1
Exhibit 99.1
CREDIT AGREEMENT
(Secured PIK/Term)
among
▇▇▇▇▇▇ SERVICES CORPORATION,
as Borrower
Canadian Imperial Bank of Commerce,
as Administrative Agent
and
The Various Persons
from time to time parties to this Agreement,
as Lenders
$335,825,362.22
DATED AS OF MARCH 31, 2000
WHITE & CASE LLP
BLAKE, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
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TABLE OF CONTENTS
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Section 1. Amount and Terms of Credit............................................................................2
1.01 Loans..............................................................................................2
1.02 Notes..............................................................................................2
1.03 Interest...........................................................................................3
1.04 Increased Costs, Illegality, etc...................................................................6
1.05 Change of Applicable Lending Office................................................................6
1.06 Replacement of Lenders.............................................................................6
1.07 Conversion Features of PIK Loans...................................................................7
Section 2. Fees; Prepayments; Payments..........................................................................15
2.01 Fees..............................................................................................15
2.02 Voluntary Prepayments.............................................................................15
2.03 Mandatory Prepayments.............................................................................17
2.04 PIK Loan Redemption Notice........................................................................23
2.05 Method and Place of Payment.......................................................................23
2.06 Net Payments......................................................................................23
Section 3. Conditions Precedent.................................................................................27
3.01 Conditions Precedent to Term Loans and PIK Loans..................................................27
Section 4. Representations, Warranties and Agreements...........................................................32
4.01 No Encumbrances...................................................................................32
4.02 Equipment.........................................................................................32
4.03 Location of Inventory and Equipment...............................................................33
4.04 Inventory Records.................................................................................33
4.05 Location of Chief Executive Office; FEIN..........................................................33
4.06 Due Organization and Qualification; Subsidiaries..................................................33
4.07 Due Authorization; No Conflict....................................................................34
4.08 Litigation........................................................................................35
4.09 No Material Adverse Change........................................................................35
4.10 Fraudulent Transfer...............................................................................35
4.11 Employee Benefits.................................................................................35
4.12 Environmental Condition...........................................................................35
4.13 Intellectual Property.............................................................................36
4.14 Leases............................................................................................36
4.15 DDAs..............................................................................................36
4.16 Owned Real Property and Material Leases...........................................................36
4.17 Complete Disclosure...............................................................................36
(i)
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4.18 Indebtedness......................................................................................36
4.19 Project Accounts..................................................................................37
4.20 Directors' Compensation...........................................................................37
4.21 Rights Agreement..................................................................................37
Section 5. Affirmative Covenants................................................................................37
5.01 Accounting System.................................................................................37
5.02 Financial Statements, Reports, Certificates.......................................................37
5.03 Tax Returns.......................................................................................39
5.04 Certificates of Title.............................................................................39
5.05 Maintenance of Equipment..........................................................................39
5.06 Taxes.............................................................................................39
5.07 Insurance.........................................................................................40
5.08 Location of Inventory and Equipment...............................................................41
5.09 Employee Benefits.................................................................................41
5.10 Compliance with Laws..............................................................................42
5.11 Leases............................................................................................42
5.12 Projections.......................................................................................42
5.13 Corporate Existence, etc..........................................................................43
5.14 Disclosure Updates................................................................................43
5.15 Publication of Notice of the Effective Date of the Reorganization Plan............................43
5.16 PSC Common Stock..................................................................................43
5.17 Further Assurances................................................................................43
5.18 Right to Inspect..................................................................................44
5.19 Control Agreements................................................................................44
5.20 Payment of Prepetition Expenses...................................................................44
5.21 Existing Letters of Credit........................................................................44
5.22 Omitted Good Standing Certificates................................................................44
Section 6. Negative Covenants...................................................................................44
6.01 Indebtedness......................................................................................44
6.02 Liens.............................................................................................46
6.03 Restrictions on Fundamental Changes...............................................................46
6.04 Disposal of Assets................................................................................46
6.05 Change Name.......................................................................................46
6.06 Guarantee.........................................................................................47
6.07 Nature of Business................................................................................47
6.08 Prepayments and Amendments........................................................................47
6.09 Consignments......................................................................................48
6.10 Distributions.....................................................................................48
6.11 Accounting Methods................................................................................48
6.12 Investments.......................................................................................48
6.13 Transactions with Affiliates......................................................................48
6.14 Suspension........................................................................................48
(ii)
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6.15 Directors' Compensation...........................................................................49
6.16 Change in Location of Chief Executive Office; Inventory and Equipment with Bailees................49
6.17 Financial Covenants...............................................................................49
6.18 Securities Accounts...............................................................................50
6.19 ERISA Concerns....................................................................................51
Section 7. Events of Default....................................................................................51
7.01 Payments..........................................................................................52
7.02 Covenants.........................................................................................52
7.03 Collateral........................................................................................52
7.04 Bankruptcy........................................................................................52
7.05 Lien..............................................................................................52
7.06 Judgments.........................................................................................53
7.07 Default Under Other Agreements....................................................................53
7.08 Payment of Indebtedness...........................................................................53
7.09 Representation....................................................................................53
7.10 Subsidiary Guaranty...............................................................................54
Section 8. Definitions..........................................................................................54
Section 9. The Administrative Agent.............................................................................87
9.01 Appointment.......................................................................................87
9.02 Nature of Duties of Administrative Agent..........................................................88
9.03 Lack of Reliance on Administrative Agent..........................................................88
9.04 Certain Rights of the Administrative Agent........................................................89
9.05 Reliance by Administrative Agent..................................................................89
9.06 Indemnification of Administrative Agent...........................................................89
9.07 The Administrative Agent in its Individual Capacity...............................................89
9.08 Holders of Notes..................................................................................90
9.09 Successor Administrative Agent....................................................................90
9.10 Actions with Respect to Defaults..................................................................90
9.11 Delivery of Information...........................................................................91
9.12 Collateral Agent to Hold Quebec Irrevocable Power of Attorney.....................................91
9.13 Deep Subordination Agreement......................................................................91
Section 10. Miscellaneous.......................................................................................92
10.01 Payment of Expenses, etc.........................................................................92
10.02 Survival.........................................................................................93
10.03 Notices..........................................................................................93
10.04 Benefit of Agreement.............................................................................93
10.05 No Waiver; Remedies Cumulative...................................................................95
10.06 Payments Pro Rata................................................................................95
10.07 Calculations; Computations.......................................................................96
(iii)
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10.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JULY TRIAL...........................97
10.09 Counterparts.....................................................................................98
10.10 Headings Descriptive.............................................................................98
10.11 Amendment or Waiver; Release.....................................................................98
10.12 Domicile of Loans................................................................................99
10.13 Confidentiality.................................................................................100
10.14 Registry........................................................................................100
10.15 Limitation on Additional Amounts, etc...........................................................101
10.16 Currency of Payments............................................................................101
10.17 Right of Setoff.................................................................................102
(iv)
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Exhibit A-1 Term Note
Exhibit A-2 PIK Note
Exhibit B Notice of Conversion of PIK Loan
Exhibit C Section 2.06(c)(ii) Certificate
Exhibit D Officer's Certificate
Exhibit E-1 Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois)
Exhibit E-2 Opinion of Stikeman, ▇▇▇▇▇▇▇
Exhibit E-3 Opinion of ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Exhibit E-4 Local counsel opinions:
▇▇▇▇▇▇▇ & Rothfeder (Alabama)
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (California)
▇▇▇▇▇, Johnson, Robinson, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ P.C. (Colorado)
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, PA (Delaware)
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ (Georgia)
▇▇▇▇▇▇▇ ▇▇▇▇, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois) (Illinois)
Andrews, Harrell, ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ (Indiana)
▇▇▇▇▇, Tarrant & ▇▇▇▇▇ (Kentucky)
Sher, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, LLP (Maryland)
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, LLP (Maryland)
Drummond, Woodsum, ▇▇▇▇▇▇▇▇ & MacMahon (Maine)
Jaffe, Raitt, Heuer & ▇▇▇▇▇ (Michigan)
▇▇▇▇▇ ▇▇▇▇ (Missouri)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (Montana)
Lionel, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Nevada)
▇▇▇▇▇▇▇ ▇▇▇▇, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (LLP) (New York)
Wilentz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (New Jersey)
▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, LLP (North Carolina)
Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ (Ohio)
▇▇▇▇▇ & ▇▇▇▇▇▇▇ (Oklahoma)
Obermayer, Rebmann, ▇▇▇▇▇▇▇ & Hippel LLP (Pennsylvania)
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ (Rhode Island)
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ (South Carolina)
▇▇▇▇▇▇ ▇▇▇▇▇ (Texas)
Bass, ▇▇▇▇▇ & ▇▇▇▇ (Tennessee)
Stoel Rives LLP (Washington)
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Battle & ▇▇▇▇▇▇▇▇▇▇▇▇ (West Virginia)
Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (British Columbia and Alberta)
Patterson, Palmer, ▇▇▇▇ & ▇▇▇▇▇▇ (Atlantic Provinces)
Exhibit F-1 US Confirmation Order
Exhibit F-2 Canadian Orders
Exhibit G-1 Security Agreement
Exhibit G-2 Copyright Security Agreement
Exhibit G-3 Patent Security Agreement
Exhibit G-4 Trademark Security Agreement
Exhibit G-5 Rolling Stock Security Agreement
Exhibit G-6 Canadian Security Agreement
Exhibit G-7 Guarantor Security Agreement
Exhibit G-8 Quebec Security Agreement; Hypothec
Exhibit H-1 US Subsidiary Guaranty
Exhibit H-2 Canadian Subsidiary Guaranty
Exhibit I Stock Pledge Agreement
Exhibit J-1 UK Compliance Certificate (CFO of Borrower)
Exhibit J-2 UK Compliance Certificate (CFO of ▇▇▇▇▇▇ Services (Europe)
Limited)
Exhibit K Assignment and Assumption Agreement
Exhibit L Compliance Certificate
Exhibit M Rights Agreement
Exhibit N Confidentiality Agreement
Exhibit O Subordination and Intercreditor Agreement
Exhibit P Tax Escrow Agreement
(v)
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SCHEDULE I Debt to Term Lenders on the Closing Date
SCHEDULE II Debt to PIK Lenders on the Closing Date
SCHEDULE III Permitted Existing Indebtedness
SCHEDULE IV Pro forma Balance Sheet
SCHEDULE V Insurance
SCHEDULE VI Equipment and Inventory Location
SCHEDULE VII Chief Executive Offices; FEIN
SCHEDULE VIII Capitalization; Subsidiaries
SCHEDULE IX Litigation
SCHEDULE X ERISA
SCHEDULE XI Violations of Environmental Laws
SCHEDULE XII Designation of Disposal Sites
SCHEDULE XIII Notices of Environmental Liens
SCHEDULE XIV Environmental Citations
SCHEDULE XV Intellectual Property
SCHEDULE XVI Demand Deposit Accounts
SCHEDULE XVII Real Property
SCHEDULE XVIII Owned Real Property and Material Leases
SCHEDULE XIX Project Accounts
SCHEDULE XX Directors' Compensation
SCHEDULE XXI Permitted Purchase Money Indebtedness
SCHEDULE XXII Guaranties
SCHEDULE XXIII Affiliate Transactions
SCHEDULE XXIV Approved Fixed Obligation Arrangements
SCHEDULE XXV Permitted Dispositions
SCHEDULE XXVI Permitted Investments
SCHEDULE XXVII Permitted Liens
SCHEDULE XXVIII Pre-Closing Merger Subsidiaries
SCHEDULE XXIX Pre-Closing Restructuring Transactions
SCHEDULE XXX Existing Letters of Credit
(vi)
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CREDIT AGREEMENT, dated as of March 31, 2000 among ▇▇▇▇▇▇ SERVICES
CORPORATION, a corporation existing under the laws of Delaware (the "Borrower"),
Canadian Imperial Bank of Commerce, as administrative agent (in such capacity,
the "Administrative Agent") for the Term Lenders and the PIK Lenders
(collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ Services Corp. ("PSC"), the Borrower, formerly known
as ▇▇▇▇▇▇ Services (Delaware), Inc. ("PSDI"), Canadian Imperial Bank of Commerce
("CIBC"), as administrative agent, CIBC and Bankers Trust Company ("BTCo"), as
co-arrangers, BTCo, as syndication agent, and the various Persons parties to
such agreement as lenders (the "Pre-Petition Lenders") are parties to a credit
agreement dated as of August 11, 1997, as amended by amending agreements dated
as of October 31, 1997, February 19, 1998, June 24, 1998, October 20, 1998 and
December 4, 1998 (collectively, the "1997 Credit Agreement") pursuant to which
certain credit facilities as more particularly described in such agreement were
established in favor of each of the Borrower and PSC;
WHEREAS, on June 25, 1999, PSC and certain of its Canadian
Subsidiaries commenced voluntary pre-arranged insolvency proceedings under the
Companies' Creditors Arrangement Act ("CCAA" and the proceedings commenced
thereunder, the "Canadian Cases") and on June 25, 1999, the Borrower and PSC and
certain of their US Subsidiaries (collectively, the "US Debtors") filed
voluntary petitions with the Clerk of the US Bankruptcy Court of the District of
Delaware and initiated pre-arranged insolvency proceedings under Chapter 11 of
the US Bankruptcy Code (the "US Cases", and together with the Canadian Cases,
the "Bankruptcy Cases");
WHEREAS, PSC, the Borrower, BTCo, as DIP Agent, CIBC and BTCo as DIP
co-arrangers and the various Persons parties to such agreement as lenders (the
"DIP Lenders") are parties to a credit agreement dated as of June 25, 1999 (the
"DIP Credit Agreement") pursuant to which certain credit facilities as more
particularly described in such agreement were established in favor of each of
the Borrower and PSC;
WHEREAS, on November 26, 1999, the Canadian Court approved and
sanctioned the Canadian Reorganization Plan;
WHEREAS, on November 30, 1999 the US Bankruptcy Court confirmed the
Reorganization Plan and entered the US Confirmation Order;
WHEREAS, the Reorganization Plan provides for the restructuring of a
portion of the indebtedness remaining outstanding under the 1997 Credit
Agreement and such indebtedness will be restructured according to the terms of
this Agreement;
WHEREAS, the obligations of the Borrower and the US Subsidiary
Guarantors under the 1997 Credit Agreement have been discharged and replaced by
their obligations under the Reorganization Plan;
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WHEREAS, the Pre-Petition Lenders shall retain their claims against
PSC and the other Canadian Debtors and security interests in assets of PSC and
the other Canadian Debtors retained and not transferred in connection with the
Canadian Transactions and such claims shall continue to be governed by the 1997
Credit Agreement;
WHEREAS, the DIP Credit Agreement will terminate upon the date hereof.
NOW, THEREFORE, IT IS AGREED:
Section 1. Amount and Terms of Credit.
1.01 Loans. (a) Term Loans. The Borrower acknowledges and agrees that,
as of the Closing Date and after giving effect to the Reorganization Plan, the
Borrower shall be indebted to each Term Lender and subject to and upon the terms
and conditions set forth herein, each such Term Lender shall be deemed to have
made, on and as of the Closing Date, a third lien secured term loan or loans to
the Borrower (each a "Term Loan" and collectively the "Term Loans") in the
amounts set forth on Schedule I, which Term Loans shall be equal in the
aggregate to the Total Term Loan Amount.
(b) PIK Loans. The Borrower acknowledges and agrees that, as of the
Closing Date and after giving effect to the Reorganization Plan, the Borrower
shall be indebted to each PIK Lender and subject to and upon the terms and
conditions set forth herein, each such PIK Lender shall be deemed to have made,
on and as of the Closing Date, a third lien secured accreting convertible loan
to the Borrower (each a "PIK Loan" and collectively the "PIK Loans") in the
amounts set forth on Schedule II which PIK Loans shall be equal, in the
aggregate, to the Total PIK Loan Amount.
1.02 Notes. (a) Term Notes. (i) The Borrower's obligation to pay the
principal of, and interest on, all Term Loans owed to each Term Lender shall be
evidenced by a promissory note duly executed and delivered to such Term Lender
by the Borrower substantially in the form of Exhibit A-1 hereto (each a "Term
Note" and collectively the "Term Notes").
(ii) Each Term Note issued to each Term Lender shall (i) be payable to
the order of such Term Lender or its registered assigns and be dated the Closing
Date, (ii) be in a stated Principal Amount equal to the amount set forth on
Schedule I for the corresponding Term Lender and be payable in the outstanding
Principal Amount of the Term Loans evidenced thereby from time to time, (iii)
mature on the Term Loan Maturity Date, (iv) bear interest as provided in Section
1.03 and (v) be entitled to the benefits of this Agreement and all other Loan
Documents.
(iii) Each Term Lender will note on its internal records the amount of
each Term Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Term Notes, endorse on the reverse side thereof the
outstanding principal amount of Term Loans evidenced thereby. Failure to make
any such notation or any error in any such notation or endorsement shall not
affect the Borrower's obligations in respect of such Term Loans.
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(b) PIK Notes. (i) The Borrower's obligation to pay the principal of,
and interest on, all PIK Loans owed to each PIK Lender shall be evidenced by a
senior secured accreting convertible note duly executed and delivered to such
PIK Lender by the Borrower substantially in the form of Exhibit A-2 hereto (each
a "PIK Note" and collectively the "PIK Notes").
(ii) Each PIK Note issued to each PIK Lender shall (i) be payable to
the order of such PIK Lender or its registered assigns and be dated the Closing
Date, (ii) be in a stated Principal Amount equal to the amount set forth on
Schedule II for the corresponding PIK Lender and be payable in the outstanding
Principal Amount of the PIK Loans evidenced thereby from time to time, (iii)
mature on the PIK Loan Maturity Date, (iv) bear interest as provided in Section
1.03 and (v) be entitled to the benefits of this Agreement and all other Loan
Documents.
(iii) Each PIK Lender will note on its internal records the amount of
each PIK Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its PIK Notes, endorse on the reverse side thereof the
outstanding Principal Amount of PIK Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such PIK Loans.
1.03 Interest. (1) Term Loans. (a) Each Term Loan shall bear interest
from and including the Closing Date to but not including the date on which all
amounts owing under such Term Loan have been paid in full on the unpaid
Principal Amount of, and on all unpaid Deferred Interest Amounts under, such
Term Loan payable in Dollars and calculated (but not compounded) daily at the
rate of 9% per annum expressed on the basis of a year of 360 days and the actual
number of days elapsed.
(b) Interest on the Term Loans shall be payable as follows:
(x) During the one year period from and including the Closing
Date to, but not including, the first anniversary of the Closing Date
(the "First Year Partial Interest Deferral Period"):
(i) accrued and unpaid interest on the Term Loans (including
without duplication, all accrued and unpaid interest on the
outstanding Principal Amount from time to time of, all unpaid
Deferred Interest Amounts under, and all accrued and unpaid
interest on Deferred Interest Amounts from time to time under,
each Term Loan) shall be due and payable in arrears on each
Interest Payment Date which occurs during the First Year Partial
Interest Deferral Period to a maximum amount payable on each such
Interest Payment Date equal to the lesser of (x) the accrued and
unpaid interest on such date and (y) $20,000,000 less the
aggregate amount of interest paid on the Term Loans on each
preceding Interest Payment Date during the First Year Partial
Interest Deferral Period pursuant to the provisions of this
clause; and
(ii) the balance of all such interest (including all accrued
and unpaid interest on the outstanding Principal Amount from time
to time of, all unpaid
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Deferred Interest Amounts under, and all accrued and unpaid
interest on Deferred Interest Amounts from time to time under,
each Term Loan) which has accrued to any Interest Payment Date
which occurs during the First Year Partial Interest Deferral
Period and is not payable on such date pursuant to the provisions
of clause 1.03(1)(b)(x)(i) (the "Deferred Interest Amount") shall
remain outstanding until such interest becomes due and payable
under paragraph 1.03(1)(b)(y) or paragraph 1.03(1)(b)(z), as
applicable, and shall bear interest at the rate specified in, and
in accordance with, the provisions of subsection 1.03(1)(a) from
and including such Interest Payment Date until paid in full;
(y) From and after the first day following the end of the
First Year Partial Interest Deferral Period, accrued and unpaid
interest on the Term Loans (including without duplication all
accrued and unpaid interest on the outstanding Principal Amount
from time to time of, all unpaid Deferred Interest Amounts under,
and all accrued and unpaid interest on Deferred Interest Amounts
from time to time under, each Term Loan) shall be due and payable
in arrears on each Interest Payment Date occurring on or after
such date; and
(z) Accrued and unpaid interest on the Term Loans (including
without duplication all accrued and unpaid interest on the
outstanding Principal Amount from time to time of, all unpaid
Deferred Interest Amounts under, and all accrued and unpaid
interest on Deferred Interest Amounts from time to time under,
each Term Loan) shall also be due and payable:
(i) at the time of any redemption and prepayment of any
Principal Amounts or Deferred Interest Amounts owing under
such Term Loans on the amounts so redeemed or prepaid as
provided for in Section 2.02(b);
(ii) at the times and in the amounts provided for in
Sections 2.03(A)(b) and 2.03(A)(c); and
(iii) on the Term Loan Maturity Date.
(2) PIK Loans. (a) Each PIK Loan shall bear interest from and
including the Closing Date to but not including the date on which all amounts
owing under such PIK Loans have been paid in full (or in the case of interest on
any Principal Amount, the date on which such Principal Amount is converted into
PSC Common Stock) on the unpaid Principal Amount of, and on all unpaid Accreted
Interest Amounts under, such Loans payable in Dollars and calculated (but not
compounded) daily at the rate of 10% per annum expressed on the basis of a year
of 360 days and the actual number of days elapsed.
(b) Accrued and unpaid interest on each PIK Loan (including, accrued
and unpaid interest on the outstanding Principal Amount from time to time of,
and accrued and unpaid interest on all unpaid Accreted Interest Amounts from
time to time under, such PIK Loan) shall be calculated on each Interest Payment
Date (for each such PIK Loan on each such Interest Payment Date, the "Accreted
Interest") and the Accreted Interest for such PIK Loan on such
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Interest Payment Date, to the extent such Accreted Interest is not paid in
accordance with the terms of Section 1.03(2)(c), shall be added on such date to
all then unpaid Accreted Interest for such PIK Loan accreted on all previous
Interest Payment Dates (such aggregate amount at any time for such PIK Loan
being the "Accreted Interest Amount" at such time) and all such Accreted
Interest Amounts for all PIK Loans shall bear interest at the rate specified in,
and in accordance with the provisions of Section 1.03(2)(a) from and including
each such Interest Payment Date until paid in full. All amounts of interest
calculated on each Interest Payment Date shall no longer be deemed to be accrued
and unpaid interest on the outstanding Principal Amount, but shall be considered
unpaid Accreted Interest until such Accreted Interest shall be paid.
(c) Accrued and unpaid interest on the PIK Loans (including without
duplication, all accrued and unpaid interest on the outstanding Principal Amount
from time to time of, all unpaid Accreted Interest Amounts under, and all
accrued and unpaid interest on all unpaid Accreted Interest Amounts from time to
time under, each PIK Loan) shall also be due and payable:
(x) at the time of any redemption and prepayment of any Principal
Amounts or Accreted Interest Amounts owing under such PIK Loans on the amounts
so redeemed or prepaid as provided for in Section 2.02(a);
(y) at the times and in the amounts provided for in subsections
2.03(A)(b) and 2.03(A)(c); and
(z) on the PIK Loan Maturity Date.
(3) Default Interest. At any time that a default in the payment of
principal of, or interest on, any Loan has occurred and is continuing, to the
extent permitted by law, principal and interest in respect of each such Loan
shall bear interest at a rate per annum which shall be 2% in excess of the rate
of interest otherwise applicable to such Loan. Interest which accrues under this
Section 1.03(3) shall be payable on demand.
(4) Cash Flow Difference Amount. On the applicable Cash Flow Payment
Date with respect to which (x) the Notional Cash Flow Difference Amount, or (y)
the Deferred Prepayment Amount, is calculated, interest shall accrue with
respect to the Notional Cash Flow Difference Amount and the Deferred Prepayment
Amount at the rate of 9% per annum and shall (I) be payable without duplication
to each Term Lender on a pro rata basis according to the respective percentage
of the Term Loans held by each such Term Lender, if any Term Loans should then
be outstanding or (II) be payable without duplication to each PIK Lender on a
pro rata basis according to the respective percentage of PIK Loans held by each
such PIK Lender, if no Term Loans should then be outstanding, and such interest
shall be payable in addition to the interest otherwise applicable to any
outstanding Loans pursuant to this Section 1.03, expressed on the basis of a
year of 360 days and the actual number of days elapsed. Interest which accrues
under this Section 1.03(4), (x) on the Notional Cash Flow Difference Amount and
(y) on the Deferred Prepayment Amount, shall be payable as provided in Section
2.03 (A)(c)(vi).
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1.04 Increased Costs, Illegality, etc. If at any time after the date
of this Agreement any Lender determines that the introduction of or any change
in any applicable law or governmental rule, regulation, order, guideline,
directive or request (whether or not having the force of law) concerning capital
adequacy, or any change in interpretation or administration thereof by any
Governmental Authority (including any central bank, Superintendent of Financial
Institutions or other comparable authority or agency) will have the effect of
increasing the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender based on the existence of such
Lender's outstanding Loans hereunder or its obligations hereunder, then the
Borrower shall, subject to the provisions of Section 10.15 (to the extent
applicable), pay to such Lender, as applicable upon its written demand therefor,
such additional amounts as shall be required to compensate such Lender or such
other corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase or reduction of capital as the case may
be. In determining such additional amounts, each Lender will act reasonably and
in good faith and will use averaging and attribution methods which are
reasonable, provided that such Lender's reasonable good faith determination of
compensation owing under this Section 1.04 shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Lender, upon
determining that any additional amounts will be payable pursuant to this Section
1.04, will give prompt written notice thereof to the Borrower, which notice
shall show the basis for calculation of such additional amounts.
1.05 Change of Applicable Lending Office. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 1.04 or
2.06 (b) (except with respect to Section 2.06(b), with respect an Original
Canadian Lender), such Lender, will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event, provided
that such designation is made on such terms that such Lender and its applicable
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
any such Section. Nothing in this Section 1.05 shall affect or postpone any of
the obligations of the Borrower or the rights of any Lender provided in Sections
1.04 and 2.06, as applicable.
1.06 Replacement of Lenders. Upon the occurrence of any event giving
rise to the operation of Section 1.04 or 2.06(b) with respect to any Lender
which results in such Lender charging to the Borrower increased costs in excess
of those being generally charged by the other Lenders or as provided in Section
10.11(b), in the case of certain refusals by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders, the Borrower shall
have the right, if no Default or Event of Default will exist immediately after
giving effect to the respective replacement, to replace such Lender (the
"Replaced Lender") with one or more other Eligible Transferee or Transferees
(collectively, the "Replacement Lender") reasonably acceptable to the
Administrative Agent, provided that (i) at the time of any replacement pursuant
to this Section 1.06, the Replacement Lender shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 10.04(b) (and with all
fees payable pursuant to said Section 10.04(b) to be paid at such time) pursuant
to which the Replacement Lender shall acquire all of
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the outstanding Loans (including all Deferred Interest Amounts and Accreted
Interest Amounts) of the Replaced Lender and, in connection therewith, shall pay
to the Replaced Lender in respect thereof an amount equal to the sum of an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender and (ii) all obligations of the Borrower owing to
the Replaced Lender (other than those specifically described in clause (i) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.03, 1.04, 2.06,
10.01 and 10.06), which shall survive as to such Replaced Lender.
1.07 Conversion Features of PIK Loans. (a) Conversion Privilege and
Conversion Price. (i) Subject to and upon compliance with the provisions of this
Section 1.07, each PIK Lender shall have the right, at such PIK Lender's option,
at any time prior to the earlier of 4:00 p.m. on the Business Day immediately
preceding (A) the PIK Loan Maturity Date, and (B) with respect to any portion of
such PIK Lender's PIK Loan called for redemption, subject to Section 1.07(b)(i),
4:00 p.m. (New York time) on the Business Day immediately preceding the date of
such redemption for such portion of such PIK Loan, to convert the then
outstanding Principal Amount of such PIK Loan or any portion (which is $400,000
or an amount in excess thereof which is an integral multiple of $1,000, or if
lesser the entire unpaid Principal Amount of such Loan) of the Principal Amount
thereof into fully paid and non-assessable PSC Common Stock at the Conversion
Price then in effect. Each PIK Lender that has exercised its conversion
privilege with respect to a portion of its PIK Loan, shall receive a new PIK
Note duly executed and delivered by the Borrower to such PIK Lender evidencing
the portion of the Principal Amount of such PIK Lender's PIK Loans that was not
converted into PSC Common Stock as provided in this Section 1.07.
(ii) The initial Conversion Price at which the Principal Amount of PIK
Loans shall be convertible into PSC Common Stock shall be $11.72 per share of
PSC Common Stock, which is a rate of 85.3 shares of PSC Common Stock for each
$1,000 Principal Amount of PIK Loans.
(b) Conversion Privilege. (i) In order to exercise the conversion
privilege, a PIK Lender shall, within the time specified in Section 1.07(a),
deliver to the Borrower and the Administrative Agent a written notice (which
shall be irrevocable) in the form of the "Notice of Conversion of PIK Loans" set
out in Exhibit B, duly signed by such PIK Lender or its executors,
administrators or other legal representatives or its or their attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Borrower and the Administrative Agent, stating:
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(x) that such PIK Lender elects to convert the Principal Amount of its
PIK Loan or a specified portion (which shall be an amount permitted under
Section 1.07(a)(i)) of the Principal Amount thereof; and
(y) the names (with addresses) in which the certificates representing
the PSC Common Stock issuable upon such conversion are to be registered
and, if there is more than one name, the number of shares to be registered
in each of such names.
If any of the PSC Common Stock into which such PIK Loan or specified
portion thereof is to be converted are to be issued to a Person or Persons other
than the PIK Lender or an Eligible Transferee that is to receive not fewer than
1,000,000 shares of PSC Common Stock, such notice shall be accompanied by (i) an
opinion of counsel reasonably satisfactory to the Borrower to the effect that
such PSC Common Stock may be delivered to such Person or Persons without
registration under the US Securities Act and otherwise in accordance with the
Applicable Securities Legislation, and (ii) payment of any transfer tax which
may be payable by reason thereof. Upon receipt of such written notice,
(1) the PIK Lender shall have subscribed for the number of PSC Common
Stock to which such holder shall be entitled to receive on such conversion;
(2) subject to Section 1.07(b)(ii), the PIK Lender shall have and be
deemed to have released the Borrower from all liability with respect to the
Principal Amount of its PIK Loan or the portion of the Principal Amount
thereof to be converted, as the case may be, effective upon such
conversion; and
(3) such release shall constitute full payment of the Conversion Price
for the PSC Common Stock issuable upon such conversion.
(ii) As promptly as practicable after the Conversion Date of a PIK
Loan (or a portion thereof), the Borrower shall issue or cause to be issued and
deliver or cause to be delivered to the PIK Lender that has given the Notice of
Conversion of PIK Loans, or on the written order of such PIK Lender, a
certificate or certificates in the name or names of the Person or Persons
specified in such notice for the number of shares of PSC Common Stock
deliverable upon the conversion of such PIK Lender's PIK Loan (or specified
portion thereof) and provision shall be made in respect of any fraction of a
share as provided in Section 1.07(c). Such conversion shall be deemed to have
been effected immediately at 4:00 p.m. on the Conversion Date and, at that time,
the rights of the PIK Lender in respect of that portion of the Principal Amount
of the PIK Loan so converted shall cease and the Person or Persons in whose name
or names any certificate or certificates for PSC Common Stock shall be
deliverable upon such conversion shall be deemed to have become on such date the
holder or holders of record of the PSC Common Stock represented thereby;
provided, however, that, if the Conversion Date is a date on which the transfer
registers for PSC Common Stock shall be closed, the Person or Persons entitled
to receive such PSC Common Stock on such date shall become the holder or holders
of record thereof for all purposes at 4:00 p.m. on the next succeeding date on
which such transfer registers are open. No payment or adjustment shall be made
upon any conversion on account of any dividends on the PSC Common Stock issuable
upon conversion.
