts of Tranches.................... 63
10.4 Optional and Mandatory Prepayments............. 63
10.5 Facility Fees; Other Fees...................... 64
10.6 Computation of Interest and Fees............... 65
10.7 Inability to Determine Interest Rate........... 67
10.8 Pro Rata Treatment and Payments................ 67
10.9 Illegality..................................... 69
10.10 Requirements of Law............................ 70
10.11 Indemnity...................................... 72
10.12 Taxes.......................................... 72
10.13 Assignment of Commitments Under Certain
Circumstances................................ 74
10.14 Use of Proceeds................................ 75
SECTION 11. REPRESENTATIONS AND WARRANTIES......................... 75
11.1 Financial Statements........................... 75
11.2 No Change...................................... 76
11.3 Corporate Existence; Compliance with Law....... 76
11.4 Corporate Power; Authorization; Enforceable
Obligations.................................. 76
11.5 No Legal Bar; Senior Debt...................... 77
11.6 No Material Litigation......................... 77
11.7 No Default..................................... 77
11.8 Ownership of Property; Liens................... 77
11.9 Taxes.......................................... 78
11.10 Securities Law, etc. Compliance................ 78
11.11 ERISA.......................................... 78
11.12 Investment Company Act; Other Regulations...... 79
11.13 Subsidiaries, etc. ............................ 79
11.14 Accuracy and Completeness of Information....... 79
11.15 Security Documents............................. 79
11.16 Patents, Copyrights, Permits and Trademarks.... 79
11.17 Environmental Matters.......................... 80
11.18 RDM Finance.................................... 81
-iii-
5
Page
----
SECTION 12. CONDITIONS PRECEDENT.......................... 81
12.1 Conditions to Closing Date.................... 81
12.2 Conditions to Each Extension of Credit........ 83
SECTION 13. AFFIRMATIVE COVENANTS......................... 83
13.1 Financial Statements.......................... 84
13.2 Certificates; Other Information............... 84
13.3 Performance of Obligations.................... 85
13.4 Conduct of Business, Maintenance of Existence
and Compliance with Obligations and Laws.... 85
13.5 Maintenance of Property; Insurance............ 85
13.6 Inspection of Property; Books and Records;
Discussions................................. 86
13.7 Notices....................................... 86
13.8 Maintenance of Liens of the Security Documents 87
13.9 Environmental Matters......................... 87
13.10 Security Documents; Guarantee Supplement...... 88
SECTION 14. NEGATIVE COVENANTS............................ 89
14.1 Financial Covenants........................... 89
14.2 Limitation on Indebtedness.................... 90
14.3 Limitation on Liens........................... 91
14.4 Limitation on Guarantee Obligations........... 93
14.5 Limitations on Fundamental Changes............ 93
14.6 Limitation on Sale of Assets.................. 94
14.7 Limitation on Dividends....................... 95
14.8 Limitation on Capital Expenditures............ 96
14.9 Limitation on Investments, Loans and Advances. 96
14.10 Limitation on Optional Payments and
Modification of Debt Instruments............ 98
14.11 Transactions with Affiliates.................. 98
14.12 Corporate Documents........................... 99
14.13 Fiscal Year................................... 99
14.14 Limitation on Restrictions Affecting
Subsidiaries................................ 99
14.15 Special Purpose Subsidiary.................... 99
14.16 Interest Rate Agreements...................... 99
SECTION 15. GUARANTEE..................................... 99
15.1 Guarantee..................................... 99
15.2 No Subrogation................................ 100
-iv-
6
Page
----
15.3 Amendments, etc. with respect to the
Obligations; Waiver of Rights............. 101
15.4 Guarantee Absolute and Unconditional........ 101
15.5 Reinstatement............................... 102
15.6 Payments.................................... 102
SECTION 16. EVENTS OF DEFAULT........................... 102
SECTION 17. THE ADMINISTRATIVE AGENTS; THE
MANAGING AGENTS, CO-AGENTS AND LEAD
MANAGERS.................................... 106
17.1 Appointment................................. 106
17.2 Delegation of Duties........................ 106
17.3 Exculpatory Provisions...................... 106
17.4 Reliance by Administrative Agent............ 107
17.5 Notice of Default........................... 107
17.6 Non-Reliance on Administrative Agents
and Other Lender.......................... 108
17.7 Indemnification............................. 108
17.8 Administrative Agents in their Individual
Capacity.................................. 108
17.9 Successor Administrative Agents............. 109
17.10 The Managing Agents, Co-Agents and Lead
Managers.................................. 109
SECTION 18. MISCELLANEOUS............................. 109
18.1 Amendments and Waivers...................... 109
18.2 Notices..................................... 112
18.3 No Waiver; Cumulative Remedies.............. 113
18.4 Survival of Representations and Warranties.. 113
18.5 Payment of Expenses and Taxes............... 113
18.6 Successors and Assigns; Participations
and Assignments......................... 114
18.7 Adjustments; Set-Off........................ 117
18.8 Loan Conversion/Participations.............. 118
18.9 Counterparts................................ 119
18.10 Severability................................ 120
18.11 Integration................................. 120
18.12 GOVERNING LAW............................... 120
18.13 Submission to Jurisdiction; Waivers......... 120
18.14 Acknowledgements............................ 121
--v-
7
Page
----
18.15 WAIVERS OF JURY TRIAL..................... 121
18.16 Power of Attorney......................... 121
18.17 Existing Letters of Credit................ 121
18.18 Release of Collateral..................... 121
18.19 Judgment.................................. 122
18.20 Confidentiality........................... 122
18.21 Effect of Amendment and Restatement of the
Existing Credit Agreements.............. 122
18.22 Conflicts................................. 123
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
IV Security Documents
V Existing Letters of Credit
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
EXHIBITS:
A Form of U.S. Revolving Credit Note
B Form of Canadian Revolving Credit Note
C Form of Draft
D Form of Power of Attorney
E Form of Acceptance Note
F Form of CAF Advance Request
G Form of CAF Advance Offer
H Form of CAF Advance Confirmation
I Form of Joinder Agreement
J Form of Alternate Currency Facility Addendum
K Form of Assignment and Acceptance
L Form of Opinion of Winston & ▇▇▇▇▇▇
M Form of Opinion of Tory, Tory, ▇▇▇▇▇▇▇▇▇▇▇ & Binnington
N Matters to be Covered by Foreign Subsidiary Opinion
O Form of Second Amended and Restated Subsidiary Guarantee
P Form of Second Amended and Restated Additional Subsidiary
Guarantee
Q Form of Second Amended and Restated Domestic Pledge
Agreement
R Form of Second Amended and Restated Fair Haven Pledge
Agreement
S Matters to be Covered by Opinion of Counsel to the U.S.
Borrower
T Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Advokatbrya KB
U Form of Opinion of Blake, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
-vi-
8
AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as of
December 20, 1996, among ▇▇▇▇ CORPORATION, a Delaware corporation (the "U.S.
Borrower"), ▇▇▇▇ CORPORATION CANADA LTD., a company organized under the laws of
the province of Ontario, Canada (the "Canadian Borrower"), each FOREIGN
SUBSIDIARY BORROWER (as hereinafter defined) (together with the U.S. Borrower
and the Canadian Borrower, the "Borrowers"), the Managing Agents named on the
signature pages hereof (the "Managing Agents"), the Co-Agents named on the
signature pages hereof (the "Co-Agents"), the Lead Managers named on the
signature pages hereof (the "Lead Managers"), the several banks and other
financial institutions from time to time parties hereto (the "Lenders") and THE
BANK OF NOVA SCOTIA, a Canadian chartered bank (as hereinafter defined, the
"Canadian Administrative Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "General Administrative
Agent"), as administrative agents for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the U.S. Borrower is party to (a) the Credit Agreement,
dated as of August 17, 1995, as amended (the "1995 Agreement") with the
several lenders party thereto (the "1995 Lenders"), the Managing Agents,
Co-Agents and Lead Managers identified therein and The Chase Manhattan Bank
(f/k/a Chemical Bank), as the administrative agent for the 1995 Lenders, and
(b) the Credit Agreement, dated as of June 27, 1996 (the "1996 Credit
Agreement"; and together with the 1995 Credit Agreement, the "Existing Credit
Agreements") with the several lenders party thereto (the "1996 Lenders"; and
together with the 1995 Lenders, the "Existing Lenders") and The Chase Manhattan
Bank (f/k/a Chemical Bank), as the administrative agent for the 1996 Lenders;
and
WHEREAS, the U.S. Borrower has requested that the Existing Credit
Agreements be combined and amended and restated;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree that on the Closing
Date, as provided in subsection 18.21, the Existing Credit Agreements shall be
combined and amended and restated in their entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": U.S. Revolving Credit Loans or Swing Line Loans, the
rate of interest applicable to which is based upon the Alternate Base
Rate.
"Acceptance": a Draft drawn by the Canadian Borrower and accepted
by a Canadian Lender which is (a) denominated in Canadian Dollars, (b)
for a term of not less
9
2
than 30 days nor more than 180 days and which matures prior to the
Revolving Credit Termination Date and (c) issuable and payable only in
Canada; provided that to the extent the context shall require, each
Acceptance Note shall be deemed to be an Acceptance.
"Acceptance Note": as defined in subsection 6.8(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and
with one-half cent being rounded up) obtained by dividing (a) the face
amount of such Acceptance by (b) the sum of (i) one and (ii) the product
of (A) the Reference Discount Rate for Acceptances of the same maturity
expressed as a decimal and (B) a fraction, the numerator of which is the
term to maturity of such Acceptance and the denominator of which is equal
to 365, where (b) above is rounded to the fifth decimal place and
0.000005 is rounded up to 0.00001.
"Acceptance Reimbursement Obligations": the obligation of the
Canadian Borrower to the Canadian Lenders (a) to reimburse the Canadian
Lenders for maturing Acceptances pursuant to subsection 6.5 and (b) to
make payments in respect of the Acceptance Notes in accordance with the
terms thereof.
"Acceptance Tranche": the collective reference to Acceptances all
of which were created on the same date and have the same maturity date.
"Acceptances to be Converted": as defined in subsection 18.8(a).
"Acquired Indebtedness": Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
U.S. Borrower or assumed in connection with the acquisition of assets
from such Person and not incurred by such Person in contemplation of such
Person becoming a Subsidiary of the U.S. Borrower or such acquisition,
and any refinancings thereof.
"Additional Subsidiary Guarantee": the Second Amended and Restated
Additional Subsidiary Guarantee made by ▇▇▇▇ Operations Corporation and
NAB Corporation in favor of the General Administrative Agent,
substantially in the form of Exhibit P, as the same may be amended,
supplemented or otherwise modified from time to time.
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant
to subsection 18.8, minus the amount of any participating interests sold
by such Lender pursuant to subsection 18.8.
"Adjustment Date": with respect to any fiscal quarter, (a) the
second Business Day following receipt by the General Administrative Agent
of both (i) the financial statements required to be delivered pursuant to
subsection 13.1(a) or (b), as the case may be, for the most recently
completed fiscal period and (ii) the compliance certificate
10
3
required pursuant to subsection 13.2(b) with respect to such financial
statements or (b) if such compliance certificate and financial statements
have not been delivered in a timely manner, the date upon which such
compliance certificate and financial statements were due; provided,
however, that in the event that the Adjustment Date is determined in
accordance with the provisions of clause (b) of this definition, then the
date which is two Business Days following the date of receipt of the
financial statements and compliance certificate referenced in clause (a)
of this definition also shall be deemed to constitute an Adjustment Date.
"Administrative Agents": the collective reference to the General
Administrative Agent and the Canadian Administrative Agent.
"Administrative Schedule": Schedule III, which contains interest
rate definitions and administrative information in respect of each
Available Foreign Currency.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly, is
in control of, is controlled by, or is under common control with, such
Person or (b) any other Person who is a director or executive officer of
(i) such Person, (ii) any Subsidiary of such Person (other than a Wholly
Owned Subsidiary) or (iii) any Person described in clause (a) above. For
purposes of this definition, a Person shall be deemed to be "controlled
by" such other Person if such other Person possesses, directly or
indirectly, power either to (A) vote 10% or more of the securities having
ordinary voting power for the election of directors of such first Person
or (B) direct or cause the direction of the management and policies of
such first Person whether by contract or otherwise.
"Aggregate Alternate Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Alternate Currencies equal to the aggregate unpaid principal amount of
such Lender's Alternate Currency Loans.
"Aggregate Available Canadian Revolving Credit Commitments": as at
any date of determination with respect to all Canadian Lenders, an amount
in Canadian Dollars equal to the Available Canadian Revolving Credit
Commitments of all Canadian Lenders on such date.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in
U.S. Dollars equal to the Available Multicurrency Commitments of all
Multicurrency Lenders on such date.
"Aggregate Available U.S. Revolving Credit Commitments": as at any
date of determination with respect to all U.S. Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of all
U.S. Lenders on such date.
"Aggregate Canadian Revolving Credit Outstandings": as at any date
of determination with respect to any Canadian Lender, an amount in
Canadian Dollars equal to the sum of the following, without duplication:
(a) the aggregate unpaid principal
11
4
amount of such Canadian Lender's Canadian Revolving Credit Loans on
such date, (b) the aggregate undiscounted face amount of all outstanding
Acceptances of such Canadian Lender on such date and (c) the aggregate
unpaid principal amount of such Canadian Lender's Acceptance Notes on
such date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Revolving Credit Outstandings of such Lender, (b)
the U.S. Dollar Equivalent of the Aggregate Canadian Revolving Credit
Outstandings of such Lender and such Lender's Counterpart Lender, (c) the
U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of
such Lender and (d) the U.S. Dollar Equivalent of the Aggregate Alternate
Currency Outstandings of such Lender.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Total Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Outstandings of such Lender, (b) the U.S. Dollar
Equivalent of the Aggregate Canadian Revolving Credit Outstandings of
such Lender and such Lender's Counterpart Lender, (c) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender and
(d) the U.S. Dollar Equivalent of the Aggregate Alternate Currency
Outstandings of such Lender.
"Aggregate U.S. Outstandings": as at any date of determination with
respect to any U.S. Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Revolving Credit Outstandings of such Lender on
such date and (b) the aggregate unpaid principal amount of such U.S.
Lender's CAF Advances on such date.
"Aggregate U.S. Revolving Credit Commitments": the aggregate amount
of the U.S. Revolving Credit Commitments of all the Lenders.
"Aggregate U.S. Revolving Credit Outstandings": as at any date of
determination with respect to any U.S. Lender, an amount in U.S. Dollars
equal to the sum of (a) the aggregate unpaid principal amount of such
U.S. Lender's U.S. Revolving Credit Loans on such date, (b) such U.S.
Lender's U.S. Revolving Credit Commitment Percentage of the aggregate
unpaid principal amount of all Swing Line Loans on such date and (c) such
U.S. Lender's U.S. Revolving Credit Commitment Percentage of the
aggregate Letters of Credit Obligations.
"Agreement": this Amended and Restated Credit and Guarantee
Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.
"Agreement Currency": as defined in subsection 18.19(b).
12
5
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%.
If for any reason the General Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the General Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b)
above, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the U.S.
Prime Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the U.S.
Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Currency": any currency other than U.S. Dollars which is
freely transferrable and convertible into U.S. Dollars and approved by
the General Administrative Agent.
"Alternate Currency Borrower": each Subsidiary of the U.S. Borrower
organized under the laws of a jurisdiction outside the United States that
the U.S. Borrower designates as an "Alternate Currency Borrower" in an
Alternate Currency Facility Addendum.
"Alternate Currency Facility": any Qualified Credit Facility that
the U.S. Borrower designates as an "Alternate Currency Facility" pursuant
to an Alternate Currency Facility Addendum.
"Alternate Currency Facility Addendum": an Alternate Currency
Facility Addendum received by the General Administrative Agent,
substantially in the form of Exhibit J, and conforming to the
requirements of Section 8.
"Alternate Currency Facility Agent": with respect to each Alternate
Currency Facility, the Alternate Currency Lender acting as agent or
representative for the Alternate Currency Lenders parties thereto (and,
in the case of any Alternate Currency Facility to which only one Lender
is a party, such Lender).
"Alternate Currency Facility Maximum Borrowing Amount": as defined
in subsection 8.1(b).
"Alternate Currency Lender": any Lender (or, if applicable, any
affiliate, branch or agency thereof) party to an Alternate Currency
Facility.
13
6
"Alternate Currency Lender Maximum Borrowing Amount": as defined in
subsection 8.1(b).
"Alternate Currency Loan": any loan made pursuant to an Alternate
Currency Facility.
"Applicable Margin": at any time, the rate per annum set forth
below opposite the Level of Coverage Ratio most recently determined:
Level of Applicable
Coverage Ratio Margin
-------------- ----------
Level I:
Coverage Ratio is
less than 4.0 to 1 .625%
Level II:
Coverage Ratio is
equal to or greater than 4.0 to 1
but less than 5.0 to 1 .400%
Level III:
Coverage Ratio is
equal to or greater than 5.0 to 1
but less than 6.0 to 1 .300%
Level IV
Coverage Ratio is
greater than or equal to 6.0 to 1 .275%;
provided that (a) the Applicable Margin shall be that set forth above
opposite Level III from the Closing Date until the first Adjustment Date
occurring after the Closing Date, (b) the Applicable Margin determined
for any Adjustment Date shall remain in effect until a subsequent
Adjustment Date for which the Coverage Ratio falls within a different
Level, and (c) if the financial statements and related compliance
certificate for any fiscal period are not delivered by the date due
pursuant to subsections 13.1 and 13.2(b), the Applicable Margin shall be
(i) for the first 5 days subsequent to such due date, that in effect on
the day prior to such due date, and (ii) thereafter, that set forth above
opposite Level I, in either case, until the subsequent Adjustment Date;
and provided, further, if Investment Grade Status is attained, the
Applicable Margin will be .250% per annum so long as Investment Grade
Status is maintained.
"Assignee": as defined in subsection 18.6(c).
14
7
"Available Canadian Revolving Credit Commitment": as at any date of
determination with respect to any Canadian Lender (after giving effect to
the making and payment of any U.S. Revolving Credit Loans required to be
made on such date pursuant to subsection 2.5), an amount in U.S. Dollars
equal to the lesser of (a) the excess, if any, of (i) the amount of such
Canadian Lender's Canadian Revolving Credit Commitment in effect on such
date over (ii) the U.S. Dollar Equivalent of the Aggregate Canadian
Revolving Credit Outstandings of such Canadian Lender on such date and
(b) the excess, if any, of (i) the amount of the U.S. Revolving Credit
Commitment of such Canadian Lender's Counterpart Lender on such date over
(ii) the Aggregate Committed Outstandings of such Canadian Lender's
Counterpart Lender on such date.
"Available Foreign Currencies": Deutsche Marks, Pounds Sterling,
French Francs, Swedish Kroner, Austrian Schillings, Italian Lire and any
other available and freely-convertible non-U.S. Dollar currency selected
by the U.S. Borrower and approved by the General Administrative Agent and
the Majority Multicurrency Lenders in the manner described in subsection
18.1(b).
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any U.S. Revolving Credit Loans
required to be made on such date pursuant to subsection 2.5), an amount
in U.S. Dollars equal to the lesser of (a) the excess, if any, of (i) the
amount of such Multicurrency Lender's Multicurrency Commitment in effect
on such date over (ii) the U.S. Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Multicurrency Lender on such date and
(b) the excess, if any, of (i) the amount of such Multicurrency Lender's
U.S. Revolving Credit Commitment in effect on such date over (ii) the
Aggregate Committed Outstandings of such Multicurrency Lender on such
date.
"Available U.S. Revolving Credit Commitment": as at any date of
determination with respect to any U.S. Lender (after giving effect to the
making and payment of any U.S. Revolving Credit Loans required to be made
on such date pursuant to subsection 2.5), an amount in U.S. Dollars equal
to the excess, if any, of (a) the amount of such U.S. Lender's U.S.
Revolving Credit Commitment in effect on such date over (b) the Aggregate
Committed Outstandings of such U.S. Lender on such date.
"Bank Act (Canada)": the Bank Act (Canada), as amended from time to
time.
"Benefitted Lender": as defined in subsection 18.7.
"Board": the Board of Governors of the Federal Reserve System (or
any successor thereto).
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.3, 3.2, 4.2, 5.3 or 7.3 as a date on which a Borrower
requests the Lenders to make
15
8
Loans hereunder or, with respect to a Request for Acceptances, the
date with respect to which the Canadian Borrower has requested the
Canadian Lenders to accept Drafts or, with respect to Alternate Currency
Loans, the date on which an Alternate Currency Borrower requests
Alternate Currency Lenders to make Alternate Currency Loans to such
Alternate Currency Borrower pursuant to the Alternate Currency Facility
to which such Alternate Currency Borrower and Alternate Currency Lenders
are parties.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency or Alternate Currency is to
be made, a payment is to be made in respect of such Loan, an Exchange
Rate is to be set in respect of such Available Foreign Currency or
Alternate Currency or any other dealing in such Available Foreign
Currency or Alternate Currency is to be carried out pursuant to this
Agreement, such term shall mean a London Banking Day which is also a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of issuance of such
Available Foreign Currency or Alternate Currency, (b) when such term is
used in respect of a day on which a Loan is to be made to the Canadian
Borrower or an Acceptance is to be created, a payment is to be made in
respect of such Loan or Acceptance, an Exchange Rate is to be set in
respect of Canadian Dollars or any other dealing in Canadian Dollars is
to be carried out pursuant to this Agreement, such term shall mean a day
other than a Saturday, Sunday or other day on which commercial banks in
Toronto, Ontario are authorized or required by law to close, (c) when
such term is used to describe a day on which a borrowing, payment or
interest rate determination is to be made in respect of a LIBO Rate CAF
Advance, such day shall be a London Banking Day and (d) when such term is
used in any context in this Agreement (including as described in the
foregoing clauses (a), (b) and (c)), such term shall mean a day which, in
addition to complying with any applicable requirements set forth in the
foregoing clauses (a), (b) and (c), is a day other than a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized or required by law to close.
"CAF Advance": each CAF Advance made pursuant to subsection 4.1.
"CAF Advance Availability Period": the period from and including
the Closing Date to and including the date which is 7 days prior to the
Revolving Credit Termination Date.
"CAF Advance Confirmation": each confirmation by the U.S. Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit H and shall be delivered to the
General Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the U.S. Borrower for such CAF Advance
in the related CAF Advance Request.
16
9
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information specified in Exhibit G and shall be delivered to the General
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the U.S. Borrower for
Lenders to submit bids to make CAF Advances, which request shall contain
the information in respect of such requested CAF Advances specified in
Exhibit F and shall be delivered to the General Administrative Agent in
writing, by facsimile transmission, or by telephone, immediately
confirmed by facsimile transmission.
"Canadian Administrative Agent": The Bank of Nova Scotia, together
with its affiliates, as administrative agent for the Canadian Lenders
under this Agreement and the other Loan Documents, and any successor
thereto appointed pursuant to subsection 17.9.
"Canadian Base Rate": at any day, the higher of (a) the rate of
interest per annum publicly announced from time to time by the Canadian
Administrative Agent (and in effect on such day) as its reference rate
for U.S. Dollar commercial loans made in Canada, as adjusted
automatically from time to time and without notice to any of the
Borrowers upon change by the Canadian Administrative Agent and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
"Canadian Base Rate Loans": all Canadian Revolving Credit Loans
denominated in U.S. Dollars, which shall bear interest at a rate based
upon the Canadian Base Rate.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Dollars" and "C$": dollars in the lawful currency of
Canada.
"Canadian Dollar Equivalent": with respect to an amount denominated
in any currency other than Canadian Dollars, the equivalent in Canadian
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"Canadian Lenders": the Lenders listed in Part B of Schedule I
hereto.
"Canadian Reference Lenders": the collective reference to the
Schedule I Canadian Reference Lenders and the Schedule II Canadian
Reference Lenders.
"Canadian Revolving Credit Commitment": as to any Canadian Lender
at any time, its obligation to make Canadian Revolving Credit Loans to,
and/or create Acceptances and discount on behalf of (or, in lieu thereof,
to make loans pursuant to the Acceptance Notes to), the Canadian
Borrower, in an aggregate amount not to exceed at
17
10
any one time outstanding the Canadian Dollar Equivalent of the lesser
of (a) the U.S. Dollar amount set forth opposite such Canadian Lender's
name in Schedule I under the heading "Canadian Revolving Credit
Commitment", and (b) the U.S. Revolving Credit Commitment of such
Canadian Lender's Counterpart Lender, in each case as such amount may be
reduced from time to time as provided in subsection 5.4 and the other
applicable provisions hereof.
"Canadian Revolving Credit Commitment Percentage": as to any
Canadian Lender at any time, the percentage which such Canadian Lender's
Canadian Revolving Credit Commitment then constitutes of the aggregate
Canadian Revolving Credit Commitments (or, if the Canadian Revolving
Credit Commitments have terminated or expired, the percentage which (a)
the Aggregate Canadian Revolving Credit Outstandings of such Canadian
Lender at such time constitutes of (b) the Aggregate Canadian Revolving
Credit Outstandings of all Canadian Lenders at such time).
"Canadian Revolving Credit Loan": as defined in subsection 5.1.
"Canadian Revolving Credit Note": as defined in subsection 5.2(e).
"Capital Expenditures": direct or indirect (by way of the
acquisition of securities of a Person or the expenditure of cash or the
incurrence of Indebtedness) expenditures in respect of the purchase or
other acquisition of fixed or capital assets (excluding any such asset
(a) acquired in connection with normal replacement and maintenance
programs and properly charged to current operations, (b) acquired
pursuant to a Financing Lease or (c) acquired in connection with the
acquisition of Special Entities).
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the
Canadian Government or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition,
(b) securities issued or unconditionally guaranteed or insured by any
state of the United States of America or province of Canada or any agency
or instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest
ratings obtainable from either S&P or ▇▇▇▇▇'▇, (c) time deposits,
certificates of deposit and bankers' acceptances having maturities of not
more than twelve months from the date of acquisition, in each case with
any U.S. Lender or Canadian Lender or with any commercial bank organized
under the laws of the United States of America or any state thereof or
the District of Columbia, Japan, Canada or any member of the European
Economic Community or any U.S. branch of a foreign bank having at the
date of acquisition capital and surplus of not less than $100,000,000,
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a), (b) and (c)
entered into with any bank meeting the qualifications specified in clause
(c) above, (e) commercial paper issued by the parent corporation of any
U.S. Lender and commercial paper rated, at the time of acquisition, at
least A-1 or the equivalent thereof by S&P or P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ and in either case maturing within twelve months after
the date of acquisition, (e) deposits maintained with money market funds
having total assets in excess of
18
11
$300,000,000, (f) demand deposit accounts maintained in the ordinary
course of business with banks or trust companies, in an aggregate amount
not to exceed $2,000,000 at any one time at any one such bank or trust
company, (g) temporary deposits, of amounts received in the ordinary
course of business pending disbursement of such amounts, in demand
deposit accounts in banks outside the United States and (h) deposits in
mutual funds which invest substantially all of their assets in preferred
equities issued by U.S. corporations rated at least AA (or the equivalent
thereof) by S&P.
"CDOR Rate": the rate per annum determined by the Canadian
Administrative Agent by reference to the average rate quoted on the
Reuters Monitor Screen, Page "CDOR" (or such other Page as may replace
such Page on such screen for the purpose of displaying Canadian interbank
bid rates for Canadian Dollar bankers' acceptances with a 90 day term as
of 10:00 a.m. (Toronto time) one Business Day prior to the first day of
such 90 day term. If for any reason the Reuters Monitor Screen rates are
unavailable, CDOR Rate means the rate of interest determined by the
Canadian Administrative Agent which is equal to the arithmetic mean of
the rates quoted by such reference banks as may be specified from time to
time by the Canadian Administrative Agent, after consultation with the
Canadian Borrower, in respect of Canadian Dollar bankers' acceptances
with a 90 day term as of 10:00 a.m. one Business Day prior to the first
day of such 90 day term.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Chase Delaware": Chase Manhattan Bank Delaware.
"Closing Date": the date on which all of the conditions precedent
set forth in subsection 12.1 shall have been met or waived and the
initial Loans are made.
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Letters of Credit": as defined in subsection 9.1(a).
"Commitments": the collective reference to the U.S. Revolving
Credit Commitments, the Canadian Revolving Credit Commitments and the
Multicurrency Commitments.
"Committed Outstandings Percentage": on any date with respect to
any Lender, the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate
Committed Outstandings of all Lenders.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the U.S. Borrower within
the meaning of Section 4001 of ERISA or is part of a group which includes
the U.S. Borrower and which is treated as a single employer under Section
414 of the Code.
19
12
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet of
the U.S. Borrower and its Subsidiaries as at such date, determined in
accordance with GAAP.
"Consolidated Indebtedness": at a particular date, all Indebtedness
of the U.S. Borrower and its Subsidiaries which would be included under
indebtedness on a consolidated balance sheet of the U.S. Borrower and its
Subsidiaries as at such date, determined in accordance with GAAP, less
any cash of the U.S. Borrower and its Subsidiaries as at such date.
"Consolidated Interest Expense": for any fiscal period, the amount
which would, in conformity with GAAP, be set forth opposite the caption
"interest expense" (or any like caption) on a consolidated income
statement of the U.S. Borrower and its Subsidiaries for such period, (a)
excluding therefrom, however, fees payable under subsection 10.5 and any
amortization or write-off of deferred financing fees during such period
and (b) including any interest income during such period.
"Consolidated Net Income": for any fiscal period, the consolidated
net income (or deficit) of the U.S. Borrower and its Subsidiaries for
such period (taken as a cumulative whole), determined in accordance with
GAAP; provided that (a) any provision for post-retirement medical
benefits, to the extent such provision calculated under FAS 106 exceeds
actual cash outlays calculated on the "pay as you go" basis, shall not to
be taken into account, and (b) there shall be excluded (i) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the U.S. Borrower or any
Subsidiary, (ii) the income (or deficit) of any Person (other than a
Subsidiary) in which the U.S. Borrower or any Subsidiary has an ownership
interest, except to the extent that any such income has been actually
received by the U.S. Borrower or such Subsidiary in the form of dividends
or similar distributions, (iii) the undistributed earnings of any
Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by
the terms of any Contractual Obligation or Requirement of Law (other than
any Requirement of Law of Germany) applicable to such Subsidiary, and
(iv) in the case of a successor to the U.S. Borrower or any Subsidiary by
consolidation or merger or as a transferee of its assets, any earnings of
the successor corporation prior to such consolidation, merger or transfer
of assets; provided, further that the exclusions in clauses (i) and (iv)
of this definition shall not apply to the mergers or consolidations of
the U.S. Borrower or its Subsidiaries with their respective Subsidiaries.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under shareholders' equity on a consolidated balance
sheet of the U.S. Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as at such date plus the
amount of any redeemable common stock; provided, however, that any
cumulative adjustments made pursuant to FAS 106 shall not be taken into
account; and provided, further, that any stock option expense and any
amortization of goodwill, deferred financing fees and license fees
(including any write-offs of deferred financing
20
13
fees, license fees and up to an aggregate of $10,000,000 of goodwill from
October 25, 1993) shall not be taken into account in determining
Consolidated Net Worth.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary gains
and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses, (b) charges,
premiums and expenses associated with the discharge of Indebtedness, (c)
charges relating to FAS 106, (d) license fees (and any write-offs
thereof), (e) stock compensation expense, (f) deferred financing fees
(and any write-offs thereof), (g) write-offs of goodwill, (h) foreign
exchange gains and losses, (i) miscellaneous income and expenses and (j)
miscellaneous gains and losses arising from the sale of assets plus, to
the extent deducted in determining Consolidated Net Income, the excess of
(i) the sum of (A) Consolidated Interest Expense, (B) any expenses for
taxes, (C) depreciation and amortization expense and (D) minority
interests in income of Subsidiaries over (ii) net equity earnings in
Affiliates (excluding Subsidiaries). Consolidated Operating Profit for
any fiscal period shall in any event include the Consolidated Operating
Profit for such fiscal period of any entity acquired by the U.S. Borrower
or any of its Subsidiaries during such period.
"Consolidated Revenues": for any fiscal period, the consolidated
revenues of the U.S. Borrower and its Subsidiaries for such period,
determined in accordance with GAAP.
"Continuing Directors": the directors of the U.S. Borrower on the
Closing Date and each other director, if such other director's nomination
for election to the Board of Directors of the U.S. Borrower is
recommended by a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Date": any date on which either (a) an Event of Default
under Section 16(i) has occurred or (b) the Commitments shall have been
terminated prior to the Revolving Credit Termination Date and/or the
Loans shall have been declared immediately due and payable, in either
case pursuant to Section 16.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans or Acceptances, as the case may be, of such Lender
outstanding in any currency other than U.S. Dollars, the percentage of
such Loans or Acceptances, as the case may be, such that, after giving
effect to the conversion of such Loans or Acceptances, as the case may
be, to U.S. Dollars and the purchase and sale by such Lender of
participating interests as contemplated by subsection 18.8, the Committed
Outstandings Percentage of such Lender will equal such Lender's U.S.
Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to
21
14
any termination or expiration of the U.S. Revolving Credit Commitments
on the Conversion Date).
"Converted Acceptances: as defined in subsection 18.8(a).
"Converted Loans: as defined in subsection 18.8(a).
"Counterpart Lender": (a) as to any U.S. Lender, the Canadian
Lender (if any) set forth opposite such U.S. Lender's name in Schedule I
under the heading "Counterpart Lender" and (b) as to any Canadian Lender,
the U.S. Lender set forth opposite such Canadian Lender's name in
Schedule I under the heading "Counterpart Lender".
"Coverage Ratio": for any Adjustment Date the ratio of (a)
Consolidated Operating Profit for the four fiscal quarters most recently
ended to (b) Consolidated Interest Expense for the four fiscal quarters
most recently ended.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement designed to protect the U.S. Borrower or
any Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the U.S.
Borrower or any Subsidiary to any financial institution under any one or
more Currency Agreements.
"Default": any of the events specified in Section 16, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of
the United States of America.
"Domestic Loan Party": each Loan Party that is organized under the
laws of any jurisdiction of the United States.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Draft": a draft substantially in the form of Exhibit C or in such
other form as the Canadian Administrative Agent may from time to time
reasonably request (or to the extent the context shall require, an
Acceptance Note, delivered in lieu of a draft), as the same may be
amended, supplemented or otherwise modified from time to time.
"Environmental Complaint": any complaint, order, citation, notice
or other written communication from any Person with respect to the
existence or alleged existence of a violation of any Environmental Laws
or legal liability resulting from air emissions,
22
15
water discharges, noise emissions, Hazardous Material or any other
environmental, health or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority and any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of
conduct concerning pollution or protection of the environment or the
Release or threatened Release of Hazardous Materials, as now or hereafter
in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Liabilities": at any time, the aggregate of the rates
(expressed as a decimal fraction) of any reserve requirements in effect
at such time (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board or
other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board) maintained by a member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period
pertaining to a Multicurrency Loan, the Eurocurrency Rate determined for
such Interest Period and the Available Foreign Currency in which such
Multicurrency Loan is denominated in the manner set forth in the
Administrative Schedule.
