EXHIBIT 10.1
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$1,700,000,000
CREDIT AND GUARANTEE AGREEMENT
Dated as of March 23, 2005
among
▇▇▇▇ CORPORATION,
▇▇▇▇ CANADA,
THE FOREIGN SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
BANK OF AMERICA, N.A.,
as Syndication Agent,
CITIBANK, N.A.,
DEUTSCHE BANK SECURITIES INC.,
and
THE BANK OF NOVA SCOTIA,
as Documentation Agents,
THE BANK OF NOVA SCOTIA,
as Canadian Administrative Agent,
The Other Agents Named in
Schedule VI Hereto
and
JPMORGAN CHASE BANK, N.A.,
as General Administrative Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS................................................ 1
1.1 Defined Terms.............................................. 1
1.2 Other Definitional Provisions.............................. 30
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT COMMITMENTS...... 30
2.1 U.S. Revolving Credit Commitments.......................... 30
2.2 Repayment of U.S. Revolving Credit Loans;
Evidence of Debt........................................... 31
2.3 Procedure for U.S. Revolving Credit Borrowing.............. 31
2.4 Termination or Reduction of U.S. Revolving Credit
Commitments................................................ 32
2.5 Borrowings of U.S. Revolving Credit Loans and
Refunding of Loans......................................... 32
2.6 Increase in U.S. Revolving Credit Commitments.............. 35
SECTION 3. AMOUNT AND TERMS OF SWING LINE COMMITMENTS................. 37
3.1 Swing Line Commitments..................................... 37
3.2 Procedure for Swing Line Borrowings; Interest Rate......... 37
3.3 Repayment of Swing Line Loans; Evidence of Debt............ 38
3.4 Refunding of Swing Line Borrowings......................... 39
3.5 Participating Interests.................................... 40
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES........................... 41
4.1 CAF Advances............................................... 41
4.2 Procedure for CAF Advance Borrowing........................ 41
4.3 CAF Advance Payments....................................... 44
4.4 Evidence of Debt........................................... 44
4.5 Certain Restrictions....................................... 45
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN COMMITMENTS............... 45
5.1 Canadian Revolving Credit Commitments...................... 45
5.2 Repayment of Canadian Revolving Credit Loans;
Evidence of Debt........................................... 45
5.3 Procedure for Canadian Revolving Credit Borrowing.......... 46
5.4 Termination or Reduction of Canadian Revolving
Credit Commitments......................................... 47
SECTION 6. AMOUNT AND TERMS OF CANADIAN ACCEPTANCE FACILITY........... 47
6.1 Acceptance Commitments..................................... 47
6.2 Creation of Acceptances.................................... 47
6.3 Discount of Acceptances.................................... 48
6.4 Stamping Fees.............................................. 49
6.5 Acceptance Reimbursement Obligations....................... 49
6.6 Converting Canadian Revolving Credit Loans to Acceptances
and Acceptances to Canadian Revolving Credit Loans......... 50
6.7 Allocation of Acceptances.................................. 51
6.8 Special Provisions Relating to Acceptance Notes............ 51
6.9 Existing Acceptances and Acceptance Notes.................. 52
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SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENT............... 52
7.1 Multicurrency Commitments.................................. 52
7.2 Repayment of Multicurrency Loans; Evidence of Debt......... 52
7.3 Procedure for Multicurrency Borrowing...................... 53
7.4 Termination or Reduction of Multicurrency Commitments...... 53
7.5 Redenomination and Alternative Currencies.................. 53
SECTION 8. LETTERS OF CREDIT.......................................... 53
8.1 Letters of Credit.......................................... 53
8.2 Procedure for Issuance of Letters of Credit................ 54
8.3 Participating Interests.................................... 55
8.4 Payments................................................... 55
8.5 Further Assurances......................................... 56
8.6 Obligations Absolute....................................... 56
8.7 Letter of Credit Application............................... 57
8.8 Currency Adjustments....................................... 57
SECTION 9. GENERAL PROVISIONS APPLICABLE TO LOANS..................... 57
9.1 Interest Rates and Payment Dates........................... 57
9.2 Conversion and Continuation Options........................ 58
9.3 Minimum Amounts of Tranches................................ 59
9.4 Optional and Mandatory Prepayments......................... 59
9.5 Facility Fees; Other Fees.................................. 61
9.6 Computation of Interest and Fees........................... 62
9.7 Inability to Determine Interest Rate....................... 63
9.8 Pro Rata Treatment and Payments............................ 63
9.9 Illegality................................................. 66
9.10 Requirements of Law........................................ 67
9.11 Indemnity.................................................. 68
9.12 Taxes...................................................... 68
9.13 Assignment of Commitments Under Certain Circumstances...... 71
9.14 Use of Proceeds............................................ 72
SECTION 10. REPRESENTATIONS AND WARRANTIES............................. 72
10.1 Financial Statements....................................... 72
10.2 No Change.................................................. 72
10.3 Existence; Compliance with Law............................. 72
10.4 Power; Enforceable Obligations; Authorization.............. 73
10.5 No Legal Bar............................................... 73
10.6 No Material Litigation..................................... 73
10.7 Taxes...................................................... 73
10.8 Securities Law, etc. Compliance............................ 74
10.9 ERISA...................................................... 74
10.10 Investment and Holding Company Status...................... 74
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10.11 Subsidiaries, etc.......................................... 74
10.12 Environmental Matters...................................... 74
SECTION 11. CONDITIONS PRECEDENT....................................... 74
11.1 Conditions to Closing Date................................. 74
11.2 Conditions to Each Extension of Credit..................... 75
SECTION 12. AFFIRMATIVE COVENANTS...................................... 76
12.1 Financial Statements....................................... 76
12.2 Certificates; Other Information............................ 77
12.3 Existence; Continuation of Business........................ 77
12.4 Compliance with Laws....................................... 78
12.5 Inspection of Property; Books and Records; Discussions..... 78
12.6 Notices.................................................... 78
12.7 Guarantor Supplement....................................... 78
SECTION 13. NEGATIVE COVENANTS......................................... 78
13.1 Financial Covenants........................................ 79
13.2 Limitations on Fundamental Changes......................... 79
13.3 Limitation on Subsidiary and Secured Indebtedness.......... 79
SECTION 14. GUARANTEE.................................................. 79
14.1 Guarantee.................................................. 79
14.2 No Subrogation............................................. 80
14.3 Amendments, etc. with respect to the Obligations;
Waiver of Rights........................................... 80
14.4 Guarantee Absolute and Unconditional....................... 81
14.5 Reinstatement.............................................. 82
14.6 Payments................................................... 82
SECTION 15. EVENTS OF DEFAULT.......................................... 82
SECTION 16. THE ADMINISTRATIVE AGENTS, THE DOCUMENTATION AGENT,
THE SYNDICATION AGENT, THE SENIOR MANAGING AGENTS, THE
MANAGING AGENTS AND THE CO-AGENTS.......................... 85
16.1 Appointment................................................ 85
16.2 Delegation of Duties....................................... 85
16.3 Exculpatory Provisions..................................... 85
16.4 Reliance by Administrative Agent........................... 85
16.5 Notice of Default.......................................... 86
16.6 Non-Reliance on Administrative Agents and Other Lender..... 86
16.7 Indemnification............................................ 86
16.8 Administrative Agents in their Individual Capacity......... 87
16.9 Successor Administrative Agents............................ 87
16.10 The Documentation Agents, Syndication Agent,
Senior Managing Agents, Managing Agents and Co-Agents...... 88
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SECTION 17. MISCELLANEOUS.............................................. 88
17.1 Amendments and Waivers..................................... 88
17.2 Notices.................................................... 90
17.3 No Waiver; Cumulative Remedies............................. 92
17.4 Survival of Representations and Warranties................. 92
17.5 Payment of Expenses and Taxes.............................. 92
17.6 Successors and Assigns; Participations and Assignments..... 93
17.7 Adjustments; Set-Off....................................... 96
17.8 Loan Conversion/Participations............................. 97
17.9 Counterparts............................................... 98
17.10 Severability............................................... 98
17.11 Integration................................................ 98
17.12 GOVERNING LAW.............................................. 98
17.13 Submission to Jurisdiction; Waivers........................ 98
17.14 Acknowledgments............................................ 99
17.15 WAIVERS OF JURY TRIAL...................................... 99
17.16 Power of Attorney.......................................... 99
17.17 Release of Guarantees...................................... 100
17.18 Judgment................................................... 100
17.19 Confidentiality............................................ 100
17.20 Conflicts.................................................. 101
17.21 USA PATRIOT Act Notice..................................... 101
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SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
IV Disclosed Matters
V Subsidiaries
VI Agents
EXHIBITS:
A Form of U.S. Revolving Credit Note
B Form of Canadian Revolving Credit Note
C Form of Draft
D Form of Power of Attorney
E Form of Acceptance Note
F Form of CAF Advance Request
G Form of CAF Advance Offer
H Form of CAF Advance Confirmation
I Form of Joinder Agreement
J Form of Assignment and Acceptance
K Form of Opinion of Winston & ▇▇▇▇▇▇ LLP
L Form of Opinion of Torys
M Matters to be Covered by Foreign Subsidiary Opinion
N Form of Subsidiary Guarantee
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CREDIT AND GUARANTEE AGREEMENT, dated as of March 23, 2005, among ▇▇▇▇
CORPORATION, a Delaware corporation (the "U.S. Borrower"), ▇▇▇▇ CANADA, a
general partnership organized under the laws of Ontario, Canada (the "Canadian
Borrower"), each FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together
with the U.S. Borrower and the Canadian Borrower, the "Borrowers"), the Senior
Managing Agents named on Schedule VI hereto (the "Senior Managing Agents"), the
Managing Agents named on Schedule VI hereto (the "Managing Agents"), the
Co-Agents named on Schedule VI hereto (the "Co-Agents"), the several banks and
other financial institutions from time to time parties hereto (the "Lenders"),
BANK OF AMERICA, N.A., as syndication agent (the "Syndication Agent"), CITIBANK,
N.A., DEUTSCHE BANK SECURITIES INC. and THE BANK OF NOVA SCOTIA, a Canadian
chartered bank, as documentation agents (in such capacity, the "Documentation
Agents"), THE BANK OF NOVA SCOTIA, a Canadian chartered bank, as Canadian
administrative agent for the Lenders hereunder (as hereinafter defined, in such
capacity, the "Canadian Administrative Agent"), and JPMORGAN CHASE BANK, N.A.
(as hereinafter defined, the "General Administrative Agent"), as general
administrative agent for the Lenders hereunder.
WITNESSETH:
WHEREAS, the U.S. Borrower, the Canadian Borrower and the Foreign
Subsidiary Borrowers are parties to the Third Amended and Restated Credit
Agreement, dated as of March 26, 2001 (as heretofore amended, supplemented or
otherwise modified, the "Existing Credit Agreement"), with the lenders parties
thereto, the managing agents, co-agents and lead managers identified therein,
The Bank of Nova Scotia, as Canadian administrative agent, and JPMorgan Chase
Bank, N.A. (f/k/a The Chase Manhattan Bank), as general administrative agent;
and
WHEREAS, the Borrowers wish to terminate the Existing Credit Agreement
and replace the Existing Credit Agreement with this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR Loans": U.S. Revolving Credit Loans or Swing Line Dollar Loans,
the rate of interest applicable to which is based upon the Alternate Base Rate.
"Acceptance": a Draft drawn by the Canadian Borrower and accepted by a
Canadian Lender which is (a) denominated in Canadian Dollars, (b) for a term of
not less than 30 days nor more than 180 days and which matures prior to the
Revolving Credit Termination Date and (c) issuable and payable only in Canada;
provided that to the extent the context shall require, each Acceptance Note
shall be deemed to be an Acceptance; provided, further, that "Acceptance"
includes a depository note within the meaning of the Depository Bills and Notes
Act (Canada) and a ▇▇▇▇ of exchange within the meaning of the Bills of Exchange
Act (Canada).
"Acceptance Note": as defined in subsection 6.8(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and with
one-half cent being rounded up) obtained by dividing (a) the face amount of such
Acceptance by (b) the sum of (i) one and (ii) the product of (A) the Reference
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Discount Rate for Acceptances of the same maturity expressed as a decimal and
(B) a fraction, the numerator of which is the term to maturity of such
Acceptance and the denominator of which is equal to 365, where (b) above is
rounded to the fifth decimal place and 0.000005 is rounded up to 0.00001.
"Acceptance Reimbursement Obligations": the obligation of the Canadian
Borrower to the Canadian Lenders (a) to reimburse the Canadian Lenders for
maturing Acceptances pursuant to subsection 6.5 and (b) to make payments in
respect of the Acceptance Notes in accordance with the terms thereof.
"Acceptance Tranche": the collective reference to Acceptances, all of
which were created on the same date and have the same maturity date.
"Acceptances to be Converted": as defined in subsection 17.8(a).
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the amount of
any participating interests purchased by such Lender pursuant to subsection
17.8, minus the amount of any participating interests sold by such Lender
pursuant to subsection 17.8.
"Adjustment Date": with respect to any fiscal quarter, (a) the second
Business Day following receipt by the General Administrative Agent of both (i)
the financial statements required to be delivered pursuant to subsection 12.1(a)
or (b), as the case may be, for the most recently completed fiscal period and
(ii) the compliance certificate required pursuant to subsection 12.2(a) with
respect to such financial statements or (b) if such compliance certificate and
financial statements have not been delivered in a timely manner, the date upon
which such compliance certificate and financial statements were due; provided,
however, that in the event that the Adjustment Date is determined in accordance
with the provisions of clause (b) of this definition, then the date which is two
Business Days following the date of receipt of the financial statements and
compliance certificate referenced in clause (a) of this definition also shall be
deemed to constitute an Adjustment Date.
"Administrative Agents": the collective reference to the General
Administrative Agent and the Canadian Administrative Agent.
"Administrative Schedule": Schedule III, which contains interest rate
definitions and administrative information in respect of each Available Foreign
Currency.
"Affiliate": of any Person, (a) any other Person (other than a Wholly
Owned Subsidiary of such Person) which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such Person, (b) any
other Person who is a director or executive officer of (i) such Person, (ii) any
Subsidiary of such Person (other than a Wholly Owned Subsidiary) or (iii) any
Person described in clause (a) above or (c) with respect to any Lender, any
entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by such Lender or an Affiliate of such Lender. For purposes of this
definition, a Person shall be deemed to be "controlled by" such other Person if
such other Person possesses, directly or indirectly, power either to (A) vote
10% or more of the securities having ordinary voting power for the election of
directors of such first Person or (B) direct or cause the direction of the
management and policies of such first Person whether by contract or otherwise.
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"Aggregate Available Canadian Revolving Credit Commitments": as at any
date of determination with respect to all Canadian Lenders, an amount in
Canadian Dollars equal to the Available Canadian Revolving Credit Commitments of
all Canadian Lenders on such date.
"Aggregate Available Multicurrency Commitments": as at any date of
determination with respect to all Multicurrency Lenders, an amount in U.S.
Dollars equal to the Available Multicurrency Commitments of all Multicurrency
Lenders on such date.
"Aggregate Available U.S. Revolving Credit Commitments": as at any
date of determination with respect to all U.S. Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of all U.S.
Lenders on such date.
"Aggregate Canadian Revolving Credit Outstandings": as at any date of
determination with respect to any Canadian Lender, an amount in Canadian Dollars
equal to the sum of the following, without duplication: (a) the aggregate unpaid
principal amount of such Canadian Lender's Canadian Revolving Credit Loans on
such date, (b) the aggregate undiscounted face amount of all outstanding
Acceptances of such Canadian Lender on such date and (c) the aggregate unpaid
principal amount of such Canadian Lender's Acceptance Notes on such date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate U.S. Revolving Credit Outstandings of such Lender, (b) the U.S.
Dollar Equivalent of the Aggregate Canadian Revolving Credit Outstandings of
such Lender and such Lender's Counterpart Lender and (c) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable Available
Foreign Currencies or U.S. Dollars (with respect to Swing Line Multicurrency
Loans denominated in U.S. Dollars) equal to the sum of (a) the aggregate unpaid
principal amount of such Lender's Multicurrency Loans and (b) such Multicurrency
Lender's Multicurrency Commitment Percentage of the aggregate unpaid principal
amount of all Swing Line Multicurrency Loans on such date.
"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in U.S. Dollars equal to the sum of (a) the
Aggregate U.S. Outstandings of such Lender, (b) the U.S. Dollar Equivalent of
the Aggregate Canadian Revolving Credit Outstandings of such Lender and such
Lender's Counterpart Lender and (c) the U.S. Dollar Equivalent of the Aggregate
Multicurrency Outstandings of such Lender.
"Aggregate U.S. Outstandings": as at any date of determination with
respect to any U.S. Lender, an amount in U.S. Dollars equal to the sum of (a)
the Aggregate U.S. Revolving Credit Outstandings of such Lender on such date and
(b) the aggregate unpaid principal amount of such U.S. Lender's CAF Advances on
such date.
"Aggregate U.S. Revolving Credit Commitments": the aggregate amount of
the U.S. Revolving Credit Commitments of all the Lenders, as such amount may be
increased pursuant to subsection 2.6.
"Aggregate U.S. Revolving Credit Outstandings": as at any date of
determination with respect to any U.S. Lender, an amount in U.S. Dollars equal
to the sum of (a) the aggregate unpaid principal amount of such U.S. Lender's
U.S. Revolving Credit Loans on such date, (b) such U.S. Lender's
4
U.S. Revolving Credit Commitment Percentage of the aggregate unpaid principal
amount of all Swing Line Loans on such date and (c) such U.S. Lender's U.S.
Revolving Credit Commitment Percentage of the aggregate Letters of Credit
Obligations.
"Agreement": this Credit and Guarantee Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 17.18(b).
"Alternate Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
1%.
If for any reason the General Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the General Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) above, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the U.S. Prime Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such change
in the U.S. Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin": for each Loan, the applicable rate per annum
determined pursuant to the Pricing Grid.
"Assignee": as defined in subsection 17.6(c).
"Assuming Lender": as defined in subsection 2.6.
"Available Canadian Revolving Credit Commitment": as at any date of
determination with respect to any Canadian Lender (after giving effect to the
making and payment of any U.S. Revolving Credit Loans required to be made on
such date pursuant to subsection 2.5), an amount in U.S. Dollars equal to the
lesser of (a) the excess, if any, of (i) the amount of such Canadian Lender's
Canadian Revolving Credit Commitment in effect on such date over (ii) the U.S.
Dollar Equivalent of the Aggregate Canadian Revolving Credit Outstandings of
such Canadian Lender on such date and (b) the excess, if any, of (i) the amount
of the U.S. Revolving Credit Commitment of such Canadian Lender's Counterpart
Lender on such date over (ii) the Aggregate Committed Outstandings of such
Canadian Lender's Counterpart Lender on such date.
"Available Foreign Currencies": Pounds Sterling, euro, Swedish Kroner,
and any other available and freely-convertible non-U.S. Dollar currency selected
by the U.S. Borrower and approved by the General Administrative Agent and the
Majority Multicurrency Lenders in the manner described in subsection 17.1(b).
"Available Multicurrency Commitment": as at any date of determination
with respect to any Multicurrency Lender (after giving effect to the making and
payment of any U.S. Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to
5
the lesser of (a) the excess, if any, of (i) the amount of such Multicurrency
Lender's Multicurrency Commitment in effect on such date over (ii) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i) the amount
of such Multicurrency Lender's U.S. Revolving Credit Commitment in effect on
such date over (ii) the Aggregate Committed Outstandings of such Multicurrency
Lender on such date.
"Available U.S. Revolving Credit Commitment": as at any date of
determination with respect to any U.S. Lender (after giving effect to the making
and payment of any U.S. Revolving Credit Loans required to be made on such date
pursuant to subsection 2.5), an amount in U.S. Dollars equal to the excess, if
any, of (a) the amount of such U.S. Lender's U.S. Revolving Credit Commitment in
effect on such date over (b) the Aggregate Committed Outstandings of such U.S.
Lender on such date.
"Bank Act (Canada)": the Bank Act (Canada), as amended from time to
time.
"Benefited Lender": as defined in subsection 17.7.
"Board": the Board of Governors of the Federal Reserve System (or any
successor thereto).
"BofA": Bank of America, N.A., a national banking association.
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of any Public Indebtedness.
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 3.2, 4.2, 5.3 or 7.3 as a date on which a Borrower requests the
Lenders to make Loans hereunder or, with respect to a Request for Acceptances,
the date with respect to which the Canadian Borrower has requested the Canadian
Lenders to accept Drafts.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency is to be made, a payment is to be
made in respect of such Loan, an Exchange Rate is to be set in respect of such
Available Foreign Currency or any other dealing in such Available Foreign
Currency is to be carried out pursuant to this Agreement, such term shall mean a
London Banking Day which is also a day on which banks are open for general
banking business in the city which is the principal financial center of the
country of issuance of such Available Foreign Currency, (b) when such term is
used in respect of a day on which a Loan is to be made to the Canadian Borrower
or an Acceptance is to be created, a payment is to be made in respect of such
Loan or Acceptance, an Exchange Rate is to be set in respect of Canadian Dollars
or any other dealing in Canadian Dollars is to be carried out pursuant to this
Agreement, such term shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Toronto, Ontario are authorized or required by law
to close, (c) when such term is used to describe a day on which a borrowing,
payment or interest rate determination is to be made in respect of a LIBO Rate
CAF Advance, such day shall be a London Banking Day and (d) when such term is
used in any context in this Agreement (including as described in the foregoing
clauses (a), (b) and (c)), such term shall mean a day which, in addition to
complying with any applicable requirements set forth in the foregoing clauses
(a), (b) and (c), is a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close;
provided, that when such term is used for the purpose of determining the date on
which the Eurocurrency Rate is determined under this Agreement for any
Multicurrency Loan denominated in euro for any Interest Period
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therefor and for purposes of determining the first and last day of any such
Interest Period, references in this Agreement to Business Days shall be deemed
to be references to Target Operating Days.
"CAF Advance": each CAF Advance made pursuant to subsection 4.1.
"CAF Advance Availability Period": the period from and including the
Closing Date to and including the date which is 7 days prior to the Revolving
Credit Termination Date.
"CAF Advance Confirmation": each confirmation by the U.S. Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be substantially
in the form of Exhibit H and shall be delivered to the General Administrative
Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance, each
interest payment date specified by the U.S. Borrower for such CAF Advance in the
related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date specified
by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its acceptance of the
related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the information
specified in Exhibit G and shall be delivered to the General Administrative
Agent by telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the U.S. Borrower for Lenders
to submit bids to make CAF Advances, which request shall contain the information
in respect of such requested CAF Advances specified in Exhibit F and shall be
delivered to the General Administrative Agent in writing, by facsimile
transmission, or by telephone, immediately confirmed by facsimile transmission.
"Canadian Administrative Agent": The Bank of Nova Scotia, together
with its affiliates, as administrative agent for the Canadian Lenders under this
Agreement and the other Loan Documents, and any successor thereto appointed
pursuant to subsection 16.9.
"Canadian Base Rate": at any day, the higher of (a) the rate of
interest per annum publicly announced from time to time by the Canadian
Administrative Agent (and in effect on such day) as its reference rate for U.S.
Dollar commercial loans made in Canada, as adjusted automatically from time to
time and without notice to any of the Borrowers upon change by the Canadian
Administrative Agent and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%.
"Canadian Base Rate Loans": all Canadian Revolving Credit Loans
denominated in U.S. Dollars, which shall bear interest at a rate based upon the
Canadian Base Rate.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Dollars" and "C$": dollars in the lawful currency of Canada.
"Canadian Dollar Equivalent": with respect to an amount denominated in
any currency other than Canadian Dollars, the equivalent in Canadian Dollars of
such amount determined at the Exchange Rate on the date of determination of such
equivalent.
"Canadian Lenders": the Lenders listed in Part B of Schedule I hereto.
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"Canadian Reference Lenders": the collective reference to the Schedule
I Canadian Reference Lenders and the Schedule II Canadian Reference Lenders.
"Canadian Revolving Credit Commitment": as to any Canadian Lender at
any time, its obligation to make Canadian Revolving Credit Loans to, and/or
create Acceptances and discount on behalf of (or, in lieu thereof, to make loans
pursuant to the Acceptance Notes to), the Canadian Borrower, in an aggregate
amount not to exceed at any one time outstanding the Canadian Dollar Equivalent
of the lesser of (a) the U.S. Dollar amount set forth opposite such Canadian
Lender's name in Schedule I under the heading "Canadian Revolving Credit
Commitment", and (b) the U.S. Revolving Credit Commitment of such Canadian
Lender's Counterpart Lender, in each case as such amount may be reduced from
time to time as provided in subsection 5.4 and the other applicable provisions
hereof.
"Canadian Revolving Credit Commitment Percentage": as to any Canadian
Lender at any time, the percentage which such Canadian Lender's Canadian
Revolving Credit Commitment then constitutes of the aggregate Canadian Revolving
Credit Commitments (or, if the Canadian Revolving Credit Commitments have
terminated or expired, the percentage which (a) the Aggregate Canadian Revolving
Credit Outstandings of such Canadian Lender at such time constitutes of (b) the
Aggregate Canadian Revolving Credit Outstandings of all Canadian Lenders at such
time).
"Canadian Revolving Credit Loan": as defined in subsection 5.1.
"Canadian Revolving Credit Note": as defined in subsection 5.2(e).
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of Capital Stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government, the Canadian Government,
Japan or any member of the European Economic Community or any other government
approved by the General Administrative Agent (which approval shall not be
unreasonably withheld), (b) securities issued or unconditionally guaranteed or
insured by any state of the United States of America or province of Canada or
any agency or instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇, (c) time deposits, certificates of
deposit and bankers' acceptances having maturities of not more than twelve
months from the date of acquisition, in each case with any U.S. Lender or
Canadian Lender or with any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia,
Japan, Canada or any member of the European Economic Community or any U.S.
branch of a foreign bank having at the date of acquisition capital and surplus
of not less than $100,000,000, (d) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(a), (b) and (c) entered into with any bank meeting the qualifications specified
in clause (c) above, (e) commercial paper issued by the parent corporation of
any U.S. Lender and commercial paper rated, at the time of acquisition, at least
"A-1" or the equivalent thereof by S&P or "P-1" or the equivalent thereof by
▇▇▇▇▇'▇ and in either case maturing within twelve months after the date of
acquisition, (e) deposits maintained with money market funds having total assets
in excess of $300,000,000, (f) demand deposit accounts maintained in the
ordinary course of business with banks or trust companies, (g) temporary
deposits, of amounts received in the ordinary course of business pending
disbursement of such amounts, in demand deposit accounts in banks outside the
United States and (h) deposits in mutual funds which
8
invest substantially all of their assets in preferred equities issued by U.S.
corporations rated at least "AA" (or the equivalent thereof) by S & P; provided,
that notwithstanding the foregoing, Cash Equivalents shall, in any event,
include all cash and cash equivalents as set forth in the U.S. Borrower's
balance sheet prepared in accordance with GAAP.
"CDOR Rate": the rate per annum determined by the Canadian
Administrative Agent by reference to the average rate quoted on the Reuters
Monitor Screen, Page "CDOR" (or such other Page as may replace such Page) on
such screen for the purpose of displaying Canadian interbank bid rates for
Canadian Dollar bankers' acceptances with a 90 day term as of 10:00 a.m.
(Toronto time) one Business Day prior to the first day of such 90 day term. If
for any reason the Reuters Monitor Screen rates are unavailable, CDOR Rate means
the rate of interest determined by the Canadian Administrative Agent which is
equal to the arithmetic mean of the rates quoted by such reference banks as may
be specified from time to time by the Canadian Administrative Agent, after
consultation with the Canadian Borrower, in respect of Canadian Dollar bankers'
acceptances with a 90 day term as of 10:00 a.m. one Business Day prior to the
first day of such 90 day term.
"Change in Control": (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Capital
Stock representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the U.S. Borrower; or
(b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the U.S. Borrower by Persons who were neither (i) nominated by
the board of directors of the U.S. Borrower nor (ii) appointed by directors so
nominated.
"Closing Date": the date on which all of the conditions precedent set
forth in subsection 11.1 shall have been satisfied or waived.
"Co-Agents": as defined on Schedule VI hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Letters of Credit": as defined in subsection 8.1(a).
"Commitment Increase": as defined in subsection 2.6.
"Commitment Increase Date": as defined in subsection 2.6.
"Commitments": the collective reference to the U.S. Revolving Credit
Commitments, the Canadian Revolving Credit Commitments and the Multicurrency
Commitments.
"Committed Outstandings Percentage": on any date with respect to any
Lender, the percentage which the Adjusted Aggregate Committed Outstandings of
such Lender constitutes of the Adjusted Aggregate Committed Outstandings of all
Lenders.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument;
provided, that the designation by any Lender of a Conduit Lender shall not
relieve the designating Lender of any of its obligations to fund a Loan under
this Agreement if, for any reason, its Conduit Lender fails to fund any such
Loan, and the designating Lender (and not the Conduit Lender) shall have the
sole right and responsibility to deliver all consents and waivers required or
9
requested under this Agreement with respect to its Conduit Lender, and provided,
further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 9.10, 9.11, 9.12 or 17.5 than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment.
"Confidential Information": as defined in Section 17.19.
"Consolidated Assets": at a particular date, all amounts which would
be included under total assets on a consolidated balance sheet of the U.S.
Borrower and its Subsidiaries as at such date, determined in accordance with
GAAP.
"Consolidated Indebtedness": at a particular date, all Indebtedness of
the U.S. Borrower and its Subsidiaries which would be included under
indebtedness on a consolidated balance sheet of the U.S. Borrower and its
Subsidiaries as at such date, determined in accordance with GAAP, less any cash
and Cash Equivalents of the U.S. Borrower and its Subsidiaries as at such date.
"Consolidated Interest Expense": for any fiscal period, the amount
which would, in conformity with GAAP, be set forth opposite the caption
"interest expense" (or any like caption) on a consolidated income statement of
the U.S. Borrower and its Subsidiaries for such period and, to the extent not
otherwise included in "interest expense," any other discounts and expenses
comparable to or in the nature of interest under any Receivable Financing
Transaction; provided, that Consolidated Interest Expense for any period shall
(a) exclude (i) fees payable in respect of such period under subsection 9.5 of
this Agreement, and (ii) any amortization or write-off of deferred financing
fees during such period and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the consolidated net
income (or deficit) of the U.S. Borrower and its Subsidiaries for such period
(taken as a cumulative whole), determined in accordance with GAAP; provided that
any provision for post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the "pay as
you go" basis, shall not to be taken into account.
"Consolidated Operating Profit": for any fiscal period, Consolidated
Net Income for such period excluding (a) extraordinary gains and losses arising
from the sale of material assets and other extraordinary and/or non-recurring
gains and losses, (b) charges, premiums and expenses associated with the
discharge of Indebtedness, (c) charges relating to FAS 106, (d) license fees
(and any write-offs thereof), (e) stock compensation expense, (f) deferred
financing fees (and any write-offs thereof), (g) write-offs of goodwill, (h)
foreign exchange gains and losses, (i) miscellaneous income and expenses and (j)
miscellaneous gains and losses arising from the sale of assets plus, to the
extent deducted in determining Consolidated Net Income, the excess of (i) the
sum of (A) Consolidated Interest Expense, (B) any expenses for taxes, (C)
depreciation and amortization expense and (D) minority interests in income of
Subsidiaries over (ii) net equity earnings in Affiliates (excluding
Subsidiaries). For purposes of calculating the ratio set forth in subsection
13.1(a), Consolidated Operating Profit for any fiscal period shall in any event
include the Consolidated Operating Profit for such fiscal period of any entity
acquired by the U.S. Borrower or any of its Subsidiaries during such period.
"Consolidated Revenues": for any fiscal period, the consolidated
revenues of the U.S. Borrower and its Subsidiaries for such period, determined
in accordance with GAAP.
10
"Continuing Directors": the directors of the U.S. Borrower on the
Closing Date and each other director, if such other director's nomination for
election to the Board of Directors of the U.S. Borrower is recommended by a
majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
indenture, agreement or other instrument to which such Person is a party or by
which it or any of its property is bound.