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(iii) Subject to clause (iv) hereof, certificates representing PSC
Common Stock issuable upon conversion of any PIK Loan, and any certificate
representing PSC Common Stock issued in exchange therefore or in substitution
thereof, shall bear the following legend:
"The securities represented by this certificate were issued upon the
conversion of other securities that were issued pursuant to an exemption from
registration under the United States Securities Act of 1933, as amended (the
"Act"), and may be offered, sold or otherwise transferred only pursuant to a
Registration Statement effective under the Act or an exemption from the
registration requirements of Section 5 of the Act."
(iv) Certificates representing PSC Common Stock issuable upon
conversion of any PIK Loan shall not bear the legend set forth in clause (iii)
if the Notice of Conversion of PIK Loans in connection with such conversion is
accompanied by a certificate to the effect that such Lender is not an affiliate
of the Borrower within the meaning of Rule 144 under the US Securities Act or an
"underwriter" with respect to the PIK Loans that are being converted within the
meaning of section 1145(b) of the US Bankruptcy Code, and, upon request of the
Borrower, an opinion of counsel reasonably satisfactory to the Borrower to such
effect and to the effect that such shares may be sold without registration under
the US Securities Act has been delivered to the Borrower.
(v) A holder of a certificate evidencing PSC Common Stock bearing the
legend specified in subsection (iii) shall be entitled to receive from the
Borrower, whether or not in connection with a sale or proposed sale, a new
certificate or certificates evidencing an identical number of shares of PSC
Common Stock (the transfer expenses for which shall be paid by the Borrower) but
without such legend at such time as (i) such shares are sold pursuant to a
Registration Statement effective under the US Securities Act, or (ii) such
holder furnishes the Borrower with a certificate to the effect that such holder
is not an affiliate of the Borrower within the meaning of Rule 144 under the US
Securities Act or an "underwriter" with respect to such PSC Common Stock within
the meaning of Section 1145(b) of the US Bankruptcy Code and, upon the request
of the Borrower, an opinion of counsel reasonably satisfactory to the Borrower
to such effect is delivered to the Borrower and to the effect that such shares
may be sold without registration under the US Securities Act.
(c) No Fractional Shares. Notwithstanding anything herein contained,
the Borrower shall in no case be required to issue fractional PSC Common Stock
upon the conversion of any PIK Loan. If any fractional interest in a PSC Common
Stock would, except for the provisions of this Section 1.07(c), be deliverable
upon the conversion of any PIK Loan, the Borrower shall satisfy such fractional
interest by payment to the holder of such PIK Loan of an amount equal (to the
nearest cent) to the product of such fractional interest and the Conversion
Price in effect on the Conversion Date of such PIK Loan.
(d) Adjustment of Conversion Privilege. (i) Subject to Section
1.07(e), if and whenever the Borrower shall:
(x) subdivide its outstanding PSC Common Stock into a greater number
of shares;
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(y) consolidate its outstanding PSC Common Stock into a smaller number
of shares; or
(z) issue PSC Common Stock or Convertible Securities as a stock
dividend or otherwise to all or substantially all the holders of PSC Common
Stock (except by way of a Dividend in the Ordinary Course);
(any of such events being herein called a "Share Reorganization"), the
Conversion Price shall be adjusted, effective immediately after the record date
at which the holders of PSC Common Stock are determined for the purposes of the
Share Reorganization or, if no record date is fixed, the effective date of the
Share Reorganization, by multiplying the Conversion Price in effect on such
record or effective date, as the case may be, by a fraction in which:
(1) the numerator shall be the number of shares of PSC Common Stock
outstanding on such record or effective date before giving effect to the
Share Reorganization; and
(2) the denominator shall be the number of shares of PSC Common Stock
outstanding after giving effect to such Share Reorganization, including, in
the case of a distribution of Convertible Securities, the number of shares
of PSC Common Stock that would have been outstanding if such securities had
been converted into or exchanged for PSC Common Stock on such record or
effective date.
(ii) If and whenever the Borrower shall fix a record date to issue to
all or substantially all of the holders of PSC Common Stock, rights, options or
warrants under which such holders are entitled, during a period expiring not
more than 45 days after the record date for such issue, to subscribe for or
purchase PSC Common Stock or Convertible Securities, at a price per share (or
having a conversion or exchange price per share) at the date of issue of such
securities of less than 95% of the Current Market Price of the PSC Common Stock
on such record date (any such event being herein called a "Rights Offering"),
the Conversion Price shall be adjusted, effective immediately after the record
date at which holders of PSC Common Stock are determined for the purposes of the
Rights Offering, by multiplying the Conversion Price in effect on such record
date by a fraction of which (x) the numerator shall be the sum of:
(1) the number of shares of PSC Common Stock outstanding on such
record date; and
(2) a number obtained by dividing:
(A) either, (I) the product of the total number of shares of PSC
Common Stock so offered for subscription or purchase and the price at
which such shares are so offered (which for such purposes shall be
converted, if necessary, as of the record date for the Rights
Offering, into the US Dollar Equivalent of the currency in which the
Current Market Price is expressed), or (II) the product of the maximum
number of shares of PSC Common Stock into or for which the Convertible
Securities so offered for subscription or purchase may
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be converted or exchanged and the conversion or exchange price of such
securities (which for such purposes shall be converted, if necessary,
as of the record date for the Rights Offering, into the US Dollar
Equivalent of the currency in which the Current Market Price is
expressed), as the case may be,
by
(B) the Current Market Price of the PSC Common Stock on such
record date; and
(y) the denominator shall be the sum of:
(1) the number of PSC Common Stock outstanding on such record date;
and
(2) the number of PSC Common Stock so offered for subscription or
purchase (or, in the case of Convertible Securities, the maximum number of
PSC Common Stock for or into which the securities so offered for
subscription or purchase may be converted or exchanged).
To the extent that such rights, options or warrants are not exercised
prior to the expiry time thereof, the Conversion Price shall be readjusted
effective immediately after such expiry time to the Conversion Price which would
then have been in effect based upon the number of PSC Common Stock or
Convertible Securities actually delivered upon the exercise of such rights,
options or warrants.
(iii) If and whenever the Borrower shall fix a record date to issue or
distribute to all or substantially all the holders of PSC Common Stock: (w)
shares of the Borrower of any class, including PSC Common Stock and Convertible
Securities, (x) evidences of indebtedness, (y) any property; or (z) rights,
options or warrants to acquire any of the foregoing, and if such issuance or
distribution does not constitute Dividends in the Ordinary Course, a Share
Reorganization or a Rights Offering (any such event being herein called a
"Special Distribution"), the Conversion Price shall be adjusted, effective
immediately after the record date at which the holders of PSC Common Stock are
determined for purposes of the Special Distribution, by multiplying the
Conversion Price in effect on such record date by a fraction of which:
(1) the numerator shall be the difference between:
(A) the product of the number of shares of PSC Common Stock
outstanding on such record date and the Current Market Price of the
PSC Common Stock on such date; and
(B) the fair market value (expressed in the same currency as is
used to express Current Market Price) as determined by the board of
directors of the Borrower (whose determination shall be conclusive),
to the holders of PSC
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Common Stock of the shares, rights, options, warrants, evidences of
indebtedness or property or other assets issued or distributed in the
Special Distribution, and
(2) the denominator shall be the product of the number of shares
of PSC Common Stock outstanding on such record date and the Current
Market Price of the PSC Common Stock on such date.
To the extent that such Special Distribution is not so made, the
Conversion Price shall then be readjusted to the Conversion Price which would
then be in effect if such record date had not been fixed or to the Conversion
Price which would then be in effect based upon such shares or rights, options or
warrants or evidences of indebtedness or property or other assets actually
distributed, as the case may be. To the extent that any rights, options or
warrants issued or distributed in a Special Distribution are not exercised prior
to the expiry time thereof, the Conversion Price shall be readjusted effective
immediately after such expiry time to the Conversion Price which would then have
been in effect based upon the number of PSC Common Stock or Convertible
Securities actually delivered upon the exercise of such rights, options or
warrants.
(iv) If and whenever there shall occur:
(x) a reclassification or redesignation of the PSC Common Stock or any
change of the PSC Common Stock into other shares, otherwise than in a Share
Reorganization;
(y) a consolidation, merger, reorganization, dissolution or
liquidation of the Borrower with or into another Person; or
(z) the transfer of all or substantially all of the property of the
Borrower to another Person;
(any such event being herein called a "Capital Reorganization"), any Lender who
exercises the Conversion Privilege after the record date of such Capital
Reorganization shall be entitled to receive and shall accept, upon the exercise
of such right, in lieu of the number of PSC Common Stock to which such holder
was theretofore entitled upon exercise of the Conversion Privilege, the
aggregate number of shares or other securities or property of the Borrower or of
the Company resulting from such Capital Reorganization that such Lender would
have been entitled to receive as a result of such Capital Reorganization if, on
the record date thereof, such Lender had been the holder of the number of shares
of PSC Common Stock to which such Lender was theretofore entitled upon
conversion; provided, however, that no such Capital Reorganization shall be
carried into effect unless all necessary steps shall have been taken so that the
Lenders shall thereafter be entitled to receive such number of shares or other
securities of the Borrower or of the Company resulting from such Capital
Reorganization, subject to adjustment thereafter in accordance with provisions
the same, as nearly as may be possible, as those contained in this Section
1.07(d) and in Section 1.07(e). If necessary as a result of any such Capital
Reorganization, appropriate adjustments shall be made in the application of the
provisions set forth in this Section 1.07 with respect to the rights and
interests thereafter of the PIK Lenders to the end that the provisions set forth
in this Section 1.07 shall thereafter correspondingly be made applicable
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as nearly as may be in relation to any shares or other securities or property
thereafter deliverable upon the exercise of the Conversion Privilege. Any such
adjustments shall be made by and set forth in an agreement supplemental hereto
approved by action by the board of directors of the Borrower and shall, absent
error, fraud or bad faith, for all purposes be conclusively deemed to be an
appropriate adjustment.
(e) Adjustment Rules. The following rules and procedures shall be
applicable to adjustments of the Conversion Price and the Conversion Privilege
made pursuant to Section 1.07(d):
(i) no adjustment in the Conversion Price shall be required unless
such adjustment would result in a change of at least 1% in the Conversion
Price then in effect; provided, however, that any adjustment which, but for
the provisions of this Section 1.07(e), would otherwise have been required
to be made, shall be carried forward and taken into account in any
subsequent adjustment;
(ii) no adjustment in the Conversion Price shall be made in respect of
any event described in Section 1.07(d) (other than an event described in
paragraphs 1.07(d)(i)(x) or (y) or in paragraph 1.07(d)(iv)(x)), if the PIK
Lenders are entitled to participate in such event on the same terms mutatis
mutandis as if they had converted their PIK Loans prior to the Effective
Date or record date of such event;
(iii) no adjustment in the Conversion Price shall be made pursuant to
Section 1.07(d) in respect of the issue from time to time of PSC Common
Stock or Convertible Securities to holders of PSC Common Stock who exercise
an option to receive substantially equivalent dividends in PSC Common Stock
or Convertible Securities in lieu of receiving Dividends in the Ordinary
Course in the form of cash payments;
(iv) if the Borrower shall set a record date to determine the holders
of the PSC Common Stock for the purpose of entitling them to receive any
dividends or distribution or any subscription or purchase rights and shall,
thereafter and before the distribution to such shareholders of any such
dividend, distribution or subscription or purchase rights, legally abandon
its plan to pay or deliver such dividend, distribution or subscription or
purchase rights then no adjustment in the Conversion Price or the number of
PSC Common Stock issuable upon exercise of the Conversion Privilege shall
be required by reason of the setting of such record date;
(v) if a dispute shall at any time arise with respect to any
adjustment of the Conversion Price or the Conversion Privilege, such
dispute shall be conclusively determined by a nationally recognized firm of
investment dealers selected by the Administrative Agent and any such
determination shall be binding upon the Borrower and the Lenders;
(vi) in case the Borrower after the date hereof shall take any action
affecting the PSC Common Stock, other than an action described in Section
1.07(d), which in the opinion of the board of directors of the Borrower
would materially affect the rights of the
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PIK Lenders, the Conversion Price and/or the number of PSC Common Stock
issuable upon exercise of the Conversion Privilege shall be adjusted in
such manner, if any, and at such time, by action by the board of directors
of the Borrower, in their sole discretion as they may determine to be
equitable in the circumstances. Failure by the board of directors of the
Borrower to take action so as to provide for an adjustment prior to the
effective date of any actions by the Borrower affecting the PSC Common
Stock shall, absent error, fraud or bad faith, be conclusive evidence that
the board of directors of the Borrower have determined that it is equitable
to make no adjustment in the circumstances; and
(vii) any adjustment shall, subject to this Section, be made
successively whenever an event referred to in Section 1.07(d) shall occur.
(f) Postponement of Issuance. In any case where the application of
Section 1.07(d) results in an adjustment to the Conversion Price taking effect
immediately after the record or effective date for a specific event, if any
Conversion Privilege is exercised after that record or effective date and prior
to completion of the event, the Borrower may postpone the issuance of the PSC
Common Stock to which a PIK Lender is entitled by reason of the adjustment to
the Conversion Price but such PSC Common Stock shall be so issued and delivered
to that PIK Lender upon completion of that event, with the number of such PSC
Common Stock calculated on the basis of the Conversion Price on the Conversion
Date adjusted for completion of that event, and the Borrower shall deliver to
the Person or Persons in whose name or names the PSC Common Stock are to be
issued an appropriate instrument evidencing its or their right to receive such
PSC Common Stock.
(g) Certificate as to Adjustment. The Borrower shall from time to time
immediately after the occurrence of any event which requires an adjustment in
the Conversion Price or Conversion Privilege give notice to the Administrative
Agent specifying the nature of the event requiring the adjustment and the amount
of the adjustment necessitated thereby and setting forth, in reasonable detail,
the method of calculation and the facts upon which such calculation is based.
(h) Notice to PIK Lenders. (i) If and whenever the Borrower intends to
implement a record date for:
(1) any Share Reorganization (other than the subdivision of
outstanding PSC Common Stock into a greater number of shares or the
consolidation of outstanding PSC Common Stock into a smaller number of
shares);
(2) any Rights Offering;
(3) any Special Distribution; or
(4) any Capital Reorganization (other than a reclassification or
redesignation of the PSC Common Stock into other shares);
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which will require an adjustment to the Conversion Privilege, the Borrower
shall, not less than 20 days prior to the record date or, if no record date is
fixed, prior to the effective date, of such event give to the PIK Lenders,
notice of the particulars of the proposed event and, if determinable, the
required adjustment and the computation of such adjustment.
(ii) In case any adjustment for which a notice in Section 1.07(h)(i)
has been given is not then determinable, the Borrower shall promptly after such
adjustment is determinable give notice to the PIK Lenders of the adjustment.
(i) Termination and Revival of Right to Convert. (a) The right to
convert any PIK Loan or any part of a PIK Loan which is called for redemption
shall terminate and expire at 4:00 p.m. (New York time) on the Business Day
immediately preceding the date fixed for redemption unless the Borrower shall
default in the payment of amounts owing on redemption.
(b) If payment of all amounts owing on redemption in respect of any
PIK Loan called for redemption is not duly made, the right to convert such PIK
Loan shall revive and continue until the earlier of payment of all amounts owing
on redemption and 4:00 p.m. (New York time) on the Business Day immediately
preceding the PIK Loan Maturity Date.
(j) Reservation of Shares. The Borrower shall at all times while any
Principal Amount under any of the PIK Loans remains outstanding reserve and keep
available out of its authorized and unissued PSC Common Stock for the purpose of
effecting the conversion of the PIK Loans, such number of PSC Common Stock as
shall from time to time be sufficient to effect the conversion of all PIK Loans.
All PSC Common Stock issued upon exercise of the Conversion Privilege shall be
duly and validly issued as fully paid and non-assessable. As a condition
precedent to the taking of any action which would require an adjustment to the
Conversion Price, the Borrower shall take any corporate action which may, in the
opinion of counsel to the Borrower, be necessary in order that the Borrower
shall have unissued and reserved in its authorized capital, and may validly and
legally issue, the shares to which the PIK Lenders are entitled on the full
exercise of their conversion rights in accordance with the provisions of this
Section 1.07.
Section 2. Fees; Prepayments; Payments.
2.01 Fees. (a) The Borrower shall pay to the Administrative Agent, for
its own account, such fees as have been mutually agreed by the Administrative
Agent and the Borrower, including amounts under the Fee Letter.
(b) All computations of fees shall be made in accordance with Section
10.07(b).
2.02 Voluntary Prepayments.
(a) PIK Loans. (i) Except as expressly permitted by this Agreement,
under no circumstances may the Borrower voluntarily prepay or redeem any amount
owing under the PIK
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Loans except pursuant to a PIK Loan Redemption Notice and as expressly permitted
pursuant to the provisions of this Section 2.02(a).
(ii) If an Offeror delivers written notice to the Borrower at or prior
to the closing of an Offer requesting that the Borrower redeem the PIK Loans in
connection with the closing of the Offeror's Offer, then the Borrower may
concurrently with, or within the 30 day period immediately following, a
Successful Closing of such Offer issue a PIK Loan Redemption Notice to prepay or
redeem all, but not less than all, of the PIK Loans upon payment in Dollars for
each such Loan of an amount equal to the greater of (A) 115% of the unpaid
Principal Amount of such Loan, plus all accrued and unpaid interest on such Loan
to the date of such redemption (which, for greater certainty, will include
without duplication, all accrued and unpaid interest on the Principal Amount of
such Loan, all unpaid Accreted Interest Amounts under such Loan and all accrued
and unpaid interest on all Accreted Interest Amounts under such Loan); and (B)
the fair market value (as determined by the board of directors of the Borrower)
of the property which the PIK Lenders would have received if they had converted
the Principal Amount of their PIK Loans to PSC Common Stock and tendered such
PSC Common Stock to the Offeror under such Offer.
(iii) At any time from and after the first anniversary of the Closing
Date and prior to the PIK Loan Maturity Date, provided that all outstanding Exit
Loans have been repaid and the Termination of the Exit Facility has occurred on
the date of such prepayment and redemption, the Borrower may prepay and redeem
all, but not less than all, of the PIK Loans upon payment in Dollars for each
such Loan of an amount equal to the sum of:
(v) the unpaid Cash Flow Additional Interest, if any, payable to the
PIK Lenders in accordance with Section 1.03(4);
(w) the unpaid Deferred Prepayment Interest, if any, payable to the
PIK Lenders in accordance with Section 1.03(4);
(x) the unpaid Principal Amount of such PIK Loans then outstanding;
(y) the Redemption Premium in effect on the date of such prepayment
and redemption for the unpaid Principal Amount of such PIK Loans then
outstanding; and
(z) all accrued and unpaid interest and all accrued and unpaid
Accreted Interest on the unpaid Principal Amount of such PIK Loans to the
date of such prepayment and redemption (which will include without
duplication all accrued and unpaid interest on the unpaid Principal Amount
of such PIK Loans then outstanding, all unpaid Accreted Interest Amounts
under such PIK Loans then outstanding, and all accrued and unpaid interest
on all such Accreted Interest Amounts under the PIK Loans, then
outstanding).
(b) Term Loans. (i) Except as required by this Agreement, the Borrower
shall not voluntarily prepay or redeem any amount owing under the Term Loans
except as expressly permitted pursuant to the provisions of this Section
2.02(b).
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(ii) At any time prior to the Term Loan Maturity Date, provided that
all outstanding Exit Loans have been repaid and the Termination of the Exit
Facility has occurred on the date of such prepayment and redemption, the
Borrower may prepay and redeem all, or any portion (provided that in the event
of the prepayment and redemption of a portion only of the Term Loans such
prepayment and redemption shall be made pro rata based on the respective
Principal Amounts at such time of all Term Loans at such time) of the Term Loans
upon payment in Dollars for each such Loan of an amount equal to the sum of:
(w) (i) if the Borrower is seeking to repay and redeem any portion of
the Term Loans in an amount greater than or equal to the sum of the
Notional Cash Flow Difference Amount and the Deferred Prepayment Amount
then outstanding, the unpaid Deferred Prepayment Interest and unpaid Cash
Flow Additional Interest, if any, payable to the Term Lenders in accordance
with Section 1.03(4), or (ii) if the Borrower is seeking to repay and
redeem any portion of the Term Loans in an amount less than the sum of the
Notional Cash Flow Difference Amount and the Deferred Prepayment Amount
then outstanding, the unpaid Deferred Prepayment Interest and unpaid Cash
Flow Additional Interest, if any, with respect to the portion of the
Principal Amount of the Term Loans being prepaid and redeemed. The Notional
Cash Flow Difference Amount and Deferred Prepayment Amount owed on any date
is reduced by the portion of the Principal Amount of the Term Loans being
prepaid and redeemed as described in this sub-clause (ii) above.
(x) the portion of the unpaid Principal Amount of such Term Loan being
prepaid and redeemed;
(y) the Redemption Premium for the portion of the Principal Amount of
such Term Loan being prepaid and redeemed in effect on the date of such
prepayment and redemption; and
(z) all accrued and unpaid interest on the portion of the Principal
Amount of such Term Loan being prepaid and redeemed to the date of such
prepayment and redemption (which will include, without duplication, all
accrued and unpaid interest on the portion of the Principal Amount of such
Term Loan being prepaid and redeemed, all unpaid Deferred Interest Amounts
under the portion of such Term Loan being prepaid and redeemed and all
accrued and unpaid interest on all Deferred Interest Amounts under the
portion of such Term Loan being prepaid and redeemed).
2.03 Mandatory Prepayments. (A) Requirements. (a) Notwithstanding
anything to the contrary contained elsewhere in this Agreement, (i) all then
outstanding Term Loans (which will include without duplication all accrued and
unpaid interest on the Principal Amount of such Loans, all unpaid Deferred
Interest Amounts under such Loans and all accrued and unpaid interest or all
Deferred Interests under such Loans) shall be repaid in full on the Term Loan
Maturity Date and (ii) all then outstanding PIK Loans (which will include
without duplication all accrued and unpaid interest on the Principal Amount of
such Loans, all unpaid Accreted Interest Amounts under such Loans and all
accrued and unpaid interest on all Accreted Interest Amounts under such Loans)
shall be repaid in full on the PIK Loan Maturity Date.
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(b) In addition to any other mandatory repayment or prepayment under
this Section 2.03, (x) prior to the date of Termination of the Exit Facility, an
amount equal to (i) the Net Asset Sale Proceeds from the Disposition of any
assets of Borrower or the Subsidiary Guarantors (including, without limitation,
from the Permitted Dispositions, but excluding Dispositions of assets pursuant
to clauses (a), (b), (c), (d), (e), or (g) of the definition of Permitted
Dispositions) (ii) any Foreign Subsidiary Proceeds, and (iii) proceeds of the UK
Sale will be applied as provided in the Collateral Agency and Intercreditor
Agreement and (y) thereafter, an amount equal to (i) 66 and 2/3 % of the first
$200,000,000 of the Net Asset Sale Proceeds from the sale of the US Ferrous
Division, (ii) 75% of the amount, if any, of the Net Asset Sale Proceeds from
the sale of the US Ferrous Division that is not covered by clause (i), and (iii)
75% of the amount of (a) the Net Asset Sale Proceeds from the Disposition of any
other assets of Borrower or any Subsidiary Guarantor including assets sold
pursuant to clauses (f), (h) and (j) of the definition of Permitted Dispositions
but specifically excluding assets sold pursuant to Permitted Dispositions
described in clauses (a) through (e) and (g), of the definition of Permitted
Dispositions except as otherwise provided in Section 5.07(c) and (b) any Foreign
Subsidiary Proceeds (such amounts, the "Net Sale Proceeds Repayment Amount"),
shall be paid to the Administrative Agent and shall be applied (1) on the
closing date of such sale to repay the then outstanding Term Loans and (2) after
the Term Loans are paid off in full, to repay the then outstanding PIK Loans on
the date specified in the PIK Loan Redemption Notice, in accordance with the
requirements of Section 2.03(B)(i); provided that with respect to Foreign
Subsidiary Proceeds, such amounts shall be paid when actually received by a US
Subsidiary Guarantor.
(c) In addition to any other mandatory repayment or prepayment under
this Section 2.03, the following amounts shall be paid to the Administrative
Agent and shall be applied on the dates set forth below, to repay the
outstanding Term Loans and accrued interest on the outstanding PIK Loans in
accordance with the requirements of Section 2.03(B)(ii) and no PIK Loan
Redemption Notice shall be required:
(i) on the First Annual Cash Flow Payment Date, 75% of the Cash Flow
Available for Debt Service for the period from and including the Closing
Date to and including the last day of the fourth Post Plan Implementation
Fiscal Quarter (such amount, if a positive amount, the "First Cash Flow
Payment");
(ii) on the Second Annual Cash Flow Payment Date, the lesser of (x)
75% of Cash Flow Available for Debt Service for the period from and
including the first day of the fifth Post Plan Implementation Fiscal
Quarter to and including the last day of the eighth Post Plan
Implementation Fiscal Quarter and (y) 75% of an amount equal to Cash Flow
Available for Debt Service for the period from and including the Closing
Date to and including the last day of the eighth Post Plan Implementation
Fiscal Quarter minus the First Cash Flow Payment (such amount, if a
positive amount, the "Second Cash Flow Payment" and if the amount in
sub-clause (x) is greater than the amount in sub-clause (y) of this
sub-clause 2.03(A)(c)(ii), the difference between the amounts described in
sub-clauses (x) and (y) of this Section 2.03(A)(c)(ii), the "First Notional
Cash Flow Difference Amount" (provided, that if the amount determined
pursuant to clause (y) of
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this Section 2.03(A)(c)(ii) is less than zero, such amount shall be deemed
to be zero for purposes of calculating the First Notional Cash Flow
Difference Amount));
(iii) on the first Quarterly Cash Flow Payment Date, the lesser of (x)
75% of Cash Flow Available for Debt Service for the immediately preceding
Fiscal Quarter and (y) 75% of an amount equal to Cash Flow Available for
Debt Service for the period from and including the Closing Date to and
including the last day of the immediately preceding Fiscal Quarter minus
the First Cash Flow Payment and the Second Cash Flow Payment (such amount,
if a positive amount, the "Third Cash Flow Payment" and together with the
First Cash Flow Payment and the Second Cash Flow Payment, the "Cash Flow
Payments", and each a "Cash Flow Payment" and if the amount in sub-clause
(x) is greater than the amount in sub-clause (y) of this sub-clause 2.03
(A)(c)(iii), the difference between the amounts described in sub-clauses
(x) and (y) of this Section 2.03(c)(iii), the "Second Notional Cash Flow
Difference Amount" (provided, that if the amount determined pursuant to
clause (y) of this Section 2.03(A)(c)(iii) is less than zero, such amount
shall be deemed to be zero for purposes of calculating the Second Notional
Cash Flow Difference Amount));
(iv) on the second Quarterly Cash Flow Payment Date, the lesser of (x)
75% of Cash Flow Available for Debt Service for the immediately preceding
Fiscal Quarter and (y) 75% of an amount equal to Cash Flow Available for
Debt Service for the period from and including the Closing Date to and
including the last day of the immediately preceding Fiscal Quarter minus
the sum of the Cash Flow Payments (if the amount in sub-clause (x) is
greater than the amount in sub-clause (y) of this sub-clause 2.03
(A)(c)(iv), the difference between the amounts described in sub-clauses (x)
and (y) of this Section 2.03 (c)(iv), the "Third Notional Cash Flow
Difference Amount" (provided, that if the amount determined pursuant to
clause (y) of this Section 2.03(A)(c)(iv) is less than zero, such amount
shall be deemed to be zero for purposes of calculating the Third Notional
Cash Flow Difference Amount) and together with the First Notional Cash Flow
Difference Amount and the Second Notional Cash Flow Difference Amount, the
"Notional Cash Flow Difference Amounts");
(v) on each Quarterly Cash Flow Payment Date starting with the 12th
Post Plan Implementation Fiscal Quarter, 75% of the Cash Flow Available for
Debt Service for the immediately preceding Fiscal Quarter;
(vi) interest shall accrue as provided in Section 1.03(4) until the
date of termination of this Agreement on (a) an amount equal to the
Notional Cash Flow Difference Amounts (the "Cash Flow Additional Interest")
and (b) on an amount equal to the portion of the Cash Flow Payment due on
any Quarterly Cash Flow Payment Date that has been applied to pay the Cash
Flow Additional Interest accrued and unpaid on such date (such amount, the
"Deferred Prepayment Amount" and such interest accruing on any such
Deferred Prepayment Amount, the "Deferred Prepayment Interest"); provided
that (x) any Cash Flow Payment due on any following Quarterly Cash Flow
Payment Date shall be applied first to repay the Cash Flow Additional
Interest and second to repay the Deferred
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Prepayment Interest accrued and unpaid at such time in accordance with
Section 2.03(B)(ii) and any Deferred Prepayment Interest or Cash Flow
Additional Interest accrued and unpaid at such time that is in excess of
such Cash Flow Payment due at such time shall be paid from the Cash Flow
Payment due on any following Quarterly Cash Flow Payment Date and (y) the
Notional Cash Flow Difference Amounts are calculated solely to calculate
the Cash Flow Additional Interest and no payment of the Notional Cash Flow
Difference Amounts shall be required to be made hereunder;
(vii) Notwithstanding anything to the contrary contained in this
Section 2.03(A)(c), Cash Flow Additional Interest and Deferred Prepayment
Interest shall continue to accrue on the Notional Cash Flow Difference
Amounts and the Deferred Prepayment Amounts, respectively for the benefit
of the Term Lenders or the PIK Lenders, as applicable, until such time as
the Term Loans and/or the PIK Loans have been repaid in full, unless the
Borrower chooses to voluntarily prepay the following amounts pursuant to
Section 2.02 in the following order and the Borrower shall have the right
at any time to prepay such amount in whole or in part in such order: (i)
first, all accrued and unpaid interest on the Term Loans (or if the Term
Loans have been paid in full, on the PIK Loans) as of such date (including,
without limitation, all accrued and unpaid Deferred Prepayment Interest,
Cash Flow Additional Interest, Deferred Interest Amounts, and all accrued
and unpaid interest on such Deferred Interest Amounts), and (ii) second, a
prepayment of the Loans equal to the sum of the Notional Cash Flow
Difference Amounts and the Deferred Prepayment Amounts then outstanding;
provided that any amounts not so prepaid shall continue to accrue interest
as provided in this Section 2.03(A)(c); provided further, that any amounts
owed by the Borrower pursuant to this Section 2.03(A)(c) on the date of
termination of this Agreement shall be due and payable on such date and
shall be applied as specified in this Section 2.03(A)(c).