"Eurodollar Loans": U.S. Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period pertaining
to a Eurodollar Loan, the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the respective rates notified to
the General Administrative Agent by each of the
U.S. Reference Lenders as the rate at which such U.S. Reference Lender is
offered Dollar deposits at or about 10:00 a.m., New York City time, two
Business Days prior to the beginning of such Interest Period,
(a) in the interbank eurodollar market where the eurodollar
and foreign currency exchange operations in respect of its
Eurodollar Loans then are being conducted,
(b) for delivery on the first day of such Interest Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
23
16
"Event of Default": any of the events specified in Section 16,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Exchange Rate": with respect to Canadian Dollars on any date, the
Bank of Canada noon spot rate on such date, and with respect to any other
non-U.S. Dollar currency on any date, the rate at which such currency may
be exchanged into U.S. Dollars, as set forth on such date on the relevant
Reuters currency page at or about 11:00 A.M., London time, on such date.
In the event that such rate does not appear on any Reuters currency page,
the "Exchange Rate" with respect to such non-U.S. Dollar currency shall
be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the General
Administrative Agent and the U.S. Borrower or, in the absence of such
agreement, such "Exchange Rate" shall instead be the General
Administrative Agent's spot rate of exchange in the interbank market
where its foreign currency exchange operations in respect of such
non-U.S. Dollar currency are then being conducted, at or about 10:00
A.M., local time, on such date for the purchase of U.S. Dollars with such
non-U.S. Dollar currency, for delivery two Business Days later; provided,
that if at the time of any such determination, no such spot rate can
reasonably be quoted, the General Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
"Existing Credit Agreements": as defined in the recitals hereto.
"Existing Lenders": as defined in the recitals hereto.
"Existing Letters of Credit": as defined in subsection 9.1(b).
"Extension of Credit": as to any Lender, the making of a Loan by
such Lender, the acceptance of a Draft or an Acceptance Note by such
Lender or the issuance of any Letter of Credit. It is expressly
understood and agreed that the following do not constitute Extensions of
Credit for purposes of this Agreement: (a) the conversions and
continuations of U.S. Revolving Credit Loans as or to Eurodollar Loans or
ABR Loans pursuant to subsection 10.2, (b) the substitution of maturing
Acceptances with new Acceptances, (c) the conversion of Acceptances to
Canadian Revolving Credit Loans, (d) the conversion of Canadian Revolving
Credit Loans to Acceptances, (e) the continuation of Multicurrency Loans
for additional Interest Periods and (f) the continuation of Alternate
Currency Loans for additional interest periods.
"Facility Fee Rate": at any time, the rate per annum set forth
below opposite the Level of Coverage Ratio most recently determined:
24
17
Level of Facility
Coverage Ratio Fee Rate
-------------- --------
Level I:
Coverage Ratio is
less than 4.0 to 1 0.250%
Level II:
Coverage Ratio is
equal to or greater than 4.0 to 1
but less than 5.0 to 1 0.225%
Level III:
Coverage Ratio is
equal to or greater than 5.0 to 1
but less than 6.0 to 1 0.175%
Level IV:
Coverage Ratio is
greater than or equal to 6.0 to 1 0.150%;
provided that (a) the Facility Fee Rate shall be that set forth above
opposite Level III from the Closing Date until the first Adjustment Date
occurring after the Closing Date, (b) the Facility Fee Rate determined
for any Adjustment Date shall remain in effect until a subsequent
Adjustment Date for which the Coverage Ratio falls within a different
Level, and (c) if the financial statements and related compliance
certificate for any fiscal period are not delivered by the date due
pursuant to subsections 13.1 and 13.2(b), the Facility Fee Rate shall be
(i) for the first 5 days subsequent to such due date, that in effect on
the day prior to such due date, and (ii) thereafter, that set forth above
opposite Level I, in either case, until the subsequent Adjustment Date;
and provided, further, if Investment Grade Status is attained, the
Facility Fee Rate will be .125% per annum so long as Investment Grade
Status is maintained.
"Federal Funds Effective Rate": for any day, the weighted average
of the rates per annum on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for the day of such
transactions received by the General Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Financing Lease": (a) any lease of property, real or personal, the
obligations under which are capitalized on a consolidated balance sheet
of the U.S. Borrower and its Subsidiaries and (b) any other such lease to
the extent that the then present value of the
25
18
minimum rental commitment thereunder should, in accordance with GAAP, be
capitalized on a balance sheet of the lessee.
"First Lender": as defined in subsection 18.8(c).
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate (as
opposed to a rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Letter of Credit": a Letter of Credit whose beneficiary is
a Person which is directly or indirectly extending credit to a Foreign
Subsidiary.
"Foreign Subsidiaries": each of the Subsidiaries so designated on
Schedule VI and any Subsidiaries organized outside the United States
which are created after the effectiveness hereof.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule II as amended from time to time
in accordance with subsection 18.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agents and the
Lenders covering the matters set forth on Exhibit N, with such
assumptions, qualifications and deviations therefrom as the General
Administrative Agent shall approve (such approval not to be unreasonably
withheld).
"Funding Commitment Percentage": as at any date of determination
(after giving effect to the making and payment of any Loans made on such
date pursuant to subsection 2.5), with respect to any U.S. Lender, that
percentage which the Available U.S. Revolving Credit Commitment of such
U.S. Lender then constitutes of the Aggregate Available U.S. Revolving
Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Administrative Agent": Chase, together with its
affiliates, as arranger of the Commitments and as general administrative
agent for the Lenders under this Agreement and the other Loan Documents,
and any successor thereto appointed pursuant to subsection 17.9.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
26
19
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (d) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation shall be
deemed to be an amount equal to the value as of any date of determination
of the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made (unless such Guarantee
Obligation shall be expressly limited to a lesser amount, in which case
such lesser amount shall apply) or, if not stated or determinable, the
value as of any date of determination of the maximum reasonably
anticipated liability in respect thereof as determined by such Person in
good faith.
"Guarantor Supplement": a supplement to the Subsidiary Guarantee,
substantially in the form of Annex A to the Subsidiary Guarantee, whereby
a Subsidiary of the U.S. Borrower becomes a "Guarantor" under the
Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or regulated
as such in or under any Environmental Laws, including, without
limitation, asbestos, petroleum or petroleum products (including
gasoline, crude oil or any fraction thereof), polychlorinated biphenyls,
and urea-formaldehyde insulation, and any other substance the presence of
which may give rise to liability under any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) indebtedness for borrowed money or for
the deferred purchase price of property or services in respect of which
such Person is liable as obligor, (b) indebtedness secured by any Lien on
any property or asset owned or held by such Person regardless of whether
the indebtedness secured thereby shall have been assumed by or is a
primary liability of such Person, (c) obligations of such Person under
Financing Leases, (d) the face amount of all letters of credit issued for
the account of such person and, without duplication, the unreimbursed
amount of all drafts drawn thereunder and (e) obligations (in the nature
of principal or interest) of such Person in respect of acceptances or
similar obligations issued or created for the account of such Person; but
excluding (i) trade and other accounts payable in the ordinary course of
business in accordance with customary trade terms and which are not
overdue for more than 120 days or, if overdue for more
27
20
than 120 days, as to which a dispute exists and adequate reserves in
conformity with GAAP have been established on the books of such Person,
(ii) deferred compensation obligations to employees and (iii) any
obligations otherwise constituting Indebtedness the payment of which such
Person has provided for pursuant to the terms of such Indebtedness or any
agreement or instrument pursuant to which such Indebtedness was incurred,
by the irrevocable deposit in trust of an amount of funds or a principal
amount of securities, which deposit is sufficient, either by itself or
taking into account the accrual of interest thereon, to pay the principal
of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued for the
benefit of the U.S. Borrower or its Subsidiaries and in respect of which
the U.S. Borrower or its Subsidiaries will be the source of repayment,
provided that such financings (including, without limitation, the
indenture related thereto) shall be in form and substance reasonably
satisfactory to the Issuing Lender that issues a Letter of Credit backing
such Industrial Revenue Bonds.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan and any Prime Rate
Loan, the last day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period of three months or less, the
last day of such Interest Period and (c) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period longer than three months,
(i) each day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and (ii) the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter,
and if deposits in the relevant currency for such longer Interest Periods
are available to all relevant Lenders (as determined by such Lenders),
nine or twelve months thereafter, as selected by the relevant Borrower in
its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter,
and if deposits in the relevant currency for such longer Interest Periods
are available to all relevant Lenders (as determined by such Lenders),
nine or twelve months thereafter, as selected by the relevant Borrower by
irrevocable notice to the General Administrative Agent not less than
three Business Days prior to the last day of the then current Interest
Period with respect thereto;
28
21
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan or
Multicurrency Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan or
Multicurrency Loan that would otherwise extend beyond the Revolving
Credit Termination Date shall end on the Revolving Credit
Termination Date; and
(iii) any Interest Period pertaining to a Eurodollar Loan or
Multicurrency Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate swap or other interest rate hedge arrangement (other than
any interest rate cap or other similar agreement or arrangement pursuant
to which the U.S. Borrower has no credit exposure), to or under which the
U.S. Borrower or any of its Subsidiaries is a party or a beneficiary.
"Interest Rate Agreement Obligations": all obligations of the U.S.
Borrower or any Subsidiary to any financial institution under any one or
more Interest Rate Agreements.
"Investment Grade Status": shall exist at any time when the actual
or implied rating of the U.S. Borrower's senior long-term unsecured debt
is at or above BBB- from S&P and Baa3 from Moody's; if either of S&P or
▇▇▇▇▇'▇ shall change its system of classifications after the date of this
Agreement, Investment Grade Status shall exist at any time when the
actual or implied rating of the U.S. Borrower's senior long-term
unsecured debt is at or above the new rating which most closely
corresponds to the above-specified level under the previous rating
system.
"Issuing Lender": Chase (or Chase Delaware), in its capacity as
issuer of the Letters of Credit and any other U.S. Lender which the U.S.
Borrower, the General Administrative Agent and the Majority U.S. Lenders
shall have approved, in its capacity as issuer of the Letters of Credit.
"Judgment Currency": as defined in subsection 18.19(b).
"Lead Managers": as defined in the preamble hereto.
29
22
"▇▇▇▇ Italia": the collective reference to each direct Foreign
Subsidiary, organized under the laws of Italy, of the U.S. Borrower or
any Subsidiary party to the Subsidiary Guarantee.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date without
compliance with subsection 18.6(c).
"Letter of Credit Applications": (a) in the case of Standby Letters
of Credit, a letter of credit application for a Standby Letter of Credit
on the standard form of the applicable Issuing Lender for standby letters
of credit, and (b) in the case of Commercial Letters of Credit, a letter
of credit application for a Commercial Letter of Credit on the standard
form of the applicable Issuing Lender for commercial letters of credit.
"Letter of Credit Obligations": at any particular time, all
liabilities of the U.S. Borrower and any Subsidiary with respect to
Letters of Credit, whether or not any such liability is contingent,
including (without duplication) the sum of (a) the aggregate undrawn face
amount of all Letters of Credit then outstanding plus (b) the aggregate
amount of all unpaid Reimbursement Obligations and Subsidiary
Reimbursement Obligations.
"Letter of Credit Participation Certificate": a participation
certificate in the form customarily used by the Issuing Lender for such
purpose at the time such certificate is issued.
"Letters of Credit": as defined in subsection 9.1(a).
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the London
interbank offered rate for deposits in Dollars for the period commencing
on the date of such CAF Advance and ending on the CAF Advance Maturity
Date with respect thereto which appears on Telerate Page 3750 as of 11:00
A.M., London time, two Business Days prior to the beginning of such
period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to
the LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement or any Financing Lease having
substantially the same economic effect as any of the foregoing).
30
23
"Loan Documents": the collective reference to this Agreement, any
Notes, the Drafts, the Acceptances, the Acceptance Notes, any documents
or instruments evidencing or governing any Alternate Currency Facility
and the Security Documents.
"Loan Parties": the collective reference to the Borrowers, each
guarantor or grantor party to any Security Document and each issuer of
pledged stock under each Pledge Agreement.
"Loans": the collective reference to the Revolving Credit Loans,
the Swing Line Loans, the CAF Advances, the Multicurrency Loans and the
Alternate Currency Loans.
"Loans to be Converted": as defined in subsection 18.8(a).
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Canadian Lenders": at any time, Canadian Lenders whose
Canadian Revolving Credit Commitment Percentages aggregate more than 50%.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, the Majority U.S. Lenders; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders; provided that for purposes
of this definition the Aggregate Total Outstandings of each Lender shall
be adjusted up or down so as to give effect to any participations
purchased or sold pursuant to subsection 18.8.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders whose Multicurrency Commitment Percentages aggregate more than
50%.
"Majority U.S. Lenders": at any time, U.S. Lenders whose U.S.
Revolving Credit Commitment Percentages aggregate more than 50%.
"Managing Agents": as defined in the preamble hereto.
"Material Subsidiary": each Loan Party and any other Subsidiary
which (a) for the most recent fiscal year of the U.S. Borrower accounted
for more than 10% of Consolidated Revenues or (b) as of the end of such
fiscal year, was the owner of more than 10% of Consolidated Assets, all
as shown on the consolidated financial statements of the U.S. Borrower
for such fiscal year.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to the U.S. Borrower or
Foreign Subsidiary Borrowers in an aggregate amount in Available Foreign
Currencies of which the U.S.
31
24
Dollar Equivalent does not exceed at any time outstanding the lesser of
(a) the amount set forth opposite such Multicurrency Lender's name in
Schedule I under the heading "Multicurrency Commitment", and (b) the U.S.
Revolving Credit Commitment of such Multicurrency Lender, in each case as
such amount may be reduced from time to time as provided in subsection
7.4 and the other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment then constitutes of the aggregate Multicurrency
Commitments (or, if the Multicurrency Commitments have terminated or
expired, the percentage which (a) the U.S. Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Multicurrency Lender at such
time constitutes of (b) the U.S. Dollar Equivalent of the Aggregate
Multicurrency Outstandings of all Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having an amount greater than
zero set forth opposite such Lender's name in Schedule I under the
heading "Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 7.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": shall mean the gross proceeds received by the U.S.
Borrower or any Subsidiary from a sale or other disposition of any asset
of the U.S. Borrower or such Subsidiary less (a) all reasonable fees,
commissions and other out-of-pocket expenses incurred by the U.S.
Borrower or such Subsidiary in connection therewith, (b) Federal, state,
local and foreign taxes assessed in connection therewith and (c) the
principal amount, accrued interest and any related prepayment fees of any
Indebtedness (other than the Loans) which is secured by any such asset
and which is required to be repaid in connection with the sale thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as of
July 1, 1996, between the U.S. Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 14.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of the
U.S. Borrower due 2006, issued pursuant to the 9 1/2% Subordinated Note
Indenture.
"1995 Agreement": as defined in the recitals hereto.
"1995 Lenders": as defined in the recitals hereto.
"1996 Agreement": as defined in the recitals hereto.
32
25
"1996 Lenders": as defined in the recitals hereto.
"Non-Canadian Lender": each U.S. Lender which is not a U.S. Common
Lender.
"Non-Multicurrency Lender": each U.S. Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to the U.S. Revolving Credit
Notes and the Canadian Revolving Credit Notes.
"Notice of Alternate Currency Outstandings": with respect to each
Alternate Currency Facility Agent, a notice from such Alternate Currency
Facility Agent containing the information, delivered to the Person, in
the manner and by the time, specified for a Notice of Alternate Currency
Outstandings in the Administrative Schedule.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on
its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Borrowing in
respect of the currency of such Loan in the Administrative Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on
its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Continuation in
respect of the currency of such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and interest
on the Loans, the Reimbursement Obligations, the Subsidiary Reimbursement
Obligations, Interest Rate Agreement Obligations to any Lender, Currency
Agreement Obligations to any Lender and all other obligations and
liabilities (including, with respect to the Canadian Borrower, Acceptance
Reimbursement Obligations) of (a) the U.S. Borrower under or in
connection with this Agreement (including, without limitation, the
obligations under Section 15 hereof) and the other Loan Documents, (b)
the Canadian Borrower under this Agreement and the other Loan Documents,
(c) each Foreign Subsidiary Borrower under this Agreement and the other
Loan Documents and (d) each Alternate Currency Borrower under any
Alternate Currency Facility to which it is a party and under this Loan
Agreement and the other Loan Documents (including, without limitation,
interest accruing at the then applicable rate provided in this Agreement
or any other applicable Loan Document after the maturity of the Loans and
interest accruing at the then applicable rate provided in this Agreement
or any other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the U.S. Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter
33
26
incurred, which may arise under, out of, or in connection with, this
Agreement, the Notes, the Acceptances, the Acceptance Notes, the Letters
of Credit, the Letter of Credit Applications, the other Loan Documents or
any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to the
Administrative Agents or to the Lenders that are required to be paid by
any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Other Lender": as defined in subsection 18.8(c).
"Participants": as defined in subsection 18.6(b).
"Participating Interest": with respect to any Letter of Credit (A)
in the case of the Issuing Lender with respect thereto, its interest in
such Letter of Credit and any Letter of Credit Application relating
thereto after giving effect to the granting of any participating
interests therein pursuant hereto and (b) in the case of each
Participating Lender, its undivided participating interest in such Letter
of Credit and any Letter of Credit Application relating thereto.
"Participating Lender": any U.S. Lender (other than the Issuing
Lender) with respect to its Participating Interest in a Letter of Credit.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the U.S. Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or
similar agreement that may be delivered to the General Administrative
Agent as collateral security for any or all of the Obligations of the
U.S. Borrower, in each case as such Pledge Agreements or similar
agreements may be amended, supplemented or otherwise modified from time
to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Powers of Attorney": as defined in subsection 6.2(b).
34
27
"Prime Rate": at any day, the greater on such day of (a) the rate
per annum announced by the Canadian Administrative Agent from time to
time (and in effect on such day) as its prime rate for Canadian Dollar
commercial loans made in Canada, as adjusted automatically from time to
time and without notice to any of the Borrowers upon change by the
Canadian Administrative Agent, and (b) 1% above the CDOR Rate from time
to time (and in effect on such day), as advised by the Canadian
Administrative Agent to the Canadian Borrower from time to time pursuant
hereto. The Prime Rate is not intended to be the lowest rate of interest
charged by the Canadian Administrative Agent in connection with
extensions of credit in Canadian Dollars to debtors.
"Prime Rate Loans": all Canadian Revolving Credit Loans denominated
in Canadian Dollars, which shall bear interest at a rate based upon the
Prime Rate.
"Property": each parcel of real property owned or operated by the
U.S. Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 11.16.
"Qualified Credit Facility": a credit facility (a) providing for
one or more Alternate Currency Lenders to make loans denominated in an
Alternate Currency to one or more Alternate Currency Borrowers, (b)
providing for such loans to bear interest at a rate or rates determined
by the U.S. Borrower and such Alternate Currency Lender or Alternate
Currency Lenders and (c) otherwise conforming to the requirements of
Section 8.
"Quotation Day": in respect of the determination of the
Eurocurrency Rate for any Interest Period for Multicurrency Loans in any
Available Foreign Currency, the day on which quotations would ordinarily
be given by prime banks in the London interbank market (or, if such
Available Foreign Currency is Sterling, in the Paris interbank market)
for deposits in such Available Foreign Currency for delivery on the first
day of such Interest Period; provided, that if quotations would
ordinarily be given on more than one date, the Quotation Day for such
Interest Period shall be the last of such dates. On the date hereof, the
Quotation Day in respect of any Interest Period for any Available Foreign
Currency is customarily the last London Banking Day prior to the
beginning of such Interest Period which is (a) at least two London
Banking Days prior to the beginning of such Interest Period and (b) a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of issue of such Available
Foreign Currency (and, in the case of Sterling, in Paris).
"Receivable Financing Transaction": any transaction or series of
transactions involving a sale for cash of accounts receivable, without
recourse based upon the collectibility of the receivables sold, by the
U.S. Borrower or any of its Subsidiaries to a Special Purpose Subsidiary
and a subsequent sale or pledge of such accounts receivable (or an
interest therein) by such Special Purpose Subsidiary, in each case
without any guarantee by the U.S. Borrower or any of its Subsidiaries
(other than the Special Purpose Subsidiary).
35
28
"Reference Discount Rate": on any date with respect to each Draft
requested to be accepted by a Canadian Lender, (a) if such Canadian
Lender is a Schedule I Canadian Lender, the arithmetic average of the
discount rates (expressed as a percentage calculated on the basis of a
year of 365 days) quoted by the Toronto offices of each of the Schedule I
Canadian Reference Lenders, at 10:00 A.M. (Toronto time) on the Borrowing
Date as the discount rate at which each such Schedule I Canadian
Reference Lender would, in the normal course of its business, purchase on
such date Acceptances having an aggregate face amount and term to
maturity as designated by the Canadian Borrower pursuant to Section 6.2
and (b) if such Canadian Lender is a Schedule II Canadian Lender, the
arithmetic average of the discount rates (expressed as a percentage
calculated on the basis of a year of 365 days) quoted by the Toronto
offices of each of the Schedule II Canadian Reference Lenders, at 10:00
A.M. (Toronto time) on the Borrowing Date as the discount rate at which
each such Schedule II Canadian Reference Lender would, in the normal
course of its business, purchase on such date Acceptances having an
aggregate face amount and term to maturity as designated by the Canadian
Borrower pursuant to subsection 6.2. The Canadian Administrative Agent
shall advise the Canadian Borrower and the Canadian Lenders, either in
writing or verbally, by 11:00 A.M. (Toronto time) on the Borrowing Date
as to the applicable Reference Discount Rate and corresponding
Acceptance Purchase Price in respect of Acceptances having the maturities
selected by the Canadian Borrower for such Borrowing Date.
Notwithstanding the foregoing, the Canadian Borrower, the Canadian
Administrative Agent and the Canadian Lenders, may agree upon alternative
methods of determining the Reference Discount Rate from time to time.
"Register": as defined in subsection 18.6(d).
"Reimbursement Obligation": the obligation of the U.S. Borrower to
reimburse the Issuing Lender in accordance with the terms of this
Agreement and the related Letter of Credit Application for any payment
made by the Issuing Lender under any Letter of Credit.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, escaping, leaking, dumping, disposing, spreading,
depositing or dispersing of any Hazardous Materials in, unto or onto the
environment.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice
period is waived under any of subsections .13, .14, .16, .18, .19 or .20
of PBGC Reg. Section 4043 or any successor regulation thereto.
"Requested Acceptances": as defined in subsection 2.5(a).
"Requested Alternate Currency Loans": as defined in subsection
2.5(c).
36
29
"Requested Canadian Revolving Credit Loans": as defined in
subsection 2.5(a).
"Requested Multicurrency Loans": as defined in subsection 2.5(b).
"Request for Acceptances": as defined in subsection 6.2(a).
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such Person,
and any law, treaty, rule or regulation or determination of an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person
or any of its property is subject, and (b) any property, any law, treaty,
rule, regulation, requirement, judgment, decree or determination of any
Governmental Authority applicable to or binding upon such property or to
which such property is subject, including, without limitation, any
Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the chief
executive officer, the president, the chief financial officer, any vice
president, the treasurer or the assistant treasurer of such Loan Party.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to but not including the Revolving Credit Termination
Date, or such earlier date on which the Revolving Credit Commitments
shall terminate as provided herein.
"Revolving Credit Commitments": the collective reference to the
U.S. Revolving Credit Commitments and the Canadian Revolving Credit
Commitments.
"Revolving Credit Loans": the collective reference to the U.S.
Revolving Credit Loans and the Canadian Revolving Credit Loans; each,
individually, a "Revolving Credit Loan".
"Revolving Credit Termination Date": September 30, 2001.
"Schedule I Canadian Lender": each Canadian Lender listed on
Schedule I to the Bank Act (Canada).
"Schedule I Canadian Reference Lenders": The Bank of Nova Scotia,
Bank of Montreal, Canadian Imperial Bank of Commerce and Royal Bank of
Canada.
"Schedule II Canadian Lender": each Canadian Lender which is not a
Schedule I Canadian Lender.
"Schedule II Canadian Reference Lenders": one or more Schedule II
Canadian Lenders selected by the U.S. Borrower with the consent of all
the Schedule II Canadian Lenders.
37
30
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee, the Additional Subsidiary Guarantee
and each other guarantee, security document or similar agreement that may
be delivered to the General Administrative Agent as collateral security
for any or all of the Obligations, in each case as amended, supplemented
or otherwise modified from time to time.
"Senior Subordinated Note Indenture": the Indenture, dated as of
July 15, 1992, between the U.S. Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 14.10.
"Senior Subordinated Notes": the 11 1/4% Senior Subordinated Notes
of the U.S. Borrower due 2000, issued pursuant to the Senior Subordinated
Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor thereto.
"Special Affiliate": any Affiliate of the U.S. Borrower (a) as to
which the U.S. Borrower holds, directly or indirectly, (i) power to vote
20% or more of the securities having ordinary voting power for the
election of directors of such Affiliate or (ii) a 20% ownership interest
in such Affiliate and (b) which is engaged in business of the same or
related general type as now being conducted by the U.S. Borrower and its
Subsidiaries.
"Special Entity": any Person which is engaged in business of the
same or related general type as now being conducted by the U.S. Borrower
and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of the
U.S. Borrower created by the U.S. Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
"Standby Letters of Credit": as defined in subsection 9.1(a).
"Subordinated Debt": any obligations (for principal, interest or
otherwise) evidenced by or arising under or in respect of the
Subordinated Notes, the Subordinated Note Indenture, the 9 1/2%
Subordinated Notes, the 9 1/2% Note Indenture, the Senior Subordinated
Notes and the Senior Subordinated Note Indenture and any other covenant,
instrument or agreement of subordinated Indebtedness issued or entered
into pursuant to subsection 14.10.
"Subordinated Note Indenture": the Indenture, dated as of February
1, 1994, between the U.S. Borrower and State Street Bank and Trust
Company (as successor to The First National Bank of Boston), as trustee,
as the same may be amended,
38
31
supplemented or otherwise modified from time to time in accordance with
subsection 14.10.
"Subordinated Notes": the 8-1/4% Subordinated Notes of the U.S.
Borrower due 2002, issued pursuant to the Subordinated Note Indenture.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly,
through one or more intermediaries, or both, by such Person (exclusive of
any Affiliate in which such Person has a minority ownership interest).
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the U.S. Borrower.
"Subsidiary Guarantee": the Second Amended and Restated Subsidiary
Guarantee, dated as of the date hereof, made by certain Subsidiaries of
the U.S. Borrower in favor of the General Administrative Agent,
substantially in the form of Exhibit O, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiary Reimbursement Obligation": the obligation of any
Subsidiary to reimburse the Issuing Lender in accordance with the terms
of this Agreement and the related Letter of Credit Application for any
payment made by the Issuing Lender under any Letter of Credit.
"Swing Line Commitment": as to the Swing Line Lender, in its
capacity as a Swing Line Lender, its obligation to make Swing Line Loans
to the U.S. Borrower in an aggregate principal amount not to exceed, at
any one time outstanding $100,000,000.
"Swing Line Lender": Chase, in its capacity as provider of the
Swing Line Loans.
"Swing Line Loans" and "Swing Line Loan": as defined in subsection
3.1.
"Tax Act": the Income Tax Act (Canada), as amended from time to
time.
"Taxes": as defined in subsection 10.12(a).
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later date (whether
or not such Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 18.6(f).
39
32
"Type": as to any U.S. Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan, and as to any Canadian Revolving Credit Loan,
its nature as a Canadian Base Rate Loan or a Prime Rate Loan.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Common Lender": each U.S. Lender which has a Counterpart
Lender.
"U.S. Dollar Equivalent": with respect to an amount denominated in
any currency other than U.S. Dollars, the equivalent in U.S. Dollars of
such amount determined at the Exchange Rate on the date of determination
of such equivalent. In making any determination of the U.S. Dollar
Equivalent for purposes of calculating the amount of Loans to be borrowed
from, or the face amount of Acceptances to be created by, the respective
Lenders on any Borrowing Date, the General Administrative Agent or the
Canadian Administrative Agent, as the case may be, shall use the relevant
Exchange Rate in effect on the date on which the interest rate for such
Loans or the Acceptance Purchase Price for such Acceptances, as the case
may be, is determined pursuant to the provisions of this Agreement and
the other Loan Documents.
"U.S. Lenders": the Lenders listed in Part A of Schedule I hereto.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the General Administrative Agent as its
prime rate in effect at its principal office in New York City. The U.S.
Prime Rate is not intended to be the lowest rate of interest charged by
the General Administrative Agent in connection with extensions of credit
to borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"U.S. Revolving Credit Commitment": as to any U.S. Lender at any
time, its obligation to make U.S. Revolving Credit Loans to, and/or
participate in Swing Line Loans made to and Letters of Credit issued for
the account of, the U.S. Borrower and its Subsidiaries in an aggregate
amount not to exceed at any time outstanding the U.S. Dollar amount set
forth opposite such U.S. Lender's name in Schedule I under the heading
"U.S. Revolving Credit Commitment", as such amount may be reduced from
time to time pursuant to subsection 2.4 and the other applicable
provisions hereof.
"U.S. Revolving Credit Commitment Percentage": as to any U.S.
Lender at any time, the percentage which such U.S. Lender's U.S.
Revolving Credit Commitment then constitutes of the aggregate U.S.
Revolving Credit Commitments of all U.S. Lenders (or, if the U.S.
Revolving Credit Commitments have terminated or expired, the percentage
which (a) the Aggregate U.S. Revolving Credit Outstandings of such U.S.
Lender at such time then constitutes of (b) the Aggregate U.S. Revolving
Credit Outstandings of all U.S. Lenders at such time).
40
33
"U.S. Revolving Credit Lender": each U.S. Lender having an amount
greater than zero set forth under the heading "U.S. Revolving Credit
Commitment" opposite its name on Schedule I.
"U.S. Revolving Credit Loan": as defined in subsection 2.1.
"U.S. Revolving Credit Note": as defined in subsection 2.2(e).
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital stock
or other ownership interests of such corporation, partnership or other
entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by such
Person; provided, however, that so long as the U.S. Borrower owns,
directly or indirectly, more than 95% of the capital stock of ▇▇▇▇
Italia, ▇▇▇▇ Italia shall be deemed a Wholly Owned Subsidiary of the U.S.
Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan Document,
and any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms relating to the U.S. Borrower and its Subsidiaries
not defined in subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT
COMMITMENTS
2.1 U.S. Revolving Credit Commitments. (a) Subject to the terms
and conditions hereof, each U.S. Lender severally agrees to make revolving
credit loans (each, a "U.S. Revolving Credit Loan") in U.S. Dollars to
the U.S. Borrower from time to time during the Revolving Credit Commitment
Period so long as after giving effect thereto (i) the Available U.S. Revolving
Credit Commitment of each U.S. Lender is greater than or equal to zero and (ii)
the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
U.S. Revolving Credit
41
34
Commitments. During the Revolving Credit Commitment Period the U.S. Borrower
may use the U.S. Revolving Credit Commitments by borrowing, prepaying the U.S.
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) The U.S. Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the General Administrative Agent in
accordance with subsections 2.3 and 10.2, provided that no U.S. Revolving
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
2.2 Repayment of U.S. Revolving Credit Loans; Evidence of Debt.
(a) The U.S. Borrower hereby unconditionally promises to pay to the
General Administrative Agent for the account of each U.S. Lender the then
unpaid principal amount of each U.S. Revolving Credit Loan of such U.S. Lender
(whether made before or after the termination or expiration of the U.S.
Revolving Credit Commitments) on the Revolving Credit Termination Date and on
such other date(s) and in such other amounts as may be required from time to
time pursuant to this Agreement. The U.S. Borrower hereby further agrees to
pay interest on the unpaid principal amount of the U.S. Revolving Credit Loans
from time to time outstanding until payment thereof in full at the rates per
annum, and on the dates, set forth in subsection 10.1.
(b) Each U.S. Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower
to such U.S. Lender resulting from each U.S. Revolving Credit Loan of such U.S.
Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such U.S. Lender from time to time under this
Agreement.
(c) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
18.6(d), and a subaccount therein for each U.S. Lender, in which shall be
recorded (i) the date and amount of each U.S. Revolving Credit Loan made
hereunder, the Type thereof and each Interest Period applicable thereto, (ii)
the date of each continuation thereof pursuant to subsection 10.2, (iii) the
date of each conversion of all or a portion thereof to another Type pursuant to
subsection 10.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each U.S. Lender
hereunder in respect of the U.S. Revolving Credit Loans and (v) both the date
and amount of any sum received by the General Administrative Agent hereunder
from the U.S. Borrower in respect of the U.S. Revolving Credit Loans and each
U.S. Lender's share thereof.
(d) The entries made in the Register and the accounts of each U.S.
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of
the obligations of the U.S. Borrower therein recorded; provided, however, that
the failure of any U.S. Lender or the Administrative Agents to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligations of the U.S. Borrower to repay (with applicable interest)
the U.S. Revolving Credit Loans made to the U.S. Borrower by such U.S. Lender
in accordance with the terms of this Agreement.
42
35
(e) The U.S. Borrower agrees that, upon the request to the General
Administrative Agent by any U.S. Lender, the U.S. Borrower will execute and
deliver to such U.S. Lender a promissory note of the U.S. Borrower evidencing
the Revolving Credit Loans of such U.S. Lender, substantially in the form of
Exhibit A with appropriate insertions as to date and principal amount (each, a
"U.S. Revolving Credit Note"); provided, that the delivery of such U.S.
Revolving Credit Notes shall not be a condition precedent to the Closing Date.
2.3 Procedure for U.S. Revolving Credit Borrowing. The U.S.
Borrower may borrow under the U.S. Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that
the U.S. Borrower shall give the General Administrative Agent irrevocable
notice (which notice must be received by the General Administrative Agent prior
to 12:00 Noon, New York City time, at least (a) three Business Days prior to
the requested Borrowing Date, if all or any part of the requested U.S.
Revolving Credit Loans are to be initially Eurodollar Loans, or (b) one
Business Day prior to the requested Borrowing Date, otherwise), specifying in
each case (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the amount of such Type of Loan and the length of the initial
Interest Period therefor. Each borrowing under the U.S. Revolving Credit
Commitments (other than a borrowing under subsection 2.5, subsection 3.4 or to
pay a like amount of Reimbursement Obligations or Subsidiary Reimbursement
Obligations) shall be in an amount equal to (A) in the case of ABR Loans,
except any ABR Loan made pursuant to subsection 3.4, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then Aggregate Available
U.S. Revolving Credit Commitments are less than $10,000,000, such lesser
amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the U.S. Borrower, the General Administrative Agent shall promptly notify each
U.S. Lender and the Canadian Administrative Agent thereof. Not later than
12:00 Noon, New York City time, on each requested Borrowing Date each U.S.