"Conversion Date": any date on which either (a) an Event of Default
under Section 15(h), (i) or (j) has occurred or (b) the Commitments shall have
been terminated prior to the Revolving Credit Termination Date and/or the Loans
shall have been declared immediately due and payable, in either case pursuant to
Section 15.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans or Acceptances, as the case may be, of such Lender
outstanding in any currency other than U.S. Dollars, the percentage of such
Loans or Acceptances, as the case may be, such that, after giving effect to the
conversion of such Loans or Acceptances, as the case may be, to U.S. Dollars and
the purchase and sale by such Lender of participating interests as contemplated
by subsection 17.8, the Committed Outstandings Percentage of such Lender will
equal such Lender's U.S. Revolving Credit Commitment Percentage on such date
(calculated immediately prior to giving effect to any termination or expiration
of the U.S. Revolving Credit Commitments on the Conversion Date).
"Converted Acceptances": as defined in subsection 17.8(a).
"Converted Loans": as defined in subsection 17.8(a).
"Counterpart Lender": (a) as to any U.S. Lender, the Canadian Lender
(if any) set forth opposite such U.S. Lender's name in Schedule I under the
heading "Counterpart Lender" and (b) as to any Canadian Lender, the U.S. Lender
set forth opposite such Canadian Lender's name in Schedule I under the heading
"Counterpart Lender".
"Default": any of the events specified in Section 15, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disclosed Matters": the actions, suits and proceedings and the
environmental matters disclosed in Schedule IV.
"Documentation Agents": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Loan Party": each Loan Party that is organized under the
laws of any jurisdiction of the United States.
"Domestic Subsidiary": any Subsidiary other than a Foreign Subsidiary.
"Draft": a draft substantially in the form of Exhibit C or in such
other form as the Canadian Administrative Agent may from time to time reasonably
request (or to the extent the context shall require, an Acceptance Note,
delivered in lieu of a draft), as the same may be amended, supplemented or
otherwise modified from time to time.
11
"EMU": Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU Legislation": legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more member
states.
"Environmental Laws": all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability": any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate": any trade or business (whether or not incorporated)
that, together with the U.S. Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event": (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the U.S. Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the U.S. Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by the U.S. Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the U.S. Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from the U.S. Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"euro": the single currency of the European Union as constituted by
the Treaty on European Union and as referred to in EMU Legislation.
"Eurocurrency Liabilities": at any time, the aggregate of the rates
(expressed as a decimal fraction) of any reserve requirements in effect at such
time (including, without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other
12
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period pertaining
to a Multicurrency Loan, the Eurocurrency Rate determined for such Interest
Period and the Available Foreign Currency in which such Multicurrency Loan is
denominated in the manner set forth in the Administrative Schedule.
"Eurodollar Loans": U.S. Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": (a) with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period and (b) with respect to each day
during each Interest Period pertaining to a European Swing Line Multicurrency
Dollar Loan, the rate per annum (rounded upwards, if necessary, to the next
basis point) equal to the arithmetic average of the rates at which deposits in
Dollars approximately equal in principal amount to such Swing Line Multicurrency
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London offices of JPMorgan Chase Bank in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time on
the date of commencement of such Interest Period. In the event that the rate
referred to in clause (a) above does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the "Eurodollar Rate" shall be determined
by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the General Administrative Agent in
consultation with the U.S. Borrower or, in the absence of such availability, by
reference to the rate at which the General Administrative Agent is offered
Dollar deposits at or about 11:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"European Economic Community": that certain organization established
in 1958 by treaty between Belgium, France, Italy, Luxembourg, the Netherlands
and West Germany, which was formerly known as the Common Market.
"European Swing Line Multicurrency Dollar Loan": each Swing Line
Multicurrency Loan denominated in U.S. Dollars requested from the London office
of the Swing Line Multicurrency Lender (or such other European office so
designated by the Swing Line Multicurrency Lender).
"euro unit": the currency unit of the euro as defined in the EMU
Legislation.
"Event of Default": any of the events specified in Section 15,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
"Exchange Rate": (a) with respect to Canadian Dollars on any date, the
Bank of Canada noon spot rate on such date, and (b) with respect to any other
non-U.S. Dollar currency on any date, the rate at which such currency may be
exchanged into U.S. Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In the event
that such rate
13
does not appear on any Reuters currency page, the "Exchange Rate" with respect
to such non-U.S. Dollar currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the General Administrative Agent and the U.S. Borrower or, in the absence of
such agreement, such "Exchange Rate" shall instead be the General Administrative
Agent's spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non-U.S. Dollar currency are then being
conducted, at or about 10:00 A.M., local time, on such date for the purchase of
U.S. Dollars with such non-U.S. Dollar currency, for delivery two Business Days
later; provided, that if at the time of any such determination, no such spot
rate can reasonably be quoted, the General Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
"Existing Credit Agreement": as defined in the recitals hereto.
"Existing Letters of Credit": as defined in subsection 8.1(b).
"Extension of Credit": as to any Lender, the making of a Loan by such
Lender, the acceptance of a Draft or an Acceptance Note by such Lender or the
issuance of, or extension of the expiry date under, any Letter of Credit. For
purposes of Section 11.2, it is expressly understood and agreed that the
following do not constitute Extensions of Credit for purposes of this Agreement:
(a) the conversions and continuations of U.S. Revolving Credit Loans as or to
Eurodollar Loans or ABR Loans pursuant to subsection 9.2, (b) the substitution
of maturing Acceptances with new Acceptances, (c) the conversion of Acceptances
to Canadian Revolving Credit Loans, (d) the conversion of Canadian Revolving
Credit Loans to Acceptances and (e) the continuation of Multicurrency Loans for
additional Interest Periods.
"Facility Fee Rate": the rate per annum determined pursuant to the
Pricing Grid.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates per annum on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the General
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Financing Lease": (a) any lease of property, real or personal, the
obligations under which are capitalized on a consolidated balance sheet of the
U.S. Borrower and its Subsidiaries and (b) any other such lease to the extent
that the then present value of the minimum rental commitment thereunder should,
in accordance with GAAP, be capitalized on a balance sheet of the lessee.
"First Lender": as defined in subsection 17.8(c).
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a Fixed
Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at a fixed rate (as opposed to a rate
composed of the LIBO Rate plus (or minus) a margin).
"Foreign Letter of Credit": a Letter of Credit whose beneficiary is a
Person which is directly or indirectly extending credit to a Foreign Subsidiary.
14
"Foreign Subsidiaries": each of the Subsidiaries so designated on
Schedule V and any Subsidiaries organized outside the United States which are
created after the effectiveness hereof.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed as a
Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 17.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agents and the Lenders covering the matters set
forth on Exhibit M, with such assumptions, qualifications and deviations
therefrom as the General Administrative Agent shall approve (such approval not
to be unreasonably withheld).
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"General Administrative Agent": JPMorgan Chase Bank, together with its
affiliates, as arranger of the Commitments and as general administrative agent
for the Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 16.9.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation shall be deemed to be an amount
equal to the value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made (unless such Guarantee Obligation shall be expressly limited to a lesser
amount, in which case such lesser amount shall apply) or, if not stated or
determinable, the value as of any date of determination of the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Guarantor Supplement": a supplement to the Subsidiary Guarantee,
substantially in the form of Annex A to the Subsidiary Guarantee, whereby a
Subsidiary of the U.S. Borrower becomes a "Guarantor" under the Subsidiary
Guarantee.
"Hazardous Materials": all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
15
"Hedging Agreement": means any and all agreements, devices or
arrangements designed to protect the U.S. Borrower or any of its Subsidiaries
from the fluctuations of interest rates, commodity prices, exchange rates
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, commodity swap agreements, forward rate
currency or interest rate options, puts and warrants. Notwithstanding anything
herein to the contrary, "Hedging Agreements" shall also include
fixed-for-floating interest rate swap agreements and similar instruments.
"Hedging Agreement Obligations": means all obligations of the U.S.
Borrower or any Subsidiary to any Person under any one or more Hedging
Agreements.
"Increasing Lender": as defined in subsection 2.6.
"Indebtedness": of a Person, at a particular date, the sum (without
duplication) at such date of (a) indebtedness for borrowed money or for the
deferred purchase price of property or services in respect of which such Person
is liable as obligor, (b) indebtedness secured by any Lien on any property or
asset owned or held by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by or is a primary liability of such
Person, (c) obligations of such Person under Financing Leases, (d) the face
amount of all letters of credit issued for the account of such Person and,
without duplication, the unreimbursed amount of all drafts drawn thereunder and
(e) obligations (in the nature of principal or interest) of such Person in
respect of acceptances or similar obligations issued or created for the account
of such Person; but excluding (i) trade and other accounts payable in the
ordinary course of business in accordance with customary trade terms and which
are not overdue for more than 120 days or, if overdue for more than 120 days, as
to which a dispute exists and adequate reserves in conformity with GAAP have
been established on the books of such Person, (ii) deferred compensation
obligations to employees and (iii) any obligations otherwise constituting
Indebtedness the payment of which such Person has provided for pursuant to the
terms of such Indebtedness or any agreement or instrument pursuant to which such
Indebtedness was incurred, by the irrevocable deposit in trust of an amount of
funds or a principal amount of securities, which deposit is sufficient, either
by itself or taking into account the accrual of interest thereon, to pay the
principal of and interest on such obligations when due.
"Index Debt": means senior, unsecured, long-term indebtedness for
borrowed money; provided that ratings issued by S&P may be based on the U.S.
Borrower's corporate credit rating, and ratings issued by Moody's may be based
on the U.S. Borrower's senior unsecured issuer rating.
"Interest Payment Date": (a) as to any ABR Loan and any Prime Rate
Loan, the last day of each March, June, September and December to occur while
such Loan is outstanding, (b) as to any Swing Line Multicurrency Loan
denominated in euros or Pounds Sterling or any Eurodollar Loan, European Swing
Line Multicurrency Dollar Loan or Multicurrency Loan having an Interest Period
of three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan, European Swing Line Multicurrency Dollar Loan or Multicurrency
Loan having an Interest Period longer than three months, (i) each day which is
three months, or a whole multiple thereof, after the first day of such Interest
Period and (ii) the last day of such Interest Period and (d) as to any Money
Market Rate Swing Line Loan, the last day of the interest period with respect
thereto selected by the U.S. Borrower and the relevant Swing Line Lender.
"Interest Period": (a) with respect to any Eurodollar Loan, European
Swing Line Multicurrency Dollar Loan or Multicurrency Loan, (i) initially, the
period commencing on the borrowing
16
or conversion date, as the case may be, with respect to such Eurodollar Loan,
European Swing Line Multicurrency Dollar Loan or Multicurrency Loan and ending
(A) one or two weeks or one, two, three or six months thereafter, or (B) with
the consent of all the Lenders making such Loan, nine or twelve months
thereafter, as selected by the relevant Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and (ii)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan, European Swing Line
Multicurrency Dollar Loan or Multicurrency Loan and ending (A) one or two weeks
or one, two, three or six months thereafter, or (B) with the consent of all the
Lenders making such Loan, nine or twelve months thereafter, as selected by the
relevant Borrower by irrevocable notice to the General Administrative Agent
prior to 12:00 Noon, New York City time, not less than three Business Days prior
to the last day of the then current Interest Period with respect thereto, with
respect to Eurodollar Loans and European Swing Line Multicurrency Dollar Loans,
or by the time specified for the Notice of Multicurrency Loan Continuation with
respect to any Multicurrency Loans set forth in the Administrative Schedule and
(b) with respect to any Swing Line Multicurrency Borrowing denominated in euros
or Pounds Sterling, the period commencing on the date of such borrowing and
ending on the day that is designated in the notice delivered pursuant to
subsection 3.2(a) with respect to such borrowing, which shall not be later than
the seventh day thereafter;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan,
Multicurrency Loan or Swing Line Multicurrency Loan would otherwise end on
a day that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan,
Multicurrency Loan or Swing Line Multicurrency Loan that would otherwise
extend beyond the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date; and
(iii) any Interest Period pertaining to a Eurodollar Loan or
Multicurrency Loan (other than an Interest Period of one or two weeks'
duration in respect of Loans denominated in U.S. Dollars) that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.
"Issuance Date": as defined in subsection 2.5(c).
"Issuing Lender": JPMorgan Chase Bank (or any Affiliate of JPMorgan
Chase Bank), in its capacity as issuer of the Letters of Credit and any other
U.S. Lender which the U.S. Borrower, the General Administrative Agent and the
Majority U.S. Lenders shall have approved, in its capacity as issuer of the
Letters of Credit.
"Joinder Agreement": a joinder agreement, substantially in the form of
Exhibit I hereto, pursuant to which a Foreign Subsidiary becomes a Foreign
Subsidiary Borrower hereunder.
"JPMorgan Chase Bank": JPMorgan Chase Bank, N.A.
"Judgment Currency": as defined in subsection 17.18(b).
17
"Lenders": as defined in the preamble hereto, provided that no Person
shall become a "Lender" hereunder after the Closing Date without compliance with
subsection 17.6(c).
"Lesser Period": as defined in subsection 9.6(a).
"Letter of Credit Applications": (a) in the case of Standby Letters of
Credit, a letter of credit application for a Standby Letter of Credit on the
standard form of the applicable Issuing Lender for standby letters of credit,
and (b) in the case of Commercial Letters of Credit, a letter of credit
application for a Commercial Letter of Credit on the standard form of the
applicable Issuing Lender for commercial letters of credit.
"Letter of Credit Obligations": at any particular time, all
liabilities of the U.S. Borrower and any Subsidiary with respect to Letters of
Credit, whether or not any such liability is contingent, including (without
duplication) the sum of (a) the aggregate undrawn face amount of all Letters of
Credit then outstanding plus (b) the aggregate amount of all unpaid
Reimbursement Obligations and Subsidiary Reimbursement Obligations.
"Letter of Credit Participation Certificate": a participation
certificate in the form customarily used by the Issuing Lender for such purpose
at the time such certificate is issued.
"Letters of Credit": as defined in subsection 8.1(a).
"Leverage Ratio": for any date of determination the ratio of (i)
Consolidated Indebtedness on such date of determination to (ii) Consolidated
Operating Profit for the four consecutive fiscal quarters most recently ended on
or prior to such date of determination; provided that, if at any time the
aggregate amount of Indebtedness associated with Receivable Financing
Transactions exceeds $500,000,000, an amount equal to the excess over
$500,000,000 shall be included in the determination of "Consolidated
Indebtedness".
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the London
interbank offered rate for deposits in Dollars for the period commencing on the
date of such CAF Advance and ending on the CAF Advance Maturity Date with
respect thereto which appears on Telerate Page 3750 as of 11:00 A.M., London
time, two Business Days prior to the beginning of such period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO Rate
CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the LIBO
Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement (other than in the ordinary course), encumbrance, lien (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement or any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, any
Notes, the Drafts, the Acceptances, the Acceptance Notes and the Subsidiary
Guarantee.
18
"Loan Parties": the collective reference to the Borrowers and each
guarantor party to the Subsidiary Guarantee.
"Loans": the collective reference to the Revolving Credit Loans, the
Swing Line Loans, the CAF Advances and the Multicurrency Loans.
"Loans to be Converted": as defined in subsection 17.8(a).
"Local Time": (a) with respect to a Swing Line Multicurrency Loan
requested from the United States office of the Swing Line Multicurrency Lender
or a Swing Line Dollar Loan, New York City time and (b) with respect to a Swing
Line Multicurrency Loan requested from the London office of the Swing Line
Multicurrency Lender, London time.
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and exchange.
"Majority Canadian Lenders": at any time, Canadian Lenders whose
Canadian Revolving Credit Commitment Percentages aggregate more than 50%.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, the Majority U.S. Lenders; and (b) at any time
after the termination of the Revolving Credit Commitments, Lenders whose
Aggregate Total Outstandings aggregate more than 50% of the Aggregate Total
Outstandings of all Lenders; provided that for purposes of this definition the
Aggregate Total Outstandings of each Lender shall be adjusted up or down so as
to give effect to any participations purchased or sold pursuant to subsection
17.8.
"Majority Multicurrency Lenders": at any time, Multicurrency Lenders
whose Multicurrency Commitment Percentages aggregate more than 50%.
"Majority U.S. Lenders": at any time, U.S. Lenders whose U.S.
Revolving Credit Commitment Percentages aggregate more than 50%.
"Managing Agents": as defined on Schedule VI hereto.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, operations or financial condition of the U.S. Borrower and the
Subsidiaries taken as a whole, (b) the ability of the U.S. Borrower to perform
any of its material obligations under this Agreement and the Notes to which it
is a party or (c) the material rights of or material benefits available to the
Lenders under this Agreement and the other Loan Documents.
"Material Indebtedness": Indebtedness (other than Indebtedness under
this Agreement), Guarantee Obligations or obligations in respect of one or more
Hedging Agreements, of any one or more of the U.S. Borrower and its Subsidiaries
in an aggregate principal amount exceeding $50,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
the U.S. Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the U.S. Borrower or such Subsidiary would be required to pay
if such Hedging Agreement were terminated at such time.
"Material Subsidiary": each Loan Party and any other Subsidiary which
(a) for the most recent fiscal year of the U.S. Borrower accounted for more than
10% of Consolidated Revenues or (b) as
19
of the end of such fiscal year, was the owner of more than 10% of Consolidated
Assets, all as shown on the consolidated financial statements of the U.S.
Borrower for such fiscal year.
"Money Market Rate": as defined in subsection 3.2(b).
"Money Market Rate Swing Line Loan": as defined in subsection 3.2(b).
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to, and/or participate in Swing
Line Multicurrency Loans made to, the U.S. Borrower or Foreign Subsidiary
Borrowers in an aggregate amount in Available Foreign Currencies (or U.S.
Dollars, with respect to Swing Line Multicurrency Loans denominated in U.S.
Dollars) which the U.S. Dollar Equivalent does not exceed at any time
outstanding the lesser of (a) the amount set forth opposite such Multicurrency
Lender's name in Schedule I under the heading "Multicurrency Commitment", and
(b) the U.S. Revolving Credit Commitment of such Multicurrency Lender, in each
case as such amount may be reduced from time to time as provided in subsection
7.4 and the other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency Lender
at any time, the percentage which such Multicurrency Lender's Multicurrency
Commitment then constitutes of the aggregate Multicurrency Commitments (or, if
the Multicurrency Commitments have terminated or expired, the percentage which
(a) the U.S. Dollar Equivalent of the Aggregate Multicurrency Outstandings of
such Multicurrency Lender at such time constitutes of (b) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of all Multicurrency
Lenders at such time).
"Multicurrency Funding Commitment Percentage": as at any date of
determination, with respect to any Multicurrency Lender, that percentage which
the Available Multicurrency Commitment of such Multicurrency Lender then
constitutes of the Aggregate Available Multicurrency Commitments.
"Multicurrency Lender": each Lender having an amount greater than zero
set forth opposite such Lender's name in Schedule I under the heading
"Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 7.1.
"Multiemployer Plan": a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency Unit": the unit of currency (other than a euro
unit) of a Participating Member State.
"Non-Canadian Lender": each U.S. Lender which is not a U.S. Common
Lender.
"Non-Multicurrency Lender": each U.S. Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to the U.S. Revolving Credit Notes
and the Canadian Revolving Credit Notes.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on its
behalf) in respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time (which
20
Notice of Multicurrency Loan Borrowing shall be received on or before 11:00
A.M., London time, on a date which is at least three Business Days prior to the
date of such borrowing), specified for a Notice of Multicurrency Loan Borrowing
in respect of the currency of such Loan in the Administrative Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on its
behalf) in respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Continuation in respect of the currency of such
Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and interest on
the Loans, the Reimbursement Obligations, the Subsidiary Reimbursement
Obligations, Hedging Agreement Obligations entered into by any Borrower with any
Lender (or any Affiliate of a Lender) and all other obligations and liabilities
(including, with respect to the Canadian Borrower, Acceptance Reimbursement
Obligations) of (a) the U.S. Borrower under or in connection with this Agreement
(including, without limitation, the obligations under Section 14 hereof) and the
other Loan Documents, (b) the Canadian Borrower under this Agreement and the
other Loan Documents and (c) each Foreign Subsidiary Borrower under this
Agreement and the other Loan Documents (including, without limitation, interest
accruing at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest accruing
at the then applicable rate provided in this Agreement or any other applicable
Loan Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the U.S. Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, the Notes, the
Acceptances, the Acceptance Notes, the Letters of Credit, the Letter of Credit
Applications, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of counsel
to the Administrative Agents or to the Lenders that are required to be paid by
any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Other Lender": as defined in subsection 17.8(c).
"Participants": as defined in subsection 17.6(b).
"Participating Interest": with respect to any Letter of Credit (a) in
the case of the Issuing Lender with respect thereto, its interest in such Letter
of Credit and any Letter of Credit Application relating thereto after giving
effect to the granting of any participating interests therein pursuant hereto
and (b) in the case of each Participating Lender, its undivided participating
interest in such Letter of Credit and any Letter of Credit Application relating
thereto.
"Participating Lender": any U.S. Lender (other than the Issuing
Lender) with respect to its Participating Interest in a Letter of Credit.
"Participating Member State": any member state of the EMU which has
the euro as its lawful currency.
"Patriot Act": as defined in Section 17.21.
21
"PBGC": the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Powers of Attorney": as defined in subsection 6.2(b).
"Pricing Grid":
Applicable Margin
------------------------------------------
ABR Loans,
Canadian Base
Leverage Ratio/Index Eurodollar/Eurocurrency Rate Loans and Facility Fee
Category Debt Rating Level Loans Prime Rate Loans Rate
-------- ---------------------------------- ----------------------- ---------------- ------------
I less than or equal to 1.0:1.0 or .40% 0% .10%
greater than or equal to BBB+
or greater than or equal to Baa1
II less than or equal to 1.5:1.0 or .50% 0% .125%
greater than or equal to BBB
or greater than or equal to Baa2
III less than or equal to 2.00:1.00 or .60% 0% .15%
greater than or equal to BBB-
or greater than or equal to Baa3
IV less than or equal to 3.00:1.00 or .85% 0% .25%
greater than or equal to BB+
or greater than or equal to Ba1
V greater than 3.00:1.00 or 1.00% 0% .35%
less than BB+ or less than Ba1
Changes in the Applicable Margin or in the Facility Fee Rate resulting
from changes in the Leverage Ratio shall become effective on the Adjustment
Date and shall remain in effect until the next change to be effected
pursuant to the definition of "Adjustment Date"; provided that if the
financial statements and related compliance certificate for any fiscal
period are not delivered by the date due pursuant to subsections 12.1 and
12.2(a), the Applicable Margin shall be (i) for the first five days
subsequent to such due date, the Applicable Margin then in effect on the
day prior to such due date, and (ii) thereafter, Category V, in either
case, until the subsequent Adjustment Date. Changes in the Applicable
Margin or in the Facility Fee Rate resulting from changes in the Index Debt
rating by S&P or Moody's shall become effective on the Business Day
following the announcement of such new rating. If either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason
of the circumstances referred to in the following sentence), then such
rating agency shall be deemed to have established a rating in Category V.
If the rating system of Moody's or S&P shall change, or if either such
rating agency
22
shall cease to be in the business of rating corporate debt obligations, the
U.S. Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness of any such
amendment, the rating of the Index Debt shall be determined by reference to
the rating most recently in effect prior to such change or cessation. The
Applicable Margin and the Facility Fee Rate shall be determined on the
basis of the applicable Leverage Ratio or applicable Index Debt rating
level, as the case may be, that yields the lower pricing.
"Prime Rate": at any day, the greater on such day of (a) the rate per
annum announced by the Canadian Administrative Agent from time to time (and in
effect on such day) as its prime rate for Canadian Dollar commercial loans made
in Canada, as adjusted automatically from time to time and without notice to any
of the Borrowers upon change by the Canadian Administrative Agent, and (b) 1%
above the CDOR Rate from time to time (and in effect on such day), as advised by
the Canadian Administrative Agent to the Canadian Borrower from time to time
pursuant hereto. The Prime Rate is not intended to be the lowest rate of
interest charged by the Canadian Administrative Agent in connection with
extensions of credit in Canadian Dollars to debtors.
"Prime Rate Loans": all Canadian Revolving Credit Loans denominated in
Canadian Dollars, which shall bear interest at a rate based upon the Prime Rate.
"Professional Market Party": a "professional market party
(professionele marktparij)" under the Exemption Regulation of the Dutch Minister
of Finance (Vrijstellingsregeling WtK 1992), which includes as of the date
hereof:
(i) banks, insurance companies, securities firms, investment
institutions, pension funds, or subsidiaries of any of the foregoing, that are
(a) supervised or licensed under Netherlands law or (b) established in a
European Economic Area member state (other than the Netherlands), Monaco, Puerto
Rico, Saudi Arabia, Turkey, South Korea, the United States, Japan, Australia,
Canada, Mexico, New Zealand or Switzerland, and are adequately supervised in
their country of establishment;
(ii) investment institutions which offer their participations
exclusively to professional market parties and are not required to be supervised
or licensed under Netherlands law;
(iii) institutions or enterprises having total assets of at least
E500,000,000 (or the equivalent thereof in another currency) according to the
balance sheet as at the end of the financial year preceding the year during
which the relevant transaction takes place; and
(iv) institutions, enterprises, or natural persons having a net equity
of at least E10,000,000 (or the equivalent thereof in another currency) as at
the end of the year preceding the year during which the relevant transaction
takes place and who or which have been active on the financial markets on an
average of twice a month over a period of at least two consecutive years
preceding the relevant transaction.
"Public Indebtedness": Indebtedness issued in a public offering, Rule
144A transaction or Regulation S transaction.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for Multicurrency Loans or the determination of the
Swing Line Multicurrency Rate for any Swing Line Multicurrency Loans in any
Available Foreign Currency, the day on which quotations
23
would ordinarily be given by prime banks in the London interbank market for
deposits in such Available Foreign Currency for delivery on the first day of
such Interest Period; provided, that if quotations would ordinarily be given on
more than one date, the Quotation Day for such Interest Period shall be the last
of such dates. On the date hereof, the Quotation Day in respect of any Interest
Period for any Available Foreign Currency (other than the euro) is customarily
the last London Banking Day prior to the beginning of such Interest Period which
is (a) at least two London Banking Days prior to the beginning of such Interest
Period and (b) a day on which banks are open for general banking business in the
city which is the principal financial center of the country of issue of such
Available Foreign Currency (and, in the case of Pounds Sterling, in London); and
the Quotation Day in respect of any Interest Period for the euro is the day
which is two Target Operating Days prior to the first day of such Interest
Period.
"Receivable Financing Transaction": any transaction or series of
transactions involving a sale for cash of accounts receivable, without recourse
based upon the collectibility of the receivables sold, by the U.S. Borrower or
any of its Subsidiaries to a Special Purpose Subsidiary and a subsequent sale or
pledge of such accounts receivable (or an interest therein) by such Special
Purpose Subsidiary, in each case without any guarantee by the U.S. Borrower or
any of its Subsidiaries (other than the Special Purpose Subsidiary).
"Reference Discount Rate": on any date with respect to each Draft
requested to be accepted by a Canadian Lender, (a) if such Canadian Lender is a
Schedule I Canadian Lender, the arithmetic average of the discount rates
(expressed as a percentage calculated on the basis of a year of 365 days) quoted
by the Toronto offices of the Canadian Administrative Agent, at 10:00 A.M.
(Toronto time) on the Borrowing Date as the discount rate at which such Canadian
Administrative Agent would, in the normal course of its business, purchase on
such date Acceptances having an aggregate face amount and term to maturity as
designated by the Canadian Borrower pursuant to Section 6.2 and (b) if such
Canadian Lender is a Schedule II Canadian Lender, the arithmetic average of the
discount rates (expressed as a percentage calculated on the basis of a year of
365 days) quoted by the Toronto offices of each of the Schedule II Canadian
Reference Lenders, at 10:00 A.M. (Toronto time) on the Borrowing Date as the
discount rate at which each such Schedule II Canadian Reference Lender would, in
the normal course of its business, purchase on such date Acceptances having an
aggregate face amount and term to maturity as designated by the Canadian
Borrower pursuant to subsection 6.2. The Canadian Administrative Agent shall
advise the Canadian Borrower and the Canadian Lenders, either in writing or
verbally, by 11:00 A.M. (Toronto time) on the Borrowing Date as to the
applicable Reference Discount Rate and corresponding Acceptance Purchase Price
in respect of Acceptances having the maturities selected by the Canadian
Borrower for such Borrowing Date. Notwithstanding the foregoing, the Canadian
Borrower, the Canadian Administrative Agent and the Canadian Lenders, may agree
upon alternative methods of determining the Reference Discount Rate from time to
time.
"Refunded Swing Line Dollar Loans": as defined in subsection 3.4(a).
"Refunded Swing Line Multicurrency Loans": as defined in subsection
3.4(b).
"Register": as defined in subsection 17.6(d).
"Reimbursement Obligation": the obligation of the U.S. Borrower to
reimburse the Issuing Lender in accordance with the terms of this Agreement and
the related Letter of Credit Application for any payment made by the Issuing
Lender under any Letter of Credit.
"Representatives": as defined in Section 17.19.
24
"Requested Acceptances": as defined in subsection 2.5(a).
"Requested Canadian Revolving Credit Loans": as defined in subsection
2.5(a).
"Requested Letter of Credit": as defined in subsection 2.5(c).
"Requested Multicurrency Loans": as defined in subsection 2.5(b).
"Requested Swing Line Multicurrency Loans": as defined in subsection
2.5(d).
"Request for Acceptances": as defined in subsection 6.2(a).
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership agreement or
other organizational or governing documents of such Person, and any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject, and (b) any property, any law, treaty, rule, regulation, requirement,
judgment, decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject, including,
without limitation, any Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the chief
executive officer, the president, the chief financial officer, any vice
president, the treasurer or the assistant treasurer of such Loan Party.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to but not including the Revolving Credit Termination Date, or
such earlier date on which the Revolving Credit Commitments shall terminate as
provided herein.
"Revolving Credit Commitments": the collective reference to the U.S.
Revolving Credit Commitments, the Canadian Revolving Credit Commitments and the
Multicurrency Commitments.
"Revolving Credit Loans": the collective reference to the U.S.
Revolving Credit Loans, the Canadian Revolving Credit Loans and the
Multicurrency Loans; each, individually, a "Revolving Credit Loan".
"Revolving Credit Termination Date": March 23, 2010.
"S&P": Standard & Poor's Rating Group or any successor to the rating
agency business thereof.
"Schedule I Canadian Lender": each Canadian Lender listed on Schedule
I to the Bank Act (Canada).
"Schedule I Canadian Reference Lender": The Bank of Nova Scotia.
"Schedule II Canadian Lender": each Canadian Lender which is not a
Schedule I Canadian Lender.
25
"Schedule II Canadian Reference Lenders": one or more Schedule II
Canadian Lenders selected by the U.S. Borrower with the consent of all the
Schedule II Canadian Lenders.
"Securities Act": the Securities Act of 1933, as amended.
"Senior Managing Agents": as defined on Schedule VI hereto.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of the U.S.
Borrower created by the U.S. Borrower for the sole purpose of facilitating a
Receivable Financing Transaction; provided, that such Special Purpose Subsidiary
shall cease to be a Special Purpose Subsidiary if at any time (a) such Special
Purpose Subsidiary engages in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) the U.S. Borrower or
any of its Subsidiaries (other than a Special Purpose Subsidiary) or any of
their respective assets incur any liability, direct or indirect, contingent or
otherwise, in respect of any obligation of a Special Purpose Subsidiary whether
arising under or in connection with any Receivable Financing Transaction or
otherwise.