(d) In addition to any other mandatory repayment or prepayment under
this Section 2.03, (i) prior to the Termination of the Exit Facility, any monies
to be received as payment for any loss under any insurance policy mentioned in
Section 5.7 (other than liability insurance policies) or as payment of any award
or compensation for condemnation or taking by eminent domain, shall be applied
in accordance with the Collateral Agency and Intercreditor Agreement, and (ii)
thereafter, any such monies shall (i) if no Event of Default has occurred and is
continuing and if such proceeds are $5,000,000, or less, be paid over to the
Borrower for application solely to the cost of repairs, replacements, or
restorations, and (ii) in all other cases (except proceeds constituting Net
Asset Sale Proceeds from the Disposition of assets permitted pursuant to clause
(f) of the definition of Permitted Dispositions will be applied in accordance
with Section 2.03(A)(b)(iii)), be paid over to the Administrative Agent to be
applied at the option of the Administrative Agent either to the prepayment of
the Obligations without premium, in accordance with Section 2.03(B)(i) hereof or
be disbursed under staged terms satisfactory to the Administrative Agent for
application solely to the cost of repairs, replacements or restorations. The
Borrower agrees that if the Borrower or any US Subsidiary Guarantor receives any
payment for any loss under any insurance policy mentioned above or any payment
of any award or compensation for condemnation or taking by eminent domain, to
the extent the Borrower or US Subsidiary Guarantor is not entitled to retain
same in accordance with the previous sentence, the
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Borrower or such US Subsidiary Guarantor shall hold such proceeds in trust for,
and promptly pay such proceeds over to, the Collateral Agent. All repairs,
replacements, or restorations shall be effected within one year after the date
of receipt of such proceeds (unless the Administrative Agent otherwise consents)
and shall be of a value at least equal to the value of the items or property
destroyed prior to such damage or destruction; provided that if any portion of
such proceeds are not applied to the cost of repairs, replacements or
restorations within such one year period, such remaining portion not used shall
be applied on the last day of such one year period as a mandatory repayment in
accordance with Section 2.03(B)(i).
(B) Application. (i) All amounts paid to the Administrative Agent
pursuant to the provisions of Section 2.03(A)(b) or 5.07(c) are to be paid and
applied by the Administrative Agent in the following order:
(a) First, to the pro rata payment (based on the respective
proportions of such amounts owing under the Term Loans at such time) to all
Term Lenders of all unpaid Deferred Interest Amounts, together with all
accrued and unpaid interest on all such Deferred Interest Amounts, under
the Term Loans on the date of payment;
(b) Second, after payment of all amounts referred to in paragraph (a)
of this subsection, to the pro rata payment (based on the respective
proportions of such amounts owing under the Term Loans at such time) to all
Term Lenders of all other accrued and unpaid interest under the Term Loans
on the date of payment;
(c) Third, after payment of all amounts referred to in paragraphs (a)
and (b) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the Term Loans at such
time) to all Term Lenders of all then unpaid Principal Amounts under the
Term Loans;
(d) Fourth, after payment of all amounts referred to in paragraphs
(a), (b) and (c) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the PIK Loans at such
time) to all PIK Lenders of all accrued and unpaid interest (which, for
greater certainty will include without duplication, all accrued and unpaid
interest on the Principal Amount of such Loans, all unpaid Accreted
Interest Amounts under such Loans and all accrued and unpaid interest on
all Accreted Interest Amounts under such Loans) under the PIK Loans on the
date of payment;
(e) Fifth, after payment of all amounts referred to in paragraphs (a),
(b), (c) and (d) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the PIK Loans at such
time) to all PIK Lenders of all then unpaid Principal Amounts of the PIK
Loans; and
(f) Sixth, after payment of all amounts referred to in paragraphs (a),
(b), (c), (d) and (e) of this subsection, and provided that no Default or
Event of Default has occurred and is continuing or would result therefrom,
release of the balance, if any, of such amount to or as directed by the
Borrower or as otherwise required by applicable law;
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and all of the interest and principal payments required to be paid under
paragraphs (a), (b), (c), (d), (e) and (f) of this subsection shall have
become, and shall be conclusively deemed for all purposes to have become,
due and payable on the applicable payment date set forth in Section
2.03(A)(b).
(ii) All amounts paid to the Administrative Agent pursuant to the
provisions of Section 2.03(A)(c), are to be paid and applied by the
Administrative Agent in the following order:
(a) First, to any unpaid Cash Flow Additional Interest;
(b) Second, after payment of all amounts referred to in paragraph (a)
of this subsection, to any unpaid Deferred Prepayment Interest;
(c) Third, after payment of all amounts referred to in paragraphs (a)
and (b) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the Term Loans at such
time) to all Term Lenders of all unpaid Deferred Interest Amounts, together
with all accrued and unpaid interest on all Deferred Interest Amounts,
under the Term Loans on the date of payment;
(d) Fourth, after payment of all amounts referred to in paragraph (a),
(b) and (c) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the Term Loans at such
time) to all Term Lenders of all other accrued and unpaid interest under
the Term Loans on the date of payment;
(e) Fifth, after payment of all amounts referred to in paragraphs (a),
(b), (c) and (d) of this subsection, to the pro rata payment (based on the
respective proportions of such amounts owing under the PIK Loans at such
time) to all PIK Lenders of all accrued and unpaid interest (which, for
greater certainty, will include without duplication all accrued and unpaid
interest on the Principal Amount of such Loans, all unpaid Accreted
Interest Amounts under such Loans and all accrued and unpaid interest on
all Accreted Interest Amounts under such Loans) under the PIK Loans on the
date of payment;
(f) Sixth, after payment of all amounts referred to in paragraphs (a),
(b), (c), (d) and (e) of this subsection, to the pro rata payment (based on
the respective proportions of such amounts owing under the Term Loans at
such time) to all Term Lenders of all then unpaid Principal Amounts under
the Term Loans; and
(g) Seventh, after payment of all amounts referred to in paragraphs
(a), (b), (c), (d) and (f) of this subsection, and provided that no Default
or Event of Default has occurred and is continuing or would result
therefrom, release of the balance, if any, of such amount to or as directed
by the Borrower or as otherwise required by applicable law;
and all of the interest and principal payments required to be paid under
paragraphs (a), (b), (c), (d), (e), (f), and (g) of this subsection shall have
become, and shall be conclusively deemed for
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all purposes to have become, due and payable on the applicable payment date set
forth in subsections (i), (ii), (iii), (iv), (v), (vi) and (vii) of Section
2.03(A)(c).
2.04 PIK Loan Redemption Notice. Notice of prepayment or redemptions
of the PIK Loans (each a "PIK Loan Redemption Notice") shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the date of such prepayment or redemption, to each holder of PIK Notes,
at the address provided by the Administrative Agent.
All PIK Loan Redemption Notices shall set forth:
(i) the date of such prepayment or redemption,
(ii) the price at which the PIK Notes will be prepaid or redeemed,
(iii) a brief statement setting forth the Borrower's right to effect
such prepayment or redemption and the Borrower's basis therefor,
(iv) that such prepayment or redemption is in respect of all PIK Notes
then outstanding (together with any accrued and unpaid interest in respect
of such PIK Notes), and
(v) that on the date of such repayment or redemption, the PIK Notes
will become due and payable, that interest thereon will cease to accrue and
that the conversion features of the PIK Loans set forth in Section 1.07 of
this Agreement shall no longer be operative. Each PIK Loan Redemption
Notice shall be given by the Borrower or at the Borrower's request by the
Administrative Agent in the name and at the expense of the Borrower.
2.05 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lenders entitled thereto no
later than 12:00 noon (New York City time) on the date when due and shall be
made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
2.06 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
(b) Except as provided in Section 2.06(c), all such payments will be
made free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, any tax imposed on or measured by the net income or net profits
of a Lender (including any indemnities arising as a result of the operation of
this
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Section 2.06), as applicable, or any franchise tax based on the net income or
net profits of a Lender, as applicable in either case pursuant to the laws of
the jurisdiction in which it is incorporated or organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is
located or any subdivision thereof or therein) and all interest, penalties or
similar liabilities with respect thereto (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement or
under any Note, including without limitation any amount paid pursuant to this
Section 2.06 after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein or in such Note. Notwithstanding
anything to the contrary contained in this Section 2.06(b), the Borrower shall
not be required to increase any such amounts payable pursuant to this Section
2.06 to the Administrative Agent or any Lender (i) that is not organized under
the laws of the United States or is an Original Canadian Lender if such Person
fails to comply with the requirements of subsection 2.06(c) or (ii) if the
increase in such amount payable results from the Administrative Agent's or
Lender's own willful misconduct or gross negligence. The Borrower will furnish
to the Administrative Agent as promptly as possible after the date the payment
of any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Lender.
(c) Each Lender other than an Original Canadian Lender that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) and that is deemed to have made Loans to the Borrower agrees to deliver to
the Borrower and the Administrative Agent on or prior to the Closing Date, and
each such Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.06 or 10.04 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer) and
that is not such a United States person agrees to deliver to the Borrower and
the Administrative Agent on or prior to the date of such assignment or transfer
to such Lender (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8 ECI or Form W-8 BEN (with respect to a complete
exemption under an income tax treaty) certifying such Lender's entitlement as of
such date to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form W-8 ECI or Form W-8
BEN (with respect to a complete exemption under an income tax treaty) pursuant
to clause (i) above, (x) a certificate substantially in the form of Exhibit C
(any such certificate, a "Section 2.06(c)(ii) Certificate") and (y) two accurate
and complete original signed copies of Internal Revenue Service Form W-8 BEN
(with respect to the portfolio interest exemption) certifying such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement and under any
Note. In addition, each Lender described in the preceding sentence (a "Specified
Lender") agrees that from time to time after the Closing Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and
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complete original signed copies of Internal Revenue Service Form W-8 ECI or Form
W-8 BEN (with respect to a complete exemption under an income tax treaty) or
Form W-8 BEN (with respect to the portfolio interest exemption) and a Section
2.06(c)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Specified
Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments by the Borrower under this Agreement and any Note,
or it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate in which case such lender
shall not be required to deliver any such form of certificate pursuant to this
Section 2.06(c). Notwithstanding anything to the contrary contained in Section
2.06(b), but subject to Section 10.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Specified Lender for U.S. federal income tax purposes to the extent that such
Specified Lender has not provided to the Borrower U.S. Internal Revenue Service
Forms that establish a complete exemption from such deduction or withholding and
(y) the Borrower shall not be obligated pursuant to Section 2.06(b) hereof to
gross-up payments to be made to a Specified Lender in respect of income or
similar taxes imposed by the United States if (I) such Specified Lender has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 2.06(c) or (II) in the case of
a payment other than interest to a Specified Lender described in clause (ii)
above, to the extent that such forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 2.06 and except as set forth
in Section 10.04(b), the Borrower agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in Section 2.06(b) in respect of
any amounts either paid by a Lender or deducted or withheld by the Borrower as
described in the immediately preceding sentence as a result of any changes that
are effective after the Closing Date (or, with respect to any assignee of any
Lender, after the date on which the assignment to such assignee becomes
effective) in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes that is imposed by the United States or any
political sub-division in or of the United States.
(d) Each Original Canadian Lender agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Closing Date, or promptly
thereafter, two accurate and complete original signed copies of Internal Revenue
Service Form W-8 ECI or Form W-8 BEN (or successor forms) certifying to such
Lender's entitlement to a reduced rate of, or complete exemption from, United
States withholding tax with respect to payments to be made under this Agreement
and under any Note. In addition, each Original Canadian Lender agrees that from
time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form W-8 ECI or W-8 BEN, or it shall immediately notify each of the Borrower and
the Administrative Agent of its inability to deliver any such Form, in which
latter case such Original Canadian Lender shall not be required to deliver any
such Form pursuant to this Section 2.06(d). Notwithstanding anything to the
contrary contained in Section 2.06(b), but
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subject to Section 10.04(b), the Borrower shall, to the extent it is required to
do so by law, deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of an
Original Canadian Lender for U.S. federal income tax purposes. The Borrower
shall not be obligated pursuant to Section 2.06(b) hereof to gross-up payments
to be made to an Original Canadian Lender in respect of income or similar taxes
imposed by the United States if such Original Canadian Lender has not provided
to the Borrower the Internal Revenue Service Forms required to be provided to
the Borrower pursuant to this Section 2.06(d). Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 2.06,
the Borrower agrees to pay any additional amounts and to indemnify each Original
Canadian Lender in the manner set forth in Section 2.06(b) in respect of any
amounts either paid by an Original Canadian Lender or deducted or withheld by
the Borrower if such Original Canadian Lender has not provided either Internal
Revenue Service Form W-8 BEN or Form W-8 ECI after determining in its reasonable
discretion that it will suffer any economic, legal or regulatory disadvantage as
a result of having provided such form.
(e) If the Borrower pays any additional amount under Section 2.06(b)
to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "Tax Benefit"), such
Lender shall pay to the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by the Lender in such year as a consequence of such Tax Benefit; provided,
however, that (i) any Lender may determine, in its sole discretion consistent
with the policies of such Bank, whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of
such Lender that otherwise would not have expired) of any Tax Benefit with
respect to which such Lender has made a payment to the Borrower pursuant to this
Section 2.06(e) shall be treated as a Tax for which the Borrower is obligated to
indemnify such Lender pursuant to this Section 2.06 without any exclusions or
defenses; and (iii) nothing in this Section 2.06(e) shall require the Lender to
disclose any confidential information to the Borrower (including , without
limitation, its tax returns).
(f) At or before the Closing Date, or promptly thereafter, and at such
subsequent times reasonably requested in writing by the Borrower or the
Administrative Agent, each U.S. Lender shall provide each of the Borrower and
the Administrative Agent with a duly executed and valid Internal Revenue Service
Form W-9 (or appropriate successor form), provided, that the Administrative
Agent is not a United States Person as defined in ss.7701(a)(30) of the Code;
provided, further, that a U.S. Lender shall not be required to provide such form
if such U.S. Lender determines in its reasonable discretion that it will suffer
any economic, legal or regulatory disadvantage as a result of having provided
such form.
(g) At or prior to the Closing Date, and at such subsequent times
reasonably requested in writing by the Borrower, the Administrative Agent shall
provide the Borrower with IRS Form W-8IMY.
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(h) The provisions of this Section 2.06 are subject to the provisions
of Section 10.15 (to the extent applicable).
Section 3. Conditions Precedent.
3.01 Conditions Precedent to Term Loans and PIK Loans. This Agreement
shall become effective on the date (the "Closing Date") on which each of the
conditions contained in this Section 3 is satisfied. Unless the Administrative
Agent has received actual notice from any Lender that the conditions set forth
in this Section 3 have not been met to its satisfaction, upon the Administrative
Agent's good faith determination that the conditions described in this Section 3
have been met to the Administrative Agent's satisfaction, the Closing Date shall
be deemed to have occurred, regardless of any subsequent determination that one
or more of the conditions thereto had not been met (although the occurrence of
the Closing Date shall not release the Borrower or any other Obligor from any
liability for failure to satisfy one or more of the applicable conditions
contained in this Section 3; provided that all items, actions or determinations
which are required to be acceptable to the Administrative Agent or the Required
Pre-Petition Lenders under this Section 3, shall be deemed satisfactory to the
Required Pre-Petition Lenders upon the occurrence of the Closing Date). The
Administrative Agent will give the Borrower and each Lender prompt written
notice of the occurrence of the Closing Date. Notwithstanding that this
Agreement is expressed to be dated as of March 31, 2000, it is agreed that this
Agreement shall be deemed to be delivered on and take effect as of and from the
Closing Date.
(a) Execution of Agreement; Notes. (i) Each Obligor, the
Administrative Agent and the Required Pre-Petition Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at its Notice Office or, in
the case of the Required Pre-Petition Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing) or written notice
(actually received) at such office that the same has been signed and mailed
to it and (ii) there shall have been delivered to the Administrative Agent
for the account of each of the Lenders, the appropriate Notes and other
Loan Documents executed by the Borrower (and/or any other Person required
thereunder) in the amount, maturity and as otherwise provided herein and as
satisfactory to the Administrative Agent.
(b) Exit Facility. On the Closing Date, the Exit Facility shall have
been executed and delivered and a copy thereof shall have been received by
the Administrative Agent in a form satisfactory to the Administrative Agent
and the Required Pre-Petition Lenders, and the initial extension of credit
having occurred (or simultaneously shall occur) thereunder.
(c) Intercreditor Agreements. On the Closing Date, the Administrative
Agent shall have received fully executed and delivered originals of (i) the
Collateral Agency and Intercreditor Agreement, (ii) the Prepetition Lien
Subordination and Intercreditor Agreement and (iii) the Bonding Lien
Intercreditor Agreement, the form and substance of
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each of which shall be satisfactory to the Administrative Agent and the
Required Pre-Petition Lenders.
(d) Corporate Documents; Proceedings; Officer's Certificates. (i) The
Administrative Agent shall have received from each Obligor a certificate,
dated the Closing Date, signed by a Responsible Officer, Secretary or
Assistant Secretary of such Obligor and attested to by the Secretary or any
Assistant Secretary of such Obligor in the form of Exhibit D with
appropriate insertions, together with copies of the Certificate of
Incorporation and By-Laws (and in the case of the Borrower, the
Registration Rights Agreements and Shareholders Rights Agreement) of each
Obligor and the resolutions of the Board of Directors of each Obligor
referred to in such certificate, authorizing and approving the transactions
contemplated by this Agreement, and the foregoing shall be satisfactory in
form and substance to the Administrative Agent.
(ii) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this
Agreement and the other Loan Documents shall be satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall
have received all information and copies of all documents and papers,
including records of corporate proceedings and governmental approvals, if
any, which the Administrative Agent reasonably may have requested in
connection therewith, such documents and papers where appropriate to be
certified by proper corporate officers or Governmental Authorities.
(e) Opinions of Counsel. The Administrative Agent shall have received
an opinion in form and substance satisfactory to it, addressed to each of
the Lenders and dated the Closing Date, from (i) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), special counsel to the Borrower and the
Subsidiary Guarantors, covering the matters set forth in Exhibit E-1 and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request, (ii) from Stikeman Elliott,
Canadian counsel to the Borrower and the Subsidiary Guarantors, covering
the matters set forth in Exhibit E-2 and such other matters incident to the
transactions contemplated herein as the Administrative Agent may reasonably
request, (iii) from ▇▇▇▇▇ ▇▇▇▇▇, Esq., as General Counsel to the Borrower,
covering the matters set forth in Exhibit E-3 and such other matters
incident to the transactions contemplated herein as the Administrative
Agent may reasonably request and (iv) from local counsels to the Borrower
and the Subsidiary Guarantors, as requested by the Administrative Agent
covering the matter set forth in Exhibit E-4 and such other matters
incident to the transactions contemplated herein as the Administrative
Agent may reasonably request.
(f) Order. The Administrative Agent shall have received (i) a copy of
the US Confirmation Order, (ii) a copy of the Stipulation and Order and
(iii) a copy of the Canadian Vesting Order and the Canadian Confirmation
Order (collectively, the "Canadian Orders"), which US Confirmation Order,
Stipulation Order and Canadian Orders shall be in full force and effect and
shall not have been stayed, reversed, vacated, rescinded or otherwise
modified without the prior written consent of the Administrative
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Agent and the Required Pre-Petition Lenders, shall be satisfactory to the
Administrative Agent and the Required Pre-Petition Lenders and shall,
except as shall be acceptable to the Administrative Agent, be a Final Order
with respect to the US Confirmation Order and the Canadian equivalent of a
Final Order with respect to the Canadian Orders.
(g) Consummation of the Reorganization Plan. (i) On the Closing Date,
the Reorganization Plan shall have been consummated (except to the extent
distributions are to be made after the Plan Effective Date) and become
effective in accordance with its terms and applicable law, the Plan
Effective Date and the consummation thereof shall have occurred thereunder
and all conditions to the Plan Effective Date and such consummation shall
have been satisfied or waived (with the consent of the Administrative Agent
and the Required Pre-Petition Lenders).
(ii) The Canadian Transactions shall have been fully consummated in
accordance with the terms and conditions of the Canadian Orders.
(iii) The Pre-Closing Restructuring Transactions shall have been fully
consummated.
(h) Payment of Fees, etc. The Borrower shall have paid all costs, fees
and expenses owing under or in connection with the Loan Documents and the
Fee Letter to the extent due to the Administrative Agent or the Lenders on
or before the Closing Date and shall have paid all fees and disbursements
of the advisors of the Administrative Agent and the Lenders which shall be
due and payable on or prior to the Closing Date (including all fees and
disbursements payable relative to the 1997 Credit Agreement and the
Reorganization Plan) to the extent due and notified to the Borrower
(including, without limitation, reasonable fees and expenses of counsel).
(i) Approvals. On the Closing Date, all necessary governmental and
third party approvals in connection with the transactions contemplated by
the Reorganization Plan and the Loan Documents and otherwise referred to
herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes, in
the judgment of the Borrower, the Required Pre-Petition Lenders and the
Administrative Agent, materially adverse conditions upon the consummation
of such transactions. Additionally, there shall not exist any judgment,
order, injunction or other restraint prohibiting or imposing material
adverse conditions upon the consummation of the Reorganization Plan or the
transactions contemplated by the Loan Documents.
(j) Existing Obligations and Liens. (i) On or prior to the Closing
Date, the commitments under the DIP Credit Agreement shall have been
terminated, and all loans thereunder, together with interest thereon, and
all other amounts (including, without limitation, fees) owing pursuant to
the DIP Credit Agreement, shall have been repaid in full and any priority
status, security interest or Liens relating thereto shall have been
released or terminated and be of no further force and effect. On the
Closing Date, all Existing Letters of Credit shall have been either (x)
terminated or returned to the issuer
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thereof undrawn and canceled or (y) back-stopped under the Exit Facility in
a manner satisfactory to the issuers of such Existing Letters of Credit.
The Administrative Agent and the Required Pre-Petition Lenders shall have
received evidence in form, scope and substance satisfactory to the
Administrative Agent that the matters set forth in this Section 3.01(j)(i)
have been satisfied at such time.
(ii) On the Closing Date, all Existing Indebtedness of the Borrower
and its Subsidiaries is set forth on Schedule III, and all Liens securing
Existing Indebtedness, shall be evidenced by the agreements relating
thereto, and neither the Borrower nor any of its Subsidiaries shall be
obligated with respect to any other Indebtedness, nor shall the Borrower or
any of its Subsidiaries, or any of their respective assets or properties,
be subject to Liens (other than Permitted Liens).
(iii) On the Closing Date, all Indebtedness (other than Existing
Indebtedness and the indebtedness of PSC and the other Canadian Debtors to
the Pre-Petition Lenders) of the Released Creditors shall have been
canceled, repaid or converted into equity and all security interests and
Liens held by or on behalf of such Released Creditors (other than to the
extent securing Existing Indebtedness) on the assets owned by the Borrower
or its Subsidiaries shall have been terminated and released, and any
collateral in possession of any Released Creditor shall have been returned
to the Borrower. The Administrative Agent shall have received evidence in
form, scope and substance satisfactory to the Administrative Agent that the
matters set forth in this Section 3.01(j)(iii) have been satisfied at such
time, which may include (i) termination statements (Form UCC-3 or the
appropriate equivalent) for filing under the UCC of each jurisdiction where
a financing statement (Form UCC-1 or the appropriate equivalent) was filed
with respect to the Borrower, its Subsidiaries and their predecessors in
interest in connection with the security interests created with respect to
such Released Creditors and the documentation related thereto and (ii) a
termination or assignment of any security interest in, or Lien on, any
patents, trademarks, copyrights, or similar interests of the Borrower, its
Subsidiaries and their predecessors in interest on which filings have been
made.
(k) Financial Statements. On the Closing Date, the Administrative
Agent shall have received the financial statements set forth on Schedule
IV.
(l) Insurance Certificates. On the Closing Date, the Borrower shall
have delivered to the Administrative Agent certificates of insurance and
other evidence of such insurance, if any, with respect to the insurance
policies described on Schedule V naming the Collateral Agents as loss
payees in respect of any casualty loss policies covering Collateral, and
naming the Collateral Agents as additional insured with respect to any
liability policy and stating that such insurance shall not be canceled or
materially revised without 30 days' prior written notice by the insurer to
the Collateral Agents.
(m) Unsecured Notes. On or prior to the Closing Date, the Lenders
shall have received true and correct copies of the Unsecured Notes
Documents, and all of the terms and conditions thereof shall be in form and
substance satisfactory to the Administrative
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Agent and the Required Pre-Petition Lenders. All of the Unsecured Notes
Documents (other than the Unsecured Notes) shall have been duly executed
and delivered by the parties thereto, shall be in full force and effect.
(n) Security Agreements. On the Closing Date, (i) the Borrower and
each US Subsidiary Guarantor shall have executed and delivered a Security
Agreement in the form of Exhibit G-1 (as modified, supplemented or amended
from time to time, the "Security Agreement") together with the U.S. motor
vehicle registrations requested by the Exit Agent, a Copyright Security
Agreement in the form of Exhibit G-2 (as modified, supplemented, or amended
from time to time, the "Copyright Security Agreement"), a Patent Security
Agreement in the form of Exhibit G-3 (as modified, supplemented, or amended
from time to time, the "Patent Security Agreement"), a Trademark Security
Agreement in the form of Exhibit G-4 (as modified, supplemented, or amended
from time to time, the "Trademark Security Agreement"), a Rolling Stock
Security Agreement in the form of Exhibit G-5 (as modified, supplemented or
amended from time to time, the "Rolling Stock Security Agreement"), (ii)
each Canadian Guarantor shall have executed and delivered a Canadian
Security Agreement in the form of Exhibit G-6 (as modified, supplemented,
or amended from time to time, the "Canadian Security Agreement"), (iii)
each Non-US Guarantor shall have executed and delivered a Guarantor
Security Agreement in the form of Exhibit G-7 (as modified, supplemented,
or amended from time to time, the "Guarantor Security Agreement") and (iv)
the Borrower shall have delivered properly executed Quebec Security
Documents in the form of Exhibit G-8.
(o) Mortgages. On the Closing Date, the Collateral Agents shall have
received fully executed counterparts of the mortgages, debentures or deeds
to be filed to secure the debt to the Lenders, in form and substance
satisfactory to the Administrative Agent, (each, as modified, supplemented,
or amended from time to time, a "Mortgage" and, collectively, the
"Mortgages"), to effectively create a valid and enforceable mortgage lien
subject to no other Liens other than the Permitted Liens against the Real
Property Collateral owned or leased by an Obligor as of the Closing Date in
favor of the Collateral Agents for the benefit of the PIK Lenders and the
Term Lenders.
(p) Subsidiary Guaranty. Each Subsidiary Guarantor shall have duly
authorized, executed and delivered either (i) the US Subsidiary Guaranty in
the form of Exhibit H-1, or (ii) the Canadian Subsidiary Guaranty in the
form of Exhibit H-2, and the US Subsidiary Guaranty and the Canadian
Subsidiary Guaranty shall each be in full force and effect.
(q) Stock Pledge Agreement. Each Obligor shall have duly authorized,
executed and delivered the Stock Pledge Agreement in the form of Exhibit I
hereto (as amended, restated, supplemented or modified from time to time,
the "Stock Pledge Agreement"), which shall be in full force and effect, and
shall have delivered the collateral subject thereto to the appropriate
Collateral Agent as determined by the Collateral Agency and Intercreditor
Agreement, as secured party, (x) endorsed in blank in
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the case of promissory notes and (y) together with executed and undated
stock powers, in the case of Stock, endorsed in blank.
(r) UK Operations. The Administrative Agent shall have received
executed UK Compliance Certificates and such certificates and all exhibits
attached thereto shall be in form and substance satisfactory to the
Administrative Agent;
(s) Cost Sharing Agreement. The Cost Sharing Agreement shall have been
executed and the Administrative Agent shall have received a copy thereof
which shall be in form and substance satisfactory to the Administrative
Agent.
(t) Funding of Claims. The Pre-Petition Lenders shall have entered
into an agreement (the "Funding Agreement") in form and substance
satisfactory to the Administrative Agent, regarding the funding of certain
retained claims which are property of PSC and its Canadian Subsidiaries.
(u) Excess Proceeds Account. 75% of all amounts deposited in the
Excess Proceeds Account shall have been delivered to the Term Lenders or as
they direct, which amounts shall reduce dollar-for-dollar the initial
principal amount of the Term Loans and the remaining 25% of such proceeds
shall have been released to the Borrower.
(v) UK Sale. The Administrative Agent shall have received evidence
satisfactory to it that all the conditions precedent to the sale of the
shares of ▇▇▇▇▇▇ Services (Europe) Limited other than the Plan Effective
Date, have been satisfied.
(w) Exit Facility. There shall be no default or event of default under
the Exit Facility.
(x) Backstopping Letters of Credit. The Existing Letters of Credit
shall have been backstopped by letters of credit issued under the Exit
Facility in a manner satisfactory to the respective issuer thereof which
shall be in form and substance satisfactory to the issuers of the Existing
Letters of Credit.
Section 4. Representations, Warranties and Agreements. In order to
induce the Lenders to enter into this Agreement, the Borrower makes the
following representations and warranties to the Lenders which shall be true,
correct, and complete, in all material respects, as of the Closing Date (except
to the extent that such representations and warranties relate solely to an
earlier date) and such representations and warranties shall survive the
execution and delivery of this Agreement and the Notes.
4.01 No Encumbrances. Each Obligor has good and indefeasible title to
its Collateral, free and clear of Liens except for Permitted Liens.
4.02 Equipment. Except for immaterial amounts of idle Equipment, all
of the Equipment is used or held for use in the Obligors' business and is fit
for such purposes.
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4.03 Location of Inventory and Equipment. Except for railcars, other
rolling stock, registered motor vehicles, aircraft, vessels, and immaterial
(less than $10,000,000 in market value as reasonably determined by the
Collateral Agent) amounts of Inventory and other Equipment (i) no Inventory or
Equipment is stored with a bailee, warehouseman, or similar party and (ii) no
Inventory or Equipment is located at any location other than the locations
identified on Schedule VI.
4.04 Inventory Records. The Obligors, taken as a whole, keep records
that are accurate, in all material respects, and that itemize and describe the
type and quantity of its Inventory held for sale and its cost therefor.
4.05 Location of Chief Executive Office; FEIN. The chief executive
office of each of the Obligors is located at the address indicated in Schedule
VII and the Borrower's and each US Subsidiary Guarantor's FEIN is identified in
Schedule VII.
4.06 Due Organization and Qualification; Subsidiaries. (a) Each
Obligor (except for Oneida Asbestos Removal Inc.) is duly organized and existing
and in good standing under the laws of the jurisdiction of its organization and
qualified to do business in any state where the failure to be so qualified
reasonably could be expected to have a Material Adverse Change.
(b) Set forth on Schedule VIII, is a complete and accurate description
of the authorized capital Stock of the Borrower, by class, and a description of
the number of shares of each such class that are issued and outstanding. Other
than as described on Schedule VIII, and other than the conversion rights
applicable under the Unsecured Notes Documents entered into with respect to the
Unsecured Convertible Debt Indenture and the PIK Loans, there are no
subscriptions, options, warrants, or calls relating to any shares of the capital
Stock of the Borrower, including any right of conversion or exchange under any
outstanding security or other instrument. Except for any such obligations set
forth under this Agreement or under the Unsecured Notes Documents entered into
with respect to the Unsecured Convertible Debt Indenture, the Borrower is not
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital Stock or any security convertible
into or exchangeable for any of its capital Stock.
(c) Set forth on Schedule VIII, is a complete and accurate list of the
Borrower's direct and indirect Subsidiaries, showing: (i) the jurisdiction of
their incorporation; (ii) the number of shares of each class of common and
preferred Stock authorized for each of such Subsidiaries; and (iii) the number
and the percentage of the outstanding shares of each such class owned directly
or indirectly by the Borrower. All of the outstanding capital Stock of each such
Subsidiary has been validly issued and is fully paid and non-assessable.
(d) Except as set forth on Schedule VIII, no capital Stock (or any
securities, instruments, warrants, options, purchase rights, conversion or
exchange rights, calls, commitments or claims of any character convertible into
or exercisable for Stock) of any direct or indirect Subsidiary of the Borrower
is subject to the issuance of any security, instrument, warrant, option,
purchase right, conversion or exchange right, call, commitment or claim of any
right, title, or interest therein or thereto.
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4.07 Due Authorization; No Conflict. (a) The execution, delivery, and
performance by each Obligor of the Loan Documents to which it is a party have
been duly authorized by all necessary action on the part of such Obligor.