Lender shall make an amount equal to its Funding Commitment Percentage of the
principal amount of the U.S. Revolving Credit Loans requested to be made on
such Borrowing Date available to the General Administrative Agent at its office
specified in subsection 18.2 in U.S. Dollars and in immediately available
funds. Except as otherwise provided in subsection 2.5 or 3.4, the General
Administrative Agent shall on such date credit the account of the U.S. Borrower
on the books of such office with the aggregate of the amounts made available to
the General Administrative Agent by the U.S. Lenders and in like funds as
received by the General Administrative Agent.
2.4 Termination or Reduction of U.S. Revolving Credit Commitments.
The U.S. Borrower shall have the right, upon not less than five Business Days'
notice to the General Administrative Agent, to terminate the U.S.
Revolving Credit Commitments or, from time to time, to reduce the amount of the
U.S. Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the Available U.S.
Revolving Credit Commitment or Available Multicurrency Commitment of any U.S.
Lender, or the Available Canadian Revolving Credit Commitment of any Canadian
Lender, would not be greater than or equal to zero. Any such reduction shall
be in an amount equal to $2,500,000 or a whole multiple
43
36
of $500,000 in excess thereof and shall reduce permanently the U.S. Revolving
Credit Commitments then in effect.
2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of Loans.
(a) If on any Borrowing Date on which the Canadian Borrower has requested the
Canadian Lenders to make Canadian Revolving Credit Loans (the "Requested
Canadian Revolving Credit Loans") or to create Acceptances (the "Requested
Acceptances"), (i) the sum of (A) the principal amount of the Requested
Canadian Revolving Credit Loans to be made by any Canadian Lender and (B) the
aggregate undiscounted face amount of the Requested Acceptances to be created
by such Canadian Lender exceeds the Available Canadian Revolving Credit
Commitment of such Canadian Lender on such Borrowing Date (before giving effect
to the making and payment of any Loans required to be made pursuant to this
subsection 2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent of
the amount of such excess is less than or equal to the aggregate Available U.S.
Revolving Credit Commitments of all Non-Canadian Lenders (before giving effect
to the making and payment of any Loans pursuant to this subsection 2.5 on such
Borrowing Date), each Non-Canadian Lender shall make a U.S. Revolving Credit
Loan to the U.S. Borrower on such Borrowing Date, and the proceeds of such U.S.
Revolving Credit Loans shall be simultaneously applied to repay outstanding
U.S. Revolving Credit Loans, Multicurrency Loans and/or Alternate Currency
Loans of the U.S. Common Lenders (as directed by the U.S. Borrower) in each
case in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the borrowing from the Canadian Lenders of the Requested
Canadian Revolving Credit Loans or the creation by the Canadian Lenders of the
Requested Acceptances, the Committed Outstandings Percentage of each U.S.
Lender will equal (as nearly as possible) its U.S. Revolving Credit Commitment
Percentage. To effect such borrowings and repayments, (x) not later than 12:00
Noon, New York City time, on such Borrowing Date, the proceeds of such U.S.
Revolving Credit Loans shall be made available by each Non-Canadian Lender to
the General Administrative Agent at its office specified in subsection 18.2 in
U.S. Dollars and in immediately available funds and the General Administrative
Agent shall apply the proceeds of such U.S. Revolving Credit Loans toward
repayment of outstanding U.S. Revolving Credit Loans, Multicurrency Loans
and/or Alternate Currency Loans of the U.S. Common Lenders (as directed by the
U.S. Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Canadian Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Canadian Revolving Credit
Loans (or create the Requested Acceptances) in an aggregate amount equal to the
amount so requested by the Canadian Borrower (but not in any event greater than
the Aggregate Available Canadian Revolving Credit Commitments after giving
effect to the making of such repayment of any Loans on such Borrowing Date) and
(II) the relevant Borrower shall pay to the General Administrative Agent for
the account of the Lenders whose Loans to such Borrower are repaid on such
Borrowing Date pursuant to this subsection 2.5 all interest accrued on the
amounts repaid to the date of repayment, together with any amounts payable
pursuant to subsection 10.11 in connection with such repayment.
(b) If on any Borrowing Date on which a Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the principal amount of the Requested Multicurrency Loans to be
made by any Multicurrency Lender exceeds the Available Multicurrency Commitment
of such Multicurrency Lender on such
44
37
Borrowing Date (before giving effect to the making and payment of any Loans
required to be made pursuant to this subsection 2.5 on such Borrowing Date) and
(ii) the U.S. Dollar Equivalent of the amount of such excess is less than or
equal to the aggregate Available U.S. Revolving Credit Commitments of all
Non-Multicurrency Lenders (before giving effect to the making and payment of
any Loans pursuant to this subsection 2.5 on such Borrowing Date), each
Non-Multicurrency Lender shall make a U.S. Revolving Credit Loan to the U.S.
Borrower on such Borrowing Date, and the proceeds of such U.S. Revolving Credit
Loans shall be simultaneously applied to repay outstanding U.S. Revolving
Credit Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of the Multicurrency Lenders or their Counterpart
Lenders (as directed by the U.S. Borrower) in each case in amounts such that,
after giving effect to (1) such borrowings and repayments and (2) the borrowing
from the Multicurrency Lenders of the Requested Multicurrency Loans, the
Committed Outstandings Percentage of each U.S. Lender will equal (as nearly as
possible) its U.S. Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time,
on such Borrowing Date, the proceeds of such U.S. Revolving Credit Loans shall
be made available by each Non-Multicurrency Lender to the General
Administrative Agent at its office specified in subsection 18.2 in U.S. Dollars
and in immediately available funds and the General Administrative Agent shall
apply the proceeds of such U.S. Revolving Credit Loans toward repayment of
outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans,
Multicurrency Loans and/or Alternate Currency Loans of the Multicurrency
Lenders or their Counterpart Lenders (as directed by the U.S. Borrower) and (y)
concurrently with the repayment of such Loans on such Borrowing Date, (I) the
Multicurrency Lenders shall, in accordance with the applicable provisions
hereof, make the Requested Multicurrency Loans in an aggregate amount equal to
the amount so requested by such Borrower (but not in any event greater than the
Aggregate Available Multicurrency Commitments after giving effect to the making
of such repayment of any Loans on such Borrowing Date) and (II) the relevant
Borrower shall pay to the General Administrative Agent for the account of the
Lenders whose Loans to such Borrower are repaid on such Borrowing Date pursuant
to this subsection 2.5 all interest accrued on the amounts repaid to the date
of repayment, together with any amounts payable pursuant to subsection 10.11 in
connection with such repayment.
(c) If on any Borrowing Date on which an Alternate Currency Borrower has
requested Alternate Currency Lenders to make Alternate Currency Loans (the
"Requested Alternate Currency Loans") under an Alternate Currency Facility to
which such Alternate Currency Borrower and Alternate Currency Lenders are
parties (i) the aggregate principal amount of the Requested Alternate Currency
Loans exceeds the aggregate unused portions of the commitments of such
Alternate Currency Lenders under such Alternate Currency Facility on such
Borrowing Date (before giving effect to the making and payment of any U.S.
Revolving Credit Loans required to be made pursuant to this subsection 2.5 on
such Borrowing Date), (ii) after giving effect to the Requested Alternate
Currency Loans, the U.S. Dollar Equivalent of the aggregate outstanding
principal amount of Alternate Currency Loans of such Alternate Currency
Borrower will be less than or equal to the aggregate commitments of such
Alternate Currency Lenders under such Alternate Currency Facility and (iii) the
U.S. Dollar Equivalent of the amount of the excess described in clause (i)
above is less than or equal to the Aggregate Available U.S. Revolving Credit
Commitments of all U.S. Lenders other than such Alternate
45
38
Currency Lenders (before giving effect to the making and payment of any U.S.
Revolving Credit Loans pursuant to this subsection 2.5 on such Borrowing Date),
each such other U.S. Lender shall make a U.S. Revolving Credit Loan to the U.S.
Borrower on such Borrowing Date, and the proceeds of such U.S. Revolving Credit
Loans shall be simultaneously applied to repay outstanding U.S. Revolving
Credit Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of such Alternate Currency Lenders or their
Counterpart Lenders (as directed by the U.S. Borrower) in each case in amounts
such that, after giving effect to (1) such borrowings and repayments and (2)
the borrowing from such Alternate Currency Lenders of the Requested Alternate
Currency Loans, the Committed Outstandings Percentage of each U.S. Lender will
equal (as nearly as possible) its U.S. Revolving Credit Commitment Percentage.
To effect such borrowings and repayments, (x) not later than 12:00 Noon, New
York City time, on such Borrowing Date, the proceeds of such U.S. Revolving
Credit Loans shall be made available by each such other Lender to the General
Administrative Agent at its office specified in subsection 18.2 in U.S. Dollars
and in immediately available funds and the General Administrative Agent shall
apply the proceeds of such U.S. Revolving Credit Loans toward repayment of
outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans,
Multicurrency Loans and/or Alternate Currency Loans of such Alternate Currency
Lenders or their Counterpart Lenders (as directed by the U.S. Borrower) and (y)
concurrently with the repayment of such Loans on such Borrowing Date, (I) such
Alternate Currency Lenders shall, in accordance with the applicable provisions
hereof, make the Requested Alternate Currency Loans in an aggregate amount
equal to the amount so requested by such Alternate Currency Borrower and (II)
the relevant Borrower shall pay to the General Administrative Agent for the
account of the Lenders whose Loans to such Borrower are repaid on such
Borrowing Date pursuant to this subsection 2.5 all interest accrued on the
amounts repaid to the date of repayment, together with any amounts payable
pursuant to subsection 10.11 in connection with such repayment.
(d) If any borrowing of U.S. Revolving Credit Loans is required pursuant
to this subsection 2.5, the U.S. Borrower shall notify the General
Administrative Agent in the manner provided for U.S. Revolving Credit Loans in
subsection 2.3, except that the minimum borrowing amounts and threshold
multiples in excess thereof applicable to ABR Loans set forth in subsection 2.3
shall not be applicable to the extent that such minimum borrowing amounts
exceed the amounts of U.S. Revolving Credit Loans required to be made pursuant
to this subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF SWING LINE
COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") in U.S. Dollars to the
U.S. Borrower from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding not to exceed
$100,000,000, so long as after giving effect thereto (i) the Available U.S.
Revolving Credit Commitment of each U.S. Lender is greater than or equal to
zero and (ii) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate U.S.
46
39
Revolving Credit Commitments. Amounts borrowed by the U.S. Borrower under
this Section 3 may be repaid and, during the Revolving Credit Commitment
Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The U.S.
Borrower shall give the Swing Line Lender irrevocable notice (which notice must
be received by such Swing Line Lender prior to 12:00 P.M., New York City time
on the requested Borrowing Date) specifying the amount of the requested Swing
Line Loan, which shall be in an aggregate principal amount of not less than
$100,000 or a whole multiple of $100,000 in excess thereof. The proceeds of
the Swing Line Loan will be made available by the Swing Line Lender to the U.S.
Borrower at the office of the Swing Line Lender by crediting the account of the
U.S. Borrower at such office with such proceeds in U.S. Dollars.
(b) All Swing Line Loans shall be ABR Loans. Any such ABR Loan may
not be converted into a Eurodollar Loan.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to the Swing Line Lender the
then unpaid principal amount of the Swing Line Loans on the Revolving Credit
Termination Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Swing Line Loans from time to time outstanding until payment thereof in full
at the rates per annum, and on the dates, set forth in subsection 10.1.
(b) The Swing Line Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower
resulting from each Swing Line Loan made by it from time to time, including the
amounts of principal and interest payable thereon and paid from time to time
under this Agreement.
(c) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
18.6(d), and a subaccount therein for the Swing Line Lender, in which shall be
recorded (i) the date and amount of each Swing Line Loan made hereunder, (ii)
the amount of each U.S. Lender's participating interest in such Swing Line
Loans, (iii) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower hereunder in
respect of the Swing Line Loans and (iv) both the date and amount of any sum
received by the General Administrative Agent hereunder from the U.S. Borrower
in respect of the Swing Line Loans, each U.S. Lender's participating interest
therein (if any) and the amount thereof payable to the Swing Line Lender.
(d) The entries made in the Register and the accounts of the Swing Line
Lender maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of the Swing Line Lender or the Administrative Agents
to maintain the Register or any such account, or any error therein, shall not
in any manner affect the obligation of the U.S. Borrower to repay (with
applicable interest)
47
40
the Swing Line Loans made to the U.S. Borrower by the Swing Line Lender in
accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) The Swing Line Lender,
at any time in its sole and absolute discretion may, on behalf of the U.S.
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each U.S. Lender, including Chase, to make a
U.S. Revolving Credit Loan (which shall be an ABR Loan) in an amount equal to
such U.S. Lender's Funding Commitment Percentage of the principal amount of the
Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the date such
notice is given; provided that the provisions of this subsection shall not
affect the U.S. Borrower's obligations to repay Swing Line Loans in accordance
with the provisions of subsections 3.3 and 10.4(d) and (g). Unless the U.S.
Revolving Credit Commitments shall have expired or terminated (in which event
the procedures of subsection 3.5 shall apply), each U.S. Lender will make the
proceeds of the U.S. Revolving Credit Loan made by it pursuant to the
immediately preceding sentence available to the General Administrative Agent at
the office of the General Administrative Agent specified in subsection 18.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given. The proceeds of
such U.S. Revolving Credit Loans shall be immediately made available by the
General Administrative Agent to the Swing Line Lender for application to the
payment in full of the Refunded Swing Line Loans. Upon any request by the
Swing Line Lender to the U.S. Lenders pursuant to this subsection 3.4, the
General Administrative Agent shall promptly give notice to the U.S. Borrower of
such request.
3.5 Participating Interests. (a) If the U.S. Revolving Credit
Commitments shall expire or terminate at any time while Swing Line Loans are
outstanding, at the request of the Swing Line Lender in its sole discretion,
either (i) each U.S. Lender (including Chase) shall, notwithstanding the
expiration or termination of the U.S. Revolving Credit Commitments, make a U.S.
Revolving Credit Loan (which shall be an ABR Loan) or (ii) each U.S. Lender
(other than Chase) shall purchase an undivided participating interest in the
Swing Line Loans of the Swing Line Lender, in either case in an amount equal
to such U.S. Lender's Funding Commitment Percentage (determined on the date of,
and immediately prior to, expiration or termination of the U.S. Revolving Credit
Commitments) of the aggregate principal amount of such Swing Line Loans. Each
U.S. Lender will make the proceeds of any U.S. Revolving Credit Loan
made by it pursuant to the immediately preceding sentence available to the
General Administrative Agent for the account of the Swing Line Lender at the
office of the General Administrative Agent specified in subsection 18.2 prior
to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date of the request by the Swing Line Lender.
The proceeds of such U.S. Revolving Credit Loans shall be immediately applied
to repay the Swing Line Loans outstanding on the date of termination or
expiration of the U.S. Revolving Credit Commitments. In the event that any of
the U.S. Lenders purchase undivided participating interests pursuant to the
first sentence of this subsection 3.5(a), each U.S. Lender shall immediately
transfer to the Swing Line Lender, in immediately available funds, the amount
of its participation in the Swing Line Loans of the Swing Line Lender and upon
receipt thereof the Swing Line Lender will deliver to any such U.S. Lender that
so requests a confirmation of such U.S. Lender's undivided participating
interest in the Swing Line Loans of the Swing Line Lender dated the date of
receipt of such funds and in such amount.
48
41
(b) Whenever, at any time after the Swing Line Lender has received
payment from any U.S. Lender in respect of such U.S. Lender's participating
interest in a Swing Line Loan of the Swing Line Lender, the Swing Line Lender
receives any payment on account thereof, the Swing Line Lender will distribute
to such U.S. Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such U.S. Lender's participating interest was outstanding and
funded); provided, however, that in the event that any such payment received
by the Swing Line Lender is required to be returned, such U.S. Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from
time to time on any Business Day during the CAF Advance Availability Period.
CAF Advances may be borrowed in amounts such that the Aggregate Total
Outstandings of all Lenders at any time shall not exceed the Aggregate U.S.
Revolving Credit Commitments at such time. Within the limits and on the
conditions hereinafter set forth with respect to CAF Advances, the U.S.
Borrower from time to time may borrow, repay and reborrow CAF Advances.
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower shall
request CAF Advances by delivering a CAF Advance Request to the General
Administrative Agent, not later than 12:00 Noon, New York City time, four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M., New York City time one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing
Date may solicit bids for CAF Advances on such Borrowing Date in an
aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and having not more than five alternative CAF Advance
Maturity Dates. The CAF Advance Maturity Date for each CAF Advance shall be
the date set forth therefor in the relevant CAF Advance Request, which date
shall be (i) not less than 7 days nor more than 360 days after the Borrowing
Date therefor, in the case of a Fixed Rate CAF Advance, (ii) one, two, three,
six, nine or twelve months after the Borrowing Date therefor, in the case of a
LIBO CAF Advance and (iii) not later than the Revolving Credit Termination
Date, in the case of any CAF Advance. The General Administrative Agent shall
notify each Lender promptly by facsimile transmission of the contents of each
CAF Advance Request received by the General Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at the applicable LIBO Rate plus
(or minus) a margin determined by such Lender in its sole discretion for each
such CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the General Administrative Agent, before 10:30 A.M., New York
City time, on the day that is three Business Days before the proposed Borrowing
Date, setting forth:
49
42
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's U.S. Revolving
Credit Commitment); and
(ii) the margin above or below the applicable LIBO Rate at which
such Lender is willing to make each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 11:00
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date of the contents of each such CAF Advance Offer received
by it. If the General Administrative Agent, in its capacity as a Lender, shall
elect, in its sole discretion, to make any such CAF Advance Offer, it shall
advise the U.S. Borrower of the contents of its CAF Advance Offer before 10:15
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined
by such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
General Administrative Agent before 9:30 A.M., New York City time, on the
proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date, and the aggregate maximum amount of CAF Advances for all CAF
Advance Maturity Dates, which such Lender would be willing to make (which
amounts may, subject to subsection 4.1, exceed such Lender's U.S.
Revolving Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 10:00
A.M., New York City time, on the proposed Borrowing Date of the contents of
each such CAF Advance Offer received by it. If the General Administrative
Agent, in its capacity as a Lender, shall elect, in its sole discretion, to
make any such CAF Advance Offer, it shall advise the U.S. Borrower of the
contents of its CAF Advance Offer before 9:15 A.M., New York City time, on the
proposed Borrowing Date.
(d) Before 11:30 A.M., New York City time, three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M., New York City time, on
the proposed Borrowing Date (in the case of CAF Advances requested by a Fixed
Rate CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
50
43
(i) cancel such CAF Advance Request by giving the General
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the General
Administrative Agent (immediately confirmed by delivery to the General
Administrative Agent of a CAF Advance Confirmation by facsimile
transmission) (A) subject to the provisions of subsection 4.2(e), accept
one or more of the offers made by any Lender or Lenders pursuant to
subsection 4.2(b) or subsection 4.2(c), as the case may be, and (B)
reject any remaining offers made by Lenders pursuant to subsection 4.2(b)
or subsection 4.2(c), as the case may be.
(e) The U.S. Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in excess
of the maximum principal amount requested in the related CAF Advance
Request; and
(iv) if the U.S. Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the U.S. Borrower accepts any of such offers but does not
wish to (or, by reason of the limitations set forth in subsection 4.1,
cannot) borrow the total amount offered by such Lenders with such
identical pricing, the U.S. Borrower shall accept offers from all of
such Lenders in amounts allocated among them pro rata according to the
amounts offered by such Lenders (with appropriate rounding, in the sole
discretion of the U.S. Borrower, to assure that each accepted CAF
Advance is an integral multiple of $1,000,000); provided that if the
number of Lenders that submit offers for any CAF Advance Maturity Date
at identical pricing is such that, after the U.S. Borrower accepts such
offers pro rata in accordance with the foregoing provisions of this
paragraph, the CAF Advance to be made by any such Lender would be less
than $5,000,000 principal amount, the number of such Lenders shall be
reduced by the General Administrative Agent by lot until the CAF
Advances to be made by each such remaining Lender would be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
51
44
(f) If the U.S. Borrower notifies the General Administrative Agent
that a CAF Advance Request is cancelled pursuant to subsection 4.2(d)(i), the
General Administrative Agent shall give prompt telephone notice thereof to the
Lenders. If the U.S. Borrower fails to notify the General Administrative Agent
of its cancellation or acceptance of CAF Advance Offers by the times specified
in subsection 4.2(d), the corresponding CAF Advance Request shall be deemed
cancelled.
(g) If the U.S. Borrower accepts pursuant to subsection 4.2(d)(ii)
one or more of the offers made by any Lender or Lenders, the General
Administrative Agent promptly shall notify each Lender which has made such an
offer of (i) the aggregate amount of such CAF Advances to be made on the
applicable Borrowing Date for each CAF Advance Maturity Date and (ii) the
acceptance or rejection of any offers to make such CAF Advances made by such
Lender. Before 12:00 Noon, New York City time, on the Borrowing Date specified
in the applicable CAF Advance Request, each Lender whose CAF Advance Offer has
been accepted shall make available to the General Administrative Agent at its
office set forth in subsection 18.2 the amount of CAF Advances to be made by
such Lender, in immediately available funds. The General Administrative Agent
will make such funds available to the U.S. Borrower as soon as practicable on
such date at such office of the General Administrative Agent. As soon as
practicable after each Borrowing Date, the General Administrative Agent shall
notify each Lender of the aggregate amount of CAF Advances advanced on such
Borrowing Date and the respective CAF Advance Maturity Dates thereof.
4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to the
General Administrative Agent, for the account of each Lender which has made a
CAF Advance, on the applicable CAF Advance Maturity Date the then unpaid
principal amount of such CAF Advance. The U.S. Borrower shall not have the
right to prepay any principal amount of any CAF Advance without the consent of
the Lender to which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to the applicable CAF
Advance Maturity Date at the rate of interest specified in the CAF Advance
Offer accepted by the U.S. Borrower in connection with such CAF Advance
(calculated on the basis of a 360-day year for actual days elapsed), payable on
each applicable CAF Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any
Lender under this Agreement, bear interest from the date on which such payment
was due at a rate per annum which is 2% above the rate which would otherwise be
applicable to such CAF Advance until the stated CAF Advance Maturity Date of
such CAF Advance, and for each day thereafter at a rate per annum which is 2%
above the ABR, in each case until paid in full (as well after as before
judgment). Interest accruing pursuant to this paragraph (c) shall be payable
from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally
promises to pay to the General Administrative Agent, for the account of each
Lender that makes a CAF Advance, on the CAF Advance Maturity Date with
respect thereto, the principal amount of such CAF
52
45
Advance. The U.S. Borrower further unconditionally promises to pay interest
on each such CAF Advance for the period from and including the Borrowing Date
of such CAF Advance on the unpaid principal amount thereof from time to time
outstanding at the applicable rate per annum determined as provided in, and
payable as specified in, subsection 4.3(b).
(b) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the U.S. Borrower to such Lender
resulting from each CAF Advance of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such CAF Advance.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 18.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of each CAF Advance made by
such Lender, the CAF Advance Maturity Date thereof, the interest rate
applicable thereto and each CAF Advance Interest Payment Date applicable
thereto, and (ii) the date and amount of any sum received by the General
Administrative Agent hereunder from the U.S. Borrower on account of such CAF
Advance.
(d) The entries made in the Register and the records of each Lender
maintained pursuant to this subsection 4.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however,
that the failure of any Lender or the General Administrative Agent to maintain
the Register or any such record, or any error therein, shall not in any manner
affect the obligation of the U.S. Borrower to repay (with applicable interest)
the CAF Advances made by such Lender in accordance with the terms of this
Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request offers
for CAF Advances to be made on not more than one Borrowing Date and to mature
on not more than five CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN
COMMITMENTS
5.1 Canadian Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Canadian Lender severally agrees to make revolving
credit loans (each, a "Canadian Revolving Credit Loan") to the Canadian
Borrower in Canadian Dollars or in U.S. Dollars from time to time during the
Revolving Credit Commitment Period so long as after giving effect thereto (i)
the Available Canadian Revolving Credit Commitment of each Canadian Lender is
greater than or equal to zero and (ii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate U.S. Revolving Credit Commitments. During
the Revolving Credit Commitment Period, the Canadian Borrower may use the
Canadian Revolving Credit Commitments by borrowing, repaying the Canadian
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Canadian Revolving Credit Loans
denominated in Canadian Dollars shall be Prime Rate Loans, and the
53
46
Canadian Revolving Credit Loans denominated in U.S. Dollars shall be Canadian
Base Rate Loans.
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of Debt.
(a) The Canadian Borrower hereby unconditionally promises to pay to the Canadian
Administrative Agent for the account of each Canadian Lender the then unpaid
principal amount of each Canadian Revolving Credit Loan of such Canadian Lender
(whether made before or after the termination or expiration of the Canadian
Revolving Credit Commitments) on the Revolving Credit Termination Date and on
such other date(s) and in such other amounts as may be required from time to
time pursuant to this Agreement. The Canadian Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Canadian Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 10.1.
(b) Each Canadian Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Canadian
Borrower to such Canadian Lender resulting from each Canadian Revolving Credit
Loan of such Canadian Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Canadian Lender from
time to time under this Agreement.
(c) The Canadian Administrative Agent (together with the General
Administrative Agent) shall maintain the Register pursuant to subsection
18.6(d), and a subaccount therein for each Canadian Lender, in which shall be
recorded (i) the date and amount of each Canadian Revolving Credit Loan made
hereunder, (ii) the date and amount of any principal or interest due and
payable or to become due and payable from the Canadian Borrower to each
Canadian Lender hereunder in respect of the Canadian Revolving Credit Loans and
(iii) both the date and amount of any sum received by the Canadian
Administrative Agent hereunder from the Canadian Borrower in respect of the
Canadian Revolving Credit Loans and each Canadian Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Canadian Lender maintained pursuant to subsection 5.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Canadian Borrower therein recorded;
provided, however, that the failure of any Canadian Lender or the General
Administrative Agents to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Canadian
Borrower to repay (with applicable interest) the Canadian Revolving Credit
Loans made to the Canadian Borrower by such Canadian Lender in accordance with
the terms of this Agreement.
(e) The Canadian Borrower agrees that, upon the request to the
Canadian Administrative Agent by any Canadian Lender, it will execute and
deliver to such Canadian Lender a promissory note of the Canadian Borrower
evidencing the Canadian Revolving Credit Loans of such Canadian Lender,
substantially in the form of Exhibit B with appropriate insertions as to date
and principal amount (each, a "Canadian Revolving Credit Note"); provided, that
the delivery of such Canadian Revolving Credit Notes shall not be a condition
precedent to the Closing Date.
54
47
5.3 Procedure for Canadian Revolving Credit Borrowing. The Canadian
Borrower may borrow under the Canadian Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that the
Canadian Borrower shall give the Canadian Administrative Agent irrevocable
notice (which notice must be received by the Canadian Administrative Agent
prior to 12:00 ▇▇▇▇, ▇▇▇▇▇▇▇ time, at least one Business Day prior to the
requested Borrowing Date), specifying (i) the amount to be borrowed and (ii)
the requested Borrowing Date. Each borrowing in Canadian Dollars under the
Canadian Revolving Credit Commitments shall be in an amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof, and each
borrowing in U.S. Dollars under the Canadian Revolving Credit Commitments shall
be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, in each case, if the then Aggregate Available Canadian Revolving
Credit Commitments are less than C$5,000,000 or $5,000,000, as the case may be,
such lesser amount). Upon receipt of any such notice from the Canadian
Borrower, the Canadian Administrative Agent shall promptly notify the General
Administrative Agent and each Canadian Lender thereof. Not later than 12:00
Noon, Toronto time, on each requested Borrowing Date each Canadian Lender
shall make an amount equal to its Canadian Revolving Credit Commitment
Percentage of the principal amount of Canadian Revolving Credit Loans requested
to be made on such Borrowing Date available to the Canadian Administrative
Agent at its office specified in subsection 18.2 in Canadian Dollars or U.S.
Dollars, as the case may be, and in immediately available funds. The Canadian
Administrative Agent shall on such date credit the account of the Canadian
Borrower on the books of such office with the aggregate of the amounts made
available to the Canadian Administrative Agent by the Canadian Lenders and in
like funds as received by the Canadian Administrative Agent.
5.4 Termination or Reduction of Canadian Revolving Credit
Commitments. The U.S. Borrower shall have the right, upon not less than three
Business Days' notice to the Canadian Administrative Agent, to terminate the
Canadian Revolving Credit Commitments or, from time to time, to reduce
the amount of the Canadian Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted (i) unless the U.S. Borrower elects
to terminate or reduce the U.S. Revolving Credit Commitments of the U.S. Common
Lenders by an amount equal to the U.S. Dollar Equivalent of the aggregate
Canadian Revolving Credit Commitments of all Canadian Lenders being reduced or
terminated or (ii) if, after giving effect thereto and to any prepayments of
the Loans made on the effective date thereof, the Available Canadian Revolving
Credit Commitment of any Canadian Lender would be less than zero. Any such
reduction shall be in an amount equal to C$5,000,000 or a whole multiple of
C$1,000,000 in excess thereof and shall reduce permanently the Canadian
Revolving Credit Commitments then in effect.
SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY
6.1 Acceptance Commitments. (a) Subject to the terms and conditions
hereof, each Canadian Lender severally agrees to create Acceptances for the
Canadian Borrower on any Business Day during the Revolving Credit Commitment
Period by accepting Drafts drawn by the Canadian Borrower so long as after
giving effect to such acceptance, (i) the Available Canadian
55
48
Revolving Credit Commitment of such Canadian Lender would be greater than or
equal to zero and (ii) the Aggregate Total Outstandings of all Lenders do not
exceed the Aggregate U.S. Revolving Credit Commitments.
(b) The Canadian Borrower may utilize the Canadian Revolving Credit
Commitments in the manner contemplated by this Section 6 by authorizing each
Canadian Lender in the manner provided for in subsection 6.2(b) to draw Drafts
on such Canadian Lender and having such Drafts accepted pursuant to subsection
6.2, paying its obligations with respect thereto pursuant to subsection 6.5,
and again, from time to time, authorizing Drafts to be drawn on the Canadian
Lenders and having them presented for acceptance, all in accordance with the
terms and conditions of this Section 6.
(c) For the purposes of this Agreement, all Acceptances shall be
considered a utilization of the Canadian Revolving Credit Commitments in an
amount equal to the undiscounted face amount of such Acceptance.
6.2 Creation of Acceptances. (a) The Canadian Borrower may request
the creation of Acceptances hereunder by submitting to the Canadian
Administrative Agent at its office specified in subsection 18.2 prior to 11:00
A.M., Toronto time, two Business Days prior to the requested Borrowing Date,
(i) a request for acceptances (each, a "Request for Acceptances") completed in
a manner and in form and substance reasonably satisfactory to the Canadian
Administrative Agent and specifying, among other things, the Borrowing Date,
maturity and face amount of the Drafts to be accepted and discounted, (ii) to
the extent not theretofore supplied to each Canadian Lender, a sufficient
number of Drafts to be drawn on the Canadian Lenders, to be appropriately
completed in accordance with subsection 6.2(d) and (iii) such other
certificates, documents and other papers and information as the Canadian
Administrative Agent may reasonably request. Upon receipt of any such Request
for Acceptances, the Canadian Administrative Agent shall promptly notify each
Canadian Lender and the General Administrative Agent of its receipt thereof.
(b) The Canadian Borrower hereby agrees that it shall deliver to the
Canadian Administrative Agent on or prior to the Closing Date, Powers of
Attorney substantially in the form annexed hereto as Exhibit D (the "Powers of
Attorney") authorizing each Canadian Lender to draw Drafts on such Canadian
Lender on behalf of the Canadian Borrower and to complete such Drafts in
accordance with the Requests for Acceptances submitted from time to time
pursuant to subsection 6.2(a).
(c) Each Request for Acceptances made by or on behalf of the Canadian
Borrower hereunder shall contain a request for Acceptances denominated in
Canadian Dollars and having an aggregate undiscounted face amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business
Day which is not less than 30 days and not more than 180 days after the date
thereof (and, in any event, prior to the Revolving Credit Termination Date).
56
49
(d) Not later than 12:00 Noon, Toronto time, on the Borrowing Date
specified in the relevant Request for Acceptances, and upon fulfillment of the
applicable conditions set forth in subsection 12.2, each Canadian Lender will,
in accordance with such Request for Acceptances, (i) sign each Draft on behalf
of the Canadian Borrower pursuant to the Power of Attorney, (ii) complete the
date, amount and maturity of each Draft to be accepted, (iii) accept such
Drafts and give notice to the Canadian Administrative Agent of such acceptance
and (iv) upon such acceptance, purchase such Acceptances to the extent
contemplated by subsection 6.3.
6.3 Discount of Acceptances. (a) Each Canadian Lender hereby
severally agrees, on the terms and subject to the conditions set forth in
this Agreement, to purchase Acceptances created by it on the Borrowing Date
with respect thereto at the applicable Reference Discount Rate by making
available to the Canadian Borrower an amount in immediately available funds
equal to the Acceptance Purchase Price in respect thereof, and to notify the
Canadian Administrative Agent that such Draft has been accepted, discounted and
purchased by such accepting Canadian Lender.
(b) In the event that the Canadian Borrower has made a Request for
Acceptances, then (i) prior to 11:00 A.M., Toronto time, on the Borrowing Date
with respect thereto, the Canadian Administrative Agent will notify the General
Administrative Agent, the Canadian Borrower and the Canadian Lenders of the
applicable Reference Discount Rate for such Acceptances and the corresponding
Acceptance Purchase Price and (ii) each Canadian Lender shall make the
Acceptance Purchase Price for such Acceptances discounted by it available to
the Canadian Administrative Agent, for the account of the Canadian Borrower, at
the office of the Canadian Administrative Agent specified in subsection 18.2
prior to 12:00 Noon, Toronto time, on the Borrowing Date, in Canadian Dollars
and in funds immediately available to the Canadian Administrative Agent. Such
borrowing will then be made available to the Canadian Borrower by the Canadian
Administrative Agent crediting the account of the Canadian Borrower on the
books of such office with the aggregate of the amounts made available to the
Canadian Administrative Agent by the Canadian Lenders and in like funds as
received by the Canadian Administrative Agent.
(c) Acceptances purchased by any Canadian Lender may be held by it
for its own account until maturity or sold by it at any time prior thereto in
the relevant market therefor in Canada in such Canadian Lender's sole
discretion. The doctrine of merger shall not apply with respect to any
Acceptance held by a Lender at maturity.
6.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee at a rate per
annum equal to the Applicable Margin in effect on such Borrowing Date for
Eurodollar Loans, computed for the period from and including the Borrowing Date
with respect to such Acceptance to but not including the maturity of such
Acceptance, on the basis of a 365-day year, of the undiscounted face amount of
such Acceptance.