"Specified Guarantee Obligations": the collective reference to (a)
Guarantee Obligations of (i) the U.S. Borrower under this Agreement and (ii) of
the Subsidiaries under the Subsidiary Guarantee and any Bond Guarantee, (b)
Guarantee Obligations of any Subsidiary Guarantor in respect of obligations of
the U.S. Borrower or any other Subsidiary Guarantor, (c) Guarantee Obligations
of any Subsidiary that is not a Subsidiary Guarantor in respect of obligations
of any other Subsidiary that is not a Subsidiary Guarantor, (d) Guarantee
Obligations in respect of operating leases and other contracts entered into in
the ordinary course of business which do not constitute Indebtedness, and (e)
Guarantee Obligations of the U.S. Borrower in respect of obligations of any
Subsidiary that are permitted to be incurred under this Agreement.
"Specified Indebtedness": the collective reference to (a) Indebtedness
in respect of the Extensions of Credit and other obligations arising under this
Agreement and, without duplication, Indebtedness of any Subsidiary backed by
Letters of Credit issued under this Agreement, (b) Indebtedness in respect of
Hedging Agreement Obligations entered into to protect against fluctuations in
interest rates, exchange rates or commodity prices and not for speculative
reasons, (c) Indebtedness incurred by a Special Purpose Subsidiary in connection
with a Receivable Financing Transaction and (d) intercompany Indebtedness.
"Specified Lender": as defined in subsection 2.5(c).
"Specified Liens": the collective reference to (a) Liens for taxes not
yet due or which are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books
of the U.S. Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting
principles in effect from time to time in their respective jurisdictions of
organization), (b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary course of
business relating to obligations not overdue for a period of more than 60 days
or which are bonded or being contested in good faith by appropriate proceedings,
(c) pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation, including any Lien securing
letters of credit issued in the ordinary course of business in connection
therewith and deposits securing liabilities to insurance carriers under
insurance and self-insurance programs, (d) Liens (other than any Lien imposed by
ERISA) incurred on deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
26
and appeal bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business, (e) easements,
rights-of-way, restrictions and other similar encumbrances incurred which, in
the aggregate, do not materially interfere with the ordinary conduct of the
business of the U.S. Borrower and its Subsidiaries taken as a whole, (f)
attachment, judgment or other similar Liens arising in connection with court or
arbitration proceedings fully covered by insurance or involving individually or
in the aggregate, no more than $50,000,000 at any one time, provided that the
same are discharged, or that execution or enforcement thereof is stayed pending
appeal, within 60 days or, in the case of any stay of execution or enforcement
pending appeal, within such lesser time during which such appeal may be taken,
(g) Liens securing obligations (other than obligations representing Indebtedness
for borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business, (h) statutory Liens and rights
of offset arising in the ordinary course of business of the U.S. Borrower and
its Subsidiaries, (i) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than the U.S.
Borrower or any Subsidiary of the U.S. Borrower) under any lease, (j) Liens
arising in connection with Industrial Development Bonds or other industrial
development, pollution control or other tax-favored or government-sponsored
financing transactions, provided that such liens do not at any time encumber any
property, other than the property financed by such transaction and other
property, assets or revenues related to the property so financed on which Liens
are customarily granted in connection with such transactions (in each case,
together with improvements and attachments thereto), (k) Liens on receivables
subject to a Receivable Financing Transaction, (l) Liens securing Hedging
Agreement Obligations entered into to protect against fluctuations in interest
rates or exchange rates or commodity prices and not for speculative purposes,
provided that such Liens run in favor of a Lender hereunder or a Person who was,
at the time of issuance, a Lender, (m) Liens (including, without limitation,
Liens incurred in connection with Financing Leases, operating leases and sale
leaseback transactions) securing Indebtedness of the U.S. Borrower and its
Subsidiaries incurred to finance the acquisition of property, provided that (i)
such Liens shall be created prior to or within 90 days after the purchase of
such property, (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the
purchase price of such property, (n) Liens securing acquired Indebtedness,
provided that (i) such Liens existed at the time such entity became a Subsidiary
or such assets were acquired and were not created in anticipation thereof, (ii)
any such Lien does not by its terms cover any property or assets after the time
such entity became or becomes a Subsidiary or such assets were acquired which
were not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any Indebtedness
other than Indebtedness existing immediately prior to the time such entity
became or becomes a Subsidiary or such assets were acquired and (o) extensions,
renewals and replacements of any Lien described in clauses (a) through (n)
above.
"Standby Letters of Credit": as defined in subsection 8.1(a).
"Subsequent Participant": any member state of the EMU that adopts the
euro as its lawful currency after January 1, 1999.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or both,
by such Person (exclusive of any Affiliate in which such Person has a
27
minority ownership interest). Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the U.S. Borrower.
"Subsidiary and Secured Indebtedness": the collective reference
(without duplication) to (a) any Indebtedness of any Subsidiary, other than
Specified Indebtedness, (b) any Guarantee Obligation of any Subsidiary, other
than Specified Guarantee Obligations, (c) any Indebtedness or Guarantee
Obligation of any Person that is secured by any Lien on any property, assets or
revenues of the U.S. Borrower or any of its Subsidiaries, other than Specified
Liens. For purposes of clause (b) of the preceding sentence, the amount of any
Guarantee Obligation shall be determined as set forth in the definition of
"Guarantee Obligation" in this subsection 1.1; and for purposes of clause (c) of
the preceding sentence, the amount of any Indebtedness or Guarantee Obligation
that is secured by a Lien on any property, assets or revenues of the U.S.
Borrower or any of its Subsidiaries shall equal the lesser of (x) the amount of
any such Indebtedness or Guarantee Obligation and (y) the fair market value as
of the date of determination of the property, assets or revenues subject to such
Lien. At any time of determination, the amount of Subsidiary and Secured
Indebtedness outstanding shall be determined without duplication of any other
Subsidiary and Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of the date
hereof, made by certain Subsidiaries of the U.S. Borrower in favor of the
General Administrative Agent, substantially in the form of Exhibit N, as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor party to
the Subsidiary Guarantee, so long as the Subsidiary Guarantee remains in effect.
"Subsidiary Reimbursement Obligation": the obligation of any
Subsidiary to reimburse the Issuing Lender in accordance with the terms of this
Agreement and the related Letter of Credit Application for any payment made by
the Issuing Lender under any Letter of Credit.
"Swing Line Dollar Borrowing": a borrowing comprised of Swing Line
Dollar Loans.
"Swing Line Dollar Commitment": as to the Swing Line Dollar Lender, in
its capacity as the Swing Line Dollar Lender, its obligation to make Swing Line
Dollar Loans to the U.S. Borrower which Loans shall not exceed an aggregate
principal amount at any one time outstanding of $150,000,000.
"Swing Line Dollar Lender": BofA, in its capacity as provider of the
Swing Line Dollar Loans.
"Swing Line Dollar Loans" and "Swing Line Dollar Loan": as defined in
subsection 3.1.
"Swing Line Lenders": the collective reference to the Swing Line
Dollar Lender and the Swing Line Multicurrency Lender.
"Swing Line Loans": the collective reference to each Swing Line Dollar
Loan and each Swing Line Multicurrency Loan.
"Swing Line Multicurrency Borrowing": a borrowing comprised of Swing
Line Multicurrency Loans.
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"Swing Line Multicurrency Dollar Loan": each Swing Line Multicurrency
Loan denominated in U.S. Dollars requested from the United States office of the
Swing Line Multicurrency Lender.
"Swing Line Multicurrency Commitment": as to the Swing Line
Multicurrency Lender, in its capacity as the Swing Line Multicurrency Lender,
its obligation to make Swing Line Multicurrency Loans to the U.S. Borrower or
any Foreign Subsidiary Borrower which Loans shall not exceed an aggregate
principal amount at any one time outstanding of $150,000,000.
"Swing Line Multicurrency Lender": JPMorgan Chase Bank, in its
capacity as provider of the Swing Line Multicurrency Loans.
"Swing Line Multicurrency Loans" and "Swing Line Multicurrency Loan":
as defined in subsection 3.1.
"Swing Line Multicurrency Rate" shall mean with respect to any Swing
Line Multicurrency Borrowing, (a) for an Interest Period of 1 day or 7 days, the
rate per annum determined by the General Administrative Agent on the Quotation
Day for such Interest Period by reference to the British Bankers' Association
Interest Settlement Rates for deposits in the currency of such borrowing (as
reflected on the applicable Telerate screen page), for a period equal to such
Interest Period or (b) for any other Interest Period, the average (rounded
upward, if necessary, to the next 1/100 of 1%) of the respective interest rates
per annum at which deposits in the currency of such Swing Line Multicurrency
Borrowing are offered for such Interest Period to major banks in the London
interbank market by JPMorgan Chase Bank on the Quotation Day.
"Syndication Agent": as defined in the preamble hereto.
"Target Operating Day": any day that is not (a) a Saturday or Sunday,
(b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the General Administrative
Agent).
"Tax Act": the Income Tax Act (Canada), as amended from time to time.
"Taxes": as defined in subsection 9.12(a).
"Tranche": the collective reference to Eurodollar Loans, Multicurrency
Loans or Swing Line Multicurrency Loans the then current Interest Periods with
respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).
"Transactions": the execution, delivery and performance by the Loan
Parties of the Loan Documents to which each is a party, the borrowing of Loans
hereunder, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Transferee": as defined in subsection 17.6(f).
"Treaty on European Union": the Treaty of Rome of March 25, 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
29
"Type": as to any U.S. Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan, and as to any Canadian Revolving Credit Loan, its
nature as a Canadian Base Rate Loan or a Prime Rate Loan.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Common Lender": each U.S. Lender which has a Counterpart Lender.
"U.S. Dollar Equivalent": with respect to an amount denominated in any
currency other than U.S. Dollars, the equivalent in U.S. Dollars of such amount
determined at the Exchange Rate on the date of determination of such equivalent.
In making any determination of the U.S. Dollar Equivalent for purposes of
calculating the amount of Loans to be borrowed from, or the face amount of
Acceptances to be created by, the respective Lenders on any Borrowing Date, the
General Administrative Agent or the Canadian Administrative Agent, as the case
may be, shall use the relevant Exchange Rate in effect on the date on which the
relevant Borrower delivers a borrowing notice for such Loans or Acceptance, as
the case may be, pursuant to the provisions of this Agreement and the other Loan
Documents.
"U.S. Dollar Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any Loans made
on such date pursuant to subsection 2.5), with respect to any U.S. Lender, that
percentage which the Available U.S. Revolving Credit Commitment of such U.S.
Lender then constitutes of the Aggregate Available U.S. Revolving Credit
Commitments.
"U.S. Lenders": the Lenders listed in Part A of Schedule I hereto.
"U.S. Prime Rate": the rate of interest per annum publicly announced
from time to time by the General Administrative Agent as its prime rate in
effect at its principal office in New York City. The U.S. Prime Rate is not
intended to be the lowest rate of interest charged by the General Administrative
Agent in connection with extensions of credit to borrowers.
"U.S. Revolving Credit Commitment": as to any U.S. Lender at any time,
its obligation to make U.S. Revolving Credit Loans to, and/or participate in
Swing Line Dollar Loans made to and Letters of Credit issued for the account of,
the U.S. Borrower and its Subsidiaries in an aggregate amount not to exceed at
any time outstanding the U.S. Dollar amount set forth opposite such U.S.
Lender's name in Schedule I under the heading "U.S. Revolving Credit
Commitment", as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions hereof.
"U.S. Revolving Credit Commitment Percentage": as to any U.S. Lender
at any time, the percentage which such U.S. Lender's U.S. Revolving Credit
Commitment then constitutes of the aggregate U.S. Revolving Credit Commitments
of all U.S. Lenders (or, if the U.S. Revolving Credit Commitments have
terminated or expired, the percentage which (a) the Aggregate U.S. Revolving
Credit Outstandings of such U.S. Lender at such time then constitutes of (b) the
Aggregate U.S. Revolving Credit Outstandings of all U.S. Lenders at such time).
"U.S. Revolving Credit Loan": as defined in subsection 2.1.
"U.S. Revolving Credit Note": as defined in subsection 2.2(e).
"Utilization Fee": as defined in subsection 9.5(g).
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"Utilization Percentage": for any calendar quarter (or such shorter
period beginning with the Closing Date or ending with the Revolving Credit
Termination Date), the percentage equivalent to a fraction (a) the numerator of
which is the average daily Aggregate Total Outstandings of all Lenders during
such calendar quarter or shorter period, if applicable; and (b) the denominator
of which is the average daily aggregate U.S. Revolving Credit Commitments during
such calendar quarter or shorter period, if applicable (or, on any day after
termination of the U.S. Revolving Credit Commitments, the aggregate U.S.
Revolving Credit Commitments in effect immediately preceding such termination).
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common Capital Stock or
other ownership interests of such corporation, partnership or other entity or
(b) more than 95% of the common Capital Stock or other ownership interests of
such corporation, partnership or other entity where the portion of the common
Capital Stock or other ownership interests not held by such Person is held by
other Persons to satisfy applicable legal requirements, is owned, directly or
indirectly, by such Person.
"Withdrawal Liability": any liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
1.2 Other Definitional Provisions. (a)Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes, the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the U.S. Borrower and its Subsidiaries not defined
in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT COMMITMENTS
2.1 U.S. Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each U.S. Lender severally agrees to make revolving credit
loans (each, a "U.S. Revolving Credit Loan") in U.S. Dollars to the U.S.
Borrower from time to time during the Revolving Credit Commitment Period so long
as after giving effect thereto (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments. During the Revolving Credit Commitment Period, the
U.S. Borrower may use the U.S. Revolving Credit Commitments by borrowing,
prepaying the U.S. Revolving Credit Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
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(b) The U.S. Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the General Administrative Agent in
accordance with subsections 2.3 and 9.2, provided that no U.S. Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the Revolving Credit Termination Date.
2.2 Repayment of U.S. Revolving Credit Loans; Evidence of Debt. (a)
The U.S. Borrower hereby unconditionally promises to pay to the General
Administrative Agent for the account of each U.S. Lender the then unpaid
principal amount of each U.S. Revolving Credit Loan of such U.S. Lender (whether
made before or after the termination or expiration of the U.S. Revolving Credit
Commitments) on the Revolving Credit Termination Date and on such other date(s)
and in such other amounts as may be required from time to time pursuant to this
Agreement. The U.S. Borrower hereby further agrees to pay interest on the unpaid
principal amount of the U.S. Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in subsection 9.1.
(b) Each U.S. Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such U.S. Lender resulting from each U.S. Revolving Credit Loan of such U.S.
Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such U.S. Lender from time to time under this
Agreement.
(c) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for each U.S. Lender, in which shall be
recorded (i) the date and amount of each U.S. Revolving Credit Loan made
hereunder, the Type thereof and each Interest Period applicable thereto, (ii)
the date of each continuation thereof pursuant to subsection 9.2, (iii) the date
of each conversion of all or a portion thereof to another Type pursuant to
subsection 9.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each U.S. Lender
hereunder in respect of the U.S. Revolving Credit Loans and (v) both the date
and amount of any sum received by the General Administrative Agent hereunder
from the U.S. Borrower in respect of the U.S. Revolving Credit Loans and each
U.S. Lender's share thereof.
(d) The entries made in the Register and the accounts of each U.S.
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any U.S. Lender or the Administrative Agents to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligations of the U.S. Borrower to repay (with applicable interest) the U.S.
Revolving Credit Loans made to the U.S. Borrower by such U.S. Lender in
accordance with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the General
Administrative Agent by any U.S. Lender, the U.S. Borrower will execute and
deliver to such U.S. Lender a promissory note of the U.S. Borrower evidencing
the Revolving Credit Loans of such U.S. Lender, substantially in the form of
Exhibit A with appropriate insertions as to date and principal amount (each, a
"U.S. Revolving Credit Note"); provided, that the delivery of such U.S.
Revolving Credit Notes shall not be a condition precedent to the Closing Date.
2.3 Procedure for U.S. Revolving Credit Borrowing. The U.S. Borrower
may borrow under the U.S. Revolving Credit Commitments during the Revolving
Credit Commitment Period
32
on any Business Day, provided that the U.S. Borrower shall give the General
Administrative Agent irrevocable notice (which notice must be received by the
General Administrative Agent prior to 12:00 Noon, New York City time, at least
(a) three Business Days prior to the requested Borrowing Date, if all or any
part of the requested U.S. Revolving Credit Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the U.S.
Revolving Credit Commitments (other than a borrowing under subsection 2.5,
subsection 3.4 or to pay a like amount of Reimbursement Obligations or
Subsidiary Reimbursement Obligations) shall be in an amount equal to (A) in the
case of ABR Loans, except any ABR Loan made pursuant to subsection 3.4,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
Aggregate Available U.S. Revolving Credit Commitments are less than $10,000,000,
such lesser amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a
whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the U.S. Borrower, the General Administrative Agent shall promptly notify
each U.S. Lender and the Canadian Administrative Agent thereof. Not later than
12:00 Noon, New York City time, on each requested Borrowing Date each U.S.
Lender shall make an amount equal to its U.S. Dollar Funding Commitment
Percentage of the principal amount of the U.S. Revolving Credit Loans requested
to be made on such Borrowing Date available to the General Administrative Agent
at its office specified in subsection 17.2 in U.S. Dollars and in immediately
available funds. Except as otherwise provided in subsection 2.5 or 3.4, the
General Administrative Agent shall on such date credit the account of the U.S.
Borrower on the books of such office with the aggregate of the amounts made
available to the General Administrative Agent by the U.S. Lenders and in like
funds as received by the General Administrative Agent.
2.4 Termination or Reduction of U.S. Revolving Credit Commitments. The
U.S. Borrower shall have the right, upon not less than five Business Days'
notice to the General Administrative Agent, to terminate the U.S. Revolving
Credit Commitments or, from time to time, to reduce the amount of the U.S.
Revolving Credit Commitments; provided that no such termination or reduction
shall be permitted if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, the Available U.S. Revolving Credit
Commitment or Available Multicurrency Commitment of any U.S. Lender, or the
Available Canadian Revolving Credit Commitment of any Canadian Lender, would be
less than zero. Any such reduction shall be in an amount equal to $2,500,000 or
a whole multiple of $500,000 in excess thereof and shall reduce permanently the
U.S. Revolving Credit Commitments then in effect.
2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of Loans.
(a) If on any Borrowing Date on which the Canadian Borrower has requested the
Canadian Lenders to make Canadian Revolving Credit Loans (the "Requested
Canadian Revolving Credit Loans") or to create Acceptances (the "Requested
Acceptances"), (i) the sum of (A) the principal amount of the Requested Canadian
Revolving Credit Loans to be made by any Canadian Lender and (B) the aggregate
undiscounted face amount of the Requested Acceptances to be created by such
Canadian Lender exceeds the Available Canadian Revolving Credit Commitment of
such Canadian Lender on such Borrowing Date (before giving effect to the making
and payment of any Loans required to be made pursuant to this subsection 2.5 on
such Borrowing Date) and (ii) the U.S. Dollar Equivalent of the amount of such
excess is less than or equal to the aggregate Available U.S. Revolving Credit
Commitments of all Non-Canadian Lenders (before giving effect to the making and
payment of any Loans pursuant to this subsection 2.5 on such Borrowing Date),
each Non-Canadian Lender shall make a U.S. Revolving Credit Loan to the U.S.
Borrower on such Borrowing Date, and the proceeds of such U.S. Revolving Credit
Loans shall be
33
simultaneously applied to repay outstanding U.S. Revolving Credit Loans and/or
Multicurrency Loans of the U.S. Common Lenders (as directed by the U.S.
Borrower) in each case in amounts such that, after giving effect to (1) such
borrowings and repayments and (2) the borrowing from the Canadian Lenders of the
Requested Canadian Revolving Credit Loans or the creation by the Canadian
Lenders of the Requested Acceptances, the Committed Outstandings Percentage of
each U.S. Lender will equal (as nearly as possible) its U.S. Revolving Credit
Commitment Percentage. To effect such borrowings and repayments, (x) not later
than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds of
such U.S. Revolving Credit Loans shall be made available by each Non-Canadian
Lender to the General Administrative Agent at its office specified in subsection
17.2 in U.S. Dollars and in immediately available funds and the General
Administrative Agent shall apply the proceeds of such U.S. Revolving Credit
Loans toward repayment of outstanding U.S. Revolving Credit Loans and/or
Multicurrency Loans of the U.S. Common Lenders (as directed by the U.S.
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Canadian Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Canadian Revolving Credit Loans
(or create the Requested Acceptances) in an aggregate amount equal to the amount
so requested by the Canadian Borrower (but not in any event greater than the
Aggregate Available Canadian Revolving Credit Commitments after giving effect to
the making of such repayment of any Loans on such Borrowing Date) and (II) the
relevant Borrower shall pay to the General Administrative Agent for the account
of the Lenders whose Loans to such Borrower are repaid on such Borrowing Date
pursuant to this subsection 2.5 all interest accrued on the amounts repaid to
the date of repayment, together with any amounts payable pursuant to subsection
9.11 in connection with such repayment.
(b) If on any Borrowing Date on which a Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the principal amount of the Requested Multicurrency Loans to be
made by any Multicurrency Lender exceeds the Available Multicurrency Commitment
of such Multicurrency Lender on such Borrowing Date (before giving effect to the
making and payment of any Loans required to be made pursuant to this subsection
2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent of the amount of
such excess is less than or equal to the aggregate Available U.S. Revolving
Credit Commitments of all Non-Multicurrency Lenders (before giving effect to the
making and payment of any Loans pursuant to this subsection 2.5 on such
Borrowing Date), each Non-Multicurrency Lender shall make a U.S. Revolving
Credit Loan to the U.S. Borrower on such Borrowing Date, and the proceeds of
such U.S. Revolving Credit Loans shall be simultaneously applied to repay
outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans and/or
Multicurrency Loans of the Multicurrency Lenders or their Counterpart Lenders
(as directed by the U.S. Borrower) in each case in amounts such that, after
giving effect to (1) such borrowings and repayments and (2) the borrowing from
the Multicurrency Lenders of the Requested Multicurrency Loans, the Committed
Outstandings Percentage of each U.S. Lender will equal (as nearly as possible)
its U.S. Revolving Credit Commitment Percentage. To effect such borrowings and
repayments, (x) not later than 12:00 Noon, New York City time, on such Borrowing
Date, the proceeds of such U.S. Revolving Credit Loans shall be made available
by each Non-Multicurrency Lender to the General Administrative Agent at its
office specified in subsection 17.2 in U.S. Dollars and in immediately available
funds and the General Administrative Agent shall apply the proceeds of such U.S.
Revolving Credit Loans toward repayment of outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans and/or Multicurrency Loans of the
Multicurrency Lenders or their Counterpart Lenders (as directed by the U.S.
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by such Borrower (but not in
any event greater than the Aggregate Available Multicurrency Commitments after
giving effect to the making of such repayment of any Loans on such Borrowing
Date) and (II) the relevant Borrower shall pay to the General
34
Administrative Agent for the account of the Lenders whose Loans to such Borrower
are repaid on such Borrowing Date pursuant to this subsection 2.5 all interest
accrued on the amounts repaid to the date of repayment, together with any
amounts payable pursuant to subsection 9.11 in connection with such repayment.
(c) If on any date on which the U.S. Borrower has requested an Issuing
Lender to issue a Letter of Credit (the "Requested Letter of Credit"; the date
on which such Requested Letter of Credit is to be issued, the "Issuance Date"),
(i) the Available U.S. Revolving Credit Commitment of any U.S. Lender (each such
Lender, a "Specified Lender") would be equal to or less than zero (after giving
effect to the issuance of such Requested Letter of Credit, but before giving
effect to the making and payment of any Loans required to be made pursuant to
this subsection 2.5 on such Issuance Date) and (ii) the U.S. Dollar Equivalent
of the aggregate amount by which the Available U.S. Revolving Credit Commitments
of all Specified Lenders would be less than zero is less than or equal to the
aggregate Available U.S. Revolving Credit Commitments of all U.S. Lenders
(before giving effect to the making and payment of any Loans pursuant to this
subsection 2.5 on such Issuance Date), each U.S. Lender other than a Specified
Lender shall make a U.S. Revolving Credit Loan to the U.S. Borrower on such
Issuance Date, and the proceeds of such U.S. Revolving Credit Loans shall be
simultaneously applied to repay outstanding U.S. Revolving Credit Loans,
Canadian Revolving Credit Loans and/or Multicurrency Loans of the Specified
Lenders or their Counterpart Lenders (as directed by the U.S. Borrower) in each
case in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the issuance of the Requested Letter of Credit, the Committed
Outstandings Percentage of each U.S. Lender will equal (as nearly as possible)
its U.S. Revolving Credit Commitment Percentage. To effect such borrowings,
issuance and repayments, (x) not later than 12:00 Noon, New York City time, on
such Issuance Date, the proceeds of such U.S. Revolving Credit Loans shall be
made available by each U.S. Lender other than a Specified Lender to the General
Administrative Agent at its office specified in subsection 17.2 in U.S. Dollars
and in immediately available funds and the General Administrative Agent shall
apply the proceeds of such U.S. Revolving Credit Loans toward repayment of
outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans and/or
Multicurrency Loans of the Specified Lenders or their Counterpart Lenders (as
directed by the U.S. Borrower) and (y) concurrently with the repayment of such
Loans on such Issuance Date, (I) the relevant Issuing Lender shall, in
accordance with the applicable provisions hereof, issue the Requested Letter of
Credit and (II) the relevant Borrower shall pay to the General Administrative
Agent for the account of the Lenders whose Loans to such Borrower are repaid on
such Issuance Date pursuant to this subsection 2.5 all interest accrued on the
amounts repaid to the date of repayment, together with any amounts payable
pursuant to subsection 9.11 in connection with such repayment.
(d) If on any Borrowing Date on which a Borrower has requested the
Swing Line Multicurrency Lender to make Swing Line Multicurrency Loans (the
"Requested Swing Line Multicurrency Loans"), (i) the principal amount of the
Requested Swing Line Multicurrency Loans to be made by the Swing Line
Multicurrency Lender exceeds the Aggregate Available Multicurrency Commitments
on such Borrowing Date (before giving effect to the making and payment of any
Loans required to be made pursuant to this subsection 2.5 on such Borrowing
Date) and (ii) the U.S. Dollar Equivalent of the amount of such excess is less
than or equal to the aggregate Available U.S. Revolving Credit Commitments of
all Non-Multicurrency Lenders (before giving effect to the making and payment of
any Loans pursuant to this subsection 2.5 on such Borrowing Date), each
Non-Multicurrency Lender shall make a U.S. Revolving Credit Loan to the U.S.
Borrower on such Borrowing Date, and the proceeds of such U.S. Revolving Credit
Loans shall be simultaneously applied to repay outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans and/or Multicurrency Loans of the
Multicurrency Lenders or their Counterpart Lenders (as directed by the U.S.
Borrower) in amounts such that, after
35
giving effect to (1) such borrowings and repayments and (2) the borrowing from
the Swing Line Multicurrency Lender of the Requested Swing Line Multicurrency
Loans, the Committed Outstandings Percentage of each U.S. Lender will equal (as
nearly as possible) its U.S. Revolving Credit Commitment Percentage. To effect
such borrowings and repayments, (x) not later than 12:00 Noon, New York City
time, on such Borrowing Date, the proceeds of such U.S. Revolving Credit Loans
shall be made available by each Non-Multicurrency Lender to the General
Administrative Agent at its office specified in subsection 17.2 in U.S. Dollars
and in immediately available funds and the General Administrative Agent shall
apply the proceeds of such U.S. Revolving Credit Loans toward repayment of
outstanding U.S. Revolving Credit Loans, Canadian Revolving Credit Loans and/or
Multicurrency Loans of the Multicurrency Lenders or their Counterpart Lenders
(as directed by the U.S. Borrower) and (y) concurrently with the repayment of
such Loans on such Borrowing Date, (I) the Swing Line Multicurrency Lender
shall, in accordance with the applicable provisions hereof, make the Requested
Swing Line Multicurrency Loans in an aggregate amount equal to the amount so
requested by such Borrower (but not in any event greater than the Aggregate
Available Multicurrency Commitments, after giving effect to the making of such
repayment of any Loans on such Borrowing Date) and (II) the relevant Borrower
shall pay to the General Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.5 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 9.11 in
connection with such repayment.
(e) If any borrowing of U.S. Revolving Credit Loans is required
pursuant to this subsection 2.5, the U.S. Borrower shall notify the General
Administrative Agent in the manner provided for U.S. Revolving Credit Loans in
subsection 2.3, except that the minimum borrowing amounts and threshold
multiples in excess thereof applicable to ABR Loans set forth in subsection 2.3
shall not be applicable to the extent that such minimum borrowing amounts exceed
the amounts of U.S. Revolving Credit Loans required to be made pursuant to this
subsection 2.5.
2.6 Increase in U.S. Revolving Credit Commitments. The U.S. Borrower
may, at any time by notice to the General Administrative Agent, propose an
increase in the U.S. Revolving Credit Commitments (each such proposed increase
being a "Commitment Increase") either by having a U.S. Lender increase its U.S.
Revolving Credit Commitment then in effect (each an "Increasing Lender") or by
adding as a U.S. Lender with a new U.S. Revolving Credit Commitment which is not
then a U.S. Lender hereunder (each an "Assuming Lender") (with, in the case of
any Commitment Increase provided by an Assuming Lender, the approval of the
General Administrative Agent, each Issuing Lender and the Swing Line Dollar
Lender, which consent shall not be unreasonably withheld), which notice shall
specify the name of each Increasing Lender and/or Assuming Lender, as
applicable, the amount of the Commitment Increase and the portion thereof being
assumed by each such Increasing Lender or Assuming Lender, and the date on which
such Commitment Increase is to be effective (the "Commitment Increase Date")
(which shall be a Business Day at least three Business Days after delivery of
such notice and 30 days prior to the Commitment Termination Date); provided,
that:
(a) the minimum amount of the increase of the U.S. Revolving Credit
Commitment of any Increasing Lender, and the minimum amount of the U.S.
Revolving Credit Commitment of any Assuming Lender, as part of any
Commitment Increase shall be $10,000,000 or a larger multiple of
$10,000,000;
(b) immediately after giving effect to any Commitment Increase, the
Aggregate U.S. Revolving Credit Commitments hereunder shall not exceed
$2,500,000,000;
36
(c) no Default or Event of Default shall have occurred and be
continuing on the relevant Commitment Increase Date or shall result from
any Commitment Increase;
(d) the General Administrative Agent shall have received (i) a copy of
the resolutions, in form and substance satisfactory to the General
Administrative Agent, of the Board of Directors or the Executive Committee
of the Board of Directors of the U.S. Borrower authorizing the borrowings
contemplated pursuant to such increase, certified by the Secretary or an
Assistant Secretary of the U.S. Borrower and (ii) from any Assuming Lender,
any administrative information reasonably requested from the General
Administrative Agent;
(e) the representations and warranties contained in Article X (other
than Section 10.2), and in each of the other Loan Documents, are complete
and correct in all material respects, as if made on and as of such date
(or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date); and
(f) immediately after giving effect to any Commitment Increase, no
U.S. Lender's U.S. Revolving Credit Commitment shall exceed 25% of the
Aggregate U.S. Revolving Credit Commitments.