(b) The execution, delivery, and performance by each Obligor of the
Loan Documents to which it is a party do not and will not (i) violate any
provision of federal, state, or local law or regulation applicable to such
Obligor, the Governing Documents of such Obligor, or any order, judgment, or
decree of any court or other Governmental Authority binding on such Obligor,
(ii) conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation of
such Obligor except that the Borrower does not make the foregoing representation
and warranty as to whether the grant of Collateral Agents' Liens in and to any
Obligor's right, title, and interest in and to any agreement, instrument,
license, permit or other document or General Intangible conflicts with or
constitutes a default under such agreement, instrument, license, permit or other
document or General Intangible if and to the extent such agreement, instrument,
license, permit or other document or General Intangible purports to prohibit the
assignment thereof or grant of a security interest therein, (iii) result in or
require the creation or imposition of any Lien of any nature whatsoever upon any
properties or assets of such Obligor, other than Permitted Liens, or (iv) except
to the extent obtained as of the Closing Date, require any approval of
stockholders or any approval or consent of any Person under any material
contractual obligation of such Obligor.
(c) Other than the filing of financing statements, fixture filings,
Mortgages, filings under the PPSA, and filings necessary to perfect security
interests in aircraft, rail cars, vessels and certificated motor vehicles, the
execution, delivery, and performance by each Obligor of the Loan Documents to
which such Obligor is a party do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any
Governmental Authority or other Person.
(d) The Loan Documents to which each Obligor is a party, and all other
documents contemplated hereby and thereby, when executed and delivered by such
Obligor will be the legally valid and binding obligations of such Obligor,
enforceable against such Obligor in accordance with their respective terms,
except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors' rights generally.
(e) Except (x) to the extent expressly set forth in the Collateral
Documents and (y) that the Collateral may be subject to the security interests
evidenced by Permitted Liens relating thereto, the Collateral Agents' Liens
granted by the Obligors for the benefit of the Lenders in and to their
properties and assets pursuant to this Agreement and the other Loan Documents
create, as security for the Obligations purported to be secured thereby, a valid
and enforceable perfected security interest in, and Lien on, all the Collateral
subject thereto, superior to and prior to the rights of all third Persons other
than the holders of the Senior Liens and certain Permitted Liens that are
specifically identified on Schedule XXVI as being entitled to priority over the
Collateral Agents' Liens.
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4.08 Litigation. Other than those matters disclosed on Schedule IX,
there are no actions, suits, or proceedings pending or, to the best knowledge of
the Borrower and the US Subsidiary Guarantors, threatened against any Obligor,
except for matters that are fully covered by insurance (subject to customary
deductibles).
4.09 No Material Adverse Change. Attached hereto as Schedule IV is a
pro forma balance sheet of the Borrower and its Subsidiaries that is dated as of
the Closing Date, which was prepared based upon the most recent balance sheet of
the Borrower and its Subsidiaries available prior to the Closing Date, which was
prepared in accordance with GAAP (except for the omission of footnotes, and
certain reclassifications and interim period adjustments and accruals (all of
which are of a recurring nature and none of which individually, or in the
aggregate, would be material)) and presents fairly in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as of the
Closing Date.
4.10 Fraudulent Transfer. (a) The Obligors, taken as a whole, are
Solvent.
(b) No transfer of property is being made by an Obligor and no
obligation is being incurred by an Obligor in connection with the transactions
contemplated by this Agreement or the other Loan Documents with the intent to
hinder, delay, or defraud either present or future creditors of such Obligor.
4.11 Employee Benefits. Neither the Borrower nor any of its
Subsidiaries, or any of their ERISA Affiliates maintains or contributes or is
required to contribute to any Benefit Plan or any Multiemployer Plan, other than
those listed on Schedule X. As of the Closing Date, the Borrower, the US
Subsidiary Guarantors and each ERISA Affiliate have satisfied the minimum
funding standards of ERISA and the Code with respect to each Benefit Plan to
which it is obligated to contribute. Full payment has been made by the Borrower,
the US Subsidiary Guarantors or any of their ERISA Affiliates of all minimum
amounts which such entities are required to contribute under the terms of each
Plan and Multiemployer Plan except where the failure to so comply, taking all
instances in the aggregate, would not reasonably be expected to result in
liability in respect of such minimum amounts in excess of $35,000. No ERISA
Event has occurred nor has any other event occurred that may result in an ERISA
Event that reasonably could be expected to result in a Material Adverse Change.
Neither the Borrower nor any of its Subsidiaries, any ERISA Affiliate, or any
fiduciary of any Plan is subject to any direct or indirect liability with
respect to any Plan under any applicable law, treaty, rule, regulation, or
agreement.
4.12 Environmental Condition. Except as set forth on Schedule XI, to
the Borrower's knowledge, none of the Obligors' properties or assets has ever
been used by an Obligor or by previous owners or operators in the disposal of,
or to produce, store, handle, treat, release, or transport, any Hazardous
Materials, where such production, storage, handling, treatment, release or
transport was in violation of applicable Environmental Law in a manner that
reasonably is likely, individually or in the aggregate, to result in a Material
Adverse Change. Except as set forth on Schedule XII, to the Borrower's
knowledge, none of the Obligors' properties or assets has ever been designated
or identified in any manner pursuant to any environmental protection statute as
a Hazardous Materials disposal site (where the effect that reasonably
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could be expected to result from such designation or identification reasonably
could be expected to result in a Material Adverse Change), or as a candidate for
closure pursuant to any environmental protection statute. Except as set forth on
Schedule XIII, no Obligor has received notice that a Lien arising under any
Environmental Law has attached to any revenues or to any real or personal
property owned or operated by an Obligor. Except as set forth on Schedule XIV,
no Obligor has received a summons, citation, notice, or directive from the
Environmental Protection Agency or any other federal or state governmental
agency concerning any action or omission by such Obligor resulting in the
releasing or disposing of Hazardous Materials into the environment, other than
such summons, citations, notices, or directives that individually or in the
aggregate are not reasonably likely to result in a Material Adverse Change.
4.13 Intellectual Property. The Obligors, taken as a whole, own, or
hold adequate licenses or rights to use, all trademarks, trade names,
copyrights, patents, patent rights, and licenses that are necessary to the
conduct of their business, taken as a whole, as currently conducted. Attached
hereto as Schedule XV is a true, correct, and complete listing of all patents,
patent applications, trademarks, trademark applications, copyrights, and
copyright registrations as to which an Obligor is the owner or is an exclusive
licensee.
4.14 Leases. The Obligors, taken as a whole, enjoy peaceful and
undisturbed possession under all leases material to the business of the
Obligors, taken as a whole, and to which they are parties or under which they
are operating. All of such leases are valid and subsisting and no material
default by the Obligors exists under any of them.
4.15 DDAs. Set forth on Schedule XVI are all of the Obligors' current
DDAs, including, with respect to each depository (i) the name and address of
that depository; and (ii) the account number(s) of the account(s) maintained
with such depository.
4.16 Owned Real Property and Material Leases. Schedule XVIII is a
listing of all Real Property that is either (a) owned in fee by the Obligors, or
(b) leased by the Obligors and identified by the Obligors as being material to
the business of the Obligors taken as a whole.
4.17 Complete Disclosure. All factual information (taken as a whole)
furnished by or on behalf of the Obligors in writing to the Administrative Agent
or any Lender (including all information contained in the Schedules hereto or in
the other Loan Documents) for purposes of or in connection with this Agreement,
the other Loan Documents or any transaction contemplated herein or therein is,
and all other such factual information (taken as a whole) hereafter furnished by
or on behalf of the Obligors in writing to the Administrative Agent or any
Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances
under which such information was provided.
4.18 Indebtedness. Set forth on Schedule III is a true and complete
list of all (a) Indebtedness of the Obligors outstanding immediately prior to
the Closing Date that is to remain outstanding after the Closing Date, and (b)
agreements existing immediately prior to the Closing Date that are to remain
outstanding after the Closing Date pursuant to which the
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Obligors are entitled to incur Indebtedness, in each case showing the aggregate
principal amount thereof and the name of the Obligor which directly or
indirectly is obligated on account of such Indebtedness (collectively, the
"Existing Indebtedness").
4.19 Project Accounts. Set forth on Schedule XIX is a true and
complete list of all Project Accounts.
4.20 Directors' Compensation. Set forth on Schedule XX is a
description of the annual fee or per-meeting fees to be paid to directors by
each Obligor for the current fiscal year.
4.21 Rights Agreement. Exhibit M is a true, correct and complete copy
of the executed Rights Agreement, and the Rights Agreement has not been amended,
supplemented or modified in any way, and remains in full force and effect.
Section 5. Affirmative Covenants. The Borrower covenants and agrees
that, unless the Required Lenders otherwise consent, on and after the Closing
Date and until the Term Loans, the PIK Loans, the Term Notes and the PIK Notes,
together with interest, fees and all other Obligations incurred hereunder and
thereunder, are paid in full, the Borrower shall do, and unless the context
otherwise requires, shall cause each Obligor to do, all of the following:
5.01 Accounting System. Maintain a system of accounting that enables
the Borrower to produce consolidated financial statements in accordance with
GAAP and maintain records pertaining to the Collateral that contain information
as from time to time reasonably may be requested by the Administrative Agent.
The Obligors taken as a whole also shall keep an inventory reporting system that
shows all additions, sales, claims, returns, and allowances with respect to the
Inventory.
5.02 Financial Statements, Reports, Certificates. Deliver to the
Administrative Agent, with sufficient copies for each Lender of the following
documents (or, with the consent of the Administrative Agent, the electronic
equivalent of such documents) (it being understood that, absent request by the
Administrative Agent for information with respect to a particular Obligor, this
covenant shall be deemed satisfied to the extent that the Borrower provides the
following information for the Obligors taken as a whole):
(a) as soon as available, but in any event within 45 days after the
end of each month during each of the Borrower's fiscal years,
(i) a company prepared consolidated balance sheet, statement of
earnings, and statement of cash flow covering the Borrower's and its
Subsidiaries operations during such period,
(ii) a certificate signed by the chief financial officer of the
Borrower on behalf of the Borrower to the effect that:
(A) the financial statements delivered hereunder have been
prepared in accordance with GAAP (except for the lack of
footnotes and
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being subject to year-end audit adjustments) and present fairly
in all material respects the financial condition of the Borrower
and its Subsidiaries,
(B) there does not exist any condition or event that
constitutes a Default or Event of Default (or, to the extent of
any non-compliance, describing such non-compliance as to which he
or she may have knowledge and what action the applicable Obligor
has taken, is taking, or proposes to take with respect thereto),
(iii) for each month that is the date on which a financial
covenant in Section 6.17 is to be tested, a Compliance Certificate
demonstrating in reasonable detail, compliance at the end of such
period with the applicable financial covenants contained in Section
6.17, and
(iv) for each month that ends immediately prior to a Cash Flow
Payment Date, a calculation of the payment required to be made by the
Borrower on such Cash Flow Payment Date.
(b) as soon as available, but in any event within 120 days after the
end of each of the Borrower's fiscal years that occurs after the Closing
Date.
(i) consolidated financial statements of the Borrower and its
Subsidiaries for each such fiscal year, audited by
PriceWaterhouseCoopers or other independent certified public
accountants reasonably acceptable to the Administrative Agent and
certified, without any qualifications, by such accountants to have
been prepared in accordance with GAAP (such audited financial
statements to include a balance sheet, statement of earnings, and
statement of cash flow and, if prepared, such accountants' letter to
management),
(ii) a certificate of such accountants addressed to the
Administrative Agent and the Lenders stating that such accountants do
not have knowledge of the existence of any Default or Event of Default
under Section 6.17,
(c) if and when filed by the Borrower,
(i) 10-Q quarterly reports, Form 10-K annual reports, and Form
8-K current reports,
(ii) any other filings made by the Borrower with the SEC, and
(iii) any other information that is provided by the Borrower to
its shareholders generally,
(d) upon the request of the Administrative Agent,
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(i) any other report reasonably requested relating to the financial
condition of the Borrower or any of the other Obligors.
In addition to the financial statements referred to above, the Borrower and
the US Subsidiary Guarantors agree to deliver promptly to the Administrative
Agent (with copies (or, with the consent of the Administrative Agent, the
electronic equivalent thereof) for each Lender) copies of management reports, in
the form historically prepared by the Borrower, that reflect the operational
performance of each of the individual business segments of the Borrower and the
US Subsidiary Guarantors taken as a whole. Without limiting the foregoing, the
Borrower and the US Subsidiary Guarantors agree (unless and until the UK Metals
Operations have been sold) that each of the financial statements to be delivered
hereunder shall be prepared on a consolidated basis reflecting the financial
performance of the Borrower and its Subsidiaries (exclusive of the financial
performance of the UK Metals Operations) and reflecting the UK Metals
Operations. The Borrower and the US Subsidiary Guarantors agree that their
independent certified public accountants are authorized to communicate with the
Administrative Agent and to release to the Administrative Agent whatever
financial information concerning the Obligors that the Administrative Agent
reasonably may request; provided, however, that, prior to contacting such
independent certified public accountants, the Administrative Agent shall
attempt, in good faith, to obtain such information from the Borrower and the US
Subsidiary Guarantors.
5.03 Tax Returns. Upon the request of the Administrative Agent, deliver
copies of all federal income tax returns as soon as the same are available and
in any event no later than 45 days after the same are required to be filed by
law (after giving effect to any applicable duly filed extensions).
5.04 Certificates of Title. Upon the Collateral Agent's request, promptly
deliver to the Collateral Agents, properly endorsed, any and all certificates of
title to any items of Equipment.
5.05 Maintenance of Equipment. Maintain the Equipment in good operating
condition and repair (ordinary wear and tear excepted), and make all necessary
replacements thereto so that the value and operating efficiency thereof shall at
all times be maintained and preserved, except where the Borrower and the US
Subsidiary Guarantors determine that to do so would not be economic and where
the failure to do so is not reasonably likely to result in a Material Adverse
Change. Other than those items of Equipment that constitute fixtures on the
Closing Date, each Obligor shall use its commercially reasonable efforts to
prevent any item of Equipment from becoming a fixture to real estate (other than
Real Property Collateral) or an accession to other property, and such Equipment
shall at all times remain personal property.
5.06 Taxes. Cause all assessments and taxes, whether real, personal, or
otherwise, due or payable by, or imposed, levied, or assessed against any
Obligor or any of its property to be paid in full, before delinquency or before
the expiration of any extension period, except to the extent that the validity
of such assessment or tax shall be the subject of a Permitted Protest. The
Obligors will make timely payment or deposit of all tax payments and withholding
taxes required of it by applicable laws, including those laws concerning
F.I.C.A., F.U.T.A., state
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disability, and local, state, and federal income taxes, and will, upon request,
furnish the Administrative Agent with proof satisfactory to the Administrative
Agent indicating that each Obligor has made such payments or deposits. Upon the
request of the Administrative Agent, each Obligor shall deliver satisfactory
evidence of payment of applicable excise taxes in each jurisdiction in which (a)
such Obligor conducts business or is required to pay any such excise tax, (b)
where such Obligor's failure to pay any such applicable excise tax would result
in a Lien on the properties or assets of such Obligor, or (c) where such
Obligor's failure to pay any such applicable excise tax would constitute a
Material Adverse Change. The foregoing notwithstanding, Obligors may have at any
one time outstanding: (i) an amount of $500,000 in unpaid and delinquent taxes
and assessments (exclusive of those subject to Permitted Protests); plus (ii)
delinquent taxes owing by BEC/▇▇▇▇▇▇ in the approximate amount of $338,000 owing
to Jefferson County, Alabama; plus (iii) provincial sales taxes in arrears in
the approximate amount of $305,000 as identified on that certain document
labeled as "Receiver's Reserve Estimate" (collectively, "Permitted Delinquent
Taxes"), Obligors shall use their commercially reasonable efforts to promptly
discharge and pay the Permitted Delinquent Taxes.
5.07 Insurance. (a) At the Obligors' expense, maintain insurance respecting
the Collateral, wherever located, and with respect to the Obligors' business,
covering loss or damage by fire, theft, explosion, and all other hazards and
risks as ordinarily are insured against by other Persons engaged in the same or
similar businesses. The Obligors also shall maintain business interruption,
public liability, and product liability insurance, as well as insurance against
larceny, embezzlement, and criminal misappropriation All such policies of
insurance shall be in such amounts and with such insurance companies as are
reasonably satisfactory to the Administrative Agent. The Obligors shall deliver
copies of all such policies to the Administrative Agent with 438 BFU lender's
loss payable endorsements or other reasonably satisfactory lender's loss payable
endorsements, naming (i) prior to Termination of the Exit Facility, such Person
as is required under the Collateral Agency and Intercreditor Agreement, and (ii)
thereafter, the Collateral Agents, as loss payee, or additional insured, as
appropriate. Each policy of insurance or endorsement shall contain a clause
requiring the insurer to give not less than 30 days' prior written notice to the
Administrative Agent in the event of cancellation of the policy for any reason
whatsoever. If the Obligors fail to provide and pay for such insurance, the
Administrative Agent may, at its option, but shall not be required to, procure
the same and charge the Borrower therefor.
(b) At the Obligors' expense, obtain and maintain (i) insurance of the type
necessary to insure the Collateral and all improvements to the Real Property,
for the full replacement cost thereof, against any loss by fire, lightning,
windstorm, hail, explosion, aircraft, smoke damage, vehicle damage, earthquakes,
and other risks from time to time included under "extended coverage" policies,
in such amounts as the Administrative Agent may require, but in any event in
amounts sufficient to prevent the Obligors from becoming a co-insurer under such
policies; (ii) combined single limit bodily injury insurance against any loss,
liability, or damages per occurrence in an amount not less than that
historically maintained by the Obligors; and (iii) insurance for such other
risks as the Administrative Agent may require in its Permitted Discretion.
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(c) The Obligors shall give the Administrative Agent prompt notice of any
material loss covered by such insurance. Prior to the Termination of the Exit
Facility, losses payable under any such insurance policies shall be adjusted as
provided in the Exit Facility, and thereafter, the Administrative Agent shall
have the exclusive right to adjust any losses payable under any such insurance
policies, without any liability to the Obligors whatsoever in respect of such
adjustments; provided, however, so long as no Event of Default exists, the
Obligors shall have the right to adjust any losses payable under any such
insurance policies involving amounts less than $5,000,000.
(d) Neither the Borrower nor any US Subsidiary Guarantor will take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained under this Section 5.07, unless the Collateral
Agents as required by Section 5.07(a) are included thereon as named insured with
the loss payable to the Collateral Agents under a standard 438BFU endorsement or
its equivalent. The Borrower or the applicable US Subsidiary Guarantor
immediately shall notify the Administrative Agent whenever such separate
insurance is taken out, specifying the insurer thereunder and full particulars
as to the policies evidencing the same, and copies of such policies immediately
shall be provided to the Administrative Agent.
5.08 Location of Inventory and Equipment. Keep the Inventory and Equipment
(other than railcars, other rolling stock, registered motor vehicles, aircraft,
vessels and immaterial (less than $10,000,000 in market value as reasonably
determined by the Collateral Agent) amounts of Inventory and other Equipment) at
no locations other than those identified on Schedule VI; provided, however, that
Borrower may amend Schedule VI so long as such amendment occurs by written
notice to the Collateral Agent not less than 30 days prior to the date on which
the Inventory or Equipment is moved to such new location, so long as such new
location is within the continental United States or Canada, and so long as, at
the time of such written notification, the applicable Obligor provides any
financing statements, fixture filings, or other filings necessary to perfect and
continue perfected the Collateral Agents' Liens on such assets.
5.09 Employee Benefits. (a) Cause to be delivered to the Administrative
Agent, each of the following: (i) promptly, and in any event within 10 Business
Days after the Borrower, any US Subsidiary Guarantor or any of its ERISA
Affiliates knows or has reason to know that an ERISA Event has occurred that
reasonably could be expected to result in a Material Adverse Change, a written
statement of the chief financial officer of the Borrower or such US Subsidiary
Guarantor describing such ERISA Event and any action that is being taking with
respect thereto by the Borrower or such US Subsidiary Guarantor, or ERISA
Affiliate, and any action taken or threatened by the IRS, Department of Labor,
or PBGC. The Borrower, such US Subsidiary Guarantor or such ERISA Affiliate, as
applicable, shall be deemed to know all facts known by the administrator of any
Benefit Plan of which it is the plan sponsor, (ii) promptly, and in any event
within 3 Business Days after the filing thereof with the IRS, a copy of each
funding waiver request filed with respect to any Benefit Plan and all
communications received by the Borrower or any US Subsidiary Guarantor, any of
its Subsidiaries or, to the knowledge of the Borrower, or any US Subsidiary
Guarantor, any ERISA Affiliate with respect to such request, and (iii) promptly,
and in any event within 3 Business Days after receipt by the Borrower or any of
its Subsidiaries, or, to the knowledge of the Borrower or any ERISA Affiliate,
of the PBGC's
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intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice.
(b) Cause to be delivered to the Administrative Agent, upon the
Administrative Agent's request, each of the following: (i) a copy of each Plan
(or, where any such plan is not in writing, complete description thereof) (and
if applicable, related trust agreements or other funding instruments) and all
amendments thereto, all written interpretations thereof and written descriptions
thereof that have been distributed to employees or former employees of the
Borrower or the applicable US Subsidiary Guarantor or its ERISA Affiliates; (ii)
the most recent determination letter issued by the IRS with respect to each
Benefit Plan and each other plan intended to be qualified under Section 401(a)
of the Code; (iii) for the three most recent plan years, annual reports on Form
5500 Series required to be filed with any governmental agency for each Benefit
Plan; (iv) all actuarial reports prepared for the last three plan years for each
Benefit Plan; (v) a listing of all Multiemployer Plans, with the aggregate
amount of the most recent annual contributions required to be made by the
Borrower or the applicable US Subsidiary Guarantor or any ERISA Affiliate to
each such plan and copies of the collective bargaining agreements requiring such
contributions; (vi) any information that has been provided to Borrower or such
US Subsidiary Guarantor or any ERISA Affiliate regarding withdrawal liability
under any Multiemployer Plan; and (vii) the aggregate amount of the most recent
annual payments made to former employees of the Borrower or the applicable US
Subsidiary Guarantor or its Subsidiaries under any Retiree Health Plan.
5.10 Compliance with Laws. Comply with the requirements of all applicable
laws, rules, regulations, and orders of any Governmental Authority, including
the Fair Labor Standards Act and the Americans With Disabilities Act, other than
laws, rules, regulations, and orders the non-compliance with which, individually
or in the aggregate, would not result in and reasonably could not be expected to
result in a Material Adverse Change.
5.11 Leases. Pay when due all rents and other amounts payable under any
leases to which each Obligor is a party or by which an Obligor's properties and
assets are bound, unless such payments are the subject of a Permitted Protest.
5.12 Projections. Not later than 30 days after the end of each fiscal year
of the Borrower, commencing with fiscal year 2001, deliver to the Administrative
Agent Projections, in form and substance (including as to scope and underlying
assumptions) satisfactory to the Administrative Agent, in its Permitted
Discretion, for the forthcoming 2 years, year by year, and for the forthcoming
fiscal year, month by month, certified by the chief financial officer of the
Borrower as being such officer's good faith estimate of the financial
performance of the Obligors projected to be achieved during the period covered
thereby. The foregoing to the contrary notwithstanding, (a) projections in the
form of the projections delivered to the Borrower prior to the Closing Date
shall be presumed to be in form acceptable to the Administrative Agent, and (b)
the Administrative Agent may not deem projections to be unsatisfactory to it
solely because it is not satisfied with the financial condition or prospects of
the Borrower and its Subsidiaries as described in such projections.
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5.13 Corporate Existence, etc. Other than as may be affected by the
consummation of Permitted Transactions, at all times preserve and keep in full
force and effect each Obligor's valid corporate existence and good standing and
any rights and franchises material to the Obligors' businesses.
5.14 Disclosure Updates. Promptly and in no event later than 5 Business
Days after an officer of the Borrower obtains knowledge thereof, (i) notify the
Administrative Agent if any written information, exhibit, or report furnished to
the Lenders contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, and (ii) correct any
defect or error that may be discovered therein or in any Loan Document or in the
execution, acknowledgment, filing, or recordation thereof.
5.15 Publication of Notice of the Effective Date of the Reorganization
Plan. No later than five Business Days after the Effective Date of the
Reorganization Plan, publish notice of the occurrence of the Effective Date of
the Reorganization Plan as required by paragraph 25 of the Confirmation Order.
5.16 PSC Common Stock. The PSC Common Stock issuable upon the conversion of
the PIK Loans (i) has been set aside, reserved and allotted for issuance, (ii)
has been authorized for issuance to the holders of the PIK Loans from time to
time and (iii) upon issuance in accordance with the terms of the PIK Loans,
shall be validly issued as fully paid and non-assessable. At all times that any
Principal Amount remains outstanding under any PIK Loan, the Borrower shall use
its best efforts to ensure that (i) the PSC Common Stock is listed and posted
for trading on a national securities exchange registered under the Securities
Exchange Act of 1934, as amended (a "National Securities Exchange") or the
Nasdaq Stock Market ("Nasdaq"), (ii) the Borrower, from and after the Closing
Date, will be and thereafter remain a reporting company under the Securities
Exchange Act of 1934, as amended, and in each jurisdiction in which it is a
reporting issuer, will remain a reporting issuer in good standing under all
other Applicable Securities Legislation, and, in each case, shall timely make
all filings thereunder, (iii) the PSC Common Stock to be issued on conversion of
any PIK Loan will be Freely Tradeable, and (iv) at the relevant times and on
exercise of the relevant conversion rights, promptly, diligently and in good
faith comply and take all measures and actions necessary to comply at all times
with Section 1.07.
5.17 Further Assurances. Whenever and so often as reasonably requested by
the Administrative Agent, the Borrower shall, and shall cause each of its
Subsidiary Guarantors to promptly execute and deliver or cause to be executed
and delivered all such other and further instruments, documents or assurances,
and promptly do or cause to be done all such other and further things as may be
necessary and reasonably required in order to further and more fully vest in the
Collateral Agents, the Administrative Agent and the Lenders all rights,
interests, powers, benefits, privileges and advantages conferred or intended to
be conferred by this Agreement and the other Loan Documents.
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5.18 Right to Inspect. The Administrative Agent (through any of its
respective officers, employees, or agents) shall have the right, from time to
time hereafter to inspect the Books and to check, test, and appraise the
Collateral in order to verify Borrower's or any US Subsidiary Guarantor's
financial condition or the amount, quality, value, condition of, or any other
matter relating to, the Collateral.
5.19 Control Agreements. The Borrower shall not and shall not permit the US
Subsidiary Guarantors to transfer assets out of any Securities Accounts other
than as permitted under Section 6.18 and, if to another securities intermediary,
unless each of the Borrower and the applicable US Subsidiary Guarantors,
Collateral Agents, and the substitute securities intermediary has entered into a
Control Agreement. No arrangement contemplated hereby or by any Control
Agreement in respect of any Securities Accounts or other investment property
shall be modified by the Borrower or any US Subsidiary Guarantor without the
prior written consent of the Collateral Agent.
5.20 Payment of Prepetition Expenses. The Borrower shall and shall cause
each of its Subsidiaries, to pay (i) all reasonable out-of-pocket costs and
expenses of the Pre-Petition Lenders (including without limitation, reasonable
legal fees and disbursements) that have arisen in connection with the rights and
obligations of the Pre-Petition Lenders incurred by the Pre-Petition Lenders
prior to the Closing Date and (ii) all obligations of the Borrower and its
Subsidiaries with respect to the funding and sharing of certain claims as
described in the Cost Sharing Agreement.
5.21 Existing Letters of Credit. The Borrower will use its reasonable best
efforts to negotiate with the beneficiaries of any existing letters of credit
listed on Schedule XXX for the replacement of such existing letters of credit,
whether or not such existing letters of credit have been backstopped by a letter
of credit issued under the Exit Facility.
5.22 Omitted Good Standing Certificates. The Borrower will use its
commercially reasonable efforts to obtain good standing qualifications and
certificates of good standing for Oneida Asbestos Removal Inc. in its
jurisdiction of organization and in the jurisdiction of its Chief Executive
Office. Promptly upon such entity receiving notice that such entity is in good
standing in its jurisdiction of incorporation, but in no event later than ten
Business Days after an officer of such entity obtains knowledge thereof, the
Borrower shall cause Oneida Asbestos Removal Inc. to ratify its, as the case may
be, execution, delivery and performance of this Agreement and all other Loan
Documents by documentation acceptable to the Administrative Agent.
Section 6. Negative Covenants. The Borrower agrees that, unless the
Required Lenders otherwise consent, on and after the Closing Date and until all
Term Loans, all PIK Loans, the Term Notes and the PIK Notes, together with
interest, fees and all other Obligations incurred hereunder and thereunder, are
paid in full, the Borrower shall not do, and unless the context otherwise
requires, shall not permit any Obligor to do any of the following:
6.01 Indebtedness. Create, incur, assume, permit, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any
Indebtedness, except:
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(a) Indebtedness evidenced by this Agreement and the other Loan Documents;
(b) Indebtedness set forth on Schedule III;
(c) (i) Purchase Money Indebtedness having a principal amount of $100,000
or greater per holder of such Indebtedness, which such Indebtedness exists as of
the Closing Date and is described on Schedule XXI, (ii) Purchase Money
Indebtedness having a principal amount less than the amount set forth in clause
(i) above per holder of such Indebtedness, which such Indebtedness exists as of
the Closing Date, and (iii) Purchase Money Indebtedness incurred after the
Closing Date in an aggregate amount outstanding at any one time not to exceed
(y) $25,000,000, minus (z) the amount of Indebtedness outstanding under clauses
(i) and (ii) of this subsection (collectively, "Permitted Purchase Money
Indebtedness");
(d) (i) $190,000,000 in principal amount (plus the amount of accrued
interest and including any letters of credit issued under the Exit Facility) of
Indebtedness created under the Exit Facility and (ii) Indebtedness pursuant to
reimbursement obligations under letters of credit that are backstopped or
indemnified under the Exit Facility.
(e) Indebtedness created under the PIK Unsecured Debt Indenture in a
principal amount equal to $48,000,000 (plus the amount of (i) unpaid interest,
fees and costs accrued thereunder and (ii) accrued interest paid in kind);
(f) $18,000,000 in principal amount of Indebtedness issued under the
Unsecured Convertible Debt Indenture (plus the amount of accrued and unpaid
interest);
(g) refinancings, renewals, replacements or extensions of Indebtedness
permitted under clauses (b), (c), (d), (e), and (f) of this Section 6.01 (and
continuance, replacement or renewal of any Permitted Liens associated therewith)
so long as: (i) the terms and conditions of such refinancings, renewals,
replacements or extensions do not materially impair the prospects of repayment
of the Obligations by the Borrower, (ii) the net cash proceeds of such
refinancings, renewals, replacements or extensions do not result in an increase
in the aggregate principal amount of the Indebtedness so refinanced, renewed,
replaced or extended, (iii) such refinancings, renewals, replacements or
extensions do not result in a shortening of the average weighted maturity of the
Indebtedness so refinanced, renewed, replaced or extended, (iv) to the extent
that Indebtedness that is refinanced, renewed, replaced or extended was
subordinated in right of payment to the Obligations, then the terms and
conditions of the refinancing, renewal, replacement or extension Indebtedness
must (x) provide for (i) an interest rate equal to or lower than the interest
rate of the Indebtedness so refinanced, renewed, replaced or extended and (ii)
for the option to make payments-in-kind to the extent such option existed under
the Indebtedness so refinanced, renewed, replaced or extended and (y) must
provide for subordination provisions at least as favorable to the Lenders as
those applicable to the refinanced, renewed, replaced or extended Indebtedness,
and (v) such refinancing, renewal, replacement or extension shall not obligate
any Obligor which was
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not previously obligated with respect to the Indebtedness that is the subject of
such refinancing, renewal, replacement or extension;
(h) Indebtedness owed (i) by the Borrower to any Subsidiary Guarantor, (ii)
by any Wholly-Owned Subsidiary Guarantor to the Borrower, or (iii) by any
Wholly-Owned Subsidiary Guarantor to any other Wholly-Owned Subsidiary
Guarantor;
(i) Indebtedness necessary to comply with the Obligors' bonding
requirements, as approved from time to time, by the Required Lenders;
(j) guaranties permitted by Section 6.06 hereof; or
(k) Indebtedness not covered by subclause (a) through (j) of this Section
6.01 in an aggregate amount not to exceed $5,000,000 per year.