6.5 Acceptance Reimbursement Obligations. (a) The Canadian
Borrower hereby unconditionally agrees to pay to the Canadian Administrative
Agent for the account of each
57
50
Canadian Lender, on the maturity date (whether at stated maturity, by
acceleration or otherwise) for each Acceptance created by such Canadian Lender
for the account of the Canadian Borrower, the aggregate undiscounted face
amount of each such then-maturing Acceptance.
(b) The obligation of the Canadian Borrower to reimburse the Canadian
Lenders for then-maturing Acceptances may be satisfied by the Canadian Borrower
by:
(i) paying to the Canadian Administrative Agent, for the account
of the Canadian Lenders, an amount in Canadian Dollars and in
immediately available funds equal to the aggregate undiscounted face
amount of all Acceptances created for the account of the Canadian
Borrower hereunder which are then maturing by 12:00 Noon, Toronto time,
on such maturity date; provided that the Canadian Borrower shall have
given not less than one Business Day's prior notice to the Canadian
Administrative Agent (which shall promptly notify each Canadian Lender
thereof) of its intent to reimburse the Canadian Lenders in the manner
contemplated by this clause (i);
(ii) having new Drafts accepted and discounted by the Canadian
Lenders in the manner contemplated by subsections 6.2 and 6.3 in
substitution for the then-maturing Acceptances; provided that (A) the
Canadian Borrower shall have delivered to the Canadian Administrative
Agent (which shall promptly provide a copy thereof to each Canadian
Lender) a duly completed Request for Acceptances not later than 2:00
P.M., Toronto time, one Business Day prior to such maturity date,
together with the documents, instruments, certificates and other papers
and information contemplated by subsections 6.2(a)(ii) and 6.2(a)(iii),
(B) if any Default or Event of Default has occurred and is then
continuing, the Request for Acceptances shall be deemed to be a request
for a Canadian Revolving Credit Loan in an amount equal to the
undiscounted face amount of the Acceptances requested, (C) each Canadian
Lender shall retain the Acceptance Purchase Price for the Acceptance
created by it and apply such Acceptance Purchase Price to the Acceptance
Reimbursement Obligations of the Canadian Borrower in respect of the
maturing Acceptance created by such Canadian Lender, (D) if the
Acceptance Purchase Price so retained by such Canadian Lender is less
than the undiscounted face amount of the then-maturing Acceptance, the
Canadian Borrower shall have made arrangements reasonably satisfactory to
such Canadian Lender for payment of such deficiency and (E) if the
Acceptance Purchase Price so retained by the Canadian Lender is greater
than the undiscounted face amount of the then-maturing Acceptance, the
Canadian Lender shall make such excess available to the Canadian
Administrative Agent, which in turn shall make such excess available to
the Canadian Borrower, all in accordance with subsection 6.3(b); or
(iii) to the extent that the Canadian Borrower has not given to
the Canadian Administrative Agent a notice contemplated by clause
(i) or (ii) above, then the Canadian Borrower shall be deemed to have
requested a borrowing pursuant to subsection 5.1 of Canadian Revolving
Credit Loans in an aggregate principal amount equal to the undiscounted
face amount of such then-maturing Acceptance. The Borrowing Date with
respect to such borrowing shall be the maturity date for such Acceptance.
Except to the extent that any of the events contemplated by paragraph (i)
of Section 16 with respect to
58
51
the Canadian Borrower has occurred and is then continuing, each
Canadian Lender shall be obligated to make the Canadian Revolving Credit
Loan contemplated by this subsection 6.5(b)(iii) regardless of whether
the conditions precedent to borrowing set forth in this Agreement are
then satisfied. The proceeds of any Canadian Revolving Credit Loans made
pursuant to this subsection 6.5(b)(iii) shall be retained by the
Canadian Lenders and applied by them to the Acceptance Reimbursement
Obligations of the Canadian Borrower in respect of the then-maturing
Acceptance.
(c) The unpaid amount of any such Acceptance Reimbursement
Obligations shall be treated as a Canadian Revolving Credit Loan for the
purposes hereof and interest shall accrue on the amount of any such unpaid
Acceptance Reimbursement Obligation from the date such amount becomes due until
paid in full at a fluctuating rate per annum equal to the rate which would then
be payable on Canadian Revolving Credit Loans. Such interest shall be payable
by the Canadian Borrower on demand by the Canadian Administrative Agent.
(d) In no event shall the Canadian Borrower claim from any
Canadian Lender any grace period with respect to the payment at maturity of any
Acceptances created by such Canadian Lender pursuant to this Agreement.
6.6 Converting Canadian Revolving Credit Loans to Acceptances and
Acceptances to Canadian Revolving Credit Loans. (a) Subject to subsection
6.6(b), the Canadian Borrower may at any time and from time to time request
that any then outstanding Canadian Revolving Credit Loan denominated in
Canadian Dollars be converted into an Acceptance by delivering to the Canadian
Administrative Agent (which shall promptly notify the General Administrative
Agent and each Canadian Lender of its receipt thereof) a Request for
Acceptances, together with a statement that the Acceptances so requested are to
be created pursuant to this subsection 6.6(a), such notice to be given not
later than one Business Day prior to the requested conversion date.
(b) In the event that the Canadian Administrative Agent receives
such a Request for Acceptances and the accompanying statement described in
subsection 6.6(a), then the Canadian Borrower shall pay on the requested
Borrowing Date to the Canadian Administrative Agent, for the account of the
Canadian Lenders, the principal amount of the then outstanding Canadian
Revolving Credit Loans being so converted, and each Canadian Lender shall
accept and discount the Canadian Borrower's Draft having an aggregate face
amount at least equal to the principal amount of the Canadian Revolving Credit
Loans of such Canadian Lender which are then being repaid; it being understood
and agreed that for the purposes of this subsection 6.6(b), such payment by the
Canadian Borrower of such outstanding Canadian Revolving Credit Loans may be
from the proceeds of such discounted Drafts, provided that, (i) following the
occurrence and during the continuance of a Default or an Event of Default, no
Acceptances may be created and (ii) no Acceptance which is permitted to be
created hereunder shall have a maturity that extends beyond the Revolving
Credit Termination Date.
(c) The creation of Acceptances pursuant to this subsection 6.6
shall not be subject to the satisfaction of the conditions precedent to
borrowing set forth in this Agreement.
59
52
(d) The Canadian Borrower may elect from time to time to convert
outstanding Acceptances to Canadian Revolving Credit Loans denominated in
Canadian Dollars by giving the Canadian Administrative Agent at least one
Business Day's irrevocable notice of such election prior to the maturity of
such Acceptances; provided that any such conversion of Acceptances may only be
made on the maturity thereof.
6.7 Allocation of Acceptances. The Canadian Borrower hereby
agrees that each Request for Acceptances, reimbursement of Acceptances and
conversion of Canadian Revolving Credit Loans to Acceptances shall be made in
a manner so that any such Request for Acceptances, reimbursement or conversion
shall apply ratably to all Canadian Lenders in accordance with their respective
Canadian Revolving Credit Commitment Percentages. In the event that the
aggregate undiscounted face amount of Acceptances requested by the Canadian
Borrower to be created by all Canadian Lenders hereunder pursuant to any
Request for Acceptances is an amount which, if divided ratably among the
Canadian Lenders in accordance with their respective Canadian Revolving Credit
Commitment Percentages, would not result in each Canadian Lender accepting a
Draft which has an undiscounted face amount equal to C$100,000 or a whole
multiple of C$100,000 in excess thereof, then, notwithstanding any provision in
this subsection 6.7 to the contrary, the Canadian Administrative Agent is
authorized by the Canadian Borrower and the Canadian Lenders to allocate among
the Canadian Lenders the Acceptances to be issued in such manner and amounts as
the Canadian Administrative Agent may, in its sole discretion, acting
reasonably, consider necessary, rounding up or down, so as to ensure that no
Canadian Lender is required to accept a Draft for a fraction of $100,000 and,
in such event, the Canadian Lenders' ratable share with respect to such
Acceptances shall be adjusted accordingly.
6.8 Special Provisions Relating to Acceptance Notes. (a) The
Canadian Borrower and each Canadian Lender hereby acknowledge and agree that
from time to time certain Canadian Lenders which are not Canadian
chartered banks or which are Schedule II Canadian Lenders may not be authorized
to or may, as a matter of general corporate policy, elect not to accept Drafts,
and the Canadian Borrower and each Canadian Lender agree that any such Canadian
Lender may purchase Acceptance Notes of the Canadian Borrower in accordance
with the provisions of subsection 6.8(b) in lieu of creating Acceptances for
its account.
(b) In the event that any Canadian Lender described in
subsection 6.8(a) above is unable to, or elects as a matter of general
corporate policy not to, create Acceptances hereunder, such Canadian Lender
shall not create Acceptances hereunder, but rather, if the Canadian Borrower
requests the creation of such Acceptances, the Canadian Borrower shall deliver
to such Canadian Lender non-interest bearing promissory notes (each, an
"Acceptance Note") of the Canadian Borrower, substantially in the form of
Exhibit E, having the same maturity as the Acceptances to be created and in an
aggregate principal amount equal to the undiscounted face amount of such
Acceptances. Each such Canadian Lender hereby agrees to purchase Acceptance
Notes from the Canadian Borrower at a purchase price equal to the Acceptance
Purchase Price which would have been applicable if a Draft in the same
aggregate face amount as the principal amount of its Acceptance Notes and of
the same maturity had been accepted by it (less any stamping fee which would
have been paid pursuant to subsection 5.4 if such Lender had created
60
53
an Acceptance) and such Acceptance Notes shall be governed by the provisions of
this Section 6 as if they were Acceptances.
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
7.1 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to the
U.S. Borrower or any Foreign Subsidiary Borrower from time to time during the
Revolving Credit Commitment Period so long as after giving effect thereto (a)
the Available Multicurrency Commitment of such Multicurrency Lender is greater
than or equal to zero, (b) the aggregate outstanding principal amount of
Multicurrency Loans does not exceed an amount of which the U.S. Dollar
Equivalent is $500,000,000 and (c) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate U.S. Revolving Credit Commitments. During
the Revolving Credit Commitment Period, the U.S. Borrower and Foreign
Subsidiary Borrowers may use the Multicurrency Commitments by borrowing,
repaying the Multicurrency Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
7.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) Each
of the U.S. Borrower and each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the General Administrative Agent for the
account of each Multicurrency Lender the then unpaid principal amount of each
Multicurrency Loan of such Multicurrency Lender to such Borrower on the
Revolving Credit Termination Date and on such other date(s) and in such other
amounts as may be required from time to time pursuant to this Agreement. Each
of the U.S. Borrower and each Foreign Subsidiary Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Multicurrency Loans
advanced to it and from time to time outstanding until payment thereof in full
at the rates per annum, and on the dates, set forth in subsection 10.1.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each
Borrower to such Multicurrency Lender resulting from each Multicurrency Loan of
such Multicurrency Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Multicurrency Lender from time to
time under this Agreement.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 18.6(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the date and amount of each
Multicurrency Loan made hereunder, (ii) the date and amount of any principal or
interest due and payable or to become due and payable from each Borrower to
each Multicurrency Lender hereunder in respect of the Multicurrency Loans and
(iii) both the date and amount of any sum received by the General
Administrative Agent hereunder from each Borrower in respect of the
Multicurrency Loans and each Multicurrency Lender's share thereof.
61
54
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 7.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of each Borrower therein recorded; provided,
however, that the failure of any Multicurrency Lender or the General
Administrative Agent to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of such Borrower to
repay (with applicable interest) the Multicurrency Loans made to such Borrower
by such Multicurrency Lender in accordance with the terms of this Agreement.
7.3 Procedure for Multicurrency Borrowing. The U.S. Borrower or any
Foreign Subsidiary Borrower may request the Multicurrency Lenders to make
Multicurrency Loans during the Revolving Credit Commitment Period on any
Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency of which the U.S. Dollar Equivalent is equal to at
least $10,000,000 (or, if the then Aggregate Available Multicurrency
Commitments are less than $10,000,000, such lesser amount). Upon receipt of
any such Notice of Multicurrency Borrowing from any Borrower, the General
Administrative Agent shall promptly notify each Multicurrency Lender thereof.
Not later than the funding time for the relevant Available Foreign Currency set
forth in the Administrative Schedule each Multicurrency Lender shall make an
amount equal to its Multicurrency Commitment Percentage of the principal amount
of Multicurrency Loans requested to be made on such Borrowing Date available to
the General Administrative Agent at the funding office for the relevant
Available Foreign Currency set forth in the Administrative Schedule in the
relevant Available Foreign Currency and in immediately available funds. The
amounts made available by each Multicurrency Lender will then be made available
on such Borrowing Date to the relevant Borrower at the funding office for the
relevant Available Foreign Currency set forth in the Administrative Schedule
and in like funds as received by the General Administrative Agent.
7.4 Termination or Reduction of Multicurrency Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice
to the General Administrative Agent, to terminate the Multicurrency Commitments
or, from time to time, to reduce the amount of the Multicurrency Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on the effective
date thereof, the Available Multicurrency Commitment of any Multicurrency
Lender would be less than zero. Any such reduction shall be in an amount equal
to $10,000,000 or a whole multiple of $1,000,000 in excess thereof and shall
reduce permanently the Multicurrency Commitments then in effect.
SECTION 8. ALTERNATE CURRENCY FACILITIES
8.1 Terms of Alternate Currency Facilities. (a) Subject to the
provisions of this Section 8, the U.S. Borrower may in its discretion from time
to time designate any Subsidiary of the U.S. Borrower organized under the laws
of any jurisdiction outside the United States as an "Alternate Currency
Borrower" and any Qualified Credit Facility to which such Alternate Currency
Borrower and any one or more Alternate Currency Lenders is a party as an
"Alternate
62
55
Currency Facility", with the consent of each such Alternate Currency
Lender in its sole discretion, by delivering an Alternate Currency Facility
Addendum to the General Administrative Agent and the Lenders (through the
General Administrative Agent) executed by the U.S. Borrower, each such
Alternate Currency Borrower (or the U.S. Borrower on its behalf) and each such
Alternate Currency Lender, provided, that on the effective date of such
designation no Event of Default shall have occurred and be continuing.
Concurrently with the delivery of an Alternate Currency Facility Addendum, the
U.S. Borrower or the relevant Alternate Currency Borrower shall furnish to the
General Administrative Agent copies of all documentation executed and delivered
by any Alternate Currency Borrower in connection therewith, together with, if
applicable, an English translation thereof. Except as otherwise provided in
this Section 8 or in the definition of "Qualified Credit Facility" in
subsection 1.1, the terms and conditions of each Alternate Currency Facility
shall be determined by mutual agreement of the relevant Alternate Currency
Borrower(s) and Alternate Currency Lender(s). The documentation governing each
Alternate Currency Facility shall (i) contain an express acknowledgement that
such Alternate Currency Facility shall be subject to the provisions of this
Section 8 and (ii) if more than one Alternate Currency Lender is a party
thereto, designate an Alternate Currency Facility Agent for such Alternate
Currency Facility. Each of the U.S. Borrower and, by agreeing to any Alternate
Currency Facility designation as contemplated hereby, each relevant Alternate
Currency Lender (if any) party thereto which is an affiliate, branch or agency
of a Lender, acknowledges and agrees that each reference in this Agreement to
any "Lender" shall, to the extent applicable, be deemed to be a reference to
such Alternate Currency Lender. In the event of any inconsistency between the
terms of this Agreement and the terms of any Alternate Currency Facility, the
terms of this Agreement shall prevail.
(b) The documentation governing each Alternate Currency Facility
shall set forth (i) the maximum amount (expressed in U.S. Dollars) available to
be borrowed from all Alternate Currency Lenders under such Alternate
Currency Facility (as the same may be modified from time to time, an "Alternate
Currency Facility Maximum Borrowing Amount") and (ii) with respect to each
Alternate Currency Lender party to such Alternate Currency Facility, the
maximum amount (expressed in U.S. Dollars) available to be borrowed from such
Alternate Currency Lender thereunder (as the same may be modified from time to
time, an "Alternate Currency Lender Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Lenders party to an Alternate Currency Facility have the
right to accelerate the Alternate Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Alternate Currency Loans
prior to the earlier of the stated termination date in respect thereof or the
Revolving Credit Termination Date, except, in each case, in connection with an
acceleration of the Loans or a termination of the Commitments pursuant to
Section 16, provided, that nothing in this paragraph (c) shall be deemed to
require any Alternate Currency Lender to make an Alternate Currency Loan if the
applicable conditions precedent to the making of such Alternate Currency Loan
set forth in the documentation governing the relevant Alternate Currency
Facility have not been satisfied. No Alternate Currency Loan may be made under
an Alternate Currency Facility if (i) the conditions precedent in subsection
12.2 are not satisfied on the date such Alternate Currency Loan is requested to
be made or (ii) after giving effect to the making of such Alternate Currency
Loan and the simultaneous application of the proceeds
63
56
thereof, the Aggregate Total Outstandings of all Lenders at any time exceeds
the Aggregate U.S. Revolving Credit Commitments.
(d) The relevant Alternate Currency Borrower(s) shall furnish to the
General Administrative Agent copies of any amendment, supplement or other
modification (including any change in commitment amounts or in the Alternate
Currency Lenders participating in any Alternate Currency Facility) to the terms
of any Alternate Currency Facility promptly after the effectiveness thereof
(together with, if applicable, an English translation thereof). If any such
amendment, supplement or other modification to an Alternate Currency Facility
shall (i) add an Alternate Currency Lender thereunder or (ii) change the
Alternate Currency Facility Maximum Borrowing Amount or any Alternate Currency
Lender Maximum Borrowing Amount with respect thereto, the U.S. Borrower shall
promptly furnish an appropriately revised Alternate Currency Facility Addendum,
executed by the U.S. Borrower, the relevant Alternate Currency Borrower(s) (or
the U.S. Borrower on its behalf) and the affected Alternate Currency Lenders
(or any agent acting on their behalf), to the General Administrative Agent and
the Lenders (through the General Administrative Agent).
(e) The U.S. Borrower may terminate its designation of a facility as
an Alternate Currency Facility, with the consent of each Alternate Currency
Lender party thereto at the time of such redesignation in its sole discretion,
by written notice to the General Administrative Agent, which notice shall be
executed by the U.S. Borrower, the relevant Alternate Currency Borrower(s) (or
the U.S. Borrower on its behalf) and each Alternate Currency Lender party to
such Alternate Currency Facility (or any agent acting on their behalf). Once
notice of such termination is received by the General Administrative Agent,
such Alternate Currency Facility and the loans and other obligations
outstanding thereunder shall immediately cease to be subject to the terms of
this Agreement.
(f) At no time shall the aggregate Alternate Currency Facility Maximum
Borrowing Amount of all Alternative Currency Facilities exceed $250,000,000.
8.2 Reporting of Alternate Currency Outstandings. (a) On the date
of the making of any Alternate Currency Loan having a fixed maturity of 30 or
more days to an Alternate Currency Borrower and on the last Business Day of
each month on which an Alternate Currency Borrower has any outstanding
Alternate Currency Loans, the Alternate Currency Facility Agent for such
Alternate Currency Facility shall deliver to the General Administrative Agent a
Notice of Alternate Currency Outstandings. The General Administrative Agent
will, at the request of any Alternate Currency Facility Agent, advise such
Alternate Currency Facility Agent of the Exchange Rate used by the General
Administrative Agent in calculating the U.S. Dollar Equivalent of Alternate
Currency Loans under the related Alternate Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in which the
amount of the Aggregate Alternate Currency Outstandings of any Lender is a
component, the General Administrative Agent shall make such calculation on the
basis of the Notices of Alternate Currency Outstandings received by it at least
two Business Days prior to the date of such calculation.
64
57
SECTION 9. LETTERS OF CREDIT
9.1 Letters of Credit. (a) Subject to the terms and conditions of
this Agreement, Chase Delaware, as Issuing Lender, agrees, and any other
Issuing Lender may, as agreed between the U.S. Borrower and such Issuing
Lender, agree, on behalf of the U.S. Lenders, and in reliance on the agreement
of the Lenders set forth in subsection 9.3, to issue for the account of the
U.S. Borrower (or in connection with any Foreign Letter of Credit, for the
joint and several accounts of the U.S. Borrower and such applicable Foreign
Subsidiary) letters of credit in an aggregate face amount not to exceed at any
time outstanding an amount of which the U.S. Dollar Equivalent is $250,000,000,
as follows:
(i) standby letters of credit (collectively, the "Standby
Letters of Credit") in the form of either (A) in the case of standby
letters of credit to be used for the purposes described in subsection
9.8(a) or (c), the Issuing Lender's standard standby letter of credit or
(B) in the case of standby letters of credit to be used for the purposes
described in subsection 9.8(b), a letter of credit reasonably
satisfactory to the Issuing Lender, and in either case, in favor of such
beneficiaries as the U.S. Borrower shall specify from time to time (which
shall be reasonably satisfactory to the Issuing Lender); and
(ii) commercial letters of credit in the form of the Issuing
Lender's standard commercial letters of credit ("Commercial Letters of
Credit") in favor of sellers of goods or services to the U.S. Borrower,
its Subsidiaries or joint ventures that are Special Entities (the Standby
Letters of Credit and Commercial Letters of Credit being referred to
collectively as the "Letters of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments at such time. Each Standby Letter of Credit shall
(i) have an expiry date no later than (A) with respect to any Standby Letter of
Credit to be used for the purposes described in subsection 9.8(a) or (c), one
year from the date of issuance thereof or, if earlier, the Revolving Credit
Termination Date or (B) with respect to any Standby Letter of Credit to be used
for the purposes described in subsection 9.8(b), the Revolving Credit
Termination Date, (ii) be denominated in Dollars or another freely-convertible
currency acceptable to the Issuing Lender and (iii) be in a minimum face amount
of which the U.S. Dollar Equivalent is a minimum of $500,000 determined at the
time of issuance. Each Commercial Letter of Credit shall (i) provide for the
payment of sight drafts when presented for honor thereunder, or of time drafts,
in each case in accordance with the terms thereof and when accompanied by the
documents described or when such documents are presented, as the case may be,
(ii) be denominated in Dollars or another freely-convertible currency
acceptable to the Issuing Lender and (iii) have an expiry date no later than
six months from the date of issuance thereof or, if earlier, five Business Days
prior to the Revolving Credit Termination Date.
(b) Pursuant to the 1995 Agreement, Chase, as Issuing Lender, has
issued the Letters of Credit described in Schedule V (the "Existing Letters of
Credit"). From and after the
65
Closing Date, the Existing Letters of Credit
shall for all purposes be deemed to be Letters of Credit outstanding under this
Agreement.
9.2 Procedure for Issuance of Letters of Credit. The U.S. Borrower
may from time to time request, upon at least three Business Days' notice, Chase
Delaware, as Issuing Lender, to issue a Letter of Credit by delivering to such
Issuing Lender at its address specified in subsection 18.2 a Letter of Credit
Application, completed to the satisfaction of such Issuing Lender, together
with such other certificates, documents and other papers and information as
such Issuing Lender may reasonably request. Upon receipt of any Letter of
Credit Application from the U.S. Borrower, or, in the case of a Foreign Letter
of Credit, from the U.S. Borrower and the Foreign Subsidiary that is an account
party on such Letter of Credit, such Issuing Lender will promptly, but in no
event later than five Business Days following receipt of such Letter of Credit
Application, notify each U.S. Lender thereof. Upon receipt of any Letter of
Credit Application, Chase Delaware, as Issuing Lender, will process such Letter
of Credit Application, and the other certificates, documents and other papers
delivered in connection therewith, in accordance with its customary procedures
and shall promptly issue such Letter of Credit (but in no event earlier than
three Business Days after receipt by such Issuing Lender of the Letter of
Credit Application relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof and by furnishing a copy thereof to the
U.S. Borrower and the Participating Lenders. In addition, the U.S. Borrower
may from time to time agree with Issuing Lenders other than Chase Delaware upon
procedures for issuance by such Issuing Lenders of Letters of Credit and cause
Letters of Credit to be issued by following such procedures. Such procedures
shall be reasonably satisfactory to the General Administrative Agent. Prior
to the issuance of any Letter of Credit, the Issuing Lender will confirm with
the General Administrative Agent that the issuance of such Letter of Credit is
permitted pursuant to Section 9 and subsection 12.2. Additionally, each
Issuing Lender and the U.S. Borrower shall inform the General Administrative
Agent of any modifications made to outstanding Letters of Credit, of any
payments made with respect to such Letters of Credit, and of any other
information regarding such Letters of Credit as may be reasonably requested by
the General Administrative Agent, in each case pursuant to procedures
established by the General Administrative Agent.
9.3 Participating Interests. In the case of each Existing Letter of
Credit, effective on the Closing Date, and in the case of each Letter of Credit
issued in accordance with the terms hereof on or after the Closing Date,
effective as of the date of the issuance thereof, the Issuing Lender in respect
of such Letter of Credit agrees to allot, and does allot, to each other U.S.
Lender, and each such U.S. Lender severally and irrevocably agrees to take and
does take, a Participating Interest in such Letter of Credit and the related
Letter of Credit Application in a percentage equal to such U.S. Lender's U.S.
Revolving Credit Commitment Percentage. On the date that any Purchasing Lender
becomes a party to this Agreement in accordance with subsection 18.6,
Participating Interests in any outstanding Letter of Credit held by the U.S.
Lender from which such Purchasing Lender acquired its interest hereunder shall
be proportionately reallotted between such Purchasing Lender and such
transferor U.S. Lender. Each Participating Lender hereby agrees that its
obligation to participate in each Letter of Credit issued in accordance with
the terms hereof and to pay or to reimburse the Issuing Lender in respect of
such Letter of Credit for its participating share of the drafts drawn
thereunder shall be irrevocable and unconditional; provided that no
Participating Lender shall be liable for the
66
59
payment of any amount under subsection 9.4(b) resulting solely from such
Issuing Lender's gross negligence or willful misconduct.
9.4 Payments. (a) The U.S. Borrower agrees (and in the case of a
Foreign Letter of Credit, the Foreign Subsidiary for whose account such Letter
of Credit was issued shall also agree, jointly and severally) (i) to reimburse
the General Administrative Agent for the account of the relevant Issuing
Lender, forthwith upon its demand and otherwise in accordance with the terms of
the Letter of Credit Application, if any, relating thereto, for any payment
made by such Issuing Lender under any Letter of Credit issued by such Issuing
Lender for its account and (ii) to pay to the General Administrative Agent for
the account of such Issuing Lender, interest on any unreimbursed portion of any
such payment from the date of such payment until reimbursement in full thereof
at a fluctuating rate per annum equal to the rate then borne by ABR Loans
pursuant to subsection 10.1(b) plus 2%.
(b) In the event that an Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor, forthwith upon demand
of such Issuing Lender, and otherwise in accordance with the terms hereof or of
the Letter of Credit Application, if any, relating to such Letter of Credit,
such Issuing Lender will promptly through the General Administrative
Agent notify each Participating Lender that acquired its Participating Interest
in such Letter of Credit from such Issuing Lender. No later than the close of
business on the date such notice is given (if such notice is received by such
Participating Lender by 12:00 Noon, otherwise no later than 12:00 Noon of the
immediately following Business Day), each such Participating Lender will
transfer to the General Administrative Agent, for the account of such Issuing
Lender, in immediately available funds, an amount equal to such Participating
Lender's pro rata share of the unreimbursed portion of such payment. Upon its
receipt from such Participating Lender of such amount, such Issuing Lender
will, if so requested by such Participating Lender, complete, execute and
deliver to such Participating Lender a Letter of Credit Participation
Certificate dated the date of such receipt and in such amount.
(c) Whenever, at any time, after an Issuing Lender has made payment
under a Letter of Credit and has received from any Participating Lender such
Participating Lender's pro rata share of the unreimbursed portion of such
payment, such Issuing Lender receives any reimbursement on account of such
unreimbursed portion or any payment of interest on account thereof, such
Issuing Lender will distribute to the General Administrative Agent, for the
account of such Participating Lender, its pro rata share thereof; provided,
however, that in the event that the receipt by such Issuing Lender of such
reimbursement or such payment of interest (as the case may be) is required to
be returned, such Participating Lender will promptly return to the General
Administrative Agent, for the account of such Issuing Lender, any portion
thereof previously distributed by such Issuing Lender to it.
9.5 Further Assurances. (a) The U.S. Borrower hereby agrees, from
time to time, to do and perform any and all acts and to execute any and all
further instruments reasonably requested by an Issuing Lender more fully to
effect the purposes of this Agreement and the issuance of the Letters of Credit
hereunder.
67
60
(b) It is understood that in connection with Letters of Credit issued
for the purposes described in subsection 9.8(b) it may be customary for
the Issuing Lender in respect of such Letter of Credit to obtain an opinion of
its counsel relating to such Letter of Credit, and each Issuing Lender that
issues such a Letter of Credit agrees to cooperate with the U.S. Borrower in
obtaining such customary opinion, which opinion shall be at the U.S. Borrower's
expense unless otherwise agreed to by such Issuing Lender.
9.6 Obligations Absolute. The payment obligations of the U.S.
Borrower under subsection 9.4 shall be unconditional and irrevocable and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, under the following
circumstances:
(a) the existence of any claim, set-off, defense or other right
which the U.S. Borrower may have at any time against any beneficiary, or
any transferee, of any Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Lender or
any Participating Lender, or any other Person, whether in connection
with this Agreement, the transactions contemplated herein, or any
unrelated transaction;
(b) any statement or any other document presented under any Letter
of Credit opened for its account proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect, except under circumstances involving
the gross negligence or willful misconduct of the Issuing Lender; or
(c) payment by an Issuing Lender under any Letter of Credit against
presentation of a draft or certificate which does not comply with the
terms of such Letter of Credit, except payment resulting solely from the
gross negligence or willful misconduct of such Issuing Lender; or
(d) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except circumstances or happenings
resulting from the gross negligence or willful misconduct of such Issuing
Lender.
9.7 Letter of Credit Application. To the extent not inconsistent
with the terms of this Agreement (in which case the provisions of this
Agreement shall prevail), provisions of any Letter of Credit Application
related to any Letter of Credit are supplemental to, and not in derogation of,
any rights and remedies of the Issuing Lenders and the Participating Lenders
under this Section 9 and applicable law. The U.S. Borrower acknowledges and
agrees that all rights of the Issuing Lender under any Letter of Credit
Application shall inure to the benefit of each Participating Lender to the
extent of its Participating Interest as fully as if such Participating Lender
was a party to such Letter of Credit Application.
9.8 Purpose of Letters of Credit. Each Standby Letter of Credit
shall be used by the U.S. Borrower solely (a) to provide credit support for
borrowings by the U.S. Borrower, its Subsidiaries or joint ventures which
are Special Entities, (b) to pay or secure the payment of the
68
61
principal amount of, and accrued interest on, and other obligations with
respect to, Industrial Revenue Bonds in accordance with the provisions of the
indenture related thereto, or (c) for other working capital purposes of the
U.S. Borrower and Subsidiaries in the ordinary course of business. Each
Commercial Letter of Credit will be used by the U.S. Borrower and Subsidiaries
solely to provide the primary means of payment in connection with the purchase
of goods or services by the U.S. Borrower and Subsidiaries in the ordinary
course of business.
9.9 Currency Adjustments. (a) Notwithstanding anything to the
contrary contained in this Agreement, for purposes of calculating any fee in
respect of any Letter of Credit in respect of any Business Day, the
General Administrative Agent shall convert the amount available to be drawn
under any Letter of Credit denominated in a currency other than U.S. Dollars
into an amount of U.S. Dollars based upon the Exchange Rate.
(b) Notwithstanding anything to the contrary contained in this Section 9,
prior to demanding any reimbursement from the Participating Lenders pursuant to
subsection 9.4(b) in respect of any Letter of Credit denominated in a currency
other than U.S. Dollars, the Issuing Lender shall convert the relevant
Borrower's obligation under subsection 9.4 to reimburse the Issuing Lender in
such currency into an obligation to reimburse the Issuing Lender in U.S.
Dollars. The U.S. Dollar amount of the reimbursement obligation of the
relevant Borrower and the Participating Lenders shall be computed by the
Issuing Lender based upon the Exchange Rate in effect for the day on which such
conversion occurs.
SECTION 10. GENERAL PROVISIONS APPLICABLE TO LOANS
10.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day.
(c) Each Prime Rate Loan shall bear interest for each day on which
it is outstanding at a rate per annum equal to the Prime Rate for such day.
(d) Each Canadian Base Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Canadian Base Rate for
such day.
(e) Each Multicurrency Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate determined for such Interest Period plus the Applicable
Margin in effect for such day.
(f) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear
69
62
interest at a rate per annum equal to the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection
plus 2%.
(g) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (f) of this
subsection shall be payable from time to time on demand.
10.2 Conversion and Continuation Options. (a) The U.S. Borrower
may elect from time to time to convert outstanding Eurodollar Loans (in whole
or in part) to ABR Loans by giving the General Administrative Agent at least
one Business Day's prior irrevocable notice of such election, provided that
any such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto unless the U.S. Borrower shall agree to
pay the costs associated therewith as set forth in subsection 10.11(d). The
U.S. Borrower may elect from time to time to convert outstanding ABR Loans made
to it (other than Swing Line Loans) (in whole or in part) to Eurodollar Loans
by giving the General Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the General
Administrative Agent shall promptly notify each U.S. Lender thereof. All or
any part of outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no ABR Loan may be converted into a
Eurodollar Loan when any Default or Event of Default has occurred and is
continuing and the General Administrative Agent or the Majority U.S. Lenders
have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 10.3
shall not have been violated, (iii) no ABR Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Termination Date and (iv) Swing Line Loans may not be converted to Eurodollar
Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
U.S. Borrower giving notice to the General Administrative Agent of the length
of the next Interest Period to be applicable to such Loans determined in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, provided that no Eurodollar Loan may be continued as
such (i) when any Default or Event of Default has occurred and is continuing
and the General Administrative Agent or the Majority U.S. Lenders have
determined that such continuation is not appropriate, (ii) if, after giving
effect thereto, subsection 10.3 would be contravened or (iii) after the date
that is one month prior to the Revolving Credit Termination Date, and provided,
further, that if the U.S. Borrower shall fail to give such notice or if such
continuation is not permitted pursuant to the preceding proviso such Eurodollar
Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
U.S. Borrower or the relevant Foreign Subsidiary Borrower giving a Notice of
Multicurrency Loan Continuation, provided, that if the relevant Foreign
Subsidiary Borrower shall fail to give such Notice of Multicurrency Loan
Continuation, such Multicurrency Loans shall automatically be continued for an
Interest Period of one month.
70
63
10.3 Minimum Amounts of Tranches. (a) All borrowings, conversions
and continuations of U.S. Revolving Credit Loans and Multicurrency Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of the Eurodollar Loans comprising
each Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in
excess thereof, (ii) the aggregate principal amount of the Multicurrency Loans
comprising each Tranche shall be in an amount of which the U.S. Dollar
Equivalent is at least $2,500,000 (determined at the time of borrowing or
continuation) and (iii) there shall not be more than 25 Tranches at any one
time outstanding.