Each Commitment Increase (and the increase of the U.S. Revolving Credit
Commitment of each Increasing Lender and/or the new U.S. Revolving Credit
Commitment of each Assuming Lender, as applicable, resulting therefrom) shall
become effective as of the relevant Commitment Increase Date upon receipt by the
General Administrative Agent, on or prior to 11:00 a.m., New York City time, on
such Commitment Increase Date, of (A) a certificate of a duly authorized officer
of the U.S. Borrower stating that the conditions with respect to such Commitment
Increase under this subsection 2.6 have been satisfied and (B) an agreement, in
form and substance reasonably satisfactory to the U.S. Borrower and the General
Administrative Agent, pursuant to which, effective as of such Commitment
Increase Date, the U.S. Revolving Credit Commitment of each such Increasing
Lender shall be increased and/or each such Assuming Lender shall undertake a
U.S. Revolving Credit Commitment, duly executed by such Increasing Lender or
Assuming Lender, as the case may be, and the Borrower and acknowledged by each
Person for whom consent is required. Upon the General Administrative Agent's
receipt of a fully executed agreement from each Increasing Lender and/or
Assuming Lender referred to in clause (B) above, together with the certificate
referred to in clause (A) above, the General Administrative Agent shall record
the information contained in each such agreement in the Register and give prompt
notice of the relevant Commitment Increase to the Borrowers and the Lenders
(including, if applicable, each Assuming Lender). On each Commitment Increase
Date, in the event U.S. Revolving Credit Loans or Swing Line Dollar Loans are
then outstanding, (i) each relevant Increasing Lender and Assuming Lender shall
make available to the General Administrative Agent such amounts in immediately
available funds as such General Administrative Agent shall determine, for the
benefit of the other relevant U.S. Lenders, as being required in order to cause,
after giving effect to such increase and the application of such amounts to make
payments to such other relevant U.S. Lenders, the U.S. Revolving Credit Loans
(and risk participations in outstanding Swing Line Dollar Loans) to be held
ratably by all U.S. Lenders in accordance with their respective U.S. Revolving
Credit Commitments, (ii) the U.S. Borrower shall be deemed to have prepaid and
reborrowed all outstanding U.S. Revolving Credit Loans and Swing Line Dollar
Loans as of such Commitment Increase Date (with such borrowing to consist of the
Loans, with related Interest Periods if applicable, specified in a notice
delivered by the U.S. Borrower in accordance with the requirements of subsection
2.3 (with respect to U.S. Revolving Credit Loans) or subsection 3.1 (with
respect to Swing Line Dollar Loans)) and (iii) the U.S. Borrower shall pay to
the relevant U.S. Lenders the amounts, if any, payable under subsection 9.11 as
a result of such prepayment.
37
SECTION 3. AMOUNT AND TERMS OF SWING LINE COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and conditions
hereof, (a) the Swing Line Dollar Lender agrees to make swing line loans
(individually, a "Swing Line Dollar Loan"; collectively, the "Swing Line Dollar
Loans") in U.S. Dollars to the U.S. Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the Swing Line Dollar Commitment, so long as
after giving effect thereto (i) the Available U.S. Revolving Credit Commitment
of each U.S. Lender is greater than or equal to zero and (ii) the Aggregate
Total Outstandings of all Lenders do not exceed the Aggregate U.S. Revolving
Credit Commitments and (b) the Swing Line Multicurrency Lender agrees to make
swing line loans (individually, a "Swing Line Multicurrency Loan"; collectively,
the "Swing Line Multicurrency Loans") in U.S. Dollars, euros, Pounds Sterling or
any other Available Foreign Currency to the U.S. Borrower or any Foreign
Subsidiary Borrower from time to time during the Revolving Credit Commitment
Period in an aggregate principal amount at any one time outstanding such that
the U.S. Dollar Equivalent of outstanding Swing Line Multicurrency Loans does
not exceed the Swing Line Multicurrency Commitment, and so long as after giving
effect thereto (i) the Available Multicurrency Commitment of each Multicurrency
Lender is greater than or equal to zero and (ii) the Aggregate Total
Outstandings of all Lenders do not exceed the Aggregate U.S. Revolving Credit
Commitments. Amounts borrowed by the U.S. Borrower or the relevant Foreign
Subsidiary Borrower under this Section 3 may be repaid and, during the Revolving
Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a) The U.S.
Borrower or any Foreign Subsidiary Borrower shall give the Swing Line Dollar
Lender or the Swing Line Multicurrency Lender, as the case may be, (with a copy
to the General Administrative Agent) irrevocable notice (which notice must be
received by the relevant Swing Line Lender prior to 11:00 A.M., Local Time on
the requested Borrowing Date (or, with respect to Swing Line Multicurrency Loans
denominated in Swedish Kroner, on the Business Day before the requested
Borrowing Date)) specifying (i) in the case of a Swing Line Multicurrency
Borrowing, the Borrower requesting such borrowing, (ii) the requested date
(which shall be a Business Day), (iii) in the case of a Swing Line Multicurrency
Borrowing, whether such borrowing is to be denominated in U.S. Dollars, euros,
Pounds Sterling or, subject to such advance notice requirement that may be
specified by the Swing Line Multicurrency Lender, any Available Foreign
Currency, (iv) the amount of the requested Swing Line Dollar Borrowing
(expressed in Dollars) or Swing Line Multicurrency Borrowing (expressed in U.S.
Dollars, euros, Pounds Sterling or such other Available Foreign Currency), as
applicable, and (v) in the case of a Swing Line Multicurrency Borrowing (other
than a Swing Line Multicurrency Dollar Loan), the Interest Period to be
applicable thereto; provided, that the amount of the requested Swing Line Dollar
Loan or Swing Line Multicurrency Loan shall be in an aggregate principal amount
of not less than the U.S. Dollar Equivalent of $100,000 (or, with respect to
Swing Line Dollar Loans only, a whole multiple of $100,000 in excess thereof).
The proceeds of each Swing Line Dollar Loan will be made available by the Swing
Line Dollar Lender to the U.S. Borrower at the office specified in the notice
referred to above by crediting the account of the U.S. Borrower at such office
with such proceeds in U.S. Dollars. The proceeds of each Swing Line
Multicurrency Loan will be made available by the Swing Line Multicurrency Lender
to the relevant Borrower at the office specified in the notice referred to above
by crediting the account of such Borrower at such office with such proceeds in
the requested currency.
(b) Unless otherwise agreed between the U.S. Borrower and the Swing
Line Dollar Lender (or, with respect to Swing Line Multicurrency Dollar Loans
only, the Swing Line Multicurrency Lender), each Swing Line Dollar Loan and
Swing Line Multicurrency Dollar Loan shall be an ABR Loan.
38
Any such ABR Loan may not be converted into a Eurodollar Loan. If, however, the
U.S. Borrower and the Swing Line Dollar Lender (or, with respect to Swing Line
Multicurrency Dollar Loans only, the Swing Line Multicurrency Lender) agree that
a Swing Line Dollar Loan or a Swing Line Multicurrency Dollar Loan, as
applicable (each, a "Money Market Rate Swing Line Loan") shall bear interest at
a fixed interest rate (a "Money Market Rate") for a fixed interest period of up
to seven days, such Money Market Rate Swing Line Loan shall bear interest for
such interest period at such interest rate so agreed upon. If a Money Market
Rate Swing Line Loan is not repaid on the last day of the interest period with
respect thereto, it shall on such date be converted automatically to an ABR
Loan. A Money Market Rate Swing Line Loan shall not be optionally prepayable
prior to the last day of the interest period with respect thereto except with
the consent of the Swing Line Dollar Lender (or, with respect to Swing Line
Multicurrency Dollar Loans only, the Swing Line Multicurrency Lender).
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to the Swing Line Dollar Lender
the then unpaid principal amount of the Swing Line Dollar Loans on the Revolving
Credit Termination Date and on such other dates and in such other amounts as may
be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest to the Swing Line Dollar Lender on the
unpaid principal amount of the Swing Line Dollar Loans made by the Swing Line
Dollar Lender from time to time outstanding until payment thereof in full at the
rates per annum, and on the dates, set forth in subsection 9.1. On each date of
payment of principal of a Swing Line Dollar Loan to the Swing Line Dollar
Lender, the U.S. Borrower shall provide written notice of such payment to the
General Administrative Agent to be received by the General Administrative Agent
on the date of such payment.
(b) Each of the U.S. Borrower and each Foreign Subsidiary Borrower
hereby unconditionally promises to pay to the Swing Line Multicurrency Lender
the then unpaid principal amount of the Swing Line Multicurrency Loans made to
such Borrower on the Revolving Credit Termination Date and on such other dates
and in such other amounts as may be required from time to time pursuant to this
Agreement. Each of the U.S. Borrower and each Foreign Subsidiary Borrower hereby
further agrees to pay interest to the Swing Line Multicurrency Lender on the
unpaid principal amount of the Swing Line Multicurrency Loans made by the Swing
Line Multicurrency Lender to such Borrower from time to time outstanding until
payment thereof in full at the rates per annum, and on the dates, set forth in
subsection 9.1. On each date of payment of principal of a Swing Line
Multicurrency Loan to the Swing Line Multicurrency Lender, the relevant Borrower
shall provide written notice of such payment to the General Administrative Agent
to be received by the General Administrative Agent on the date of such payment.
(c) Each Swing Line Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower
and, with respect to Swing Line Multicurrency Loans, each Foreign Subsidiary
Borrower resulting from each Swing Line Loan made by it from time to time,
including the amounts of principal and interest payable thereon and paid from
time to time under this Agreement.
(d) The General Administrative Agent (together with the Canadian
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for the Swing Line Lenders, in which shall be
recorded (i) the date and amount of each Swing Line Loan made hereunder, (ii)
the amount of each U.S. Lender's participating interest in such Swing Line
Dollar Loans, (iii) the amount of each Multicurrency Lender's participating
interest in such Swing Line Multicurrency Loans, (iv) the date and amount of any
principal or interest due and payable or to become due and payable from the U.S.
Borrower or any Foreign Subsidiary Borrower hereunder in respect of the Swing
Line
39
Dollar Loans and Swing Line Multicurrency Loans, (v) both the date and amount of
any sum received by the General Administrative Agent hereunder from the U.S.
Borrower in respect of the Swing Line Dollar Loans, each U.S. Lender's
participating interest therein (if any) and the amount thereof payable to the
Swing Line Dollar Lender and (vi) both the date and amount of any sum received
by the General Administrative Agent hereunder from the U.S. Borrower and each
Foreign Subsidiary Borrower in respect of the Swing Line Multicurrency Loans,
each Multicurrency Lender's participating interest therein (if any) and the
amount thereof payable to the Swing Line Multicurrency Lender.
(e) The entries made in the Register and the accounts of the Swing
Line Lenders maintained pursuant to this subsection 3.3 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower and the Foreign Subsidiary
Borrowers therein recorded; provided, however, that the failure of any Swing
Line Lender or the Administrative Agents to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
(i) the U.S. Borrower to repay (with applicable interest) the Swing Line Dollar
Loans made to the U.S. Borrower by the Swing Line Dollar Lender in accordance
with the terms of this Agreement and (ii) the U.S. Borrower and the Foreign
Subsidiary Borrowers to repay (with applicable interest) the Swing Line
Multicurrency Loans made to the relevant Borrower by the Swing Line
Multicurrency Lender in accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. (a) The Swing Line Dollar
Lender, at any time in its sole and absolute discretion may, on behalf of the
U.S. Borrower (which hereby irrevocably directs and authorizes the Swing Line
Dollar Lender to act on its behalf), direct the General Administrative Agent to
request each U.S. Lender, including JPMorgan Chase Bank and BofA, to make a U.S.
Revolving Credit Loan (which shall be an ABR Loan) in an amount equal to such
U.S. Lender's U.S. Dollar Funding Commitment Percentage of the principal amount
of the Swing Line Dollar Loans (the "Refunded Swing Line Dollar Loans")
outstanding on the date such notice is given; provided that the provisions of
this subsection shall not affect the U.S. Borrower's obligations to repay Swing
Line Dollar Loans in accordance with the provisions of subsections 3.3 and
9.4(d) and (g). Unless the U.S. Revolving Credit Commitments shall have expired
or terminated (in which event the procedures of subsection 3.5 shall apply),
each U.S. Lender will make the proceeds of the U.S. Revolving Credit Loan made
by it pursuant to the immediately preceding sentence available to the General
Administrative Agent at the office of the General Administrative Agent specified
in subsection 17.2 prior to 12:00 Noon, New York City time, in funds immediately
available on the Business Day next succeeding the date such notice is given. The
proceeds of such U.S. Revolving Credit Loans shall be immediately made available
by the General Administrative Agent to the Swing Line Dollar Lender for
application to the payment in full of the Refunded Swing Line Dollar Loans. Upon
any request by the Swing Line Dollar Lender to the U.S. Lenders pursuant to this
subsection 3.4, the General Administrative Agent shall promptly give notice to
the U.S. Borrower of such request.
(b) The Swing Line Multicurrency Lender, at any time in its sole and
absolute discretion may, on behalf of the U.S. Borrower or the relevant Foreign
Subsidiary Borrower (each of which hereby irrevocably directs and authorizes the
Swing Line Multicurrency Lender to act on its behalf), direct the General
Administrative Agent to request each Multicurrency Lender, including JPMorgan
Chase Bank and BofA, to make a Multicurrency Loan in an amount equal to such
Multicurrency Lender's Multicurrency Funding Commitment Percentage of the
principal amount of the Swing Line Multicurrency Loans (the "Refunded Swing Line
Multicurrency Loans") outstanding on the date such notice is given; provided
that the provisions of this subsection shall not affect the U.S. Borrower's and
the Foreign Subsidiary Borrowers' obligations to repay Swing Line Multicurrency
Loans in accordance with the provisions of subsections 3.3 and 9.4(d) and (h).
Unless the Multicurrency Commitments shall have
40
expired or terminated (in which event the procedures of subsection 3.5 shall
apply), each Multicurrency Lender will make the proceeds of the Multicurrency
Loan made by it pursuant to the immediately preceding sentence available to the
General Administrative Agent at the office of the General Administrative Agent
specified in subsection 17.2 prior to 12:00 Noon, New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Multicurrency Loans shall be immediately made
available by the General Administrative Agent to the Swing Line Multicurrency
Lender for application to the payment in full of the Refunded Swing Line
Multicurrency Loans. Upon any request by the Swing Line Multicurrency Lender to
the Multicurrency Lenders pursuant to this subsection 3.4, the General
Administrative Agent shall promptly give notice to the U.S. Borrower or the
relevant Foreign Subsidiary Borrower of such request.
3.5 Participating Interests. (a) If the U.S. Revolving Credit
Commitments shall expire or terminate at any time while Swing Line Dollar Loans
are outstanding, at the request of the Swing Line Dollar Lender in its sole
discretion, either (i) each U.S. Lender (including BofA) shall, notwithstanding
the expiration or termination of the U.S. Revolving Credit Commitments, make a
U.S. Revolving Credit Loan (which shall be an ABR Loan) or (ii) each U.S. Lender
(other than BofA) shall purchase an undivided participating interest in the
Swing Line Dollar Loans of the Swing Line Dollar Lender, in either case in an
amount equal to such U.S. Lender's U.S. Dollar Funding Commitment Percentage
(determined on the date of, and immediately prior to, expiration or termination
of the U.S. Revolving Credit Commitments) of the aggregate principal amount of
such Swing Line Dollar Loans. Each U.S. Lender will make the proceeds of any
U.S. Revolving Credit Loan made by it pursuant to the immediately preceding
sentence available to the General Administrative Agent for the account of the
requesting Swing Line Dollar Lender at the office of the General Administrative
Agent specified in subsection 17.2 prior to 12:00 Noon, Local Time, in funds
immediately available on the Business Day next succeeding the date of the
request by the Swing Line Dollar Lender. The proceeds of such U.S. Revolving
Credit Loans shall be immediately applied to repay the Swing Line Dollar Loans
outstanding on the date of termination or expiration of the U.S. Revolving
Credit Commitments. In the event that any of the U.S. Lenders purchase undivided
participating interests pursuant to the first sentence of this subsection
3.5(a), each U.S. Lender shall immediately transfer to the requesting Swing Line
Dollar Lender, in immediately available funds, the amount of its participation
in the Swing Line Dollar Loans of the Swing Line Dollar Lender and upon receipt
thereof the Swing Line Dollar Lender will deliver to any such U.S. Lender that
so requests a confirmation of such U.S. Lender's undivided participating
interest in the Swing Line Dollar Loans of the Swing Line Dollar Lender dated
the date of receipt of such funds and in such amount.
(b) Whenever, at any time after the Swing Line Dollar Lender has
received payment from any U.S. Lender in respect of such U.S. Lender's
participating interest in a Swing Line Dollar Loan of the Swing Line Dollar
Lender, the Swing Line Dollar Lender receives any payment on account thereof,
the Swing Line Dollar Lender will distribute to such U.S. Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such U.S. Lender's
participating interest was outstanding and funded); provided, however, that in
the event that any such payment received by the Swing Line Dollar Lender is
required to be returned, such U.S. Lender will return to the Swing Line Dollar
Lender any portion thereof previously distributed by the Swing Line Dollar
Lender to it.
(c) If the Multicurrency Commitments shall expire or terminate at any
time while Swing Line Multicurrency Loans are outstanding, at the request of the
Swing Line Multicurrency Lender in its sole discretion, either (i) each
Multicurrency Lender (including JPMorgan Chase Bank) shall, notwithstanding the
expiration or termination of the Multicurrency Commitments, make a Multicurrency
41
Loan or (ii) each Multicurrency Lender (other than JPMorgan Chase Bank) shall
purchase an undivided participating interest in the Swing Line Multicurrency
Loans of the Swing Line Multicurrency Lender, in either case in an amount equal
to such Multicurrency Lender's Multicurrency Funding Commitment Percentage
(determined on the date of, and immediately prior to, expiration or termination
of the Multicurrency Commitments) of the aggregate principal amount of such
Swing Line Multicurrency Loans. Each Multicurrency Lender will make the proceeds
of any Multicurrency Loan made by it pursuant to the immediately preceding
sentence available to the General Administrative Agent for the account of the
requesting Swing Line Multicurrency Lender at the office of the General
Administrative Agent specified in subsection 17.2 prior to 12:00 Noon, New York
City time, in funds immediately available on the Business Day next succeeding
the date of the request by the Swing Line Multicurrency Lender. The proceeds of
such Multicurrency Loans shall be immediately applied to repay the Swing Line
Multicurrency Loans outstanding on the date of termination or expiration of the
Multicurrency Commitments. In the event that any of the Multicurrency Lenders
purchase undivided participating interests pursuant to the first sentence of
this subsection 3.5(c), such Multicurrency Lender shall immediately transfer to
the requesting Swing Line Multicurrency Lender, in immediately available funds,
the amount of its participation in the Swing Line Multicurrency Loans of the
Swing Line Multicurrency Lender and upon receipt thereof the Swing Line
Multicurrency Lender will deliver to any such Multicurrency Lender that so
requests a confirmation of such Multicurrency Lender's undivided participating
interest in the Swing Line Multicurrency Loans of the Swing Line Multicurrency
Lender dated the date of receipt of such funds and in such amount.
(d) Whenever, at any time after the Swing Line Multicurrency Lender
has received payment from any Multicurrency Lender in respect of such
Multicurrency Lender's participating interest in a Swing Line Multicurrency Loan
of the Swing Line Multicurrency Lender, the Swing Line Multicurrency Lender
receives any payment on account thereof, the Swing Line Multicurrency Lender
will distribute to such Multicurrency Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Multicurrency Lender's participating interest
was outstanding and funded); provided, however, that in the event that any such
payment received by the Swing Line Multicurrency Lender is required to be
returned, such Multicurrency Lender will return to the Swing Line Multicurrency
Lender any portion thereof previously distributed by the Swing Line
Multicurrency Lender to it.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from time
to time on any Business Day during the CAF Advance Availability Period. CAF
Advances may be borrowed in amounts such that the Aggregate Total Outstandings
of all Lenders at any time shall not exceed the Aggregate U.S. Revolving Credit
Commitments at such time. Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the U.S. Borrower from time to time may
borrow, repay and reborrow CAF Advances.
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower shall
request CAF Advances by delivering a CAF Advance Request to the General
Administrative Agent, not later than 12:00 Noon, New York City time, four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M., New York City time one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than five alternative CAF Advance Maturity Dates.
42
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) one or two weeks or one, two, three, six,
nine or twelve months after the Borrowing Date therefor, in the case of a LIBO
Rate CAF Advance and (iii) not later than the Revolving Credit Termination Date,
in the case of any CAF Advance. The General Administrative Agent shall notify
each Lender promptly by facsimile transmission of the contents of each CAF
Advance Request received by the General Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable LIBO Rate plus (or minus) a
margin determined by such Lender in its sole discretion for each such CAF
Advance. Any such irrevocable offer shall be made by delivering a CAF Advance
Offer to the General Administrative Agent, before 10:30 A.M., New York City
time, on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's U.S. Revolving Credit
Commitment); and
(ii) the margin above or below the applicable LIBO Rate at which such
Lender is willing to make each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 11:00
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date of the contents of each such CAF Advance Offer received
by it. If the General Administrative Agent, in its capacity as a Lender, shall
elect, in its sole discretion, to make any such CAF Advance Offer, it shall
advise the U.S. Borrower of the contents of its CAF Advance Offer before 10:15
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the General Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Lender in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the General Administrative Agent
before 9:30 A.M., New York City time, on the proposed Borrowing Date, setting
forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date, and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which amounts
may, subject to subsection 4.1, exceed such Lender's U.S. Revolving Credit
Commitment); and
(ii) the rate of interest at which such Lender is willing to make each
such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 10:00
A.M., New York City time, on the proposed Borrowing Date of the contents of each
such CAF Advance Offer received by it. If the General Administrative Agent, in
its capacity as a Lender, shall elect, in its sole discretion, to make
43
any such CAF Advance Offer, it shall advise the U.S. Borrower of the contents of
its CAF Advance Offer before 9:15 A.M., New York City time, on the proposed
Borrowing Date.
(d) Before 11:30 A.M., New York City time, three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the General
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the General Administrative Agent
(immediately confirmed by delivery to the General Administrative Agent of a
CAF Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 4.2(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 4.2(b) or subsection 4.2(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 4.2(b) or subsection 4.2(c), as the case may be.
(e) The U.S. Borrower's acceptance of CAF Advances in response to any
CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance Maturity
Date specified by any Lender in its CAF Advance Offer shall not exceed the
maximum amount for such CAF Advance Maturity Date specified in such CAF
Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF Advance
Maturity Dates specified by any Lender in its CAF Advance Offer shall not
exceed the aggregate maximum amount specified in such CAF Advance Offer for
all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF Advances for any
CAF Advance Maturity Date in an aggregate principal amount in excess of the
maximum principal amount requested in the related CAF Advance Request; and
(iv) if the U.S. Borrower accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more Lenders
submit offers for any CAF Advance Maturity Date at identical pricing and
the U.S. Borrower accepts any of such offers but does not wish to (or, by
reason of the limitations set forth in subsection 4.1, cannot) borrow the
total amount offered by such Lenders with such identical pricing, the U.S.
Borrower shall accept offers from all of such Lenders in amounts allocated
among them pro rata according to the amounts offered by such Lenders (with
appropriate rounding, in the sole discretion of the U.S. Borrower, to
assure that each accepted CAF Advance is an integral multiple of
$1,000,000); provided that if the number of Lenders that submit offers for
any CAF Advance Maturity Date at identical pricing is such that, after the
U.S. Borrower accepts such offers pro rata in accordance with the foregoing
provisions of this paragraph, the CAF Advance to be made by any such Lender
would be less than $5,000,000 principal amount, the number of such Lenders
shall be reduced by the General Administrative Agent by lot until the CAF
Advances to be made by each such remaining Lender
44
would be in a principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(f) If the U.S. Borrower notifies the General Administrative Agent
that a CAF Advance Request is cancelled pursuant to subsection 4.2(d)(i), the
General Administrative Agent shall give prompt telephone notice thereof to the
Lenders. If the U.S. Borrower fails to notify the General Administrative Agent
of its cancellation or acceptance of CAF Advance Offers by the times specified
in subsection 4.2(d), the corresponding CAF Advance Request shall be deemed
cancelled.
(g) If the U.S. Borrower accepts pursuant to subsection 4.2(d)(ii) one
or more of the offers made by any Lender or Lenders, the General Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on the applicable Borrowing
Date for each CAF Advance Maturity Date and (ii) the acceptance or rejection of
any offers to make such CAF Advances made by such Lender. Before 12:00 Noon, New
York City time, on the Borrowing Date specified in the applicable CAF Advance
Request, each Lender whose CAF Advance Offer has been accepted shall make
available to the General Administrative Agent at its office set forth in
subsection 17.2 the amount of CAF Advances to be made by such Lender, in
immediately available funds. The General Administrative Agent will make such
funds available to the U.S. Borrower as soon as practicable on such date at such
office of the General Administrative Agent. As soon as practicable after each
Borrowing Date, the General Administrative Agent shall notify each Lender of the
aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to the
General Administrative Agent, for the account of each Lender which has made a
CAF Advance, on the applicable CAF Advance Maturity Date the then unpaid
principal amount of such CAF Advance. The U.S. Borrower shall not have the right
to prepay any principal amount of any CAF Advance without the consent of the
Lender to which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to the applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the U.S. Borrower in connection with such CAF Advance (calculated on
the basis of a 360-day year for actual days elapsed), payable on each applicable
CAF Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such CAF Advance shall, without limiting any rights of any Lender under this
Agreement, bear interest from the date on which such payment was due at a rate
per annum which is 2% above the rate which would otherwise be applicable to such
CAF Advance until the stated CAF Advance Maturity Date of such CAF Advance, and
for each day thereafter at a rate per annum which is 2% above the ABR, in each
case until paid in full (as well after as before judgment). Interest accruing
pursuant to this paragraph (c) shall be payable from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally promises
to pay to the General Administrative Agent, for the account of each Lender that
makes a CAF Advance, on the CAF Advance Maturity Date with respect thereto, the
principal amount of such CAF Advance. The U.S. Borrower further unconditionally
promises to pay interest on each such CAF Advance for the period from and
including the Borrowing Date of such CAF Advance on the unpaid principal amount
thereof from
45
time to time outstanding at the applicable rate per annum determined as provided
in, and payable as specified in, subsection 4.3(b).
(b) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the U.S. Borrower to such Lender
resulting from each CAF Advance of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such CAF Advance.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 17.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of each CAF Advance made by such
Lender, the CAF Advance Maturity Date thereof, the interest rate applicable
thereto and each CAF Advance Interest Payment Date applicable thereto, and (ii)
the date and amount of any sum received by the General Administrative Agent
hereunder from the U.S. Borrower on account of such CAF Advance.
(d) The entries made in the Register and the records of each Lender
maintained pursuant to this subsection 4.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the General Administrative Agent to maintain the
Register or any such record, or any error therein, shall not in any manner
affect the obligation of the U.S. Borrower to repay (with applicable interest)
the CAF Advances made by such Lender in accordance with the terms of this
Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request offers for
CAF Advances to be made on not more than one Borrowing Date and to mature on not
more than five CAF Advance Maturity Dates. No CAF Advance Request may be
submitted earlier than five Business Days after submission of any other CAF
Advance Request.
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN COMMITMENTS
5.1 Canadian Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Canadian Lender severally agrees to make revolving
credit loans (each, a "Canadian Revolving Credit Loan") to the Canadian Borrower
in Canadian Dollars or in U.S. Dollars from time to time during the Revolving
Credit Commitment Period so long as after giving effect thereto (i) the
Available Canadian Revolving Credit Commitment of each Canadian Lender is
greater than or equal to zero, (ii) the aggregate outstanding principal amount
of Canadian Revolving Credit Loans does not exceed an amount of which the U.S.
Dollar Equivalent is $200,000,000 and (iii) the Aggregate Total Outstandings of
all Lenders do not exceed the Aggregate U.S. Revolving Credit Commitments.
During the Revolving Credit Commitment Period, the Canadian Borrower may use the
Canadian Revolving Credit Commitments by borrowing, repaying the Canadian
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Canadian Revolving Credit Loans
denominated in Canadian Dollars shall be Prime Rate Loans, and the Canadian
Revolving Credit Loans denominated in U.S. Dollars shall be Canadian Base Rate
Loans.
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of Debt.
(a) The Canadian Borrower hereby unconditionally promises to pay to the Canadian
Administrative Agent for the account of each Canadian Lender the then unpaid
principal amount of each Canadian Revolving Credit Loan of such Canadian Lender
(whether made before or after the termination or expiration of the
46
Canadian Revolving Credit Commitments) on the Revolving Credit Termination Date
and on such other date(s) and in such other amounts as may be required from time
to time pursuant to this Agreement. The Canadian Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Canadian Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 9.1.
(b) Each Canadian Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Canadian Borrower
to such Canadian Lender resulting from each Canadian Revolving Credit Loan of
such Canadian Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Canadian Lender from time to time
under this Agreement.
(c) The Canadian Administrative Agent (together with the General
Administrative Agent) shall maintain the Register pursuant to subsection
17.6(d), and a subaccount therein for each Canadian Lender, in which shall be
recorded (i) the date and amount of each Canadian Revolving Credit Loan made
hereunder, (ii) the date and amount of any principal or interest due and payable
or to become due and payable from the Canadian Borrower to each Canadian Lender
hereunder in respect of the Canadian Revolving Credit Loans and (iii) both the
date and amount of any sum received by the Canadian Administrative Agent
hereunder from the Canadian Borrower in respect of the Canadian Revolving Credit
Loans and each Canadian Lender's share thereof.
(d) The entries made in the Register and the accounts of each Canadian
Lender maintained pursuant to subsection 5.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Canadian Borrower therein recorded; provided, however, that
the failure of any Canadian Lender or the General Administrative Agents to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Canadian Borrower to repay (with
applicable interest) the Canadian Revolving Credit Loans made to the Canadian
Borrower by such Canadian Lender in accordance with the terms of this Agreement.
(e) The Canadian Borrower agrees that, upon the request to the
Canadian Administrative Agent by any Canadian Lender, it will execute and
deliver to such Canadian Lender a promissory note of the Canadian Borrower
evidencing the Canadian Revolving Credit Loans of such Canadian Lender,
substantially in the form of Exhibit B with appropriate insertions as to date
and principal amount (each, a "Canadian Revolving Credit Note"); provided, that
the delivery of such Canadian Revolving Credit Notes shall not be a condition
precedent to the Closing Date.
5.3 Procedure for Canadian Revolving Credit Borrowing. The Canadian
Borrower may borrow under the Canadian Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that the
Canadian Borrower shall give the Canadian Administrative Agent irrevocable
notice (which notice must be received by the Canadian Administrative Agent prior
to 12:00 ▇▇▇▇, ▇▇▇▇▇▇▇ time, at least one Business Day prior to the requested
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date. Each borrowing in Canadian Dollars under the Canadian Revolving
Credit Commitments shall be in an amount equal to C$5,000,000 or a whole
multiple of C$1,000,000 in excess thereof, and each borrowing in U.S. Dollars
under the Canadian Revolving Credit Commitments shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in each
case, if the then Aggregate Available Canadian Revolving Credit Commitments are
less than C$5,000,000 or $5,000,000, as the case may be, such lesser amount).
Upon receipt of any such notice from the Canadian Borrower, the Canadian
Administrative
47
Agent shall promptly notify the General Administrative Agent and each Canadian
Lender thereof. Not later than 12:00 Noon, Toronto time, on each requested
Borrowing Date each Canadian Lender shall make an amount equal to its Canadian
Revolving Credit Commitment Percentage of the principal amount of Canadian
Revolving Credit Loans requested to be made on such Borrowing Date available to
the Canadian Administrative Agent at its office specified in subsection 17.2 in
Canadian Dollars or U.S. Dollars, as the case may be, and in immediately
available funds. The Canadian Administrative Agent shall on such date credit the
account of the Canadian Borrower on the books of such office with the aggregate
of the amounts made available to the Canadian Administrative Agent by the
Canadian Lenders and in like funds as received by the Canadian Administrative
Agent.
5.4 Termination or Reduction of Canadian Revolving Credit Commitments.
The U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the Canadian Administrative Agent, to terminate the Canadian Revolving
Credit Commitments or, from time to time, to reduce the amount of the Canadian
Revolving Credit Commitments; provided that no such termination or reduction
shall be permitted (i) unless the U.S. Borrower elects to terminate or reduce
the U.S. Revolving Credit Commitments of the U.S. Common Lenders by an amount
equal to the U.S. Dollar Equivalent of the aggregate Canadian Revolving Credit
Commitments of all Canadian Lenders being reduced or terminated or (ii) if,
after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, the Available Canadian Revolving Credit Commitment of
any Canadian Lender would be less than zero. Any such reduction shall be in an
amount equal to C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof
and shall reduce permanently the Canadian Revolving Credit Commitments then in
effect.