6.02 Liens. Create, incur, assume, or permit to exist, directly or
indirectly, any Lien on or with respect to any of its property or assets, of any
kind, whether now owned or hereafter acquired, or any income or profits
therefrom, except for Permitted Liens (including Liens that are replacements of
Permitted Liens to the extent that the original Indebtedness is refinanced,
renewed, replaced or extended under Section 6.01(g) and so long as the
replacement Liens only encumber those assets or property that secured the
original Indebtedness).
6.03 Restrictions on Fundamental Changes. Except for the consummation of
the Canadian Transactions, except for Permitted Transactions and Permitted
Dispositions,
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock.
(b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or
dissolution).
(c) Convey, sell, assign, lease, transfer, or otherwise dispose of, in one
transaction or a series of transactions, all or any substantial part of its
property or assets, provided, that nothing contained in this Agreement shall be
construed to restrict or limit any offering, issuance, or sale by the Borrower,
in one or more transactions, public or private, of its Stock (including any
concomitant increase in the number of authorized shares of Stock of the Borrower
or in the authorized share capital of the Borrower), so long as such offerings,
issuances, and sales are made in compliance with all applicable laws and
regulations.
6.04 Disposal of Assets. Sell, lease, assign, transfer, or otherwise
dispose of any of the Obligors' properties or assets, other than pursuant to
Permitted Dispositions, the Canadian Transactions and Permitted Transactions.
6.05 Change Name. Except for the consummation of the Canadian Transactions,
and Permitted Transactions, change any Obligor's name, FEIN, corporate structure
(within the
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meaning of Section 9-402(7) of the Code), or identity, or add any new fictitious
name, except that any Obligor may do so upon at least 30 days prior written
notice to the Collateral Agent of such change and so long as, at the time of
such written notification, such Obligor provides any financing statements or
fixture filings necessary to perfect and continue perfected Collateral Agents'
Liens in the Collateral.
6.06 Guarantee. Guarantee or otherwise become in any way liable with
respect to the obligations of any Person other than:
(a) guaranties by one Obligor of the Obligations of another Obligor;
(b) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, guaranties entered into by an Obligor of
the obligations of a Subsidiary of the Borrower that is not an Obligor in an
amount per year not to exceed in the aggregate, for all such guaranties made
during such year the result per year of (i) $10,000,000 minus (ii) the aggregate
amount of Permitted Investments that were made during such year pursuant to
clause (c) of the definition of Permitted Investment as of the date of
determination);
(c) guaranties existing as of the Closing Date and described on Schedule
XXI hereto and extensions or renewals of such guaranties, so long as the
principal amount of the obligations guaranteed is not increased beyond the
principal amount of the applicable guaranty as of the date of such extension or
renewal ; or
(d) endorsement of instruments or items of payment for deposit to the
account of an Obligor or which are transmitted or turned over to the Collateral
Agent.
6.07 Nature of Business. Make any material change in the principal nature
of the Obligors' business, taken as a whole.
6.08 Prepayments and Amendments. (a) Except in connection with a
refinancing permitted by Section 6.01(g) or as provided in subsection (c) below,
and other than with respect to Indebtedness permitted under Section 6.01 (d) or
(h), prepay, redeem, retire, defease, purchase, or otherwise acquire any
Indebtedness owing to any Person, other than the Obligations in accordance with
this Agreement.
(b) Except in connection with a refinancing permitted by Section 6.01(g),
directly or indirectly, amend, modify, alter, increase, or change any of the
terms or conditions of any agreement, instrument, document, indenture, or other
writing evidencing or concerning Indebtedness permitted under Sections 6.01(b),
(c), (e), or (f) in any manner that is or reasonably could be expected to be
materially adverse to the Obligors or to the interests of the Lenders or that
materially impairs the prospects of timely repayment of the Obligations.
(c) Amend, supplement, or modify any Unsecured Notes Document or repay the
principal of, or make any other payment in relation to, the Indebtedness
governed by the Unsecured Notes Documents; provided, so long as no Event of
Default has occurred and is
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continuing or would result therefrom, the foregoing shall not prohibit (i) the
repayment of all or a portion of the Unsecured Notes, including Deferred Period
Interest as defined therein upon the occurrence of a "Change of Control" as
provided in the Unsecured Notes Documents as in effect on the Closing Date (ii)
the payment of regularly scheduled payments of interest on the Indebtedness
governed by the Unsecured Notes Documents; provided, however, that the Obligors
shall not pay any interest in cash that they have the contractual right to pay
in kind, and (iii) the repayment of all or a portion of the Unsecured Notes with
the proceeds of any refinancings thereof (provided that such refinancing
Indebtedness complies with the requirements of Section 6.01(g)).
6.09 Consignments. Consign any Inventory or sell any Inventory on ▇▇▇▇ and
hold, sale or return, sale on approval, or other conditional terms of sale, or,
except in connection with the businesses of brokering or entering into tolling
agreements regarding scrap metal, have possession of any property on consignment
to an Obligor.
6.10 Distributions. Other than distributions or declaration and payment of
dividends by an Obligor to the Borrower or a Wholly-Owned Obligor, make any
distribution or declare or pay any dividends (in cash or other property, other
than Stock) on, or purchase, acquire, redeem, or retire any of any Obligor's
Stock, of any class, whether now or hereafter outstanding.
6.11 Accounting Methods. Modify or change its method of accounting (other
than as may be required to conform to GAAP). The Borrower and each US Subsidiary
Guarantor waives the right to assert a confidential relationship, if any, it may
have with any accounting firm or service bureau in connection with any
information requested by the Administrative Agent pursuant to or in accordance
with this Agreement, and agrees that the Administrative Agent may contact
directly any such accounting firm or service bureau in order to obtain such
information; provided, however, that prior to contacting such accounting firm or
service bureau, the Administrative Agent shall attempt in good faith, to obtain
such information from the Borrower and the US Subsidiary Guarantors.
6.12 Investments. Except for Permitted Investments and Permitted
Acquisitions, directly or indirectly make, acquire, or incur any liabilities
(including contingent obligations) for or in connection with any Investment.
6.13 Transactions with Affiliates. Except as set forth on Schedule XXII
directly or indirectly enter into or permit to exist any material transaction
with any Affiliate of any Obligor except for transactions between Obligors
(other than Obligors that are neither the Borrower, a US Subsidiary Guarantor,
nor a Canadian Subsidiary Guarantor) and except for transactions that are in the
ordinary course of such Obligor's business, upon fair and reasonable terms, that
are fully disclosed to the Administrative Agent, and that are no less favorable
to such Obligor than would be obtained in an arm's length transaction with a
non-Affiliate.
6.14 Suspension. Permit the Obligors, taken as a whole, to suspend or go
out of a substantial portion of its business.
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6.15 Directors' Compensation. Increase the annual fee or per-meeting fees
paid to directors of any Obligor during any year by more than 15% over the prior
year.
6.16 Change in Location of Chief Executive Office; Inventory and Equipment
with Bailees. Relocate its chief executive office to a new location without
providing 30 days prior written notification thereof to the Collateral Agent and
the Administrative Agent and so long as, at the time of such written
notification, such Obligor provides any financing statements or fixture filings
necessary to perfect and continue perfected the Collateral Agents' Liens. Except
for immaterial (less than $10,000,000 in market value as reasonably determined
by the Collateral Agent) amounts of Inventory and Equipment that is stored with
a bailee, warehouseman, or similar party in the ordinary course of business, no
Inventory or Equipment shall at any time now or hereafter be stored with a
bailee, warehouseman, or similar party without the Collateral Agent's prior
written consent.
6.17 Financial Covenants. Fail to maintain:
(a) EBITDA. EBITDA of the Borrower and its Subsidiaries (exclusive however
of all results of operation (including EBITDA) attributable to the UK Metals
Operations), on a consolidated basis, for the trailing period ended as of the
end of the applicable Fiscal Quarter set forth below, of at least the amount
corresponding thereto:
Fiscal Quarter Ending Minimum EBITDA
--------------------- --------------
for the 3 months ended March 31, 2000 $3,000,000
for the 6 months ended June 30, 2000 $7,500,000
for the 9 months ended September 30, 2000 $20,000,000
for the 12 months ended December 31, 2000 $38,000,000
for the 12 months ended March 31, 2001 $58,500,000
for the 12 months ended June 30, 2001 $71,550,000
for the 12 months ended September 30, 2001 $80,100,000
for the 12 months ended December 31, 2001, $86,400,000
and for the 12 months ended as of the end of
each Fiscal Quarter thereafter
(b) Interest Coverage Ratio. An Interest Coverage Ratio for the Borrower
and its Subsidiaries (exclusive, however, of all results of operation (including
EBITDA and Cash Interest Expense) attributable to the UK Metals Operations) on a
consolidated basis, for the trailing period ended as of the end of the
applicable Fiscal Quarter set forth below, of at least the amount corresponding
thereto:
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Fiscal Quarter Ending Minimum Interest Coverage Ratio
------------------------------------ -------------------------------
for the 3 months ended March 31, 2000 0.35:1.00
for the 6 months ended June 30, 2000 0.50:1.00
for the 9 months ended September 0.90:1.00
30, 2000
for the 12 months ended December 1.25:1.00
31, 2000
for the 12 months ended March 31, 2001 1.80:1.00
for the 12 months ended June 30, 2001 2.16:1.00
for the 12 months ended September 30, 2001 2.25:1.00
for the 12 months ended December 2.25:1.00
31, 2001, and for the 12 months ended
as of the end of each Fiscal Quarter thereafter
(c) Capital Expenditures. (i) For the period commencing on the Closing Date
through and including, the last day of the eighth Post Plan Implementation
Fiscal Quarter, make capital expenditures in the aggregate, in any fiscal year
in excess of $85,000,000 (which amount shall include all expenditures made in
connection with any Permitted Acquisition), and (ii) for the period from and
including the first day of the ninth Post Plan Implementation Fiscal Quarter to
and including the last day of the twentieth Post Plan Implementation Fiscal
Quarter, make capital expenditures in the aggregate, in any fiscal year in
excess of $95,000,000 (which amount shall include all expenditures made in
connection with any Permitted Acquisition).
6.18 Securities Accounts. No Obligor shall establish or maintain any
Securities Account unless the Collateral Agents shall have received a Control
Agreement, duly executed and in full force and effect, in respect of such
Securities Account. Each Obligor agrees that it will not transfer assets out of
any Securities Accounts; provided, however, that, so long as no Event of Default
has occurred and is continuing or would result therefrom, such Obligor may use
such assets to the extent permitted by this Agreement.
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6.19 ERISA Concerns. Neither the Borrower, nor any US Subsidiary Guarantor
shall directly or indirectly:
(a) engage, or permit any Subsidiary of the Borrower or any US Subsidiary
Guarantor to engage, in any prohibited transaction which is reasonably likely to
result in a civil penalty or excise tax described in Sections 406 of ERISA or
4975 of the Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the Department of Labor;
(b) permit to exist with respect to any Benefit Plan any accumulated
funding deficiency (as defined in Sections 302 of ERISA and 412 of the Code),
whether or not waived;
(c) fail, or permit any of its ERISA Affiliates to fail, to pay timely
required contributions or annual installments due with respect to any waived
funding deficiency to any Benefit Plan;
(d) terminate, or permit any of its ERISA Affiliates to terminate, any
Benefit Plan where such event would result in any liability of the Borrower or
such US Subsidiary Guarantor, any of its Subsidiaries or any ERISA Affiliate
under Title IV of ERISA;
(e) fail, or permit any of its ERISA Affiliates to fail, to make any
required contribution or payment to any Multiemployer Plan;
(f) fail, or permit any of its ERISA Affiliates to fail, to pay any
required installment or any other payment required under Section 412 of the Code
on or before the due date for such installment or other payment;
(g) amend, or permit any of its ERISA Affiliates to amend, a Plan resulting
in an increase in current liability for the plan year such that either of
Borrower, any Subsidiary of Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the Code; or
(h) withdraw, or permit any of its ERISA Affiliates to withdraw, from any
Multiemployer Plan where such withdrawal is reasonably likely to result in any
liability of any such entity under Title IV of ERISA;
which, individually or in the aggregate, results in or reasonably would be
expected to result in a claim against or liability of the Borrower or any US
Subsidiary Guarantor, any of its Subsidiaries or any ERISA Affiliate in excess
of $5,000,000.
Section 7. Events of Default. Upon the occurrence and during the
continuation of any of the following specified events (each an "Event of
Default"):
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7.01 Payments. If any Obligor fails to pay when due and payable, or when
declared due and payable, (i) any portion of principal due the Lenders hereunder
or (ii) any portion of the Obligations (other than principal), including fees
and charges due the Lenders hereunder, reimbursement of expenses required to be
paid hereunder, interest (including any interest which, but for the provisions
of the Bankruptcy Code, would have accrued on such amounts), and other amounts
constituting Obligations, and such failure is not cured within 5 Business Days
after the date on which the Administrative Agent notifies the Borrower of such
failure;
7.02 Covenants. If any Obligor fails or neglects to (a) perform, keep, or
observe any covenant or other provision contained in Sections 5.02, 5.04, 5.05,
5.08, 5.10 and 5.11 hereof and such failure or neglect continues for a period of
30 days after the date on which such failure or neglect first occurs, or (b)
perform, keep, or observe any covenant or other provision contained in any
Section of this Agreement (other than a Section that is expressly dealt with
elsewhere in this Section 7) or the other Loan Documents (other than a Section
of such other Loan Documents expressly dealt with elsewhere in this Section 7)
and such failure or neglect is not cured within 30 days after the date on which
the Administrative Agent notifies the Borrower of such failure or neglect, or
(c) perform, keep, or observe any covenant or other provision contained in
Sections 1, 5 (other than a subsection of Section 1 or 5 that is dealt with
elsewhere in this Section 7) and 6 of this Agreement or any comparable provision
contained in any of the other Loan Documents;
7.03 Collateral. If any portion of an Obligor's property or assets with a
value greater than $5,000,000 individually or in the aggregate, is attached,
seized, subjected to a writ or distress warrant, or is levied upon, or comes
into the possession of any third Person and the same is not discharged before
the earlier of 30 days after the date it first arises or 5 days prior to the
date on which such property or asset is subject to forfeiture by such Obligor;
7.04 Bankruptcy. (a) If an Insolvency Proceeding is commenced by any
Obligor;
(b) If an Insolvency Proceeding is commenced against Obligor and any of the
following events occur: (i) any such Obligor consents to the institution of the
Insolvency Proceeding against it; (ii) the petition commencing the Insolvency
Proceeding is not timely controverted; (iii) the petition commencing the
Insolvency Proceeding is not dismissed within 45 calendar days of the date of
the filing thereof; provided, however, that, during the pendency of such period,
each Lender shall be relieved of its obligation to extend credit hereunder; (iv)
an interim trustee is appointed to take possession of all or a substantial
portion of the properties or assets of, or to operate all or any substantial
portion of the business of, such Obligor; or (v) an order for relief shall have
been issued or entered therein;
(c) If any one or more of the Obligors is enjoined, restrained, or in any
way prevented by court order from continuing to conduct all or any material part
of the business affairs of the Obligors taken as a whole;
7.05 Lien. (a) If a notice of Lien, levy, or assessment is filed of record
with respect to any Obligor's properties or assets by the United States
Government, or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time hereafter to
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any one or more of such entities becomes a Lien, whether ▇▇▇▇▇▇ or otherwise,
upon any Obligor's properties or assets and the same is not paid on the payment
date thereof, or (b) if notices of Lien, levy, or assessment in an aggregate
amount in excess of $5,000,000 are filed of record with respect to any Obligor's
properties or assets by any state, county, municipal, or governmental agency, or
if any taxes or debts owing at any time hereafter to any one or more of such
entities becomes a Lien exceeding the foregoing aggregate limitation, whether
▇▇▇▇▇▇ or otherwise, upon any Obligor's properties or assets and the same is not
paid on the payment date thereof;
7.06 Judgments. If one or more judgments or other claims involving an
aggregate amount of $5,000,000, or more, in excess of the amount covered by
insurance, becomes a Lien or encumbrance upon any material portion of any
Obligor's assets and the same is not released, discharged, bonded against, or
stayed pending appeal before the earlier of 30 days after the date it first
arises or 5 days prior to the date on which such asset is subject to being
forfeited by such Obligor;
7.07 Default Under Other Agreements. (a) If there is a default in the Exit
Facility and such default (i) derives from the Borrower's failure to pay its
obligations thereunder at final maturity, (ii) results in the acceleration of
the maturity of the obligations thereunder, or (iii) results in the termination
of the commitments under the Exit Facility and the Exit Loans under such
commitments are therefore due and payable (other than as a result of a
refinancing, modification, replacement or renewal of the Exit Loans);
(b) If there is a default in any agreement to which an Obligor is a party
under which Indebtedness (other than as provided in Section 7.07(a)) of such
Obligor involving not less than $5,000,000 is owing and such default (i) occurs
at the final maturity of the obligations thereunder, or (ii) results in a right
of the holder of such Indebtedness, irrespective of whether exercised, to
accelerate the maturity of such Obligor's obligations thereunder and such
default is not cured or waived prior to the date that is the earlier of (y) the
date that is 15 days after the date on which such default first occurred, and
(z) the date on which such Obligor's obligations thereunder are accelerated, or
(iii) results in the termination of such agreement;
(c) If there is a default by an Obligor with respect to any performance or
payment bond having a face amount of not less than $5,000,000 and such default
(i) occurs at the final maturity of the obligations thereunder, or (ii) results
in a right of the issuer of such performance or payment bond, irrespective of
whether exercised, to accelerate the maturity of such Obligor's obligations
thereunder;
7.08 Payment of Indebtedness. If any Obligor makes any payment on account
of Indebtedness that has been contractually subordinated in right of payment to
the payment of the Obligations, except to the extent such payment is permitted
by the terms hereof and by the terms of the subordination provisions applicable
to such Indebtedness.
7.09 Representation. If any material misstatement or misrepresentation
exists now or hereafter in any warranty, representation, statement, or report
made to the Lenders by any Obligor or any officer, employee, agent, or director
of any Obligor in any Record furnished in
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compliance with this Agreement or any other Loan Document or otherwise furnished
in connection with the transactions contemplated by this Agreement or any other
Loan Document; or
7.10 Subsidiary Guaranty. If the obligation of any Subsidiary Guarantor
under its guaranty under any Loan Document is limited or terminated by operation
of law or by such Subsidiary Guarantor thereunder;
the Required Lenders (at their election but without notice of their election and
without demand) may, except to the extent otherwise expressly provided or
required below, authorize and instruct the Administrative Agent to do any one or
more of the following on behalf of the Lenders (and the Administrative Agent,
acting upon the instructions of the Required Lenders, shall do the same on
behalf of the Lenders), all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this Agreement, by any of
the other Loan Documents, or otherwise, immediately due and payable;
(b) Terminate this Agreement and any of the other Loan Documents as to any
future liability or obligation of the Lenders, but without affecting Collateral
Agents' Liens in the Collateral and without affecting the Obligations;
(c) Without notice to or demand upon any Obligor, make such payments and do
such acts as the Administrative Agent considers necessary or reasonable to
protect the Collateral Agents' Liens in and to the Collateral;
(d) Hold, as cash collateral, any and all balances and deposits of Borrower
held by the Lenders to secure the full and final repayment of all of the
Obligations; or
(e) (i) Prior to the Termination of the Exit Facility, exercise any and all
other rights and remedies available to it at law or in equity or pursuant to any
other Loan Documents except to the extent restricted by the provisions of the
Collateral Agency and Intercreditor Agreement and (ii) after the Termination of
the Exit Facility, exercise any and all other rights and remedies available to
it at law or in equity or pursuant to any other Loan Documents.
The rights and remedies of the Lenders under this Agreement, the other Loan
Documents, and all other agreements shall be cumulative. The Lenders shall have
all other rights and remedies not inconsistent herewith as provided under the
UCC, by law, or in equity. No exercise by the Lenders of one right or remedy
shall be deemed an election, and no waiver by the Lenders of any Event of
Default shall be deemed a continuing waiver. No delay by the Lenders shall
constitute a waiver, election, or acquiescence by any of them.
Section 8. Definitions.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
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"Accounting Change" shall have the meaning provided in Section 10.07.
"Accounts" shall mean all of the Obligors' "accounts" (as that term is
defined in the UCC), and any and all credit insurance, guaranties, or security
therefor.
"Accreted Interest" with respect to any PIK Loan, shall have the meaning
specified in Section 1.03(2)(b).
"Accreted Interest Amounts" shall have the meaning provided in Section
1.03(2)(b).
"Acquisition" shall mean any purchase or other acquisition, by the Borrower
or a Subsidiary Guarantor, of the assets of any other Person other than the
purchase of Inventory or Equipment in the ordinary course of business.
"Act" shall have the meaning provided in Section 1.07(b)(iii).
"Administrative Agent" shall have the meaning set forth in the preamble to
this Agreement.
"Affiliate" shall mean as applied to any Person, any other Person who,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of Stock, by contract, or
otherwise; provided, however, that, in any event: (a) any Person which owns
directly or indirectly ten percent (10%) or more of the securities having
ordinary voting power for the election of directors or other members of the
governing body of a Person or ten percent (10%) or more of the partnership or
other ownership interests of a Person (other than as a limited partner of such
Person) shall be deemed to control such Person; (b) each director or officer of
a Person shall be deemed to be an Affiliate of such Person; and (c) each
partnership or joint venture in which a Person is a partner or joint venturer
shall be deemed to be an Affiliate of such Person.
"Agreement" shall mean this Credit Agreement, as modified, supplemented or
amended from time to time.
"AIG Liens" shall mean the liens granted by the Obligors to the American
Insurance Group in connection with the insurance financing provided to the
Borrower.
"Applicable Securities Legislation" shall mean applicable securities laws,
rules, statutes, regulations, treaties, orders, judgments and decrees and all
official directives, rules, guidelines, orders, policies and other requirements
of the United States of America and any Governmental Authority (whether or not
having the force of law) in each of the Provinces of Canada.
"Approved Fixed Obligation Arrangements" shall mean those arrangements
described on Schedule XXIV.
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"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement in the form of Exhibit K hereto appropriately completed.
"Bankruptcy Cases" shall have the meaning provided in the recitals to this
Agreement.
"Benefit Plan" shall mean a "defined benefit plan" (as defined in Section
3(35) of ERISA) that is subject to Title IV of ERISA and for which the Borrower
or any US Subsidiary Guarantor or ERISA Affiliate of such Borrower is an
"employer" (as defined in Section 3(5) of ERISA).
"Board of Directors" means the Board of Directors of an Obligor or any
committee thereof duly authorized to act on behalf of the Board of Directors.
"Bonding Lien Intercreditor Agreement" means that certain Intercreditor
Agreement by and among the Collateral Agents and the agent for bonding creditors
of the Obligors.
"Books" means all of each Obligor's books and records (including all of its
records indicating, summarizing, or evidencing its assets (including the
Collateral) or liabilities, all of its information relating to its business
operations or financial condition, and all of its computer programs, disks,
files, printouts, runs, or other computer prepared information).
"Borrower" shall have the meaning set forth in the preamble of this
Agreement.
"Borrower's Obligations" shall mean the principal of and interest on each
of the Notes issued under this Agreement, and all other obligations and
indebtedness (including, without limitation, indemnities, fees, costs and
interest thereon) of the Borrower, now existing or hereafter incurred under,
arising out of or in connection with this Agreement and the other Loan Documents
and the due performance and compliance with the terms of this Agreement and the
other Loan Documents by the Borrower.
"BTCo" shall have the meaning provided in the first paragraph of this
Agreement.
"Business Day" shall mean for all purposes, any day except Saturday, Sunday
and any day which shall be in New York City a legal holiday or a day on which
banking institutions are authorized by law or other government action to close.
"Canadian Cases" shall have the meaning provided in the recitals to this
Agreement.
"Canadian Confirmation Order" means, collectively, the orders of the
Canadian Bankruptcy Court pursuant to which the Canadian Transactions were
sanctioned and approved dated November 26, 1999, and March 8, 2000, copies of
which are attached hereto as Exhibit F-2.
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"Canadian Court" shall mean the Ontario Superior Court of Justice.
"Canadian Debtors" means PSC and those of its Subsidiaries that commenced
proceedings in the Canadian Court under the CCAA.
"Canadian Dollars" shall mean freely transferable lawful money of Canada
(expressed in dollars).
"Canadian Guarantors" shall mean (a) PSI, (b) PAS, (c) Nortru, Ltd., an
Ontario corporation, (d) Allies Staffing Ltd., an Ontario corporation, (e)
ServTech Canada Inc., an Ontario corporation, (f) ▇▇▇▇▇▇ Investment Corp., an
Ontario corporation, (g) Recyclage d' Aluminium Quebec Inc., a Canadian
corporation, and (h) ST Delta Canada, Inc., an Ontario corporation.
"Canadian Orders" shall have the meaning provided in Section 3.01(f).
"Canadian Reorganization Plan" shall mean the plan approved and sanctioned
by the Canadian Court.
"Canadian Security Agreement" shall have the meaning provided in Section
3.01(n).
"Canadian Security Documents" means the Canadian Security Agreement, the
Hypothec, and such other instruments, agreements, and documents governed by the
laws of Canada or any political subdivision thereof, as the Exit Agent or its
Canadian counsel reasonably may require to secure the whole or any part of the
Obligations as guaranteed by the Canadian Guarantors.
"Canadian Subsidiary" shall mean all direct and indirect Subsidiaries of
the Borrower incorporated in Canada or any province or territory thereof.
"Canadian Subsidiary Guaranty" shall mean that certain guaranty executed
and delivered by the Canadian Guarantors in favor of the Administrative Agent,
for the benefit of the Lenders in the form of Exhibit H-2 and, after execution
and delivery thereof, as modified, supplemented or amended from time to time.
"Canadian Transaction" shall mean the series of transactions pursuant to
which certain assets of the Canadian Debtors are transferred as going concerns
to PSI, PAS, and PSII.
"Canadian Vesting Order" shall mean the order of the Canadian Bankruptcy
Court made on January 7, 2000, pursuant to which title to the assets to be
transferred pursuant to the Canadian Transactions is to be vested in the
Subsidiary Guarantors free and clear of certain Liens or other claims, a copy of
which is attached hereto as Exhibit F-2.
"Capital Lease" shall mean a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
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"Capital Reorganization" shall have the meaning provided in Section
1.07(d)(iv).
"Capital Reserve Account" shall mean an account established and maintained
by the Borrower with the Administrative Agent for the purpose of accumulating
and holding cash reserves to meet future capital expenditure requirements of the
Obligors.
"Capitalized Lease Obligations" shall mean any Indebtedness represented by
obligations under a Capital Lease.
"Cash Collateral Order" shall mean that certain Amended Final Stipulation
and Order Authorizing and Restricting Use of Cash Collateral and Granting
Adequate Protection of Certain Secured Claims of the US Bankruptcy Court, dated
as of July 29, 1999.
"Cash Equivalents" shall mean, (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or the government of
Canada or issued by any agency or instrumentality of either of them and backed
by the full faith and credit of the United States or the government of Canada,
in each case maturing within one (1) year from the date of acquisition thereof;
(b) marketable direct obligations issued by any state of the United States of
America or any province of Canada or any political subdivision of any such state
or province or any public instrumentality thereof maturing within one (1) year
from the date of acquisition thereof and, at the time of acquisition, having the
highest rating obtainable from either S&P or ▇▇▇▇▇'▇ or an equivalent rating
from Canadian Bond Rating Service Inc. or Dominion Bond Rating Service Limited;
(c) commercial paper maturing no more than one (1) year from the date of
acquisition thereof and, at the time of acquisition, having a rating of A-2 or
P-2, or better, from S&P or ▇▇▇▇▇'▇ or an equivalent rating from Canadian Bond
Rating Service Inc. or Dominion Bond Rating Service Limited; (d) certificates of
deposit or bankers' acceptances maturing within one (1) year from the date of
acquisition thereof either (i) issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
under the laws of the government of Canada, or any province thereof, which bank
has a rating of A or A2, or better, from S&P or ▇▇▇▇▇'▇ or an equivalent rating
from Canadian Bond Rating Service Inc. or Dominion Bond Rating Service Limited,
or (ii) certificates of deposit less than or equal to $100,000 in the aggregate
issued by any other bank insured by the Federal Deposit Insurance Corporation.
"Cash Flow Additional Interest" shall have the meaning provided in Section
2.03(A)(c)(vi).
"Cash Flow Available for Debt Service" shall mean with respect to any
period, that amount, if any, which is a positive number and which is equal to:
(a) Net Income for such period plus, to the extent deducted in arriving at
Net Income for such period, (i) Depreciation Expenses for such period, (ii)
interest paid-in-kind for such period relating to the PIK Loans and the
Indebtedness under the PIK Unsecured Debt Indenture and (iii) Deferred Income
Tax Expenses for such period
less
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(b) the sum of (i) the proceeds of any dispositions made by the Obligors to
the extent that the same were included in the calculation of Net Income for such
period, (ii) Permitted Capital Expenditures on account of such period (less the
amount of commitments for Permitted Capital Expenditures deducted under clause
(iv) during the preceding period in the calculation of Cash Flow Available for
Debt Service), (iii) Fixed Obligation Debt Service Requirements during such
period and (iv) the amount of unexpended commitments made for future Permitted
Capital Expenditures, which will be made in compliance with this Agreement.
"Cash Flow Payment" shall have the meaning provided in Section
2.03(A)(c)(iii).
"Cash Flow Payment Date" shall mean the First Annual Cash Flow Payment
Date, the Second Annual Cash Flow Payment Date and the Quarterly Cash Flow
Payment Dates and "Cash Flow Payment Date" shall mean any one of the Cash Flow
Payment Dates.
"Cash Interest Expense" means, with respect to any period of determination,
the consolidated interest expense of a Person accrued during such period as
determined in accordance with GAAP plus, without duplication, the fees for
letters of credit issued under the Exit Facility accrued thereunder during such
period, but excluding, to the extent included, without duplication, (a) non-cash
Interest Expense, (b) Exit Facility Fees, and (c) any other amounts (such as the
amortization of debt discount) that would be classified as Depreciation
Expenses.
"CCAA" shall have the meaning provided in the recitals to this Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as same may be amended from time to time.
"Chief Executive Office" shall mean where a Person is deemed located
pursuant to Section 9-103(3) of the Code.
"CIBC" shall have the meaning provided in the recitals to this Agreement.
"Closing Date" shall have the meaning provided in Section 3.01.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Personal Property Collateral and the
Real Property Collateral.
"Collateral Agency and Intercreditor Agreement" shall mean that certain
Collateral Agency and Intercreditor Agreement by and among Foothill, the
Borrower and the Subsidiaries of the Borrower identified on the signature pages
thereto, the Collateral Agents, the
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Exit Agent and the Administrative Agent, in form and substance satisfactory to
the Administrative Agent, as amended, restated or otherwise modified.
"Collateral Agents" shall mean (i) prior to the termination of the
Collateral Agency and Intercreditor Agreement, Foothill Capital Corporation in
its various capacities as collateral agents under the Collateral Agency and
Intercreditor Agreement, and any successor thereto and (ii) after the Collateral
Agency and Intercreditor Agreement has been terminated, the collateral agent or
collateral agents as designated by the Lenders pursuant to Section 9.01 hereof.