(b) All Acceptances created hereunder, all conversions and
continuations thereof and all selections of maturity dates with respect
thereto shall be made pursuant to such elections so that, after giving effect
thereto, there shall be no more than 10 Acceptance Tranches at any one time
outstanding.
10.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower
may at any time and from time to time prepay U.S. Revolving Credit Loans
and/or Swing Line Loans, in whole or in part without premium or penalty upon at
least three Business Days' irrevocable notice to the General Administrative
Agent (in the case of Eurodollar Loans) and at least one Business Day's
irrevocable notice to the General Administrative Agent (in the case of U.S.
Revolving Credit Loans that are ABR Loans) specifying the date and amount of
prepayment and whether the prepayment of U.S. Revolving Credit Loans is of
Eurodollar Loans, ABR Loans or a combination thereof, and, if a combination
thereof, the amount allocable to each. Upon the receipt of any such notice the
General Administrative Agent shall promptly notify each U.S. Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein. Partial prepayments of the U.S.
Revolving Credit Loans shall be in an aggregate principal amount of $10,000,000
or a whole multiple of $1,000,000 in excess thereof. Partial prepayments of
the Swing Line Loans shall be in aggregate principal amount of $100,000 or a
whole multiple of $100,000 in excess thereof.
(b) The Canadian Borrower may at any time and from time to time
prepay, without premium or penalty, the Canadian Revolving Credit Loans, in
whole or in part, upon at least one Business Day's irrevocable notice to
the Canadian Administrative Agent specifying the date and amount of prepayment.
Upon the receipt of any such notice, the Canadian Administrative Agent shall
promptly notify each Canadian Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments of Canadian Revolving Credit Loans shall be in an
aggregate principal amount of C$5,000,000 or a whole multiple of C$1,000,000 in
excess thereof (in the case of Canadian Revolving Credit Loans denominated in
Canadian Dollars) or U.S.$5,000,000 or a whole multiple of US$1,000,000 in
excess thereof (in the case of Canadian Revolving Credit Loans denominated in
U.S. Dollars.
(c) The U.S. Borrower and Foreign Subsidiary Borrowers may at any
time and from time to time prepay, without premium or penalty, the
Multicurrency Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the General Administrative Agent specifying the date
and amount of prepayment. Upon the receipt of any such notice, the General
71
64
Administrative Agent shall promptly notify each Multicurrency Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein. Partial prepayments of
Multicurrency Loans shall be in an aggregate principal amount of which the U.S.
Dollar Equivalent is at least $10,000,000 or a whole multiple of $1,000,000 in
excess thereof.
(d) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Total Outstandings of all Lenders exceed
the Aggregate U.S. Revolving Credit Commitments then in effect by more than 5%,
or the Aggregate Committed Outstandings of any Lender exceeds the Revolving
Credit Commitment of such Lender then in effect by more than 5%, (i) the U.S.
Borrower shall, upon learning thereof or upon the request of the General
Administrative Agent, immediately prepay the Swing Line Loans and the U.S.
Revolving Credit Loans and/or (ii) the Canadian Borrower shall, upon learning
thereof or upon the request of the General Administrative Agent, immediately
prepay the Canadian Revolving Credit Loans and/or (iii) the Foreign Subsidiary
Borrowers shall, upon learning thereof or upon the request of the General
Administrative Agent, immediately prepay the Multicurrency Loans and/or (iv)
the Alternate Currency Borrower shall, upon learning thereof or upon the
request of the General Administrative Agent, immediately prepay Alternate
Currency Loans, in an aggregate principal amount at least sufficient to reduce
any such excess to 0%; provided, however, that nothing in this subsection shall
be construed as requiring the Canadian Borrower to so prepay in amounts (i)
that would be in violation of, and its obligations to so prepay are subject to,
the restrictions on financial assistance set out in the Business Corporations
Act (Ontario) or (ii) outstanding by way of Acceptances; and, provided,
further, that the preceding proviso shall not be construed in any way as
limiting or derogating from the obligations of the Borrowers (other than the
Canadian Borrower) set out in this subsection.
(e) Each prepayment of Loans pursuant to this subsection 10.4 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under subsection 10.11 in connection with
such prepayment.
(f) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans, Multicurrency Loans or Alternate Currency Loans that would
otherwise be required pursuant to this subsection 10.4 solely as a result of
fluctuations in Exchange Rates from time to time shall only be required to be
made pursuant to this subsection 10.4 on the last Business Day of each month on
the basis of the Exchange Rate in effect on such Business Day.
(g) The U.S. Borrower shall prepay all Swing Line Loans then
outstanding simultaneously with each borrowing of U.S. Revolving Credit Loans.
10.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees to
pay to the General Administrative Agent for the account of each U.S.
Lender, a facility fee for the period from and including the Closing Date to
but excluding the Revolving Credit Termination Date (or such earlier date on
which the Revolving Credit Commitments shall terminate as provided herein);
each such facility fee shall be computed at the Facility Fee Rate on the amount
of the U.S. Revolving Credit Commitment of such U.S. Lender during the period
for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December
72
65
and on the Revolving Credit Termination Date or such earlier date on which the
U.S. Revolving Credit Commitments shall terminate as provided herein,
commencing on the first such date to occur after the date hereof. Each
U.S. Common Lender and its Counterpart Lender may elect, upon notice to the
U.S. Borrowers and the Administrative Agents, to have all or a portion of the
facility fees owed to such U.S. Common Lender by the U.S. Borrower paid by the
Canadian Borrower in Canadian Dollars directly to the Canadian Administrative
Agent for the account of such U.S. Common Lender's Counterpart Lender. Each
U.S. Common Lender and its Counterpart Lender may make such election no more
often than once in any year. If any such election is made, amounts otherwise
due in U.S. Dollars in respect of facility fees shall be converted to Canadian
Dollars at the then Exchange Rate on the date which is one Business Day prior
to the date such amount is due.
(b) The U.S. Borrower shall pay (without duplication of any other fee
payable under this subsection 10.5) to Chase and CSI, for their respective
accounts, all fees separately agreed to by the U.S. Borrower and Chase or CSI,
as the case may be.
(c) The Canadian Borrower shall (without duplication of any other
fee payable under this subsection 10.5) pay to the Canadian Administrative
Agent all fees separately agreed to by the Canadian Borrower and the Canadian
Administrative Agent.
(d) The U.S. Borrower shall (without duplication of any other fee
payable under this subsection 10.5) pay to the General Administrative Agent all
fees separately agreed to by the U.S. Borrower and the General Administrative
Agent.
(e) In lieu of any letter of credit commissions and fees provided
for in any Letter of Credit Application (other than any standard
issuance, amendment and negotiation fees), the U.S. Borrower will pay the
General Administrative Agent, (i) for the account of the Issuing Lender, a
non-refundable fronting fee equal to 0.125% per annum and (ii) for the account
of the U.S. Lenders, a non-refundable Letter of Credit fee equal to the
Applicable Margin less 0.125%, in each case on the amount available to be drawn
under such Letter of Credit. Such fee shall be payable quarterly in arrears on
the last Business Day of each calendar quarter, and shall be calculated on the
average daily amount available to be drawn under the Letters of Credit.
(f) The U.S. Borrower agrees to pay the Issuing Lender for its own
account its customary administration, amendment, transfer and negotiation fees
charged by the Issuing Lender in connection with its issuance and
administration of Letters of Credit.
10.6 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate or the Eurocurrency Rate shall be calculated on the
basis of a 360-day year for the actual days elapsed; and facility fees and
interest (other than interest based upon the Eurodollar Rate or the
Eurocurrency Rate) shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The General Administrative
Agent shall as soon as practicable notify the U.S. Borrower and the U.S.
Lenders of each determination of a Eurodollar Rate or a Eurocurrency Rate. Any
change in the interest rate on a Loan resulting from a change in the Alternate
Base Rate or a change in the Prime Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
General Administrative
73
66
Agent shall as soon as practicable notify the U.S. Borrower and the Lenders of
the effective date and the amount of each such change in the Alternate Base
Rate, and the Canadian Administrative Agent shall as soon as practicable notify
the U.S. Borrower and Canadian Borrower and the Canadian Lenders of each such
change in the Prime Rate and the Canadian Base Rate. For purposes of the
Interest Act (Canada), whenever any interest under this Agreement is calculated
based on a period which is less than a year (the "Lesser Period"), the interest
rate determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (i) the applicable rate based on such Lesser Period, (ii)
multiplied by the actual number of days in the calendar year in which the
period for which such interest is payable ends, and (iii) divided by the number
of days in such Lesser Period. The rates of interest specified in this
Agreement are nominal rates and all interest payments and computations are to
be made without allowance or deduction for deemed reinvestment of interest.
(b) Each determination of an interest rate by the General Administrative
Agent or the Canadian Administrative Agent, as the case may be, pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers
and the Lenders in the absence of manifest error. Each Administrative Agent
shall, at the request of a Borrower, deliver to such Borrower a statement
showing in reasonable detail the calculations used by such Administrative Agent
in determining any interest rate pursuant to subsection 10.1(a).
(c)(i) If any U.S. Reference Lender shall for any reason no longer have a
U.S. Revolving Credit Commitment or any U.S. Revolving Credit Loans, such U.S.
Reference Lender shall thereupon cease to be a U.S. Reference Lender, and if,
as a result, there shall only be one U.S. Reference Lender remaining, the
General Administrative Agent, with the consent of the U.S. Borrower (after
consultation with U.S. Lenders) shall, by notice to the U.S. Borrower and the
U.S. Lenders, designate another U.S. Lender as a U.S. Reference Lender so that
there shall at all times be at least two U.S. Reference Lenders.
(ii) If any Canadian Reference Lender shall for any reason no longer have a
Canadian Revolving Credit Commitment or any Canadian Revolving Credit Loans,
such Canadian Reference Lender shall thereupon cease to be a Canadian Reference
Lender, and if, as a result, there shall only be one Schedule I Canadian
Reference Lender or Schedule II Canadian Reference Lender (as the case may be)
remaining, the Canadian Administrative Agent, with the consent of the Canadian
Borrower (after consultation with the Schedule I Canadian Lenders or the
Schedule II Canadian Lenders, as applicable) shall, by notice to the Canadian
Borrower and the Canadian Lenders, designate another Schedule I Canadian Lender
or Schedule II Canadian Lender, as applicable, as a Schedule I Canadian
Reference Lender or a Schedule II Canadian Reference Lender, as applicable, so
that there shall at all times be at least two Schedule I Canadian Reference
Lenders and two Schedule II Canadian Reference Lenders.
(d) Each U.S. and Canadian Reference Lender shall use its best efforts to
furnish quotations of rates to the applicable Administrative Agent as
contemplated hereby. If any of the U.S. or Canadian Reference Lenders shall be
unable or shall otherwise fail to supply such rates to the applicable
Administrative Agent upon its request, the rate of interest shall, subject to
the provisions of subsection 10.7, be determined on the basis of the quotations
of the remaining U.S. or Canadian Reference Lenders or Reference Lender, as
applicable.
74
67
10.7 Inability to Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) the General Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the General Administrative Agent has received notice from the
Majority U.S. Lenders that the Eurodollar Rate or Eurocurrency Rate, as
the case may be, determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such U.S. Lenders of
making or maintaining their Eurodollar Loans or Multicurrency Loans, as
the case may be, during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the U.S. Borrower and the U.S. Lenders as soon as practicable
thereafter. Until such time as the Eurodollar Rate or the Eurocurrency Rate,
as the case may be, can be determined by the General Administrative Agent in
the manner specified in the definitions of such terms in subsection 1.1, no
further Eurodollar Loans or Multicurrency Loans (with respect to the Available
Currency for which the Eurocurrency Rate cannot be determined only) shall be
continued as such at the end of the then current Interest Periods or (other
than any Eurodollar Loans or Multicurrency Loans previously requested and with
respect to which the Eurodollar Rate or Eurocurrency Rate, as the case may be,
was determined) shall be made, nor shall the U.S. Borrower have the right to
convert ABR Loans into Eurodollar Loans.
10.8 Pro Rata Treatment and Payments. (a) (i) Except as provided in
subsections 2.5 and 18.21, each borrowing of U.S. Revolving Credit Loans by the
U.S. Borrower from the U.S. Lenders hereunder shall be made pro rata according
to the Funding Commitment Percentages of the U.S. Lenders in effect on the date
of such borrowing. Each payment by the U.S. Borrower on account of any
facility fee hereunder shall be allocated by the General Administrative Agent
among the U.S. Lenders in accordance with the respective amounts which such
U.S. Lenders are entitled to receive pursuant to subsection 10.5(a). Any
reduction of the U.S. Revolving Credit Commitments of the U.S. Lenders shall be
allocated by the General Administrative Agent among the U.S. Lenders pro rata
according to the U.S. Revolving Credit Commitment Percentages of the U.S.
Lenders. Except as provided in subsection 2.5 or subsection 10.4(d), each
payment (other than any optional prepayment) by the U.S. Borrower on account of
principal of or interest on the U.S. Revolving Credit Loans or the CAF Advances
shall be allocated by the General Administrative Agent pro rata according to
the respective principal amounts thereof then due and owing to each U.S.
Lender. Each optional prepayment by the U.S. Borrower on account of principal
of or interest on the U.S. Revolving Credit Loans shall be allocated by the
General Administrative Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the U.S. Borrower hereunder (other than with respect to Multicurrency Loans),
whether on account of principal, interest, fees or otherwise, shall be made
without set-off or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the General
75
68
Administrative Agent, for the account of the U.S. Lenders, at the General
Administrative Agent's office specified in subsection 18.2, in Dollars and in
immediately available funds. The General Administrative Agent shall distribute
such payments to the U.S. Lenders entitled to receive the same promptly upon
receipt in like funds as received.
(ii) Each borrowing of Canadian Revolving Credit Loans by the Canadian
Borrower from the Canadian Lenders hereunder shall be made, and any reduction
of the Canadian Revolving Credit Commitments of the Canadian Lenders shall be
allocated by the Canadian Administrative Agent, pro rata according to the
Canadian Revolving Credit Commitment Percentages of the Canadian Lenders.
Except as provided in subsection 10.4(d), each payment (other than any optional
prepayment) by the Canadian Borrower on account of principal of or interest on
the Canadian Revolving Credit Loans shall be allocated by the Canadian
Administrative Agent pro rata according to the respective principal amounts of
the Canadian Revolving Credit Loans then due and owing to each Canadian Lender.
Each optional prepayment by the Canadian Borrower on account of principal of
or interest on the Canadian Revolving Credit Loans shall be allocated by the
Canadian Administrative Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the Canadian Borrower hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without set-off or counterclaim and shall be
made prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian
Administrative Agent, for the account of the Canadian Lenders, at the Canadian
Administrative Agent's office specified in subsection 18.2, in Canadian Dollars
and in immediately available funds. The Canadian Administrative Agent shall
distribute such payments to the Canadian Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(iii) Each borrowing of Multicurrency Loans by the U.S. Borrower or
any Foreign Subsidiary Borrower shall be made, and any reduction of the
Multicurrency Commitments shall be allocated by the General Administrative
Agent, pro rata according to the Multicurrency Commitment Percentages of the
Multicurrency Lenders. Except as provided in subsection 10.4(d), each payment
(including each prepayment) by the U.S. Borrower or a Foreign Subsidiary
Borrower on account of principal of and interest on Multicurrency Loans shall
be allocated by the General Administrative Agent pro rata according to the
respective principal amounts of the Multicurrency Loans then due and owing by
such Foreign Subsidiary Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by a Borrower hereunder in respect of
Multicurrency Loans, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made at
or before the payment time for the currency of such Multicurrency Loan set
forth in the Administrative Schedule, on the due date thereof to the General
Administrative Agent, for the account of the Multicurrency Lenders, at the
payment office for the currency of such Multicurrency Loan set forth in the
Administrative Schedule, in the currency of such Multicurrency Loan and in
immediately available funds. The General Administrative Agent shall distribute
such payments to the Multicurrency Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on the Eurodollar
Loans, the Multicurrency Loans and the Acceptances) becomes due and payable on
a day other than a
76
69
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurodollar Loan or a Multicurrency Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. Acceptances may only mature on
a Business Day.
(b) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such
Lender will not make the amount that would constitute its share of such
borrowing available to such Administrative Agent, such Administrative Agent may
assume that such Lender is making such amount available to such Administrative
Agent, and such Administrative Agent may, in reliance upon such assumption,
make available to the applicable Borrower a corresponding amount. If such
amount is not made available to such Administrative Agent by the required time
on the Borrowing Date therefor, such Lender shall pay to such Administrative
Agent, on demand, such amount with interest thereon at a rate per annum equal
to (i) the daily average Federal Funds Effective Rate (in the case of a
borrowing of U.S. Revolving Credit Loans or CAF Advances), (ii) the Canadian
Administrative Agent's reasonable estimate of its average daily cost of funds
(in the case of a borrowing of Canadian Revolving Credit Loans or Acceptances)
and (iii) the General Administrative Agent's reasonable estimate of its average
daily cost of funds (in the case of a borrowing of Multicurrency Loans), in
each case for the period until such Lender makes such amount immediately
available to such Administrative Agent. A certificate of such Administrative
Agent submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Lender's share of such borrowing is not made available to such Administrative
Agent by such Lender within three Business Days of such Borrowing Date, the
applicable Borrower shall repay such Lender's share of such borrowing (together
with interest thereon from the date such amount was made available to such
Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in the
case of amounts made available to the U.S. Borrower and amounts made available
in U.S. Dollars to the Canadian Borrower), (ii) at the rate per annum
applicable to Prime Rate Loans hereunder (in the case of amounts made available
in Canadian Dollars to the Canadian Borrower) and (iii) the General
Administrative Agent's reasonable estimate of its average daily cost of funds
plus the Applicable Margin applicable to Multicurrency Loans (in the case of a
borrowing of Multicurrency Loans)) to such Administrative Agent not later than
three Business Days after receipt of written notice from such Administrative
Agent specifying such Lender's share of such borrowing that was not made
available to such Administrative Agent. Nothing contained in this subsection
10.8(b) shall prejudice any claims otherwise available to any Borrower against
any Lender as a result of such Lender's failure to make its share of any
borrowing available to an Administrative Agent for the account of a Borrower.
10.9 Illegality. (i) Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans or Multicurrency Loans
77
70
as contemplated by this Agreement, (a) the commitment of such Lender hereunder
to make Eurodollar Loans or Multicurrency Loans, continue Eurodollar Loans or
Multicurrency Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled until such time as it shall no longer be unlawful for
such Lender to make or maintain the affected Loans, (b) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to ABR Loans on the respective last days of the then current Interest Periods
with respect to such Eurodollar Loans or within such earlier period as may be
required by law and (c) such Lender's Multicurrency Loans shall be prepaid on
the last day of the then current Interest Period with respect thereto. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period Interest Period with respect thereto, the
U.S. Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 10.11.
(ii) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Canadian Lender to create or maintain
Acceptances as contemplated by this Agreement, (a) the commitment of such
Canadian Lender hereunder to accept Drafts, purchase Acceptances, continue
Acceptances as such and convert Canadian Revolving Credit Loans to Acceptances
shall forthwith be cancelled until such time as it shall no longer be unlawful
for such Canadian Lender to create or maintain Acceptances and (b) such
Canadian Lender's then outstanding Acceptances, if any, shall be converted
automatically to Prime Rate Loans on the respective maturities thereof or
within such earlier period as may be permitted and required by law.
(iii) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Canadian Lender to make or maintain
Canadian Base Rate Loans, (a) the commitment of such Canadian Lender hereunder
to make Canadian Base Rate Loans shall forthwith be cancelled until such time
as it shall no longer be unlawful for such Canadian Lender to make or maintain
Canadian Base Rate Loans and (b) such Canadian Lender's then outstanding
Canadian Base Rate Loans, if any, shall be converted automatically to Canadian
Dollars and Prime Rate Loans on the respective maturities thereof or within
such earlier period as may be permitted and required by law.
10.10 Requirements of Law. (a) In the event that any Requirement
of Law (or any change therein or in the interpretation or application thereof)
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Acceptance
created by it, any Letter of Credit issued or participated in by it or
any Loans made by it, or change the basis of taxation of payments to such
Lender of principal, fees, interest or any other amount payable
hereunder (except for taxes covered by subsection 10.12 and changes in
the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against
assets held by, or deposits or
78
71
other liabilities in or for the account of, advances or loans by, or
other credit extended by, or any other acquisition of funds by, any
office of such Lender which are not otherwise included in the
determination of the Eurodollar Rate or Eurocurrency Rate, including,
without limitation, the imposition of any reserves with respect to
Eurocurrency Liabilities under Regulation D of the Board; or
(iii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Loans, its Acceptances or its
Participating Interests, then, in any such case, the applicable Borrower shall
promptly pay such Lender, upon receipt of its demand setting forth in
reasonable detail, any additional amounts necessary to compensate such Lender
for such additional cost or reduced amount receivable, such additional amounts
together with interest on each such amount from the date two Business Days
after the date demanded until payment in full thereof at the ABR. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence submitted by such Lender, through the General Administrative Agent, to
the applicable Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of
all amounts outstanding hereunder.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital adequacy
(or any change therein or in the interpretation or application thereof) or
compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority, including,
without limitation, the issuance of any final rule, regulation or guideline,
does or shall have the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of its obligations hereunder to
a level below that which such Lender or such corporation could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the U.S. Borrower (with a copy to the
Administrative Agent) of a written request therefor, the U.S. Borrower shall
promptly pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.
(c) If the obligation of any Lender to make Eurodollar Loans or
Multicurrency Loans has been suspended pursuant to subsection 10.7 or 10.9 for
more than three consecutive months or any Lender has demanded compensation
under subsection 10.10(a) or 10.10(b), the U.S. Borrower shall have the right
to substitute a financial institution or financial institutions (which may be
one or more of the Lenders) reasonably satisfactory to the General
Administrative Agent by causing such financial institution or financial
institutions to purchase the rights (by paying to such Lender the principal
amount of its outstanding Loans together with accrued interest thereon and all
other amounts accrued for its account or owed to it hereunder and executing an
Assignment and Acceptance) and to assume the obligations of such Lender under
the Loan Documents. Upon such purchase and assumption by such substituted
financial
79
72
institution or financial institutions, the obligations of such Lender
hereunder shall be discharged; provided such Lender shall retain its rights
hereunder with respect to periods prior to such substitution including, without
limitation, its rights to compensation under this subsection 10.10.
10.11 Indemnity. Each Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in
payment when due of the principal amount of or interest on any Loans of such
Lender, (b) default by such Borrower in making a borrowing or conversion after
the Borrower has given a notice of borrowing or a notice of conversion in
accordance with this Agreement, (c) default by such Borrower in making any
prepayment after such Borrower has given a notice in accordance with this
Agreement, (d) the making of a prepayment of a Eurodollar Loan or Multicurrency
Loan on a day which is not the last day of an Interest Period with respect
thereto, or (e) the prepayment of an Acceptance or an Acceptance Note on a day
which is not the maturity date thereof, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it to maintain its Eurodollar Loans or Multicurrency Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained. A
certificate as to any such loss or expense submitted by such Lender shall be
conclusive, absent manifest error. This covenant shall survive termination of
this Agreement and payment of all amounts outstanding hereunder.
10.12 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding, in the case of each Administrative Agent and
each Lender, income or franchise taxes imposed on such Administrative Agent or
such Lender by the jurisdiction under the laws of which such Administrative
Agent or such Lender is organized or any political subdivision or taxing
authority thereof or therein or by any jurisdiction in which such Lender's
lending office is located or any political subdivision or taxing authority
thereof or therein or as a result of a connection between such Lender and any
jurisdiction other than a connection resulting solely from entering into this
Agreement (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being thereinafter called "Taxes"). Subject to the provisions of
subsection 10.12(d), if any Taxes are required to be withheld from any amounts
payable by such Borrower to any Administrative Agent or any Lender hereunder or
under the Notes, the amounts so payable to such Administrative Agent or such
Lender shall be increased to the extent necessary to yield to such
Administrative Agent or such Lender (after payment of all Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes. Whenever any Taxes are paid by any
Borrower with respect to payments made in connection with this Agreement, as
promptly as possible thereafter, such Borrower shall send to the applicable
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. Subject to the provisions of subsection
10.12(d), if any Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the applicable Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify such Administrative Agent
80
73
and the Lenders for any incremental taxes, interest or penalties that may
become payable by such Administrative Agent or any Lenders as a result of any
such failure.
(b) Each U.S. Lender that is not incorporated or organized under the
laws of the United States of America or a state thereof agrees that, prior to
the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the U.S. Borrower and the General Administrative Agent
(i) two valid, duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be, certifying
in each case that such Lender is entitled to receive payments by the U.S.
Borrower under this Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, and (ii) a valid, duly
completed Internal Revenue Service Form W-8 or W-9 or successor applicable
form, as the case may be, to establish an exemption from United States backup
withholding tax. Each Lender which delivers to the U.S. Borrower and the
General Administrative Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant
to the next preceding sentence further undertakes to deliver to the U.S.
Borrower and the General Administrative Agent two further copies of the said
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or other
manner or certification, as the case may be, on or before the date that any
such form expires or becomes obsolete or otherwise is required to be
resubmitted as a condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the U.S. Borrower, and such extensions or
renewals thereof as may reasonably be requested by the U.S. Borrower,
certifying in the case of a Form 1001 or 4224 that such Lender is entitled to
receive payments by the U.S. Borrower under this Agreement without deduction or
withholding of any United States federal income taxes, unless any change in
treaty, law or regulation or official interpretation thereof has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such letter or form with respect to it and
such Lender advises the U.S. Borrower that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
(c) Each Lender shall, upon request by a Foreign Subsidiary Borrower
(or the U.S. Borrower on its behalf), within a reasonable period of time after
such request, deliver to the Foreign Subsidiary Borrower or the applicable
governmental or taxing authority, as the case may be, any form or certificate
required in order that any payment by the Foreign Subsidiary Borrower under
this Agreement or any Notes to such Lender may be made free and clear of, and
without deduction or withholding for or on account of any Taxes (or to allow
any such deduction or withholding to be at a reduced rate) imposed on such
payment under the laws of the jurisdiction under which such Foreign Subsidiary
Borrower is incorporated or organized, provided that such Lender is legally
entitled to complete, execute and deliver such form or certificate and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(d) Neither the U.S. Borrower nor any other Borrower shall be
required to pay any additional amounts to the General Administrative Agent or
any Lender (or Transferee except to the extent such Transferee's
transferor was entitled, at the time of transfer, to receive
81
74
additional amounts from the U.S. Borrower) in respect of Taxes pursuant
to subsection 10.12(a) if (i) the obligation to pay such additional amounts
would not have arisen but for a failure by the General Administrative Agent or
such Lender (or Transferee) to comply with the requirements of subsection
10.12(b) or (c) (or in the case of a Transferee, the requirements of subsection
18.6(h)).
(e) Each Multicurrency Lender that is not incorporated or organized
under the laws of the jurisdiction under which a Foreign Subsidiary Borrower is
incorporated or organized shall, upon request by such Foreign Subsidiary
Borrower, within a reasonable period of time after such request, deliver to
such Foreign Subsidiary Borrower or the applicable governmental or taxing
authority, as the case may be, any form or certificate required in order that
any payment by such Foreign Subsidiary Borrower under this Agreement to such
Lender may be made free and clear of, and without deduction or withholding for
or on account of any Taxes (or to allow any such deduction or withholding to be
at a reduced rate) imposed on such payment under the laws of the jurisdiction
under which such Foreign Subsidiary Borrower is incorporated or organized,
provided that such Multicurrency Lender is legally entitled to complete,
execute and deliver such form or certificate and in such Lender's reasonable
judgment such completion, execution or submission would not materially
prejudice the legal position of such Multicurrency Lender.
(f) The Canadian Borrower shall not be requested to pay any additional
amounts pursuant to this subsection 10.12 to any Canadian Lender in respect of
any time after which such Canadian Lender has ceased to maintain its status as
a resident of Canada for the purposes of the Tax Act.
(g) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection
10.12; provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(h) The agreements in subsection 10.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder until the expiration of the applicable statute of
limitations for such taxes.
10.13 Assignment of Commitments Under Certain Circumstances. (a)
In the event that any Lender shall have delivered a notice or certificate
pursuant to subsection 10.10 or any Borrower has been required to pay any Taxes
in respect of any Lender pursuant to subsection 10.12, the U.S. Borrower shall
have the right, at its own expense, upon notice to such Lender and the General
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
subsection 18.6) all its interests, rights and obligations under this
Agreement to another bank or financial institution identified by the U.S.
Borrower and reasonably acceptable to the General Administrative Agent (subject
to the restrictions contained in subsection 18.6) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the Borrower
or the assignee, as the
82
75
case may be, shall pay to the transferor Lender in immediately available funds
on the date of such assignment the principal of and interest accrued to the
date of payment on the Loans made by it hereunder and all other amounts accrued
for its account or owed to it hereunder, including, without limitation, amounts
payable pursuant to subsection 10.10 and any amounts that would be payable
under Subsection 10.11 if such amount were a prepayment made in the amount and
on the date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers
hereunder to be made free and clear of, and without deduction or withholding
for or on account of, any Taxes, the U.S. Borrower may, so long as no Event of
Default has occurred and is continuing, require such Multicurrency Lender, upon
five Business Days' prior written notice from the U.S. Borrower, to assign the
entire then outstanding principal amount of the Multicurrency Loans owing to
such Multicurrency Lender and the entire Multicurrency Commitment of such
Multicurrency Lender to one or more Lenders selected by the U.S. Borrower
which, after giving effect to such assignment, will have a U.S. Revolving
Credit Commitment in excess of its Multicurrency Commitment. In the case of
any such assignment to another Lender, such assignee Lender shall assign to
such assignor Multicurrency Lender a principal amount of outstanding U.S.
Revolving Credit Loans owing to such assignee Lender equal to the lesser of (i)
the U.S. Dollar Equivalent of the amount of Multicurrency Loans assigned to
such assignee Lender and (ii) the aggregate outstanding principal amount of
U.S. Revolving Credit Loans owing to such assignee Lender. Any such
assignments pursuant to the two precedent sentences shall be effected in
accordance with subsection 18.6(c) and, as a condition to such assignment,
simultaneously with such assignment, the U.S. Borrower shall pay or cause to be
paid all amounts due to the assignor Multicurrency Lender and the assignee
Lender hereunder on the effective date of such assignments.
10.14 Use of Proceeds. The proceeds of the Loans shall be used for
general corporate purposes of the U.S. Borrower and its Subsidiaries, including
acquisitions permitted hereunder.
SECTION 11. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans, and to induce the Issuing Lender to issue Letters of Credit, each
Borrower hereby represents and warrants to each Administrative Agent and to
each Lender that:
11.1 Financial Statements. The audited consolidated balance sheets
of the U.S. Borrower as of December 31, 1995 and the related statements of
income and cash flow for the fiscal year ending on such date, heretofore
furnished to the General Administrative Agent and the Lenders and certified by
a Responsible Officer of the U.S. Borrower are complete and correct in all
material respects and fairly present the financial condition of the U.S.
Borrower on such date in conformity with GAAP applied on a consistent basis
(subject to normal year-end adjustments). All liabilities, direct and
contingent, of the U.S. Borrower on such date required to be disclosed pursuant
to GAAP are disclosed in such financial statements.
83
76
11.2 No Change. There has been no material adverse change in the
business, operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole from that reflected on the
financial statements dated December 31, 1995 referred to in subsection 11.1.
11.3 Corporate Existence; Compliance with Law. The U.S. Borrower and
each of its Material Subsidiaries (a) is duly organized, validly existing and
in good standing (or the functional equivalent thereof in the case of Foreign
Subsidiaries) under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing (or the functional equivalent thereof in the
case of Foreign Subsidiaries) under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a material
adverse effect on the business, operations, property or financial or other
condition of the U.S. Borrower and its Subsidiaries taken as a whole and would
not adversely affect the ability of any Loan Party to perform its respective
obligations under the Loan Documents to which it is a party and (d) is in
compliance with all Requirements of Law, except to the extent that the failure
to comply therewith would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the business, operations, assets
or financial or other condition of the U.S. Borrower and its Subsidiaries taken
as a whole and would not reasonably be expected to adversely affect the ability
of any Loan Party to perform its obligations under the Loan Documents to which
it is a party.
11.4 Corporate Power; Authorization; Enforceable Obligations. (a)
Each Loan Party has the corporate power and authority, and the legal right, to
execute, deliver and perform each of the Loan Documents to which it is a party
or to which this Agreement requires it to become a party. The U.S.
Borrower has the corporate power and authority to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the terms
and conditions of this Agreement and the U.S. Revolving Credit Notes. The
Canadian Borrower has the corporate power and authority to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and the Canadian Revolving Credit Notes.
Each Loan Party has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the Loan Documents to which it
is a party or to which this Agreement requires it to become a party.
(b) No consent or authorization of, filing with or other act by or in
respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
(c) This Agreement and each other Loan Document to which any Loan
Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be,
84
77
duly executed and delivered on behalf of such Loan Party. This Agreement and
each other Loan Document to which any Loan Party is a party constitutes, and
each other Loan Document to be executed by a Loan Party hereunder will
constitute, a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
11.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party,
the borrowings hereunder and the use of the proceeds thereof, (a) will not
violate any Requirement of Law or any Contractual Obligation of the U.S.
Borrower or any other Loan Party (including, without limitation, the Senior
Subordinated Note Indenture, the 9 1/2% Note Indenture and the Subordinated
Note Indenture) except for violations of Requirements of Law and Contractual
Obligations (other than such Indentures) which, individually or in the
aggregate will not have a material adverse effect on the business, operations,
property or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole and will not adversely affect the ability of any
Loan Party to perform its obligations under any of the Loan Documents to which
it is a party and (b) will not result in, or require, the creation or
imposition of any Lien (other than the Liens created by the Security Documents)
on any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation. The Obligations of the U.S.
Borrower constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the U.S. Borrower.
11.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the U.S. Borrower, overtly threatened by or against the
U.S. Borrower or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to any Loan Document or any
of the transactions contemplated hereby or thereby, (b) which would reasonably
be expected to have a material adverse effect on the business, operations,
property or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole or (c) which would be reasonably expected to
adversely affect the ability of any Loan Party to perform its obligations under
any of the Loan Documents to which it is a party.
11.7 No Default. Neither the U.S. Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual
Obligation or any order, award or decree of any Governmental Authority or
arbitrator binding upon it or any of its properties in any respect which would
have a material adverse effect on the business, operations, property or
financial or other condition of the U.S. Borrower and its Subsidiaries taken as
a whole or which would adversely affect the ability of any Loan Party to
perform its obligations under any of the Loan Documents to which it is a party.