SECTION 6. AMOUNT AND TERMS OF CANADIAN ACCEPTANCE FACILITY
6.1 Acceptance Commitments. (a) Subject to the terms and conditions
hereof, each Canadian Lender severally agrees to create Acceptances for the
Canadian Borrower on any Business Day during the Revolving Credit Commitment
Period by accepting Drafts drawn by the Canadian Borrower so long as after
giving effect to such acceptance, (i) the Available Canadian Revolving Credit
Commitment of such Canadian Lender would be greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
U.S. Revolving Credit Commitments.
(b) The Canadian Borrower may utilize the Canadian Revolving Credit
Commitments in the manner contemplated by this Section 6 by authorizing each
Canadian Lender in the manner provided for in subsection 6.2(b) to draw Drafts
on such Canadian Lender and having such Drafts accepted pursuant to subsection
6.2, paying its obligations with respect thereto pursuant to subsection 6.5, and
again, from time to time, authorizing Drafts to be drawn on the Canadian Lenders
and having them presented for acceptance, all in accordance with the terms and
conditions of this Section 6.
(c) For the purposes of this Agreement, all Acceptances shall be
considered a utilization of the Canadian Revolving Credit Commitments in an
amount equal to the undiscounted face amount of such Acceptance.
6.2 Creation of Acceptances. (a) The Canadian Borrower may request the
creation of Acceptances hereunder by submitting to the Canadian Administrative
Agent at its office specified in subsection 17.2 prior to 11:00 A.M., Toronto
time, two Business Days prior to the requested Borrowing Date, (i) a request for
acceptances (each, a "Request for Acceptances") completed in a manner and in
form and substance reasonably satisfactory to the Canadian Administrative Agent
and specifying, among
48
other things, the Borrowing Date, maturity and face amount of the Drafts to be
accepted and discounted, (ii) to the extent not theretofore supplied to each
Canadian Lender, a sufficient number of Drafts to be drawn on the Canadian
Lenders, to be appropriately completed in accordance with subsection 6.2(d) and
(iii) such other certificates, documents and other papers and information as the
Canadian Administrative Agent may reasonably request. Upon receipt of any such
Request for Acceptances, the Canadian Administrative Agent shall promptly notify
each Canadian Lender and the General Administrative Agent of its receipt
thereof.
(b) The Canadian Borrower hereby agrees that it shall deliver to the
Canadian Administrative Agent on or prior to the Closing Date, Powers of
Attorney substantially in the form annexed hereto as Exhibit D (the "Powers of
Attorney") authorizing each Canadian Lender to draw Drafts on such Canadian
Lender on behalf of the Canadian Borrower and to complete such Drafts in
accordance with the Requests for Acceptances submitted from time to time
pursuant to subsection 6.2(a).
(c) Each Request for Acceptances made by or on behalf of the Canadian
Borrower hereunder shall contain a request for Acceptances denominated in
Canadian Dollars and having an aggregate undiscounted face amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business Day
which is not less than 30 days and not more than 180 days after the date thereof
(and, in any event, prior to the Revolving Credit Termination Date).
(d) Not later than 12:00 Noon, Toronto time, on the Borrowing Date
specified in the relevant Request for Acceptances, and upon fulfillment of the
applicable conditions set forth in subsection 11.2, each Canadian Lender will,
in accordance with such Request for Acceptances, (i) sign each Draft on behalf
of the Canadian Borrower pursuant to the Power of Attorney, (ii) complete the
date, amount and maturity of each Draft to be accepted, (iii) accept such Drafts
and give notice to the Canadian Administrative Agent of such acceptance and (iv)
upon such acceptance, purchase such Acceptances to the extent contemplated by
subsection 6.3. Alternatively, at the request of the Canadian Administrative
Agent, the Canadian Borrower shall deliver to the Canadian Administrative Agent
a "depository note" which complies with the requirements of the Depository Bills
and Notes Act (Canada), and consents to the deposit of any such depository note
in the book-based debt clearance system maintained by the Canadian Depository of
Securities. In such circumstances, the delivery of Acceptances shall be governed
by the clearance procedures established thereunder.
6.3 Discount of Acceptances. (a) Each Canadian Lender hereby severally
agrees, on the terms and subject to the conditions set forth in this Agreement,
to purchase Acceptances created by it on the Borrowing Date with respect thereto
at the applicable Reference Discount Rate by making available to the Canadian
Borrower an amount in immediately available funds equal to the Acceptance
Purchase Price in respect thereof, and to notify the Canadian Administrative
Agent that such Draft has been accepted, discounted and purchased by such
accepting Canadian Lender.
(b) In the event that the Canadian Borrower has made a Request for
Acceptances, then (i) prior to 11:00 A.M., Toronto time, on the Borrowing Date
with respect thereto, the Canadian Administrative Agent will notify the General
Administrative Agent, the Canadian Borrower and the Canadian Lenders of the
applicable Reference Discount Rate for such Acceptances and the corresponding
Acceptance Purchase Price and (ii) each Canadian Lender shall make the
Acceptance Purchase Price for such Acceptances discounted by it available to the
Canadian Administrative Agent, for the account of the Canadian Borrower, at the
office of the Canadian Administrative Agent specified in subsection 17.2 prior
49
to 12:00 Noon, Toronto time, on the Borrowing Date, in Canadian Dollars and in
funds immediately available to the Canadian Administrative Agent. Such borrowing
will then be made available to the Canadian Borrower by the Canadian
Administrative Agent crediting the account of the Canadian Borrower on the books
of such office with the aggregate of the amounts made available to the Canadian
Administrative Agent by the Canadian Lenders and in like funds as received by
the Canadian Administrative Agent.
(c) Acceptances purchased by any Canadian Lender may be held by it for
its own account until maturity or sold by it at any time prior thereto in the
relevant market therefor in Canada in such Canadian Lender's sole discretion.
The doctrine of merger shall not apply with respect to any Acceptance held by a
Lender at maturity.
6.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee at a rate per
annum equal to the Applicable Margin in effect on such Borrowing Date for
Eurodollar Loans, computed for the period from and including the Borrowing Date
with respect to such Acceptance to but not including the maturity of such
Acceptance, on the basis of a 365-day year, of the undiscounted face amount of
such Acceptance.
6.5 Acceptance Reimbursement Obligations. (a) The Canadian Borrower
hereby unconditionally agrees to pay to the Canadian Administrative Agent for
the account of each Canadian Lender, on the maturity date (whether at stated
maturity, by acceleration or otherwise) for each Acceptance created by such
Canadian Lender for the account of the Canadian Borrower, the aggregate
undiscounted face amount of each such then-maturing Acceptance.
(b) The obligation of the Canadian Borrower to reimburse the Canadian
Lenders for then-maturing Acceptances may be satisfied by the Canadian Borrower
by:
(i) paying to the Canadian Administrative Agent, for the account of
the Canadian Lenders, an amount in Canadian Dollars and in immediately
available funds equal to the aggregate undiscounted face amount of all
Acceptances created for the account of the Canadian Borrower hereunder
which are then maturing by 12:00 Noon, Toronto time, on such maturity date;
provided that the Canadian Borrower shall have given not less than one
Business Day's prior notice to the Canadian Administrative Agent (which
shall promptly notify each Canadian Lender thereof) of its intent to
reimburse the Canadian Lenders in the manner contemplated by this clause
(i);
(ii) having new Drafts accepted and discounted by the Canadian Lenders
in the manner contemplated by subsections 6.2 and 6.3 in substitution for
the then-maturing Acceptances; provided that (A) the Canadian Borrower
shall have delivered to the Canadian Administrative Agent (which shall
promptly provide a copy thereof to each Canadian Lender) a duly completed
Request for Acceptances not later than 2:00 P.M., Toronto time, one
Business Day prior to such maturity date, together with the documents,
instruments, certificates and other papers and information contemplated by
subsections 6.2(a)(ii) and 6.2(a)(iii), (B) if any Default or Event of
Default has occurred and is then continuing, the Request for Acceptances
shall be deemed to be a request for a Canadian Revolving Credit Loan in an
amount equal to the undiscounted face amount of the Acceptances requested,
(C) each Canadian Lender shall retain the Acceptance Purchase Price for the
Acceptance created by it and apply such Acceptance Purchase Price to the
Acceptance Reimbursement Obligations of the Canadian Borrower in
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respect of the maturing Acceptance created by such Canadian Lender, (D) if
the Acceptance Purchase Price so retained by such Canadian Lender is less
than the undiscounted face amount of the then-maturing Acceptance, the
Canadian Borrower shall have made arrangements reasonably satisfactory to
such Canadian Lender for payment of such deficiency and (E) if the
Acceptance Purchase Price so retained by the Canadian Lender is greater
than the undiscounted face amount of the then-maturing Acceptance, the
Canadian Lender shall make such excess available to the Canadian
Administrative Agent, which in turn shall make such excess available to the
Canadian Borrower, all in accordance with subsection 6.3(b); or
(iii) to the extent that the Canadian Borrower has not given to the
Canadian Administrative Agent a notice contemplated by clause (i) or (ii)
above, then the Canadian Borrower shall be deemed to have requested a
borrowing pursuant to subsection 5.1 of Canadian Revolving Credit Loans in
an aggregate principal amount equal to the undiscounted face amount of such
then-maturing Acceptance. The Borrowing Date with respect to such borrowing
shall be the maturity date for such Acceptance. Except to the extent that
any of the events contemplated by paragraph (i) of Section 15 with respect
to the Canadian Borrower has occurred and is then continuing, each Canadian
Lender shall be obligated to make the Canadian Revolving Credit Loan
contemplated by this subsection 6.5(b)(iii) regardless of whether the
conditions precedent to borrowing set forth in this Agreement are then
satisfied. The proceeds of any Canadian Revolving Credit Loans made
pursuant to this subsection 6.5(b)(iii) shall be retained by the Canadian
Lenders and applied by them to the Acceptance Reimbursement Obligations of
the Canadian Borrower in respect of the then-maturing Acceptance.
(c) The unpaid amount of any such Acceptance Reimbursement Obligations
shall be treated as a Canadian Revolving Credit Loan for the purposes hereof and
interest shall accrue on the amount of any such unpaid Acceptance Reimbursement
Obligation from the date such amount becomes due until paid in full at a
fluctuating rate per annum equal to the rate which would then be payable on
Canadian Revolving Credit Loans. Such interest shall be payable by the Canadian
Borrower on demand by the Canadian Administrative Agent.
(d) In no event shall the Canadian Borrower claim from any Canadian
Lender any grace period with respect to the payment at maturity of any
Acceptances created by such Canadian Lender pursuant to this Agreement.
6.6 Converting Canadian Revolving Credit Loans to Acceptances and
Acceptances to Canadian Revolving Credit Loans. (a) Subject to subsection
6.6(b), the Canadian Borrower may at any time and from time to time request that
any then outstanding Canadian Revolving Credit Loan denominated in Canadian
Dollars be converted into an Acceptance by delivering to the Canadian
Administrative Agent (which shall promptly notify the General Administrative
Agent and each Canadian Lender of its receipt thereof) a Request for
Acceptances, together with a statement that the Acceptances so requested are to
be created pursuant to this subsection 6.6(a), such notice to be given not later
than one Business Day prior to the requested conversion date.
(b) In the event that the Canadian Administrative Agent receives such
a Request for Acceptances and the accompanying statement described in subsection
6.6(a), then the Canadian Borrower shall pay on the requested Borrowing Date to
the Canadian Administrative Agent, for the account of the Canadian Lenders, the
principal amount of the then outstanding Canadian Revolving Credit Loans being
so converted, and each Canadian Lender shall accept and discount the Canadian
Borrower's Draft having an aggregate face amount at least equal to the principal
amount of the Canadian Revolving Credit Loans
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of such Canadian Lender which are then being repaid; it being understood and
agreed that for the purposes of this subsection 6.6(b), such payment by the
Canadian Borrower of such outstanding Canadian Revolving Credit Loans may be
from the proceeds of such discounted Drafts, provided that, (i) following the
occurrence and during the continuance of a Default or an Event of Default, no
Acceptances may be created and (ii) no Acceptance which is permitted to be
created hereunder shall have a maturity that extends beyond the Revolving Credit
Termination Date.
(c) The creation of Acceptances pursuant to this subsection 6.6 shall
not be subject to the satisfaction of the conditions precedent to borrowing set
forth in this Agreement.
(d) The Canadian Borrower may elect from time to time to convert
outstanding Acceptances to Canadian Revolving Credit Loans denominated in
Canadian Dollars by giving the Canadian Administrative Agent at least one
Business Day's irrevocable notice of such election prior to the maturity of such
Acceptances; provided that any such conversion of Acceptances may only be made
on the maturity thereof.
6.7 Allocation of Acceptances. The Canadian Borrower hereby agrees
that each Request for Acceptances, reimbursement of Acceptances and conversion
of Canadian Revolving Credit Loans to Acceptances shall be made in a manner so
that any such Request for Acceptances, reimbursement or conversion shall apply
ratably to all Canadian Lenders in accordance with their respective Canadian
Revolving Credit Commitment Percentages. In the event that the aggregate
undiscounted face amount of Acceptances requested by the Canadian Borrower to be
created by all Canadian Lenders hereunder pursuant to any Request for
Acceptances is an amount which, if divided ratably among the Canadian Lenders in
accordance with their respective Canadian Revolving Credit Commitment
Percentages, would not result in each Canadian Lender accepting a Draft which
has an undiscounted face amount equal to C$100,000 or a whole multiple of
C$100,000 in excess thereof, then, notwithstanding any provision in this
subsection 6.7 to the contrary, the Canadian Administrative Agent is authorized
by the Canadian Borrower and the Canadian Lenders to allocate among the Canadian
Lenders the Acceptances to be issued in such manner and amounts as the Canadian
Administrative Agent may, in its sole discretion, acting reasonably, consider
necessary, rounding up or down, so as to ensure that no Canadian Lender is
required to accept a Draft for a fraction of $100,000 and, in such event, the
Canadian Lenders' ratable share with respect to such Acceptances shall be
adjusted accordingly.
6.8 Special Provisions Relating to Acceptance Notes. (a) The Canadian
Borrower and each Canadian Lender hereby acknowledge and agree that from time to
time certain Canadian Lenders which are not Canadian chartered banks or which
are Schedule II Canadian Lenders may not be authorized to or may, as a matter of
general corporate policy, elect not to accept Drafts, and the Canadian Borrower
and each Canadian Lender agree that any such Canadian Lender may purchase
Acceptance Notes of the Canadian Borrower in accordance with the provisions of
subsection 6.8(b) in lieu of creating Acceptances for its account.
(b) In the event that any Canadian Lender described in subsection
6.8(a) above is unable to, or elects as a matter of general corporate policy not
to, create Acceptances hereunder, such Canadian Lender shall not create
Acceptances hereunder, but rather, if the Canadian Borrower requests the
creation of such Acceptances, the Canadian Borrower shall deliver to such
Canadian Lender non-interest bearing promissory notes (each, an "Acceptance
Note") of the Canadian Borrower, substantially in the form of Exhibit E, having
the same maturity as the Acceptances to be created and in an aggregate principal
amount equal to the undiscounted face amount of such Acceptances. Each such
Canadian Lender hereby agrees to purchase Acceptance Notes from the Canadian
Borrower at a purchase price
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equal to the Acceptance Purchase Price which would have been applicable if a
Draft in the same aggregate face amount as the principal amount of its
Acceptance Notes and of the same maturity had been accepted by it (less any
stamping fee which would have been paid pursuant to subsection 6.4 if such
Lender had created an Acceptance) and such Acceptance Notes shall be governed by
the provisions of this Section 6 as if they were Acceptances.
6.9 Existing Acceptances and Acceptance Notes. Any Acceptances or
Acceptance Notes that (i) are outstanding under the Existing Credit Agreement on
the Closing Date and (ii) were created by or issued to, as the case may be,
lenders under the Existing Credit Agreement that are also Lenders hereunder,
shall continue to be outstanding as Acceptances or Acceptance Notes, as the case
may be, under this Agreement from and after the Closing Date and shall be
governed by the terms hereof as if such Acceptances and Acceptance Notes had
been created or issued hereunder.
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY COMMITMENT
7.1 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to the
U.S. Borrower or any Foreign Subsidiary Borrower from time to time during the
Revolving Credit Commitment Period so long as after giving effect thereto (i)
the Available Multicurrency Commitment of such Multicurrency Lender is greater
than or equal to zero, (ii) the aggregate outstanding principal amount of
Multicurrency Loans does not exceed an amount of which the U.S. Dollar
Equivalent is $750,000,000 and (iii) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate U.S. Revolving Credit Commitments. During
the Revolving Credit Commitment Period, the U.S. Borrower and Foreign Subsidiary
Borrowers may use the Multicurrency Commitments by borrowing, repaying the
Multicurrency Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
7.2 Repayment of Multicurrency Loans; Evidence of Debt. (a) Each of
the U.S. Borrower and each Foreign Subsidiary Borrower hereby unconditionally
promises to pay to the General Administrative Agent for the account of each
Multicurrency Lender the then unpaid principal amount of each Multicurrency Loan
of such Multicurrency Lender to such Borrower on the Revolving Credit
Termination Date and on such other date(s) and in such other amounts as may be
required from time to time pursuant to this Agreement. Each of the U.S. Borrower
and each Foreign Subsidiary Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Multicurrency Loans advanced to it and from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in subsection 9.1.
(b) Each Multicurrency Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Borrower
to such Multicurrency Lender resulting from each Multicurrency Loan of such
Multicurrency Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Multicurrency Lender from time to time
under this Agreement.
(c) The General Administrative Agent shall maintain the Register
pursuant to subsection 17.6(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the date and amount of each Multicurrency
Loan made hereunder, (ii) the date and amount of any principal or interest due
and payable or to become due and payable from each Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the date and amount
53
of any sum received by the General Administrative Agent hereunder from each
Borrower in respect of the Multicurrency Loans and each Multicurrency Lender's
share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 7.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Multicurrency Lender or the General Administrative Agent
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Multicurrency Loans made to such Borrower by such Multicurrency
Lender in accordance with the terms of this Agreement.
7.3 Procedure for Multicurrency Borrowing. The U.S. Borrower or any
Foreign Subsidiary Borrower may request the Multicurrency Lenders to make
Multicurrency Loans during the Revolving Credit Commitment Period on any
Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency of which the U.S. Dollar Equivalent is equal to at
least $10,000,000 (or, if the then Aggregate Available Multicurrency Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such Notice
of Multicurrency Borrowing from any Borrower, the General Administrative Agent
shall promptly notify each Multicurrency Lender thereof. Not later than the
funding time for the relevant Available Foreign Currency set forth in the
Administrative Schedule, each Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the General
Administrative Agent at the funding office for the relevant Available Foreign
Currency set forth in the Administrative Schedule in the relevant Available
Foreign Currency and in immediately available funds. The amounts made available
by each Multicurrency Lender will then be made available on such Borrowing Date
to the relevant Borrower at the funding office for the relevant Available
Foreign Currency set forth in the Administrative Schedule and in like funds as
received by the General Administrative Agent.
7.4 Termination or Reduction of Multicurrency Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice to
the General Administrative Agent, to terminate the Multicurrency Commitments or,
from time to time, to reduce the amount of the Multicurrency Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on the effective
date thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Multicurrency Commitments then in effect.
7.5 Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
National Currency Unit of a Subsequent Participant state shall be redenominated
into the euro unit in accordance with EMU Legislation immediately upon such
Subsequent Participant becoming a Participating Member State (but otherwise in
accordance with EMU Legislation).
SECTION 8. LETTERS OF CREDIT
8.1 Letters of Credit. (a) Subject to the terms and conditions of this
Agreement, the Issuing Lender agrees, and any other Issuing Lender may, as
agreed between the U.S. Borrower and such Issuing Lender, agree, on behalf of
the U.S. Lenders, and in reliance on the agreement of the Lenders set
54
forth in subsection 8.3, to issue for the account of the U.S. Borrower (or in
connection with any Foreign Letter of Credit, for the joint and several accounts
of the U.S. Borrower and such applicable Foreign Subsidiary) letters of credit
in an aggregate face amount not to exceed at any time outstanding an amount of
which the U.S. Dollar Equivalent is $250,000,000, as follows:
(i) standby letters of credit (collectively, the "Standby Letters of
Credit") in the form of either (A) in the case of standby letters of credit
to be used for the purposes described in subsection 8.8(a) or (c), the
Issuing Lender's standard standby letter of credit or (B) in the case of
standby letters of credit to be used for the purposes described in
subsection 8.8(b), a letter of credit reasonably satisfactory to the
Issuing Lender, and in either case, in favor of such beneficiaries as the
U.S. Borrower shall specify from time to time (which shall be reasonably
satisfactory to the Issuing Lender); and
(ii) commercial letters of credit in the form of the Issuing Lender's
standard commercial letters of credit ("Commercial Letters of Credit") in
favor of sellers of goods or services to the U.S. Borrower, its
Subsidiaries or joint ventures (the Standby Letters of Credit and
Commercial Letters of Credit being referred to collectively as the "Letters
of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments at such time. Each Standby Letter of Credit shall
(i) have an expiry date no later than (A) with respect to any Standby Letter of
Credit to be used for the purposes described in subsection 8.8(a) or (c), one
year from the date of issuance thereof or, if earlier, the Revolving Credit
Termination Date or (B) with respect to any Standby Letter of Credit to be used
for the purposes described in subsection 8.8(b), the Revolving Credit
Termination Date and (ii) be denominated in Dollars or another
freely-convertible currency acceptable to the Issuing Lender. Each Commercial
Letter of Credit shall (i) provide for the payment of sight drafts when
presented for honor thereunder, or of time drafts, in each case in accordance
with the terms thereof and when accompanied by the documents described or when
such documents are presented, as the case may be, (ii) be denominated in Dollars
or another freely-convertible currency acceptable to the Issuing Lender and
(iii) have an expiry date no later than six months from the date of issuance
thereof or, if earlier, five Business Days prior to the Revolving Credit
Termination Date.
(b) Pursuant to the Existing Credit Agreement, JPMorgan Chase Bank, as
Issuing Lender, has issued certain letters of credit which are outstanding on
the Closing Date (the "Existing Letters of Credit"). From and after the Closing
Date, the Existing Letters of Credit shall for all purposes be deemed to be
Letters of Credit outstanding under this Agreement.
8.2 Procedure for Issuance of Letters of Credit. The U.S. Borrower may
from time to time request, upon at least three Business Days' notice, the
Issuing Lender to issue a Letter of Credit by delivering to such Issuing Lender
at its address specified in subsection 17.2 a Letter of Credit Application,
completed to the satisfaction of such Issuing Lender, together with such other
certificates, documents and other papers and information as such Issuing Lender
may reasonably request. Upon receipt of any Letter of Credit Application from
the U.S. Borrower, or, in the case of a Foreign Letter of Credit, from the U.S.
Borrower and the Foreign Subsidiary that is an account party on such Letter of
Credit, such Issuing Lender will promptly, but in no event later than five
Business Days following receipt of such Letter of Credit Application, notify
each U.S. Lender thereof. Upon receipt of any Letter of Credit Application, the
Issuing Lender will process such Letter of Credit Application, and the other
certificates, documents and
55
other papers delivered in connection therewith, in accordance with its customary
procedures and shall promptly issue such Letter of Credit (but in no event
earlier than three Business Days after receipt by such Issuing Lender of the
Letter of Credit Application relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof and by furnishing a copy thereof to
the U.S. Borrower and the Participating Lenders. In addition, the U.S. Borrower
may from time to time agree with Issuing Lenders other than JPMorgan Chase Bank
upon procedures for issuance by such Issuing Lenders of Letters of Credit and
cause Letters of Credit to be issued by following such procedures. Such
procedures shall be reasonably satisfactory to the General Administrative Agent.
Prior to the issuance of any Letter of Credit, the Issuing Lender will confirm
with the General Administrative Agent that the issuance of such Letter of Credit
is permitted pursuant to Section 8 and subsection 11.2. Additionally, each
Issuing Lender and the U.S. Borrower shall inform the General Administrative
Agent of any modifications made to outstanding Letters of Credit, of any
payments made with respect to such Letters of Credit, and of any other
information regarding such Letters of Credit as may be reasonably requested by
the General Administrative Agent, in each case pursuant to procedures
established by the General Administrative Agent.
8.3 Participating Interests. In the case of each Existing Letter of
Credit, effective on the Closing Date, and in the case of each Letter of Credit
issued in accordance with the terms hereof on or after the Closing Date,
effective as of the date of the issuance thereof, the Issuing Lender in respect
of such Letter of Credit agrees to allot, and does allot, to each other U.S.
Lender, and each such U.S. Lender severally and irrevocably agrees to take and
does take, a Participating Interest in such Letter of Credit and the related
Letter of Credit Application in a percentage equal to such U.S. Lender's U.S.
Revolving Credit Commitment Percentage. On the date that any purchasing Lender
becomes a party to this Agreement in accordance with subsection 17.6,
Participating Interests in any outstanding Letter of Credit held by the U.S.
Lender from which such purchasing Lender acquired its interest hereunder shall
be proportionately reallotted between such purchasing Lender and such transferor
U.S. Lender. Each Participating Lender hereby agrees that its obligation to
participate in each Letter of Credit issued in accordance with the terms hereof
and to pay or to reimburse the Issuing Lender in respect of such Letter of
Credit for its participating share of the drafts drawn thereunder shall be
irrevocable and unconditional; provided that no Participating Lender shall be
liable for the payment of any amount under subsection 8.4(b) resulting solely
from such Issuing Lender's gross negligence or willful misconduct.
8.4 Payments. (a) The U.S. Borrower agrees (and in the case of a
Foreign Letter of Credit, the Foreign Subsidiary for whose account such Letter
of Credit was issued shall also agree, jointly and severally) (i) to reimburse
the General Administrative Agent for the account of the relevant Issuing Lender,
forthwith upon its demand and otherwise in accordance with the terms of the
Letter of Credit Application, if any, relating thereto, for any payment made by
such Issuing Lender under any Letter of Credit issued by such Issuing Lender for
its account and (ii) to pay to the General Administrative Agent for the account
of such Issuing Lender, interest on any unreimbursed portion of any such payment
from the date of such payment until reimbursement in full thereof at a
fluctuating rate per annum equal to the rate then borne by ABR Loans pursuant to
subsection 9.1(b) plus, without duplication of any premium payable pursuant to
Section 9.1(f)) 2%; provided, that such 2% premium shall not be payable until
the date that is two Business Days after the date on which the U.S. Borrower has
been so notified by the General Administrative Agent.
(b) In the event that an Issuing Lender makes a payment under any
Letter of Credit and is not reimbursed in full therefor, forthwith upon demand
of such Issuing Lender, and otherwise in accordance with the terms hereof or of
the Letter of Credit Application, if any, relating to such Letter of Credit,
such Issuing Lender will promptly through the General Administrative Agent
notify each
56
Participating Lender that acquired its Participating Interest in such Letter of
Credit from such Issuing Lender. No later than the close of business on the date
such notice is given (if such notice is received by such Participating Lender by
12:00 Noon, otherwise no later than 12:00 Noon of the immediately following
Business Day), each such Participating Lender will transfer to the General
Administrative Agent, for the account of such Issuing Lender, in immediately
available funds, an amount equal to such Participating Lender's pro rata share
of the unreimbursed portion of such payment. Upon its receipt from such
Participating Lender of such amount, such Issuing Lender will, if so requested
by such Participating Lender, complete, execute and deliver to such
Participating Lender a Letter of Credit Participation Certificate dated the date
of such receipt and in such amount.
(c) Whenever, at any time, after an Issuing Lender has made payment
under a Letter of Credit and has received from any Participating Lender such
Participating Lender's pro rata share of the unreimbursed portion of such
payment, such Issuing Lender receives any reimbursement on account of such
unreimbursed portion or any payment of interest on account thereof, such Issuing
Lender will distribute to the General Administrative Agent, for the account of
such Participating Lender, its pro rata share thereof; provided, however, that
in the event that the receipt by such Issuing Lender of such reimbursement or
such payment of interest (as the case may be) is required to be returned, such
Participating Lender will promptly return to the General Administrative Agent,
for the account of such Issuing Lender, any portion thereof previously
distributed by such Issuing Lender to it.
8.5 Further Assurances. (a) The U.S. Borrower hereby agrees, from time
to time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by an Issuing Lender more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit hereunder.
(b) It is understood that in connection with Letters of Credit issued
for the purposes described in subsection 8.8(b) it may be customary for the
Issuing Lender in respect of such Letter of Credit to obtain an opinion of its
counsel relating to such Letter of Credit, and each Issuing Lender that issues
such a Letter of Credit agrees to cooperate with the U.S. Borrower in obtaining
such customary opinion, which opinion shall be at the U.S. Borrower's expense
unless otherwise agreed to by such Issuing Lender.
8.6 Obligations Absolute. The payment obligations of the U.S. Borrower
and any Foreign Subsidiary Borrower under subsection 8.4 shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, under the
following circumstances:
(a) the existence of any claim, set-off, defense or other right which
the U.S. Borrower or the relevant Foreign Subsidiary Borrower may have at
any time against any beneficiary, or any transferee, of any Letter of
Credit (or any Persons for whom any such beneficiary or any such transferee
may be acting), any Issuing Lender or any Participating Lender, or any
other Person, whether in connection with this Agreement, the transactions
contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented under any Letter of
Credit opened for its account proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, except under circumstances involving the gross
negligence or willful misconduct of the Issuing Lender; or
57
(c) payment by an Issuing Lender under any Letter of Credit against
presentation of a draft or certificate which does not comply with the terms
of such Letter of Credit, except payment resulting solely from the gross
negligence or willful misconduct of such Issuing Lender; or
(d) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing, except circumstances or happenings
resulting from the gross negligence or willful misconduct of such Issuing
Lender.
8.7 Letter of Credit Application. To the extent not inconsistent with
the terms of this Agreement (in which case the provisions of this Agreement
shall prevail), provisions of any Letter of Credit Application related to any
Letter of Credit are supplemental to, and not in derogation of, any rights and
remedies of the Issuing Lenders and the Participating Lenders under this Section
8 and applicable law. Each of the U.S. Borrower and each Foreign Subsidiary
Borrower acknowledges and agrees that all rights of the Issuing Lender under any
Letter of Credit Application shall inure to the benefit of each Participating
Lender to the extent of its Participating Interest as fully as if such
Participating Lender was a party to such Letter of Credit Application.
8.8 Currency Adjustments. (a) Notwithstanding anything to the contrary
contained in this Agreement, for purposes of calculating any fee in respect of
any Letter of Credit in respect of any Business Day, the General Administrative
Agent shall convert the amount available to be drawn under any Letter of Credit
denominated in a currency other than U.S. Dollars into an amount of U.S. Dollars
based upon the Exchange Rate.
(b) Notwithstanding anything to the contrary contained in this Section
8, prior to demanding any reimbursement from the Participating Lenders pursuant
to subsection 8.4(b) in respect of any Letter of Credit denominated in a
currency other than U.S. Dollars, the Issuing Lender shall convert the relevant
Borrower's obligation under subsection 8.4 to reimburse the Issuing Lender in
such currency into an obligation to reimburse the Issuing Lender in U.S.
Dollars. The U.S. Dollar amount of the reimbursement obligation of the relevant
Borrower and the Participating Lenders shall be computed by the Issuing Lender
based upon the Exchange Rate in effect for the day on which such conversion
occurs.
SECTION 9. GENERAL PROVISIONS APPLICABLE TO LOANS
9.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such Interest Period
plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it is
outstanding at a rate per annum equal to the Alternate Base Rate for such day,
plus the Applicable Margin in effect on such day.
(c) Each Prime Rate Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Prime Rate for such day, plus
the Applicable Margin in effect on such day.
(d) Each Canadian Base Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Canadian Base Rate for
such day, plus the Applicable Margin in effect on such day.
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(e) Each Multicurrency Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate determined for such Interest Period plus the Applicable Margin
in effect for such day.
(f) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2%.
(g) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (f) of this
subsection shall be payable from time to time on demand.