"Collateral Agents' Liens" shall mean (a) the Liens granted by Borrower to
Collateral Agents pursuant to the Security Agreement, the Stock Pledge
Agreement, the Copyright Security Agreement, the Rolling Stock Security
Agreement, the Patent Security Agreement, and the Trademark Security Agreement,
(b) the Liens granted by Subsidiary Guarantors to Collateral Agents pursuant to
the Canadian Security Agreement and the Guarantor Security Agreement, and (c)
the Liens granted by the Obligors to Collateral Agents pursuant to the
Mortgages.
"Collateral Documents" shall mean all contracts, instruments and other
documents now or hereafter executed and delivered by an Obligor in connection
with this Agreement, pursuant to which liens and security interests are granted
to the Collateral Agents in the Collateral for the benefit of the Lenders,
including, without limitation, the Stock Pledge Agreement, the Security
Agreement, the Canadian Security Agreement, the Copyright Security Agreement,
the Patent Security Agreement, the Trademark Security Agreement and the
Mortgages.
"Compliance Certificate" shall mean a certificate substantially in the form
of Exhibit L delivered by the chief financial officer of Borrower to the
Administrative Agent.
"Confidential Material" shall have the meaning provided in Section
10.13(a).
"Confidentiality Agreement" shall mean an agreement in the form of Exhibit
N hereto.
"Control Agreement" shall mean a control agreement, in form and substance
reasonably satisfactory to the Administrative Agent, between the Borrower, the
applicable US Subsidiary Guarantors, the Collateral Agents, and the applicable
securities intermediary with respect to the applicable Securities Account and
related Investment Property.
"Conversion Date" shall mean the date of receipt of the Notice of
Conversion of PIK Loans by the Borrower.
"Conversion Price" shall mean the price per share of PSC Common Stock at
which the Principal Amount of a PIK Loan shall from time to time be convertible
into PSC Common Stock in accordance with the provisions of Section 1.07.
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"Conversion Privilege" shall mean the right to convert any PIK Loan into
PSC Common Stock in accordance with the provisions of Section 1.07.
"Convertible Securities" shall mean a security of the Borrower (other than
PSC Common Stock) convertible into or exchangeable for PSC Common Stock.
"Copyright Security Agreement" shall have the meaning provided in Section
3.01(n).
"Cost Sharing Agreement" shall mean the agreement dated as of March 31,
2000 between CIBC, as administrative agent for the Pre-Petition Lenders and the
Borrower on behalf of itself and each of its Subsidiaries regarding the release
of cash collateral and the funding and sharing of certain claims which are
property retained by PSC and the Canadian Subsidiaries, as amended, restated or
otherwise modified from time to time.
"Credit Agreement Obligations" shall have the meaning provided in the
definition of Obligations.
"Current Market Price" of the PSC Common Stock on any date shall mean a
price per share equal to the weighted average price at which the PSC Common
Stock have traded on the New York Stock Exchange, or if the PSC Common Stock are
not then listed on the New York Stock Exchange, on such other National
Securities Exchanges on which such shares are listed as may be selected for such
purpose by the board of directors of the Borrower, or if not so listed on any
such National Securities Exchanges on the Nasdaq, or if not so listed on the
Nasdaq, on the Toronto Stock Exchange, or if not so listed on the Toronto Stock
Exchange on such other stock exchange or over the counter market as may be
selected by the board of directors of the Borrower for such purpose, during the
period of 20 consecutive Trading Days ending on the fifth Trading Day before
such date.
"DDA" shall mean any checking or other demand deposit account maintained by
the Borrower or the Subsidiary Guarantors.
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Deferred Income Tax Expense" shall mean, with respect to any period, the
aggregate of all deferred taxes on the income of the Obligors for such period
(net of any incentive tax credits or other similar credits) determined on a
consolidated basis in accordance with GAAP.
"Deferred Interest Amount" with respect to any Term Loan, shall have the
meaning provided in Section 1.03(1)(b)(x)(ii).
"Deferred Prepayment Amount" shall have the meaning provided in Section
2.03(A)(c)(vi).
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"Deferred Prepayment Interest" shall have the meaning provided in Section
2.03(A)(c)(vi).
"Demand Notes" shall mean each of the demand notes to be delivered by
certain of the Canadian Guarantors in favor of the Collateral Agents acting for
the PIK Lenders and the Term Lenders.
"Depreciation Expense" means, with respect to any period of determination,
the consolidated depreciation, amortization, and other similar reductions to
income of a Person for such period as determined in accordance with GAAP.
"DIP Credit Agreement" shall have the meaning provided in the recitals to
this Agreement.
"DIP Lenders" shall have the meaning provided in the recitals to this
Agreement.
"DIP Letters of Credit" shall mean the letters of credit and payment
obligations thereunder issued under the DIP Credit Agreement.
"Disposition" shall mean any sale, assignment, transfer, conveyance, lease,
license or other disposition of any nature or kind whatsoever of any property or
of any right, title or interest in or to any property.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend (including, without limitation, Dividends in the
Ordinary Course) or returned any equity capital to its stockholders or
authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
consideration any shares of any class of its capital stock outstanding on or
after the Closing Date (or any options or warrants issued by such Person with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock
of such Person outstanding on or after the Closing Date (or any options or
warrants issued by such Person with respect to its capital stock). Without
limiting the foregoing, "Dividends" with respect to any Person shall also
include all payments made or required to be made by such Person with respect to
any stock appreciation rights, plans, equity incentive or achievement plans or
any similar plans or setting aside of any funds for the foregoing purposes.
"Dividends in the Ordinary Course" shall mean Dividends paid on PSC Common
Stock in any fiscal year, whether in (i) cash, (ii) shares of the Borrower,
(iii) warrants or similar rights to purchase any shares of the Borrower or
property of the Borrower, or (iv) property of the Borrower, provided that the
value of such Dividends (any such shares, warrants or similar rights, or
property or other assets so distributed to be valued at their fair market value
as determined by the board of directors on the date of such distribution), does
not in such fiscal year exceed the greatest of:
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(a) 100% of the aggregate amount of Dividends paid by the Borrower on the
PSC Common Stock in the period of 36 consecutive months ended immediately prior
to the first day of such fiscal year; or
(b) 100% of EBITDA for the period of the 12 consecutive months ended
immediately prior to the first day of such fiscal year.
"Dollars" and the sign "$" shall each mean freely transferable lawful money
of the United States (expressed in dollars).
"EBITDA" shall mean, with respect to any fiscal period, the consolidated
net earnings (or loss) of the Borrower before Interest Expense, income taxes,
and Depreciation Expense for such period, as determined in accordance with GAAP
and excluding, to the extent included, without duplication (a) net of applicable
taxes, any loss or gain arising from the closure of businesses or locations, (b)
net of applicable taxes, any loss arising from the write-down of long-term
assets, (c) professional fees and other restructuring costs (including retention
payments) incurred in connection with the Bankruptcy Cases and the proceedings
before the Canadian Court and the closing of the transactions contemplated by
this Agreement, and (d) Exit Facility Fees including, without limitation, any
replacement facility fees.
"Eligible Transferee" shall mean and include a commercial bank, trust
company, insurance company, financial institution, any fund that invests solely
in bank loans and any other institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the US
Securities Act.
"Environmental Law" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on the Obligors,
relating to the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 USC. ss. 1251 et seq.; the Toxic Substances Control Act, 15 USC. ss.
2601 et seq.; the Clean Air Act, 42 USC. ss. 7401 et seq.; the Safe Drinking
Water Act, 42 USC. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. ss.
2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 USC. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49
USC. ss. 1801 et seq.; and the Occupational Safety and Health Act, 29 USC.
ss.651 et seq. (to the extent it regulates occupational exposure to Hazardous
Materials); any state and local or foreign counterparts or equivalents, in each
case as amended from time to time; and any similar statute, law, rule,
regulation, ordinance, code, binding and enforceable guideline, binding and
enforceable written policy or rule of common law now or hereafter in effect in
Canada and in each case as amended, or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment to the extent binding on the Borrower or the other Obligors.
"Equipment" shall mean all of the Obligors' present and hereafter acquired
machinery, machine tools, motors, equipment, furniture, furnishings, fixtures,
vehicles (including
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motor vehicles and trailers), tools, parts, goods (other than consumer goods,
farm products, or Inventory), wherever located, including all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended and any successor statute thereto.
"ERISA Affiliate" shall mean (a) any corporation whose employees are
treated as employed by the same employer as the employees of the Borrower or a
US Subsidiary Guarantor under Code Section 414(b), (b) any trade or business
subject to ERISA whose employees are treated as employed by the same employer as
the employees of the Borrower or a US Subsidiary Guarantor under Code Section
414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the
Code, any organization that is a member of an affiliated service group of which
the Borrower or a US Subsidiary Guarantor is a member under Code Section 414(m),
or (d) solely for purposes of Section 302 of ERISA and Section 412 of the Code,
any party that is a party to an arrangement with the Borrower or a US Subsidiary
Guarantor and whose employees are aggregated with the employees of the Borrower
or a US Subsidiary Guarantor under Code Section 414(o).
"ERISA Event" means (a) a Reportable Event with respect to any Benefit Plan
or Multiemployer Plan, (b) the withdrawal of the Borrower, any US Subsidiary
Guarantor or any of its ERISA Affiliates from a Benefit Plan during a plan year
in which it was a "substantial employer" (as defined in Section 4001(a)(2) of
ERISA), (c) the providing of notice of intent to terminate a Benefit Plan in a
distress termination (as described in Section 4041(c) or ERISA), (d) the
institution by the PBGC of proceedings to terminate a Benefit Plan or
Multiemployer Plan, (e) any event or condition (i) that provides a basis under
Section 4042(a)(1), (2), or (3) of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan or Multiemployer Plan,
or (ii) that may result in termination of a Multiemployer Plan pursuant to
Section 4041A of ERISA, (f) the partial or complete withdrawal within the
meaning of Sections 4203 and 4205 of ERISA, of the Borrower, any US Subsidiary
Guarantor, any of their ERISA Affiliates from a Multiemployer Plan, or (g)
providing any security to any Plan under Section 401(a)(29) of the Code by the
Borrower, any US Subsidiary Guarantor or any of its ERISA Affiliates or (h) the
termination, reorganization or insolvency of any Multiemployer Plan to which the
Borrower, any US Subsidiary Guarantor or any of its ERISA Affiliates is required
to contribute.
"Event of Default" shall have the meaning provided in Section 7.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excess Proceeds Account" shall have the meaning set forth in the Cash
Collateral Order.
"Existing Indebtedness" shall have the meaning provided in Section 4.18.
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"Existing Letters of Credit" shall mean the DIP Letters of Credit, the 1997
Letters of Credit and the Permitted LC Facility Letters of Credit, as listed on
Schedule XXX.
"Exit Agent" shall mean Foothill Capital Corporation or any successor
entity as the administrative agent under the Exit Facility (including any agent
under any amendment, restatement, other modification, refinancing, extension,
replacement, renewal or other restructuring of the Exit Facility).
"Exit Facility" shall mean the credit agreement dated the date hereof among
the Borrower, the US Subsidiary Guarantors, the Exit Agent and the Exit Lenders
(as amended, restated or otherwise modified, refinanced, replaced, renewed,
extended or otherwise restructured and whether by the same or any other agent,
lender or group of lenders).
"Exit Facility Fees" shall mean, as of any date of determination, (a) for
any fiscal period ended on or before the date that is the first anniversary of
the Closing Date, fees paid or payable on or prior to the Closing Date relative
to the execution and delivery of the Exit Facility and, without duplication,
fees paid or payable pursuant to Sections 2.12(b), (c) and (d) thereof during
such period, and any other similar fees payable under any modification,
refinancing, replacement or renewal of such Exit Facility and (b) for any fiscal
period ended after the date that is the date of the first anniversary of the
Closing Date, fees paid or payable pursuant to Sections 2.12(b), (c) and (d)
thereof during such period, and any other similar fees payable under any
modification, refinancing, replacement or renewal of such Exit Facility.
"Exit Lenders" shall mean the lenders party to the Exit Facility from time
to time.
"Exit Liens" shall mean the liens granted by the Obligors to the Exit
Lenders.
"Exit Loans" shall mean the loans made to, and the other extensions of
credit made for the benefit of, the Obligors under the Exit Facility.
"Fee Letter" shall mean the fee letter dated as of March 31, 2000 between
the Administrative Agent and the Borrower.
"Final Order" shall mean an order of the US Bankruptcy Court:
(a) as to which the time to appeal, petition for certiorari, or move for
reargument, rehearing or new trial has expired and as to which no appeal,
petition for certiorari, motion or other proceedings for reargument, rehearing
or new trial shall then be pending; or
(b) as to which any right to appeal, petition for certiorari, reargue,
rehear or retry shall have been waived by the Borrower in writing in form and
substance reasonably satisfactory to the Administrative Agent; or
(c) in the event that an appeal, writ of certiorari, or reargument or
rehearing or new trial has been sought, as to which
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(i) such order of the US Bankruptcy Court shall have been affirmed by the
highest court to which such order may be appealed, or
(ii) certiorari has been denied as to such order, or
(iii) reargument or rehearing or new trial from such order shall have been
denied,
and, in each case, the time to take any further appeal, petition for certiorari
or move for reargument, rehearing or new trial shall have expired.
"First Annual Cash Flow Payment Date" shall mean the 45th day of the fifth
Post Plan Implementation Fiscal Quarter.
"First Cash Flow Payment" shall have the meaning provided in Section
2.03(A)(c)(i).
"First Notional Cash Flow Difference Amount" shall have the meaning
provided in Section 2.03(A)(c)(ii).
"First Year Partial Interest Deferral Period" shall have the meaning
provided in Section 1.03(1)(b)(x).
"Fiscal Quarter" shall mean quarters of the Obligors being the periods of
(a) January, February and March, (b) April, May and June, (c) July, August and
September, and (d) October, November and December.
"Fixed Obligation Debt Service Requirement" shall mean, for any period, all
Cash Interest Expense paid, and all cash principal payments made, during such
period by the Obligors under Approved Fixed Obligation Arrangements.
"Foreign Asset Sales" shall mean any Disposition (other than the UK Sale)
by any Subsidiary of the Borrower that is neither an Obligor nor organized in
the United States (a "Non-Obligor Foreign Subsidiary") of any assets of such
Non-Obligor Foreign Subsidiary, but excluding (a) sales, exchanges, trade-ins,
or other dispositions of equipment that is substantially worn, damaged, or
obsolete in the ordinary course of a Non-Obligor Foreign Subsidiary's business,
(b) sales of inventory to Persons (including another Subsidiary) who are buyers
in the ordinary course of the selling a Non-Obligor Foreign Subsidiary's
business, (c) the use or transfer of money or cash equivalents by a Non-Obligor
Foreign Subsidiary, (d) the licensing or sub-licensing by any Non-Obligor
Foreign Subsidiary, on a non-exclusive basis, of patents, trademarks,
copyrights, and other intellectual property rights in the ordinary course of
such Non-Obligor Foreign Subsidiary's business, (e) discounts so long as no
Default or Event of Default has occurred and is continuing, without recourse and
in the ordinary course of business, of overdue Accounts arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof consistent with customary industry practice (and not as part of any bulk
sale or financing of receivables), (f) transfers of condemned property to the
respective
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Governmental Authority that has condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been subject
to a casualty to the respective insurer of such property as part of an insurance
settlement and (g) transfers or lease of assets by any Non-Obligor Foreign
Subsidiary to any Subsidiary of the Borrower.
"Foreign Subsidiary Proceeds" shall mean (i) the Net Cash Proceeds received
by an Obligor from Foreign Asset Sales by Non-Obligor Foreign Subsidiaries of
such Obligor (but only to the extent that payment of any such Net Cash Proceeds
as a dividend or other equity distribution directly or indirectly to an Obligor
would not be in violation of applicable law in effect at the relevant time or
the organizational documents of such Non-Obligor Foreign Subsidiary or any other
contract restricting the payment of such dividend or distribution in effect on
the date hereof), (ii) in each case reduced by the amount of any taxes based
upon income or earnings that would be incurred by non-Obligors, the Borrower or
any Subsidiary as a result of such Net Cash Proceeds being distributed or
dividended to the relevant Obligor, (iii) but only to the extent that the
aggregate amount of all such Net Cash Proceeds, as reduced by such tax
considerations, in any one year period exceeds $1,000,000.
"Freely Tradeable" shall mean, in respect of shares of PSC Common Stock,
that such shares can be traded by the holder thereof without any restriction
under Applicable Securities Legislation, such as hold periods, except in the
case of a sale (i) by an underwriter (as defined in Section 1145 of the
Bankruptcy Code) with respect to such shares or an affiliate (as defined in Rule
144 under the US Securities Act) of the Borrower or (ii) that constitutes a
distribution as defined in Section (c) of the definition of distribution in the
Securities Act (Ontario).
"Funding Agreement" shall have the meaning provided in Section 3.01(t).
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States, consistently applied.
"General Intangibles" shall mean all of the Obligors' general intangibles
and other personal property (including contract rights, rights to payment,
rights arising under common law, statutes, or regulations, choses or things in
action, goodwill, patents, trade names, trademarks, servicemarks, copyrights,
blueprints, drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, rights to payment and other rights under any
royalty or licensing agreements, infringement claims, computer programs,
information contained on computer disks or tapes, literature, reports, catalogs,
money, deposit accounts, insurance premium rebates, tax refunds, and tax refund
claims), other than goods, Accounts, Investment Property, and Negotiable
Collateral.
"Governing Documents" shall mean, with respect to any Person, the
certificate or articles of incorporation, by-laws, or other organizational
documents of such Person.
"Governmental Authority" shall mean any federal, state, local, or other
governmental or administrative body, instrumentality, department, or agency or
any court, tribunal,
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administrative hearing body, arbitration panel, commission, or other similar
dispute-resolving panel or body.
"Guarantor Security Agreement" shall have the meaning provided in Section
3.01(n).
"Hazardous Materials" shall mean (a) substances that are defined or listed
in, or otherwise classified pursuant to, any applicable laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
"Hypothec" means the security document executed by certain of the Canadian
Guarantors in favor of Collateral Agents, in form and substance (including being
governed by the laws of Quebec) satisfactory to the Administrative Agent, as
amended, restated, supplemented or otherwise modified from time to time.
"Indebtedness" shall mean, as to any Person and without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments and
all reimbursement or other obligations of such Person in respect of letters of
credit, bankers acceptances, interest rate swaps, or other financial products,
(c) all obligations of such Person under Capital Leases, (d) all obligations or
liabilities of the types described in clauses (a) through (c) above of others
secured by a Lien on any property or asset of such Person, irrespective of
whether such obligation or liability is assumed, and (e) any obligation of such
Person guaranteeing or intended to guarantee (whether guaranteed, endorsed,
co-made, discounted, or sold with recourse to such Person) any obligation or
liability of the types described in clauses (a) through (c) above of any other
Person; provided, however, that Indebtedness shall not include trade payables
and accrued expenses, in each case arising in the ordinary course of business or
any reimbursement obligations of such Person under any performance bond issued
for the account of such Person.
"Indemnified Amount" shall have the meaning provided in Section 10.01.
"Indemnitee" shall have the meaning provided in Section 10.01.
"Insolvency Proceeding" shall mean any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other
bankruptcy or insolvency law of any jurisdiction, assignments for the benefit of
creditors, formal or informal moratoria, compositions, extensions generally with
creditors, or proceedings seeking reorganization, arrangement, or other similar
relief.
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"Interest Coverage Ratio" shall mean, with respect to any period of
determination, the ratio of (i) EBITDA to (ii) Cash Interest Expense and Exit
Facility Fees for such period, all as determined in accordance with GAAP minus
any Cash Interest Expense paid with respect to the exercise of a change of
control put under the Unsecured Notes Documents.
"Interest Expense" shall mean, with respect to any period of determination,
the consolidated interest expense of a Person incurred during such period as
determined in accordance with GAAP plus, without duplication, the Letter of
Credit fees accrued under the Exit Facility during such period, but excluding,
to the extent included, without duplication, (a) Exit Facility Fees, and (b) any
other amounts incurred on account of money borrowed (such as the amortization of
debt discount) that would be classified as Depreciation Expenses.
"Interest Payment Date" shall mean the first Business Day of each Fiscal
Quarter commencing with the first Business Day after July 1, 2000.
"Inventory" shall mean all of the Obligors' inventory, including goods held
for sale or lease or to be furnished under a contract of service and all of the
Obligors' raw materials, work in process, finished goods, and all materials used
or consumed in the Obligors' business, wherever located.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person in the form of loans, guarantees, advances, or
capital contributions (excluding (a) commission, travel, and similar advances to
officers and employees of such Person made in the ordinary course of business,
and (b) bona fide accounts receivable arising from the sale of goods or services
in the ordinary course of business consistent with past practice), purchases or
other acquisitions for consideration of Indebtedness or Stock, and any other
items that are or would be classified as investments on a balance sheet prepared
in accordance with GAAP.
"Investment Property" shall mean all of the Obligors' "investment property"
as that term is defined in the UCC.
"Lender" shall have the meaning provided in the recitals to this Agreement.
"Lien" shall mean any interest in property securing an obligation owed to,
or a claim by, any Person other than the owner of the property, whether such
interest shall be based on the common law, statute, or contract, whether such
interest shall be recorded or perfected, and whether such interest shall be
contingent upon the occurrence of some future event or events or the existence
of some future circumstance or circumstances, including the lien or security
interest arising from a mortgage, deed of trust, encumbrance, pledge,
hypothecation, assignment, deposit arrangement, security agreement, conditional
sale or trust receipt, or from a lease, consignment, or bailment for security
purposes and also including reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title
exceptions and encumbrances affecting Real Property.
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"Loan Documents" shall mean this Agreement, the Subsidiary Guaranties, the
Security Documents, and any other agreement entered into, now or in the future,
by the Borrower and the Lenders in connection with this Agreement.
"Loans" shall mean the PIK Loans and the Term Loans and "Loan" shall mean
any one of the Loans.
"Material Adverse Change" shall mean (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of the Obligors (taken as a whole), (b) the
material impairment of the ability of the Obligors (taken as a whole) to perform
their obligations under the Loan Documents or of the Lenders' ability to enforce
the Obligations or realize upon a material portion of the Collateral, or (c) a
material impairment of the priority of the Liens of the applicable Collateral
Agents for the benefit of the PIK Lenders or the Term Lenders with respect to a
material portion of the Collateral as a result of an action or failure to act on
the part of any Obligor.
"Mortgage" shall have the meaning provided in Section 3.01(o).
"Multiemployer Plan" means a "Multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) to which the Borrower, any US Subsidiary Guarantor, or any
ERISA Affiliate is obligated to contribute.
"Nasdaq" shall have the meaning provided in Section 5.16.
"National Securities Exchange" shall have the meaning provided in Section
5.16.
"Negotiable Collateral" shall mean all of the Obligors' letters of credit,
notes, drafts, instruments, certificated securities, documents, and chattel
paper.
"Net Asset Sale Proceeds" means the gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) of asset sales of any Person, net only
of direct costs and expenses related to such sales (but excluding income taxes
or other taxes incurred as a result of such sale) and the payment of Other
Senior Indebtedness secured by such assets; provided that after Termination of
the Exit Facility, there shall be excluded from "Net Asset Sale Proceeds" up to
an aggregate amount of $500,000 in each fiscal year of proceeds from asset sales
for purposes of Section 2.03(A)(b).
"Net Income" shall mean, for any period, the net income (loss) of the
Obligors for such period, determined on a consolidated basis in accordance with
GAAP provided that, when used in the definition of Cash Flow Available for Debt
Service, "Net Income" shall mean the net income (loss) of the Obligors for such
period, determined on a consolidated basis in accordance with GAAP but
excluding, in each case, net of applicable taxes, (a) any gain or loss arising
from discontinued operation or from Disposition of any property (other than
sales of inventory in the ordinary course of business), (b) any gain or loss
arising from any write-up or write-down of any property, (c) any income or
losses of any other Person which has been acquired, or substantially
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all the assets of which have been acquired, by an Obligor in any manner to the
extent that such income or losses were realized by such other Person prior to
the effective date of such acquisition, (d) income or losses of any person which
is not an Obligor except to the extent of the amount of cash dividends or other
distributions actually received by the Obligors during such period, (e) income
of any Obligor (other than the Borrower) to the extent that the declaration or
payment of dividends or similar distributions by that Obligor of that income is
not at the time permitted by the terms of its corporate documents, by any
applicable law or by any contractual obligation of such Person, (f) the income
or losses of any Person which is not an Obligor to which assets of an Obligor
have been disposed of or into which an Obligor has merged or amalgamated, to the
extent that such income or losses arose prior to the date of such transaction,
and (g) to the extent not included in the foregoing clauses, any net
extraordinary, unusual or non recurring gains or non-cash extraordinary, unusual
or non-recurring losses.
"Net Sale Proceeds Repayment Amount" shall have the meaning provided in
Section 2.03(A)(b)(iii).
"1997 Credit Agreement" shall mean the meaning provided in the recitals to
this Agreement.
"1997 Letters of Credit" shall mean the letters of credit and all payment
obligations thereunder issued under the 1997 Credit Agreement.
"Non-Obligor Foreign Subsidiary" shall have the meaning provided in the
definition of "Foreign Asset Sales".
"Non-US Guarantor" shall mean each Canadian Subsidiary Guarantor and Arc
Dust Processing (Barbados) Limited, a Barbados corporation, and ▇▇▇▇▇▇
International Development Inc., a Barbados corporation.
"Notes" shall mean the Term Notes and the PIK Notes.
"Notice of Conversion of PIK Loans" shall have the meaning provided in
Section 1.07(b)(i).
"Notice Office" shall mean the office of the Administrative Agent, shown
opposite its name on the signature pages hereof, or such other office as the
Administrative Agent, may hereafter designate in writing as such to the other
parties hereto.
"Notional Cash Flow Difference Amounts" shall have the meaning provided in
Section 2.03(A)(c)(iv).
"Obligations" shall mean all amounts owing to the Administrative Agent, the
Collateral Agents or any Lender pursuant to the terms of this Agreement, any
other Loan Document, including, without limitation, (i) (x) with respect to the
Borrower, the Borrower's Obligations, and (y) with respect to each Obligor which
is a Subsidiary Guarantor, all obligations and indebtedness of such Subsidiary
Guarantor, now existing or hereinafter incurred under,
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arising out of or in connection with the Guaranty and the other Loan Documents
and the due performance and compliance with the terms of this Agreement and the
other Loan Documents by such Subsidiary Guarantor (all such obligations and
indebtedness under this clause (i) (including interest that, but for the
provisions of the Bankruptcy Code, would have accrued) being herein collectively
called the "Credit Agreement Obligations"), (ii) any and all sums advanced by
the Collateral Agents in order to preserve the Collateral or preserve their
security interest in the Collateral, and (iii) in the event of any proceeding
for the collection or enforcement of any indebtedness, obligations, or
liabilities of any Obligor referred to in clause (i), after an Event of Default
shall have occurred and be continuing, the reasonable expenses of re-taking,
holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the Collateral Agents of
their rights hereunder, together with reasonable attorneys' fees and court
costs.
"Obligors" shall mean, individually and collectively, the Borrower and the
Subsidiary Guarantors, and "Obligor" means any one of them.
"Offer" shall mean a Take-Over Bid made by an Offeror to purchase all PSC
Common Stock other than the Offeror's Existing Holdings, or any other
transaction which has the same effect (including any amalgamation, arrangement,
consolidation, merger or other transaction involving the Borrower, as a
consequence of which some or all of the PSC Common Stock outstanding immediately
prior to the transaction are exchanged for cash, securities or other property of
the Borrower or another Person) whereby the holders of outstanding PSC Common
Stock would be entitled, by reason of Applicable Securities Legislation or the
requirements of a stock exchange on which the PSC Common Stock are listed, to
tender any or all of their PSC Common Stock and receive cash or other securities
or property or a combination of cash or other securities or property.
"Offer to Acquire" shall include: (i) an offer to purchase, or a
solicitation of an offer to sell securities and (ii) an acceptance of an offer
to sell securities, whether or not such offer to sell has been solicited; or any
combination thereof, and the Person accepting an offer to sell shall be deemed
to be making an offer to acquire to the Person that made the offer to sell.
"Offeror" shall mean one or more Persons making an Offer.
"Offeror's Existing Holdings" shall mean, in connection with any Offer, all
PSC Common Stock which the Offeror, and each Person which is acting jointly or
in concert with such Offeror with respect to such Offer, Beneficially Own at the
time such Offer is made. A Person shall be deemed to "Beneficially Own":
(a) any securities as to which such Person or any of such Person's
Affiliates or Associates is the owner at law or equity;
(b) any securities as to which such Person or any of such Person's
Affiliates or Associates has:
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(i) the right to become the owner at law or in equity (whether such right
is exercisable immediately or after the lapse or passage of time and whether or
not on condition or the happening of any contingency or otherwise) pursuant to
any agreement, arrangement, pledge or understanding, whether or not in writing
(other than customary agreements with and between underwriters and/or banking
group members and/or selling group members with respect to a bona fide public
offering of securities in the ordinary course of business), or upon the exercise
of any conversion right, exchange rights, share purchase right (other than the
rights under any shareholder rights plan adopted by the Borrower), warrant or
option, or otherwise; or
(ii) the right to vote such securities (whether such right is exercisable
immediately or after the lapse or passage of time and whether or not on
condition or the happening of any contingency or otherwise) pursuant to any
agreement, arrangement, pledge (other than bona fide pledges of securities in
the ordinary course of business), or understanding (whether or not in writing)
or otherwise; and
(c) any securities that are Beneficially Owned within the meaning of
clauses (a) or (b) above by any other Person with which such Person is acting
jointly or in concert.
"Original Canadian Lender" shall mean each Lender party to this Agreement
on the Closing Date that is a resident of Canada within the meaning of the
Income Tax Act of Canada but only to the extent that such Original Canadian
Lender beneficially owns a Loan for its own account and shall not include any
portion of such Loan in which a participation has been granted under Section
10.04 hereof or otherwise.
"Other Senior Indebtedness" means indebtedness secured by the Collateral
that is secured by liens that are senior to the liens and security interests of
the Collateral Agents, other than indebtedness in respect of the Exit Facility.
"PAS" means ▇▇▇▇▇▇ Analytical Services, Inc., an Ontario corporation.
"Patent Security Agreement" shall have the meaning contained in Section
3.01(n).
"Payment Office" shall mean the office of the Administrative Agent located
at ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or such other office as
the Administrative Agent may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, as defined in
Title IV of ERISA, or any successor thereto.
"Permitted Acquisition" means an Acquisition by an Obligor of all or
substantially all of the assets of another Person (exclusive of any Stock issued
or owned by such Person) so long as (a) no Default or Event of Default shall
have occurred and be continuing or would result from the consummation of the
proposed Acquisition, (b) the assets being acquired
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are useful in the business of the Obligors as such business exists on the
Closing Date, (c) the Borrower and the Subsidiary Guarantors have complied with
their obligations under Section 5.17 hereof and under the Security Documents in
connection therewith, and (d) the total cash consideration paid in respect of
such Acquisition and all other Permitted Acquisitions does not exceed $5,000,000
per year during the period of time from and after the Closing Date.
"Permitted Capital Expenditures" shall mean, during any period, the amount
of capital expenditures of the Obligors paid in cash by the Obligors during such
period permitted to be made hereunder.
"Permitted Discretion" shall mean, with respect to any determination by the
Administrative Agent or a Lender, means a determination made in good faith and
in the exercise of reasonable business judgment.