No Default or Event of Default has occurred and is continuing.
11.8 Ownership of Property; Liens. The U.S. Borrower and each of its
Material Subsidiaries has good record and marketable title in fee simple to, or
a valid and subsisting
85
78
leasehold interest in all its material real property, and good title to all
its other property, and none of such property is subject to any Lien, except
as permitted in subsection 14.3.
11.9 Taxes. (a) The U.S. Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the U.S. Borrower are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
those which, in the aggregate, are not substantial in amount or those the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the U.S. Borrower or its Subsidiaries,
as the case may be and except insofar as the failure to make such filings or
payments would not reasonably be expected to have a material adverse effect on
the business, operations, property or financial condition of the U.S. Borrower
and its Subsidiaries taken as a whole); and (b) no tax lien (other than a Lien
permitted in subsection 14.3) has been filed and, to the knowledge of the U.S.
Borrower, no claim is being asserted with respect to any such tax, fee or other
charge.
11.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and
foreign securities law and Regulations G, T, U and X of the Federal Reserve
Board.
11.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred and no Lien under the Code
or ERISA in favor of PBGC or a Single Employer Plan has arisen during the
five-year period prior to the date as of which this representation is deemed
made. The present value of all accrued benefits under each Single Employer
Plan maintained by the U.S. Borrower or any Commonly Controlled Entity (based
on those assumptions used to fund the Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits, either individually or in the aggregate with all other Single
Employer Plans under which such accrued benefits exceed such assets, by more
than $25,000,000. Neither the U.S. Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan during the
five year period prior to the date as of which this representation is made or
deemed made, and neither the U.S. Borrower nor any Commonly Controlled Entity
would become subject to liability under ERISA in the aggregate which exceeds
$25,000,000 if the U.S. Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date hereof, and no such withdrawal is likely to occur.
No such Multiemployer Plan is in Reorganization or Insolvent. The present
value (determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the U.S. Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
86
79
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA)
does not, in the aggregate, exceed the assets under all such Plans allocable to
such benefits by an amount in excess of $145,000,000.
11.12 Investment Company Act; Other Regulations. The U.S. Borrower
is not an "investment company" within the meaning of the Investment Company
Act of 1940, as amended. The U.S. Borrower is not subject to regulation
under any federal or state statute or regulation which limits its ability to
incur Indebtedness.
11.13 Subsidiaries, etc. The only Subsidiaries of the U.S. Borrower
as of the Closing Date are those listed on Schedule VI. The U.S. Borrower
owns, as of the Closing Date, the percentage of the issued and outstanding
capital stock or other evidences of the ownership of each Subsidiary, listed
on Schedule VI as set forth on such Schedule. Except as disclosed on Schedule
VI, no such Subsidiary has issued any securities convertible into shares of its
capital stock (or other evidence of ownership) or any options, warrants or
other rights, to acquire such shares or securities convertible into such shares
(or other evidence of ownership), and the outstanding stock and securities (or
other evidence of ownership) of such Subsidiaries are owned by the U.S.
Borrower and its Subsidiaries free and clear of all Liens, warrants, options
or rights of others of any kind whatsoever except for Liens permitted by
subsection 14.3.
11.14 Accuracy and Completeness of Information. All information,
reports and other papers and data with respect to the U.S. Borrower or this
Agreement or any transaction contemplated hereby furnished to the Lenders by
the U.S. Borrower or on behalf of the U.S. Borrower, were, at the time the same
were so furnished, complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other papers or
data, to the extent necessary to give the Lenders a true and accurate knowledge
of the subject matter in all material respects. All projections with respect
to the U.S. Borrower and its Subsidiaries, so furnished by the U.S. Borrower,
as supplemented, were prepared and presented in good faith by the U.S.
Borrower, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ materially from the
projected results. No document furnished or statement made in writing to the
Lenders by the U.S. Borrower in connection with the negotiation, preparation or
execution of this Agreement contains any untrue statement of a material fact,
or, to the knowledge of the U.S. Borrower after due inquiry, omits to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders.
11.15 Security Documents. Each Pledge Agreement is effective to
create in favor of the General Administrative Agent, for the ratable benefit
of the Lenders, a legal, valid and enforceable security interest in the pledged
assets described therein. Such Pledge Agreement constitutes a fully perfected
first Lien on, and security interest in, all right, title and interest of the
Loan Party thereto in the pledged assets described therein.
11.16 Patents, Copyrights, Permits and Trademarks. Each of the U.S.
Borrower and its Subsidiaries owns, or has a valid license or sub-license in,
all domestic and foreign letters
87
80
patent, patents, patent applications, patent and know-how licenses, inventions,
technology, permits, trademark registrations and applications, trademarks,
trade names, trade secrets, service marks, copyrights, product designs,
applications, formulae, processes and the industrial property rights
("Proprietary Rights") used in the operation of its businesses in the manner in
which they are currently being conducted and which are material to the
business, operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole. Neither the U.S. Borrower nor
any of its Subsidiaries is aware of any existing or threatened infringement or
misappropriation of any Proprietary Rights of others by the U.S. Borrower or
any of its Subsidiaries or of any Proprietary Rights of the U.S. Borrower or
any of its Subsidiaries by others which is material to the business operations,
assets or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole.
11.17 Environmental Matters. Except as disclosed in Schedule VII,
and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the U.S. Borrower and
its Subsidiaries taken as a whole:
(a) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute a
violation of, or (B) could reasonably give rise to any liability under
any applicable Environmental Laws.
(b) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been owned
by the U.S. Borrower or its Subsidiaries, with all Environmental Laws,
and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties which
could interfere with the continued operation of the Properties or impair
the fair saleable value thereof. Neither the U.S. Borrower nor any
Subsidiary has knowingly assumed any liability, by contract or otherwise,
of any person under any Environmental Laws.
(c) Neither the U.S. Borrower nor any of its Subsidiaries has
received any Environmental Complaint with regard to any of the Properties
or the operations of the U.S. Borrower or any of its Subsidiaries, nor
does the U.S. Borrower or any of its Subsidiaries have knowledge or
reason to believe that any such notice will be received or is being
threatened.
(d) To the best knowledge of the U.S. Borrower and its
Subsidiaries, based on the U.S. Borrower's and the Subsidiaries'
customary practice of contracting only with licensed haulers for removal
of Hazardous Materials from the Properties only to facilities authorized
to receive such Hazardous Materials, Hazardous Materials have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably give rise to liability
under, Environmental Laws, nor have any Hazardous Materials been
generated, treated, stored or disposed of at, on or
88
81
under any of the Properties in violation of, or in a manner that could
reasonably give rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the U.S. Borrower and its
Subsidiaries, threatened, under any Environmental Law to which the U.S.
Borrower and its Subsidiaries are or will be named as a party with
respect to the Properties, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties.
(f) To the best knowledge of the U.S. Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties, or
arising from or related to the operations of the U.S. Borrower or its
Subsidiaries in connection with the Properties in violation of or in
amounts or in a manner that could reasonably give rise to liability under
any Environmental Laws.
11.18 RDM Finance. On the Closing Date, RDM Finance will have no
material assets (and in any event will no longer hold a participating interest
in loans made to ▇▇▇▇ Italia).
SECTION 12. CONDITIONS PRECEDENT
12.1 Conditions to Closing Date. The Closing Date shall occur on
the date of satisfaction of the following conditions precedent:
(a) Agreement. The General Administrative Agent shall have received
a counterpart of this Agreement for each Lender, duly executed by a
Responsible Officer of each Borrower.
(b) Guarantees. The General Administrative Agent shall have
received the Subsidiary Guarantee and the Additional Subsidiary Guarantee
duly executed by each guarantor party thereto.
(c) Pledge Agreements. The General Administrative Agent shall have
received each of the Pledge Agreements duly executed by each pledgor
party thereto.
(d) Pledged Stock; Stock Powers. The General Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to each of the Pledge Agreements, together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(e) Perfection Actions. The General Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions necessary or, in the
opinion of the General Administrative Agent,
89
82
desirable to perfect the Liens created by the Security Documents shall
have been completed.
(f) Consents. The General Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each case
certified as to authenticity on such date by a duly authorized officer of
the U.S. Borrower) of all documents and instruments, including all
consents, authorizations and filings, required under any Requirement of
Law or by Contractual Obligation of the U.S. Borrower or any of its
Subsidiaries, in connection with the execution, delivery, performance,
validity and enforceability of this Agreement and the other Loan
Documents, and such consents, authorizations and filings shall be
satisfactory in form and substance to the Lenders and be in full force
and effect.
(g) Incumbency Certificates. The General Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party and the
Canadian Borrower, dated the Closing Date, as to the incumbency and
signature of their respective officers executing each Loan Document to be
entered into on the Closing Date to which it is a party, together with
satisfactory evidence of the incumbency of such Secretary or Assistant
Secretary.
(h) Corporate Proceedings. The General Administrative Agent shall
have received, with a copy for each Lender, a copy of the resolutions in
form and substance satisfactory to the General Administrative Agent, of
the Board of Directors (or the executive committee thereof) of each
Domestic Loan Party and the Canadian Borrower authorizing (i) the
execution, delivery and performance of each Loan Document to be entered
into on the Closing Date to which it is a party, and (ii) the granting by
it of the pledge and security interests, if any, granted by it pursuant
to such Loan Document, certified by their respective Secretary or an
Assistant Secretary as of the Closing Date, which certificate shall state
that the resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate.
(i) Fees. The General Administrative Agent shall have received all
fees required to be paid to the General Administrative Agent and/or the
Lenders pursuant to Section 10.5 and/or any other written agreement on or
prior to the Closing Date.
(j) Legal Opinion of Counsel to U.S. Borrower. The General
Administrative Agent shall have received, with a copy for each Lender, an
opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇, special counsel to
the U.S. Borrower and its Subsidiaries and in substantially the form of
Exhibit L and covering such other matters incident to the transactions
contemplated hereby as the Lenders may reasonably require.
(k) Legal Opinions of Foreign Counsel. The General Administrative
Agent shall have received or waived as a condition precedent, with a copy
for each Lender, an opinion of Tory, Tory, ▇▇▇▇▇▇▇▇▇▇▇ & Binnington,
Canadian counsel to the U.S. Borrower and the Canadian Borrower, in
substantially the form of Exhibit M and covering such
90
83
other matters incident to the transactions contemplated hereby as the
General Administrative Agent may reasonably require.
(l) Subordinated Debt Documents. The General Administrative Agent
shall have received, with a copy for each Lender, a certified true copy
of the outstanding Subordinated Debt indentures of the U.S. Borrower.
(m) Existing Credit Agreements. The General Administrative Agent
shall have received evidence that all amounts payable to Lenders under
the Existing Credit Agreements shall have been paid (other than the
principal amount of, and accrued interest on, loans outstanding
thereunder owing to Lenders thereunder that are also Lenders hereunder,
which loans shall become Loans hereunder on the Closing Date).
12.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the Closing Date), is subject to the
satisfaction of the following conditions precedent as of the date such
Extension of Credit is requested to be made:
(a) Representations and Warranties. Each of the representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of
such date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects as of such
specified date).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Extension of
Credit requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Extension of
Credit is the initial Multicurrency Loan to be made to any Foreign
Subsidiary Borrower, the General Administrative Agent shall have received
(with a copy for each Lender) a Foreign Subsidiary Opinion in respect of
such Foreign Subsidiary Borrower.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension
of Credit that the conditions contained in this subsection 12.2 have been
satisfied.
SECTION 13. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation,
Acceptance Note, Reimbursement Obligation or Subsidiary Reimbursement
Obligation remains outstanding and unpaid or any other amount is owing to any
Lender or either Administrative Agent hereunder or under any other Loan
Document, the U.S. Borrower shall and shall cause each of its Subsidiaries to:
91
84
13.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 95 days after the
end of each fiscal year of the U.S. Borrower, a copy of the audited
consolidated balance sheet of the U.S. Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal
year of the U.S. Borrower, the unaudited consolidated balance sheet of
the U.S. Borrower and its consolidated Subsidiaries as at the end of each
such quarter and the related unaudited consolidated statements of income
and cash flows of the U.S. Borrower and its consolidated Subsidiaries for
such quarter and the portion of the fiscal year through such date,
setting forth in each case in comparative form the figures for the
corresponding quarterly period of the previous year, certified by a
Responsible Officer (subject to normal year-end audit adjustments).
The U.S. Borrower covenants and agrees that all such financial statements shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
13.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 13.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 13.1(a) and (b), a certificate of a Responsible
Officer of the U.S. Borrower (i) stating that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate, (ii) stating, to the best of such
Responsible Officer's knowledge, that all such financial statements are
complete and correct in all material respects (subject, in the case of
interim statements, to normal year-end audit adjustments) and have been
prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as
disclosed therein) and (iii) showing in detail the calculations
supporting such statements in respect of subsection 14.1;
92
85
(c) promptly upon receipt thereof, copies of all final reports
submitted to the U.S. Borrower by independent certified public
accountants in connection with each annual, interim or special audit of
the books of the U.S. Borrower made by such accountants, including,
without limitation, any management letter commenting on the U.S.
Borrower's internal controls submitted by such accountants to management
in connection with their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the U.S. Borrower sends to its public equity
holders, and within five days after the same are filed, copies of all
financial statements and reports which the U.S. Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality requirements,
such additional financial and other information as any Lender may from
time to time reasonably request.
13.3 Performance of Obligations. Perform in all material respects
all of its obligations under the terms of each material mortgage, indenture,
security agreement and other debt instrument by which it is bound or to
which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the
books of the U.S. Borrower or its Subsidiaries, as the case may be.
13.4 Conduct of Business, Maintenance of Existence and Compliance with
Obligations and Laws. Continue to engage in business of the same general type
as now conducted by it and preserve, renew and keep in full force and effect
its corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to subsection 14.5 and except
if the Board of Directors of the U.S. Borrower shall determine in good faith
that the preservation or maintenance thereof is no longer desirable in the
conduct of the business of the U.S. Borrower and its Subsidiaries; comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the business,
operations, property or financial or other condition of the U.S. Borrower and
its Subsidiaries taken as a whole and would not reasonably be expected to
adversely affect the ability of the U.S. Borrower or any of its Subsidiaries to
perform their respective obligations under any of the Loan Documents to which
they are a party.
13.5 Maintenance of Property; Insurance. Keep each Property and all
other property useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance coverage as is reasonable for the business activities of the U.S.
Borrower and its Subsidiaries; and furnish to the General Administrative Agent,
upon written request, full information as to the insurance carried.
93
86
13.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the U.S.
Borrower and its Subsidiaries with officers and employees of the U.S. Borrower
and its Subsidiaries and, provided the U.S. Borrower is given an opportunity to
participate, with its independent certified public accountants.
13.7 Notices. Promptly give notice to the General Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any Contractual
Obligation of the U.S. Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the U.S. Borrower or any of its Subsidiaries and any Governmental
Authority, which in the case of either clause (i) or (ii) above, would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole or would reasonably be expected to
adversely affect the ability of the U.S. Borrower or any of its
Subsidiaries to perform their respective obligations under any of the
Loan Documents to which they are a party;
(c) of any litigation or proceeding affecting the U.S. Borrower or
any of its Subsidiaries in which the then reasonably anticipated exposure
of the U.S. Borrower and its Subsidiaries is $10,000,000 or more and not
covered by insurance, or in which injunctive or similar relief is sought
which is then reasonably anticipated to have an adverse economic effect
on the U.S. Borrower and its Subsidiaries of $10,000,000 or more;
(d) of the following events, as soon as possible and in any event
within 30 days after the U.S. Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Single Employer Plan, a failure to make any
required contribution to any Single Employer Plan, unless such failure is
cured within such 30 days or does not involve an amount in excess of
$1,000,000, any Lien under the Code or ERISA in favor of the PBGC or a
Single Employer Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or the U.S. Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer or
Multiemployer Plan, where, in connection with any of the events described
in clauses (i) or (ii), the resulting liability would reasonably be
expected to cause a material adverse change in the business, assets,
94
87
operations or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, and any notice from any Person of (i) the
occurrence of any release, spill or discharge of any Hazardous Material
that is reportable under any Environmental Law, (ii) the commencement of
any clean up pursuant to or in accordance with any Environmental Law of
any Hazardous Material at, on, under or within the Property or any part
thereof or (iii) any other condition, circumstance, occurrence or event,
any of which would reasonably be expected to have a material adverse
effect on the business, operations, property or financial condition of
the U.S. Borrower and its Subsidiaries, taken as a whole, under any
Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens permitted
pursuant to subsection 14.3) on, or claim asserted against any of the
collateral security in the Security Documents or (ii) the occurrence of
any other event which could reasonably be expected to have a material
adverse effect on the aggregate value of the collateral under any
Security Document; and
(g) of a material adverse change in the business, operations,
property or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 13.7 shall be accompanied by a
statement of a Responsible Officer of the U.S. Borrower setting forth details
of the occurrence referred to therein and stating what action the U.S. Borrower
proposes to take with respect thereto.
13.8 Maintenance of Liens of the Security Documents. Promptly, upon
the reasonable request of any Lender, at the U.S. Borrower's expense, execute,
acknowledge and deliver, or cause the execution, acknowledgement and delivery
of, and thereafter register, file or record, or cause to be registered, filed
or recorded, in an appropriate governmental office, any document or instrument
supplemental to or confirmatory of the Security Documents or otherwise deemed
by the General Administrative Agent necessary or desirable for the continued
validity, perfection and priority of the Liens on the collateral covered
thereby.
13.9 Environmental Matters. (a) Comply in all material respects
with, and use all reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all Environmental Laws
and all requirements existing thereunder and obtain and comply in all material
respects with and maintain, and use all reasonable efforts to ensure that all
tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful orders
and directives of all Governmental Authorities regarding Environmental Laws,
other than such orders and directives as to which an appeal has been taken in
good faith and the pendency of any and all
95
88
such appeals does not materially and adversely affect the U.S. Borrower or any
Subsidiary or the operations of the U.S. Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the General Administrative
Agent and the Lenders and their Affiliates, and their respective employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the U.S. Borrower or its
Subsidiaries or the Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
attorney's and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that any of
the foregoing arise solely out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. This indemnity shall continue in
full force and effect regardless of the termination of this Agreement.
13.10 Security Documents; Guarantee Supplement. (a) Promptly at the
request of the Majority Lenders (and in any event no later than 45 days after
the date of such request), at its own expense, (i) pledge 65% of the
capital stock of ▇▇▇▇ Italia to the General Administrative Agent, for the
ratable benefit of the Lenders, pursuant to a pledge agreement in form and
substance satisfactory to the General Administrative Agent, and (ii) cause the
General Administrative Agent to receive, with a counterpart for each Lender, a
legal opinion of Italian counsel acceptable to the General Administrative Agent
covering such matters in respect of such pledge agreement as the General
Administrative Agent shall reasonably request.
(b) As soon as possible and in no event later than 45 days after the
delivery of any financial statements under subsection 13.1(a) or (b), cause (i)
all of the capital stock owned directly or indirectly by the U.S. Borrower of
each of the U.S. Borrower's direct or indirect Domestic Subsidiaries which on
the date of such financial statements constituted at least 10% of Consolidated
Assets or for the twelve month period ended on the date of such financial
statements represented at least 10% of Consolidated Revenues to be pledged to
the General Administrative Agent, for the ratable benefit of the Lenders,
pursuant to a pledge agreement in form and substance satisfactory to the
General Administrative Agent, (ii) 65% of the capital stock (or such lesser
amount as may be owned by the U.S. Borrower) of each of the U.S. Borrower's
direct Foreign Subsidiaries which on the date of such financial statements
constituted at least 10% of Consolidated Assets or for the twelve month period
ended on the date of such financial statements represented at least 10% of
Consolidated Revenues to be pledged to the General Administrative Agent, for
the ratable benefit of the Lenders, pursuant to a pledge agreement in form and
substance satisfactory to the General Administrative Agent, and (iii) the
General Administrative Agent to receive, with a counterpart for each Lender,
legal opinions of counsel to the U.S. Borrower acceptable to the General
Administrative Agent covering such matters in respect of such pledges as the
General Administrative Agent shall reasonably request.
(c) As soon as possible and in no event later than 45 days after the
delivery of any financial statements under subsection 13(a) or (b), cause (i)
each of the U.S. Borrower's direct and indirect Domestic Subsidiaries which on
the date of such financial statements constituted 10% of Consolidated Assets or
for the twelve month period ended on the date of such
96
89
financial statements represented at least 10% of Consolidated Revenues to
execute and deliver a Guarantee Supplement to the General Administrative
Agent and (ii) the General Administrative Agent to receive, with a counterpart
for each Lender, opinions of counsel to the U.S. Borrower, in form and
substance satisfactory to the General Administrative Agent, covering the
matters expressed in Exhibit S.
SECTION 14. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation,
Acceptance Note, Reimbursement Obligation or Subsidiary Reimbursement
Obligation remains outstanding and unpaid or any other amount is owing to any
Lender or either Administrative Agent hereunder or under any other Loan
Document, the U.S. Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
14.1 Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth to be
less than $675,000,000 on the last day of any fiscal quarter.
(b) Interest Coverage. Permit the ratio of (i) Consolidated Operating
Profit for any four consecutive fiscal quarters ending during any period set
forth below to (ii) Consolidated Interest Expense for such four consecutive
fiscal quarters, to be less than the ratio set forth opposite such period
below:
Period Ratio
------- -----
The first day of the third fiscal quarter of 1996 through the last
day of the fourth fiscal quarter of 1996 3.00 to 1
The first day of the first fiscal quarter of 1997 and thereafter 3.50 to 1
(c) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating Profit for the four consecutive fiscal
quarters then ended to be greater than the ratio set forth opposite such period
below:
Period Ratio
----------------------- ---------
Closing Date - 12/31/97 4.50 to 1
1/1/98 - 12/31/98 4.00 to 1
1/1/99 - thereafter 3.75 to 1
97
90
14.2 Limitation on Indebtedness. Permit any Subsidiary to create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness in respect of the Extensions of Credit and other
obligations arising under this Agreement and, without duplication,
Indebtedness of any Subsidiary backed by Letters of Credit issued under
this Agreement;
(b) Indebtedness under the Subsidiary Guarantee and the Additional
Subsidiary Guarantee;
(c) Indebtedness in respect of Interest Rate Agreement Obligations
and Currency Agreement Obligations entered into to protect against
fluctuations in interest rates or exchange rates and not for speculative
reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) Acquired Indebtedness, and any refinancings thereof;
(f) Indebtedness incurred by Foreign Subsidiaries; provided that the
aggregate amount of such Indebtedness which is guaranteed by the U.S.
Borrower or any of its Domestic Subsidiaries (including Indebtedness in
respect of the Extensions of Credit) shall not exceed an amount equal to
15% of Consolidated Assets (as of the end of the fiscal quarter of the
U.S. Borrower most recently ended prior to the date of determination
under this clause (f));
(g) Indebtedness in respect of Financing Leases; provided that the
aggregate amount of Indebtedness incurred under this clause (g) shall not
exceed $25,000,000 at any time outstanding;
(h) Indebtedness in respect of documentary letters of credit (other
than Letters of Credit under this Agreement) in an aggregate face amount
not exceeding $50,000,000;
(i) Indebtedness in respect of letters of credit (other than Letters
of Credit under this Agreement and Letters of Credit permitted under
subsection 14.2(h)) in an aggregate face amount not exceeding
$80,000,000; provided that such letters of credit are used solely to (i)
provide credit support in respect of leased property or (ii) provide
credit support for the benefit of Foreign Subsidiaries;
(j) Indebtedness incurred to finance the purchase price of property
in an aggregate amount not exceeding $25,000,000 at any one time
outstanding;
(k) intercompany Indebtedness permitted by subsection 14.9; and
98
91
(l) additional Indebtedness of Domestic Subsidiaries not otherwise
permitted by paragraphs (a) through (k) above; provided that the
aggregate amount of such Indebtedness does not exceed $100,000,000 at any
one time outstanding.
14.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings; provided that adequate reserves with
respect thereto are maintained on the books of the U.S. Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the
case of Foreign Subsidiaries, generally accepted accounting principles in
effect from time to time in their respective jurisdictions of
organization);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary course
of business relating to obligations not overdue for a period of more than
60 days or which are bonded or being contested in good faith by
appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation, including
any Lien securing letters of credit issued in the ordinary course of
business in connection therewith and deposits securing liabilities to
insurance carriers under insurance and self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the U.S. Borrower or such Subsidiary;
(f) Liens in favor of the General Administrative Agent and the
Lenders created pursuant to the Security Documents and Liens securing
Reimbursement Obligations and Subsidiary Reimbursement Obligations;
(g) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the U.S. Borrower and its
Subsidiaries permitted by subsection 14.2(j) incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of Indebtedness
secured thereby is not increased and (iv)
99
92
the principal amount of Indebtedness secured by any such Lien shall at
no time exceed 100% of the purchase price of such property;
(h) Liens securing the Indebtedness permitted by subsection 14.2(f)
and (i) and Liens securing obligations with respect to government grants,
provided that such Liens permitted by this subsection 14.3(h) do not at
any time encumber any property located in the United States except for,
in the case of Indebtedness permitted by subsection 14.2(i), Liens that
encumber leasehold interests supported by such Indebtedness;
(i) Liens securing Indebtedness permitted by subsection 14.2(c) and
any other Indebtedness in respect of Interest Rate Agreement Obligations
or Currency Agreement Obligations of the U.S. Borrower entered into to
protect against fluctuations in interest rates or exchange rates and not
for speculative reasons, provided that such Liens run in favor of a
Lender;
(j) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$25,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within 60
days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(k) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
(l) Liens securing Acquired Indebtedness permitted by subsection
14.2, provided that (i) such Liens existed at the time such corporation
became a Subsidiary or such assets were acquired and were not created in
anticipation thereof, (ii) any such Lien does not by its terms cover any
property or assets after the time such corporation became or becomes a
Subsidiary or such assets were acquired which were not covered
immediately prior thereto (and improvements and attachments thereto) and
(iii) any such Lien does not by its terms secure any Indebtedness other
than Indebtedness existing immediately prior to the time such corporation
became or becomes a Subsidiary or such assets were acquired;
(m) Liens securing Indebtedness of Domestic Subsidiaries permitted
under subsection 14.2(l); provided that such Indebtedness being so
secured does not exceed $50,000,000 at any one time outstanding;
(n) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business;
(o) statutory Liens and rights of offset arising in the ordinary
course of business of the U.S. Borrower and its Subsidiaries;
100
93
(p) Liens in connection with leases or subleases granted to others
and the interest or title of a lessor or sublessor (other than the U.S.
Borrower or any Subsidiary of the U.S. Borrower) under any lease;
(q) Liens arising in connection with Industrial Development Bonds or
other industrial development, pollution control or other tax favored
financing transactions, provided that such liens do not at any time
encumber any property, other than the property financed by such
transaction and other property, assets or revenues related to the
property so financed on which Liens are customarily granted in connection
with such transactions (in each case, together with improvements and
attachments thereto);
(r) Liens on receivables subject to a Receivable Financing
Transaction; and
(s) extensions, renewals and replacements of any Lien described in
subsections 14.3(a) through (r) above, provided that the principal amount
of the Indebtedness secured thereby is not increased and such extension
or renewal is limited to the property so encumbered (and improvements or
attachments thereto).
14.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the U.S. Borrower under this Agreement
and of the Domestic Subsidiaries under the Subsidiary Guarantee and the
Additional Subsidiary Guarantee;
(b) Guarantee Obligations in respect of obligations of Domestic
Subsidiaries permitted to be incurred pursuant to subsection 14.2;
(c) Guarantee Obligations in respect of obligations of Foreign
Subsidiaries permitted to be incurred pursuant to subsection 14.2(f);
(d) Guarantee Obligations in respect of obligations of the U.S.
Borrower and Special Affiliates in an aggregate principal amount not to
exceed $60,000,000; and
(e) other Guarantee Obligations in respect of obligations not
exceeding $10,000,000.
14.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the U.S. Borrower may be merged or
consolidated with or into the U.S. Borrower (provided that the U.S.
Borrower shall be the continuing or surviving corporation) or with or
into any one or more Wholly Owned Subsidiaries of the
101
94
U.S. Borrower that are Domestic Subsidiaries (provided that a Wholly
Owned Subsidiary shall be the continuing or surviving corporation);
(b) any Foreign Subsidiary may be merged or consolidated with or
into any one or more Wholly Owned Subsidiaries that are Foreign
Subsidiaries (provided that a Wholly Owned Subsidiary shall be the
continuing or surviving corporation);
(c) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
U.S. Borrower or any Wholly Owned Subsidiary of the U.S. Borrower that is
a Domestic Subsidiary;
(d) any Foreign Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to a Wholly Owned Subsidiary; and
(e) any Subsidiary of the U.S. Borrower which is not a Material
Subsidiary and is not a party to the Subsidiary Guarantee or the
Additional Subsidiary Guarantee may be merged, consolidated or
amalgamated with or into any Person, or may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to any Person or may liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution).
Notwithstanding any provision contained in paragraphs (a) and (c) of
this subsection, no Subsidiary of the U.S. Borrower may (i) be merged or
consolidated with or into either ▇▇▇▇ Operations Corporation or NAB Corporation
or any Subsidiary thereof or (ii) sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to either
▇▇▇▇ Operations Corporation or NAB Corporation or any Subsidiary thereof
unless, in each case, (A) the Additional Subsidiary Guarantee shall have been
amended in writing to remove the limitation on such transferee's liability
thereunder contained in clause (ii) of paragraph 2(b) of the Additional
Subsidiary Guarantee or (B) the General Administrative Agent shall have
received a certificate of a Responsible Officer of the U.S. Borrower in form
and substance satisfactory to the General Administrative Agent describing such
sale, lease, transfer or other disposition and certifying the fair market value
of the assets to be so sold, leased, transferred or otherwise disposed. Upon
the General Administrative Agent's approval of the certificate described in
clause (B) of the preceding sentence, the limitation on the transferee's
liability under clause (ii) of paragraph 2(b) of the Additional Subsidiary
Guarantee shall automatically increase by an amount equal to the fair market
value of the assets described in such certificate. For purposes of the
preceding two sentences, if the transferee is a Subsidiary of either ▇▇▇▇
Operations Corporation or NAB Corporation, the term transferee in such two
sentences shall refer to either ▇▇▇▇ Operations Corporation or NAB Corporation,
whichever is the parent of such Subsidiary.
14.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, any of its property, business or assets
(including, without limitation, receivables and leasehold interests) whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's capital stock to any Person other
102
95
than the U.S. Borrower or any Wholly Owned Subsidiary (or to qualify directors
if required by applicable law or similar de minimis issuances of capital stock
to comply with Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out property
or other property not necessary for operations disposed of in the
ordinary course of business; provided that (i) the Net Proceeds of each
such transaction are applied to obtain a replacement item or items of
property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $10,000,000 in the aggregate in any one fiscal year of
the U.S. Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary course
of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
(d) the sale by any Foreign Subsidiary of its accounts receivable;
provided that the terms of each such sale are satisfactory in form and
substance to the General Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts receivable;
provided that the terms of each such sale are satisfactory in form and
substance to the General Administrative Agent;
(f) any sale or other disposition permitted under subsections 14.5
or 14.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in the
ordinary course of business;
(i) any sale, contribution or transfer to a Special Purpose
Subsidiary in connection with a Receivable Financing Transaction; and
(j) any sale or other disposition of assets if (A) after giving
effect thereto and the application of the proceeds therefrom, no Default
or Event of Default is in existence and (B) if such sale or other
disposition had occurred on the first day of the period of four full
final quarters most recently ended prior to the date of such sale or
other disposition, the U.S. Borrower would have been in compliance with
subsection 14.1 during such period of four full fiscal quarters.
14.7 Limitation on Dividends. Declare or pay any dividend on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the U.S. Borrower
or any warrants or options to purchase any such Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or
103
indirectly, whether in cash or property or in obligations of the U.S. Borrower
or any Subsidiary, except for (a) (i) payment by the U.S. Borrower of amounts
then owing to management personnel of the U.S. Borrower pursuant to the terms
of their respective employment contracts or under any employee benefit plan,
(ii) mandatory purchases by the U.S. Borrower of its common stock from
management personnel pursuant to the terms of their respective employment
agreements or any employee benefit plan, (iii) additional repurchases by the
U.S. Borrower of its common stock from management personnel, and other officers
or employees of the U.S. Borrower or any Subsidiary in an amount not to exceed
$35,000,000 in the aggregate and (iv) the purchase, redemption or retirement of
any shares of any capital stock of the U.S. Borrower or options to purchase
capital stock of the U.S. Borrower in connection with the exercise of
outstanding stock options, (b) if no Default or Event of Default has occurred
and is continuing (or would occur and be continuing after giving effect
thereto) when any such dividend is declared by the Board of Directors of the
U.S. Borrower, cash dividends on the U.S. Borrower's capital stock not to
exceed in any fiscal quarter (the "Payment Quarter") an amount equal to the
greater of (i) $25,000,000 and (A) 50% of Consolidated Net Income of the U.S.
Borrower and its consolidated Subsidiaries for the period of four consecutive
fiscal quarters ended immediately prior to the Payment Quarter (such period of
four quarters being the "Calculation Period" in respect of such payment
Quarter), less (B) the cash amount of all dividends paid and redemptions made
by the U.S. Borrower during such Calculation Period in respect of capital
stock, but only to the extent permitted by the terms of the Subordinated Debt
and (c) dividends or distributions in the form of additional shares of such
capital stock or in options, warrants or other rights to purchase capital
stock.
14.8 Limitation on Capital Expenditures. Until such time as
Investment Grade Status has been attained and for as long as it is maintained,
make or commit to make any Capital Expenditures during any fiscal year
exceeding, in the aggregate for the U.S. Borrower and its Subsidiaries,
$250,000,000 per fiscal year; provided that any amount permitted to be expended
pursuant to this subsection 14.8 which is not expended in any fiscal year may
be carried over for expenditure in any subsequent fiscal year, and provided,
further, that any available amount permitted to be expended pursuant to this
subsection 14.8 for any subsequent fiscal year may be carried back for
expenditure in any fiscal year.