(h) Each Money Market Rate Swing Line Loan shall bear interest during
the interest period applicable thereto at a rate per annum equal to the
applicable Money Market Rate; provided, that any Money Market Rate Swing Line
Loan in which Lenders purchase participating interests pursuant to subsection
3.5(a) shall, from and after the date of such purchase, bear interest until the
end of the interest period applicable thereto at a rate per annum equal to the
Alternate Base Rate.
(i) Each Swing Line Multicurrency Loan denominated in euros or Pound
Sterling shall bear interest for each day during each Interest Period with
respect thereto at the Swing Line Multicurrency Rate determined for such
Interest Period plus the Applicable Margin then in effect for Eurodollar Loans.
(j) Each European Swing Line Multicurrency Dollar Loan shall bear
interest for each day during each Interest Period with respect thereto at the
Eurodollar Rate determined for such Interest Period plus the Applicable Margin
then in effect for Eurodollar Loans
9.2 Conversion and Continuation Options. (a) The U.S. Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the General Administrative Agent prior to 12:00
Noon, New York City time, at least one Business Day's prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto unless the
U.S. Borrower shall agree to pay the costs associated therewith as set forth in
subsection 9.11(d). The U.S. Borrower may elect from time to time to convert
outstanding ABR Loans made to it (other than Swing Line Loans) (in whole or in
part) to Eurodollar Loans by giving the General Administrative Agent prior to
12:00 Noon, New York City time, at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods therefor.
Upon receipt of any such notice the General Administrative Agent shall promptly
notify each U.S. Lender thereof. All or any part of outstanding Eurodollar Loans
and ABR Loans may be converted as provided herein, provided that (i) no ABR Loan
may be converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing and the General Administrative Agent or the Majority
U.S. Lenders have determined that such conversion is not appropriate, (ii) any
such conversion may only be made if, after giving effect thereto, subsection 9.3
shall not have been violated, (iii) no ABR Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Termination Date and (iv) Swing Line Loans may not be converted to Eurodollar
Loans.
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(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the U.S. Borrower
giving notice to the General Administrative Agent of the length of the next
Interest Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the General
Administrative Agent or the Majority U.S. Lenders have determined that such
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 9.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date, and provided, further, that if
the U.S. Borrower shall fail to give such notice or if such continuation is not
permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower or the relevant Foreign Subsidiary Borrower giving a Notice of
Multicurrency Loan Continuation, provided, that if the relevant Foreign
Subsidiary Borrower shall fail to give such Notice of Multicurrency Loan
Continuation, such Multicurrency Loans shall automatically be continued for an
Interest Period of one month.
9.3 Minimum Amounts of Tranches. (a) All borrowings, conversions and
continuations of U.S. Revolving Credit Loans and Multicurrency Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, (i) the
aggregate principal amount of the Eurodollar Loans comprising each Tranche shall
be equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof,
(ii) the aggregate principal amount of the Multicurrency Loans comprising each
Tranche shall be in an amount of which the U.S. Dollar Equivalent is at least
$2,500,000 (determined at the time of borrowing or continuation) and (iii) there
shall not be more than 25 Tranches at any one time outstanding.
(b) All Acceptances created hereunder, all conversions and
continuations thereof and all selections of maturity dates with respect thereto
shall be made pursuant to such elections so that, after giving effect thereto,
there shall be no more than 10 Acceptance Tranches at any one time outstanding.
9.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower may at
any time and from time to time prepay U.S. Revolving Credit Loans and/or Swing
Line Dollar Loans (other than Money Market Rate Swing Line Loans), in whole or
in part without premium or penalty upon at least three Business Days'
irrevocable notice to the General Administrative Agent (in the case of
Eurodollar Loans) and at least one Business Day's irrevocable notice to the
General Administrative Agent (in the case of U.S. Revolving Credit Loans that
are ABR Loans) specifying the date and amount of prepayment and whether the
prepayment of U.S. Revolving Credit Loans is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon the receipt of any such notice the General Administrative Agent shall
promptly notify each U.S. Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayments of the U.S. Revolving Credit Loans shall be in an
aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000 in
excess thereof (or in such lower amount as may be then outstanding). Partial
prepayments of the Swing Line Dollar Loans shall be in aggregate principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof (or in such
lower amount as may be then outstanding).
(b) The Canadian Borrower may at any time and from time to time
prepay, without premium or penalty, the Canadian Revolving Credit Loans, in
whole or in part, upon at least one Business
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Day's irrevocable notice to the Canadian Administrative Agent specifying the
date and amount of prepayment. Upon the receipt of any such notice, the Canadian
Administrative Agent shall promptly notify each Canadian Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments of Canadian Revolving
Credit Loans shall be in an aggregate principal amount of C$5,000,000 or a whole
multiple of C$1,000,000 in excess thereof (in the case of Canadian Revolving
Credit Loans denominated in Canadian Dollars), U.S.$5,000,000 or a whole
multiple of U.S.$1,000,000 in excess thereof (in the case of Canadian Revolving
Credit Loans denominated in U.S. Dollars), or in such lower amount as may be
then outstanding for either denomination.
(c) The U.S. Borrower and Foreign Subsidiary Borrowers may at any time
and from time to time prepay, without premium or penalty, the Multicurrency
Loans and/or Swing Line Multicurrency Loans, in whole or in part, upon at least
three Business Days' irrevocable notice to the General Administrative Agent
specifying the date and amount of prepayment. Upon the receipt of any such
notice, the General Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayments of Multicurrency Loans shall be in an aggregate principal amount of
which the U.S. Dollar Equivalent is at least $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Partial prepayments of the Swing Line
Multicurrency Loans shall be in aggregate principal amount of which the U.S.
Dollar Equivalent is at least $100,000 or a whole multiple of $100,000 in excess
thereof (or in such lower amount as may be then outstanding).
(d) If, at any time during the Revolving Credit Commitment Period, for
any reason the Aggregate Total Outstandings of all Lenders exceed the Aggregate
U.S. Revolving Credit Commitments then in effect by more than 5%, or the
Aggregate Committed Outstandings of any Lender exceeds the Revolving Credit
Commitment of such Lender then in effect by more than 5%, (i) the U.S. Borrower
shall, upon learning thereof or upon the request of the General Administrative
Agent, immediately prepay the Swing Line Dollar Loans and the U.S. Revolving
Credit Loans and/or (ii) the Canadian Borrower shall, upon learning thereof or
upon the request of the General Administrative Agent, immediately prepay the
Canadian Revolving Credit Loans and/or (iii) the U.S. Borrower or the relevant
Foreign Subsidiary Borrower shall, upon learning thereof or upon the request of
the General Administrative Agent, immediately prepay the Swing Line
Multicurrency Loans and the Multicurrency Loans, in an aggregate principal
amount at least sufficient to reduce any such excess to 0%; provided, however,
that nothing in this subsection shall be construed as requiring the Canadian
Borrower to so prepay in amounts (i) that would be in violation of, and its
obligations to so prepay are subject to, the restrictions on financial
assistance set out in the Business Corporations Act (Ontario) or (ii)
outstanding by way of Acceptances; and, provided, further, that the preceding
proviso shall not be construed in any way as limiting or derogating from the
obligations of the Borrowers (other than the Canadian Borrower) set out in this
subsection.
(e) Each prepayment of Loans pursuant to this subsection 9.4 (except
in the case of Revolving Credit Loans that are ABR Loans, Swing Line Dollar
Loans and Canadian Base Rate Loans) shall be accompanied by accrued and unpaid
interest on the amount prepaid to the date of prepayment and any amounts payable
under subsection 9.11 in connection with such prepayment.
(f) Notwithstanding the foregoing, mandatory prepayments of Revolving
Credit Loans or Multicurrency Loans that would otherwise be required pursuant to
this subsection 9.4 solely as a result of fluctuations in Exchange Rates from
time to time shall only be required to be made pursuant to
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this subsection 9.4 on the last Business Day of each month on the basis of the
Exchange Rate in effect on such Business Day.
(g) The U.S. Borrower shall prepay all Swing Line Dollar Loans then
outstanding (other than Money Market Rate Swing Line Loans) simultaneously with
each borrowing of U.S. Revolving Credit Loans.
(h) The U.S. Borrower or the relevant Foreign Subsidiary Borrower
shall prepay all Swing Line Multicurrency Loans then outstanding (other than
Money Market Rate Swing Line Loans) simultaneously with each borrowing by such
Borrower of Multicurrency Loans in the same currency as that in which such
outstanding Swing Line Multicurrency Loans are denominated.
9.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees to pay to
the General Administrative Agent, for the account of each U.S. Lender, a
facility fee for the period from and including the Closing Date to but excluding
the Revolving Credit Termination Date (or such earlier date on which the
Revolving Credit Commitments shall terminate as provided herein); each such
facility fee shall be computed at the Facility Fee Rate on the amount of the
U.S. Revolving Credit Commitment of such U.S. Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Credit Termination Date or
such earlier date on which the U.S. Revolving Credit Commitments shall terminate
as provided herein, commencing on the first such date to occur after the date
hereof. Each U.S. Common Lender and its Counterpart Lender may elect, upon
notice to the U.S. Borrowers and the Administrative Agents, to have all or a
portion of the facility fees owed to such U.S. Common Lender by the U.S.
Borrower paid by the Canadian Borrower in Canadian Dollars directly to the
Canadian Administrative Agent for the account of such U.S. Common Lender's
Counterpart Lender. Each U.S. Common Lender and its Counterpart Lender may make
such election no more often than once in any year. If any such election is made,
amounts otherwise due in U.S. Dollars in respect of facility fees shall be
converted to Canadian Dollars at the then Exchange Rate on the date which is one
Business Day prior to the date such amount is due.
(b) The U.S. Borrower shall pay (without duplication of any other fee
payable under this subsection 9.5) to JPMorgan Chase Bank and BofA, for their
respective accounts, all fees separately agreed to by the U.S. Borrower and
JPMorgan Chase Bank or BofA, as the case may be.
(c) The Canadian Borrower shall (without duplication of any other fee
payable under this subsection 9.5) pay to the Canadian Administrative Agent all
fees separately agreed to by the Canadian Borrower and the Canadian
Administrative Agent.
(d) The U.S. Borrower shall (without duplication of any other fee
payable under this subsection 9.5) pay to the General Administrative Agent all
fees separately agreed to by the U.S. Borrower and the General Administrative
Agent.
(e) In lieu of any letter of credit commissions and fees provided for
in any Letter of Credit Application (other than any standard issuance, amendment
and negotiation fees), the U.S. Borrower will pay the General Administrative
Agent, (i) for the account of the Issuing Lender, a non-refundable fronting fee
equal to 0.125% per annum and (ii) for the account of the U.S. Lenders, a
non-refundable Letter of Credit fee equal to the Applicable Margin then in
effect with respect to Eurodollar Loans less 0.125%, in each case on the amount
available to be drawn under such Letter of Credit. Such fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter, and
shall be calculated on the average daily amount available to be drawn under the
Letters of Credit.
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(f) The U.S. Borrower agrees to pay the Issuing Lender for its own
account its customary administration, amendment, transfer and negotiation fees
charged by the Issuing Lender in connection with its issuance and administration
of Letters of Credit.
(g) If the Utilization Percentage for any calendar quarter (or such
shorter period beginning with the Closing Date or ending with the Revolving
Credit Termination Date) is equal to or greater than 50% for such calendar
quarter (or shorter period, if applicable), the U.S. Borrower agrees to pay to
the General Administrative Agent, for the account of each U.S. Lender, a
utilization fee (a "Utilization Fee") in U.S. Dollars at a rate per annum equal
to 0.125% on such average daily aggregate principal amount of the Aggregate
Total Outstandings during such calendar quarter (or shorter period), payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Credit Termination Date, or such earlier date on which the
U.S. Revolving Credit Commitments shall terminate as provided herein, commencing
on the first such date to occur after the date hereof. Each U.S. Common Lender
and its Counterpart Lender may elect, upon notice to the U.S. Borrowers and the
Administrative Agents, to have all or a portion of the Utilization Fee owed to
such U.S. Common Lender by the U.S. Borrower paid by the Canadian Borrower in
Canadian Dollars directly to the Canadian Administrative Agent for the account
of such U.S. Common Lender's Counterpart Lender. Each U.S. Common Lender and its
Counterpart Lender may make such election no more often than once in any year.
If any such election is made, amounts otherwise due in U.S. Dollars in respect
of the Utilization Fee shall be converted to Canadian Dollars at the then
Exchange Rate on the date which is one Business Day prior to the date such
amount is due.
9.6 Computation of Interest and Fees. (a) Interest based on the
Eurodollar Rate, the Eurocurrency Rate, the Swing Line Multicurrency Rate, the
Money Market Rate or the Alternate Base Rate when it is based upon the Federal
Funds Effective Rate shall be calculated on the basis of a 360-day year for the
actual days elapsed; and facility fees and interest (other than interest based
upon the Eurodollar Rate, the Eurocurrency Rate, the Swing Line Multicurrency
Rate, the Money Market Rate or the Alternate Base Rate when it is based upon the
Federal Funds Effective Rate) shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed. The General
Administrative Agent shall as soon as practicable notify the U.S. Borrower and
the U.S. Lenders of each determination of a Eurodollar Rate or Eurocurrency
Rate. Any change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate or a change in the Prime Rate shall become effective as of
the opening of business on the day on which such change becomes effective. The
General Administrative Agent shall as soon as practicable notify the U.S.
Borrower and the Lenders of the effective date and the amount of each such
change in the Alternate Base Rate, and the Canadian Administrative Agent shall
as soon as practicable notify the U.S. Borrower and Canadian Borrower and the
Canadian Lenders of each such change in the Prime Rate and the Canadian Base
Rate; provided that a failure by the General Administrative Agent or the
Canadian Administrative Agent to notify the U.S. Borrower or the Canadian
Borrower of such respective rate changes does not affect the obligation of the
U.S. Borrower or the Canadian Borrower to pay interest at the applicable rate as
changed. For purposes of the Interest Act (Canada), whenever any interest under
this Agreement is calculated based on a period which is less than a year (the
"Lesser Period"), the interest rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (i) the applicable rate based
on such Lesser Period, (ii) multiplied by the actual number of days in the
calendar year in which the period for which such interest is payable ends, and
(iii) divided by the number of days in such Lesser Period. The rates of interest
specified in this Agreement are nominal rates and all interest payments and
computations are to be made without allowance or deduction for deemed
reinvestment of interest.
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(b) Each determination of an interest rate by the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. Each
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by such
Administrative Agent in determining any interest rate pursuant to subsection
9.1(a).
9.7 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the General Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the General Administrative Agent has received notice from the
Majority U.S. Lenders that the Eurodollar Rate or Eurocurrency Rate, as the
case may be, determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such U.S. Lenders of making
or maintaining their Eurodollar Loans or Multicurrency Loans, as the case
may be, during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the U.S. Borrower and the U.S. Lenders as soon as practicable
thereafter. Until such time as the Eurodollar Rate or the Eurocurrency Rate, as
the case may be, can be determined by the General Administrative Agent in the
manner specified in the definitions of such terms in subsection 1.1, no further
Eurodollar Loans or Multicurrency Loans (with respect to the Available Foreign
Currency for which the Eurocurrency Rate cannot be determined only) shall be
continued as such at the end of the then current Interest Periods or (other than
any Eurodollar Loans or Multicurrency Loans previously requested and with
respect to which the Eurodollar Rate or Eurocurrency Rate, as the case may be,
was determined) shall be made, nor shall the U.S. Borrower have the right to
convert ABR Loans into Eurodollar Loans.
9.8 Pro Rata Treatment and Payments. (a) (i) Except as provided in
subsection 2.5, each borrowing of U.S. Revolving Credit Loans by the U.S.
Borrower from the U.S. Lenders hereunder shall be made pro rata according to the
U.S. Dollar Funding Commitment Percentages of the U.S. Lenders in effect on the
date of such borrowing. Each payment by the U.S. Borrower on account of any
facility fee hereunder shall be allocated by the General Administrative Agent
among the U.S. Lenders in accordance with the respective amounts which such U.S.
Lenders are entitled to receive pursuant to subsection 9.5(a). Any reduction of
the U.S. Revolving Credit Commitments of the U.S. Lenders shall be allocated by
the General Administrative Agent among the U.S. Lenders pro rata according to
the U.S. Revolving Credit Commitment Percentages of the U.S. Lenders. Except as
provided in subsection 2.5 or subsection 9.4(d), each payment (other than any
optional prepayment) by the U.S. Borrower on account of principal of or interest
on the U.S. Revolving Credit Loans or the CAF Advances shall be allocated by the
General Administrative Agent pro rata according to the respective principal
amounts thereof then due and owing to each U.S. Lender. Each optional prepayment
by the U.S. Borrower on account of principal of or interest on the U.S.
Revolving Credit Loans shall be allocated by the General Administrative Agent
pro rata according to the respective outstanding principal amounts thereof. All
payments (including prepayments) to be made by the U.S. Borrower hereunder
(other than with respect to Multicurrency Loans), whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the
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General Administrative Agent, for the account of the U.S. Lenders, at the
General Administrative Agent's office specified in subsection 17.2, in Dollars
and in immediately available funds. The General Administrative Agent shall
distribute such payments to the U.S. Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(ii) Each borrowing of Canadian Revolving Credit Loans by the Canadian
Borrower from the Canadian Lenders hereunder shall be made, and any reduction of
the Canadian Revolving Credit Commitments of the Canadian Lenders shall be
allocated by the Canadian Administrative Agent, pro rata according to the
Canadian Revolving Credit Commitment Percentages of the Canadian Lenders. Except
as provided in subsection 9.4(d), each payment (other than any optional
prepayment) by the Canadian Borrower on account of principal of or interest on
the Canadian Revolving Credit Loans shall be allocated by the Canadian
Administrative Agent pro rata according to the respective principal amounts of
the Canadian Revolving Credit Loans then due and owing to each Canadian Lender.
Each optional prepayment by the Canadian Borrower on account of principal of or
interest on the Canadian Revolving Credit Loans shall be allocated by the
Canadian Administrative Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the Canadian Borrower hereunder, whether on account of principal, interest, fees
or otherwise, shall be made without set-off or counterclaim and shall be made
prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian
Administrative Agent, for the account of the Canadian Lenders, at the Canadian
Administrative Agent's office specified in subsection 17.2, in Canadian Dollars
and in immediately available funds. The Canadian Administrative Agent shall
distribute such payments to the Canadian Lenders entitled to receive the same
promptly upon receipt in like funds as received.
(iii) Each borrowing of Multicurrency Loans by the U.S. Borrower or
any Foreign Subsidiary Borrower shall be made, and any reduction of the
Multicurrency Commitments shall be allocated by the General Administrative
Agent, pro rata according to the Multicurrency Commitment Percentages of the
Multicurrency Lenders. Except as provided in subsection 9.4(d), each payment
(including each prepayment) by the U.S. Borrower or a Foreign Subsidiary
Borrower on account of principal of and interest on Multicurrency Loans shall be
allocated by the General Administrative Agent pro rata according to the
respective principal amounts of the Multicurrency Loans then due and owing by
such Foreign Subsidiary Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by a Borrower hereunder in respect of
Multicurrency Loans, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made at or
before the payment time for the currency of such Multicurrency Loan set forth in
the Administrative Schedule, on the due date thereof to the General
Administrative Agent, for the account of the Multicurrency Lenders, at the
payment office for the currency of such Multicurrency Loan set forth in the
Administrative Schedule, in the currency of such Multicurrency Loan and in
immediately available funds. The General Administrative Agent shall distribute
such payments to the Multicurrency Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on the Eurodollar
Loans, the Swing Line Multicurrency Loans, the Multicurrency Loans and the
Acceptances) becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension. If any payment on a Eurodollar
Loan, Swing Line Multicurrency Loan or a Multicurrency Loan becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day (and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar
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month, in which event such payment shall be made on the immediately preceding
Business Day. Acceptances may only mature on a Business Day.
(b) A payment in euro shall be deemed to have been made by the General
Administrative Agent on the date on which it is required to be made under this
Agreement if the General Administrative Agent has, on or before that date, taken
all relevant steps to make that payment. With respect to the payment of any
amount denominated in euro, the General Administrative Agent shall not be liable
to any Borrower or any of the Lenders in any way whatsoever for any delay, or
the consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the General Administrative Agent if the
General Administrative Agent shall have taken all relevant steps to achieve, on
the date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds in the euro unit to the account
with the bank in the principal financial center in the Participating Member
State which the relevant Borrower or, as the case may be, any Lender shall have
specified for such purpose. In this paragraph (b), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the General
Administrative Agent may from time to time determine for the purpose of clearing
or settling payments of euro.
(c) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make the amount that would constitute its share of such borrowing
available to such Administrative Agent, such Administrative Agent may assume
that such Lender is making such amount available to such Administrative Agent,
and such Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
not made available to such Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to such Administrative Agent, on
demand, such amount with interest thereon at a rate per annum equal to (i) the
daily average Federal Funds Effective Rate (in the case of a borrowing of U.S.
Revolving Credit Loans or CAF Advances), (ii) the Canadian Administrative
Agent's reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Canadian Revolving Credit Loans or Acceptances) and (iii) the
General Administrative Agent's reasonable estimate of its average daily cost of
funds (in the case of a borrowing of Multicurrency Loans), in each case for the
period until such Lender makes such amount immediately available to such
Administrative Agent. A certificate of such Administrative Agent submitted to
any Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to such Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the applicable Borrower shall
repay such Lender's share of such borrowing (together with interest thereon from
the date such amount was made available to such Borrower (i) at the rate per
annum applicable to ABR Loans hereunder (in the case of amounts made available
to the U.S. Borrower and amounts made available in U.S. Dollars to the Canadian
Borrower), (ii) at the rate per annum applicable to Prime Rate Loans hereunder
(in the case of amounts made available in Canadian Dollars to the Canadian
Borrower) and (iii) the General Administrative Agent's reasonable estimate of
its average daily cost of funds plus the Applicable Margin applicable to
Multicurrency Loans (in the case of a borrowing of Multicurrency Loans)) to such
Administrative Agent not later than three Business Days after receipt of written
notice from such Administrative Agent specifying such Lender's share of such
borrowing that was not made available to such Administrative Agent. Nothing
contained in this subsection 9.8(b) shall prejudice any claims otherwise
available to any Borrower against any Lender as a result of such Lender's
failure to make its share of any borrowing available to an Administrative Agent
for the account of a Borrower.
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(d) Any amount payable by the General Administrative Agent to the
Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the euro unit.
(e) If, in relation to the currency of any Subsequent Participant, the
basis of accrual of interest or fees expressed in this Agreement with respect to
such currency shall be inconsistent with any convention or practice in the
London Interbank Market or, as the case may be, the Paris Interbank Market for
the basis of accrual of interest or fees in respect of the euro, such convention
or practice shall replace such expressed basis effective as of and from the date
on which such Subsequent Participant becomes a Participating Member State;
provided, that if any Multicurrency Loan in the currency of such Subsequent
Participant is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Multicurrency Loan, at the end of the
then current Interest Period.
(f) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and (i) without prejudice to the
respective liabilities for indebtedness of the Borrowers to the Lenders and the
Lenders to the Borrowers under or pursuant to this Agreement and (ii) without
increasing the Available Multicurrency Commitment of any Lender:
(x) the Multicurrency Loans and each reference in this Agreement to a
minimum amount (or an integral multiple thereof) in a national currency
denomination of a Subsequent Participant to be paid to or by the General
Administrative Agent shall, immediately upon such Subsequent Participant
becoming a Participating Member State, be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the General Administrative Agent may from time
to time specify; and
(y) except as expressly provided in this subsection 9.8, each
provision of this Agreement shall be subject to such reasonable changes of
construction as the General Administrative Agent may from time to time
specify to be necessary or appropriate to reflect the adoption of the euro
in any Participating Member State and any relevant market conventions or
practices relating to the euro.
9.9 Illegality. (i) Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans or for the Swing Line Multicurrency
Lender to make or maintain Swing Line Multicurrency Loans as contemplated by
this Agreement, (a) the commitment of such Lender hereunder to make (or to
participate in) Eurodollar Loans, Multicurrency Loans or Swing Line
Multicurrency Loans, continue Eurodollar Loans, Multicurrency Loans or Swing
Line Multicurrency Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled until such time as it shall no longer be unlawful for
such Lender to make or maintain the affected Loans, (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Eurodollar Loans or within such earlier period as may be
required by law and (c) such Lender's Multicurrency Loans and the Swing Line
Multicurrency Lender's Swing Line Multicurrency Loans shall be prepaid on the
last day of the then current Interest Period with respect thereto. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the U.S. Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
9.11.
(ii) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any
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Canadian Lender to create or maintain Acceptances as contemplated by this
Agreement, (a) the commitment of such Canadian Lender hereunder to accept
Drafts, purchase Acceptances, continue Acceptances as such and convert Canadian
Revolving Credit Loans to Acceptances shall forthwith be cancelled until such
time as it shall no longer be unlawful for such Canadian Lender to create or
maintain Acceptances and (b) such Canadian Lender's then outstanding
Acceptances, if any, shall be converted automatically to Prime Rate Loans on the
respective maturities thereof or within such earlier period as may be permitted
and required by law.
(iii) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Canadian Lender to make or maintain
Canadian Base Rate Loans, (a) the commitment of such Canadian Lender hereunder
to make Canadian Base Rate Loans shall forthwith be cancelled until such time as
it shall no longer be unlawful for such Canadian Lender to make or maintain
Canadian Base Rate Loans and (b) such Canadian Lender's then outstanding
Canadian Base Rate Loans, if any, shall be converted automatically to Canadian
Dollars and Prime Rate Loans on the respective maturities thereof or within such
earlier period as may be permitted and required by law.
9.10 Requirements of Law. (a) In the event that any Requirement of Law
(or any change therein or in the interpretation or application thereof) or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority:
(i) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of such Lender which are not otherwise included in the
determination of the Swing Line Multicurrency Rate, Eurodollar Rate or
Eurocurrency Rate, including, without limitation, the imposition of any
reserves with respect to Eurocurrency Liabilities under Regulation D of the
Board; or
(ii) does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Loans, its Acceptances or its
Participating Interests, then, in any such case, the applicable Borrower shall
promptly pay such Lender, upon receipt of its demand setting forth in reasonable
detail, any additional amounts necessary to compensate such Lender for such
additional cost or reduced amount receivable, such additional amounts together
with interest on each such amount from the date two Business Days after the date
demanded until payment in full thereof at the ABR. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by such
Lender, through the General Administrative Agent, to the applicable Borrower
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and payment of all amounts outstanding
hereunder.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital adequacy
(or any change therein or in the interpretation or application thereof) or
compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation
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or guideline, does or shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the U.S. Borrower (with a copy to the General
Administrative Agent) of a written request therefor, the U.S. Borrower shall
promptly pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) If the obligation of any Lender to make Eurodollar Loans or
Multicurrency Loans or if the obligation of the Swing Line Multicurrency Lender
to make Swing Line Multicurrency Loans has been suspended pursuant to subsection
9.7 or 9.9 for more than three consecutive months or any Lender has demanded
compensation under subsection 9.10(a) or 9.10(b), the U.S. Borrower shall have
the right to substitute a financial institution or financial institutions (which
may be one or more of the Lenders) reasonably satisfactory to the General
Administrative Agent by causing such financial institution or financial
institutions to purchase the rights (by paying to such Lender the principal
amount of its outstanding Loans together with accrued interest thereon and all
other amounts accrued for its account or owed to it hereunder and executing an
Assignment and Acceptance) and to assume the obligations of such Lender under
the Loan Documents; provided, that with respect to any such assignment involving
the Swing Line Multicurrency Lender, the replacement Swing Line Multicurrency
Lender shall have the rights and protections available under Section 3 with
respect to any outstanding Swing Line Multicurrency Loans. Upon such purchase
and assumption by such substituted financial institution or financial
institutions, the obligations of such Lender hereunder shall be discharged;
provided such Lender shall retain its rights hereunder with respect to periods
prior to such substitution including, without limitation, its rights to
compensation under this subsection 9.10.
9.11 Indemnity. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in payment when due of
the principal amount of or interest on any Loans of such Lender, (b) default by
such Borrower in making a borrowing or conversion after the Borrower has given a
notice of borrowing or a notice of conversion in accordance with this Agreement,
(c) default by such Borrower in making any prepayment after such Borrower has
given a notice in accordance with this Agreement, (d) the making of a prepayment
by such Borrower of a Eurodollar Loan, Multicurrency Loan or Swing Line
Multicurrency Loan on a day which is not the last day of an Interest Period with
respect thereto or the making by such Borrower of a prepayment of Money Market
Rate Swing Line Loans on a day which is not the last day of the interest period
with respect thereto, including, without limitation, in each case, any such loss
or expense arising from the reemployment of funds obtained by it or from fees
payable to terminate the deposits from which such funds were obtained, or (e)
the prepayment by such Borrower of an Acceptance or an Acceptance Note on a day
which is not the maturity date thereof, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it to maintain its Eurodollar Loans or Multicurrency Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained. A
certificate as to any such loss or expense submitted by such Lender shall be
conclusive, absent manifest error. This covenant shall survive termination of
this Agreement and payment of all amounts outstanding hereunder.
9.12 Taxes. (a) All payments made by any Borrower to any Lender or any
Administrative Agent under this Agreement shall be made free and clear of, and
without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
69
assessed by any Governmental Authority excluding, in the case of each
Administrative Agent and each Lender, income (including, for avoidance of doubt,
any branch profit taxes) or franchise taxes imposed on such Administrative Agent
or such Lender by the jurisdiction under the laws of which such Administrative
Agent or such Lender is organized or any political subdivision or taxing
authority thereof or therein or by any jurisdiction in which such Lender's
lending office is located or any political subdivision or taxing authority
thereof or therein or as a result of a connection between such Lender and any
jurisdiction other than a connection resulting solely from entering into this
Agreement (all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being thereinafter called "Taxes"). Subject to the provisions of
subsection 9.12(d), if any Taxes are required to be withheld from any amounts
payable by such Borrower to any Administrative Agent or any Lender hereunder or
under the Notes, the amounts so payable to such Administrative Agent or such
Lender shall be increased to the extent necessary to yield to such
Administrative Agent or such Lender (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the Notes. Whenever any Taxes are paid by any Borrower with
respect to payments made in connection with this Agreement, as promptly as
possible thereafter, such Borrower shall send to the applicable Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by such Borrower
showing payment thereof (or such other evidence of payment reasonably
satisfactory to the Administrative Agent). Subject to the provisions of
subsection 9.12(d), if any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify such Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by such
Administrative Agent or any Lenders as a result of any such failure.
(b) Each Lender (other than a Lender that is treated as a corporation
for United States federal income tax purposes) that is incorporated or organized
under the laws of the United States of America or a state thereof agrees that,
prior to the first date any payment is due to be made to it hereunder or under
any Note, it will deliver to the U.S. Borrower and the General Administrative
Agent two valid, duly completed copies of United States Internal Revenue Service
Form W-9 certifying that such Lender is entitled to receive payments hereunder
without deduction or withholding of any United States federal backup withholding
tax. Each U.S. Lender (and each other Lender lending to the U.S. Borrower) that
is not incorporated or organized under the laws of the United States of America
or a state thereof agrees that, prior to the first date any payment is due to be
made to it hereunder or under any Note, it will deliver to the U.S. Borrower and
the General Administrative Agent two valid, duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable
form, as the case may be, certifying in each case that such Lender is entitled
to receive payments by the U.S. Borrower under this Agreement and the Notes
payable to it, without deduction or withholding of any United States federal
income taxes; provided, however, that any Lender that is not the beneficial
owner of a payment (as defined in Treasury Regulation Section 1.1441-1(c)(6))
and is unable to provide a Form W-8BEN or W-8ECI shall provide the U.S. Borrower
and the General Administrative Agent with a validly, duly executed copy of IRS
Form W-8IMY and all necessary attachments establishing that it is entitled to
receive payments without deduction of any U.S. federal income taxes. Each Lender
which delivers to the U.S. Borrower and the General Administrative Agent a Form
W-8BEN or W-8ECI or W-8IMY pursuant to the preceding sentences further
undertakes to deliver to the U.S. Borrower and the General Administrative Agent
two further copies of the said Form W-8BEN or W-8ECI or W-8IMY, or successor
applicable forms, or other manner or certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or otherwise is
required to be resubmitted as a condition to obtaining an exemption from
withholding tax, or after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the U.S. Borrower, and such
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extensions or renewals thereof as may reasonably be requested by the U.S.