"Permitted Dispositions" means (a) sales, exchanges, trade-ins, or other
dispositions of Equipment that is substantially worn, damaged, or obsolete in
the ordinary course of Obligors' business, (b) sales of Inventory to Persons
(including another Obligor) who are buyers in the ordinary course of the selling
Obligor's business, (c) the use or transfer of money or Cash Equivalents by
Obligors (i) to pay taxes, trade payables and other ordinary operating expenses
in the ordinary course of business, (ii) to make capital expenditures to the
extent permitted hereby, (iii) to pay Capitalized Lease Obligations to the
extent permitted hereby, (iv) to repay Indebtedness in connection with the
refinancing of Indebtedness to the extent permitted hereby, (v) to make
Permitted Investments, or (vi) in any other manner that is not prohibited by the
terms of this Agreement or the other Loan Documents, (d) the licensing or
sub-licensing by any Obligor, on a non-exclusive basis, of patents, trademarks,
copyrights, and other intellectual property rights in the ordinary course of
such Obligor's business, (e) discounts so long as no Default or Event of Default
has occurred and is continuing, without recourse and in the ordinary course of
business, of overdue Accounts arising in the ordinary course of business, but
only in connection with the compromise or collection thereof consistent with
customary industry practice (and not as part of any bulk sale or financing of
receivables), (f) transfers of condemned property to the respective Governmental
Authority that has condemned same (whether by deed in lieu of condemnation or
otherwise), and transfers of properties that have been subject to a casualty to
the respective insurer of such property as part of an insurance settlement, so
long as the proceeds thereof are applied in accordance with the provisions of
the Collateral Agency and Intercreditor Agreement and after the Termination of
the Exit Facility, in accordance with Section 2.03(A)(b), (g) transfers or
leases of assets by the Borrower to any Wholly-Owned Subsidiary Guarantor, by
any Obligor to the Borrower, or by any Obligor to any Wholly-Owned Obligor, (h)
so long as no Default or Event of Default has occurred and is continuing, any
disposition described on Schedule XXIV, (i) prior to the date of Termination of
the Exit Facility (A) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, any Obligor may make any other sale
exchange, or other disposition of assets (exclusive of Accounts, General
Intangibles, or Negotiable Collateral, other than in connection with the sale of
the business out of which they arose) in an amount not in excess of (1)
$10,000,000 in any transaction or series of related transactions, and (2)
$50,000,000 in any twelve month period with the valuation of the assets under
this clause (A) to be determined on
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the basis of the fair market value of such assets as mutually agreed upon by the
Borrower and the Administrative Agent in good faith and based upon the facts and
circumstances as of the date of the consummation of the applicable transaction
and (B) if a Default or Event of Default has occurred and is continuing under
the Exit Facility or would result therefrom and the requisite Exit Lenders under
the Exit Facility have approved such sale, any other sale, exchange or other
disposition of assets (exclusive of Accounts, General Intangibles, or Negotiable
Collateral, other than in connection with the sale of the business out of which
they arose), and (j) after the date of Termination of the Exit Facility, so long
as no Default or Event of Default has occurred and is continuing or would result
therefrom or be created thereby and provided that such Disposition would not
have, or be reasonably likely to have, a Material Adverse Change, the Obligors
may dispose of property (other than any property which is material to, or to the
value of, the ongoing business, operations or property of the Obligors taken as
a whole) in any fiscal year; provided, however, that, solely for dispositions
under this clause (j):
(i) at least 70% of the consideration therefor is paid in cash;
(ii) the aggregate fair market value of (or if greater the aggregate
purchase price payable for) all property so disposed of in such fiscal year does
not exceed (x) $5,000,000 on an individual basis or (y) $25,000,000 in the
aggregate; and
(iii) such Disposition is treated as a Disposition to which Section
2.03(A)(b) is applicable and that amount (based on the Net Asset Sales Proceeds
relative to such Disposition) required to be paid to the Administrative Agent
under Section 2.03(A)(b) in connection with such Disposition is paid to the
Administrative Agent in accordance with the requirements of such Section.
"Permitted Investments" shall mean (a) investments in cash and Cash
Equivalents, (b) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, (i) contributions to, and investments in,
joint ventures to the extent specified on Schedule XXV, (ii) investments
resulting from performance under one or more of the guaranties described on
Schedule XXI, (iii) equity investments by any US Subsidiary Guarantor or the
Borrower in any other US Subsidiary Guarantor or the Borrower, (iv) equity
investments by any Canadian Subsidiary Guarantor in any other Canadian
Subsidiary Guarantor and (v) equity investments by any Canadian Subsidiary
Guarantor in the Borrower or any US Subsidiary Guarantor, (c) so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom, discretionary Investments in Subsidiaries of the Borrower that are
not Obligors not in excess of: from and after the Closing Date (y) $10,000,000
per year minus (z) the aggregate amount of guaranties that were entered into
during such year to the extent such guaranties remain outstanding during such
year pursuant to Section 6.06, (d) investments in commercial paper rated at
least A-1 or P-1 maturing within one year after the date of acquisition thereof,
(e) money market accounts maintained at a commercial bank headquartered in the
United States or Canada having combined capital and surplus of no less than
$500,000,000 or at any other financial institution reasonably satisfactory to
the Administrative Agent, (f) investments in negotiable
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instruments for collection, (g) advances made in connection with purchases of
goods or services in the ordinary course of business, and (h) investments
resulting from the making of loans or advances permitted by Section 6.01(h).
"Permitted LC Facility Letters of Credit" means letters of credit issued
under the "Permitted LC Facility", as such term is defined in the 1997 Credit
Agreement.
"Permitted Liens" shall mean (a) Liens held by Collateral Agents pursuant
to the Security Documents and subject to the terms and conditions of the
Collateral Agency and Intercreditor Agreement, (b) Liens for unpaid taxes that
either (i) are not yet delinquent, or (ii) do not constitute an Event of Default
hereunder and are the subject of Permitted Protests or Liens for unpaid taxes
filed against a landlord or owner of a real property in which an Obligor owns
only a leasehold estate, (c) Liens set forth on Schedule XXVI, (d) the interests
of lessors under operating leases, (e) Purchase Money Liens or the interests of
lessors under Capital Leases to the extent that such Liens or interests secure
Permitted Purchase Money Indebtedness and so long as the Lien attaches only to
the asset purchased or acquired and the proceeds thereof, (f) Liens arising by
operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, laborers, or suppliers, incurred in the ordinary course of business
of the Obligors and not in connection with the borrowing of money, and which
Liens either (i) are for sums not yet delinquent, (ii) are the subject of
Permitted Protests, or (iii) which in the aggregate do not detract from the
value of the subject property or assets or materially impair the use thereof in
the operation of the business of the Obligors, (g) Liens arising from deposits
made in connection with obtaining worker's compensation or other unemployment
insurance, (h) Liens or deposits to secure performance of bids, tenders, or
leases incurred in the ordinary course of business of the Obligors and not in
connection with the borrowing of money, (i) Liens granted as security for surety
or appeal bonds in connection with obtaining such bonds in the ordinary course
of business of the Obligors, (j) Liens resulting from any judgment or award that
is not an Event of Default hereunder, (k) with respect to any Real Property,
easements, rights of way, restrictions (including zoning restrictions),
encroachments, protrusions, municipal agreements and other similar charges and
minor title deficiencies, in each case whether now or hereafter in existence,
not securing Indebtedness and not materially interfering with the conduct of the
business of the Obligors conducted at such Real Property, (l) rights of tenants,
subtenants, franchisees, or other parties in possession (other than a debtor in
possession, trustee in bankruptcy or receiver of Obligors) of Real Property, or
options or rights of first refusal respecting Real Property, whether pursuant to
leases, subleases, franchise agreements, other occupancy agreements, or
otherwise, if such rights were vested on the Closing Date or created thereafter
in the ordinary course of business in transactions permitted under this
Agreement, (m) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement, (n)
Liens in favor of a banking institution arising as a matter of law or pursuant
to the banking institution's standard form agreements regulating the DDAs, (o)
Liens in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of
goods, (p) deposits made to secure statutory obligations in the form of excise
taxes, (q) Liens arising from precautionary UCC financing statement filings
regarding operating leases or consignment arrangements entered into by any
Obligor in transactions permitted under this Agreement, (r) the Senior Liens,
(s) Liens given to a public
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utility or any municipality or governmental or other public authority when
required by such utility or other authority in connection with the operation of
the business or the ownership of the assets of the Obligors, (t) reservations,
limits and conditions in the original grant from the Crown, (u) undetermined or
inchoate Liens arising under the Construction Lien Act (Ontario) and which Liens
either (i) are for sums not yet delinquent, (ii) are the subject of Permitted
Protests, or (iii) which in the aggregate do not detract from the value of the
subject property or assets or materially impair the use thereof in the operation
of the business of the Obligors and (v) Liens not otherwise permitted by the
foregoing clauses (a) through (u) to the extent attaching to tangible properties
and assets with an aggregate fair market value (to be mutually agreed upon by
the Borrower and the Administrative Agent in good faith and based upon the facts
and circumstances as of the date of determination) not in excess of, and
securing liabilities otherwise permitted hereunder not in excess of, $2,500,000
in the aggregate.
"Permitted Protest" shall mean the right of the Obligors to protest any
Lien (other than any such Lien that secures the Obligations), tax (other than
taxes that are the subject of a United States federal tax lien), or rental
payment, provided that (a) if and to the extent required by GAAP, a reserve with
respect to such obligation is established on the Books in such amount as is
required under GAAP, (b) any such protest is instituted and diligently
prosecuted by the applicable Obligor in good faith, and (c) the Administrative
Agent is satisfied that, while any such protest is pending, there will be no
impairment of the enforceability, validity, or priority of any of the Collateral
Agents' Liens.
"Permitted Purchase Money Indebtedness" shall have the meaning set forth in
Section 6.01(c).
"Permitted Transactions" shall mean, so long as the Borrower and the US
Subsidiary Guarantors give the Administrative Agent not less then 60 days prior
written notice and, prior to the consummation thereof, comply with their
obligations under Sections 1.07 and 5.17 hereof and under the Security Agreement
in connection therewith, any (a) recapitalization, or reclassifications of Stock
or merger, consolidation, reorganization, between (i) any Wholly-Owned
Subsidiary Guarantors, (ii) any Wholly-Owned Subsidiary Guarantor and any
Wholly-Owned US Subsidiary Guarantor, so long as the Wholly-Owned US Subsidiary
Guarantor is the surviving entity in such transaction, and (iii) any
Wholly-Owned Subsidiary Guarantor and the Borrower, so long as the Borrower is
the surviving entity in such transaction, (b) liquidation, winding up, or
dissolution by any US Subsidiary Guarantor or Subsidiary Guarantor, so long as
the properties and assets resulting from such transactions are vested in or
transferred to the Borrower or a Wholly-Owned US Subsidiary Guarantor or, in the
case of a transaction undertaken by a Subsidiary Guarantor, to a Wholly-Owned
Subsidiary Guarantor, (c) sale, assignment, lease, transfer, or other
disposition of, in one transaction or a series of transactions, all or any
substantial part of any US Subsidiary Guarantor or Subsidiary Guarantor's
property or assets, so long as the relevant properties or assets that are the
subject of such sale, assignment, lease, transfer, or other disposition are
sold, assigned, leased, transferred, or otherwise disposed of to the Borrower or
to a Wholly-Owned US Subsidiary Guarantor, or, in the case of a transaction
undertaken by a Subsidiary Guarantor, to a Wholly-Owned Subsidiary Guarantor.
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"Person" shall mean natural persons, corporations, limited liability
companies, limited partnerships, general partnerships, limited liability
partnerships, joint ventures, trusts, land trusts, business trusts, or other
organizations, irrespective of whether they are legal entities, and governments
and agencies and political subdivisions thereof.
"Personal Property Collateral" shall mean all of each Obligor's personal
property and fixtures, and the proceeds thereof.
"PIK Lender" shall mean each Lender listed on Schedule II to whom the
Borrower is indebted on the Closing Date under and in respect of the PIK Loans,
as well as any Person who becomes a "PIK Lender" hereunder pursuant to Sections
1.06 and 10.04(b).
"PIK Loan" shall have the meaning provided in Section 1.01(b).
"PIK Loan Maturity Date" shall mean March 31, 2005.
"PIK Loan Redemption Notice" shall have the meaning provided in Section
2.04 of this Agreement.
"PIK Note" shall have the meaning provided in Section 1.02(b).
"PIK Unsecured Debt Indenture" means that certain Indenture dated as of the
Closing Date by and among the Borrower and the PIK Unsecured Debt Trustee, in
form and substance satisfactory to the Administrative Agent and the Lenders, as
amended, restated or otherwise modified in accordance with the terms hereof.
"PIK Unsecured Debt Trustee" means Wilmington Trust Company, as agent for
the holders of the indebtedness issued under the PIK Unsecured Debt Indenture.
"Plan" means any written or oral employee benefit plan, fund, program, or
arrangement or contract maintained or contributed to or required to be
contributed to by the Borrower or any US Subsidiary Guarantor or with respect to
which it may incur liability.
"Plan Effective Date" shall mean the "Effective Date" under and as defined
in the Reorganization Plan.
"Post Plan Implementation Fiscal Quarter" shall mean any Fiscal Quarter
which begins on or after the Closing Date, and reference to a Post Plan
Implementation Fiscal Quarter preceded by a number (such as the fourth Post Plan
Implementation Fiscal Quarter) shall be reference to the Fiscal Quarter which is
that number of Fiscal Quarters which have begun on or after the Closing Date (in
the above referenced example, the fourth Fiscal Quarter to have begun on or
after the Closing Date).
"PPSA" shall mean the Personal Property Security Act (Ontario) as currently
in effect.
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"Pre-Closing Merger Subsidiaries" shall mean each of the Subsidiaries of
the Borrower identified on Schedule XXVIII.
"Pre-Closing Restructuring Transactions" shall mean the series of
transactions described on Schedule XXIX pursuant to which each of the
Pre-Closing Merger Subsidiaries are merged, directly or indirectly, with and
into one of the US Subsidiary Guarantors or such Pre-Closing Merger Subsidiary
was dissolved or liquidated.
"Pre-Petition Lender" shall have the meaning provided in the recitals to
this Agreement.
"Pre-Petition Lien Subordination and Intercreditor Agreement" means that
certain Subordination and Intercreditor Agreement by and among Collateral Agents
and the agent for the Pre-Petition Lenders, as amended, restated or otherwise
modified from time to time.
"Principal Amount" shall mean at any time, with respect to any Loan, the
principal amount outstanding at such time under such Loan (which for greater
certainty, shall be the principal amount of such Loan on the Closing Date less
all repayments of the principal amount under such Loan to the date in question
and shall not include any Accreted Interest Amount under any PIK Loan or any
Deferred Interest Amount under any Term Loan).
"Project Accounts" means those bank accounts set forth on Schedule XIX.
"Projections" means the Borrower's forecasted (a) balance sheets, (b)
statements of earnings, and (c) cash flow statements, all prepared on a
consistent basis with the Borrower's historical financial statements that have
been prepared in accordance with GAAP, together with appropriate supporting
details and a statement of underlying assumptions. The foregoing
notwithstanding, it is the express understanding of the parties hereto that the
Projections themselves are not prepared in accordance with GAAP.
"PSC" shall have the meaning provided in the recitals to this Agreement.
"PSC Common Stock" shall mean common shares in the capital of the Borrower
as such shares exist at the close of business on the Closing Date or, upon any
subdivision or consolidation of the common shares, the shares resulting
therefrom or, upon the occurrence of a Capital Reorganization, the shares and/or
other securities and/or property substituted for the common shares or into which
common shares are reclassified or changed.
"PSDI" shall have the meaning provided in the recitals to this Agreement.
"PSI" shall mean ▇▇▇▇▇▇ Services Inc., an Ontario corporation.
"PSII" shall mean ▇▇▇▇▇▇ Services (International) Inc., a Delaware
corporation.
"Purchase Money Indebtedness" means Indebtedness (other than the
Obligations, but including Capitalized Lease Obligations), incurred at the time
of, or within 60 days after, the
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acquisition of any fixed assets for the purpose of financing all or any part of
the acquisition cost thereof.
"Quarterly Cash Flow Payment Date" shall mean the 45th day of each Post
Plan Implementation Fiscal Quarter beginning with the tenth Post Plan
Implementation Fiscal Quarter.
"Quebec Security Documents" shall mean the Quebec Security Agreement and
the Hypothec executed by certain of the Canadian Guarantors in favor of the
Collateral Agents in form and substance (including being governed by the laws of
Quebec) satisfactory to the Administrative Agent, as amended, restated,
supplemented or otherwise modified from time to time.
"RCRA" shall mean the Resource Conservation and Recovery Act, as same may
be amended from time to time 42 ▇▇▇.▇▇. 6901 et seq.
"Real Property" shall mean any estates or interests in real property now
owned or hereafter acquired by an Obligor, and the improvements related thereto.
"Real Property Collateral" shall mean the parcel or parcels of Real
Property identified on Schedule XVII, and any Real Property hereafter acquired
in fee by an Obligor.
"Record" shall mean information that is inscribed on a tangible medium or
which is stored in an electronic or other medium and is retrievable in
perceivable form.
"Redemption Premium" shall mean:
(a) at any time, with respect to the prepayment and redemption of all or
any portion of any PIK Loan, pursuant to Section 2.02(a)(iii)(y) of this
Agreement an amount equal to the product obtained by multiplying (x) the portion
of the Principal Amount of such Loan being prepaid and redeemed at such time by
(y) that percentage indicated below as being applicable at such time:
BEGINNING OF PERIOD END OF PERIOD APPLICABLE PERCENTAGE
------------------- ------------- ---------------------
From and including the first day To and including the third 25%
following the first anniversary of the anniversary of the Closing Date
Closing Date
From and including the first day To and including the fourth 16 and 2/3%
following the third anniversary of the anniversary of the Closing Date
Closing Date
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From and including the first day To and including the day immediately 8 and 1/3%
following the fourth anniversary of preceding the PIK Loan Maturity Date
the Closing Date
(b) at any time, with respect to the prepayment and redemption of all or
any portion of any Term Loan pursuant to Section 2.02(b)(ii)(y), an amount equal
to the product obtained by multiplying (x) the portion of the Principal Amount
of such Loan being prepaid and redeemed at such time by (y) that percentage
indicated below as being applicable at such time:
BEGINNING OF PERIOD END OF PERIOD APPLICABLE PERCENTAGE
------------------- ------------- ---------------------
From and including the Closing Date To and including the first 5%
anniversary of the Closing Date
From and including the first day To and including the second 4%
following the first anniversary of anniversary of the Closing Date
the Closing Date
From and including the first day To and including the third 3%
following the second anniversary anniversary of the Closing Date
of the Closing Date
From and including the first day To and including the fourth 2%
following the third anniversary anniversary of the Closing Date
of the Closing Date
From and including the first day To and including the day immediately 1%
following the fourth anniversary preceding the Term Loan Maturity Date
of the Closing Date
"Register" shall have the meaning provided in Section 10.14.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Released Creditors" shall mean and include all creditors holding any
claims relating to Indebtedness or otherwise of the Borrower or its Subsidiaries
(or their predecessors in
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interest) which are repaid, converted into equity or indebtedness, canceled or
extinguished in connection with the consummation of the Reorganization Plan.
"Released Equity" shall have the meaning provided in Section 10.11(c).
"Reorganization Plan" shall mean the plan of reorganization respecting the
US Debtors as modified confirmed by the US Bankruptcy Court on November 30, 1999
under Chapter 11 of the Bankruptcy Code.
"Replaced Lender" shall have the meaning provided in Section 1.06.
"Replacement Lender" shall have the meaning provided in Section 1.06.
"Reportable Event" means any of the events described in Section 4043(c) of
ERISA or the regulations thereunder other than a Reportable Event as to which
the provision of 30 days notice to the PBGC is waived under applicable
regulations.
"Required Lenders" shall mean, at any time, the Lenders whose outstanding
Term Loans and PIK Loans represent an amount greater than 66 and 2/3% of the sum
of the Principal Amount of all outstanding Term Loans and PIK Loans.
"Required PIK Lenders" shall mean, at any time, the PIK Lenders holding at
least 66 and 2/3% of the sum of the outstanding Principal Amount of, and all
accrued and unpaid interest (including unpaid Accreted Interest Amounts) under,
the PIK Loans at such time.
"Required Pre-Petition Lenders" shall mean the "Required Lenders" as such
term is defined in the 1997 Credit Agreement.
"Required Term Lenders" shall mean, at any time, Term Lenders holding at
least 66 and 2/3% of the outstanding Principal Amount of, and all accrued and
unpaid interest (including unpaid Deferred Interest Amounts) under, the Term
Loans at such time.
"Responsible Officer" shall mean any of the Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, President, Executive Vice
President, Vice President/Corporate Accounting, Vice President/Treasurer or
Chief Financial Officer of the relevant Obligor.
"Restricted PIK Loan" means any PIK Loan, the lender of which (i) is an
affiliate of the Borrower within the meaning of Rule 144 under the US Securities
Act or (ii) would be an underwriter with respect to the securities of the
Borrower within the meaning of section 1145(b) of the US Bankruptcy Code.
"Restricted PIK Note" means any PIK Note representing obligations in
respect of a Restricted PIK Loan.
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"Retiree Health Plan" means an "employee welfare benefit plan" within the
meaning of Section 3(1) of ERISA that provides benefits to individuals after
termination of their employment, other than as required by Section 601 of ERISA.
"Revised Exit Facility" shall have the meaning provided in Section
10.11(d).
"Rights Agreement" shall mean that certain rights agreement, a copy of
which is attached hereto as Exhibit L.
"Rights Offering" shall have the meaning provided in Section 1.07(d).
"Rolling Stock Security Agreement" means a Rolling Stock Security Agreement
in favor of Collateral Agents encumbering U.S. railcars owned by Obligors, in
form and substance satisfactory to the Administrative Agent, as amended,
restated or otherwise modified.
"SEC" shall mean the Securities and Exchange Commission.
"Second Annual Cash Flow Payment Date" shall mean the 45th day of the ninth
Post Plan Implementation Fiscal Quarter.
"Second Cash Flow Payment" shall have the meaning provided in Section
2.03(A)(c)(ii).
"Second Notional Cash Flow Difference Amount" shall have the meaning
provided in Section 2.03(A)(c)(iii).
"Section 2.06(b)(ii) Certificate" shall have the meaning provided in
Section 2.06(b)(ii).
"Securities Account" shall mean a "securities account" as that term is
defined in Section 8-501 of the UCC.
"Security Agreement" shall have the meaning provided in Section 3.01(n).
"Security Documents" shall mean the Security Agreement, the Stock Pledge
Agreement, the Trademark Security Agreement, the Patent Security Agreement, the
Copyright Security Agreement, the Rolling Stock Security Agreement, the First
Preferred Ships Mortgage, the Mortgages, the Canadian Security Documents, and
such other instruments, agreements and documents as the Administrative Agent
reasonably may require to secure the whole or any part of the Obligations.
"Senior Liens" shall mean the Exit Liens, the AIG Liens, the pre-existing
bonding liens and miscellaneous secured claims, and bonding liens granted after
the Closing Date.
"Share Reorganization" shall have the meaning provided in Section
1.07(d)(i).
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"Solvent" shall mean, with respect to any Person on a particular date, that
such Person is not insolvent (as such term is defined in the Uniform Fraudulent
Transfer Act).
"Special Distribution" shall have the meaning provided in Section
1.07(d)(iii).
"Specified Lender" shall have the meaning provided in Section 2.06(b)(A).
"Stipulation and Order" shall mean the Stipulation and Order entered on
January 13, 2000, clarifying that any dispute or claim arising under or related
to this Agreement or the other Loan Documents arising after the Effective Date
of the Plan or Reorganization will not be submitted to or heard by the US
Bankruptcy Court.
"Stock" shall mean all shares, options, warrants, interests,
participations, or other equivalents (regardless of how designated) of or in a
Person, whether voting or nonvoting, including common stock, preferred stock, or
any other "equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the SEC under the Exchange Act).
"Stock Pledge Agreement" shall have the meaning provided in Section
3.01(q).
"Subordination and Intercreditor Agreement" shall mean the deep
subordination and intercreditor agreement, in form and substance satisfactory to
the Administrative Agent, substantially in the form of Exhibit O, as amended or
otherwise modified.
"Subsidiary" shall mean, a corporation, partnership, limited liability
company, or other entity in which that Person directly or indirectly owns or
controls the shares of Stock having ordinary voting power to elect a majority of
the board of directors (or appoint other comparable managers) of such
corporation, partnership, limited liability company, or other entity.
"Subsidiary Guaranties" shall mean the US Subsidiary Guaranty and the
Canadian Subsidiary Guaranty.
"Subsidiary Guarantor" shall mean each US Subsidiary Guarantor and each
Non-US Guarantor.
"Successful Closing" shall mean, with respect to any Offer, a closing under
such Offer under which the Offeror has taken up and paid for at least that
number of PSC Common Stock which is equal to the greater of:
(a) the number of shares of PSC Common Stock which when added to the
Offeror's Existing Holdings would constitute 67% of the issued and outstanding
PSC Common Stock at such time; and
(b) a majority of the issued and outstanding PSC Common Stock which do not
form part of the Offeror's Existing Holdings.
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"Take-Over Bid" shall mean either (a) an Offer to Acquire outstanding
voting or equity securities of a class of a corporation where the securities
that are the subject of such offer, together with the Offeror's Existing
Holdings, constitute at least 20% of the outstanding securities of that class of
securities on the date the offer is made, or (b) any other event which is a
take-over bid within the meaning attributed to such term by any law, treaty,
rule, regulation, or requirement of any stock exchange or securities commission,
or determination of any arbitrator, court, stock exchange, securities commission
or other Governmental Authority, in each case, applicable to or binding on any
Obligor.
"Tax Benefit" shall have the meaning provided in Section 2.06(e).
"Taxes" shall have the meaning provided in Section 2.06.
"Term Lender" shall mean each Lender listed on Schedule I, to whom the
Borrower is indebted on the Closing Date under and in respect of the Term Loans,
as well as any Person who becomes a "Term Lender" hereunder pursuant to Section
1.06 or 10.04(b).
"Term Loan" shall have the meaning provided in Section 1.01(a).
"Term Loan Maturity Date" shall mean March 31, 2005.
"Term Note" shall have the meaning provided in Section 1.02(b).
"Termination of the Exit Facility" shall mean the payment in full of all of
the obligations of the borrowers under the Exit Facility and the termination of
the commitments of the Exit Lenders thereunder (other than termination of
letters of credit outstanding under the Exit Facility that have been cash
collateralized); provided that any refinancing, extension, renewal, replacement
or other restructuring of the Exit Facility shall not be deemed to be a
"Termination of the Exit Facility."
"Third Cash Flow Payment" shall have the meaning provided in Section
2.03(A)(c)(iii).
"Third Notional Cash Flow Difference Amount" shall have the meaning
provided in Section 2.03(A)(c)(iv).
"Total PIK Loan Amount" shall be equal to $100,000,000.
"Total Term Loan Amount" shall be equal to $235,825,362.22.
"Trademark Security Agreement" shall have the meaning provided in Section
3.01(n).
"Trading Day" shall mean, with reference to a National Securities Exchange,
any day on which such National Securities Exchange is open for trading.
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"UCC" shall mean the New York Uniform Commercial Code as amended from time
to time.
"UK Compliance Certificate" shall mean the certificates from (i) the chief
financial officer of the Borrower substantially in the form of Exhibit J-1 and
(ii) the chief financial officer of ▇▇▇▇▇▇ Services (Europe) Limited,
substantially in the form of Exhibit J-2, in form and substance satisfactory to
the Administrative Agent.
"UK Entities" means ▇▇▇▇▇▇ Services (Europe) Limited, Allied Metals
Limited, B.M. Metals (Recycling) Ltd., Bath Reclamation (Avonmouth) Co. Limited,
Blackbushe Limited, Blackbushe Metals (Western) Limited, Elliot Metal Company
Limited, South Hauliers Limited, ▇.▇. ▇▇▇▇▇▇ (Metals) Limited, ▇. ▇▇▇▇▇▇
(Holdings) Limited, ▇. ▇▇▇▇▇▇ & Co. Limited, ▇. ▇▇▇▇▇▇▇ and Sons (Bristol)
Limited, ▇▇▇▇▇ ▇▇▇▇▇▇ Limited, Widsite Limited, ▇▇▇▇▇▇ Metals (Europe) Limited.
"UK Metals Operations" shall mean the metal recycling and mill services
business of the UK Entities.
"UK Sale" has the meaning provided in Section 3.01(v).
"United States" and "US" shall each mean the United States of America.
"Unsecured Convertible Debt Indenture" means that certain Indenture dated
as of the Closing Date by and among the Borrower and the Unsecured Convertible
Debt Trustee, as amended, restated or otherwise modified in accordance with the
terms hereof.
"Unsecured Convertible Debt Trustee" means Wilmington Trust Company, as
trustee for the holders of the Indebtedness issued under the Unsecured
Convertible Debt Indenture.
"Unsecured Notes" shall mean the 3% convertible subordinated notes of the
Borrower due 2020 and the 6% subordinated notes of the Borrower due 2010.
"Unsecured Notes Documents" shall mean the Unsecured Notes, the Unsecured
Convertible Debt Indenture, the PIK Unsecured Debt Indenture, and all other
documents entered into or delivered in connection with the Unsecured Notes.
"US Bankruptcy Code" shall mean title 11 of the United States Code entitled
"Bankruptcy", as in effect from time to time.
"US Bankruptcy Court" shall mean the United States Bankruptcy Court for the
District of Delaware.
"US Cases" shall have the meaning provided in the recitals to this
Agreement.
"US Confirmation Order" shall mean, collectively, the orders of the US
Bankruptcy Court dated November 3, 1999, November 30, 1999 and March 20, 2000,
pursuant
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to which the Plan of Reorganization was confirmed, copies of which are attached
hereto as Exhibit F-1.
"US Debtors" shall have the meaning provided in the recitals to this
Agreement.
"US Dollar Equivalent" of an amount denominated in Canadian Dollars shall
mean, at any time for the determination thereof, the amount of Dollars necessary
to purchase Canadian Dollars at the spot exchange rate quoted by the
Administrative Agent as of 12:00 noon (New York time) on the date two Business
Days prior to the date of determination thereof for purchase on such date.
"US Lender" shall mean any Lender that is a "United States Person," as
defined in Section 7701(a)(30) of the Code.
"US Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
"US Subsidiary Guarantor" shall mean all direct and indirect subsidiaries
of the Borrower incorporated in the United States that are party to the US
Subsidiary Guaranty.
"US Subsidiary Guaranty" shall mean that certain Guaranty executed and
delivered by the US Subsidiary Guarantors in favor of the Administrative Agent
and each of the Lenders, substantially in the form of Exhibit H-1 (approximately
completed) and, after the execution and delivery thereof, as modified,
supplemented or amended from time to time.
"Wholly-Owned" shall mean, as to any Person, (i) any corporation 100% of
whose capital stock (other than directors' qualifying shares) is at the time
owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person
and (ii) any partnership, association, joint venture or other entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a
100% equity interest at such time.
"written" or "in writing" shall mean any form of written communication or a
communication by means of telex, telecopier or facsimile device, telegraph or
cable.
Section 9. The Administrative Agent.
9.01 Appointment. (a) Each Lender hereby designates Canadian Imperial Bank
of Commerce as Administrative Agent. Each Term Lender hereby designates Foothill
Capital Corporation as Collateral Agent for the Term Lenders. Each PIK Lender
hereby designates Foothill Capital Corporation as Collateral Agent for the PIK
Lenders. Each Lender hereby irrevocably authorizes the Administrative Agent to
take such action and execute such agreements on its behalf under the provisions
of this Agreement and any other instruments and agreements referred to herein
and to exercise such powers and to perform such duties hereunder and thereunder
as are specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Collateral Agents shall hold all Collateral and the Administrative
Agent shall hold all payments of
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principal, interest, charges and other expenses received pursuant to this
Agreement or any other Loan Document for the benefit of the Lenders to be
distributed as provided herein. The Administrative Agent may perform any of its
duties hereunder by or through its agents or employees.