14.9 Limitation on Investments, Loans and Advances. Make or suffer
to exist any advance, loan, extension of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or any
assets constituting a business unit of, or make any other investment in, any
Person, or acquire any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality investments
of a type similar to Cash Equivalents made outside of the United States
of America;
104
97
(d) capital contributions and equity investments made prior to the
date hereof in any Subsidiary or Special Entity and any recapitalization
thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any Subsidiary
to the U.S. Borrower and (ii) loans, advances, extensions of credit,
capital contributions and other investments by the U.S. Borrower or any
Subsidiary to or in any other Domestic Subsidiary or Foreign Subsidiary
that is organized under the laws of any country that is a member of the
Organization for Economic Cooperation and Development either on the date
hereof or on the date of any such loan, advance, extension of credit,
capital contribution or other investment;
(f) any Foreign Subsidiary may make advances, loans, extensions of
credit, capital contributions and other investments to any other Foreign
Subsidiary or any Domestic Subsidiary;
(g) any Wholly Owned Subsidiary which is a Domestic Subsidiary may
make advances, loans, extensions of credit, capital contributions and
other investments to or in any other Wholly Owned Subsidiary which is a
Domestic Subsidiary;
(h) the purchase by the U.S. Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the amount
which the U.S. Borrower or such Subsidiary would otherwise be permitted
to lend or contribute to such Foreign Subsidiaries pursuant to this
subsection 14.9;
(i) the U.S. Borrower and its Subsidiaries may acquire any Special
Entities or the assets constituting a business unit of any Person that
would be a Special Entity, provided that the aggregate purchase price of
such acquisitions after the date hereof does not exceed $400,000,000
(less, in the case such Special Entities that become Subsidiaries of the
U.S. Borrower, the aggregate amount of Indebtedness of such Special
Entities at the time such Special Entities are acquired) per fiscal year;
and provided, further, that up to $100,000,000 of such permitted amount
which is not expended in any fiscal year may be carried over for such
acquisitions in any subsequent fiscal year; and provided, still further,
that no more than $150,000,000 per fiscal year of any such permitted
amount may be expended to acquire stock or other evidence of beneficial
ownership of Special Entities that do not become Subsidiaries of the U.S.
Borrower;
(j) advances to employees in the ordinary course of business for
travel, relocation and related expenses;
(k) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the U.S. Borrower or any Subsidiary in settlement
of delinquent obligations of, and other disputes with, customers,
suppliers and such other Persons arising in the ordinary course of
business;
105
98
(l) advances, loans, extensions of credit or other investments held
by a Person at the time it becomes a Subsidiary of the U.S. Borrower in
connection with an acquisition permitted hereunder; provided, that such
advances, loans, extensions of credit or other investments have not been
made in anticipation of such acquisition; and
(m) other investments, advances, loans, extensions of credit and
capital contributions by the U.S. Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding.
14.10 Limitation on Optional Payments and Modification of Debt
Instruments. (a) Prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any payment on account of any principal of, interest on, or
premium payable in connection with the prepayment, redemption or retirement of
any outstanding Subordinated Debt, except that the U.S. Borrower may prepay,
purchase or redeem Subordinated Debt with the proceeds of the issuance of other
subordinated Indebtedness of the U.S. Borrower or capital stock of the U.S.
Borrower; provided that, in the case of the issuance of subordinated
Indebtedness, either (i) the principal terms of such other subordinated
Indebtedness are no more restrictive, taken as a whole, to the U.S. Borrower
and its Subsidiaries than the principal terms of the Subordinated Debt being
repaid, purchased or redeemed or (ii) the terms and conditions of the other
subordinated Indebtedness are reasonably satisfactory to the General
Administrative Agent; provided, further, that, notwithstanding any provision
contained in this subsection 14.10, if no Default or Event of Default has
occurred and is continuing or would occur and be continuing as a result of the
following, the Subordinated Debt may be prepaid at any time without restriction
or (b) without the consent of the General Administrative Agent, amend, modify
or change, or consent or agree to any amendment, modification or change to any
of the terms of any Subordinated Debt (except that without the consent of the
General Administrative Agent or any Lender, the terms of the Subordinated Debt
may be amended, modified or changed if such amendment, modification or change
would extend the maturity or reduce the amount of any payment of principal
thereof, would reduce the rate or extend the date for payment of interest
thereon, would eliminate covenants (other than covenants with respect to
subordination to Indebtedness under this Agreement) or defaults in such
Subordinated Debt or would make such covenants or defaults less restrictive or
make any other change that would not require the consent of the holders of such
Subordinated Debt).
14.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate unless such
transactions are otherwise permitted under this Agreement, or such transactions
are in the ordinary course of the U.S. Borrower's or such Subsidiary's business
and are upon fair and reasonable terms no less favorable to the U.S. Borrower
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person not an Affiliate; provided, however,
that the U.S. Borrower may engage ▇▇▇▇▇▇ Brothers Inc., The Cypress Group, LLC
or any Affiliate of ▇▇▇▇▇▇ Brothers Inc. or The Cypress Group, LLC as financial
advisor, underwriter, broker, dealer-manager or finder in connection with any
transaction at the then customary market rates for similar services.
106
99
14.12 Corporate Documents. Amend its Certificate of Incorporation or
By-Laws, each as in effect on the Closing Date, if such amendment would
reasonably be expected to impair the ability of the U.S. Borrower and the
Subsidiaries to perform their respective obligations under the Loan Documents
to which they are a party.
14.13 Fiscal Year. Permit the fiscal year of the U.S. Borrower to end
on a day other than December 31.
14.14 Limitation on Restrictions Affecting Subsidiaries. Enter into
any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the U.S. Borrower or any
Subsidiary, (b) make loans or advances to the U.S. Borrower or any Subsidiary
or (c) transfer any of its properties or assets to the U.S. Borrower or any
Subsidiary, except (i) prohibitions or restrictions under applicable law, (ii)
agreements and instruments governing or evidencing secured Indebtedness
otherwise permitted to be incurred under this Agreement that limits the right
of the borrower to (A) dispose of the assets securing such Indebtedness or (B)
in the case of any Foreign Subsidiary, to make dividends or distributions,
(iii) customary non-assignment provisions of any lease governing a leasehold
interest of any Subsidiary, (iv) customary net worth provisions contained in
leases and other agreements entered into by a Subsidiary in the ordinary course
of business, (v) customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition of the
assets or stock of such Subsidiary, (vi) any such restrictions existing by
reasons of Contractual Obligations listed on Schedule 14.14, (vii) any
restrictions on a Special Purpose Subsidiary and (viii) any restrictions
contained in any instrument or agreement that refinances any Indebtedness which
contains similar restrictions.
14.15 Special Purpose Subsidiary. Permit (a) any Special Purpose
Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the
U.S. Borrower or any of its Subsidiaries (other than a Special Purpose
Subsidiary) or any of their respective assets to incur any liability, direct or
indirect, contingent or otherwise, in respect of any obligation of a Special
Purpose Subsidiary whether arising under or in connection with any Receivable
Financing Transaction or otherwise.
14.16 Interest Rate Agreements. Enter into, or become a party to, any
Interest Rate Agreement that is speculative in nature.
SECTION 15. GUARANTEE
15.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the General Administrative Agent, for the ratable
benefit of the Administrative Agents and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by each of the other Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
107
100
(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the General Administrative Agent, (ii)
one counsel for the Canadian Administrative Agent, (iii) one counsel for the
Canadian Lenders, (iv) one counsel for the U.S. Lenders and (v) one counsel for
the General Administrative Agent and the Multicurrency Lenders in the
jurisdiction of each Foreign Subsidiary Borrower) which may be paid or incurred
by the Administrative Agents, or any Lender in enforcing, or obtaining advice
of counsel in respect of, any rights with respect to, or collecting, any or all
of the Obligations and/or enforcing any rights with respect to, or collecting
against, the U.S. Borrower under this Section. This Section shall remain in
full force and effect until the Obligations are paid in full and the
Commitments are terminated, notwithstanding that from time to time prior
thereto any Borrower may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other Person or
received or collected by the Administrative Agents or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the U.S. Borrower
hereunder which shall, notwithstanding any such payment or payments, remain
liable hereunder for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from time
to time, it shall make any payment to any Administrative Agent or any Lender on
account of its liability hereunder, it will notify such Administrative Agent
and such Lender in writing that such payment is made under this Section for
such purpose.
15.2 No Subrogation. Notwithstanding any payment or payments made by
the U.S. Borrower hereunder, or any set-off or application of funds of the U.S.
Borrower by any Administrative Agent or any Lender, the U.S. Borrower shall not
be entitled to be subrogated to any of the rights of any Administrative Agent
or any Lender against the other Borrowers or against any collateral security or
guarantee or right of offset held by any Administrative Agent or any Lender for
the payment of the Obligations, nor shall the U.S. Borrower seek or be entitled
to seek any contribution or reimbursement from the other Borrowers in respect
of payments made by the U.S. Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the other Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the U.S. Borrower on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full, such amount
shall be held by the U.S. Borrower in trust for the Administrative Agents and
the Lenders, segregated from other funds of the U.S. Borrower, and shall,
forthwith upon receipt by the U.S. Borrower, be turned over to the General
Administrative Agent in the exact form received by the U.S. Borrower (duly
indorsed by the U.S. Borrower to the General Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the General Administrative Agent may determine.
108
101
15.3 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the U.S. Borrower, and without
notice to or further assent by the U.S. Borrower, any demand for payment of any
of the Obligations made by any Administrative Agent or any Lender may be
rescinded by such Administrative Agent or such Lender, and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by any Administrative Agent or any Lender, and
any Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, in accordance with the provisions thereof as the General Administrative
Agent or the Lenders (or the Majority Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by any Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. None of any Administrative Agent or any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by
it as security for the Obligations or for this Agreement or any property
subject thereto. When making any demand hereunder against the U.S. Borrower,
any Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on any other Borrowers or any other guarantor, and
any failure by any Administrative Agent or any Lender to make any such demand
or to collect any payments from any such Borrower or any such other guarantor
or any release of such Borrower or such other guarantor shall not relieve the
U.S. Borrower of its obligations or liabilities hereunder, and shall not impair
or affect the rights and remedies, express or implied, or as a matter of law,
of any Administrative Agent or any Lender against the U.S. Borrower. For the
purposes hereof "demand" shall include the commencement and continuance of any
legal proceedings.
15.4 Guarantee Absolute and Unconditional. The U.S. Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Agreement; and all dealings between the Borrowers and the
U.S. Borrower and the other Borrowers, on the one hand, and the Administrative
Agents and the Lenders, on the other, shall likewise be conclusively presumed
to have been had or consummated in reliance upon this Agreement. The U.S.
Borrower waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the other Borrowers and the U.S. Borrower
with respect to the Obligations. This Section 15 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of this Agreement, any other Loan Document,
any of the Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held
by any Administrative Agent or any Lender, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrowers (other than the U.S.
Borrower) against any Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the
109
102
Borrowers or the U.S. Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrowers for the
Obligations, or of the U.S. Borrower under this Section 15, in bankruptcy or in
any other instance. When pursuing its rights and remedies hereunder against
the Borrower, any Administrative Agent and any Lender may, but shall be under
no obligation to, pursue such rights and remedies as it may have against the
other Borrowers or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by any Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from such other Borrowers or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the other Borrowers
or any such other Person or of any such collateral security, guarantee or right
of offset, shall not relieve the U.S. Borrower of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any Administrative Agent or any Lender against
the U.S. Borrower. This Section 15 shall remain in full force and effect and
be binding in accordance with and to the extent of its terms upon the U.S.
Borrower and its successors and assigns, and shall inure to the benefit of the
Administrative Agents and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the U.S. Borrower under this Agreement shall have been satisfied
by payment in full and the Commitments shall be terminated, notwithstanding
that from time to time during the term of this Agreement the Borrowers may be
free from any Obligations.
15.5 Reinstatement. This Section 15 shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or
returned by any Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
15.6 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the General Administrative
Agent, for the benefit of the Administrative Agents and the Lenders, as the
case may be, without set-off or counterclaim in accordance with the terms of
the Obligations, including, without limitation, in the currency in which
payment is due.
SECTION 16. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any Loans or
any Acceptance Reimbursement Obligations when due (whether at the stated
maturity, by acceleration or otherwise) in accordance with the terms
thereof or hereof or (ii) any interest on any Loans, any Reimbursement
Obligations or Subsidiary Reimbursement Obligations, or any fee or other
amount payable hereunder, within five days after any such interest, fee
or other amount becomes due in accordance with the terms hereof; or
110
103
(b) Any representation or warranty made or deemed made by the U.S.
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this
Agreement or any other Loan Document shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) The U.S. Borrower or any other Loan Party shall default in the
observance or performance of any negative covenant contained in Section
14 or in any Security Document to which it is a party; or
(d) The U.S. Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in full
force and effect, or the U.S. Borrower or any other Loan Party shall so
assert; or any security interest created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority
purported to be created thereby, except, in each case, as provided in
subsection 18.18; or
(f) Either the Subsidiary Guarantee or the Additional Subsidiary
Guarantee shall cease, for any reason, to be in full force and effect, or
any guarantor thereunder shall so assert; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any instrument
evidencing such Subordinated Debt shall cease, for any reason, to be in
full force and effect or enforceable in accordance with their terms; or
(h) The U.S. Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than Indebtedness under this Agreement), in the payment of any Guarantee
Obligation or in the payment of any Interest Rate Agreement Obligation,
in any case where the principal amount thereof then outstanding exceeds
$20,000,000 beyond the period of grace (not to exceed 60 days), if any,
provided in the instrument or agreement under which such Indebtedness,
Guarantee Obligation or Interest Rate Agreement Obligation was created;
or (ii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness, Guarantee Obligation or
Interest Rate Agreement Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
111
104
(i) (i) The U.S. Borrower or any Material Subsidiary shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or the U.S. Borrower or any
Material Subsidiary shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the U.S. Borrower
or any Material Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iii) there shall be commenced against the U.S. Borrower or any Material
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the U.S. Borrower or any Material Subsidiary shall
take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the U.S. Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(j) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the U.S. Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each case
in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, would reasonably be expected
to subject the U.S. Borrower or any of its Subsidiaries to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
U.S. Borrower and its Subsidiaries taken as a whole; or
(k) One or more judgments or decrees shall be entered against the
U.S. Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered
112
105
by insurance) of $20,000,000 or more and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section 13(d)
or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of the
U.S. Borrower having ordinary voting power in the election of directors
or (B) shall obtain the power (whether or not exercised) to elect a
majority of the U.S. Borrower's directors or (ii) the Board of Directors
of the U.S. Borrower shall not consist of a majority of Continuing
Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect of the U.S. Borrower
or the Canadian Borrower, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all
Reimbursement Obligations, Subsidiary Reimbursement Obligations and Acceptance
Reimbursement Obligations, regardless of whether or not such Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations are then due and payable) shall immediately become due and payable,
and (B) if such event is any other Event of Default, any of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
General Administrative Agent may, or upon the request of the Majority Lenders,
the General Administrative Agent shall, by notice to the U.S. Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; (ii) with the consent of the Majority Lenders, the
General Administrative Agent may, or upon the direction of the Majority
Lenders, the General Administrative Agent shall, by notice of default to the
U.S. Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement (including all amounts payable in
respect of Letters of Credit whether or not the beneficiaries thereof shall
have presented the drafts and other documents required thereunder) and the
Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable and (iii) the General Administrative Agent may, and upon
the direction of the Majority Lenders shall, exercise any and all remedies and
other rights provided pursuant to this Agreement and/or the other Loan
Documents.
With respect to all outstanding Reimbursement Obligations and
Subsidiary Reimbursement Obligations which have not matured at the time of
an acceleration pursuant to the second preceding paragraph, the U.S. Borrower
shall at such time deposit in a cash collateral account opened by and
maintained by the General Administrative Agent an amount equal to the aggregate
amount of all such Reimbursement Obligations and Subsidiary Reimbursement
Obligations. Amounts held in such cash collateral account shall be applied by
the General Administrative Agent to the payment of Reimbursement Obligations
and Subsidiary Reimbursement Obligations when drawings under the related
Letters of Credit are made, and any balance in such account shall be applied to
repay other obligations of the U.S. Borrower hereunder. After all
Reimbursement Obligations and Subsidiary Reimbursement Obligations shall have
been satisfied and all other obligations of the U.S. Borrower hereunder shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the U.S. Borrower.
113
106
With respect to all outstanding Acceptance Reimbursement Obligations in
respect of Acceptances which have not matured at the time of an acceleration
pursuant to the second preceding paragraph, the Canadian Borrower shall at such
time deposit in a cash collateral account opened by and maintained by the
Canadian Administrative Agent an amount equal to the aggregate undiscounted
face amount of all such unmatured Acceptances. Amounts held in such cash
collateral account shall be applied by the Canadian Administrative Agent to the
payment of maturing Acceptances, and any balance in such account shall be
applied to repay other obligations of the Canadian Borrower hereunder and under
any Canadian Revolving Credit Notes. After all Acceptance Reimbursement
Obligations shall have been satisfied and all other obligations of the Canadian
Borrower hereunder and under any Canadian Revolving Credit Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall
be returned to the Canadian Borrower.
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 17. THE ADMINISTRATIVE AGENTS; THE
MANAGING AGENTS, CO-AGENTS
AND LEAD MANAGERS
17.1 Appointment. Each Lender hereby irrevocably designates and
appoints (a) Chase as the General Administrative Agent and (b) The Bank of Nova
Scotia as the Canadian Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes (a)
Chase to act as the General Administrative Agent of such Lender, and (b) The
Bank of Nova Scotia to act as the Canadian Administrative Agent, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the General Administrative Agent and the Canadian Administrative
Agent, respectively, by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agents shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
17.2 Delegation of Duties. Each Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither Administrative Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
17.3 Exculpatory Provisions. Neither Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross
114
107
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Borrower or other Person or any officer thereof contained in this Agreement
or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by such Administrative
Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
a Borrower or any other Person to perform its obligations hereunder or
thereunder. Neither Administrative Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrowers.
17.4 Reliance by Administrative Agent. Each Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers or any of them),
independent accountants and other experts selected by such Administrative
Agent. Each Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment or
transfer thereof shall have been filed with such Administrative Agent. Each
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of the
Majority Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. Each Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Majority Lenders, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans and the
Acceptance Reimbursement Obligations.
17.5 Notice of Default. Neither Administrative Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Administrative Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the General Administrative Agent receives such a notice, such
Administrative Agent shall give notice thereof to the Lenders. The General
Administrative Agent shall take such action reasonably promptly with respect to
such Default or Event of Default as shall be reasonably directed by the
Majority Lenders; provided that unless and until the General Administrative
Agent shall have received such directions, such Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
115
108
17.6 Non-Reliance on Administrative Agents and Other Lender. Each
Lender expressly acknowledges that neither Administrative Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
such Administrative Agent hereinafter taken, including any review of the
affairs of any Borrower, shall be deemed to constitute any representation or
warranty by such Administrative Agent to any Lender. Each Lender represents to
each Administrative Agent that it has, independently and without reliance upon
such Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
either Administrative Agent 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 analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by an Administrative Agent hereunder, such
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Borrowers which may come into the possession of such
Administrative Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates.
17.7 Indemnification. Each U.S. Lender (together with, in the case of
a U.S. Common Lender, its Counterpart Lender on a joint and several basis)
agrees to indemnify each Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to its U.S. Revolving Credit
Commitment Percentage in effect on the date on which indemnification is sought
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans and the Acceptance Reimbursement
Obligations) be imposed on, incurred by or asserted against such Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of such Administrative Agent. The agreements
in this subsection shall survive the payment of the Loans, the Acceptance
Reimbursement Obligations and all other amounts payable hereunder.
17.8 Administrative Agents in their Individual Capacity. Each
Administrative Agent and its respective affiliates may make loans to, accept
Drafts, accept deposits from and generally engage in any kind of business with
the Borrowers as though such Administrative
116
109
Agent was not an Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made or renewed by such Administrative
Agent, any Acceptances created by such Administrative Agent and any Note or
Acceptance Note issued to it, such Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Administrative Agent,
and the terms "Lender" and "Lenders" shall include each Administrative Agent in
its individual capacity.
17.9 Successor Administrative Agents. The General Administrative Agent
may resign as General Administrative Agent, and the Canadian Administrative
Agent may resign as Canadian Administrative Agent, in each case upon 30 days'
notice to the Lenders and the other Administrative Agent. If either
Administrative Agent shall resign as General Administrative Agent or Canadian
Administrative Agent, as the case may be, under this Agreement and the other
Loan Documents, then the Majority Lenders shall appoint from among the U.S.
Lenders (in the case of a resignation of the General Administrative Agent) or
the Canadian Lenders (in the case of a resignation of the Canadian
Administrative Agent) a successor administrative agent for the Lenders, which
successor administrative agent shall be approved by the U.S. Borrower (such
approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the terms "General Administrative Agent" or
"Canadian Administrative Agent", as the case may be, shall mean such successor
administrative agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as either General
Administrative Agent or Canadian Administrative Agent, as the case may be,
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any resigning Administrative Agent's resignation as
either General Administrative Agent or Canadian Administrative Agent, as the
case may be, the provisions of this subsection shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was either General
Administrative Agent or Canadian Administrative Agent, as the case may be,
under this Agreement and the other Loan Documents.
17.10 The Managing Agents, Co-Agents and Lead Managers. Each Lender
and each Co-Agent, Managing Agent and Lead Manager acknowledge that the
Managing Agents, Co-Agents and Lead Managers, in such capacities, shall have no
duties or responsibilities, and shall incur no liabilities, under this
Agreement or the other Loan Documents in their respective capacities as such.
SECTION 18. MISCELLANEOUS
18.1 Amendments and Waivers. (a) Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented,
waived or modified except in accordance with the provisions of this subsection
18.1. The Majority Lenders may, or, with the written consent of the Majority
Lenders, the Administrative Agents may, from time to time, (i) enter into with
the U.S. Borrowers written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights or
obligations of
117
110
the Lenders or of the U.S. Borrowers hereunder or thereunder or (ii) waive
at the U.S. Borrowers' request, on such terms and conditions as the Majority
Lenders or the Administrative Agents, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(A) reduce the amount or extend the scheduled date of maturity of
any Loan or any Acceptance or any Acceptance Note or of any scheduled
installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Canadian Revolving Credit Commitment, Multicurrency Commitment or U.S.
Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of this
subsection 18.1 or reduce the percentages specified in the definition of
"Majority Lenders" or consent to the assignment or transfer by any
Borrower of any of its rights and obligations under this Agreement and
the other Loan Documents, in each case without the consent of all the
Lenders or reduce the percentages specified in the definitions of (I)
"Majority U.S. Lenders" without the consent of all of the U.S. Lenders or
(II) "Majority Canadian Lenders" without the consent of all of the
Canadian Lenders;
(C) amend, supplement, modify or waive any provision of Section 17
or any other provision of this Agreement governing the respective rights
or obligations of the General Administrative Agent or the Canadian
Administrative Agent without the consent of the then Administrative
Agents, respectively;
(D) amend, supplement, modify or waive any provision of Section 3 or
any other provision of this Agreement governing the rights and
obligations of the Swing Line Lender; or the definitions used therein
without the consent of the Swing Line Lender;
(E) extend the expiring date on any Letter of Credit beyond the
Revolving Credit Termination Date without the consent of each Lender;
(F) increase the aggregate amount of the U.S. Revolving Credit
Commitments of all Lenders to an amount in excess of $2,500,000,000
without the consent of each Lender;
(G) amend, modify or waive any provision of subsection 10.8 without
the consent of each Lender; or
(H) release all or substantially all of the guarantees contained in
Section 15 and under the Subsidiary Guarantee or the Additional
Subsidiary Guarantee or all or substantially all of the Collateral under,
and as defined in, the Security Documents
118
111
without the consent of each Lender other than as permitted under
subsections 14.5, 14.6 and 18.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 18.1 shall apply to each of the Lenders and shall be binding upon
the Borrowers, the Lenders, the General Administrative Agent, the Canadian
Administrative Agent and all future holders of the Loans and the Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations. In the case of any waiver, the Borrowers, the Lenders, the
General Administrative Agent and the Canadian Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II and III may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the U.S.
Borrower as additional Foreign Subsidiary Borrowers upon (A) execution
and delivery by the U.S. Borrower, any such Foreign Subsidiary Borrower
and the General Administrative Agent, of a Joinder Agreement providing
for any such Subsidiary to become a Foreign Subsidiary Borrower, and (B)
delivery to the General Administrative Agent of (I) a Foreign Subsidiary
Opinion in respect of such additional Foreign Subsidiary Borrower and
(II) such other documents with respect thereto as the General
Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) execution and delivery by the U.S.
Borrower of a written amendment providing for such amendment and (B)
repayment in full of all outstanding Loans of such Foreign Subsidiary
Borrower.
(iii) Schedule III will be amended (A) to change administrative
information contained therein (other than any interest rate definition,
funding time, payment time or notice time contained therein) or (B) to
add Available Foreign Currencies (and related interest rate definitions
and administrative information) with the approval of the Majority
Multicurrency Lenders, in each case, upon execution and delivery by the
U.S. Borrower and the General Administrative Agent of a written amendment
providing for such amendment.
(iv) Schedule III will be amended to conform any funding time,
payment time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the U.S. Borrower and the
General Administrative Agent of a written amendment providing for such
amendment.
(v) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the U.S.
Borrower, all the
119
112
Multicurrency Lenders and the General Administrative Agent of a written
amendment providing for such amendment.
(c) The General Administrative Agent shall give prompt notice to each
U.S. Lender of any amendment effected pursuant to subsection 18.1(b).
(d) Notwithstanding the provisions of this subsection 18.1, any
Alternate Currency Facility may be amended, supplemented or otherwise modified
in accordance with its terms so long as after giving effect thereto either (i)
such Alternate Currency Facility ceases to be an "Alternate Currency Facility"
and the U.S. Borrower so notifies the General Administrative Agent or (ii) the
Alternate Currency Facility continues to meet the requirements of an Alternate
Currency Facility set forth herein.
18.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the U.S.
Borrowers, the Canadian Borrower, the General Administrative Agent and the
Canadian Administrative Agent, and as set forth in Schedule I in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the Notes:
The U.S. Borrower: ▇▇▇▇ Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Canadian Borrower: ▇▇▇▇ Corporation Canada Ltd.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Foreign
Subsidiary Borrowers: ▇▇▇▇ Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The General
Administrative Agent: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Canadian
Administrative Agent: The Bank of Nova Scotia
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: IBP Loan Administration and
Agency Services Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon (i) the Administrative
Agents or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 6.2, 7.3, 9.2,
10.2, 10.4 or 10.7 or (ii) the Swing Line Lender pursuant to Section 3, shall
not be effective until received.
18.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Borrower, the General Administrative
Agent, the Canadian Administrative Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
18.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
18.5 Payment of Expenses and Taxes. The U.S. Borrower agrees (a) to
pay or reimburse each Administrative Agent for all its reasonable out-of-pocket
costs and reasonable expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and the other Loan Documents (other than documents
relating to any Alternate Currency Facility) and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to each Administrative Agent, (b) to pay or
reimburse each Lender and each Administrative Agent for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, fees and disbursements of counsel to each Administrative
Agent and the reasonable fees and disbursements of counsel to the several
Lenders, and (c) to pay, indemnify, and hold each Lender and each
Administrative Agent and
121
114
their respective directors, officers, employees and agents harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and the other Loan Documents, the use or proposed use by
the Borrowers of the proceeds of the Loans (all the foregoing, collectively,
the "indemnified liabilities"); provided that the U.S. Borrower shall have no
obligation hereunder to any Administrative Agent or any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such Administrative Agent or any such Lender as finally determined by a
court of competent jurisdiction; provided, however, that nothing in this
subsection shall be construed as requiring the Canadian Borrower to so
indemnify in amounts that would be in violation of, and its obligations to so
indemnify are subject to, the restrictions on financial assistance set out in
the Business Corporations Act (Ontario); and, provided, further, that the
preceding proviso shall not be construed in any way as limiting or derogating
from the obligations of the other Borrowers set out in this subsection. The
agreements in this subsection shall survive repayment of the Loans, the
Acceptance Reimbursement Obligations and all other amounts payable hereunder.
18.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, the Administrative Agents, all future holders of the Loans, the
Reimbursement Obligations, the Subsidiary Reimbursement Obligations and the
Acceptance Reimbursement Obligations and their respective successors and
assigns, except that Borrower assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents; provided that, in the
case of participations granted by a Canadian Lender, such Participant must be a
resident of Canada for purposes of the Tax Act unless such participation is
granted pursuant to subsection 18.8. In the event of any such sale by a Lender
of a participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrowers and the
Administrative Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement pursuant to which any
Lender shall sell any such participating interest shall provide that such
Lender shall retain the sole right and responsibility to exercise such Lender's
rights and enforce the Borrowers' obligations hereunder, including the right to
consent to any amendment,
122
115
supplement, modification or waiver of any provision of this Agreement or any of
the other Loan Documents, provided that such participation agreement may
provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (A) or (B) of the proviso to the
second sentence of subsection 18.1(a) without the consent of the Participant.
Each Borrower agrees that if amounts outstanding under this Agreement are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement; provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 18.7(a) as fully as if it were a
Lender hereunder. Each Borrower agrees that each Participant shall be entitled
to the benefits of subsections 10.10, 10.11, 10.12 and 18.6 with respect to its
participation in the Commitments and the Loans outstanding from time to time
hereunder as if it was a Lender; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the U.S. Borrower (such consent not to be unreasonably withheld) and
the Administrative Agents (such consent not to be unreasonably withheld), to an
additional bank or financial institution (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments, Loans and Acceptance
Reimbursement Obligations, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit K, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the U.S. Borrower and the Administrative Agents) and
delivered to the Administrative Agents for their acceptance and recording in
the Register; provided that (i) if any Lender assigns a part of its rights and
obligations in respect of Revolving Credit Loans and/or Revolving Credit
Commitment under this Agreement to an Assignee, such Lender and such Lender's
Counterpart Lender (if any) shall each assign proportionate interests in their
respective Revolving Credit Commitment and Revolving Credit Loans and other
related rights and obligations hereunder to such Assignee and a Counterpart
Lender for such Assignee designated by it, (ii) if any U.S. Lender assigns a
part of its rights and obligations under this Agreement in respect of its U.S.
Revolving Credit Loans and/or U.S. Revolving Credit Commitment to an Assignee,
such U.S. Lender shall assign proportionate interests in (A) its participations
in the Swing Line Loans and other rights and obligations hereunder in respect
of the Swing Line Loans to such Assignee and (B) Multicurrency Loans and
Multicurrency Commitments, (iii) in the case of any such assignment to an
additional bank or financial institution, the aggregate amount of any U.S.
Revolving Credit Commitment (or, if the U.S. Revolving Credit Commitments have
terminated or expired, the aggregate principal amount of any U.S. Revolving
Credit Loans) being assigned, or the U.S. Dollar Equivalent of the aggregate
amount of the Canadian Revolving Credit Commitment (or, if the Canadian
Revolving Credit Commitments have terminated or expired, the aggregate amount
of Canadian Revolving Credit Loans and
123
116
Acceptance Reimbursement Obligations) being assigned shall not be less than
$15,000,000 (or (i) if less, the then outstanding amount of such Commitments,
Loans and/or Acceptance Reimbursement Obligations or (ii) such lesser amount as
may be agreed by the U.S. Borrower and the Administrative Agents), and after
giving effect to such assignment such assignor Lender, if it retains any U.S.
Revolving Credit Commitment, shall retain a U.S. Revolving Credit Commitment of
at least $15,000,000 and (iv) in the case of any such assignment made by a
Canadian Lender, such Assignee must be a resident of Canada for purposes of the
Tax Act unless such assignment is made pursuant to 18.8. Upon such execution,
delivery, acceptance and recording, from and after the closing date determined
pursuant to such Assignment and Acceptance, (I) the Assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder with
Commitments, rights in respect of Acceptance Reimbursement Obligations and
Loans as set forth therein, and (II) the assigning Lender thereunder shall be
released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding the foregoing, no consent of the Borrower shall
be required for any assignment effected while an Event of Default under Section
16(i) is in existence.
(d) The Administrative Agents, on behalf of the Borrowers, shall
maintain at their respective addresses referred to in subsection 18.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time and (ii) the other information required from time
to time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries
in the Register shall constitute prima facie evidence of the information
recorded therein, and the Borrowers, the Administrative Agents and the Lenders
may (and, in the case of any Loan, Acceptance or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan, Acceptance or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan, Acceptance or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the U.S. Borrowers
or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agents), together with payment to the Administrative Agents of a
registration and processing fee of $2,500, the Administrative Agents shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
124
117
(f) Each Borrower authorizes each Lender to disclose to any Participant
or Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning such Borrower and
its Affiliates which has been delivered to such Lender by or on behalf of such
Borrower pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of such Borrower in connection with such Lender's credit
evaluation of such Borrower and its Affiliates prior to becoming a party to
this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 18.20.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this Agreement or
any Loan is transferred from a U.S. Lender to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to agree (for the benefit of the transferor
Lender, the General Administrative Agent and the U.S. Borrower) to provide the
transferor Lender (and, in the case of any Transferee registered in the
Register, the General Administrative Agent and the U.S. Borrower) the tax forms
and other documents required to be delivered pursuant to subsection 10.12(b) or
(c) and to comply from time to time with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
(i) If, pursuant to this subsection, any interest in this Agreement or
any Loan is transferred from a Lender (other than a U.S. Lender) to any
Transferee, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the General Administrative Agent and the Foreign Subsidiary
Borrowers) to provide the transferor Lender, the General Administrative Agent
and the Foreign Subsidiary Borrowers the tax forms and other documents required
to be delivered pursuant to subsection 10.12(c) and (e) and to comply from time
to time with all applicable laws and regulations with regard to such
withholding tax exemption.
18.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of its Extensions of
Credit then due and owing to it from any Borrower, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 16(i), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Extensions of Credit then due and owing to it from such
Borrower, or interest thereon, such Benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such
other Lender's Extensions of Credit owing to it from such Borrower, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to
125
118
cause such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower,
any such notice being expressly waived by the Borrowers to the extent permitted
by applicable law, upon any amount becoming due and payable hereunder (whether
at the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of such Borrower. Each Lender agrees promptly to notify
the Borrowers and the Administrative Agents after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
18.8 Loan Conversion/Participations. (a) (i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise,
all Loans outstanding in any currency other than U.S. Dollars ("Loans to be
Converted") shall be converted into U.S. Dollars (calculated on the basis of
the relevant Exchange Rates as of the Business Day immediately preceding the
Conversion Date) ("Converted Loans"), (ii) on each date on or after the
Conversion Date on which any Acceptances or Acceptance Notes shall mature such
Acceptances and Acceptance Notes ("Acceptances to be Converted") shall be
converted into Canadian Revolving Credit Loans denominated in U.S. Dollars
(calculated on the basis of the Exchange Rate as of the Business Day
immediately preceding such maturity date) ("Converted Acceptances") and (iii)
on the Conversion Date (with respect to Loans described in the foregoing clause
(i)), and on the respective maturity date (with respect to Acceptances and
Acceptance Notes described in the foregoing clause (ii)) (A) each U.S. Lender
severally, unconditionally and irrevocably agrees that it shall purchase in
U.S. Dollars a participating interest in such Converted Loans and Converted
Acceptances in an amount equal to its Conversion Sharing Percentage of (x) the
outstanding principal amount of the Converted Loans and (y) the face amount of
matured Acceptances and Acceptance Notes, as applicable, and (B) to the extent
necessary to cause the Committed Outstandings Percentage of each U.S. Lender,
after giving effect to the purchase and sale of participating interests under
the foregoing clause (iii), to equal its U.S. Revolving Credit Commitment
Percentage (calculated immediately prior to the termination or expiration of
the U.S. Revolving Credit Commitments), each U.S. Lender severally,
unconditionally and irrevocably agrees that it shall purchase or sell a
participating interest in U.S. Revolving Credit Loans then outstanding. Each
U.S. Lender will immediately transfer to the appropriate Administrative Agent,
in immediately available funds, the amounts of its participation(s), and the
proceeds of such participation(s) shall be distributed by such Administrative
Agent to each Lender from which a participating interest is being purchased in
the amount(s) provided for in the preceding sentence. All Converted Loans and
Converted Acceptances (which shall have
126
119
been converted into Canadian Revolving Credit Loans denominated in Dollars)
shall bear interest at the rate which would otherwise be applicable to ABR
Loans.
(b) If, for any reason, the Loans to be Converted or Acceptances to be
Converted, as the case may be, may not be converted into U.S. Dollars in the
manner contemplated by paragraph (a) of this subsection 18.8, (i) the General
Administrative Agent shall determine the U.S. Dollar Equivalent of the Loans to
be Converted or Acceptances to be Converted, as the case may be, (calculated on
the basis of the Exchange Rate as of the Business Day immediately preceding the
date on which such conversion would otherwise occur pursuant to paragraph (a)
of this subsection 18.8), (ii) effective on such Conversion Date, each Lender
severally, unconditionally and irrevocably agrees that it shall purchase in
U.S. Dollars a participating interest in such Loans to be Converted or
Acceptances to be Converted, as the case may be, in an amount equal to its
Conversion Sharing Percentage of such Loans to be Converted or Acceptances to
be Converted, as the case may be, and (iii) each U.S. Lender shall purchase or
sell participating interests as provided in paragraph (a)(iii) of this
subsection 18.8. Each U.S. Lender will immediately transfer to the appropriate
Administrative Agent, in immediately available funds, the amount(s) of its
participation(s), and the proceeds of such participation(s) shall be
distributed by such Administrative Agent to each relevant Lender in the
amount(s) provided for in the preceding sentence.
(c) To the extent any Taxes are required to be withheld from any
amounts payable by a Lender (the "First Lender") to another Lender (the "Other
Lender") in connection with its participating interest in any Converted Loan or
Converted Acceptance, each Borrower, with respect to the relevant Loans made to
it, shall be required to pay increased amounts to the Other Lender receiving
such payments from the First Lender to the same extent they would be required
under subsection 10.12 if such Borrower were making payments with respect to
the participating interest directly to the Other Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 18.8 have been taken, upon the notice of any U.S. Lender to
the Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 15) shall automatically be deemed to have
assumed the Converted Loans and Converted Acceptances in which such U.S. Lender
holds a participation, (ii) any Acceptances and Loans outstanding in any
currency other than U.S. Dollars shall be converted into U.S. Dollars on the
dates of such assumption (calculated on the basis of the Exchange Rate on the
Business Day immediately preceding such date of assumption) and such Loans
shall bear interest at the rate which would otherwise be applicable to ABR
Loans and (iii) such Loans and obligations in respect of Acceptances shall be
assigned by the relevant Lender holding such Loans or obligations to the U.S.
Lender who gave the notice requesting such assumption by the U.S. Borrower.
18.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be delivered to the Borrowers
and the Administrative Agents.
127
120
18.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the
Administrative Agents or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
18.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
18.13 Submission to Jurisdiction; Waivers. (a) Each Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Document to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 18.2 or
at such other address of which the General Administrative Agent shall
have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
(b) Each of the Canadian Borrower and each Foreign Subsidiary Borrower
hereby irrevocably appoints the U.S. Borrower as its agent for service of
process in any proceeding referred to in subsection 18.13(a) and agrees that
service of process in any such proceeding may be made by mailing or delivering
a copy thereof to it care of U.S. Borrower at its address for notice set forth
in subsection 18.2.
128
121
18.14 Acknowledgements. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agents or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Administrative Agents and the Lenders, on
the one hand, and the U.S. Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrowers and the Lenders.
18.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE ADMINISTRATIVE
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
18.16 Power of Attorney. Each Foreign Subsidiary Borrower hereby
grants to U.S. Borrower an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Foreign Subsidiary Borrower
hereby explicitly acknowledges that the Administrative Agents and each Lender
have executed and delivered this Agreement and each other Loan Document to
which it is a party, and has performed its obligations under this Agreement and
each other Loan Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection. The
power of attorney granted by each Foreign Subsidiary Borrower hereunder is
coupled with an interest.
18.17 Existing Letters of Credit. (a) On the Closing Date, all
outstanding letters of credit under the 1995 Agreement set forth on Schedule V
shall be converted into Letters of Credit hereunder on the terms and conditions
set forth in this Agreement.
18.18 Release of Collateral. (a) The Lenders hereby agree with the
U.S. Borrower, and hereby instruct the General Administrative Agent, that if
(i) the U.S. Borrower attains Investment Grade Status, (ii) the General
Administrative Agent has no actual knowledge of the existence of a Default and
(iii) the U.S. Borrower shall have delivered a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, the General Administrative Agent shall, at the
request and expense of the U.S. Borrower, take such actions as shall be
reasonably requested by the U.S. Borrower to release its security interest in
all collateral held by it pursuant to the Security Documents.
129
122
(b) The Lenders hereby agree with the U.S. Borrower and hereby instruct
the General Administrative Agent, at the request of and expense of the U.S.
Borrower, the General Administrative Agent will, promptly after the Closing
Date, release its security interest in any collateral under the Existing
Agreements other than stock pledged under the Pledge Agreements.
18.19 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General Administrative Agent
could purchase the first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment
Currency such Lender may in accordance with normal banking procedures purchase
the Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
18.20 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information
designated in writing as confidential and provided to it by the U.S. Borrower
or any Subsidiary in connection with this Agreement; provided, however, that
any Lender may disclose such information (a) at the request of any bank
regulatory authority or in connection with an examination of such Lender by any
such authority, (b) pursuant to subpoena or other court process, (c) when
required to do so in accordance with the provisions of any applicable law, (d)
at the discretion of any other Governmental Authority, (e) to such Lender's
Affiliates, independent auditors and other professional advisors or (f) to any
Transferee or potential Transferee; provided that such Transferee agrees to
comply with the provisions of this subsection 18.20.
18.21 Effect of Amendment and Restatement of the Existing Credit
Agreements. On the Closing Date, the Existing Credit Agreements shall be
amended, restated and superseded in their entirety. The parties hereto
acknowledge and agree that (a) this Agreement and the other Loan Documents,
whether executed and delivered in connection herewith or otherwise, do not
constitute a novation, payment and reborrowing, or termination of the
"Obligations" (as defined in the Existing Credit Agreements) under the Existing
Credit Agreements as in effect prior to the Closing Date; (b) such
"Obligations" are in all respects continuing (as amended and restated hereby)
with only the terms thereof being modified as provided in this Agreement;
(c) except to the extent released pursuant to subsection 18.18(b), the Liens and
security interests as granted under the Security Documents securing payment of
such "Obligations" are in all respects
130
123
continuing and in full force and effect and secure the payment of the
Obligations (as defined in this Agreement), and to the extent necessary to
effect the foregoing, each such Security Document is hereby deemed amended
accordingly; and (d) upon the effectiveness of this Agreement all loans of
Lenders outstanding under the Existing Credit Agreements immediately before the
effectiveness of this Agreement will be converted into U.S. Revolving Credit
Loans of such Lenders hereunder and all outstanding letters of credit under the
1995 Agreement will be converted into Letters of Credit hereunder, in each case
on the terms and conditions set forth in this Agreement.
18.22 Conflicts. In the event that there exists a conflict between
provisions in this Agreement and provisions in any other Loan Document, the
provisions of this Agreement shall control.
131
124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
▇▇▇▇ CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Treasurer
▇▇▇▇ CORPORATION CANADA LTD.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Treasurer
▇▇▇▇ CORPORATION SWEDEN AB
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK, as General
Administrative Agent and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Canadian Administrative Agent
and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Lender
CHASE MANHATTAN BANK DELAWARE, as an Issuing
Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: President & CEO
132
125
ABN AMRO BANK N.V. CHICAGO BRANCH, as a
Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President
THE ASAHI BANK, LTD., as a Lead Manager and
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Senior Deputy General Manager
BANCA NAZIONALE DEL LAVORO S.P.A.
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title:Vice President
BANK AUSTRIA AKTIENGESELLSCHAFT
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Title: Associate Vice President
By:/s/ ▇▇▇▇▇ ▇. Scay
---------------------------
Title: Vice President
BANK OF AMERICA NT & SA, Co-Agent
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
133
126
BANK OF MONTREAL, as a Co-Agent and as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Director
THE BANK OF NEW YORK, as a Co-Agent and as a
Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President
BANK OF NOVA SCOTIA, as a Managing Agent and
as a Lender
By:/s/ A.S. Norsworth
---------------------------
Title: Sr. Team Leader-Loan
THE BANK OF TOKYO-MITSUBISHI LTD., NEW YORK
BRANCH, as a Co-Agent and as a Lender
By:/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Assistant Vice President
By:/s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Assistant Vice President
BANKERS TRUST COMPANY, as a Managing Agent
and as a Lender
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS, as a Lead Manager
and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ du Bocage
---------------------------
Title: Executive Vice President
134
127
BANQUE PARIBAS, as a Lead Manager and as a
Lender
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Vice President
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE, as a
Lead Manager and as a Lender
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇, F.V.P.
---------------------------
Title: Head of Corporate Banking
CANADIAN IMPERIAL BANK OF COMMERCE
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: Director
CIBC INC., as a Co-Agent and as a Lender
By:/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Director
CITICORP USA, INC., as a Managing Agent and
as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Attorney-in-Fact
COMERICA BANK, as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Account Representative
135
128
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:/s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President, Manager
By:/s/ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Thegs
---------------------------
Title: Deputy General Manager
CREDITO ITALIANO S.P.A.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: SVP & Deputy Manager
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
CREDIT LYONNAIS CHICAGO BRANCH, as a
Co-Agent and as a Lender
By:/s/ Michel Buysschaert
---------------------------
Title: Vice President
DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By:/s/ Seiichiro Ino
---------------------------
Title: Vice President
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
BRANCHES, as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
136
129
FIRST AMERICAN NATIONAL BANK
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
By:/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Commericial Banking Officer
THE FIRST NATIONAL BANK OF BOSTON, as a
Lead Manager and as a Lender
By: /s/ ▇.▇. ▇▇▇▇▇
---------------------------
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as a Co-Agent and as a
Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President
FLEET NATIONAL BANK
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Vice President Operations
THE FUJI BANK, LIMITED, as a Co-Agent and as
a Lender
By:/s/ Hidehiko Ide
---------------------------
Title: General Manager
137
130
GULF INTERNATIONAL BANK B.S.C.
By:/s/ Abdel-Fattah Tahoun
---------------------------
Title: Senior Vice President
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Co-Agent and as a Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Joint General Manager
INSTITUTO BANCARIO SAN PAOLO DI TORINO SPA
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: First Vice President
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Assistant Vice President
KREDIETBANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Authorized Signatory
138
131
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
CHICAGO BRANCH, as a Lead Manager and as a
Lender
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH, as a
Lead Manager and as a Lender
By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Chief Manager
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President & Manager
NATIONSBANK N.A., as a Co-Agent and as a
Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
---------------------------
Title: Vice President
NBD BANK, as a Co-Agent and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President
ROYAL BANK OF CANADA, as a Lead Manager and
as a Lender
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Senior Manager
139
132
THE ROYAL BANK OF SCOTLAND PLC, as a
Lead Manager and as a Lender
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Vice President
THE SAKURA BANK, LTD.,
as a Lead Manager and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Joint General Manager
THE SANWA BANK LIMITED,
CHICAGO BRANCH, as a Co-Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Vice President
SOCIETE GENERALE
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
CHICAGO BRANCH, as a Lead Manager and as a
Lender
By:/s/ ▇. ▇▇▇▇▇
---------------------------
Title: Joint General Manager
THE SUMITOMO TRUST AND BANKING CO., LTD.,
NEW YORK BRANCH
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Title: Deputy General Manager
140
133
THE TOKAI BANK, LTD.,
CHICAGO BRANCH, as a Lead Manager and as a
Lender
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: General Manager
THE TOYO TRUST & BANKING CO.,
LTD
By:/s/ Takao Shida
---------------------------
Title: Deputy General Manager
YASUDA TRUST AND BANKING COMPANY, LIMITED,
as a Lead Manager and as a Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title: Deputy General Manager
141
SCHEDULE I
COMMITMENTS; ADDRESSES
A. U.S. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
----------- ------------------ ------------------ -------------
ABN AMRO Bank N.V., Chicago
Branch $ 50,000,000 $ 35,000,000
The Asahi Bank, Ltd. $ 35,000,000
Banca Nazionale del Lavoro
S.p.A., New York Branch $ 15,000,000
Bank Austria Aktiengesellschaft $ 20,000,000
Bank of America NT & SA $ 50,000,000 $ 35,000,000
Bank of Montreal $ 50,000,000 Bank of Montreal
The Bank of New York $ 50,000,000 $ 35,000,000
The Bank of Nova Scotia $ 55,000,000 The Bank of Nova
Scotia
The Bank of Tokyo-Mitsubushi
Ltd., New York Branch $ 50,000,000
Bankers Trust Company $ 55,000,000
Banque Nationale de Paris $ 35,000,000 $ 30,000,000
Banque Paribas $ 35,000,000 $ 15,000,000
142
2
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
----------- ----------------- ------------------ -------------
Caisse Nationale de Credit
Agricole $ 35,000,000 $ 10,000,000
Chase Manhattan Bank $ 61,000,000 $ 50,000,000
Canadian Imperial
Bank of
CIBC, Inc. $ 50,000,000 Commerce
Citicorp USA, Inc. $ 55,000,000 $ 40,000,000
Comerica Bank $ 50,000,000 $ 10,000,000
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York
Branch $ 25,000,000 $ 5,000,000
Credito Italiano S.p.A. $ 15,000,000
Credit Lyonnais Chicago Branch $ 45,000,000 $ 10,000,000
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch $ 30,000,000
Dresdner Bank $ 35,000,000 $ 35,000,000
First American National Bank $ 15,000,000
First Bank National Association $ 25,000,000 $ 15,000,000
The First National Bank of
Boston $ 35,000,000 $ 30,000,000
143
3
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
----------- ----------------- ------------------ -------------
First Union National Bank of
North Carolina $ 50,000,000 $ 20,000,000
Fleet National Bank $ 20,000,000
The Fuji Bank, Limited $ 50,000,000
Gulf International Bank B.S.C. $ 15,000,000
The Industrial Bank of Japan,
Limited $ 50,000,000
Instituto Bancario Sao Paolo Di
Torino SpA $ 19,000,000
KeyBank National Association $ 25,000,000
Kredietbank N.V. $ 25,000,000 $ 15,000,000
▇▇▇▇▇▇ Commercial Paper Inc. $ 25,000,000
The Long Term Credit Bank of Japan,
Ltd. Chicago Branch $ 35,000,000
The Mitsubishi Trust & Banking
Corporation, Chicago Branch $ 35,000,000
The Mitsui Trust & Banking
Company, Limited $ 30,000,000
NationsBank, N.A. $ 50,000,000 $ 35,000,000
NBD Bank $ 50,000,000 $ 35,000,000
144
4
U.S. Revolving Multicurrency
U.S. Lender Credit Commitment Counterpart Lender Commitment
----------- ----------------- ------------------ -------------
Royal Bank of Canada $ 35,000,000 Royal Bank of Canada
The Royal Bank of Scotland plc $ 35,000,000 $ 30,000,000
The Sakura Bank, Ltd. $ 35,000,000
The Sanwa Bank, Limited,
Chicago Branch $ 50,000,000
Societe Generale $ 30,000,000 $ 10,000,000
The Sumitomo Bank, Limited
Chicago Branch $ 35,000,000
The Sumitomo Trust & Banking
Co., Ltd., New York Branch $ 25,000,000
The Tokai Bank, Ltd., Chicago
Branch $ 35,000,000
The Toyo Trust & Banking Co.,
Ltd. $ 30,000,000
Yasuda Trust & Banking Company,
Limited $ 35,000,000
-------------- ------------
TOTAL $1,800,000,000 $500,000,000
============== ============
145
5
B. Canadian Commitment Amounts (U.S. Dollars)
Canadian Revolving
Canadian Lender Credit Commitment Counterpart Lender
--------------- ------------------ -----------------
Bank of Montreal $ 5,000,000 Bank of Montreal
The Bank of Nova Scotia $15,000,000 The Bank of Nova Scotia
Canadian Imperial Bank of Commerce $20,000,000 CIBC, Inc.
Royal Bank of Canada $10,000,000 Royal Bank of Canada
-----------
TOTAL $50,000,000
===========
146
1
C. ADDRESSES FOR NOTICES
ABN AMRO BANK N.V., CHICAGO BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE ASAHI BANK, LTD.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANCA NAZIONALE DEL LAVORO S.P.A. - NEW YORK BRANCH
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK AUSTRIA AKTIENGESELLSCHAFT
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NT & SA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF MONTREAL
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF NOVA SCOTIA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF TOKYO-MITSUBUSHI LTD., NEW YORK BRANCH
1251 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/6030
BANQUE NATIONALE DE PARIS
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE PARIBAS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
148
3
CAISSE NATIONALE DE CREDIT AGRICOLE
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CIBC INC. (U.S. BORROWINGS)
Atlanta Agency
Two Paces ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN IMPERIAL BANK OF COMMERCE (CANADIAN BORROWINGS)
Commerce Court West- 50th Floor
Toronto, Ontario M5L 1A2
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP USA, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COMERICA BANK
Comerica Tower at Detroit Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
149
4
CREDITO ITALIANO S.P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS CHICAGO BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DRESDNER BANK
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Funding:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ Services ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST AMERICAN NATIONAL BANK
Fourth & Union Street., NA-0310
Nashville, TN 37238
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
150
5
FIRST BANK NATIONAL ASSOCIATION
First Bank Place
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF BOSTON
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇-▇▇-▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Funding:
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE FUJI BANK, LIMITED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
151
6
GULF INTERNATIONAL BANK B.S.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LIMITED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
INSTITUTO BANCARIO SAO PAOLO DI TORINO SPA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices:
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Funding:
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
KEYBANK NATIONAL ASSOCIATION
Large Corporate Group
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
KREDIETBANK N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
152
7
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG TERM CREDIT BANK OF JAPAN, LTD. CHICAGO BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices:
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Funding:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUBISHI TRUST & BANKING CORPORATION, CHICAGO BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUI TRUST & BANKING COMPANY, LIMITED
One World Financial Center, 21st Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/4171
NATIONSBANK, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices:
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
153
8
Funding:
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
NBD BANK
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF CANADA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Notices:
32 Old Slip,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE SAKURA BANK, LTD.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
154
9
THE SANWA BANK, LIMITED, CHICAGO BRANCH
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK, LIMITED CHICAGO BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Notices:
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Funding:
Attn: ▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK BRANCH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
THE TOKAI BANK, LTD., CHICAGO BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
155
10
THE TOYO TRUST & BANKING CO., LTD.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
YASUDA TRUST & BANKING COMPANY, LIMITED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
156
SCHEDULE II
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
---------------- ---------------
▇▇▇▇ Corporation Sweden AB Sweden
c/o Lear Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
157
SCHEDULE III
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
A. Interest Rates for Each Currency
Deutsche Marks:
for any Interest Period in respect of any Tranche, the rate for
deposits in Deutsche Marks for a period beginning on the first
day of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3750 (or,
if no such quotation which appears on such Telerate Page, on
the appropriate Reuters Screen) as of 11:00 a.m., London time,
on the Quotation Day for such Interest Period.
French Francs:
for any Interest Period in respect of any Tranche, the rate for
deposits in French Francs for a period beginning on the first
day of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3740 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on
the Quotation Day for such Interest Period.
Sterling:
for any Interest Period in respect of any Tranche, the rate per
annum equal to the average (rounded upward to the nearest 1/16th
of 1%) of the rates at which Chase is offered deposits in
Sterling in the Paris interbank market at or about 11:00 A.M.,
Paris time, on the Quotation Day for such Interest Period for
delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to
Chase's Multicurrency Commitment Percentage of the applicable
Multicurrency Loan.
Swedish Kroner:
for any Interest Period in respect of any Tranche, the rate per
annum equal to the average (rounded upward to the nearest 1/16th
of 1%) of the rates at which Chase is offered deposits in
Swedish Kroner in the London
158
2
interbank market at or about 11:00 A.M., London time, on the
Quotation Day for such Interest Period for delivery on the first
day of such Interest Period for the number of days comprised
therein and in an amount comparable to Chase's Multicurrency
Commitment Percentage of the applicable Multicurrency Loan.
Italian Lire:
for any Interest Period in respect of any Tranche, the rate for
deposits in Italian Lire for a period beginning on the first day
of such Interest Period and ending on the last day of such
Interest Period which appears on the Telerate Page 3740 (or, if
no such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London time, on
the Quotation Day for such Interest Period.
Austrian Schillings:
for any Interest Period in respect of any Tranche, the rate
per annum equal to the average (rounded upward to the nearest
1/16th of 1%) of the rates at which Chase is offered deposits in
Austrian Schillings in the London interbank market at or about
11:00 A.M., London time, on the Quotation Day for such Interest
Period for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable
to Chase's Multicurrency Commitment Percentage of the applicable
Multicurrency Loan.
B. Funding Office, Funding Time, Payment Office, Payment Time for Each
Currency.
Deutsche Marks:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG Frankfurt
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 101-080002101
Chase Bank AG Frankfurt
4. Payment Time: 11:00 A.M., local time.
159
3
French Francs:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 020.359.541100
Credit Commercial deFrance, Paris
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: 020.359.541100
Credit Commercial deFrance, Paris
4. Payment Time: 11:00 A.M., local time.
Sterling:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
Swedish Kroner:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 52018519395
2. Funding Time: 11:00 A.M., local time.
160
4
3. Payment Office:
Account of: Skandinaviska Enskilda Banken, Stockholm
Account No: 52018519395
4. Payment Time: 11:00 A.M., local time.
Italian Lire:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 6010073267
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan Bank, Milan
Account No: 6010073267
4. Payment Time: 11:00 A.M., local time.
Austrian Schillings:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 0101-07530/01
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Creditanstalt, Bankverein, Vienna
Account No: 0101-07530/01
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
161
5
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business
Day preceding the Quotation Day in respect of such Borrowing
Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be borrowed, and
Interest Periods.
D. Notice of Multicurrency Loan Continuation; Notice of Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last Business
Day preceding the Quotation Day for the next Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be continued or
prepaid, as the case may be, and Interest Periods.
162
6
II. NOTICE OF ALTERNATE CURRENCY OUTSTANDINGS
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
with a copy to:
The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone No.: 212-622-8779
Fax No.: 212-622-0122
2. Delivery time: By close of business in London on the date of
making of each Alternate Currency Loan and
having a fixed maturity of 30 or more days and on
the last Business Day of each month on which the
applicable Alternate Currency Borrower has
outstanding any Alternate Currency Loans.
3. Information to be set forth:
Name of Foreign Subsidiary Borrower
Amount and currency of outstanding Alternate Currency Loans of
each Alternate Currency Lender
163
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Second Amendment and Restated Domestic Pledge Agreement, dated as of
the date hereof, made by the U.S. Borrower, pledging 100% of the stock of Lear
Tooling Corporation, Lear Corporation Mendon, LS Acquisition Corporation No. 24,
Lear Corporation Holdings Corp. No. 50, Automotive Industries Manufacturing
Inc., Masland Industries, Inc., Lear Operations Corporation, NAB Corporation and
Lear Corporation (Germany) Ltd. in favor of the General Administrative Agent,
substantially in the form of Exhibit Q to the Agreement.
2. Second Amendment and Restated Fair Haven Pledge Agreement, dated as
of the date hereof, made by LS Acquisition Corporation No. 24, pledging 100% of
the stock of Fair Haven Industries, Inc., in favor of the General Administrative
Agent, substantially in the form of Exhibit R to the Agreement.
3. Lear Corporation Canada Ltd. Share Pledge Agreement made by the U.S.
Borrower, pledging 65% of the stock of Lear Corporation Canada Ltd., in favor of
the General Administrative Agent, together with the related Acknowledgment and
Confirmation, in form and substance satisfactory to the General Administrative
Agent.
164
SCHEDULE V
EXISTING LETTERS OF CREDIT
L/C FACE EXPIRATION
NUMBER AMOUNT BENEFICIARY DATE
-------- ------------- ----------- ------------------
T-235091 $9,617,436.17 NBD Bank N.A. October 31, 1996
T-237709 $7,000,000.00 Zurich Insurance Corporation September 30, 1997
T-248499 $ 1,350,000.0 Employees Insurance Casualty December 30,1997
T-250234 $1,567,847.00 Zurich Insurance Company October 31, 1997
T-256694 $ 183,357.00 Lumberman's Mutual Casualty Company October 1, 1997
G-137608 $ 490,750.00 National Union Fire Insurance September 28, 1997
T-216189 $ 750,000.00 Zurich Insurance Company September 30, 1997
T-219868 $4,800,000.00 Zurich Insurance Company September 30, 1997
T-220133 $5,500,000.00 Citibank N.A. October 31, 1997
T-232745 $9,592,779.25 NBD Bank N.A. October 31, 1997
T-256695 $1,000,000.00 Lumberman's Mutual Casualty Company October 1, 1997
T-256696 $ 188,635.00 Lumberman Mutual October 1, 1997
T-256698 $ 709,800.00 Capital Blue Cross October 31, 1997
T-293944 $3,000,000.00 Zurich Insurance June 30, 1997
T-294933 $3,291,250.00 National Union Fire Insurance August 13, 1997
165
SCHEDULE VI
SUBSIDIARIES
DOMESTIC SUBSIDIARIES:
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
---------------------------------------- --------------- --------------- -------------
Lear Corporation (Germany) Ltd. Delaware 100% Lear Corporation
Lear Seating Holdings Corp. No. 50 Delaware 100% Lear Corporation
Lear Tooling Corporation Delaware 100% Lear Corporation
LS Acquisition Corporation No. 24 Delaware 100% Lear Corporation
Fair Haven Industries, Inc. Michigan 100% LS Acquisition Corporation No. 24
Lear Corporation Mendon Delaware 100% Lear Corporation
Lear Operations Corporation Delaware 100% Lear Corporation
NAB Corporation Delaware 100% Lear Corporation
Masland Industries, Inc. Delaware 100% Lear Corporation
LJA, Inc. Delaware 100% Lear Corporation
Masland Specialty Technologies, Inc. Delaware 100% Masland Industries, Inc.
Masland International, Inc. Delaware 100% Masland Industries, Inc.
Masland Transportation, Inc. Delaware 100% Masland Industries, Inc.
Masland Acoustics Components, Inc. Delaware 100% Masland Industries, Inc.
Masland Technologies Corporation Delaware 100% Masland Industries, Inc.
Masland of Wisconsin, Inc. Delaware 100% Masland Industries, Inc.
General Panel B.V. Delaware 100% ASAA International, Inc.
Automotive Industries Manufacturing Inc. Delaware 100% Lear Corporation
Capital Plastics of Ohio, Inc. Ohio 100% Automotive Industries Manufacturing Inc.
ASAA International, Inc. Delaware 100% Automotive Industries Manufacturing Inc.
ASAA, Inc. Wisconsin 100% General Panel B.V.
American Wood Stock Company, Inc. Wisconsin 100% ASAA, Inc.
ASAA Technologies, Inc. Wisconsin 100% ASAA, Inc.
Fibercraft/DESCon Engineering, Inc. Delaware 100% Automotive Industries Manufacturing Inc.
Automotive Industries Sales, Inc. Michigan 100% Automotive Industries Manufacturing Inc.
Surf City, Inc. Michigan 100% Automotive Industries Manufacturing Inc.
166
1
FOREIGN SUBSIDIARIES:
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------------------------------- --------------- --------------- -------------
Lear Corporation Sweden AB Sweden 100% Lear Corporation
Lear Holdings S.A. de C.V. Mexico 81.4% Lear Seating Holdings Corp. No. 50
Lear Holdings S.A. de C.V. Mexico 18.6% Lear Corporation
Lear Corporation Mexico S.A. de C.V. Mexico 99% Lear Holdings S.A. de C.V.
Lear Corporation Canada Ltd. Canada 100% Lear Corporation
Intertrim S.A. de C.V. Mexico 99.5% Lear Corporation
NS Beteiligungs GmbH Germany 100% Lear Corporation (Germany) Ltd.
NS Drahtfedern GmbH Germany 100% NS Beteiligungs GmbH
Lear Corporation GmbH Germany 100% NS Drahtfedern GmbH
Lear France SARL France 100% Lear Corporation
Societe No Sag Francaise France 56% Lear France SARL
Somby S.A. France 100% Societe No Sag Francaise
Automotive Industries (Holdings) Ltd. U.K. 100% Automotive Industries Manufacturing Inc.
Favesa S.A. de C.V. Mexico 91.5% Lear Holdings S.A. de C.V.
Favesa S.A. de C.V. Mexico 8.5% Lear Corporation
Lear Seating (SA)(Pty) Ltd. South Africa 100% Lear Corporation
Lear Seating Italia Holdings, S.r.L. Italy 10% Lear Corporation
Lear Corporation Italia Sud S.p.A. Italy 100% Lear Seating Italia S.p.A.
Lear Corporation Italia S.p.A. Italy 100% Lear Seating Italia Holdings, S.r.L.
Lear Services Ltda. Brazil 100% Lear Corporation
Lear Poland Z o.o. Poland 100% Lear Corporation
R D M Finance Cayman Islands 100% Lear Corporation
Plastifol Holding GmbH Germany 100% Automotive Industries Manufacturing Inc.
Plastifol Property GmbH Germany 100% Plastifol Holdings GmbH
Plastifol Verwaltungs GmbH Germany 100% Plastifol Property GmbH
Manfred Rothe Verwalungs GmbH Germany 100% Plastifol Property GmbH
Plastifol Manfred Rothe Iberia S.A. Spain 71.4% Plastifol Property GmbH
AVB Anlagen und Vorrichtungsban GmbH Germany 55% Plastifol Holding GmbH
Plastifol Beteiligungs GmbH Germany 100% Plastifol Holding GmbH
167
2
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------------------------------- --------------- --------------- -------------
Guildford Kast Plastifol Dynamics Ltd. U.K. 33.3% Plastifol Beteiligungen GmbH
Automotive Industries (U.K.) Ltd. U.K. 100% Automotive Industries (Holdings) Ltd.
Simplay Ltd. U.K. 100% Automotive Industries (U.K.) Ltd.
Davart Group Ltd. U.K. 100% Automotive Industries (U.K.) Ltd.
John Cotton (Plastics) Ltd. U.K. 100% Davart Group Ltd.
Interiores Automotrices Summa, S.A.
de C.V. Mexico 40% ASAA, Inc.
AII Automotive Industries Canada, Inc. Ontario 100% Automotive Industries Manufacturing Inc.
Lear Corporation Australia Pty. Ltd. Australia 100% Lear Corporation
Interiores Para Autos, S.A. de C.V. Mexico 100% Interiores Auto Matricies Summa S.A. de
C.V.
Autoriums S.A. de C.V. Mexico 100% Interiores Auto Metricies Summa S.A. de
C.V.
Lear Corporation (U.K.) Ltd. U.K. 100% Automotive Industries (Holdings) Ltd.
Lear Corporation Austria GmbH Austria 100% NS Beteiligungs GmbH
Rael MabelsgmbH Austria 100% NS Beteiligungs GmbH
Ramco Investments Limited India 100% Lear Corporation
Lear Seating Private Limited India 100% Lear Corporation
Automotive Industries Export Ltd. Barbados 100% Automotive Industries Manufacturing Inc.
Masland Industries of Canada Limited Canada 100% Masland International, Inc.
Empresas Industriales Mexicanas de
Autopartes, S.A. de C.V. ("EIMA") Mexico 75% Masland International, Inc.
Consorcio Industrial Mexicano de
Autopartes, S.A. de C.V. Mexico 98% Masland International, Inc.
Consorcio Industrial Mexicano de
Autopartes, S.A. de C.V. Mexico 2% EIMA
Consorcio Industrial Mexicano de
Autopartes Toluca, S.A. de C.V. Mexico 60% EIMA
Consorcio Industrial Mexicano de
Autopartes Toluca, S.A. de C.V. Mexico 40% Masland International, Inc.
Tapizados Lear S.A. Argentina 79% Lear Corporation
L.S. Servicos Ltda. 100% Lear Corporation
168
SCHEDULE VII
HAZARDOUS MATERIAL
The facility at Mendon, Michigan was contaminated with Hazardous
Materials in several areas.
1. Soil beneath one of the plant buildings was contaminated with
heavy metals as the result of spills from the former electroplating
operation and leaks in the floor. The U.S. Borrower excavated the most
heavily contaminated soil and signed a "Declaration of
Restrictions/Consent Agreement" with MDNR, which requires maintenance of
an impermeable cap (i.e., the current concrete floor) over the
contaminated area.
2. The U.S. Borrower believes that it has completed all of the
capital expenditures necessary to remedy the soil and groundwater
contamination identified at the Mendon plant. Monitoring wells indicate
that there has been no migration of contamination toward a drinking water
well located approximately one quarter of a mile from the plant, but it is
remotely possible that MDNR will require the U.S. Borrower to undertake
additional remediation actions as a precaution.
169
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated July 15, 1992, among Lear Corporation, as Issuer, The
Bank of New York, as Trustee, relating to the U.S. Borrower's 11-1/4%
Senior Subordinated Notes.
2. Indenture, dated February 1, 1994, between Lear Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the U.S. Borrower's 8
1/4% Subordinated Notes.
3. Indenture, dated July 1, 1996 between Lear Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's 9-1/2%
Subordinated Notes.
4. Loan Agreement between NS Beteilgungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
5. Agreement relating to working capital credit facility provided by SE
Lenderen to Lear Seating Sweden AB.
6. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the acquisition of the Fiat
Seat Business and agreement governing indebtedness which refinances such
indebtedness.
7. Loan Agreement between Lear Corporation and the Province of Ontario,
Canada relating to indebtedness of up to $2,000,000 (Canadian).
8. Loan Agreement, dated January 27, 1993, between Lear Corporation and
the Province of Ontario, Canada.
9. Term Loan Agreement between Lear Seating Italia and Istituto Bancario
San Paolo di Torino S.p.A. entered into in connection with the acquisition
of the Fiat Seat Business.
10. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission and
Cumberland Plateau Company.
11. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
12. Revolving Loan Agreement between Lear Canada Ltd. and The Bank of Nova
Scotia.
13. Loan Agreement between NS Beteiligungs GmbH and IndustrieKreditbank
AG-Deutsch Industriebank.
170
2
14. Agreements governing working capital Indebtedness of Lear Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.