Borrower, in each case, certifying in the case of a Form W-8BEN or W-8ECI or
W-8IMY or successor applicable form that such Lender is entitled to receive
payments by the U.S. Borrower under this Agreement without deduction or
withholding of any United States federal income taxes unless any change in
treaty, law or regulation or official interpretation thereof has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such letter or form with respect to it and such
Lender advises the U.S. Borrower that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax or any
deduction or withholding of United States backup withholding tax. To the extent
an Administrative Agent is not also a Lender hereunder, such Administrative
Agent shall comply with this paragraph as if such Administrative Agent were a
U.S. Lender.
(c) Each Multicurrency Lender shall, upon request by a Foreign
Subsidiary Borrower (or the U.S. Borrower on its behalf), within a reasonable
period of time after such request, deliver to such Foreign Subsidiary Borrower
or the applicable governmental or taxing authority, as the case may be, any form
or certificate required in order that any payment by such Foreign Subsidiary
Borrower under this Agreement or any Notes to such Lender may be made free and
clear of, and without deduction or withholding for or on account of any Taxes
(or to allow any such deduction or withholding to be at a reduced rate) imposed
on such payment under the laws of the jurisdiction under which such Foreign
Subsidiary Borrower is incorporated or organized, provided that such Lender is
legally entitled to complete, execute and deliver such form or certificate and
in such Lender's reasonable judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender.
(d) Neither the U.S. Borrower nor any other Borrower shall be required
to pay any additional amounts to any Administrative Agent or any Lender (or
Transferee except to the extent such Transferee's transferor was entitled, at
the time of transfer, to receive additional amounts from the U.S. Borrower) in
respect of Taxes pursuant to subsection 9.12(a) if (i) the obligation to pay
such additional amounts would not have arisen but for a failure by an
Administrative Agent or such Lender (or Transferee) to comply with the
requirements of subsection 9.12(b) or (c) (or in the case of a Transferee, the
requirements of subsection 17.6(h)); (ii) the obligation to pay such additional
amounts arises as a result of U.S. federal withholding tax imposed on the date
hereof (or, in the case of a Transferee, the date such Transferee obtained its
interest in this Agreement, any Loan or any Note); or (iii) such Lender is a
Conduit Lender, unless the Lender designating such Conduit Lender also complies
with the provisions of Section 9.12(b) or (c) as if such designating Lender were
a Lender hereunder.
(e) Notwithstanding any other provision hereof, no Borrower shall have
any obligation to pay any additional amounts pursuant to this subsection 9.12 to
any Canadian Lender in respect of any time after which such Canadian Lender has
ceased to maintain its status as a resident of Canada for the purposes of the
Tax Act.
(f) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its lending office) to avoid or to minimize any amounts which
might otherwise be payable pursuant to this subsection 9.12; provided, however,
that such efforts shall not impose on such Lender any additional costs or legal
or regulatory burdens deemed by such Lender in its reasonable judgment to be
material.
(g) The agreements in subsection 9.12(a) shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder until the expiration of the applicable statute of limitations for such
taxes.
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(h) If an Administrative Agent or any Lender determines, in its sole
discretion, that it has received a refund or direct credit in respect of and
specifically associated with any Taxes as to which it has been indemnified by a
Borrower, or with respect to which a Borrower has paid additional amounts, it
shall promptly notify such Borrower of such refund or direct credit and shall
pay over the amount of such refund or direct credit, without interest (other
than interest paid or credited by the relevant Governmental Authority
attributable to such refund or direct credit) to the Borrower but only to the
extent of indemnity payments made, or additional amounts paid, by a Borrower
with respect to the Taxes giving rise to such refund or direct credit), net of
all out-of-pocket expenses of such Person; provided that the Borrower, upon the
request of the Administrative Agent or Lender, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or Lender in
the event the Administrative Agent or Lender is required to repay such refund or
direct credit to such Governmental Authority. If an Administrative Agent or any
Lender shall become aware that its entitled to receive a refund or direct credit
in respect of Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts, it shall promptly
notify such Borrower of the availability of such refund or direct credit and
shall, within 30 days after receipt of a request for such by the Borrower
(whether as a result of notification that it has made of such to the Borrower or
otherwise), make a claim to such Governmental Authority for such refund or
direct credit and contest such Taxes or liabilities if (i) the Borrower has
agreed in writing to pay all of such Lender's or Administrative Agent's
reasonable costs and expenses relating to such claim and (ii) such Lender or
Administrative Agent determines, in its reasonable discretion, that it would not
be materially disadvantaged or prejudiced as a result of such refund claim (it
being understood that the mere existence of fees, charges, costs or expenses
that a Borrower has offered to and agreed to pay on behalf of the Lender or
Administrative Agent shall not be deemed to be materially disadvantageous to
such person). This paragraph shall not be construed to require any
Administrative Agent or Lender to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or
any other person. Notwithstanding anything to the contrary, in no event will any
Administrative Agent or Lender be required to pay any amount to the Borrower the
payment of which would place such Administrative Agent or Lender in a less
favorable net after-tax position than such Administrative Agent or Lender would
have been in if the additional amounts giving rise to such refund of any Taxes
had never been paid.
9.13 Assignment of Commitments Under Certain Circumstances. (a) In the
event that any Lender shall have delivered a notice or certificate pursuant to
subsection 9.10 or any Borrower has been required to pay any Taxes in respect of
any Lender pursuant to subsection 9.12, the U.S. Borrower shall have the right,
at its own expense, upon notice to such Lender and the General Administrative
Agent, to require such Lender to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in subsection 17.6)
all its interests, rights and obligations under this Agreement to another bank
or financial institution identified by the U.S. Borrower and reasonably
acceptable to the General Administrative Agent (subject to the restrictions
contained in subsection 17.6) which shall assume such obligations; provided that
(i) no such assignment shall conflict with any law, rule or regulation or order
of any Governmental Authority and (ii) the Borrower or the assignee, as the case
may be, shall pay to the transferor Lender in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by it hereunder and all other amounts accrued for its
account or owed to it hereunder, including, without limitation, amounts payable
pursuant to subsection 9.10 and any amounts that would be payable under
Subsection 9.11 if such amount were a prepayment made in the amount and on the
date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary
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Borrowers hereunder to be made free and clear of, and without deduction or
withholding for or on account of, any Taxes, the U.S. Borrower may, so long as
no Event of Default has occurred and is continuing, require such Multicurrency
Lender, upon five Business Days' prior written notice from the U.S. Borrower, to
assign the entire then outstanding principal amount of the Multicurrency Loans
owing to such Multicurrency Lender and the entire Multicurrency Commitment of
such Multicurrency Lender (including its obligation to share risk participations
in any Swing Line Multicurrency Loans) to one or more Lenders selected by the
U.S. Borrower which, after giving effect to such assignment, will have a U.S.
Revolving Credit Commitment in excess of its Multicurrency Commitment. In the
case of any such assignment to another Lender, such assignee Lender shall assign
to such assignor Multicurrency Lender a principal amount of outstanding U.S.
Revolving Credit Loans owing to such assignee Lender equal to the lesser of (i)
the sum of the U.S. Dollar Equivalent of the amount of (x) the Multicurrency
Loans assigned to such assignee Lender and (y) such assignee Lender's
Multicurrency Commitment Percentage of the aggregate unpaid principal amount of
all Swing Line Multicurrency Loans on such date and (ii) the aggregate
outstanding principal amount of U.S. Revolving Credit Loans owing to such
assignee Lender. Any such assignments pursuant to the two precedent sentences
shall be effected in accordance with subsection 17.6(c) and, as a condition to
such assignment, simultaneously with such assignment, the U.S. Borrower shall
pay or cause to be paid all amounts due to the assignor Multicurrency Lender and
the assignee Lender hereunder on the effective date of such assignments.
9.14 Use of Proceeds. The proceeds of the Loans shall be used to
refinance all amounts under the Existing Credit Agreement and for general
corporate purposes of the U.S. Borrower and its Subsidiaries, including
acquisitions and as a backup to commercial paper facilities.
SECTION 10. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans, and to induce the Issuing Lender to issue Letters of Credit, each
Borrower hereby represents and warrants to each Administrative Agent and to each
Lender that:
10.1 Financial Statements. The audited consolidated balance sheets of
the U.S. Borrower as of December 31, 2004 and the related statements of income
and cash flow for the fiscal year ending on such date, heretofore furnished to
the General Administrative Agent and the Lenders and certified by a Responsible
Officer of the U.S. Borrower are complete and correct in all material respects
and fairly present the financial condition of the U.S. Borrower on such date.
All such financial statements, including the related schedules and notes
thereto, have been prepared in conformity with GAAP applied on a consistent
basis (subject to normal year-end adjustments). All liabilities, direct and
contingent, of the U.S. Borrower on such date required to be disclosed pursuant
to GAAP are disclosed in such financial statements.
10.2 No Change. As of the Closing Date only, there has been no
material adverse change in the business, operations, assets or financial
condition of the U.S. Borrower and its Subsidiaries taken as a whole from that
reflected on the financial statements dated December 31, 2004 referred to in
subsection 10.1.
10.3 Existence; Compliance with Law. The U.S. Borrower and each of its
Material Subsidiaries (a) is duly organized, validly existing and in good
standing (or the functional equivalent thereof in the case of Foreign
Subsidiaries) under the laws of the jurisdiction of its organization, (b) has
the corporate or partnership power and authority, as the case may be, and the
legal right, to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is
73
currently engaged, (c) is duly qualified as a foreign corporation or
partnership, as the case may be, and in good standing (or the functional
equivalent thereof in the case of Foreign Subsidiaries) under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except where the failure to be so
qualified and in good standing, individually or in the aggregate, would not have
a Material Adverse Effect and (d) is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
10.4 Power; Enforceable Obligations; Authorization. Each Loan Party
has the corporate or partnership power and authority, as the case may be, and
the legal right, to execute, deliver and perform each of the Loan Documents to
which it is a party or to which this Agreement requires it to become a party.
Each Loan Party has taken all necessary corporate or partnership action, as the
case may be, to authorize the execution, delivery and performance of each of the
Loan Documents to which it is a party or to which this Agreement requires it to
become a party. This Agreement and each other Loan Document to which any Loan
Party is a party has been, and each other Loan Document to be executed by a Loan
Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
10.5 No Legal Bar. The execution, delivery and performance by each
Loan Party of the Loan Documents to which it is a party, the borrowings
hereunder and the use of the proceeds thereof, (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the U.S. Borrower or
any of its Subsidiaries or any order of any Governmental Authority other than
any violation which would not have a Material Adverse Effect and (c) will not
violate any Contractual Obligation of the U.S. Borrower or any of its
Subsidiaries other than any violation which would not have a Material Adverse
Effect.
10.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the U.S. Borrower, overtly threatened by or against the U.S.
Borrower or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any Loan Document or any of the
transactions contemplated hereby or thereby or (b) which would reasonably be
expected to have a Material Adverse Effect.
10.7 Taxes. Each of the U.S. Borrower and its Material Subsidiaries
has filed or caused to be filed all Tax returns and reports which, to the
knowledge of the U.S. Borrower, are required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
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10.8 Securities Law, etc. Compliance. All transactions contemplated by
this Agreement and the other Loan Documents comply in all material respects with
all applicable laws and any rules and regulations thereunder, including
takeover, disclosure and other federal, state and foreign securities law and
Regulations T, U and X of the Federal Reserve Board.
10.9 ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, would reasonably be expected to have
a Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by an amount which, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
The present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans by an amount which would reasonably be
expected to have a Material Adverse Effect.
10.10 Investment and Holding Company Status. Neither the U.S. Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
10.11 Subsidiaries, etc. The Subsidiaries of the U.S. Borrower as of
the Closing Date are those listed on Schedule V. The U.S. Borrower owns, as of
the Closing Date, the percentage of the issued and outstanding Capital Stock or
other evidences of the ownership of each Subsidiary listed on Schedule V as set
forth on such Schedule.
10.12 Environmental Matters. Except for the Disclosed Matters and
except with respect to any other matters that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, neither the
U.S. Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 11. CONDITIONS PRECEDENT
11.1 Conditions to Closing Date. The Closing Date shall occur on the
date of satisfaction of the following conditions precedent:
(a) Agreement. The General Administrative Agent shall have received
counterparts of this Agreement, duly executed by a Responsible Officer of
each Borrower and by each Administrative Agent and each Lender having a
Commitment hereunder.
(b) Subsidiary Guarantee. The General Administrative Agent shall have
received the Subsidiary Guarantee duly executed by each guarantor party
thereto.
(c) Consents. The General Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each case
certified as to authenticity on such
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date by a duly authorized officer of the U.S. Borrower) of all documents
and instruments, including all material consents, authorizations and
filings, required under any Requirement of Law or by Contractual Obligation
of the U.S. Borrower or any of its Subsidiaries, in connection with the
execution, delivery, performance, validity and enforceability of this
Agreement and the other Loan Documents, and such consents, authorizations
and filings shall be satisfactory in form and substance to the Lenders and
be in full force and effect.
(d) Incumbency Certificates. The General Administrative Agent shall
have received, with a copy for each Lender, a certificate of the Secretary
or Assistant Secretary of each Domestic Loan Party and the Canadian
Borrower, dated the Closing Date, as to the incumbency and signature of
their respective officers executing each Loan Document to be entered into
on the Closing Date to which it is a party, together with satisfactory
evidence of the incumbency of such Secretary or Assistant Secretary.
(e) Corporate Proceedings. The General Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions in form
and substance satisfactory to the General Administrative Agent, of the
Board of Directors (or the executive committee or other governing authority
thereof) of each Domestic Loan Party and the Canadian Borrower authorizing
the execution, delivery and performance of each Loan Document to be entered
into on the Closing Date to which it is a party.
(f) Fees. The General Administrative Agent shall have received all
fees required to be paid to the General Administrative Agent and/or the
Lenders pursuant to Section 9.5 and/or any other written agreement on or
prior to the Closing Date.
(g) Legal Opinion of Counsel to U.S. Borrower. The General
Administrative Agent shall have received, with a copy for each Lender, an
opinion, dated the Closing Date, of Winston & ▇▇▇▇▇▇ LLP, special counsel
to the U.S. Borrower and its Subsidiaries and in substantially the form of
Exhibit K and covering such other matters incident to the transactions
contemplated hereby as the Lenders may reasonably require.
(h) Legal Opinion of Canadian Counsel; Other Legal Opinions. The
General Administrative Agent shall have received, with a copy for each
Lender, (i) an opinion of Torys LLP, Canadian counsel to the U.S. Borrower
and the Canadian Borrower, in substantially the form of Exhibit L and
covering such other matters incident to the transactions contemplated
hereby as the General Administrative Agent may reasonably require and (ii)
a legal opinion of counsel in the jurisdiction of incorporation of each
Foreign Subsidiary Borrower that is a party hereto on the Closing Date, in
form and substance reasonably acceptable to the General Administrative
Agent.
(i) Existing Credit Agreement. The General Administrative Agent shall
have received evidence that the Existing Credit Agreement has been
terminated and that all outstanding Indebtedness under the Existing Credit
Agreement (other than the Existing Letters of Credit) shall have been paid.
11.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the Closing Date), is subject to the
satisfaction of the following conditions precedent as of the date such Extension
of Credit is requested to be made:
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(a) Representations and Warranties. The representations and warranties
made by each of the Loan Parties in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of such date as if
made on and as of such date (except that any representation or warranty
which by its terms is made as of a specified date shall be true and correct
in all material respects as of such specified date); provided, that the
representation set forth in Section 10.2 shall only be made as of the
Closing Date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Extension of
Credit requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Extension of Credit
is the initial Multicurrency Loan or Swing Line Multicurrency Loan to be
made to any Foreign Subsidiary Borrower that is not a party to this
Agreement on the Closing Date, the General Administrative Agent shall have
received (with a copy for each Lender) a Foreign Subsidiary Opinion in
respect of such Foreign Subsidiary Borrower.
Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension of
Credit that the conditions contained in this subsection 11.2 have been
satisfied.
SECTION 12. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation,
Acceptance Note, Reimbursement Obligation or Subsidiary Reimbursement Obligation
remains outstanding and unpaid or any other amount is owing to any Lender or
either Administrative Agent hereunder or under any other Loan Document, the U.S.
Borrower shall and shall cause each of its Subsidiaries to:
12.1 Financial Statements. Furnish to each Lender (or to the General
Administrative Agent on behalf of such Lender):
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the U.S. Borrower, a copy of the audited
consolidated balance sheet of the U.S. Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the U.S. Borrower, the unaudited consolidated balance sheet of the
U.S. Borrower and its consolidated Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income and
cash flows of the U.S. Borrower and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through such date, setting forth
in each case in comparative form the figures for the corresponding
quarterly period of the previous year, certified by a Responsible Officer
(subject to normal year-end audit adjustments).
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The U.S. Borrower covenants and agrees that all such financial statements shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
12.2 Certificates; Other Information. Furnish to each Lender (or to
the General Administrative Agent on behalf of such Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 12.1(a) and (b), a certificate of a Responsible
Officer of the U.S. Borrower (i) stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate, (ii) stating, to the best of such
Responsible Officer's knowledge, that all such financial statements are
complete and correct in all material respects (subject, in the case of
interim statements, to normal year-end audit adjustments) and have been
prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as disclosed
therein) and (iii) showing in detail the calculations supporting such
statements in respect of subsection 13.1;
(b) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the U.S. Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission;
(c) promptly after ▇▇▇▇▇'▇ or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change; and
(d) promptly, subject to reasonable confidentiality requirements and
confidentiality agreements to which the U.S. Borrower or any of its
Subsidiaries is a party, following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the U.S. Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the General Administrative Agent or any Lender
may reasonably request.
Documents required to be delivered pursuant to Section 12.1, Section 12.2 or
Section 12.6 may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date received by the General Administrative
Agent. Each Lender shall be deemed to have received such documents on the date
on which such documents are posted on the U.S. Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the General Administrative Agent have access (whether a commercial or
governmental third-party website or whether sponsored by the General
Administrative Agent); provided, that the U.S. Borrower shall notify (which may
be by facsimile or electronic mail) the General Administrative Agent of the
posting of any such documents and, at the request of the General Administrative
Agent, provide by electronic mail electronic versions (i.e., soft copies) of
such documents.
12.3 Existence; Continuation of Business. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business except where the failure to do so would
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not reasonably be expected to have a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 13.2.
12.4 Compliance with Laws. Comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
12.5 Inspection of Property; Books and Records; Discussions. Keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities; and permit any representatives designated by the General
Administrative Agent or any Lender (subject to reasonable confidentiality
agreements), upon reasonable prior notice, to visit and inspect its properties,
to examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers, all at such reasonable times
and as often as reasonably requested; provided, that such inspections shall be
coordinated through the General Administrative Agent so that in the absence of
an Event of Default, not more than one such inspection shall occur in any
calendar year.
12.6 Notices. Promptly give notice to the General Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any litigation or proceeding affecting the U.S. Borrower or any
of its Subsidiaries in which the then reasonably anticipated exposure of
the U.S. Borrower and its Subsidiaries is $50,000,000 or more and not
covered by insurance, or in which injunctive or similar relief is sought
which is then reasonably anticipated to have an adverse economic effect on
the U.S. Borrower and its Subsidiaries of $50,000,000 or more; and
(c) the occurrence of any event or condition which would reasonably be
expected to result in a Material Adverse Effect.
Each notice pursuant to this subsection 12.6 shall be accompanied by a statement
of a Responsible Officer of the U.S. Borrower setting forth details of the
occurrence referred to therein and stating what action the U.S. Borrower
proposes to take with respect thereto.
12.7 Guarantor Supplement. Cause each Subsidiary of the U.S. Borrower
which guarantees any Public Indebtedness of the U.S. Borrower to promptly (and,
in any event, within five (5) Business Days) execute and deliver to the General
Administrative Agent a Guarantor Supplement.
SECTION 13. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the Commitments (or
any of them) remain in effect, any Loan, Acceptance Reimbursement Obligation,
Acceptance Note, Reimbursement Obligation or Subsidiary Reimbursement Obligation
remains outstanding and unpaid or any other amount is owing to any Lender or
either Administrative Agent hereunder or under any other Loan Document, the U.S.
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly:
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13.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated Operating
Profit on the last day of any fiscal quarter for the four fiscal quarter period
then ended to (ii) Consolidated Interest Expense for such four consecutive
fiscal quarters, to be less than 3.50:1.00.
(b) Leverage Ratio. Permit the Leverage Ratio at the last day of any
period of four consecutive fiscal quarters of the U.S. Borrower to be greater
than 3.25:1.00.
13.2 Limitations on Fundamental Changes. Unless expressly permitted
under this Agreement, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, or make any
material change in its present method of conducting business, except:
(a) any Subsidiary of the U.S. Borrower may be merged or consolidated
with or into the U.S. Borrower (provided that the U.S. Borrower shall be
the continuing or surviving corporation) or with or into any one or more
other Subsidiaries of the U.S. Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
U.S. Borrower or any other Subsidiary of the U.S. Borrower;
(c) the U.S. Borrower may merge or consolidate with any Person,
provided that (A) the U.S. Borrower is the surviving corporation of such
merger or consolidation, (B) after giving effect thereto, no Default or
Event of Default is in existence and (C) if such merger or consolidation
had occurred on the first day of the period of four full fiscal quarters
most recently ended prior to the date of such event, the U.S. Borrower
would have been in compliance with subsection 13.1 during such period of
four full fiscal quarters; and
(d) any Subsidiary may be merged, consolidated or amalgamated with or
into any Person, or may sell, lease, transfer or otherwise dispose of its
assets (upon voluntary liquidation, dissolution or otherwise) to any Person
or may liquidate, wind up or dissolve itself if (A) after giving effect
thereto, no Default or Event of Default is in existence and (B) if such
merger, consolidation, amalgamation, sale, lease, transfer or other
disposition had occurred on the first day of the period of four fiscal
quarters most recently ended prior to the date of such event, the U.S.
Borrower would have been in compliance with subsection 13.1 during such
period of four full fiscal quarters.
13.3 Limitation on Subsidiary and Secured Indebtedness. Create, incur,
assume or suffer to exist Subsidiary and Secured Indebtedness in an aggregate
principal amount at any time outstanding exceeding 15% of Consolidated Assets at
such time.
SECTION 14. GUARANTEE
14.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the General Administrative Agent, for the ratable
benefit of the Administrative Agents and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by each of the other Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of such Borrowers.
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(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the General Administrative Agent, (ii)
one counsel for the Canadian Administrative Agent, (iii) one counsel for the
Canadian Lenders, (iv) one counsel for the U.S. Lenders and (v) one counsel for
the General Administrative Agent and the Multicurrency Lenders in the
jurisdiction of each Foreign Subsidiary Borrower) which may be paid or incurred
by the Administrative Agents, or any Lender in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting
against, the U.S. Borrower under this Section. This Section shall remain in full
force and effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto any Borrower
may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other Person or
received or collected by the Administrative Agents or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the U.S. Borrower hereunder which
shall, notwithstanding any such payment or payments, remain liable hereunder for
the Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from time
to time, it shall make any payment to any Administrative Agent or any Lender on
account of its liability hereunder, it will notify such Administrative Agent and
such Lender in writing that such payment is made under this Section for such
purpose.
14.2 No Subrogation. Notwithstanding any payment or payments made by
the U.S. Borrower hereunder, or any set-off or application of funds of the U.S.
Borrower by any Administrative Agent or any Lender, the U.S. Borrower shall not
be entitled to be subrogated to any of the rights of any Administrative Agent or
any Lender against the other Borrowers or against any collateral security or
guarantee or right of offset held by any Administrative Agent or any Lender for
the payment of the Obligations, nor shall the U.S. Borrower seek or be entitled
to seek any contribution or reimbursement from the other Borrowers in respect of
payments made by the U.S. Borrower hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the other Borrowers on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to the U.S. Borrower on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full, such amount
shall be held by the U.S. Borrower in trust for the Administrative Agents and
the Lenders, segregated from other funds of the U.S. Borrower, and shall,
forthwith upon receipt by the U.S. Borrower, be turned over to the General
Administrative Agent in the exact form received by the U.S. Borrower (duly
indorsed by the U.S. Borrower to the General Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the General Administrative Agent may determine.
14.3 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the U.S. Borrower, and without notice
to or further assent by the U.S. Borrower, any demand for payment of any of the
Obligations made by any Administrative Agent or any Lender may be rescinded by
such Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended,
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amended, modified, accelerated, compromised, waived, surrendered or released by
any Administrative Agent or any Lender, and any Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, in accordance with
the provisions thereof as the General Administrative Agent or the Lenders (or
the Majority Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
any Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of any Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand hereunder
against the U.S. Borrower, any Administrative Agent or any Lender may, but shall
be under no obligation to, make a similar demand on the relevant Borrower or any
other guarantor, and any failure by any Administrative Agent or any Lender to
make any such demand or to collect any payments from any such Borrower or any
such other guarantor or any release of such Borrower or such other guarantor
shall not relieve the U.S. Borrower of its obligations or liabilities hereunder,
and shall not impair or affect the rights and remedies, express or implied, or
as a matter of law, of any Administrative Agent or any Lender against the U.S.
Borrower. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
14.4 Guarantee Absolute and Unconditional. The U.S. Borrower waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Borrowers and the U.S. Borrower and the
other Borrowers, on the one hand, and the Administrative Agents and the Lenders,
on the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Agreement. The U.S. Borrower waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the other Borrowers and the U.S. Borrower with respect to the
Obligations. This Section 14 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrowers (other than the U.S. Borrower)
against any Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers or the U.S.
Borrower) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrowers for the Obligations, or of the U.S. Borrower
under this Section 14, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against the U.S. Borrower, any Administrative
Agent and any Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against the other relevant Borrower or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by any Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
such other Borrower or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the other Borrowers
or any other Person or of any such collateral security, guarantee or right of
offset, shall not relieve the U.S. Borrower of any liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any Administrative Agent or any Lender against
the U.S. Borrower. This Section 14 shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the U.S. Borrower
and its successors and assigns, and shall inure to the benefit of the
Administrative Agents and the Lenders, and their respective successors,
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indorsees, transferees and assigns, until all the Obligations and the
obligations of the U.S. Borrower under this Agreement shall have been satisfied
by payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Borrowers may be free
from any Obligations.
14.5 Reinstatement. This Section 14 shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by any Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Borrower or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
14.6 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the General Administrative
Agent, for the benefit of the Administrative Agents and the Lenders, as the case
may be, without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
SECTION 15. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any Loans or
any Acceptance Reimbursement Obligations when due (whether at the stated
maturity, by acceleration or otherwise) in accordance with the terms
thereof or hereof or (ii) any interest on any Loans, any Reimbursement
Obligations or Subsidiary Reimbursement Obligations, or any fee or other
amount payable hereunder, within five days after any such interest, fee or
other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the U.S.
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The U.S. Borrower or any other Loan Party shall default in the
observance or performance of any negative covenant contained in Section
13.1 or 13.2; or
(d) The U.S. Borrower or any other Loan Party shall default in the
observance or performance of Section 13.3, and such default shall continue
unremedied for a period of 10 days after notice thereof from the General
Administrative Agent or the Required Lenders to the U.S. Borrower; or
(e) The U.S. Borrower or any Subsidiary Guarantor shall default in the
observance or performance of any other agreement contained in this
Agreement, the Subsidiary Guarantee or any Note other than as provided in
(a) through (d) above, and such default shall continue unremedied for a
period of 30 days after notice thereof from the General Administrative
Agent or the Required Lenders to the U.S. Borrower; or
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(f) This Agreement, the Subsidiary Guarantee or any Note shall cease,
for any reason, to be in full force and effect, or the U.S. Borrower or any
other Loan Party shall so assert, except, in each case, as provided in
subsection 17.17; or
(g) (i) The U.S. Borrower or any of its Subsidiaries shall default in
any payment of principal of or interest on any Material Indebtedness beyond
the period of grace (not to exceed 90 days), if any, provided in the
instrument or agreement under which such Material Indebtedness was created
or (ii) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)(ii)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness; or
(h) An involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the U.S. Borrower or any Material Subsidiary or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the U.S.
Borrower or any Material Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered; or
(i) The U.S. Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the U.S. Borrower or any Material Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing; or
(j) The U.S. Borrower or any Material Subsidiary shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due; or
(k) An ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would reasonably be expected to
have a Material Adverse Effect; or
(l) One or more judgments for the payment of money in an aggregate
amount (to the extent not fully covered by insurance) in excess of
$50,000,000 shall be entered against the U.S. Borrower or any of its
Subsidiaries, and such judgments shall have not been paid, vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(m) a Change in Control shall occur;
84
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (i) or (j) above with respect of the U.S. Borrower or the Canadian
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations, regardless of whether or not such Reimbursement Obligations,
Subsidiary Reimbursement Obligations and Acceptance Reimbursement Obligations
are then due and payable) shall immediately become due and payable, and (B) if
such event is any other Event of Default, any of the following actions may be
taken: (i) with the consent of the Majority Lenders, the General Administrative
Agent may, or upon the request of the Majority Lenders, the General
Administrative Agent shall, by notice to the U.S. Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; (ii) with the consent of the Majority Lenders, the
General Administrative Agent may, or upon the direction of the Majority Lenders,
the General Administrative Agent shall, by notice of default to the U.S.
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including all amounts payable in
respect of Letters of Credit whether or not the beneficiaries thereof shall have
presented the drafts and other documents required thereunder) and the Notes to
be due and payable forthwith, whereupon the same shall immediately become due
and payable and (iii) the General Administrative Agent may, and upon the
direction of the Majority Lenders shall, exercise any and all remedies and other
rights provided pursuant to this Agreement and/or the other Loan Documents.
With respect to all outstanding Reimbursement Obligations and
Subsidiary Reimbursement Obligations which have not matured at the time of an
acceleration pursuant to the preceding paragraph, the U.S. Borrower shall at
such time deposit in a cash collateral account opened by and maintained by the
General Administrative Agent an amount equal to the aggregate amount of all such
Reimbursement Obligations and Subsidiary Reimbursement Obligations. Amounts held
in such cash collateral account shall be applied by the General Administrative
Agent to the payment of Reimbursement Obligations and Subsidiary Reimbursement
Obligations when drawings under the related Letters of Credit are made, and any
balance in such account shall be applied to repay other obligations of the U.S.
Borrower hereunder. After all Reimbursement Obligations and Subsidiary
Reimbursement Obligations shall have been satisfied and all other obligations of
the U.S. Borrower hereunder shall have been paid in full, the balance, if any,
in such cash collateral account shall be returned to the U.S. Borrower.
With respect to all outstanding Acceptance Reimbursement Obligations
in respect of Acceptances which have not matured at the time of an acceleration
pursuant to the second preceding paragraph, the Canadian Borrower shall at such
time deposit in a cash collateral account opened by and maintained by the
Canadian Administrative Agent an amount equal to the aggregate undiscounted face
amount of all such unmatured Acceptances. Amounts held in such cash collateral
account shall be applied by the Canadian Administrative Agent to the payment of
maturing Acceptances, and any balance in such account shall be applied to repay
other obligations of the Canadian Borrower hereunder and under any Canadian
Revolving Credit Notes. After all Acceptance Reimbursement Obligations shall
have been satisfied and all other obligations of the Canadian Borrower hereunder
and under any Canadian Revolving Credit Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Canadian Borrower.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
85
SECTION 16. THE ADMINISTRATIVE AGENTS, THE DOCUMENTATION AGENT, THE
SYNDICATION AGENT, THE SENIOR MANAGING AGENTS, THE MANAGING
AGENTS AND THE CO-AGENTS
16.1 Appointment. Each Lender hereby irrevocably designates and
appoints (a) JPMorgan Chase Bank as the General Administrative Agent and (b) The
Bank of Nova Scotia as the Canadian Administrative Agent of such Lender under
this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes (a) JPMorgan Chase Bank to act as the General Administrative Agent of
such Lender, and (b) The Bank of Nova Scotia to act as the Canadian
Administrative Agent, and, in each case, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the General
Administrative Agent and the Canadian Administrative Agent, respectively, by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agents shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
16.2 Delegation of Duties. Each Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither Administrative Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
16.3 Exculpatory Provisions. Neither Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found to
have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by such Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. Neither Administrative Agent shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
16.4 Reliance by Administrative Agent. Each Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrowers or any of them), independent accountants and other experts selected by
such Administrative Agent. Each Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment or transfer thereof shall have been filed with such Administrative
Agent. Each Administrative Agent shall be fully justified in failing or
86
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
(or, if so specified by this Agreement, all Lenders) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Majority
Lenders (or, if so specified by this Agreement, all Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans and the Acceptance
Reimbursement Obligations.
16.5 Notice of Default. Neither Administrative Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Administrative Agent has received notice from a Lender or
a Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the General Administrative Agent receives such a notice, such Administrative
Agent shall give notice thereof to the Lenders. The General Administrative Agent
shall take such action reasonably promptly with respect to such Default or Event
of Default as shall be reasonably directed by the Majority Lenders (or, if so
specified by this Agreement, all Lenders); provided that unless and until the
General Administrative Agent shall have received such directions, such
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
16.6 Non-Reliance on Administrative Agents and Other Lender. Each
Lender expressly acknowledges that neither Administrative Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
such Administrative Agent hereinafter taken, including any review of the affairs
of any Borrower, shall be deemed to constitute any representation or warranty by
such Administrative Agent to any Lender. Each Lender represents to each
Administrative Agent that it has, independently and without reliance upon such
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
either Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by an Administrative Agent hereunder, such Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of such Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
16.7 Indemnification. Each U.S. Lender (together with, in the case of
a U.S. Common Lender, its Counterpart Lender on a joint and several basis)
agrees to indemnify each Administrative Agent in its capacity as such (to the
extent not reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to its U.S. Revolving Credit
Commitment Percentage in effect on the date on which indemnification is sought
(or, if indemnification is sought after
87
the date upon which the Commitments shall have terminated and the Loans, the
Acceptance Reimbursement Obligations and all other amounts payable hereunder
shall have been paid in full, ratably in accordance with such U.S. Revolving
Credit Commitment Percentage immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loans and the Acceptance Reimbursement Obligations) be imposed
on, incurred by or asserted against such Administrative Agent in any way
relating to or arising out of the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found to have
resulted from the gross negligence or willful misconduct of such Administrative
Agent. The agreements in this subsection shall survive the payment of the Loans,
the Acceptance Reimbursement Obligations and all other amounts payable
hereunder.
16.8 Administrative Agents in their Individual Capacity. Each
Administrative Agent and its respective affiliates may make loans to, accept
Drafts, accept deposits from and generally engage in any kind of business with
any Loan Party as though such Administrative Agent was not an Administrative
Agent hereunder and under the other Loan Documents. With respect to the Loans
made or renewed by such Administrative Agent, any Acceptances created by such
Administrative Agent, any Letter of Credit issued or participated in by it and
any Note or Acceptance Note issued to it, such Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not an Administrative
Agent, and the terms "Lender" and "Lenders" shall include each Administrative
Agent in its individual capacity.
16.9 Successor Administrative Agents. The General Administrative Agent
may resign as General Administrative Agent, and the Canadian Administrative
Agent may resign as Canadian Administrative Agent, in each case upon 30 days'
notice to the Lenders and the other Administrative Agent. If either
Administrative Agent shall resign as General Administrative Agent or Canadian
Administrative Agent, as the case may be, under this Agreement and the other
Loan Documents, then the Majority Lenders shall appoint from among the U.S.
Lenders (in the case of a resignation of the General Administrative Agent) or
the Canadian Lenders (in the case of a resignation of the Canadian
Administrative Agent) a successor administrative agent for the Lenders, which
successor administrative agent shall (unless an Event of Default under Section
15(a), (h), (i) or (j) with respect to any Borrower shall have occurred and be
continuing) be approved by the U.S. Borrower (such approval not to be
unreasonably withheld), whereupon such successor administrative agent shall
succeed to the rights, powers and duties of the resigning Administrative Agent,
and the terms "General Administrative Agent" or "Canadian Administrative Agent",
as the case may be, shall mean such successor administrative agent effective
upon such appointment and approval, and the former Administrative Agent's
rights, powers and duties as either General Administrative Agent or Canadian
Administrative Agent, as the case may be, shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any resigning
Administrative Agent's resignation as either General Administrative Agent or
Canadian Administrative Agent, as the case may be, the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was either General Administrative Agent or Canadian
Administrative Agent, as the case may be, under this Agreement and the other
Loan Documents.
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16.10 The Documentation Agents, Syndication Agent, Senior Managing
Agents, Managing Agents and Co-Agents. Each Lender, the Documentation Agents,
the Syndication Agent, each Senior Managing Agent, each Managing Agent and each
Co-Agent acknowledges that the Documentation Agents, Syndication Agent, Senior
Managing Agents, Managing Agents and Co-Agents, in such capacity, shall have no
duties or responsibilities, and shall incur no liabilities, under this Agreement
or the other Loan Documents in its capacity as such.
SECTION 17. MISCELLANEOUS
17.1 Amendments and Waivers. (a) Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented,
waived or modified except in accordance with the provisions of this subsection
17.1. The Majority Lenders may, or, with the written consent of the Majority
Lenders, the Administrative Agents may, from time to time, (i) enter into with
the U.S. Borrower written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights or
obligations of the Lenders or of the U.S. Borrower hereunder or thereunder or
(ii) waive at the U.S. Borrower's request, on such terms and conditions as the
Majority Lenders or the Administrative Agents, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall:
(A) reduce the amount or extend the scheduled date of maturity of any Loan,
Reimbursement Obligation or any Acceptance or any Acceptance Note or of any
scheduled installment thereof, or reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment thereof
or increase the amount or extend the expiration date of any Lender's
Canadian Revolving Credit Commitment, Multicurrency Commitment or U.S.
Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of this subsection
17.1 or reduce the percentages specified in the definition of "Majority
Lenders" or consent to the assignment or transfer by the U.S. Borrower of
any of its rights and obligations under this Agreement and the other Loan
Documents, in each case without the consent of all the Lenders or reduce
the percentages specified in the definitions of (I) "Majority U.S. Lenders"
or "Majority Multicurrency Lenders" without the consent of all of the U.S.
Lenders or (II) "Majority Canadian Lenders" without the consent of all of
the Canadian Lenders;
(C) amend, supplement, modify or waive any provision of Section 16 or any
other provision of this Agreement governing the respective rights or
obligations of the General Administrative Agent or the Canadian
Administrative Agent without the consent of the then Administrative Agents,
respectively;
(D) amend, supplement, modify or waive any provision of Section 3 or any
other provision of this Agreement governing the rights and obligations of
the Swing Line Lenders or the definitions used therein without the consent
of each relevant Swing Line Lender;
(E) extend the expiring date on any Letter of Credit beyond the Revolving
Credit Termination Date without the consent of each Lender; or
89
(F) release all or substantially all of the guarantees contained in Section
14 and under the Subsidiary Guarantee without the consent of each Lender
other than as permitted under subsection 17.17.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 17.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the General Administrative Agent, the Canadian
Administrative Agent and all future holders of the Loans and the Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations. In the case of any waiver, the Borrowers, the Lenders, the General
Administrative Agent and the Canadian Administrative Agent shall be restored to
their former positions and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II and III may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the U.S.
Borrower as additional Foreign Subsidiary Borrowers upon (A) execution and
delivery by the U.S. Borrower, any such Foreign Subsidiary Borrower and the
General Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
General Administrative Agent of (I) a Foreign Subsidiary Opinion in respect
of such additional Foreign Subsidiary Borrower and (II) such other
documents with respect thereto as the General Administrative Agent shall
reasonably request. Within ten (10) Business Days after the date on which
an additional Foreign Subsidiary Borrower becomes party to this Agreement,
the General Administrative Agent agrees to notify the Lenders thereof (via
IntraLinks or such other communication permitted under this Agreement).
(ii) Schedule II will be amended to remove any Subsidiary as a Foreign
Subsidiary Borrower upon (A) execution and delivery by the U.S. Borrower of
a written amendment providing for such amendment and (B) repayment in full
of all outstanding Loans of such Foreign Subsidiary Borrower.
(iii) Schedule III will be amended (A) to change administrative
information contained therein (other than any interest rate definition,
funding time, payment time or notice time contained therein) or (B) to add
Available Foreign Currencies (and related interest rate definitions and
administrative information) with the approval of the Majority Multicurrency
Lenders, in each case, upon execution and delivery by the U.S. Borrower and
the General Administrative Agent of a written amendment providing for such
amendment.
(iv) Schedule III will be amended to conform any funding time, payment
time or notice time contained therein to then-prevailing market practices,
upon execution and delivery by the U.S. Borrower and the General
Administrative Agent of a written amendment providing for such amendment.
(v) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the U.S.
Borrower, all the Multicurrency Lenders and the General Administrative
Agent of a written amendment providing for such amendment.
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(c) The General Administrative Agent shall give prompt notice to each
U.S. Lender of any amendment effected pursuant to subsection 17.1(b).
17.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the U.S.
Borrowers, the Canadian Borrower, the General Administrative Agent and the
Canadian Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
The U.S. Borrower: ▇▇▇▇ Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Canadian Borrower: Lear Canada
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Foreign ▇▇▇▇ Corporation
Subsidiary Borrowers: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The General JPMorgan Chase Bank, N.A.
Administrative Agent: Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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The Issuing Lender: JPMorgan Chase Bank, N.A.
Standby Letter of Credit & Trade Risk
10420 Highland Manor Drive, 4th floor
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Swing Line Dollar Bank of America, N.A.
Lender: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Code: TX1-492-14-05
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The Swing Line With respect to Swing Line Multicurrency
Multicurrency Lender: Loans requested in the United States:
JPMorgan Chase Bank, N.A.
Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With respect to Swing Line Multicurrency
Loans requested in Europe:
▇.▇. ▇▇▇▇▇▇ Europe Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇)-▇▇-▇▇▇-▇▇▇-▇▇▇▇
The Canadian The Bank of Nova Scotia
Administrative Agent: WBO- Loan Operations
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Senior Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon (i) the Administrative
Agents or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 6.2, 7.3, 8.2,
9.2, 9.4 or 9.7 or (ii) the Swing Line Lenders pursuant to Section 3, shall not
be effective until received. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agents (or, if applicable, the Issuing
Lender and/or the relevant Swing Line Lender). Each Administrative Agent, each
Swing Line Lender and each Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic
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communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
17.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Borrower, the General Administrative
Agent, the Canadian Administrative Agent or any Lender, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
17.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in the other Loan Documents (or in any
amendment, modification or supplement hereto or thereto) and in any certificate
delivered pursuant hereto or such other Loan Documents shall survive the
execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
17.5 Payment of Expenses and Taxes. The U.S. Borrower agrees (a) to
pay or reimburse each Administrative Agent for all its reasonable out-of-pocket
costs and reasonable expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, (b) to pay or reimburse each
Lender and each Administrative Agent for all their costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the Notes and any such other documents, including, without
limitation, fees and disbursements of counsel to each Administrative Agent and
the reasonable fees and disbursements of counsel to the several Lenders;
provided that, in the case of clauses (a) and (b), the U.S. Borrower shall not
be obligated to so reimburse for more than one law firm (and, in addition to
such law firm, any local counsel engaged in each relevant jurisdiction by such
law firm) as counsel for the Lenders and the Administrative Agents, and (c) to
pay, indemnify, and hold each Lender and each Administrative Agent and their
respective directors, officers, employees and agents harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other documentary taxes,
if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and the other Loan Documents, the use or proposed use by
the Borrowers of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"); provided that the U.S. Borrower shall have no
obligation hereunder to (i) any Administrative Agent with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
Administrative Agent or (ii) any Lender with respect to indemnified liabilities
arising from gross negligence or willful misconduct of such Lender, in each case
as finally determined by a court of competent jurisdiction; provided, however,
that nothing in this subsection shall be construed as requiring the Canadian
Borrower to so indemnify in amounts that would be in violation of, and its
obligations to so indemnify are subject to, the restrictions on financial
assistance set out in the Business Corporations Act (Ontario); and, provided,
further, that the preceding proviso shall not be construed in any way as
limiting or derogating from the obligations of the
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other Borrowers set out in this subsection. The agreements in this subsection
shall survive repayment of the Loans, the Acceptance Reimbursement Obligations
and all other amounts payable hereunder.
17.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, the Administrative Agents, all future holders of the Loans, the
Reimbursement Obligations, the Subsidiary Reimbursement Obligations and the
Acceptance Reimbursement Obligations and their respective successors and
assigns, except that (i) no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by such Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents; provided that (i) in
the case of participations granted by a Canadian Lender, such Participant must
be a resident of Canada for purposes of the Tax Act unless such participation is
granted pursuant to subsection 17.8 and (ii) such Participant must be a
Professional Market Party. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrowers and the Administrative Agents
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. At the time of each sale of a participating interest, any Lender not
organized under the laws of the United States of America or a state thereof
shall provide the U.S. Borrower and the General Administrative Agent with
revised Forms required under Section 9.12 reflecting that portion of its
Commitment and Loan which has been sold to the Participant on an IRS Form W-8IMY
(or whichever successor form shall be applicable). Any agreement pursuant to
which any Lender shall sell any such participating interest shall provide that
such Lender shall retain the sole right and responsibility to exercise such
Lender's rights and enforce the Borrowers' obligations hereunder, including the
right to consent to any amendment, supplement, modification or waiver of any
provision of this Agreement or any of the other Loan Documents, provided that
such participation agreement may provide that such Lender will not agree to any
amendment, supplement, modification or waiver described in clause (A) or (B) of
the proviso to the second sentence of subsection 17.1(a) without the consent of
the Participant. Each Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement; provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 17.7(a) as fully as if it were a
Lender hereunder. Each Borrower agrees that each Participant shall be entitled
to the benefits of subsections 9.10, 9.11, 9.12 and 17.6 with respect to its
participation in the Commitments and the Loans outstanding from time to time
hereunder as if it was a Lender; provided, that no Participant shall be entitled
to receive any greater amount pursuant to such subsections than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
94
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof or, with the prior written
consent of the General Administrative Agent, the Canadian Administrative Agent
(in the event of an assignment of Canadian Revolving Credit Commitments), each
Issuing Lender, the Swing Line Dollar Lender, the Swing Line Multicurrency
Lender (in the event of an assignment of Multicurrency Commitments) and the U.S.
Borrower (such consent not to be unreasonably withheld), to an additional bank
or financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents including, without
limitation, its Commitments, Loans and Acceptance Reimbursement Obligations,
pursuant to an duly executed Assignment and Acceptance, substantially in the
form of Exhibit J, and delivered to the Administrative Agents for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations in respect of Revolving Credit
Loans and/or Revolving Credit Commitment under this Agreement to an Assignee,
such Lender and such Lender's Counterpart Lender (if any) shall each assign
proportionate interests in their respective Revolving Credit Commitment and
Revolving Credit Loans and other related rights and obligations hereunder to
such Assignee and a Counterpart Lender for such Assignee designated by it, (ii)
if any U.S. Lender assigns a part of its rights and obligations under this
Agreement in respect of its U.S. Revolving Credit Loans and/or U.S. Revolving
Credit Commitment to an Assignee, such U.S. Lender shall assign proportionate
interests in (A) its participations in the Swing Line Dollar Loans and other
rights and obligations hereunder in respect of the Swing Line Dollar Loans to
such Assignee and (B) its Multicurrency Loans and Multicurrency Commitments
(provided, that with the consent of the U.S. Borrower and the General
Administrative Agent, a Lender may assign portions of its Revolving Credit
Commitment without assigning a proportionate share of its Multicurrency
Commitment if either (x) such proportionate share of such Multicurrency
Commitment shall be assumed by another Lender or (y) if the U.S. Borrower so
agrees, such proportionate share of such Multicurrency Commitment shall be
terminated), (iii) if any Multicurrency Lender assigns a part of its rights and
obligations under this Agreement in respect of its Multicurrency Loans and/or
Multicurrency Commitment to an Assignee, such Multicurrency Lender shall assign
proportionate interests in its participations in the Swing Line Multicurrency
Loans to such Assignee, (iv) in the case of any such assignment to an additional
bank or financial institution, the aggregate amount of any U.S. Revolving Credit
Commitment (or, if the U.S. Revolving Credit Commitments have terminated or
expired, the aggregate principal amount of any U.S. Revolving Credit Loans)
being assigned, or the U.S. Dollar Equivalent of the aggregate amount of the
Canadian Revolving Credit Commitment (or, if the Canadian Revolving Credit
Commitments have terminated or expired, the aggregate amount of Canadian
Revolving Credit Loans and Acceptance Reimbursement Obligations) being assigned
shall not be less than $10,000,000 (or (x) if less, the then outstanding amount
of such Commitments, Loans and/or Acceptance Reimbursement Obligations or (y)
such lesser amount as may be agreed by the U.S. Borrower and the Administrative
Agents), and after giving effect to such assignment such assignor Lender, if it
retains any U.S. Revolving Credit Commitment, shall retain a U.S. Revolving
Credit Commitment of at least $10,000,000, (v) in the case of any such
assignment made by a Canadian Lender, such Assignee must be a resident of Canada
for purposes of the Tax Act unless such assignment is made pursuant to
subsection 17.8 and (vi) such Assignee must be a Professional Market Party. Upon
such execution, delivery, acceptance and recording, from and after the closing
date determined pursuant to such Assignment and Acceptance, (I) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments, rights in respect of Acceptance Reimbursement Obligations and
Loans as set forth therein, and (II) the assigning Lender thereunder shall be
released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning
95
Lender shall cease to be a party hereto). Notwithstanding the foregoing, no
consent of the U.S. Borrower shall be required for any assignment effected while
an Event of Default under Section 15(h), (i) or (j) is in existence; provided
that the applicable Administrative Agent or applicable Lender shall provide
notice to the U.S. Borrower of such assignment.
(d) The Administrative Agents, on behalf of the Borrowers, shall
maintain at their respective addresses referred to in subsection 17.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "Register")
for the recordation of (i) the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time and (ii) the other information required from time
to time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries
in the Register shall constitute prima facie evidence of the information
recorded therein, and the Borrowers, the Administrative Agents and the Lenders
may (and, in the case of any Loan, Acceptance or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan, Acceptance or other obligation hereunder as the
owner thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan,
Acceptance or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the U.S. Borrowers
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agents), together with payment to the Administrative Agents of a
registration and processing fee of $3,500, the Administrative Agents shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 17.19.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this subsection 17.6 shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such Lender
as a party hereto.
(h) If, pursuant to this subsection, any interest in this Agreement or
any Loan is transferred from a U.S. Lender to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to agree (for the benefit of the transferor
Lender, the
96
General Administrative Agent and the U.S. Borrower) to provide the transferor
Lender (and, in the case of any Transferee registered in the Register, the
General Administrative Agent and the U.S. Borrower) the tax forms and other
documents required to be delivered pursuant to subsection 9.12(b) or (c) and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
(i) If, pursuant to this subsection, any interest in this Agreement or
any Loan is transferred from a Lender (other than a U.S. Lender) to any
Transferee, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to agree (for the benefit of the transferor
Lender, the General Administrative Agent and the Foreign Subsidiary Borrowers)
to provide the transferor Lender, the General Administrative Agent and the
Foreign Subsidiary Borrowers the tax forms and other documents required to be
delivered pursuant to subsection 9.12(c) and to comply from time to time with
all applicable laws and regulations with regard to such withholding tax
exemption.
(j) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of any Borrower, any Administrative Agent or any other
Person and without regard to the limitations set forth in subsection 17.6(c).
Each Borrower, each Lender and each Administrative Agent hereby confirms that it
will not institute against a Conduit Lender or join any other Person in
instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.
17.7 Adjustments; Set-Off. (a) If any Lender (a "Benefited Lender")
shall at any time receive any payment of all or part of its Extensions of Credit
then due and owing to it from any Borrower, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 15(h),
(i) or (j), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit then due and owing to it from such Borrower, or
interest thereon, such Benefited Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender's
Extensions of Credit owing to it from such Borrower, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or Affiliate thereof to or for the
credit or the account of such
97
Borrower. Each Lender agrees promptly to notify the Borrowers and the
Administrative Agents after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
(c) To the extent that any Taxes are required to be withheld from any
amounts payable by a Lender to a Benefited Lender in connection with such
Benefited Lender's participating interest pursuant to subsection 17.7(a), each
Borrower, with respect to the relevant Loans made to it, shall be required to
pay increased amounts to such participating Benefited Lender to the extent such
additional amounts would have been required under subsection 9.12 if such
Borrower were making payments with respect to the participating interest
directly to the participating Benefited Lender.
17.8 Loan Conversion/Participations. (a) (i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise, all
Loans outstanding in any currency other than U.S. Dollars ("Loans to be
Converted") shall be converted into U.S. Dollars (calculated on the basis of the
relevant Exchange Rates as of the Business Day immediately preceding the
Conversion Date) ("Converted Loans"), (ii) on each date on or after the
Conversion Date on which any Acceptances or Acceptance Notes shall mature such
Acceptances and Acceptance Notes ("Acceptances to be Converted") shall be
converted into Canadian Revolving Credit Loans denominated in U.S. Dollars
(calculated on the basis of the Exchange Rate as of the Business Day immediately
preceding such maturity date) ("Converted Acceptances") and (iii) on the
Conversion Date (with respect to Loans described in the foregoing clause (i)),
and on the respective maturity date (with respect to Acceptances and Acceptance
Notes described in the foregoing clause (ii)) (A) each U.S. Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Converted Loans and Converted Acceptances in an
amount equal to its Conversion Sharing Percentage of (x) the outstanding
principal amount of the Converted Loans and (y) the face amount of matured
Acceptances and Acceptance Notes, as applicable, and (B) to the extent necessary
to cause the Committed Outstandings Percentage of each U.S. Lender, after giving
effect to the purchase and sale of participating interests under the foregoing
clause (iii), to equal its U.S. Revolving Credit Commitment Percentage
(calculated immediately prior to the termination or expiration of the U.S.
Revolving Credit Commitments), each U.S. Lender severally, unconditionally and
irrevocably agrees that it shall purchase or sell a participating interest in
U.S. Revolving Credit Loans then outstanding. Each U.S. Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by such Administrative Agent to each
Lender from which a participating interest is being purchased in the amount(s)
provided for in the preceding sentence. All Converted Loans and Converted
Acceptances (which shall have been converted into Canadian Revolving Credit
Loans denominated in Dollars) shall bear interest at the rate which would
otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted or Acceptances to be
Converted, as the case may be, may not be converted into U.S. Dollars in the
manner contemplated by paragraph (a) of this subsection 17.8, (i) the General
Administrative Agent shall determine the U.S. Dollar Equivalent of the Loans to
be Converted or Acceptances to be Converted, as the case may be, (calculated on
the basis of the Exchange Rate as of the Business Day immediately preceding the
date on which such conversion would otherwise occur pursuant to paragraph (a) of
this subsection 17.8), (ii) effective on such Conversion Date, each Lender
severally, unconditionally and irrevocably agrees that it shall purchase in U.S.
Dollars a participating interest in such Loans to be Converted or Acceptances to
be Converted, as the case may be, in an amount equal to its Conversion Sharing
Percentage of such Loans to be Converted or Acceptances to be Converted, as the
case may be, and (iii) each U.S. Lender shall purchase or sell participating
interests as provided in paragraph (a)(iii) of this subsection 17.8. Each U.S.
Lender will
98
immediately transfer to the appropriate Administrative Agent, in immediately
available funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by such Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
(c) To the extent any Taxes are required to be withheld from any
amounts payable by a Lender (the "First Lender") to another Lender (the "Other
Lender") in connection with its participating interest in any Converted Loan or
Converted Acceptance, each Borrower, with respect to the relevant Loans made to
it, shall be required to pay increased amounts to the Other Lender receiving
such payments from the First Lender to the same extent they would be required
under subsection 9.12 if such Borrower were making payments with respect to the
participating interest directly to the Other Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 17.8 have been taken, upon the notice of any U.S. Lender to
the Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 14) shall automatically be deemed to have assumed
the Converted Loans and Converted Acceptances in which such U.S. Lender holds a
participation, (ii) any Acceptances and Loans outstanding in any currency other
than U.S. Dollars shall be converted into U.S. Dollars on the dates of such
assumption (calculated on the basis of the Exchange Rate on the Business Day
immediately preceding such date of assumption) and such Loans shall bear
interest at the rate which would otherwise be applicable to ABR Loans and (iii)
such Loans and obligations in respect of Acceptances shall be assigned by the
relevant Lender holding such Loans or obligations to the U.S. Lender who gave
the notice requesting such assumption by the U.S. Borrower.
17.9 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Borrowers and the
Administrative Agents.
17.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agents or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
17.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
17.13 Submission to Jurisdiction; Waivers. (a) Each Borrower hereby
irrevocably and unconditionally:
99
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Document to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in subsection 17.2 or at such other
address of which the General Administrative Agent shall have been notified
pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction.
(b) Each of the Canadian Borrower and each Foreign Subsidiary Borrower
hereby irrevocably appoints the U.S. Borrower as its agent for service of
process in any proceeding referred to in subsection 17.13(a) and agrees that
service of process in any such proceeding may be made by mailing or delivering a
copy thereof to it care of U.S. Borrower at its address for notice set forth in
subsection 17.2.
17.14 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agents or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Administrative Agents and the Lenders, on the one hand, and the U.S.
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrowers and the Lenders.
17.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE ADMINISTRATIVE
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
17.16 Power of Attorney. Each Foreign Subsidiary Borrower hereby
grants to U.S. Borrower an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each
100
Foreign Subsidiary Borrower hereby explicitly acknowledges that the
Administrative Agents and each Lender have executed and delivered this Agreement
and each other Loan Document to which it is a party, and has performed its
obligations under this Agreement and each other Loan Document to which it is a
party, in reliance upon the irrevocable grant of such power of attorney pursuant
to this subsection. The power of attorney granted by each Foreign Subsidiary
Borrower hereunder is coupled with an interest.
17.17 Release of Guarantees. (a) Upon the request of the U.S.
Borrower, the General Administrative Agent shall take whatever reasonable steps
are necessary to coordinate the simultaneous release of the guarantees hereunder
with the Bond Guarantees. The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the General Administrative Agent, that if any Subsidiary shall
have been, or shall simultaneously be, released from all Bond Guarantees and all
guarantees by such Subsidiary of Public Indebtedness (or will cease to be a
guarantor thereunder concurrently with such Subsidiary ceasing to be a
Subsidiary Guarantor), the General Administrative Agent shall, at the request
and expense of the U.S. Borrower, take such actions as shall be reasonably
requested by the U.S. Borrower to release such Subsidiary Guarantor from its
obligations under the Subsidiary Guarantee.
(b) The Lenders hereby agree with the U.S. Borrower, and hereby
instruct the General Administrative Agent, that if the U.S. Borrower shall have
delivered to the General Administrative Agent written notice that it proposes to
sell or otherwise dispose of any Subsidiary is a Subsidiary Guarantor, and such
disposition is permitted by this Agreement, the General Administrative Agent
shall, at the request and expense of the U.S. Borrower, take such actions as
shall be reasonably requested by the U.S. Borrower to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees and all guarantees by any Subsidiary of Public Indebtedness.
17.18 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
17.19 Confidentiality. Each Lender agrees to maintain the
confidentiality of information clearly identified at the time of delivery as
confidential and provided to it by the U.S. Borrower or any Subsidiary in
connection with this Agreement (collectively, the "Confidential Information");
provided, however, that any Lender may disclose Confidential Information (a) at
the request of any bank regulatory authority or in connection with an
examination of such Lender by any such authority, (b) pursuant to subpoena or
other court process, (c) when required to do so in accordance with
101
the provisions of any applicable law, (d) at the discretion of any other
Governmental Authority, in the case of clauses (b), (c) and (d), to the extent
that (x) such Lender has provided the U.S. Borrower with prompt prior written
notice of such intended disclosure (unless such notice is prohibited by
applicable law), (y) such disclosure is only of that portion of such
confidential material which is legally required to be disclosed, and (z) such
Lender has cooperated with any reasonable efforts of the U.S. Borrower to obtain
reliable assurance that confidential treatment will be accorded to such
disclosed Confidential Information, (e) to such Lender's Affiliates, and their
respective partners, directors, officers, employees, agents, advisors,
independent auditors and other professional advisors who have a need to know
such Confidential Information (collectively, such Lender's "Representatives"),
(f) to any Transferee or potential Transferee; provided that such Transferee
agrees to comply with the provisions of this Section 17.19, (g) to the extent
such Confidential Information becomes generally available to the public other
than through such Lender's breach of this Agreement, (h) to the extent such
Confidential Information is available to such Lender from a source other than a
Loan Party (provided, that such source is not known to the Lender to be subject
to any confidentiality obligations to any Loan Party), (i) to the extent such
disclosure is consented to by the U.S. Borrower. Each Lender also agrees that it
and its Representatives will use the Confidential Information solely for the
purposes of evaluating this Agreement and the other Loan Documents and
negotiating, making available, syndicating and administering this Agreement and
the other Loan Documents, or (j) any actual or prospective counterparty (or its
advisors) to any securitization, swap or derivative transaction relating to the
U.S. Borrower, any Subsidiaries, and the Obligations.
17.20 Conflicts. In the event that there exists a conflict between
provisions in this Agreement and provisions in any other Loan Document, the
provisions of this Agreement shall control.
17.21 USA PATRIOT Act Notice. Each Lender and the General
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot
Act"), it is required to obtain, verify and record information that identifies
each Borrower, which information includes the name and address of such Borrower
and other information that will allow such Lender or the General Administrative
Agent, as applicable, to identify such Borrower in accordance with the Act. Each
Borrower shall, and shall cause each of its Subsidiaries to, provide, to the
extent commercially reasonable, such information and take such actions as are
reasonably requested by each Lender and the General Administrative Agent to
maintain compliance with the Patriot Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President and Treasurer
LEAR CANADA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Member
▇▇▇▇ CORPORATION SWEDEN AB
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
LEAR FINANCIAL SERVICES (NETHERLANDS)
B.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Managing Director
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
ABN AMRO BANK N.V., CANADA BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Director
BANK OF AMERICA, N.A., CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------------
Title: Vice President
BANK OF CHINA, NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇
------------------------------------
Title: First Deputy General Manager
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as Canadian
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Associate
THE BANK OF NOVA SCOTIA
By: /s/ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Assistant Agent
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇
------------------------------------
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW
YORK BRANCH
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Managing Director
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Managing Director
CITIBANK, N.A., as Documentation Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
------------------------------------
Title: Director
CITIBANK, N.A., CANADIAN BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Authorized Signatory
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: Vice President
COMERICA BANK, a Michigan banking
corporation and authorized foreign bank
under the Bank Act (Canada)
By: /s/ ▇▇▇▇▇▇▇ ▇. Block
------------------------------------
Title: First Vice President
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Associate
DEUTSCHE BANK AG CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
By: /s/ ▇▇▇ ▇'▇▇▇▇
------------------------------------
Title: Director
DEUTSCHE BANK SECURITIES INC., as
Documentation Agent
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH, as
Lender
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
FIFTH THIRD BANK, a Michigan banking
corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
HSBC BANK USA, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Officer #9426, SVP
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Director
THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Vice President and Department
Head
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President
BANK OF AMERICA, N.A., as Syndication
Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President and Team
Leader
SKANDINAVISKA ENSKILDA ▇▇▇▇▇▇ ▇▇ (PUBL)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Authorized Signatory
UBS LOAN FINANCE LLC
By: /s/ ▇▇▇▇▇▇▇ Saint
------------------------------------
Title: Director - Banking Products
Services, US
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Director - Banking Products
Services, US