(b) The provisions of this Section 9 are solely for the benefit of the
Administrative Agent and the Lenders, and neither the Borrower nor any of the
Borrower's Subsidiaries shall have any rights as a third party beneficiary of
any of the provisions hereof (other than Section 9.09). In performing its
functions and duties under this Agreement, the Administrative Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or trust with or
for the Borrower or any of the Borrower's Subsidiaries.
(c) If an Event of Default has occurred, all fees owed to the
Administrative Agent pursuant to this Agreement shall be paid prior to any
payment by the Borrower of principal or interest on the Loans.
9.02 Nature of Duties of Administrative Agent. The Administrative Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement and the other Loan Documents. Neither the Administrative Agent,
nor any of its officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful misconduct. The duties
of the Administrative Agent shall be mechanical and administrative in nature;
the Administrative Agent shall not have by reason of this Agreement or the other
Loan Documents a fiduciary relationship in respect of any Lender; and nothing in
this Agreement or the other Loan Documents, expressed or implied, is intended to
or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or the other Loan Documents except as
expressly set forth herein or therein.
9.03 Lack of Reliance on Administrative Agent. (a) Independently and
without reliance upon the Administrative Agent, each Lender, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial or other condition and affairs of the Borrower
and its Subsidiaries in connection with the taking or not taking of any action
in connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries, and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the making of the Loans or at any time or times thereafter.
(b) The Administrative Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement or the other Loan
Documents or the financial or other condition of the Borrower or any of its
Subsidiaries. The Administrative Agent shall not be required to make any inquiry
concerning
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either the performance or observance of any of the terms, provisions or
conditions of this Agreement or the other Loan Documents, or the financial
condition of the Borrower or any of Borrower's Subsidiaries, or the existence or
possible existence of any Default or Event of Default, unless specifically
requested to do so in writing by any Lender.
9.04 Certain Rights of the Administrative Agent. The Administrative Agent
shall have the right to request instructions from the Required Lenders at any
time. If the Administrative Agent shall request instructions from the Required
Lenders with respect to any act or action (including the failure to act) in
connection with this Agreement or the other Loan Documents, the Administrative
Agent shall be entitled to refrain from such act or taking such action unless
and until the Administrative Agent shall have received instructions from the
Required Lenders, and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder in
accordance with the instructions of the Required Lenders.
9.05 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, e-mail, telex, teletype or
telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper person. The Administrative
Agent may consult with legal counsel (including counsel for the Borrower with
the consent of the Borrower and with respect to matters concerning the Borrower
and their Subsidiaries), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
9.06 Indemnification of Administrative Agent. To the extent the
Administrative Agent and its advisors are not reimbursed and indemnified by the
Borrower, each Lender will reimburse and indemnify the Administrative Agent and
its advisors in proportion to its respective outstanding credit exposure, for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including reasonable counsel fees
and disbursements) or disbursements of any kind or nature whatsoever (including
all reasonable expenses) which may be imposed on, incurred by or asserted
against the Administrative Agent in performing its duties hereunder, in any way
relating to or arising out of this Agreement or for any payments made by the
Administrative Agent to its advisors; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements
contained in this Section shall survive any termination of this Agreement and
the other Loan Documents and the payment in full of the Obligations.
9.07 The Administrative Agent in its Individual Capacity. With respect to
their obligation to lend under this Agreement, the Term Loans and PIK Loans
deemed to be made by them and the Term Notes and PIK Notes issued to them, the
Administrative Agent shall have the
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same rights and powers hereunder as any other Lender or holder of a Term Note or
PIK Note or participation interests and may exercise the same as though it was
not performing the duties specified herein. The Administrative Agent may accept
deposits from, lend money to, acquire equity interests in, and generally engage
in any kind of banking, trust, financial advisory or other business with the
Borrower or any Affiliate of the Borrower as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
9.08 Holders of Notes. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Administrative Agent. Any request, authority or consent of any Person
who, at the time of making such request or giving such authority or consent, is
the holder of any Note, shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Note or of any Note or Notes issued in
exchange therefor.
9.09 Successor Administrative Agent. (a) The Administrative Agent may, upon
five Business Days' notice to the Lenders and the Borrower, resign at any time
(effective pursuant to the following provisions of this Section 9.09) by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, upon five days' notice
and approval by the Borrower (which approval shall not be unreasonably withheld
or delayed), to appoint a successor Administrative Agent. If no successor
Administrative Agent (i) shall have been so appointed by the Required Lenders
and (ii) shall have accepted such appointment, within thirty days after the
retiring Administrative Agent's giving of notice of resignation, then, upon five
days' notice and approval by the Borrower (which approval shall not be
unreasonably withheld or delayed), the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent. In the event
that no successor Administrative Agent is appointed pursuant to the foregoing
provisions, the Administrative Agent's resignation shall become effective on the
date which is forty-five days after the retiring Administrative Agent's giving
of notice of resignation, and the Required Lenders shall perform the duties of
the Administrative Agent hereunder. The provisions of this Section 9.09 shall
apply to the Collateral Agent after the Termination of the Exit Facility.
(b) Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from his duties and obligations under
this Agreement. After any retiring Administrative Agent resignation hereunder as
Administrative Agent, the provisions of this Section 9 shall inure to his
benefit as to any actions taken or omitted to be taken by them while they were
Administrative Agent under this Agreement.
9.10 Actions with Respect to Defaults. In addition to the Administrative
Agent's right to take actions on its own accord as permitted under this
Agreement, the Administrative
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Agent shall take such action with respect to an Event of Default as shall be
directed by the Required Lenders; provided that until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Event of Default as it shall deem advisable and in the best
interests of the Lenders.
9.11 Delivery of Information. The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Borrower, any Subsidiary, the Required Lenders,
any Lender or any other Person under or in connection with this Agreement or any
other Loan Document except (i) as specifically provided in this Agreement or any
other Loan Document and (ii) as specifically requested from time to time in
writing by any Lender with respect to a specific document, instrument, notice or
other written communication received by and in the possession of the
Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.
9.12 Collateral Agent to Hold Quebec Irrevocable Power of Attorney. For
greater certainty, and without limiting the powers of the Administrative Agent
or Collateral Agents hereunder or under any of the Loan Documents, each of the
Lenders and the Borrower hereby acknowledges that each of the Collateral Agents
acting for the PIK Lenders and the Term Lenders shall, for purposes of holding
any security granted by the Canadian Guarantors on the Canadian Guarantors'
respective property pursuant to the laws of the Province of Quebec to secure
payment of the Demand Notes, be the holder of an irrevocable power of attorney
(fonde de pouvoir) (within the meaning of the Civil Code of Quebec) for
themselves and all present and future Lenders and in particular for all present
and future holders of such Demand Notes. The Administrative Agent and each of
the Lenders hereby irrevocably constitute, to the extent necessary, each of the
Collateral Agents acting for the PIK Lenders and the Term Lenders as the holders
of an irrevocable power of attorney (fonde de pouvoir) (within the meaning of
Article 2692 of the Civil Code of Quebec) in order to secure such Demand Notes.
Each permitted assignee of the Lenders shall be deemed to have confirmed and
ratified the constitution of the Collateral Agents as the holder of such
irrevocable power of attorney (fonde de pouvoir) by execution of the relevant
assignment of its interest. Notwithstanding the provisions of Section 32 of the
Special Corporate Powers Act (Quebec), each Collateral Agent may acquire and be
the holder of such Demand Notes. The Borrower on its own behalf and on behalf of
the Canadian Guarantors hereby acknowledges that the Demand Notes issued by each
Canadian Guarantor to each of the Collateral Agents constitute a title of
indebtedness, as such term is used in Article 2692 of the Civil Code of Quebec.
9.13 Deep Subordination Agreement. Each Lender hereby authorizes and
appoints the Administrative Agent to sign the Subordination and Intercreditor
Agreement dated the date hereof between the Collateral Agents and CIBC as
administrative agent under the 1997 Credit Agreement.
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Section 10. Miscellaneous.
10.01 Payment of Expenses, etc. The Borrower shall: (i) whether or not the
transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent and the Collateral
Agents (including, without limitation, the reasonable fees and disbursements of
White & Case LLP, Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, and local counsel) in
connection with the preparation, execution, delivery and administration of this
Agreement and the other Loan Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto (including, without limitation, fees or charges for
photocopying, notarization, couriers, messengers and telecommunications), of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and the Collateral Agents and,
following and during the continuation of an Event of Default, each of the
Lenders in connection with the enforcement of this Agreement and the other Loan
Documents and the documents and instruments referred to herein and therein
(including, without limitation, the reasonable fees and disbursements of counsel
for the Administrative Agent and the Collateral Agents and, following and during
the continuation of an Event of Default, for each of the Lenders) which expenses
shall include, without being limited to, the cost of record searches (including,
without limitation tax lien, litigation, and UCC searches and searches with the
patent and trademark office, the copyright office or the department of motor
vehicles), filing, recording, publication, and real estate title policies and
endorsements, the reasonable fees and expenses of attorneys and paralegals, all
reasonable costs and expenses incurred by the Administrative Agent and the
Collateral Agents in opening bank accounts, depositing checks, electronically or
otherwise receiving and transferring funds, and any charges imposed on the
Administrative Agent and the Collateral Agents due to insufficient funds of
deposited checks and the standard fees of the Administrative Agent and the
Collateral Agents relating thereto, collateral examination fees and expenses,
reasonable fees and expenses of accountants, appraisers or other consultants,
experts or advisors employed or retained by the Administrative Agent and the
Collateral Agents; (ii) pay and hold each of the Lenders harmless from and
against any and all present and future stamp, excise and other similar taxes
with respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) indemnify the Administrative Agent, the Collateral Agents and
each Lender, and each of their respective officers, directors, employees,
representatives (each, an "Indemnitee") from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) (all of such liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and disbursements
collectively, the "Indemnified Amounts") incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to,
or by reason of, (a) any investigation, litigation or other proceeding (whether
or not the Administrative Agent, the Collateral Agents or any Lender is a party
thereto) related to the entering into and/or performance of this Agreement or
any other Loan Document or the consummation of any transactions contemplated
herein or in any other Loan Document, the exercise of any of their rights or
remedies provided herein or in the other Loan Documents, or (b) the actual or
alleged presence of
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Hazardous Materials in the air, surface water or groundwater or on the surface
or subsurface of any Real Property owned or at any time operated by the Borrower
or any of its Subsidiaries, the generation, storage, transportation, handling or
disposal of Hazardous Materials at any location, whether or not owned or
operated by the Borrower or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state, provincial and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Real Property, or any Environmental Claim asserted against the Borrower,
any of its Subsidiaries or any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified); provided, however, that the
Borrower shall have no obligation to any Indemnitee for any Indemnified Amounts
to the extent such Indemnified Amounts resulted from the gross negligence or
willful misconduct of such Indemnitee as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent, the Collateral Agents or any Lender set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
10.02 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.04, 2.06, 10.01 and 10.06 shall, subject to Section
10.15 (to the extent applicable), survive the execution and delivery of this
Agreement and the Notes and the repayment of the Loans.
10.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrower, at the Borrower's
address specified opposite its signature below; if to a Subsidiary Guarantor, at
such Subsidiary Guarantor's address specified opposite its signature below; if
to any Lender, at its address specified opposite its signature below; and if to
the Administrative Agent, at its Notice Office; or, as to any Obligor or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties hereto and, as to each Lender, at such
other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails with first-class
postage prepaid, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
10.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, the Borrower may not assign or
transfer any of its rights, obligations
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or interests hereunder or under any Loan Document without the prior written
consent of the Lenders; provided further, that no Lender shall sell, assign,
participate or transfer all or any of its rights, obligations or interests
hereunder or under any Note except as permitted under this Section 10.04. Each
Lender may at any time grant participations in any of its rights hereunder or
under any of the Notes (other than any Restricted PIK Notes, except to the
extent set forth in paragraph (b) below) to another financial institution,
including, without limitation, investment funds, provided that in the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Loan Documents (the participant's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Lender had not sold such participation, except that the participant shall be
entitled to the benefits of Sections 1.04 and 2.06 to the extent that such
Lender would be entitled to such benefits if the participation had not been
entered into or sold, and, provided further, that (A) no Lender shall transfer,
grant or assign any participation under which the participant shall have rights
to approve any amendment to or waiver of this Agreement or any other Loan
Document except to the extent such amendment or waiver would (i) release all or
substantially all of the Collateral which support the Loans in which such
participant is participating (except as expressly permitted in any Loan
Documents), (ii) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under this Agreement, (iii) amend, modify or waive
any provision of this Section 10.04, or (iv) increase such participant's
participating interest in any Loan over the amount thereof then in effect.
(b) Notwithstanding the foregoing, any Lender may, with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), (x) assign all or a portion of its outstanding PIK Loans (other than
Restricted PIK Loans) and/or Term Loans (and related outstanding Obligations
hereunder) to (i) its parent company or individual parent and/or any Affiliate
of such Lender which is at least 50% owned by such Lender, its parent company or
individual parent or to one or more Lenders or (ii) in the case of any Lender
that is a fund that invests in loans, any other fund that invests in loans and
is managed or advised by the same investment advisor of such Lender or by an
Affiliate of such investment advisor or (y) assign all, or if less than all, a
portion equal to at least $1,000,000 in the aggregate for the assigning Lender
or assigning Lenders, of such PIK Loans, and/or Term Loans hereunder (provided
that in no case should an assignment of PIK Loans be for an aggregate amount of
less than $1,000,000 unless such Lender is transferring all of its PIK Loans) to
one or more Eligible Transferees (treating any fund that invests in loans and
any other fund that invests in loans and is managed by the same investment
advisor of such fund or by an Affiliate of such investment advisor as a single
Eligible Transferee), each of which assignees shall become a party to this
Agreement as a Lender by execution of an Assignment and Assumption Agreement in
the form of Exhibit K (the "Assignment and Assumption Agreement"), provided
that, (i) at such time Schedules I and II shall be deemed modified to reflect
the outstanding Loans of such new Lender and of the existing Lenders, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's expense,
to such new Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.02 (with appropriate
modifications) to the extent needed to reflect the revised outstanding Loans,
and (iii) the Administrative Agent shall receive at the time of each such
assignment from the assigning or assignee Lender other than an
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assignment to an Affiliate of such Lender, the payment of a non-refundable
assignment fee of $3,000 and, provided further, the Administrative Agent shall
notify the Borrower of the identity of the assignee and the rights and
obligations assigned or transferred to the assignee and that such transfer or
assignment will not be effective until recorded by the Administrative Agent on
the Register pursuant to Section 10.14 hereof. To the extent of any assignment
pursuant to this Section 10.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned outstanding Loans. At the
time of each assignment pursuant to this Section 10.04(b) to a Person which is
not already a Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for federal income tax
purposes, the respective assignee Specified Lender shall provide to the Borrower
and the Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable, a Section 2.06(b)(ii) Certificate) described in Section
2.06(b). To the extent that an assignment of all or any portion of a Lender's
Loans and related outstanding Obligations pursuant to Section 1.06 or this
Section 10.04(b) would, at the time of such assignment, result in increased
costs under Sections 1.04 or 2.06(b) from those being charged by or incurred
with respect to the respective assigning Lender prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender from
pledging its rights under this Agreement and/or its Loans and/or Note hereunder
to a Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank and, with the consent of the Administrative Agent, any
Lender which is a fund may pledge all or any portion of its Loans and Notes to
its trustee in support of its obligations to its trustee. No pledge pursuant to
this clause (c) shall release the transferor Lender from any of its obligations
hereunder.
10.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent, the Collateral Agents, any Lender or any holder of a
Note in exercising any right, power or privilege hereunder or under any other
Loan Document and no course of dealing between any Obligor and the
Administrative Agent, the Collateral Agents, or any Lender or the holder of any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder or under any other Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Loan Document expressly provided are cumulative
and not exclusive of any rights, powers or remedies which the Administrative
Agent, the Collateral Agents, or any Lender or the holder of any Note would
otherwise have. No notice to or demand on any Obligor in any case shall entitle
any Obligor to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent,
the Collateral Agents, the Lenders or the holder of any Note to any other or
further action in any circumstances without notice or demand.
10.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf
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of the Borrower in respect of any Obligations of the Borrower hereunder or under
any Loan Document, it shall distribute such payment to the Lenders (other than
any Lender which has consented in writing to waive its pro rata share of any
such payment) pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Loan Documents, or otherwise),
which is applicable to the payment of the principal of, or interest on, the
Loans, of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligation then owed
and due to such Lender bears to the total of such Obligation then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Obligor to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) The provisions of Sections 10.06(a) and 10.06(b) shall not apply to any
payments made by the Borrower to the Administrative Agent to be applied as
provided in Section 9.01(c) of this Agreement.
10.07 Calculations; Computations. (a) All accounting terms not specifically
defined herein shall be construed in accordance with GAAP. When used herein, the
term "financial statements" shall include the notes and schedules thereto.
Whenever the terms "the Borrower and the US Subsidiary Guarantors" are used in
respect of a financial covenant or a related definition, it shall be understood
to mean the Borrower and the US Subsidiary Guarantors on a consolidated basis
unless the context clearly requires otherwise. In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a change in
the method of calculation of financial covenants, standards, or terms in this
Agreement, then the Borrower, the US Subsidiary Guarantors, the Administrative
Agent, and the Lenders agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Change
with the intended result that the criteria for evaluating the Borrower's and the
US Subsidiary Guarantors' financial condition shall be the same after such
Accounting Change as if such Accounting Change had not been made. Until such
time as such an amendment shall have been executed and delivered by Borrower and
the Administrative Agent (acting upon the instructions of the Required Lenders),
all financial covenants, standards, and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Change had not occurred.
"Accounting Change" refers to any change in accounting principles, or in the
application or interpretation thereof by Borrower's independent certified public
accountants, required, or determined by such accountants to be required, by any
rule, regulations, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants, or,
if applicable, the Securities and Exchange Commission, or in each case, any
successor to such entities.
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(b) All computations of interest and fees hereunder shall be made by the
Administrative Agent on the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable.
(c) For purposes of this Agreement, the US Dollar Equivalent of Canadian
Dollars shall be calculated on the second Business Day of each week. The US
Dollar Equivalent for Canadian Dollars shall remain in effect until the same is
recalculated by the Administrative Agent as provided above and notice of such
recalculation is received by the Borrower, it being understood that until such
notice is received, the US Dollar Equivalent shall be that US Dollar Equivalent
as last reported to the Borrower by the Administrative Agent. The Administrative
Agent shall promptly notify the Borrower and the Lenders of each determination
of the US Dollar Equivalent for Canadian Dollars.
10.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JULY
TRIAL. (A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
(C) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING
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BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(D) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
10.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
10.10 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
10.11 Amendment or Waiver; Release. (a) Neither this Agreement nor any
other Loan Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Obligor thereto and the Required Lenders
except Schedule VI can be amended as provided in Section 5.08; provided,
however, that (A) no waiver or alteration shall be made to the required
application of any prepayments as between the PIK Lenders and the Term Lenders
without the consent of the Required PIK Lenders or the Required Term Lenders as
applicable for the category of Lenders which is being allocated a lesser
prepayment as a result thereof (although the Required Lenders may waive in whole
or in part any such prepayment, so long as the application as amongst the PIK
Lenders and the Term Lenders of any such prepayment which is still being
required to be made is not altered unless the Required PIK Lenders or Required
Term Lenders affected thereby consent to such alteration as provided in this
clause (A)), (B) no change, waiver or discharge or termination shall without the
consent of each PIK Lender change the conversion terms of any PIK Loans and (C)
no change, waiver or discharge or termination shall, without the consent of each
Lender directly affected thereby, (i) extend the PIK Loan Maturity Date or the
Term Loan Maturity Date, as the case may be, or reduce the rate or extend the
time of payment of interest, or reduce the principal amount thereof, (it being
understood that any amendment or modification to the financial definitions in
this Agreement shall not constitute a reduction in the rate of interest for
purposes of this clause (i)), (ii) release all or substantially all of the
Collateral from the security interests and Liens created pursuant to the Loan
Documents (except as set forth in the Loan Documents), (iii) amend, modify or
waive any provision of this section 10.11, (iv) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement, or (v) reduce the percentage specified in the definition of Required
Lenders, Required PIK Lenders or Required Term Lenders; provided further, that
no such change, waiver, discharge or termination shall (y) without the consent
of the Administrative Agent, amend, modify or waive any provision of Section 9
as same applies to such
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Administrative Agent or any other provision as same relates to the rights or
obligations of such Administrative Agent, (z) without the consent of the
Collateral Agents, amend, modify or waive any provision relating to the rights
or obligations of the Collateral Agents. Notwithstanding anything to the
contrary contained herein, the modifications contemplated by Section 10.04, to
the extent needed to make new Lenders party to this Agreement, shall be
permitted in accordance with the terms thereof. All amendments effected in
compliance with this Section 10.11 shall be effective and enforceable against
all parties hereto.
(b) If, in connection with any proposed change, waiver, discharge or
termination to or of any of the provisions of this Agreement as contemplated by
clause (C) of the first proviso to Section 10.11(a), the consent of the Required
Lenders of the relevant class of Lenders is obtained but the consent of one or
more of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described herein, to replace each
such non-consenting Lender or Lenders with one or more Replacement Lenders
pursuant to Section 1.06 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination.
(c) If for any reason (i) any Canadian Subsidiary is released from its
guarantee under the Exit Facility, (ii) any collateral pledged by any Canadian
Subsidiary to secure any obligations under the Exit Facility is released or
(iii) less than 100% but no less than 66-2/3% of the equity of such Canadian
Subsidiary is required by the terms of the Exit Facility to be pledged to secure
any obligations under the Exit Facility (the equity not required to be so
pledged is hereinafter referred to as the "Released Equity"), then immediately
upon any such release, such Canadian Subsidiary, all such collateral owned by
such Canadian Subsidiary and all such Released Equity shall be automatically
deemed released from all Loan Documents and the Administrative Agent and the
Collateral Agents shall take all actions reasonably requested by the Borrower to
evidence any such release.
(d) Upon any amendment, restatement, modification, refinancing,
replacement, extension, renewal or other restructuring of the Exit Facility (in
each case, the "Revised Exit Facility"), each of the Administrative Agent and
the Collateral Agent hereby agrees and is authorized by the Lenders to enter
into such instruments, documents and financing statements, and take all further
actions, in each case that the borrower or any agent or lender under any such
Revised Exit Facility may reasonably request to (a) give any such agent and such
lenders under any such Revised Exit Facility liens on all of the assets of the
Borrower and its Subsidiaries that are prior to any liens on such assets granted
in favor of the Lenders or any agent or collateral agent for the benefit of the
Lenders and (b) give any such agent and such Lenders under any such Revised Exit
Facility rights and remedies with respect to such assets that are as favorable
to any such agent and such lenders under any such Revised Exit Facility as the
rights and remedies of the Exit Agent and the Exit Lenders in effect immediately
prior to the effectiveness of any such Revised Exit Facility.
10.12 Domicile of Loans. Each Lender may transfer and carry its Loans at,
to or for the account of any office, Subsidiary or Affiliate of such Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section
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10.12 would, at the time of such transfer, result in increased costs under
Section 1.04 or 2.06 from those being charged by the respective Lender prior to
such transfer, then the Borrower shall not be obligated to pay such increased
costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes giving rise to such increased
costs after the date of the respective transfer).
10.13 Confidentiality. (a) Subject to the provisions of clause (b) of this
Section 10.13, each Lender agrees that it will use its best efforts not to
disclose without the prior consent of the Borrower (other than to its employees,
auditors, advisors or counsel or to another Lender if the Lender or such
Lender's holding or parent company in its sole discretion determines that any
such party should have access to such information, provided such Persons shall
be subject to the provisions of this Section 10.13 to the same extent as such
Lender) any information with respect to the Borrower or any of its Subsidiaries
which is now or in the future furnished pursuant to this Agreement or any other
Loan Document and which is designated by the Borrower to the Lenders in writing
as confidential (collectively, the "Confidential Material"), provided that any
Lender may disclose any Confidential Material (a) as has become generally
available to the public, other than as a result of a breach of this Section
10.13, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state, provincial or federal regulatory
body having or claiming to have jurisdiction over such Lender or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States, Canada or elsewhere) or their
successors, (c) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Lender, (e) to the
Administrative Agent or the Collateral Agents and (f) to any prospective or
actual transferee or participant in connection with any contemplated transfer of
any of the Notes or any interest therein by such Lender, provided, that such
prospective transferee or participant executes a Confidentiality Agreement in
the form of Exhibit M (the "Confidentiality Agreement") with such Lender
containing provisions substantially the same as to those contained in this
Section.
(b) Each Obligor hereby acknowledges and agrees that each Lender may share
with any of its Affiliates any Confidential Material related to any Obligor
(including, without limitation, any nonpublic customer information regarding the
creditworthiness of the Obligors,) provided such Persons shall be subject to the
provisions of this Section 10.13 to the same extent as such Lender (but for
greater certainty not with any affiliates which are brokers or investment
dealers unless any such affiliate is an institution which has both a lending
division and a broker dealer division).
10.14 Registry. The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for purposes of this Section 10.14, to
maintain a register (the "Register") on which it will record the outstanding
credit exposure of each of the Lenders, and each repayment in respect of the
principal amount of the Term Loans and the PIK Loans of the Lenders. Failure to
make any such recordation, or any error in such recordation shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Lender, the
transfer of the outstanding Loans of such Lender and the rights to the principal
of, and interest on, any such Loan shall not be effective until such transfer is
recorded on the Register
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maintained by the Administrative Agent with respect to ownership of such Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Loans shall remain owing to the transferor. The registration of
assignment or transfer of all or part of any Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 10.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Lender shall
surrender the Note evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Lender and/or the new Lender. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties under this Section
10.14.
10.15 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 1.04 or 2.06 of this Agreement, unless a
Lender gives notice to the Borrower that it is obligated to pay an amount under
any such Section within one year after the later of (x) the date the Lender
incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or
(y) the date such Lender has actual knowledge of its expense or liability,
reductions in amounts received or receivable or reduction in return on capital,
then such Lender shall only be entitled to be compensated for such amount by the
Borrower pursuant to said Section 1.04 or 2.06, as the case may be, to the
extent the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital are incurred or
suffered on or after the date which occurs one year prior to such Lender giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.04 or 2.06, as the case may be. This Section 10.15
shall have no applicability to any Section of this Agreement other than said
Sections 1.04 or 2.06.
10.16 Currency of Payments. All Obligations shall be repaid by the Borrower
as required under this Agreement in Dollars. Any payment on account of an amount
payable under any Loan Document in Dollars made to or for the account of the
Administrative Agent or a Lender in a currency (the "other currency") other than
Dollars, whether pursuant to a judgment or order of any court or tribunal or
otherwise and whether arising from the conversion of any amount denominated in
one currency into any other currency for the purpose of making or filing a
claim, obtaining an order or judgment, enforcing an order or judgment or
otherwise, shall constitute a discharge of the Borrower's and the Subsidiary
Guarantors' obligation under such Loan Document up to the US Dollar Equivalent.
If the US Dollar Equivalent which the Administrative Agent or such Lender is
able to purchase in the normal course of its business within one Business Day
after receipt by it of such payment is less than the amount in Dollars
originally due to it under such Loan Document, the Borrower and the Subsidiary
Guarantors shall indemnify and save the Administrative Agent and the Lenders, as
the case may be, harmless from and against any loss or damage arising as a
result of such deficiency. This indemnity shall constitute an obligation
separate and independent from any other obligation contained in any
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Loan Document, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by the Administrative Agent
or any Lender from time to time, shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due under any Loan Document or under any judgment or order and shall not
merge in any order of foreclosure made in respect of any security interest given
to or for the benefit of the Administrative Agent and the Lenders.
10.17 Right of Setoff. (a) In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights and subject to the terms and provisions of the Collateral Agency and
Intercreditor Agreement, upon the occurrence and during the continuance of an
Event of Default, each Lender is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or Obligor or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
such Lender (including, without limitation, by branches and agencies of such
Lender) to or for the credit or the account of the Borrower or Obligor but in
any event excluding assets held in trust for any such Person against and on
account of the Obligations and liabilities of the Borrower or Obligor to such
Lender under this Agreement or under any of the other Collateral Documents,
including, without limitation, all interests in Obligations purchased by such
Lender pursuant to Section 10.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other
Collateral Document, irrespective of whether or not such Lender shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
(b) Notwithstanding anything to the contrary contained herein, at any time
that the Loans or any other Obligation shall be secured by Real Property located
in California, no Lender, nor the Administrative Agent shall exercise a right of
setoff, Lien or Counterclaim or take any court or administrative action or
institute any proceeding to enforce any provision of this agreement or any note
unless it is taken with the consent of the Required Lenders or, to the extent
required by Section 12.11 of this Agreement, all of the Lenders, or approved in
writing by the Administrative Agent, if such setoff or action or proceeding
would or might (pursuant to California Code of Civil Procedure or Sections 580a,
580b, 580d and 726 of the California Code of Civil Procedure or Section 2924 of
the California Civil Code, if applicable, or otherwise) affect or impair the
validity, priority, or enforceability of the Liens granted to the Collateral
Agent pursuant to the Collateral Documents or the enforceability of the Notes
and other obligations hereunder, and any attempted exercise by any Lender or the
Administrative Agent of any such right without obtaining such consent of the
Required Lenders or the Administrative Agent shall be null and void. This
Section 10.17 shall be solely for the benefit of each of the Lenders and the
Administrative Agent hereunder.
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110
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
▇▇▇▇▇▇ SERVICES CORPORATION
By:_______________________________
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
As Administrative Agent and Individually
By:_______________________________
Title:
111
ABN AMRO Bank
By:_______________________________
Title:
By:_______________________________
Title:
112
AMERICAN REAL ESTATE HOLDINGS L.P.
By:_______________________________
Title:
113
AMROC Investments
By:_______________________________
Title:
114
THE BANK OF EAST ASIA (CANADA)
By:_______________________________
Title:
115
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, N.A.
By:_______________________________
Title:
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK
By:_______________________________
Title:
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:_______________________________
Title:
119
CITIBANK, N.A.
By:_______________________________
Title:
120
CLARICA LIFE INSURANCE COMPANY
(f/k/a Mutual Life Assurance Company
of Canada)
By:_______________________________
Title:
121
COMERICA BANK
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By:_______________________________
Title:
▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇)
By:_______________________________
Title:
▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇.,
▇▇▇ ▇▇▇▇ Branch
By:_______________________________
Title:
125
DEUTSCHE BANK AG
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:_______________________________
Title:
127
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By:_______________________________
Title:
128
FERNWOOD ASSOCIATES L.P.
By:_______________________________
Title:
129
FOOTHILL CAPITAL CORPORATION
By:_______________________________
Title:
130
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ CREDIT PARTNERS CO.
By:_______________________________
Title:
132
HIGH RIVER LIMITED PARTNERSHIP
By:_______________________________
Title:
133
KEY BANK, N.A.
By:_______________________________
Title:
134
▇▇▇▇▇▇▇▇▇ LLC.
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
by Mellon Bank, N.A.
By:_______________________________
Title:
136
MUTUAL SHARES FUND, A SERIES OF
FRANKLIN MUTUAL SERIES FUND, INC.
By:_______________________________
Title:
137
NATIONSBANK, N.A.
By:_______________________________
Title:
138
PARIBAS
By:_______________________________
Title:
By:_______________________________
Title:
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ PLC
By:_______________________________
Title:
140
SAKURA BANK LIMITED
By:_______________________________
Title:
141
SOCIETE GENERALE (CANADA)
By:_______________________________
Title:
142
TORONTO DOMINION (NEW YORK), INC.
By:_______________________________
Title:
143
WACHOVIA BANK, N.A.
By:_______________________________
Title: