Exhibit 10.1
EXECUTION COPY
U.S. $1,700,000,000 SENIOR CREDIT AGREEMENT
DATED AS OF JULY 30, 2004
AMONG
THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) INC.
AS PARENT BORROWER
THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) USA, INC.
AS U.S. BORROWER
THE LENDERS FROM TIME TO TIME PARTY HERETO,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
AS GLOBAL TRANSACTION COORDINATOR,
NATIONAL BANK OF CANADA
AS CANADIAN ADMINISTRATIVE AGENT,
DEUTSCHE BANK TRUST COMPANY AMERICAS
AS TERM B ADMINISTRATIVE AGENT,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
AND NATIONAL BANK OF CANADA
AS U.S. CO-SYNDICATION AGENTS,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
AND DEUTSCHE BANK SECURITIES INC.
AS CANADIAN CO-SYNDICATION AGENTS,
DEUTSCHE BANK SECURITIES INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
AND NATIONAL BANK FINANCIAL INC.
AS U.S. JOINT LEAD ARRANGERS
DEUTSCHE BANK SECURITIES INC. AND
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
AS U.S. JOINT BOOK RUNNERS
AND
NATIONAL BANK FINANCIAL INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
AND DEUTSCHE BANK SECURITIES INC.,
AS CANADIAN JOINT LEAD ARRANGERS AND CANADIAN JOINT BOOK RUNNERS
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...................................................................1
Section 1.02 Computation of Time Periods and Other Definitional Provisions..................53
Section 1.03 Accounting Terms and Determinations............................................53
Section 1.04 Classes and Types of Borrowings................................................54
Section 1.05 Exchange Rates.................................................................54
Section 1.06 Currency Conversion............................................................55
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend............................................................55
Section 2.02 Notice of Borrowings...........................................................60
Section 2.03 Notice to Lenders; Funding of Loans............................................61
Section 2.04 Evidence of Loans..............................................................63
Section 2.05 Letters of Credit..............................................................64
Section 2.06 Bankers' Acceptances...........................................................76
Section 2.07 Interest.......................................................................80
Section 2.08 Extension and Conversion.......................................................81
Section 2.09 Maturity of Loans..............................................................83
Section 2.10 Prepayments....................................................................85
Section 2.11 Adjustment of Commitments; Right to Replace Lenders............................93
Section 2.12 Fees...........................................................................95
Section 2.13 Pro-rata Treatment.............................................................97
Section 2.14 Sharing of Payments............................................................99
Section 2.15 Payments; Computations.........................................................99
Section 2.16 Additional Borrowers..........................................................101
Section 2.17 Authority to Debit and Credit.................................................101
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 3.01 Taxes.........................................................................101
Section 3.02 Change in Law, Etc............................................................104
Section 3.03 Basis for Determining Interest Rate Inadequate or Unfair......................105
Section 3.04 Circumstances Making Bankers' Acceptances Unavailable.........................105
Section 3.05 Increased Costs and Reduced Return............................................106
Section 3.06 Funding Losses................................................................107
Section 3.07 Base Rate Loans Substituted for Affected Eurodollar Loans.....................108
ARTICLE IV
CONDITIONS
Section 4.01 Conditions to Closing.........................................................108
Section 4.02 Conditions to All Credit Extensions...........................................116
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Organization and Good Standing................................................117
Section 5.02 Power; Authorization; Enforceable Obligations.................................118
Section 5.03 No Conflicts..................................................................118
Section 5.04 No Default....................................................................118
Section 5.05 Financial Condition...........................................................118
Section 5.06 No Material Change............................................................121
Section 5.07 Title to Properties; Possession Under Leases..................................121
Section 5.08 Litigation....................................................................121
Section 5.09 Taxes.........................................................................121
Section 5.10 Compliance with Law...........................................................121
Section 5.11 Employee Benefit Arrangements.................................................122
Section 5.12 Subsidiaries..................................................................123
Section 5.13 Governmental Regulations, Etc.................................................123
Section 5.14 Purpose of Loans and Letters of Credit........................................124
Section 5.15 Labor Matters.................................................................124
Section 5.16 Environmental Matters.........................................................124
Section 5.17 Intellectual Property.........................................................124
Section 5.18 Solvency and Surplus..........................................................125
Section 5.19 Disclosure....................................................................125
Section 5.20 Collateral Documents..........................................................125
Section 5.21 Certain Transactions..........................................................126
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.01 Information...................................................................127
Section 6.02 Preservation of Existence and Franchises......................................131
Section 6.03 Books and Records; Lender Meeting.............................................131
Section 6.04 Compliance with Law...........................................................131
Section 6.05 Payment of Taxes and Other Debt...............................................131
Section 6.06 Insurance; Certain Proceeds...................................................131
Section 6.07 Maintenance of Property.......................................................133
Section 6.08 Use of Proceeds...............................................................133
Section 6.09 Audits/Inspections............................................................133
Section 6.10 Additional Credit Parties; Additional Security................................134
Section 6.11 Interest Rate Protection Agreements...........................................137
ARTICLE VII
NEGATIVE COVENANTS
Section 7.01 Limitation on Debt............................................................138
Section 7.02 Restriction on Liens..........................................................140
Section 7.03 Nature of Business...........................................................143
Section 7.04 Consolidation, Merger and Dissolution........................................143
Section 7.05 Asset Dispositions...........................................................144
Section 7.06 Investments..................................................................147
Section 7.07 Restricted Payments, Etc.....................................................149
Section 7.08 Prepayments of Debt, Etc.....................................................150
Section 7.09 Transactions with Affiliates.................................................151
Section 7.10 Fiscal Year; Organizational and Other Documents..............................152
Section 7.11 Restrictions with Respect to Intercorporate Transfers........................152
Section 7.12 Ownership of Subsidiaries; Limitations on the Parent Borrower; SPVs,
PropCos......................................................................153
Section 7.13 Sale and Leaseback Transactions..............................................153
Section 7.14 Capital Expenditures.........................................................154
Section 7.15 Additional Negative Pledges..................................................154
Section 7.16 No Other "Designated Senior Indebtedness"....................................154
Section 7.17 Impairment of Security Interests.............................................155
Section 7.18 Sales of Receivables.........................................................155
Section 7.19 Financial Covenants..........................................................155
Section 7.20 Independence of Covenants....................................................156
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default............................................................156
Section 8.02 Acceleration; Remedies.......................................................159
Section 8.03 Allocation of Payments After Event of Default................................160
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment; Authorization...................................................163
Section 9.02 Delegation of Duties.........................................................164
Section 9.03 Exculpatory Provisions.......................................................164
Section 9.04 Reliance on Communications...................................................164
Section 9.05 Notice of Default............................................................165
Section 9.06 Credit Decision; Disclosure of Information by Term B Administrative Agent
or Canadian Administrative Agent.............................................165
Section 9.07 No Reliance on Lead Arranger's or Agent's Customer Identification Program....165
Section 9.08 Indemnification..............................................................166
Section 9.09 Agents in Their Individual Capacity..........................................166
Section 9.10 Successor Agents.............................................................167
Section 9.11 Certain Other Agents.........................................................167
Section 9.12 Agents' Fees; Lead Arrangers' Fees...........................................167
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices and Other Communications.............................................168
Section 10.02 No Waiver; Cumulative Remedies...............................................169
Section 10.03 Amendments, Waivers and Consents.............................................169
Section 10.04 Expenses.....................................................................171
Section 10.05 Indemnification; Waiver of Consequential Damages, Etc........................172
Section 10.06 Successors and Assigns.......................................................173
Section 10.07 Confidentiality and Disclosure...............................................177
Section 10.08 Set-off......................................................................178
Section 10.09 Interest Rate Limitation.....................................................179
Section 10.10 Counterparts.................................................................180
Section 10.11 Integration..................................................................180
Section 10.12 Survival of Representations and Warranties...................................180
Section 10.13 Severability.................................................................180
Section 10.14 Headings.....................................................................180
Section 10.15 Defaulting Lenders...........................................................180
Section 10.16 Governing Law; Submission to Jurisdiction....................................180
Section 10.17 Waiver of Jury Trial.........................................................181
Section 10.18 Binding Effect...............................................................182
Section 10.19 Source of Funds..............................................................182
Section 10.20 Judgment Currency............................................................183
Section 10.21 Lenders' U.S. Patriot Act Compliance Certification...........................184
Section 10.22 U.S. Patriot Act Notice......................................................184
Section 10.23 Consent to Transactions......................................................184
Section 10.24 Funding Arrangements.........................................................184
SCHEDULES:
Schedule 1.01A -- Lenders and Commitments
Schedule 1.01B -- Consolidated EBITDA
Schedule 1.01C -- Refinanced Agreements
Schedule 1.01E -- Lender Addresses
Schedule 2.05 -- Existing Letters of Credit
Schedule 4.01(j) -- Mortgaged Properties
Schedule 4.01(o) -- Environmental Analyses and Reports
Schedule 4.01(r) -- Closing EBITDA Adjustments
Schedule 5.02 -- Required Consents, Authorizations, Notices and Filings
Schedule 5.08 -- Litigation
Schedule 5.10 -- Compliance with Law
Schedule 5.11 -- Pension and Benefit Plans
Schedule 5.12 -- Subsidiaries
Schedule 5.20(a) -- Security Interest Recordings
Schedule 5.20(b) -- Intellectual Property Recordings
Schedule 5.20(c) -- Mortgage Recordings
Schedule 5.21(d) -- Broker's Fees
Schedule 6.10 -- Post-Closing Action
Schedule 7.01 -- Debt
Schedule 7.02 -- Existing Liens
Schedule 7.05(xiv) -- Store Asset Dispositions
Schedule 7.05(xv) -- Non-Core Asset Dispositions
Schedule 7.12 -- Closing Transactions
EXHIBITS:
▇▇▇▇▇▇▇ ▇- ▇ -- Form of U.S. Notice of Borrowing, Continuation, Conversion or
Repayment
Exhibit A-2 -- Form of Canadian Notice of Borrowing, Continuation, Conversion or
Repayment
Exhibit A-3 -- Form of U.S. Letter of Credit Request
Exhibit A-4 -- Form of Canadian Letter of Credit Request
Exhibit B-1 -- Form of U.S. Revolving Note
Exhibit B-2 -- Form of Term B Note
Exhibit B-3 -- Form of U.S. Swingline Note
Exhibit C -- Form of Assignment and Acceptance
Exhibit D-l(a) -- Form of Opinion of U.S. Counsel for the Parent Borrower and the
Other Credit Parties
Exhibit D-1(b) -- Form of Opinion of Canadian Counsel for the Parent Borrower and the
Other Credit Parties
Exhibit D-2 -- Form of Opinion of Special Local Counsel for the Parent Borrower and
the Other Credit Parties (UCC Collateral)
Exhibit D-3 -- Form of Opinion of Special Local Counsel for the Parent Borrower and
the Other Credit Parties (Real Property Collateral)
Exhibit D-4 -- Form of Subsidiary Borrower Opinion
Exhibit E -- Form of Guaranty
Exhibit F-1(a) -- Form of Perfection Certificate (Material Credit Party)
Exhibit F-1(b) -- Form of Perfection Certificate (non-Material Credit Party)
Exhibit F-2 -- Form of U.S. Security Agreement
Exhibit F-3 -- Form of Pledge Agreement
Exhibit F-4 -- Form of U.S. Mortgage
Exhibit F-5 -- Form of U.S. Leasehold Mortgage
Exhibit F-6 -- Form of PPSA Security Agreement
Exhibit F-7 -- Form of
Quebec Hypothec
Exhibit F-8 -- Form of Canadian Mortgage (other provinces)
Exhibit F-9 -- Form of Canadian Leasehold Mortgage (other provinces)
Exhibit G -- Form of Intercompany Note
Exhibit H -- Form of Intercompany Note Subordination Provisions
Exhibit I -- Form of Accession Agreement
Exhibit J -- Form of OFAC/Anti-Terrorism Certificate
Exhibit K -- Form of Solvency Certificate
Exhibit L-1(a) -- Form of U.S. Borrowing Subsidiary Agreement
Exhibit L-1(b) -- Form of Canadian Borrowing Subsidiary Agreement
Exhibit L-2(a) -- Form of U.S. Borrowing Subsidiary Termination
Exhibit L-2(b) -- Form of Canadian Borrowing Subsidiary Termination
Exhibit M -- Landlord Estoppel and Consent
CREDIT AGREEMENT
This Credit Agreement is dated as of July 30, 2004 and is among THE
▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) INC., a corporation formed and existing under the laws of
the Province of
Quebec (the "PARENT BORROWER"), THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) USA,
INC., a corporation formed and existing under the laws of the State of Delaware
(the "U.S. BORROWER"), the banks and other financial institutions from time to
time party hereto (the "LENDERS"), ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, as Global Transaction Coordinator, DEUTSCHE BANK SECURITIES INC.,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and NATIONAL BANK FINANCIAL
INC., as U.S. Joint Lead Arrangers, DEUTSCHE BANK SECURITIES INC. and ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, as U.S. Joint Bookrunners, NATIONAL
BANK FINANCIAL INC., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and
DEUTSCHE BANK SECURITIES INC., as Canadian Joint Lead Arrangers and as Canadian
Joint Bookrunners, NATIONAL BANK OF CANADA, as the Canadian Administrative
Agent, DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Term B Administrative Agent,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and NATIONAL BANK OF CANADA,
as U.S. Co-Syndication Agents, ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED and DEUTSCHE BANK SECURITIES INC., as Canadian Co-Syndication
Agents.
The Parent Borrower and the U.S. Borrower have requested the Lenders
to provide credit facilities to the Parent Borrower and the U.S. Borrower having
an aggregate U.S. dollar equivalent principal amount of up to US$1,700,000,000
for the purposes described herein. The Lenders are willing to make the requested
credit facilities available on the terms and conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. Terms defined in the introductory section
hereof have the respective meanings set forth therein. The following additional
terms, as used herein, have the following meanings:
"ACCESSION AGREEMENT" means a Credit Party Accession Agreement,
substantially in the form of EXHIBIT I hereto, executed and delivered by an
Additional Subsidiary Guarantor after the Closing Date in accordance with
SECTION 6.10(a) or (d).
"ACQUISITION" means the transactions contemplated by the Acquisition
Agreement.
"ACQUISITION AGREEMENT" means the Stock Purchase Agreement dated as of
April 4, 2004 among the Parent Borrower, ▇.▇. ▇▇▇▇▇ Company Inc. and the Seller,
as the same may be amended, modified or supplemented from time to time in
accordance with the provisions thereof and of this Agreement, providing for,
among other things, the acquisition by the U.S. Borrower of the current
locations of Eckerd Corporation, Thrift Drug, Inc. and ▇▇▇▇▇▇▇▇ Drug Stores,
Inc. in Connecticut, Delaware, Georgia, Maryland, New Jersey, New York, North
Carolina, Tennessee, Ohio, Pennsylvania, South Carolina, Virginia and West
Virginia.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement, including all
exhibits and schedules thereto, and all other agreements, documents and
instruments relating to the Acquisition, in each case as the same may be
amended, modified or supplemented from time to time in accordance with the
provisions thereof and of this Agreement.
"ADDITIONAL CANADIAN LETTER OF CREDIT" means any Letter of Credit
issued in Canadian Dollars, U.S. Dollars or Agreed Foreign Currency and issued
by the Canadian Issuing Lender pursuant to SECTION 2.05 on or after the Closing
Date.
"ADDITIONAL COLLATERAL DOCUMENTS" has the meaning set forth in SECTION
6.10(b).
"ADDITIONAL LETTERS OF CREDIT" means collectively the Additional
Canadian Letters of Credit and the Additional U.S. Letters of Credit and
"ADDITIONAL LETTER OF CREDIT" means any one of them.
"ADDITIONAL SUBSIDIARY GUARANTOR" means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of an Accession
Agreement as provided in SECTION 6.10.
"ADDITIONAL U.S. LETTER OF CREDIT" means any Letter of Credit issued
in U.S. Dollars or Agreed Foreign Currency and issued by the U.S. Issuing Lender
pursuant to SECTION 2.05 on or after the Closing Date.
"ADJUSTED EURODOLLAR RATE" means, for the Interest Period for each
Eurodollar Loan comprising part of the same Group, the quotient obtained
(rounded upward, if necessary, to the next higher 1/16th of 1%) by dividing (i)
the applicable Eurodollar Rate for such Interest Period by (ii) 1.00 minus the
Eurodollar Reserve Percentage.
"ADJUSTMENT DATE" has the meaning set forth in SECTION 2.11(d).
"ADMINISTRATIVE AGENTS" means collectively, the Term B Administrative
Agent and the Canadian Administrative Agent and a reference to "ADMINISTRATIVE
AGENT" shall mean either one of them as applicable.
"ADMINISTRATIVE OFFICE" means either the Term B Administrative Agent's
Office or the Canadian Administrative Agent's Office, as applicable, and
"ADMINISTRATIVE OFFICES" means both of them collectively.
"AFFILIATE" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such Person
("CONTROLLING PERSON") or (ii) any other Person which is controlled by or is
under common control with a Controlling Person. As used herein, the term
"control" means (i) with respect to any Person having voting shares or their
equivalent and elected directors, managers or Persons performing similar
functions, the possession, directly or indirectly, of the power to vote 10% or
more of the Equity Interests having ordinary voting power of such Person or (ii)
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting shares or their equivalent, by contract or otherwise.
"AFFILIATED REVOLVING LENDER" means (A) in relation to a Canadian
Revolving Lender, an Affiliate of such Lender that is a U.S. Revolving Lender
and (B) in relation to a U.S. Revolving Lender, an Affiliate of such Lender that
is a Canadian Revolving Lender.
"AGENT" means either the Global Transaction Coordinator, the Term B
Administrative Agent, the Canadian Administrative Agent, the U.S. Co-Syndication
Agents, the Canadian Co-Syndication Agents, the U.S. Collateral Agent or the
Canadian Collateral Agent and any successors and assigns in such capacity, and
"AGENTS" means any two or more of them.
-2-
"AGGREGATE REVOLVING COMMITTED AMOUNT" means on any date the sum of
(i) the U.S. Revolving Committed Amount plus (ii) the U.S. Dollar Amount of the
Canadian Revolving Committed Amount, in each case as in effect on such date.
"AGGREGATE REVOLVING OUTSTANDINGS" means, on any date, the sum of (i)
the U.S. Revolving Outstandings plus (ii) the U.S. Dollar Amount of the Canadian
Revolving Outstandings, in each case determined based upon the Exchange Rates as
in effect on the most recent Reset Date.
"AGREED FOREIGN CURRENCY" means at any time any of the respective
lawful currencies of the United Kingdom and the European Economic Union, so long
as at such time (i) such currency is dealt in the London interbank deposit
market or, in the case of Euros, the European interbank deposit market, (ii)
such currency is fully transferable and convertible into U.S. Dollars in the
London foreign exchange market or, in the case of Euros, the European foreign
exchange market and (iii) no central bank or other governmental authorization in
the country of issue of such currency is required to permit the use of such
currency by any Issuing Lender for issuing or maintaining any Foreign Currency
Letter of Credit hereunder and/or to permit any Borrower to borrow and repay the
LC Obligations in respect thereof, unless such authorization has been obtained
and remains in full force and effect.
"AGREEMENT" means this Credit Agreement, as amended, modified or
supplemented from time to time.
"ANTI-TERRORISM LAWS" means any Laws relating to terrorism or
money-laundering, including, without limitation, (i) Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 and relating to Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism, (ii) the U.S. Patriot Act, (iii) the International
Emergency Economic Power Act, 50 U.S.C. Section 1701 et seq., (iv) the Bank
Secrecy Act, (v) the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. and
(vi) any related rules and regulations of the U.S. Treasury Department's Office
of Foreign Assets Control or any other Governmental Authority, in each case as
the same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"APPLICABLE BA DISCOUNT RATE" means (i) with respect to any Canadian
Revolving Lender which is a Schedule I chartered bank under the Bank Act
(Canada), as applicable to a Bankers' Acceptance being purchased by such
Canadian Revolving Lender on any day, the CDOR Rate on such day and (ii) with
respect to any Canadian Revolving Lender which is not a Schedule I chartered
bank under the Bank Act (Canada), as applicable to a Bankers' Acceptance being
purchased by such Canadian Revolving Lender on any day, the lesser of (A) the
CDOR Rate on such day and (B) the percentage discount rate quoted by such
Canadian Revolving Lender as the percentage discount rate at which such Canadian
Revolving Lender would, in accordance with its normal practices, at or about
10:00 A.M. (Montreal, Canada time) on such day, be prepared to purchase bankers'
acceptances having a term and a face amount comparable to the term and face
amount of such Bankers' Acceptance.
"APPLICABLE LENDING OFFICE" means (i) with respect to any Lender and
for each Type of Loan or Bankers' Acceptance, the "Lending Office" of such
Lender (or of an Affiliate of such Lender) designated for such Type of Loan or
Bankers' Acceptance, on SCHEDULE 1.01E hereto or in any applicable Assignment
and Acceptance pursuant to which such Lender became a Lender hereunder or such
other office of such Lender (or of an Affiliate of such Lender) as such Lender
may from time to time specify in writing to the applicable Administrative Agent
and the relevant Borrower as the office by which its Loans of such Type or
Bankers' Acceptances are to be made and maintained; and (ii) with respect to any
Issuing Lender and for each Letter of Credit, the "Lending Office" of such
Issuing Lender (or of an Affiliate of such Issuing Lender) designated on the
signature pages hereto or such other office of such Issuing Lender (or of an
Affiliate of such Issuing Lender) as such Issuing Lender may from time to time
specify in
-3-
writing to the Canadian Administrative Agent and the relevant Borrower as the
office by which its Letters of Credit are to be issued and maintained.
"APPLICABLE MARGIN" means, for any date, (A) for purposes of
calculating the applicable interest rate for any Term B Loans, 2.25% in the case
of Eurodollar Loans, and 1.25% in the case of Base Rate Loans, and (B) for
purposes of calculating (i) the applicable interest rate for any Revolving Loan,
any Swingline Loan, any Term A Loan, (ii) the applicable rate of the Standby
Letter of Credit Fee for purposes of SECTION 2.12(b)(i), (iii) the applicable
rate of the Trade Letter of Credit Fee for purposes of SECTION 2.12(b)(ii), or
(iv) the applicable rate of the BA Acceptance Fee for purposes of
SECTION 2.12(c), the appropriate applicable margin set forth below corresponding
to the Leverage Ratio as of the most recent Calculation Date:
REVOLVING LOANS, SWINGLINE LOANS, TERM A LOANS AND FEES
-----------------------------------------------------------------------------------------------------------------------------------
Applicable Applicable Applicable Applicable
Margin Margin Margin Margin Applicable
For For Base For Standby For Trade Margin Applicable
Pricing Leverage Eurodollar Rate Letter of Letter of For BA Margin For C$
Level Ratio Loans Loans Credit Fee Credit Fee Acceptance Fee Prime Loans
-----------------------------------------------------------------------------------------------------------------------------------
I GREATER THAN OR EQUAL TO 3.5 to 1.0 2.50% 1.50% 2.50% 2.50% 2.50% 1.50%
II LESS THAN 3.5 to 1.0 but 2.25% 1.25% 2.25% 2.25% 2.25% 1.25%
GREATER THAN OR EQUAL TO 3.0 to 1.0
III LESS THAN 3.0 to 1.0 but 2.00% 1.00% 2.00% 2.00% 2.00% 1.00%
GREATER THAN OR EQUAL TO 2.5 to 1.0
IV LESS THAN 2.5 to 1.0 but 1.75% 0.75% 1.75% 1.75% 1.75% 0.75%
GREATER THAN OR EQUAL TO 2.0 to 1.0
V LESS THAN 2.0 to 1.0 1.50% 0.50% 1.50% 1.50% 1.50% 0.50%
Each Applicable Margin shall be determined and adjusted quarterly on the date
(each a "CALCULATION DATE") five Business Days after the earlier of (x) the date
by which the Parent Borrower is required to provide the consolidated financial
information required by SECTION 6.01(a) or (b) and the officer's certificate
required by SECTION 6.01(c) for the fiscal quarter or year of the Parent
Borrower most recently ended prior to the Calculation Date and (y) the date on
which the Parent Borrower has delivered such information and such certificate;
PROVIDED, HOWEVER, that: (i) each initial Applicable Margin shall be based on
Pricing Level I (as shown above) and shall remain at Pricing Level I until the
first Calculation Date occurring after the end of the first fiscal quarter of
the Parent Borrower ending at least three months subsequent to the Closing Date
and, thereafter, each Applicable Margin shall be based on the Pricing Level (as
shown above) corresponding to the Leverage Ratio as of the last day of the most
recently ended fiscal quarter or year of the Parent Borrower preceding the
applicable Calculation Date; (ii) if the Parent Borrower fails to provide the
consolidated financial information required by SECTION 6.01(a) or (b) or the
officer's certificate required by SECTION 6.01(c) for the most recently ended
fiscal quarter or year of the Parent Borrower preceding any applicable
Calculation Date, each Applicable Margin from such Calculation Date shall be
based on Pricing Level I (as shown above) until such time as such consolidated
financial information and an appropriate officer's certificate is provided,
whereupon each Applicable Margin shall be based on the Pricing Level (as shown
above) corresponding to the Leverage Ratio as of the last day of the most
recently ended fiscal quarter or year of the Parent Borrower preceding such
Calculation Date; and (iii) if and for so long as any Default under SECTION
8.01(a) or Event of Default shall have occurred and be continuing, each
Applicable Margin shall be based on Pricing Level I (as shown above). Each
Applicable Margin shall be effective from one Calculation Date until the next
Calculation Date. Any adjustment in the Applicable Margins shall be applicable
to all Loans, Bankers' Acceptances and Letters of Credit then existing or
subsequently made or issued.
-4-
"APPROVED FUND" means (i) with respect to any Lender, an entity
(whether a corporation, partnership, limited liability company, 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 managed or advised by such Lender, its parent holding company,
or any of their respective Subsidiaries, (ii) with respect to any Lender that is
a fund that invests in bank loans and similar extensions of credit, any other
fund that invests in bank loans and similar extensions of credit and is managed
or advised by the same investment advisor as such Lender or by its parent
holding company or any of their respective Subsidiaries of such investment
advisor and (iii) any special purpose funding vehicle described in SECTION
10.06(i).
"ASSET DISPOSITION" means any sale, lease (including any
Sale/Leaseback Transaction, whether or not involving a Capital Lease), lease (as
lessor), transfer or other disposition (including any such transaction effected
by way of merger or consolidation and including any sale or other disposition of
Equity Interests of a Subsidiary, but excluding any sale or other disposition by
way of Casualty or Condemnation) by any Group Company of any asset.
"ASSET DISPOSITION EVENT" means the receipt by any Group Company of
cash or Cash Equivalent proceeds or cash or Cash Equivalent distributions of any
kind in consideration for an Asset Disposition.
"ASSET DISPOSITION EVENT OFFER" has the meaning set forth in
SECTION 2.10(c).
"ASSET DISPOSITION PROCEEDS" means, subject to SECTIONS 2.10(c)(i)(A)
through (D), the aggregate amount of Net Cash Proceeds actually received by the
Parent Borrower or any of its Subsidiaries from any Asset Disposition Event.
Following any Asset Disposition Event Offer, the amount of Asset Disposition
Proceeds shall be reset to zero.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance,
substantially in the form of EXHIBIT C hereto, under which an interest of a
Lender hereunder is transferred to an Eligible Assignee pursuant to SECTION
10.06(b).
"ATTRIBUTABLE DEBT" means, at any date (i) in respect of any Capital
Lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP,
(ii) in respect of any Synthetic Lease Obligation of any Person, the capitalized
or principal amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease or other agreement were accounted for as a
Capital Lease, (iii) in respect of any Sale/Leaseback Transaction, the lesser of
(A) the present value, discounted in accordance with GAAP at the interest rate
implicit in the related lease, of the obligations of the lessee for net rental
payments over the remaining term of such lease (including any period for which
such lease has been extended or may, at the option of the lessor be extended)
and (B) the fair market value of the assets subject to such transaction, and
(iv) in respect of any Permitted Securitization Transaction, the fair market
value of such transaction.
"AVAILABILITY PERIOD" means the period from the Closing Date to the
Revolving Termination Date.
"BA ACCEPTANCE FEE" has the meaning set forth in SECTION 2.12(c).
"BA CONTRACT PERIOD" means, with respect to any Bankers' Acceptance, a
period commencing on the date of issuance thereof and ending 1, 2, 3 or 6 months
(or one year, if agreed to by
-5-
all of the Canadian Revolving Lenders) thereafter; PROVIDED that no BA Contract
Period shall be elected which would end after the Revolving Termination Date.
"BA DISCOUNT PROCEEDS" means, with respect to any Bankers' Acceptance
to be purchased by a Canadian Revolving Lender on any day under SECTION 2.06,
the quotient obtained (rounded, if necessary, to the nearest whole Canadian
cent, with one-half of one Canadian cent being rounded upward to the next higher
whole Canadian cent) by dividing:
(i) the face amount of such Bankers' Acceptance; by
(ii) the sum of 1.0 PLUS the product (rounded, if necessary, to
the nearest fifth decimal place, with 0.000005 being rounded upward) of:
(A) the Applicable BA Discount Rate (expressed as a
decimal) applicable to such Bankers' Acceptance; and
(B) a fraction, the numerator of which is equal to the
number of days remaining in the term of such Bankers' Acceptance and the
denominator of which is 365.
"BA REIMBURSEMENT OBLIGATIONS" means the aggregate amount (denominated
in Canadian Dollars) of all Bankers' Acceptances not yet reimbursed by the
Parent Borrower as provided in SECTION 2.06(i) to the applicable Canadian
Revolving Lenders in respect of Bankers' Acceptances accepted and purchased by
such Canadian Revolving Lenders.
"BANK SECRECY ACT" means the Financial Recordkeeping and Reporting of
Currency and Foreign Transactions Act of 1970, 31 U.S.C. 1051, et seq., as the
same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"BANKERS' ACCEPTANCE" means (a) in respect of a Canadian Revolving
Lender who is a bank that customarily accepts bankers' acceptances, a ▇▇▇▇ of
exchange governed by the Bills of Exchange Act (Canada) or a depository ▇▇▇▇
governed by the Depository Bills and Notes Act (Canada) denominated in Canadian
Dollars drawn by the Parent Borrower and accepted by a Canadian Revolving Lender
pursuant to SECTION 2.06 and (b) in respect of any other Canadian Revolving
Lender, a non-interest bearing promissory note made by the Parent Borrower to
such Canadian Revolving Lender.
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BANKERS' ACCEPTANCE REQUEST" has the meaning set forth in SECTION
2.06(a).
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate.
"BASE RATE LOAN" means at any date a Loan bearing interest at a rate
determined by reference to the Base Rate.
"BELOW-THRESHOLD MORTGAGE" means any Mortgage or group of Mortgages
covering Mortgaged Properties the aggregate fair market value of which (together
with all other Mortgaged Properties subject to Below-Threshold Mortgages) does
not exceed US$25,000,000.
-6-
"BORROWERS' ACCOUNTS" means collectively, the Parent Borrower's
Account and the U.S. Borrower's Account and reference to "BORROWER'S ACCOUNT"
shall mean either of them as applicable.
"BORROWER" means, collectively, the Parent Borrower, the U.S. Borrower
and each other Subsidiary Borrower, and "BORROWER" means either one of them.
"BORROWING" has the meaning set forth in SECTION 1.04.
"BORROWING SUBSIDIARY AGREEMENT" means a Borrowing Subsidiary
Agreement, substantially in the form of EXHIBIT L-1 hereto, as the same may be
amended, modified or supplemented from time to time, pursuant to which a U.S.
Subsidiary or a Canadian Subsidiary of the Parent Borrower agrees to become a
U.S. Subsidiary Borrower or a Canadian Subsidiary Borrower, respectively,
hereunder in accordance with SECTION 2.16.
"BORROWING SUBSIDIARY TERMINATION" means a Borrowing Subsidiary
Termination, substantially in the form of EXHIBIT L-2 hereto, pursuant to which
a U.S. Subsidiary or a Canadian Subsidiary of the Parent Borrower ceases to be a
U.S. Subsidiary Borrower or a Canadian Subsidiary Borrower, respectively,
hereunder.
"BUSINESS ACQUISITION" means the acquisition by (A) the Parent
Borrower or one or more of its Wholly-Owned Subsidiaries of all of the Equity
Interests of, or all (or any division, line of business or any substantial part
of any business for which (i) audited financial statements are available or (ii)
other financial information reasonably satisfactory to the Administrative Agents
is available) of the assets or property of, another Person and (B) any Group
Company of prescription files.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, U.S.A. or Montreal, Canada are
authorized or required to close, except that:
(i) when used in SECTION 2.05 with respect to any action taken
by or with respect to any Issuing Lender, or to the issuance of, drawing
under, or reimbursement obligation arising in respect of, a Letter of
Credit or a notice by a Borrower with respect to any such issuance, drawing
or reimbursement obligation, the term "BUSINESS DAY" shall not include any
day on which commercial banks are authorized by law to close in the
jurisdiction where such Issuing Lender's Applicable Lending Office is
located;
(ii) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a
Eurodollar Loan, or a notice by a Borrower with respect to any such
borrowing, payment, prepayment or Interest Period, such day shall also be a
day on which commercial banks are open for international business
(including dealings in U.S. Dollar deposits) in London; and
(iii) if such day relates to a borrowing or a payment or
prepayment of principal of or interest on a Canadian Revolving Loan or a
Term A Loan or to the issuance, acceptance or purchase of, or reimbursement
of obligations in respect of, a Bankers' Acceptance or a notice by the
Parent Borrower with respect to any such borrowing, payment, prepayment,
issuance, acceptance, purchase or reimbursement obligation, such day shall
also be a day on which commercial banks are open for international business
in Montreal, Toronto and Calgary, Canada.
-7-
"C$ PRIME LOANS" means on any date a Loan denominated in Canadian
Dollars bearing interest at a rate determined by reference to the C$ Prime Rate.
"C$ PRIME RATE" means, for any day, a rate per annum equal to the
higher of (i) the variable annual rate of interest (rounded upward, if
necessary, to the next higher 1/100th of 1%) announced from time to time by the
Canadian Administrative Agent as its reference rate then in effect for
determining interest rates on Canadian Dollar-denominated commercial loans in
Canada and (ii) the annual rate of interest equal to the sum of (A) the 30-day
CDOR Rate for such day and (B) 1.00% per annum.
"CANADIAN ADMINISTRATIVE AGENT'S OFFICE" means (A) in relation to the
Term A Loans, Canadian Revolving Loans, Canadian Swingline Loans, Canadian
Letters of Credit and Bankers' Acceptances, the Canadian Administrative Agent's
office located at 5650 d'Iberville Street, Suite 603, Montreal,
Quebec, Canada,
H2G 2B3 or such other office in Canada as may be designated by the Canadian
Administrative Agent by written notice to the Term B Administrative Agent, the
Borrowers, the Canadian Revolving Lenders, the Canadian Swingline Lender, the
Canadian Issuing Lender and the Term A Lenders and (B) in relation to the U.S.
Revolving Loans, U.S. Swingline Loans and the U.S. Letters of Credit, the
Canadian Administrative Agent's office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (with the copy to the Montreal address above) or such
other office in the United States as may be designated by the Canadian
Administrative Agent by written notice to the Term B Administrative Agent, the
Borrowers, the U.S. Revolving Lenders, the U.S. Swingline Lender and the U.S.
Issuing Lender.
"CANADIAN ADMINISTRATIVE AGENT" means National Bank of Canada, in its
capacity as administrative agent for the U.S. Revolving Lenders, the U.S.
Swingline Lender, the U.S. Issuing Lender, the Canadian Revolving Lenders, the
Canadian Swingline Lender, the Canadian Issuing Lender and the Term A Lenders
hereunder and under the other Senior Finance Documents, and its successor or
successors in such capacity.
"CANADIAN ADMINISTRATIVE AGENT'S BRANCH" means (A) in relation to Term
A Loans, Canadian Revolving Loans, Canadian Swingline Loans, Canadian Letters of
Credit and Bankers' Acceptances, the branch of the Canadian Administrative Agent
located at ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, Level A, Transit 0001-1, Montreal,
Quebec, Canada H3B 4LT, or such other branch as the Canadian Administrative
Agent may specify from time to time and (B) in relation to U.S. Revolving Loans
and U.S. Letters of Credit, the branch of the Canadian Administrative Agent
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other
branch as the Canadian Administrative Agent may specify from time to time.
"CANADIAN COLLATERAL AGENT" means National Bank of Canada, in its
capacity as collateral agent for the Finance Parties under the Canadian
Collateral Documents and its respective successors in such capacities.
"CANADIAN COLLATERAL DOCUMENTS" means the Canadian Mortgages, the PPSA
Security Agreement and the
Quebec Hypothec.
"CANADIAN DOLLAR AMOUNT" means on any date:
(i) with respect to U.S. Dollar-Denominated Loans, the
Canadian Dollar Equivalent of the aggregate outstanding principal amount
thereof after giving effect to any Borrowings, conversions, continuations
and prepayments or repayments of such Loans occurring on such date;
-8-
(ii) with respect to C$ Prime Loans, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings,
continuations, prepayments or repayments of any such Loans occurring on
such date;
(iii) with respect to U.S. LC Obligations in respect of U.S.
Letters of Credit or Canadian LC Obligations in respect of Canadian Letters
of Credit denominated in U.S. Dollars, the Canadian Dollar Equivalent of
the aggregate amount of such U.S. LC Obligations or such Canadian LC
Obligations after giving effect to any changes in the aggregate amount of
such U.S. LC Obligations or such Canadian LC Obligations as of such date;
(iv) with respect to Canadian LC Obligations in respect of
Canadian Letters of Credit denominated in Canadian Dollars, the aggregate
amount of such Canadian LC Obligations after giving effect to any changes
in the aggregate amount of such Canadian LC Obligations on such date;
(v) with respect to LC Obligations in respect of Canadian
Foreign Currency Letters of Credit, the Canadian Dollar Equivalent of the
aggregate amount of such LC Obligations after giving effect to any changes
in the aggregate amount of such LC Obligations on such date; and
(vi) with respect to Bankers' Acceptances, the aggregate
outstanding face amount thereof after giving effect to any issuances,
acceptances, purchases or reimbursements of Bankers' Acceptances occurring
on such date.
"CANADIAN DOLLAR EQUIVALENT" means on any date of determination with
respect to any U.S. Dollar-Denominated Loan, any LC Obligation, any Commitment
or any other amount determined in currency other than Canadian Dollars, the
equivalent of such amount in Canadian Dollars determined by the Canadian
Administrative Agent pursuant to SECTION 1.05 using the applicable Exchange
Rate.
"CANADIAN DOLLARS" or "C$" means lawful money of Canada.
"CANADIAN FOREIGN CURRENCY LC COMMITTED AMOUNT" has the meaning set
forth in SECTION 2.05(b).
"CANADIAN FOREIGN CURRENCY LC EXPOSURE" means at any time, the sum of
(i) the U.S. Dollar Amount of the aggregate undrawn and unexpired amount of all
outstanding Canadian Foreign Currency Letters of Credit at such time plus (ii)
the U.S. Dollar Amount of the aggregate amount of Canadian LC Disbursements in
respect of Canadian Foreign Currency Letters of Credit that have not been
reimbursed at such time.
"CANADIAN FOREIGN CURRENCY LETTER OF CREDIT" means a Canadian Letter
of Credit denominated in an Agreed Foreign Currency.
"CANADIAN ISSUING LENDER" means in the case of Canadian Letters of
Credit, (i) National Bank of Canada in its capacity as issuer, and its successor
or successors in such capacity, (ii) each Person listed on SCHEDULE 2.05 hereto
as the issuer of an Existing Canadian Letter of Credit, and (iii) any other
Canadian Revolving Lender which the Parent Borrower shall have designated as an
Issuing Lender by notice to the Canadian Administrative Agent.
"CANADIAN JOINT LEAD ARRANGERS" means National Bank Financial Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Deutsche Bank Securities
Inc. in their respective capacities as
-9-
joint lead arrangers and joint bookrunners in connection with the Canadian
Revolving Loans and the Term A Loans, and "Canadian Joint Lead Arranger" means
any one of them individually.
"CANADIAN ▇▇ ▇▇▇▇ COLLATERAL ACCOUNT" has the meaning set forth in the
PPSA Security Agreement.
"CANADIAN LC COMMITMENT" means the commitment of the Canadian Issuing
Lender to issue Canadian Letters of Credit in an aggregate face amount
(calculated in U.S. Dollars and using, where necessary, the U.S. Dollar
Equivalent of such face amount) at any one time outstanding (together with the
U.S. Dollar Amount of any unreimbursed drawings thereon) of up to the Canadian
LC Committed Amount.
"CANADIAN LC COMMITTED AMOUNT" has the meaning set forth in SECTION
2.05(b).
"CANADIAN LC DISBURSEMENT" means a payment or disbursement made by the
Canadian Issuing Lender pursuant to a Canadian Letter of Credit.
"CANADIAN LC DOCUMENTS" means, with respect to any Canadian Letter of
Credit, such Canadian Letter of Credit, any amendments thereto, any documents
delivered in connection therewith, any application therefor and any agreements,
instruments, guaranties or other documents (whether general in application or
applicable only to such Canadian Letter of Credit) governing or providing for
(i) the rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.
"CANADIAN LC OBLIGATIONS" means at any time, the sum of (i) the
maximum U.S. Dollar Amount which is, or at any time thereafter may become,
available to be drawn under Canadian Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in such
Canadian Letters of Credit plus (ii) the U.S. Dollar Amount of all Canadian LC
Disbursements not yet reimbursed by the Parent Borrower as provided in SECTION
2.05(h) to the Canadian Issuing Lender in respect of drawings under Canadian
Letters of Credit, including any portion of any such obligation to which a
Lender has become subrogated pursuant to SECTION 2.05(i).
"CANADIAN LEASED MORTGAGED PROPERTY" and "CANADIAN LEASED MORTGAGED
PROPERTIES" have the respective meanings set forth in SECTION 4.01(j).
"CANADIAN LETTER OF CREDIT" means an Existing Canadian Letter of
Credit or an Additional Canadian Letter of Credit and "CANADIAN LETTERS OF
CREDIT" means any combination of the foregoing.
"CANADIAN MORTGAGE" means (i) in the case of owned real property
interests, a mortgage or deed of hypothec, substantially in the form of, or
otherwise substantially identical in substance to, the provisions of EXHIBIT F-7
hereto, with respect to properties situated in the Province of
Quebec and of
EXHIBIT F-8 with respect to properties situated in other Canadian provinces,
among any Credit Party and the Canadian Collateral Agent as the same may be
amended, modified or supplemented from time to time, or (ii) in the case of
Leaseholds, a deed of hypothec or leasehold mortgage, substantially in the form
of, or otherwise substantially identical in substance to, the provisions of
EXHIBIT F-7 hereto, with respect to properties situated in the Province of
Quebec and of EXHIBIT F-9 with respect to properties situated in other Canadian
provinces among the Credit Parties party thereto and the Canadian Collateral
Agent, as the same may be amended, modified or supplemented from time to time.
"CANADIAN MORTGAGED PROPERTIES" means the real property interests of
the Parent Borrower and its Subsidiaries described in SECTION 4.01(j) hereto.
-10-
"CANADIAN OWNED MORTGAGED PROPERTY" and "CANADIAN OWNED MORTGAGED
PROPERTIES" have the respective meanings set forth in SECTION 4.01(j).
"CANADIAN PENSION PLAN" means any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable pension
benefits or tax laws of Canada (whether or not registered under any such law)
which is maintained or contributed to by (or to which there is or may be an
obligation to contribute of), any Group Company in respect of any Person's
employment in Canada or a province or territory thereof with any Group Company
and all related agreements, arrangements and understandings in respect of, or
related to, any benefits to be provided thereunder or the effect thereof on any
other compensation or remuneration of any employee.
"CANADIAN RESIDENT" means, at any time, a Person who at that time is
(a) not a non-resident of Canada for purposes of the Income Tax Act (Canada);
(b) an authorized foreign bank deemed to be resident in Canada for purposes of
Part XIII of the Income Tax Act (Canada) in respect of all amounts payable in
respect to its Canadian banking business and pursuant to this Agreement; (c) a
Canadian partnership, as that term is defined in the Income Tax Act (Canada) or
(d) any other Person who is not required to pay withholding tax pursuant to Part
XIII of the Income Tax Act (Canada) in respect of all amounts payable to such
Person pursuant to the Canadian Revolving Loans, Term A Loans, Canadian Letters
of Credit and Bankers' Acceptances.
"CANADIAN REVOLVING BORROWING" means a Borrowing comprised of Canadian
Revolving Loans and identified as such in a Notice of Borrowing with respect
thereto.
"CANADIAN REVOLVING COMMITMENT" means, with respect to any Canadian
Revolving Lender, the commitment of such Canadian Revolving Lender, in the U.S.
Dollar Amount at any time outstanding of up to such Canadian Revolving Lender's
Canadian Revolving Commitment Percentage of the Canadian Revolving Committed
Amount, (i) to make C$ Prime Loans, Base Rate Loans or Eurodollar Loans in
accordance with SECTION 2.01(a)(ii), (ii) to accept and purchase Bankers'
Acceptances in accordance with SECTION 2.06, (iii) to purchase Participation
Interests in Canadian Swingline Loans in accordance with the provisions of
SECTION 2.01(d)(ii), and (iv) to purchase Participation Interests in Canadian
Letters of Credit in accordance with the provisions of SECTION 2.05(e).
"CANADIAN REVOLVING COMMITMENT PERCENTAGE" means, for each Canadian
Revolving Lender, the percentage identified as its Canadian Revolving Commitment
Percentage on SCHEDULE 1.01A hereto, as such percentage may be modified in
connection with any assignment made in accordance with the provisions of SECTION
10.06(b).
"CANADIAN REVOLVING COMMITTED AMOUNT" means US$100,000,000 or such
lesser or greater amount to which the Canadian Revolving Committed Amount may be
adjusted pursuant to SECTION 2.11.
"CANADIAN REVOLVING CREDIT EXPOSURE" has the meaning set forth in the
definition of "REQUIRED CANADIAN REVOLVING LENDERS" contained in this SECTION
1.01.
"CANADIAN REVOLVING LENDER" means a Lender identified in SCHEDULE
1.01A as having a Canadian Revolving Commitment and each Eligible Assignee which
acquires a Canadian Revolving Commitment, Canadian Revolving Loan or Bankers'
Acceptance in respect thereof pursuant to SECTION 10.06(b) and their respective
successors.
"CANADIAN REVOLVING LOAN" means a Loan made to the Parent Borrower
under SECTION 2.01(a)(ii).
-11-
"CANADIAN REVOLVING OUTSTANDINGS" means at any date the U.S. Dollar
Amount of all outstanding Canadian Revolving Loans and Canadian Swingline Loans
plus the U.S. Dollar Amount of the undiscounted face amount of all outstanding
Bankers' Acceptances plus the U.S. Dollar Amount of all Canadian LC Obligations.
"CANADIAN SUBSIDIARY" means with respect to any Person each Subsidiary
of such Person which is organized under the laws of Canada or any political
subdivision, province or territory thereof, and "CANADIAN SUBSIDIARIES" means
any two or more of them. The term "Canadian Subsidiary" shall also include any
Subsidiaries excluded from the definition of "Foreign Subsidiary" pursuant to
the proviso thereto.
"CANADIAN SUBSIDIARY BORROWER" means any Canadian Subsidiary of the
Parent Borrower designated as a Canadian Subsidiary Borrower by the Parent
Borrower pursuant to SECTION 2.16 that has not ceased to be a Canadian
Subsidiary Borrower pursuant to such Section.
"CANADIAN SWINGLINE COMMITMENT" means the agreement of the Canadian
Swingline Lender to make Loans pursuant to SECTION 2.01(d).
"CANADIAN SWINGLINE COMMITTED AMOUNT" means US$15,000,000 (or such
other amount not in excess of US$15,000,000) as the Parent Borrower and the
Canadian Swingline Lender may agree from time to time), as such Canadian
Swingline Committed Amount may be reduced pursuant to SECTION 2.11.
"CANADIAN SWINGLINE LENDER" means National Bank of Canada in its
capacity as the Canadian Swingline Lender under SECTION 2.01(d)(ii), and its
successor or successors in such capacity.
"CANADIAN SWINGLINE LOAN" means a C$ Prime Loan or a Base Rate Loan
made by the Canadian Swingline Lender pursuant to SECTION 2.01(d)(ii), and
"CANADIAN SWINGLINE LOANS" means any two or more of such C$ Prime Loans and/or
Base Rate Loans.
"CANADIAN SWINGLINE TERMINATION DATE" means the earlier of (i) the
fifth Business Day prior to the Revolving Termination Date (or, if such day is
not a Business Day, the next preceding Business Day) or such earlier date upon
which the Canadian Revolving Commitments shall have been terminated in their
entirety in accordance with this Agreement and (ii) the date on which the
Canadian Swingline Commitment is terminated in its entirety in accordance with
this Agreement.
"CAPITAL LEASE" of any Person means any lease of (or other arrangement
conveying the right to use) property (whether real, personal or mixed) by such
Person as lessee which would, in accordance with GAAP, be required to be
accounted for as a capital lease on the balance sheet of such Person.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person, all
obligations of such Person as lessee under Capital Leases, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"CASH COLLATERALIZE" means (i) with respect to Canadian LC
Obligations, to pledge and deposit with or deliver to the Canadian Collateral
Agent, for the benefit of the Canadian Issuing Lender and the Canadian Revolving
Lenders, as collateral for the Canadian LC Obligations cash or Cash Equivalents
(denominated in Canadian Dollars, in the case of Canadian Letters of Credit
denominated in Canadian Dollars, or in U.S. Dollars, in the case of Canadian
Letters of Credit denominated in U.S. Dollars) pursuant to documentation in form
and substance satisfactory to the Canadian Administrative
-12-
Agent and the Canadian Issuing Lender, (ii) with respect to U.S. LC Obligations,
to pledge and deposit with or deliver to the U.S. Collateral Agent, for the
benefit of the U.S. Issuing Lender and the U.S. Revolving Lenders, as collateral
for the U.S. LC Obligations, cash or Cash Equivalents (denominated in U.S.
Dollars) pursuant to documentation in form and substance satisfactory to the
Canadian Administrative Agent and the U.S. Issuing Lender, and (iii) with
respect to BA Reimbursement Obligations, to pledge and deposit with or deliver
to the Canadian Collateral Agent, for the benefit of the Canadian Revolving
Lenders as collateral for the BA Reimbursement Obligations, cash or Cash
Equivalents (denominated in Canadian Dollars) pursuant to documentation in form
and substance satisfactory to the Canadian Administrative Agent.
"CASH EQUIVALENTS" means any of the following:
(i) securities issued or directly and fully guaranteed or
insured by the United States of America or Canada or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the
United States of America or Canada, respectively, is pledged in support
thereof) having maturities of not more than three months from the date of
acquisition;
(ii) certificates of deposit of (A) any Lender, (B) any United
States or Canadian commercial bank of recognized standing having capital
and surplus in excess of US$500,000,000 or the Canadian Dollar Equivalent
thereof, or (C) any bank whose short-term commercial paper rating from S&P
is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1
or R1 [mid] or better by DBRS, or the equivalent thereof (any such bank
being an "APPROVED LENDER"), in each case with maturities of not more than
90 days from the date of acquisition;
(iii) commercial paper and variable or fixed rate notes issued
by any Approved Lender (or by the parent company thereof) or any variable
rate notes issued by, or guaranteed by, any United States or Canadian
corporation not an Affiliate of the Parent Borrower rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's or R1 [mid] or better by DBRS, or the equivalent thereof,
and maturing within three months of the date of acquisition;
(iv) repurchase agreements with a term of not more than seven
days with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
US$500,000,000 or the Canadian Dollar Equivalent thereof for direct
obligations issued by or fully guaranteed by the United States of America
or Canada in which the Parent Borrower or one or more of its Subsidiaries
shall have a perfected first priority security interest (subject to no
other Liens) and having, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations; and
(v) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least US$500,000,000 or the
Canadian Dollar Equivalent and the portfolios of which are limited to
Investments of the character described in the foregoing CLAUSES (i) through
(iv).
"CASUALTY" and "CASUALTY EVENT" mean any casualty, loss, damage,
destruction or other similar loss with respect to real or personal property or
improvements or from business interruption.
"CASUALTY/CONDEMNATION EVENT OFFER" has the meaning given to it in
SECTION 2.10(c)(ii).
-13-
"CASUALTY INSURANCE POLICY" means any insurance policy maintained by
any Group Company covering losses with respect to Casualties.
"CASUALTY PROCEEDS" means, subject to SECTION 2.10(c)(ii)(A) and (B),
the amount by which the aggregate amount of Net Cash Proceeds received by the
Parent Borrower or any of its Subsidiaries from a Casualty Event exceeds
US$5,000,000. Following any Casualty/Condemnation Event Offer with respect to
any Casualty, the amount of Casualty Proceeds shall be reset to zero.
"CDOR RATE" means, on any date, the average per annum rate of interest
applicable to C$ bankers' acceptances for the applicable period appearing on the
"Reuters Screen CDOR Page" (as defined in the International Swap Dealer
Association, Inc. definitions, as modified and amended from time to time) on
such date, of if such date is not a Business Day, then on the immediately
preceding Business Day; PROVIDED, HOWEVER, that if no such rate appears on the
▇▇▇▇▇▇'▇ Screen CDOR Page as contemplated, then the CDOR Rate on any date shall
be the rate for the term and amount referred to above applicable to C$ bankers'
acceptances quoted by the Canadian Administrative Agent as of 10:OO A.M.,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ time, on such date or, if such date is not a Business
Day, then on the immediately preceding Business Day.
"CHANGE OF CONTROL" means the occurrence of any of the following
events:
(i) the Parent Borrower shall cease to own directly 100% of
the Equity Interests of the U.S. Borrower on a fully-diluted basis assuming
the conversion and exercise of all outstanding Equity Equivalents (whether
or not such securities are then currently convertible or exercisable) or
shall cease to be entitled to elect all members of the board of directors
(or persons performing similar functions) of the U.S. Borrower; or
(ii) (A) any "person" or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act) other than the Permitted Holders has
become the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that any such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), by way of merger, consolidation or otherwise, of 35% or more of the
voting power associated with the Equity Interests of the Parent Borrower on
a fully-diluted basis assuming the conversion and exercise of all
outstanding Equity Equivalents (whether or not such securities are then
currently convertible or exercisable) and (B) such person or group is or
becomes, directly or indirectly, the beneficial owner of a greater
percentage of the voting power associated with the Equity Interests of the
Parent Borrower, calculated on a fully-diluted basis as set forth above,
than the percentage of the voting power associated with the Equity
Interests of the Parent Borrower beneficially owned by the Permitted
Holders; or
(iii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the board of
directors (or persons performing similar functions) of the Parent Borrower
together with any new members of such board of directors whose elections by
such board of directors or whose nominations for election by the
stockholders of the Parent Borrower was approved by a vote of a majority of
the members of such board of directors then still in office who either were
directors at the beginning of such period or whose election or nomination
for election was previously so approved, cease for any reason to constitute
a majority of the directors of the Parent Borrower still in office; or
(iv) a "change of control" (as defined in the Subordinated Note
Indenture or in the Senior Note Indenture) occurs.
-14-
"CLASS" the meaning set forth in SECTION 1.04.
"CLOSING DATE" means the date on or after the Effective Date when the
first Credit Extension occurs in accordance with SECTION 4.01 and SECTION 10.24.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time.
"COLLATERAL" means all of the property which is subject or is
purported to be subject to the Liens granted by the Collateral Documents.
"COLLATERAL AGENTS" means, collectively, the Canadian Collateral Agent
and the U.S. Collateral Agent and "COLLATERAL AGENT" means either one of them as
the case may be.
"COLLATERAL DOCUMENTS" means, collectively, the U.S. Collateral
Documents and the Canadian Collateral Documents, any Additional Collateral
Documents, any additional pledges, security agreements, patent, trademark or
copyright filings or mortgages required to be delivered pursuant to the Finance
Documents and any instruments of assignment, control agreements, lockbox letters
or other instruments or agreements executed pursuant to the foregoing.
"COMMITMENT" means (i) with respect to each Lender, its U.S. Revolving
Commitment, Canadian Revolving Commitment, Term A Commitment and/or Term B
Commitment, as and to the extent applicable, (ii) with respect to each Issuing
Lender, its U.S. LC Commitment and/or its Canadian LC Commitment and (iii) with
respect to each Swingline Lender, its U.S. Swingline Commitment and/or its
Canadian Swingline Commitment, in each case as set forth on SCHEDULE 1.01A or in
the applicable Assignment and Acceptance as its Commitment of the applicable
Class, as any such amount may be increased or decreased from time to time
pursuant to this Agreement.
"COMMITMENT FEE" has the meaning set forth in SECTION 2.12(a).
"CONDEMNATION" and "CONDEMNATION EVENT" means any taking by a
Governmental Authority of property or assets, or any part thereof or interest
therein, for public or quasi-public use under the power of eminent domain, by
reason of any public improvement or condemnation or in any other manner that
permanently displaces the owner of such property or assets.
"CONDEMNATION AWARD" means all proceeds of any Condemnation or
transfer in lieu thereof.
"CONDEMNATION PROCEEDS" means subject to SECTION 2.10(c)(ii)(A) and
(B), the amount by which the aggregate amount of Net Cash Proceeds received by
the Parent Borrower or any of its Subsidiaries from a Condemnation Event exceeds
US$5,000,000. Following any Casualty/Condemnation Event Offer with respect to
any Condemnation Event, the amount of Condemnation Awards shall be reset to
zero.
"CONSOLIDATED ADJUSTED WORKING CAPITAL" means, at any date, the excess
of (i) Consolidated Current Assets (excluding cash and Cash Equivalents
classified as such in accordance with GAAP) over (ii) Consolidated Current
Liabilities (excluding the current portion of any Consolidated Funded Debt).
-15-
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate amount of all expenditures (whether paid in cash or other
consideration or accrued as a liability) that would, in accordance with GAAP, be
included as additions to property, plant and equipment and other capital
expenditures of the Parent Borrower and its Consolidated Subsidiaries for such
period, as the same are or would be set forth in a consolidated statement of
cash flows of the Parent Borrower and its Consolidated Subsidiaries for such
period (including the amount of assets leased under any Capital Lease), but
excluding (to the extent that they would otherwise be included) any such
expenditures made for (1) the acquisitions of prescription files and (2) the
replacement or restoration of assets to the extent paid for by any Casualty
Insurance Policy or Condemnation Award with respect to the asset or assets being
replaced or restored to the extent such expenditures are permitted under the
Finance Documents. For avoidance of doubt, the purchase price paid for any
Permitted Business Acquisition shall not be deemed to be a Consolidated Capital
Expenditure.
"CONSOLIDATED CASH DIVIDENDS" means, for any period, the aggregate
amount of all Restricted Payments paid in cash by the Parent Borrower or by any
Subsidiary of the Parent Borrower to any Person other than the Parent Borrower
or a Wholly-Owned Subsidiary of the Parent Borrower during such period.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period,
Consolidated Interest Expense that has been paid or is payable in cash for such
period.
"CONSOLIDATED CASH TAXES" means, for any period, the aggregate amount
of all taxes of the Parent Borrower and its Consolidated Subsidiaries for such
period to the extent the same are paid or are payable in cash by the Parent
Borrower or any Consolidated Subsidiary of the Parent Borrower during such
period; PROVIDED that Consolidated Cash Taxes for any period of four fiscal
quarters ending on the last day of the first, second or third fiscal quarters of
the Parent Borrower first ending after the Closing Date shall be deemed equal to
the product of (i) Consolidated Cash Taxes computed in accordance with the
requirements of this definition for such one, two or three quarter period
multiplied by (ii) a fraction, the numerator of which is four and the
denominator of which is the number of such fiscal quarters ended after the
Closing Date.
"CONSOLIDATED CURRENT ASSETS" means, at any date, the consolidated
current assets of the Parent Borrower and its Consolidated Subsidiaries
determined as of such date.
"CONSOLIDATED CURRENT LIABILITIES" means, at any date, the
consolidated current liabilities of the Parent Borrower and its Consolidated
Subsidiaries determined as of such date.
"CONSOLIDATED DEBT" means at any date the Debt of the Parent Borrower
and its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"CONSOLIDATED EBITDA" means, for any period, the sum of (i)
Consolidated Net Income for such period (excluding therefrom any extraordinary
items of gain or loss) plus (ii) without duplication, those amounts which, in
the determination of Consolidated Net Income for such period, have been deducted
for (A) Consolidated Interest Expense, (B) provisions for Federal, state,
provincial, local and foreign income, value added and similar taxes, (C)
depreciation, amortization (including, without limitation, amortization of
goodwill and other intangible assets), impairment of goodwill and other non-
cash charges or expenses (excluding any such non-cash charge or expense to the
extent that it represents amortization of a prepaid cash expense that was paid
in a prior period or an accrual of, or a reserve for, cash charges, expenses or
payments in any future period), (D) one-time purchase accounting adjustments in
the amount of any increase in the balance sheet value of inventory held by the
Parent Borrower or any Consolidated Subsidiary as of the Closing Date by reason
of Section 1581 of the Canadian Institute of
-16-
Chartered Accountants Handbook during the period ending on the first anniversary
of the Closing Date, (E) Transaction related expenditures incurred and paid
within the 12-month period after the Closing in an amount not to exceed
US$130,000,000 (all of the foregoing determined in accordance with GAAP), (F)
cash charges taken in connection with the integration of the Acquisition and
related matters within the 24-month period after the Closing in an amount for
all such charges not to exceed US$20,000,000 in the aggregate or (G) fees and
expenses incurred by the Parent Borrower in connection with any refinancing of
the Senior Notes or the Subordinated Notes minus (iii) any amount which, in the
determination of Consolidated Net Income for such period, has been added for (A)
interest income and (B) any non-cash income (except for any accrual of cash
income in respect of a future period) or non-cash gains, all as determined in
accordance with GAAP; PROVIDED that (x) Consolidated EBITDA for any fiscal
period ending prior to the Closing Date which is identified on SCHEDULE 1.01B
hereto shall be deemed to equal the amount set forth on SCHEDULE 1.01B opposite
such period and (y) Consolidated EBITDA for each of the fiscal quarters of the
Parent Borrower ending November 30, 2004 and February 28, 2005, respectively,
shall be increased by the amount of the CVS Overhead Add-back. For purposes of
calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a "REFERENCE PERIOD") pursuant to any determination of the
Leverage Ratio and the Fixed Charge Coverage Ratio, if during such Reference
Period (or in the case of pro-forma calculations, during the period from the
last day of such Reference Period to and including the date as of which such
calculation is made) any Group Company shall have made an Asset Disposition or a
Permitted Business Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving effect thereto on a Pro-Forma Basis, giving
effect to projected cost savings permitted or required by Regulations S-K or S-X
under the Securities Act or otherwise agreed to by the Administrative Agents in
their sole discretion.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of (i)
Consolidated Interest Expense for such period plus (ii) Consolidated Scheduled
Debt Payments for such period plus (iii) Consolidated Cash Taxes for such period
plus (iv) Consolidated Cash Dividends for such period.
"CONSOLIDATED FUNDED DEBT" means, at any date, the Funded Debt of the
Parent Borrower and its Consolidated Subsidiaries as of such date, determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total
interest expense, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and original
issue discount, interest capitalized during construction, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments under Capital Leases and the implied interest
component of Synthetic Leases and Permitted Securitization Transactions
(regardless of whether accounted for as interest expense under GAAP), all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptances and net costs in respect of Derivatives
Obligations constituting interest rate swaps, collars, caps or other
arrangements requiring payments contingent upon interest rates of the Parent
Borrower and its Consolidated Subsidiaries) in each case determined on a
consolidated basis for such period.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
net loss) after taxes of the Parent Borrower and its Consolidated Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP;
PROVIDED that there shall be excluded from the calculation of Consolidated Net
Income for any period (i) the income (or loss) of any Person in which any other
Person (other than the Parent Borrower or any of its Wholly-Owned Consolidated
Subsidiaries) has an ownership interest, except to the extent that any such
income is actually received in cash by the Parent Borrower or such Wholly-Owned
Consolidated Subsidiary in the form of Restricted Payments during such period,
(ii) the income (or loss) of any Person accrued prior to the date it becomes a
Consolidated Subsidiary of the Parent Borrower or is merged with or into or
consolidated with the Parent Borrower or any of its
-17-
Consolidated Subsidiaries or that Person's assets are acquired by the Parent
Borrower or any of its Consolidated Subsidiaries, except as provided in the
definitions of "Consolidated EBITDA" and "Pro-Forma Basis" herein, (iii) the
income of any Subsidiary of the Parent Borrower to the extent that the
declaration or payment of Restricted Payments or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree or Law applicable
to that Subsidiary, (iv) whether or not required to be included by GAAP, the
income (or loss) attributable to any Canadian drugstore franchisee in which the
Parent Borrower does not own or control more than 50% of the voting power
associated with the Equity Interests of such franchisee, (v) the cumulative
effect of a change in accounting principles, and (vi) any gain or loss arising
from foreign currency fluctuations on foreign currency denominated Debt.
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date, Consolidated
Total Assets less all intangible assets of the Parent Borrower and its
Consolidated Subsidiaries determined as of such date.
"CONSOLIDATED SCHEDULED DEBT PAYMENTS" means, for any period, the sum
of all scheduled payments of principal on Loans and all other Consolidated
Funded Debt (including, without limitation, the principal component of Capital
Lease Obligations, Purchase Money Debt and Synthetic Lease Obligations
(regardless of whether accounted for as indebtedness under GAAP) paid or payable
during such period), but excluding payments due on Revolving Loans and Swingline
Loans during such period; PROVIDED that Consolidated Scheduled Debt Payments for
any period shall not include voluntary prepayments of Consolidated Funded Debt,
mandatory prepayments of the Term A Loans and Term B Loans pursuant to SECTION
2.10(b) or other mandatory prepayments (other than by virtue of scheduled
amortization) of Consolidated Funded Debt (but Consolidated Scheduled Debt
Payments for a period shall be adjusted to reflect the effect on scheduled
payments of principal for such period of the application of any mandatory
prepayments of Consolidated Funded Debt during or preceding such period).
"CONSOLIDATED SUBSIDIARY" means, with respect to any Person at any
date, any Subsidiary of such Person or other entity the accounts of which would
be consolidated with those of such Person in its consolidated financial
statements if such statements were prepared as of such date in accordance with
GAAP.
"CONSOLIDATED TOTAL ASSETS" means, at any date, the total consolidated
assets of the Parent Borrower and its Consolidated Subsidiaries determined as of
such date.
"CREDIT EXPOSURE" has the meaning set forth in the definition of
"REQUIRED LENDERS" in this SECTION 1.01.
"CREDIT EXTENSION" means a Borrowing, the issuance, acceptance and
purchase of a Bankers' Acceptance or the issuance, renewal or extension of a
Letter of Credit.
"CREDIT PARTY" means each of the Parent Borrower, the U.S. Borrower
and each Subsidiary Guarantor, and "CREDIT PARTIES" means any combination of the
foregoing.
"CURRENCY CALCULATION DATE" means (i) the first Business Day of each
calendar quarter (or such other day in any calendar quarter as may be selected
by the Canadian Administrative Agent (each, an "OPTIONAL CALCULATION DATE")),
(ii) in respect of any Letter of Credit denominated in a currency other than
U.S. Dollars, (A) the date of issuance of such Letter of Credit, (B) the first
Business Day of each calendar month during any period that such Letter of Credit
remains outstanding and (C) any date on which the relevant Borrower's obligation
to repay LC Disbursements in respect of such Letter of Credit is automatically
converted into U.S. Dollars pursuant to the terms of this Agreement and (iii) in
respect of any Bankers' Acceptance, (A) the date of issuance of such Bankers'
Acceptance and (B) the first
-18-
Business Day of each calendar month during any period that such Bankers'
Acceptance remains outstanding.
"CVS OVERHEAD ADD-BACK" means (a) for the fiscal quarter of the Parent
Borrower ending November 30, 2004, US$13,875,000 and (b) for the fiscal quarter
of the Parent Borrower ending February 28, 2005, US$9,250,000.
"DBRS" means Dominion Bond Ratings Service Limited, and its successors
or, absent any such successors, such nationally recognized statistical rating
organization in Canada as the Parent Borrower and the Administrative Agents may
select.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of the subject Person for borrowed money, (ii) all obligations of
the subject Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of the subject Person under conditional sale
or other title retention agreements relating to property purchased by the
subject Person to the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (iv) all obligations, other than
intercompany items, of the subject Person to pay the deferred purchase price of
property or services (other than trade accounts payable and accrued expenses
arising in the ordinary course of business and due within six months of the
incurrence thereof), (v) the Attributable Debt of the subject Person in respect
of Capital Lease Obligations and Synthetic Lease Obligations (regardless of
whether accounted for as indebtedness under GAAP), (vi) all obligations of the
subject Person to purchase securities or other property which arise out of or in
connection with the sale of the same or substantially similar securities or
property, (vii) all non-contingent obligations (and, for purposes of SECTION
7.01 and SECTION 8.01(e), all contingent obligations) of the subject Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit, bankers' acceptance or similar instrument, (viii) all obligations of
others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) a Lien on, or payable out of
the proceeds of production from, any property or asset of such Person, whether
or not such obligation is assumed by the subject Person; PROVIDED that the
amount of any Debt of others that constitutes Debt of the subject Person solely
by reason of this CLAUSE (viii) shall not for purposes of this Agreement exceed
the greater of the book value or the fair market value of the properties or
assets subject to such Lien, (ix) all Guaranty Obligations of the subject
Person, (x) all Debt Equivalents of the subject Person, (xi) for purposes of
SECTIONS 7.01 and 8.01(e) only, all Derivatives Obligations (which may be
positive or negative) of the subject Person (determined at their then respective
Derivatives Termination Values) and (xii) the Debt of another Person (including
any partnership in which the subject Person is a general partner and any
unincorporated joint venture in which the subject Person is a joint venturer) to
the extent the subject Person would be liable therefor under applicable law or
any agreement or instrument by virtue of the subject Person's ownership interest
in or other relationship with such entity, except to the extent the terms of
such Debt provide that the subject Person shall not be liable therefor; PROVIDED
that (i) Debt shall not include (A) deferred compensation arrangements, (B)
earn-out obligations until matured or earned, (C) non-compete or consulting
obligations incurred in connection with Permitted Business Acquisitions, or (D)
other than for purposes of SECTIONS 7.01 and 8.01(e), the Franchisee Buy-Back
Arrangements and Franchisee Guaranty Obligations to the extent permitted by
SECTION 7.01(x), and (ii) the amount of any Limited Recourse Debt of the subject
Person shall be equal to the aggregate principal amount of such Limited Recourse
Debt for which the subject Person provides credit support of any kind (including
any undertaking agreement or instrument that would constitute Debt) or is
directly or indirectly liable as a guarantor or otherwise.
"DEBT EQUIVALENTS" of any Person means (i) any Equity Interest of such
Person which by its terms (or by the terms of any security for which it is
convertible or for which it is exchangeable or exercisable), or upon the
happening of any event or otherwise (including an event which would constitute
-19-
a Change of Control), (A) matures or is mandatorily redeemable or subject to any
mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B)
is convertible into or exchangeable for Debt or Debt Equivalents or (C) is
redeemable or subject to any repurchase requirement arising at the option of the
holder thereof, in whole or in part, on or prior to the first anniversary of the
latest of the Revolving Termination Date, the Term A Maturity Date or the Term B
Maturity Date and (ii) if such Person is a Subsidiary of the Parent Borrower,
any Preferred Stock of such Person.
"DEBT ISSUANCE" means the issuance by any Group Company of any Debt.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DEFAULTING LENDER" means at any time any Lender that, within one
Business Day of when due, (i) has failed to make a Loan, purchase a
Participation Interest in a Swingline Loan or an LC Obligation or accept or
purchase a Bankers' Acceptance required pursuant to the terms of this Agreement,
(ii) other than as set forth in CLAUSE (i) above, has failed to pay to any
Administrative Agent, any Collateral Agent or any Lender an amount owed by such
Lender pursuant to the terms of the Agreement or any other Senior Finance
Document unless such amount is subject to a good faith dispute or (iii) has been
deemed insolvent or has become subject to a receivership or insolvency event.
"DERIVATIVES AGREEMENT" means (i) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement and (ii) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement or any other master agreement.
"DERIVATIVES CREDITOR" means any Lender or any Affiliate of any Lender
from time to time party to one or more Derivatives Agreements permitted
hereunder with a Credit Party (even if any such Lender for any reason ceases
after the execution of such agreement to be a Lender hereunder), and its
successors and assigns, and "DERIVATIVES CREDITORS" means any two or more of
them, collectively.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations
(including, without limitation, any amounts which accrue after the commencement
of any bankruptcy or insolvency proceeding with respect to such Person, whether
or not allowed or allowable as a claim under any bankruptcy or insolvency
proceeding) of such Person in respect of any Derivatives Agreement, excluding
any amounts which such Person is entitled to set-off against its obligations
under applicable Law or the terms of such Derivative Agreement.
"DERIVATIVES TERMINATION VALUE" means, at any date and in respect of
any one or more Derivatives Agreements, after taking into account the effect of
any legally enforceable netting agreements relating to such Derivatives
Agreements, (i) for any date on or after the date such Derivatives Agreements
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (ii) for any date prior to the date
referenced in CLAUSE (i), the amount(s) determined as the
-20-
▇▇▇▇-to-market value(s) for such Derivatives Agreements, as determined based
upon one or more mid-market or other readily available quotations provided by
any recognized dealer in such Derivatives Agreements (which may include any
Lender).
"DISINTERESTED DIRECTOR" means with respect to any transaction or
series of related transactions, a member of the board of directors of the Parent
Borrower who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"DRAFT" means a ▇▇▇▇▇ ▇▇▇▇ of exchange (or note, as the case may be),
within the meaning of the Bills of Exchange Act (Canada), or a depository ▇▇▇▇
(or note, as the case may be), within the meaning of the Depository Bills and
Notes Act (Canada), in each case drawn (or made) by the Parent Borrower on (or
in favor of) a Canadian Revolving Lender, denominated in Canadian Dollars and
bearing such distinguishing letters and numbers as such Canadian Revolving
Lender may determine, but which at such time, except as otherwise provided
herein, has not been completed or accepted by such Canadian Revolving Lender.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with SECTION 10.18.
"ELIGIBLE ASSIGNEE" means (i) any Lender, (ii) any Affiliate of a
Lender, (iii) any Approved Fund and (iv) any other commercial bank, finance
company, insurance company or other financial institution or fund (other than a
natural Person) approved by (A) in the case of any assignment of a Term B Loan,
or a Term B Commitment, the Term B Administrative Agent or, in the case of any
assignment of a U.S. Revolving Loan, U.S. Revolving Commitment, Canadian
Revolving Loan, Canadian Revolving Commitment, Banker's Acceptance, Term A Loan,
or a Term A Commitment, the Canadian Administrative Agent, (B) in the case of
any assignment of any Revolving Loan or Revolving Commitment (1) the U.S.
Issuing Lender and the U.S. Swingline Lender (in the case of any assignment of a
U.S. Revolving Loan or U.S. Revolving Commitment), or (2) the Canadian Issuing
Lender and the Canadian Swingline Lender (in the case of any assignment of a
Canadian Revolving Loan or a Canadian Revolving Commitment), and (C) unless (x)
the assignment is being made to such person by an Agent, Initial Lender or any
of their respective Affiliates, on or prior to the Syndication Date or (y) a
Default or Event of Default has occurred and is continuing at the time any
assignment is effected pursuant to SECTION 10.06(b), the Parent Borrower (each
such approval not to be unreasonably withheld, conditioned or delayed and any
such approval required of the Parent Borrower to be deemed given by the Parent
Borrower if no objection from the Parent Borrower is received by the assigning
Lender and the relevant Administrative Agent within two Business Days after
notice of such proposed assignment has been provided by the assigning Lender to
the Parent Borrower); PROVIDED, HOWEVER, that (i) if Deutsche Bank Trust Company
Americas or National Bank of Canada or one or more of their respective
Affiliates is an Issuing Lender, any assignment of a Revolving Commitment
(including any assignment to a Lender, an Affiliate of a Lender or an Approved
Fund) shall require their respective consent, (ii) the Parent Borrower and its
Affiliates shall not qualify as Eligible Assignees, (iii) no assignment of
Canadian Revolving Loans, Canadian Revolving Commitments, Term A Loans or Term A
Commitments may be made to a Person unless that Person (x) in the case of
assignment of Canadian Revolving Loans or Canadian Revolving Commitments, both
has the ability to make Loans in Canadian Dollars and is a Canadian Resident and
(y) in the case of assignment of Term A Loans or Term A Commitments, is a
Canadian Resident, and (iv) no Person shall be an Eligible Assignee if such
Person appears on the list of Specially Designated Nationals and Blocked Persons
prepared by the U.S. Treasury Department's Office of Foreign Assets Control or
the purchase by such Person of an assignment or the performance by any Agent of
its duties under the Senior Finance Documents with respect to such Person
violates or would violate any Anti-Terrorism Law.
-21-
"EMPLOYEE BENEFIT ARRANGEMENTS" means in any jurisdiction the benefit
schemes or arrangements in respect of any employees or past employees operated
by any Group Company or in which any Group Company participates and which
provide benefits on retirement, ill-health, injury, death or voluntary
withdrawal from or termination of employment, including termination indemnity
payments and life assurance and post-retirement medical benefits other than
Plans.
"ENVIRONMENTAL LAWS" means any international, foreign, Federal, state,
provincial or local statute, treaty, rule, regulation, ordinance, or code of any
Governmental Authority relating to the environment, including the protection of
natural resources, response to the release or threatened release of any
Hazardous Material into the environment and health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of remediation, fines, penalties or
indemnities), of any Group Company directly or indirectly resulting from or
based on (i) violation of any Environmental Law, (ii) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material, (iii) exposure to any Hazardous Material, (iv) the release or
threatened release, presence or migration of any Hazardous Material into the
environment or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY EQUIVALENTS" means with respect to any Person any rights,
warrants, options, convertible securities, exchangeable securities, indebtedness
or other rights, in each case exercisable for or convertible or exchangeable
into, directly or indirectly, Equity Interests of such Person or securities
exercisable for or convertible or exchangeable into Equity Interests of such
Person, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"EQUITY INTERESTS" means all shares of capital stock, partnership
interests (whether general or limited), limited liability company membership
interests, beneficial interests in a trust and any other interest or
participation that confers on a Person the right to receive a share of profits
or losses, or distributions of assets, of an issuing Person, but excluding any
debt securities convertible into such Equity Interests.
"EQUITY ISSUANCE" means (i) any sale or issuance by any Group Company
to any Person other than the Parent Borrower or a Subsidiary of the Parent
Borrower of any Equity Interests or any Equity Equivalents (other than any such
Equity Equivalents that constitute Debt) and (ii) the receipt by any Group
Company of any cash capital contributions, whether or not paid in connection
with any issuance of Equity Interests of any Group Company, from any Person
other than the Parent Borrower or a Subsidiary of the Parent Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any rule or regulation issued thereunder.
"ERISA AFFILIATE" means each business or entity which is a member of a
"controlled group of corporations", under "common control" or an "affiliated
service group" with a Group Company within the meaning of Section 414(b), (c) or
(m) of the Code, or required to be aggregated with a Group Company under Section
414(o) of the Code or is under "common control" with a Group Company, within the
meaning of Section 4001(a)(14) of ERISA.
"ERISA EVENT" means:
(i) a reportable event as defined in Section 4043 of ERISA and
the regulations issued under such Section, with respect to a Plan,
excluding, however, such events as
-22-
to which the PBGC by regulation has waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of
such event;
(ii) the requirements of Section 4043(b) of ERISA apply with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of any Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days;
(iii) the failure to meet the minimum funding standard of
Section 412 of the Code with respect to any Plan (whether or not waived in
accordance with Section 412(d) of the Code), the application for a minimum
funding waiver under Section 303 of ERISA with respect to any Plan, the
failure to make by its due date a required installment under Section 412(m)
of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan;
(iv) the incurrence of any material liability by a Group
Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), or the occurrence or existence of
any event, transaction or condition that could reasonably be expected to
result in the incurrence of any such material liability by a Group Company
or any ERISA Affiliate, or in the imposition of any lien on any of the
rights, properties or assets of a Group Company or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty or excise
tax provisions of the Code or to Section 401(a)(29) or 412 of the Code;
(v) the provision by the administrator of any Plan of a notice
pursuant to Section 4041(a)(2) of ERISA by the PBGC (or the reasonable
expectation of such provision of notice) of intent to terminate such Plan
in a distress termination described in Section 4041(c) of ERISA, the
institution by the PBGC of proceedings to terminate any Plan or the
occurrence of any event or condition which might constitute grounds under
ERISA for the termination of, or the appointment of a trustee by the PBGC
to administer, any Plan;
(vi) the withdrawal of a Group Company or ERISA Affiliate in a
complete or partial withdrawal (within the meaning of Section 4203 and 4205
of ERISA) from any Multiemployer Plan if there is any potential liability
therefor, or the receipt by a Group Company or ERISA Affiliate of notice
from any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate
or has terminated under Section 4041A or 4042 of ERISA;
(vii) the imposition of liability (or the reasonable expectation
thereof) on a Group Company or ERISA Affiliate pursuant to Section 4062,
4063, 4064 or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA;
(viii) the assertion of a material claim (other than routine
claims for benefits) against any Plan other than a Multiemployer Plan or
the assets thereof, or against a Group Company or ERISA Affiliate in
connection with any Plan;
(ix) the receipt from the United States Internal Revenue
Service of notice of the failure of any Plan (or any other Employee Benefit
Arrangement intended to be qualified under Section 401(a) of the Code) to
qualify under Section 401(a) of the Code, or the failure of any trust
forming part of any Plan to qualify for exemption from taxation under
Section 501(a) of the Code, and, with respect to Multiemployer Plans,
notice thereof to any Group Company; and
-23-
(x) the establishment or amendment by a Group Company or ERISA
Affiliate of any Welfare Plan that provides post-employment welfare
benefits in a manner that would materially increase the liability of a
Group Company as reflected on the consolidated balance sheet of the Parent
Borrower and its Consolidated Subsidiaries.
"EURODOLLAR LOAN" means at any date a U.S. Dollar-Denominated Loan
which bears interest at a Eurodollar Rate.
"EURODOLLAR RATE" means, for any Eurodollar Loan for the Interest
Period applicable thereto:
(i) the rate per annum equal to the rate determined by the
relevant Administrative Agent to be the offered rate (rounded upwards to
the next 1/16th of 1%) that appears on the page 3750 of the Telerate screen
(or any successor thereto) for deposits in U.S. Dollars (for delivery on
the first day of such Interest Period) for a period of time comparable to
such Interest Period, determined as of approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period; or
(ii) if the rate referred to in CLAUSE (i) above does not
appear on such Telerate page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by the
relevant Administrative Agent to be the offered rate on such other page or
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in U.S. Dollars (for delivery on the first day
of such Interest Period) for a period of time comparable to such Interest
Period, determined as of approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period; or
(iii) if the rates referenced in the preceding CLAUSES (i) and
(ii) are not available, the rate per annum determined by the relevant
Administrative Agent as the rate of interest (rounded upwards to the next
1/16th of 1%) at which deposits in U.S. Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Loan being made, continued or converted by the relevant
Administrative Agent, and with a term equivalent to such Interest Period as
would be offered by the relevant Administrative Agent's London branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any other entity succeeding
to the functions currently performed thereby) for determining the maximum
reserve requirement for a member bank of the Federal Reserve System in New York
City with deposits exceeding five billion U.S. Dollars in respect of "Eurodollar
liabilities" (or in respect of any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents), whether or not a Lender has any Eurodollar liabilities subject to
such reserve requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurodollar liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for prorations, exceptions or offsets
that may be available from time to time to a Lender. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 8.01.
-24-
"EXCESS CASH FLOW" means for any period an amount equal to (i)
Consolidated EBITDA for such period plus (ii) all cash extraordinary gains, if
any, during such period (whether or not accrued in such period), all business
interruption insurance proceeds, if any, and (without duplication) cash gains
attributable to Asset Dispositions out of the ordinary course of business, if
any, of the Parent Borrower and its Consolidated Subsidiaries during such period
to the extent not otherwise included in Consolidated EBITDA for such period and
not required to be utilized in connection with a repayment or prepayment of the
Loans made or to be made pursuant to SECTION 2.10(b)(iv) or permitted to be
reinvested pursuant to SECTION 2.10(c), plus (iii) the decrease, if any, in
Consolidated Adjusted Working Capital from the first day to the last day of such
period, plus (iv) the net increase in deferred tax accounts from the first day
to the last day of such period, minus (v) the amount, if any, which, in the
determination of Consolidated Net Income for such period, has been included in
respect of income or gain from Asset Dispositions of the Parent Borrower and its
Consolidated Subsidiaries to the extent utilized to repay or prepay Loans
pursuant to SECTION 2.10(b)(v), minus (vi) the aggregate amount (without
duplication and in each case except to the extent paid, directly or indirectly,
with proceeds of any Equity Issuance or Debt Issuance (other than Revolving
Loans or Swingline Loans) by any Group Company) of (A) cash payments during such
period in respect of Consolidated Capital Expenditures allowed under SECTION
7.14, (B) cash payments during such period in respect of Permitted Business
Acquisitions allowed under SECTION 7.06(a)(xiv), (C) optional prepayments of the
Term A Loans and Term B Loans, (D) repayments or prepayments of the Revolving
Loans and Swingline Loans to the extent the Revolving Commitments and the
Swingline Commitments are permanently reduced at the time of such payment, (E)
Consolidated Scheduled Debt Payments actually paid by the Parent Borrower and
its Consolidated Subsidiaries during such period, (F) Consolidated Cash Interest
Expense actually paid by the Parent Borrower and its Consolidated Subsidiaries
during such period, (G) Consolidated Cash Taxes actually paid by the Parent
Borrower during such period, (H) the aggregate amount of all Restricted Payments
allowed under SECTIONS 7.07(ii) (to the extent paid to a Person other than the
Parent Borrower or a Subsidiary thereof) and 7.07(iii) actually paid in cash
during such period, and (I) Transaction related expenditures described on
SCHEDULE 1.01B and actually paid in cash by the Parent Borrower and its
Consolidated Subsidiaries during such period, in each case to the extent added
to Consolidated Net Income in the determination of Consolidated EBITDA for such
period, minus (vii) all cash extraordinary losses, if any, during such period
(whether or not accrued in such period), minus (viii) the increase, if any, in
Consolidated Adjusted Working Capital from the first day to the last day of such
period, minus (ix) the net decrease in deferred tax accounts from the first day
to the last day of such period.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXCHANGE RATE" means on any day, (a) with respect to Canadian
Dollars, for purposes of any provision of this Agreement requiring or permitting
the conversion of Loans denominated in Canadian Dollars to U.S.
Dollar-Denominated Loans or LC Obligations denominated in Canadian Dollars or BA
Reimbursement Obligations into U.S. Dollars, the rate at which such currency may
be exchanged into U.S. Dollars (or for purposes of any provision of this
Agreement requiring or permitting the conversion of U.S. Dollar-Denominated
Loans into Loans denominated in Canadian Dollars or LC Obligations denominated
in U.S. Dollars into Canadian Dollars, the rate at which U.S. Dollars may be
exchanged into Canadian Dollars), which shall be the quoted noon mid-market spot
rate of exchange of the Bank of Canada on the Business Day immediately preceding
such date for the conversion of U.S. Dollars; PROVIDED that if at the time of
any such determination, for any reason, no such spot rate is being quoted, the
Canadian Administrative Agent may use any method it deems reasonably appropriate
to determine such rate, and such determination shall be presumed correct absent
manifest error and (b) with respect to any Agreed Foreign Currency, for purposes
of any provision of this Agreement requiring or permitting the conversion of LC
Obligations denominated in such Agreed Foreign Currency into U.S. Dollars or
Canadian Dollars, as the case may be, the rate at which such currency may be
exchanged into
-25-
U.S. Dollars or Canadian Dollars, as the case may be, which shall be the
mid-market spot rate of exchange announced or quoted by the Canadian
Administrative Agent in the relevant market at or around noon on the Business
Day immediately preceding such date for the conversion of such currency;
PROVIDED that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Canadian Administrative Agent may use any method
it deems reasonably appropriate to determine such rate, and such determination
shall be presumed correct absent manifest error.
"EXCLUDED ASSET DISPOSITION" means an Asset Disposition permitted
pursuant to any one or more of CLAUSES (i) through (vi) and (viii) through (x)
of SECTION 7.05.
"EXCLUDED EQUITY ISSUANCE" means any of the following: (i) any
issuance by any Subsidiary of the Parent Borrower of its Equity Interests to the
Parent Borrower or any other Wholly-Owned Subsidiary of the Parent Borrower,
(ii) the receipt by any Subsidiary of the Parent Borrower of a capital
contribution from the Parent Borrower or a Subsidiary of the Parent Borrower and
(iii) any Qualifying Equity Issuance by the Parent Borrower and (iv) any
issuance of Equity Interests to qualify directors where required by applicable
Law or to satisfy other requirements of applicable Law with respect to the
ownership of Equity Interests of Foreign Subsidiaries.
"EXCLUDED TAXES" means with respect to any Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (i) income or franchise taxes imposed on (or measured
by) its net income by any jurisdiction under the laws of which such Agent, such
Lender or such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its Applicable Lending Office is
located, (ii) any branch profits taxes imposed by the United States or Canada
(or any province thereof) or any similar tax imposed by any other jurisdiction
described in clause (i) above, (iii) capital taxes imposed on (or measured by)
taxable capital imposed by Canada or any province thereof and (iv) only in the
case of either a Canadian Resident described in clause (b) of the definition of
"Canadian Resident" (i.e., an authorized foreign bank) or a non-resident of
Canada for purposes of the Income Tax Act (Canada), which in either case, has
rendered services pursuant to this Agreement from an establishment in Canada,
withholding that is required to be imposed on any fees paid to such Person for
such services pursuant to Section 105 of the regulations to the Income Tax Act
(Canada) or Section 1015R8 of the regulations to the Taxation Act (
Quebec).
"EXISTING CANADIAN LETTERS OF CREDIT" means the letters of credit
denominated in Canadian Dollars issued before the Closing Date and described by
date of issuance, letter of credit number, undrawn amount, name of beneficiary
and date of expiry on SCHEDULE 2.05 hereto, and "EXISTING CANADIAN LETTER OF
CREDIT" means any one of them.
"EXISTING DEBT" has the meaning set forth in SECTION 7.01(i).
"EXISTING LETTERS OF CREDIT" means, collectively, Existing Canadian
Letters of Credit and Existing U.S. Letters of Credit, and "EXISTING LETTER OF
CREDIT" means any one of them.
"EXISTING U.S. LETTERS OF CREDIT" means the letters of credit
denominated in U.S. Dollars issued before the Closing Date and described by date
of issuance, letter of credit number, undrawn amount, name of beneficiary and
date of expiry on SCHEDULE 2.05 hereto, and "EXISTING U.S. LETTER OF CREDIT"
means any one of them.
"FAILED LOAN" has the meaning set forth in SECTION 2.03(e).
"FEDERAL FUNDS RATE" means for any day the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal
-26-
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; PROVIDED that (i) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the relevant Administrative Agent on such day on such
transactions as determined by the relevant Administrative Agent.
"FINANCE DOCUMENT" means each Senior Finance Document and each
Derivatives Agreement between one or more Credit Parties and a Derivatives
Creditor evidencing Derivatives Obligations permitted hereunder, and "FINANCE
DOCUMENTS" means all of them, collectively.
"FINANCE OBLIGATIONS" means, at any date, (i) all Senior Obligations
and (ii) all Derivatives Obligations of a Credit Party permitted hereunder owed
or owing to any Derivatives Creditor, in each case whether now or hereafter due,
owing or incurred in any manner, whether actual or contingent, whether incurred
solely or jointly with any other Person and whether as principal or surety (and
including all liabilities in connection with any notes, bills or other
instruments accepted by any Finance Party in connection therewith), together in
each case with all renewals, modifications, consolidations or extensions
thereof.
"FINANCE PARTY" means each Lender, each Swingline Lender, each Issuing
Lender, each Derivatives Creditor, each Agent and each Indemnitee and their
respective successors and assigns, and "FINANCE PARTIES" means any two or more
of them, collectively.
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio,
calculated on a Pro-Forma Basis, of (i) Consolidated EBITDA less the aggregate
amount of Consolidated Capital Expenditures for such period (exclusive of the
portion thereof financed with the Net Cash Proceeds of Equity Issuances and/or
Asset Dispositions made during such period to the extent such Net Cash Proceeds
are not required to be applied to repay Loans pursuant to SECTION 2.10(b) or
(c)) to (ii) Consolidated Fixed Charges for such period.
"FOREIGN CURRENCY LC EXPOSURE" means a Canadian Foreign Currency LC
Exposure or a U.S. Foreign Currency LC Exposure.
"FOREIGN CURRENCY LETTER OF CREDIT" means a Canadian Foreign Currency
Letter of Credit or a U.S. Foreign Currency Letter of Credit, and "FOREIGN
CURRENCY LETTERS OF CREDIT" means any combination of the foregoing.
"FOREIGN SUBSIDIARY" means, with respect to any Person, any Subsidiary
of such Person that is not a U.S. Subsidiary of such Person; PROVIDED that no
Subsidiary of the Parent Borrower that is not also a Subsidiary of the U.S.
Borrower shall be deemed to be a Foreign Subsidiary.
"FRANCHISEE BUY-BACK ARRANGEMENTS" means inventory, furniture,
fixtures and equipment buy-back arrangements entered into in the ordinary course
of the Parent Borrower's business in favor of the lenders of the Canadian
drugstore franchisees of the Parent Borrower.
"FRANCHISEE BUY-BACK LIMIT" means (x) for the fiscal year 2005 of the
Parent Borrower, US$130,000,000, (y) for the fiscal year 2006 of the Parent
Borrower, US$150,000,000 and (z) thereafter, US$l75,000,000.
-27-
"FRANCHISEE GUARANTY OBLIGATIONS" means the obligation of the Parent
Borrower entered into in the ordinary course of the Parent Borrower's business
to guarantee the obligations of any of its Canadian drugstore franchisees.
"FRANCHISEE GUARANTY LIMIT" means (x) for the fiscal year 2005 of the
Parent Borrower, US$20,000,000, (y) for the fiscal year 2006 of the Parent
Borrower, US$22,500,000 and (z) thereafter, US$25,000,000.
"FUNDED DEBT" means, with respect to any Person, all Debt of such
Person (including, in respect of the Credit Parties, the Senior Obligations)
that by its terms matures more than one year after the date of its creation or
matures within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or arises
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during any period (which may be more or less than one
year after such date), including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the date of
determination.
"GAAP" means, at any time, generally accepted accounting principles as
then in effect in Canada, applied on a basis consistent (except for changes with
which the Parent Borrower's independent public accountants have concurred) with
the most recent audited consolidated financial statements of the Parent Borrower
and its Consolidated Subsidiaries previously delivered to the Lenders.
"GLOBAL TRANSACTION COORDINATOR" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated as global transaction coordinator, and its successor or
successors in such capacity.
"GOVERNMENT ACTS" has the meaning set forth in SECTION 2.05(q)(i).
"GOVERNMENTAL AUTHORITY" means any international, Federal, state,
local, provincial or foreign government, authority, agency, central bank,
quasi-governmental or regulatory authority, court or other body or entity, and
any arbitrator with authority to bind a party at Law.
"GROUP COMPANY" means any of the Parent Borrower, the U.S. Borrower or
their respective Subsidiaries (regardless of whether or not consolidated with
the Parent Borrower for purposes of GAAP), and "GROUP COMPANIES" means all of
them, collectively.
"GROUP OF LOANS" means, at any time, a group of Loans of a particular
Class consisting of (i) all Loans which are Base Rate Loans at such time, (ii)
all Loans which are C$ Prime Loans at such time or (iii) all Loans which are
Eurodollar Loans having the same Interest Period at such time; PROVIDED that, if
a Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to ARTICLE III, such Loan shall be included in the same Group or Group
of Loans from time to time as it would have been had it not been so converted or
made.
"GUARANTY" means a Guaranty, substantially in the form of EXHIBIT E
hereto, by the Parent Borrower, the U.S. Borrower and all other Subsidiaries of
the Parent Borrower in favor of the Administrative Agents for the benefit of the
Finance Parties, as the same may be amended, modified or supplemented from time
to time, and "GUARANTIES" means any two or more of them.
"GUARANTY OBLIGATION" means, with respect to any Person, without
duplication, any obligation (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guarantying,
intended to guaranty, or having the economic effect of guarantying, any Debt or
other obligation of any other Person in any manner, whether direct or indirect,
and including, without limitation, any obligation, whether or not contingent
(including, for the avoidance of doubt,
-28-
Franchisee Guaranty Obligations), (i) to purchase any such Debt or other
obligation or any property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase of such indebtedness
or obligation or to maintain working capital, solvency or other balance sheet
condition of such other Person (including, without limitation, maintenance
agreements, comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of Debt or other
obligation of such other Person, (iii) to lease or purchase property, securities
or services primarily for the purpose of assuring the owner of such Debt or
other obligation (including, for the avoidance of doubt, Franchisee Buy-Back
Arrangements), or (iv) to otherwise assure or hold harmless the owner of such
Debt or obligation against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or maximum
principal amount, if larger) of the Debt or other obligation in respect of which
such Guaranty Obligation is made.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
waste regulated pursuant to any Environmental Law, and any hazardous or toxic
substances, waste or other pollutant or environmental contaminant, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, medical, pharmaceutical and pathological
waste and any other substance, material or waste of any nature regulated
pursuant to any Environment Law.
"INCOME TAX ACT (CANADA)" means Income Tax Act (Canada), RSC 1985, c.1
(5th Supp.), as amended, and the regulations thereunder.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 10.05.
"INDEMNITEE" has the meaning set forth in SECTION 10.05.
"INITIAL LENDERS" means any of Deutsche Bank Trust Company Americas,
Deutsche Bank AG, Canada ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Canada Inc., National Bank of Canada, New York Branch and National
Bank of Canada.
"INSURANCE PROCEEDS" means all insurance proceeds (other than business
interruption insurance proceeds), damages, awards, claims and rights of action
with respect to any Casualty.
"INTERCOMPANY NOTE" means a promissory note contemplated by SECTION
7.06(a)(x) or (xi), substantially in the form of EXHIBIT G hereto, and
"INTERCOMPANY NOTES" means any two or more of them.
"INTEREST PAYMENT DATE" means (i) as to Base Rate Loans and C$ Prime
Loans, the second Business Day of each fiscal quarter of the Parent Borrower and
the Maturity Date for Loans of the applicable Class and (ii) as to Eurodollar
Loans, the last day of each applicable Interest Period and the Maturity Date for
Loans of the applicable Class, and, in addition, where the applicable Interest
Period for a Eurodollar Loan is greater than three months, then also the date
three months from the beginning of the Interest Period and each three months
thereafter.
"INTEREST PERIOD" means, with respect to each Eurodollar Loan, a
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of
Extension/Conversion and ending one, two, three, six or, with the consent of all
Lenders of the relevant Class, twelve months thereafter, as the applicable
Borrower may elect in the applicable notice; PROVIDED that:
-29-
(i) any Interest Period which would otherwise end on a day
which is not a Business Day for the relevant currency shall, subject to
CLAUSE (v) below, be extended to the next succeeding Business Day for such
currency unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day for
such currency;
(ii) any Interest Period which begins on the last Business Day
for the relevant currency in 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 for the relevant
currency of a calendar month;
(iii) no Interest Period in respect of Term Loans may be
selected which extends beyond a Principal Amortization Payment Date for
Loans of the applicable Class unless, after giving effect to the selection
of such Interest Period, the aggregate principal amount of Term Loans of
the applicable Class which are comprised of Base Rate Loans together with
such Term Loans comprised of Eurodollar Loans with Interest Periods
expiring on or prior to such Principal Amortization Payment Date are at
least equal to the aggregate principal amount of Term Loans of the
applicable Class due on such date;
(iv) no Interest Period may be elected with respect to U.S.
Dollar-Denominated Loans at any time when a Default or an Event of Default
is then in existence; and
(v) no Interest Period shall be elected which would end after
the Maturity Date for Loans of the applicable Class.
"INVESTMENT" in any Person means (i) the acquisition (whether for
cash, property, services, assumption of Debt, securities or otherwise) of
assets, shares of Capital Stock, bonds, notes, debentures, time deposits or
other securities of such Person, (ii) any deposit with, or advance, loan or
other extension of credit to or for the benefit of such Person (other than
deposits made in connection with the purchase of equipment or inventory in the
ordinary course of business) or (iii) any other capital contribution to or
investment in such Person, including by way of Guaranty Obligations of any
obligation of such Person, any support for a letter of credit issued on behalf
of such Person incurred for the benefit of such Person or any release,
cancellation, compromise or forgiveness in whole or in part of any Debt owing by
such Person. The outstanding amount of any Investment shall be deemed to equal
the difference of (i) the aggregate initial amount of such Investment less (ii)
all returns of principal thereof or capital with respect thereto and all
liabilities expressly assumed by another Person (and with respect to which the
Parent Borrower and its Subsidiaries, as applicable, shall have received a
novation) in connection with the sale of such Investment.
"ISSUING LENDER" means (i) the Canadian Issuing Lender, and (ii) the
U.S. Issuing Lender.
"JUDGMENT CURRENCY" has the meaning set forth in SECTION 10.20.
"JUDGMENT CURRENCY CONVERSION DATE" has the meaning set forth in
SECTION 10.20.
"LANDLORD ESTOPPEL AND CONSENT" means, with respect to any Leased
Mortgaged Property, a Landlord Estoppel and Consent, substantially in the form
of EXHIBIT M hereto, or other letter, certificate or other instrument in writing
from the lessor under the related lease, satisfactory in form and substance to
the relevant Collateral Agent.
-30-
"LAW" means any international, foreign, Federal, state, provincial or
local statute, treaty, rule, guideline, regulation, ordinance, code, or
administrative or judicial precedent or authority, including the interpretation
or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and consent agreements and similar settlement agreements with, any
Governmental Authority, in each case whether or not having the force of Law.
"▇▇ ▇▇▇▇ COLLATERAL ACCOUNTS" means, collectively, the Canadian ▇▇
▇▇▇▇ Collateral Account and the U.S. ▇▇ ▇▇▇▇ Collateral Account.
"LC COMMITMENTS" means, collectively, the Canadian LC Commitment and
the U.S. LC Commitment.
"LC DISBURSEMENTS" means collectively, the Canadian LC Disbursements
and the U.S. LC Disbursements and "LC DISBURSEMENT" means either one of them, as
applicable.
"LC DOCUMENTS" means collectively, the Canadian LC Documents and the
U.S. LC Documents and "LC DOCUMENT" means either one of them, as applicable.
"LC OBLIGATIONS" means collectively, the Canadian LC Obligations and
the U.S. LC Obligations.
"LEAD ARRANGERS" means, collectively, the Canadian Joint Lead
Arrangers and the U.S. Joint Lead Arrangers.
"LEASED MORTGAGED PROPERTY" and "LEASED MORTGAGED PROPERTIES" mean,
collectively, the Canadian Leased Mortgaged Property and U.S. Leased Mortgage
Property and Canadian Leased Mortgaged Properties and U.S. Leased Mortgaged
Properties, respectively.
"LEASEHOLDS" means, with respect to any Person, all of the right,
title and interest of such Person as lessee or licensee in, to and under leases
or licenses of land, improvements and/or fixtures.
"LENDER" means each bank or other lending institution listed on
SCHEDULE 1.0lA (each of which shall satisfy the requirements of an Eligible
Assignee), each Eligible Assignee that becomes a Lender pursuant to SECTION
10.06(b) and their respective successors and shall include, as the context may
require, each Swingline Lender in such capacity and each Issuing Lender in such
capacity.
"LETTER OF CREDIT" means a Canadian Letter of Credit or a U.S. Letter
of Credit, and "LETTERS OF CREDIT" means any combination of the foregoing.
"LETTER OF CREDIT REQUEST" has the meaning set forth in SECTION
2.05(c).
"LEVERAGE RATIO" means on any day the ratio of (i) Consolidated Debt
as of such date less the Sinking Fund Deposits held in cash or Cash Equivalents
in the Sinking Fund Account to (ii) Consolidated EBITDA for the four consecutive
fiscal quarters of the Parent Borrower ended on, or most recently preceding,
such day.
"LIEN" means, with respect to any asset, any mortgage, pledge,
hypothec, assignment, deposit arrangement, lien (statutory or other) or other
security interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any
-31-
financing statement under the Uniform Commercial Code or comparable Laws of any
jurisdiction). Solely for the avoidance of doubt, the filing of a Uniform
Commercial Code or comparable Laws financing statement that is a protective
lease filing in respect of an operating lease that does not constitute a
security interest in the leased property or otherwise give rise to a Lien does
not constitute a Lien solely on account of being filed in a public office.
"LIMITED RECOURSE DEBT" means, with respect to any Person, Debt to the
extent: (i) such Person (A) provides no credit support of any kind (including
any undertaking, agreement or instrument that would constitute Debt), or (B) is
not directly or indirectly liable as a guarantor or otherwise; and (ii) no
default with respect thereto would permit upon notice, lapse of time or both any
holder of any other Debt (other than the Loans or the Notes) of such Person to
declare a default on such other Debt or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"LOAN" means a Revolving Loan, a Term A Loan, a Term B Loan or a
Swingline Loan (or a portion of any Revolving Loans, Term A Loans, Term B Loans
or Swingline Loans), individually or collectively as appropriate; PROVIDED that,
if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Extension/Conversion, the term "LOAN" shall refer to the
combined principal amount resulting from such combination or to each of the
separate principal amounts resulting from such subdivision, as the case may be.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect upon
the business, assets, financial condition, results of operations or, with
respect to any provision of this Agreement other than SECTION 4.01, prospects of
the Parent Borrower and its Consolidated Subsidiaries, taken as a whole (or
solely for the purposes of SECTION 4.01, Target and its Consolidated
Subsidiaries, taken as a whole), (ii) a material adverse effect on the ability
of Target to consummate the transactions contemplated hereby to occur on the
Closing Date, (iii) a material impairment of the ability of any Credit Party to
perform any of its obligations under any Senior Finance Document to which it is
a party or (iv) a material impairment of the rights and benefits of the Lenders
under any Senior Finance Document.
"MATERIAL CREDIT PARTY" means a Credit Party which, together with its
Consolidated Subsidiaries, either (a) has assets representing 5% or more of the
Consolidated Total Assets or (b) generates 5% or more of the Consolidated EBITDA
of the Parent Borrower and its Consolidated Subsidiaries.
"MATERIAL MORTGAGED PROPERTY" means a Mortgaged Property that is a
Material Real Property.
"MATERIAL REAL PROPERTY" means, (a) in the case of any owned Real
Property, such Real Property that constitutes corporate headquarters of any
Material Credit Party, a distribution center or a warehouse or the fair market
value (or, in the case of SECTION 4.01 only, the book value) of which equals or
exceeds US$3,000,000, and (b) in the case of any leased Real Property, any such
Real Property that constitutes a distribution center, a warehouse or corporate
headquarters, or the annual rent for which equals or exceeds US$1,000,000.
"MATURITY DATE" means (i) as to Revolving Loans, the Revolving
Termination Date, (ii) as to Swingline Loans, the Canadian Swingline Termination
Date or the U.S. Swingline Termination Date, as applicable, (iii) as to Term A
Loans, the Term A Maturity Date and (iv) as to Term B Loans, the Term B Maturity
Date.
-32-
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware
corporation, and its successors or, absent any such successor, such nationally
recognized statistical rating organization as the Parent Borrower and the
Administrative Agents may select.
"MORTGAGE" means (i) in the case of owned real property interests, a
mortgage, deed of trust, or deed of hypothec, substantially in the form of, or
otherwise substantially identical in substance to, the provisions of EXHIBIT F-4
(in the case of a U.S. Mortgage), EXHIBIT F-7 (in the case of a Canadian
Mortgage covering properties situated in the Province of
Quebec) or EXHIBIT F-8
(in the case of a Canadian Mortgage covering properties situated in other
Canadian provinces) hereto, among any Credit Party, the relevant Collateral
Agent and one or more trustees (if applicable), as the same may be amended,
modified or supplemented from time to time, or (ii) in the case of a Leasehold,
a Leasehold mortgage or Leasehold deed of trust, substantially in the form of,
or otherwise substantially identical in substance to, the provisions of EXHIBIT
F-5 (in the case of a U.S. Mortgage), EXHIBIT F-7 (in the case of a Canadian
Mortgage covering properties situated in the Province of
Quebec) or EXHIBIT F-9
(in the case of a Canadian Mortgage covering properties situated in other
Canadian provinces) hereto, among any Credit Party, the relevant Collateral
Agent and one or more trustees (if applicable), as the same may be amended,
modified or supplemented from time to time. The term "MORTGAGE" shall include
the U.S. Mortgages and Canadian Mortgages.
"MORTGAGE POLICIES" has the meaning set forth in SECTION 4.01(j)
hereto.
"MORTGAGED PROPERTIES" means the real property interests of the Parent
Borrower and its Subsidiaries described in SECTION 4.01(j) hereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 3(37) or 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means:
(i) with respect to any Asset Disposition (other than an Asset
Disposition consisting of a lease where one or more Group Companies is
acting as lessor entered into in the ordinary course of business), Casualty
or Condemnation, (A) the gross U.S. Dollar Equivalent of all cash proceeds
(including Insurance Proceeds and Condemnation Awards in the case of any
Casualty or Condemnation) actually paid to or actually received by any
Group Company in respect of such Asset Disposition, Casualty or
Condemnation (including any cash proceeds received as income or other
proceeds of any noncash proceeds of any Asset Disposition, Casualty or
Condemnation as and when received), less (B) the sum of (w) the U.S. Dollar
Equivalent, if any, of all taxes (other than income taxes) and all income
taxes (as estimated in good faith by a senior financial or senior
accounting officer of the Parent Borrower giving effect to the overall tax
position of the Parent Borrower and its Subsidiaries) (to the extent that
the amount of such taxes shall have been set aside for the purpose of
paying such taxes when due), and customary fees, brokerage fees,
commissions, costs and other expenses (other than those payable to any
Group Company or Affiliates of any Group Company) that are incurred in
connection with such Asset Disposition, Casualty or Condemnation and are
payable by any Group Company, but only to the extent not already deducted
in arriving at the amount referred to in CLAUSE (i)(A) above, (x) the U.S.
Dollar Equivalent of all appropriate amounts that must be set aside as a
reserve in accordance with GAAP against any liabilities associated with
such Asset Disposition, Casualty or Condemnation, (y) if applicable, the
U.S. Dollar Equivalent of the amount of any Debt secured by a Permitted
Lien that has been repaid or refinanced in accordance with its terms with
the proceeds of such Asset Disposition, Casualty or Condemnation; and (z)
the U.S. Dollar Equivalent of any payments to be made by any Group Company
as agreed between such Group Company and the
-33-
purchaser of any assets subject to an Asset Disposition, Casualty or
Condemnation in connection therewith; and
(ii) with respect to any Equity Issuance or Debt Issuance, the
U.S. Dollar Equivalent of the gross amount of cash proceeds paid to or
received by any Group Company in respect of such Equity Issuance or Debt
Issuance as the case may be (including cash proceeds subsequently as and
when received at any time in respect of such Equity Issuance or Debt
Issuance from non-cash consideration initially received or otherwise), net
of underwriting discounts and commissions or placement fees, investment
banking fees, legal fees, consulting fees, accounting fees and other
customary fees and expenses directly incurred by any Group Company in
connection therewith (other than those payable to any Group Company or any
Affiliate of any Group Company).
"NON-EXTENSION NOTICE DATE" has the meaning set forth in SECTION
2.05(c).
"NOTE" means a U.S. Revolving Note, a Term B Note or a U.S. Swingline
Note, and "Notes" means any combination of the foregoing.
"NOTICE OF BORROWING" means a request by a Borrower for a Borrowing,
substantially in the form of EXHIBIT A-1 hereto, in the case of the U.S.
Borrower (or a U.S. Subsidiary Borrower), or substantially in the form of
EXHIBIT A-2 hereto, in the case of the Parent Borrower (or a Canadian Subsidiary
Borrower) (which may be by telephone if promptly confirmed in writing).
"NOTICE OF EXTENSION/CONVERSION" has the meaning set forth in SECTION
2.08.
"OBLIGATION CURRENCY" has the meaning set forth in SECTION 10.20.
"OPERATING LEASE" means, as applied to any Person, a lease (including
leases which may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) by such Person as lessee which is not a
Capital Lease.
"OPTIONAL CALCULATION DATE" has the meaning set forth in the
definition of "CURRENCY CALCULATION DATE" in this SECTION 1.01.
"OTHER TAXES" has the meaning set forth in SECTION 3.01(b).
"OWNED MORTGAGED PROPERTY" and "OWNED MORTGAGED PROPERTIES" have the
respective meanings set forth in SECTION 4.01(j).
"PARENT BORROWER" means The ▇▇▇▇ ▇▇▇▇▇ Group (PJC) Inc., a Quebec
corporation.
"PARENT BORROWER'S ACCOUNT" means (A) in relation to Term A Loans,
Canadian Revolving Loans, Canadian Swingline Loans, Canadian Letters of Credit
and Bankers' Acceptances, the Canadian Dollar account bearing account number
▇▇-▇▇▇-▇▇ and the US Dollar account bearing account number ▇▇-▇▇▇-▇▇ established
at the Canadian Administrative Agent's Branch, or such other account in Canada
at the Canadian Administrative Agent's Branch as the Canadian Administrative
Agent may specify from time to time and (B) in relation to Term B Loans, the
U.S. Dollar account bearing account number ▇▇▇▇▇▇▇▇ established at the Term B
Administrative Agent's Branch, or such other account in the United States at the
Term B Administrative Agent's Branch as the Term B Administrative Agent may
specify from time to time.
-34-
"PARTICIPATION INTEREST" means a Credit Extension by a Lender by way
of a purchase of a participation interest in Letters of Credit or LC Obligations
as provided in SECTION 2.05(a) or (e), in Swingline Loans as provided in SECTION
2.01(d)(vi) or in any Loans as provided in SECTION 2.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or
all of its functions under ERISA.
"PERFECTION CERTIFICATE" means a certificate, substantially in the
form of EXHIBIT F-1(a) to this Agreement in the case of a Material Credit Party
or EXHIBIT F-1(b) to this Agreement in the case of any other Credit Party, in
each case completed and supplemented with the schedules and attachments
contemplated thereby to the satisfaction of the Collateral Agents and duly
executed by the chief executive officer and the chief legal officer of such
Credit Party.
"PERMIT" means any license, permit, certificate, authorization,
franchise, right or privilege, certificate of authority or order, or any waiver
of the foregoing, issued or issuable by any Governmental Authority.
"PERMITTED BUSINESS ACQUISITION" means a Business Acquisition;
PROVIDED that:
(i) the Equity Interests or property or assets acquired in
such acquisition relate to a line of business similar to the business of
the Parent Borrower or any of its Subsidiaries engaged in on the Closing
Date or reasonably related, ancillary or complementary thereto;
(ii) the representations and warranties made by the Credit
Parties in each Senior Finance Document shall be true and correct in all
material respects (or in all respects in the case of such representations
or warranties containing materiality qualifiers) at and as of the date of
such acquisition (as if made on such date after giving effect to such
acquisition), except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct in all material respects at and as of
such earlier date);
(iii) each Administrative Agent or each Collateral Agent, as
applicable, shall have received all items in respect of the Equity
Interests or property or assets acquired in such acquisition (and/or the
seller thereof) required to be delivered by SECTION 6.10;
(iv) in the case of an acquisition of the Equity Interests of
another Person, (A) except in the case of the incorporation of a new
Subsidiary, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such acquisition and (B) the
Equity Interests acquired shall constitute 100% of the total Equity
Interests of the issuer thereof and its Subsidiaries (except in the case of
a Foreign Subsidiary permitted to be acquired pursuant to the terms of this
Agreement, directors' qualifying shares);
(v) no Default or Event of Default shall have occurred and be
continuing immediately before or immediately after giving effect to such
acquisition, and the Parent Borrower shall have delivered to the
Administrative Agents a Pro-Forma Compliance Certificate demonstrating
that, upon giving effect to such acquisition on a Pro-Forma Basis (with
pro-forma adjustments satisfactory to the Administrative Agents), (A) the
Parent Borrower shall be in compliance with all of the financial covenants
set forth in SECTION 7.19 hereof as of the last day of the most recent
period of four consecutive fiscal quarters of the Parent Borrower which
precedes or ends on the date of such acquisition and with respect to which
the Administrative Agents have received the consolidated financial
information required under SECTIONS 6.01(a) and (b) and the
-35-
certificate required by SECTION 6.01(c) and (B) the Leverage Ratio as of
the last day of such period shall not exceed the ratio set forth below
opposite such period:
PERIOD RATIO
------ -----
Closing Date through August 31, 2005 4.75 to 1.0
September 1, 2005 through November 30, 2005 4.50 to 1.0
December 1, 2005 through February 28, 2006 4.25 to 1.0
March 1, 2006 through February 28, 2007 4.00 to 1.0
March 1, 2007 through February 29, 2008 3.25 to 1.0
March 1, 2008 through February 28, 2009 3.00 to 1.0
March 1, 2009 and thereafter 2.50 to 1.0
(vi) the liabilities (determined in accordance with GAAP but in
any event including contingent obligations) acquired by the Parent Borrower
and its Subsidiaries on a consolidated basis in such acquisition and the
Debt issued by the Parent Borrower and its Subsidiaries on a consolidated
basis from such acquisition shall not exceed in the aggregate 20% of the
purchase price paid for the related Equity Interests or assets; and
(vii) after giving effect to such Business Acquisition, the U.S.
Dollar Amount of the aggregate consideration (including, cash, earn-out
payments, assumption of indebtedness and non-cash consideration) for the
acquisitions occurring after the Closing Date and on or before February 28,
2006 shall not exceed (x) US$100,000,000 for each individual acquisition
(or a series of related acquisitions) and (y) US$250,000,000 for all
acquisitions made during such period.
"PERMITTED ENCUMBRANCES" means (i) those liens, encumbrances and other
matters affecting title to any Mortgaged Property listed in the Mortgage
Policies in respect thereof and found, on the date of delivery of such Mortgage
Policies to the relevant Collateral Agent in accordance with the terms hereof,
reasonably acceptable by the relevant Collateral Agent, (ii) zoning, building
codes, land-use and other similar Laws and municipal ordinances which are not
violated in any material respect by the existing improvements and the present
use by the mortgagor of the Premises (as defined in the respective Mortgage) and
other immaterial encumbrances not impairing the use of the Premises (as defined
in the respective Mortgage), and (iii) such other items to which the relevant
Collateral Agent may consent (such consent not to be unreasonably withheld,
delayed or conditioned).
"PERMITTED HOLDERS" means (i) ▇▇. ▇▇▇▇ ▇▇▇▇▇, (ii) the spouse,
children or other lineal descendants (whether adoptive or biological) of
▇▇. ▇▇▇▇ ▇▇▇▇▇, (iii) any revocable or irrevocable intervivos or testamentary
trust or the probate estate of any individual named in CLAUSES (i) and (ii)
above, so long as one or more of the foregoing individuals named in CLAUSES (i)
and (ii) above is principal beneficiary of such trust or probate estate, and
(iv) any Person all of the Equity Interests of which are held, directly or
indirectly, by or for the benefit of, one or more of the foregoing individuals
or trusts specified in CLAUSES (i) through (iii) above.
"PERMITTED LIENS" has the meaning set forth in SECTION 7.02.
"PERMITTED SECURITIZATION TRANSACTION" means any transaction or series
of transactions that qualify for off-balance sheet treatment in accordance with
SFAS 140 or other applicable accounting pronouncements, pursuant to which (i)
the Parent Borrower of any of its Subsidiaries may sell, contribute, convey or
otherwise transfer to a Securitization Entity and (ii) a Securitization Entity
may sell, contribute, convey or otherwise transfer to any other Person, or may
grant a security interest in, any accounts receivable or chattel paper (whether
now existing or arising in the future) of the Parent Borrower of any
-36-
of its Subsidiaries, and any assets directly related thereto, including, without
limitation, all collateral securing such accounts receivable, and other assets
(including contract rights and all guarantees or other obligations in respect of
such accounts receivable or chattel paper, proceeds of such accounts receivable
or chattel paper and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable or chattel
paper).
"PERSON" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or an unincorporated
association or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code maintained by or contributed to by any Group Company or any ERISA
Affiliate including a Multiemployer Plan.
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the
form of EXHIBIT F-3 hereto, dated as of the date hereof among the Parent
Borrower, the Subsidiary Guarantors parties thereto and the U.S. Collateral
Agent, as the same may be amended, supplemented or modified from time to time.
"PLEDGED COLLATERAL" has the meaning set forth in the Pledge
Agreement.
"PPSA SECURITY AGREEMENT" means the PPSA Security Agreement,
substantially in the form of EXHIBIT F-6 hereto, dated as of the date hereof
among the Credit Parties party thereto and the Canadian Collateral Agent as the
same may be amended, modified or supplemented from time to time.
"PRE-COMMITMENT INFORMATION" means, taken as an entirety, (i)
information with respect to the Borrowers and their Subsidiaries contained in
the Confidential Information Memorandum dated June 28, 2004 and (ii) any other
written information in respect of the Parent Borrower, any Subsidiary of the
Parent Borrower or the Acquisition provided to any Agent or Lender by or on
behalf of the Parent Borrower prior to the Closing Date, as such information may
have been amended, restated, supplemented or otherwise modified by the Borrowers
prior to the date of this Agreement.
"PREFERRED STOCK" means, as applied to the Equity Interests of a
Person, Equity Interests of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over the Equity Interests of any other class of such
Person.
"PRIME RATE" means for any day (A) in the case of the Term B Loans,
the variable rate of interest PER ANNUM publicly announced by the Term B
Administrative Agent from time to time as its Prime Rate for U.S. Dollars loaned
in the United States, (B) in the case of the U.S. Revolving Loans and the U.S.
Swingline Loans, the variable rate of interest PER ANNUM publicly announced by
the Canadian Administrative Agent from time to time as its Prime Rate for U.S.
Dollars loaned in the United States, and (C) in the case of the Term A Loans,
the Canadian Revolving Loans and the Canadian Swingline Loans, the variable rate
of interest PER ANNUM publicly announced by the Canadian Administrative Agent
from time to time as the corporate base rate of interest then in effect for
determining interest rates on U.S. Dollar-denominated commercial loans made by
it in Canada, and sometimes referred to by it as its "U.S. corporate base rate".
It is a rate set by the relevant Administrative Agent based upon a variety of
factors, including such Administrative Agent's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such announced rate.
Any change in the interest rate resulting from a change in the Prime Rate shall
take effect at the opening of business on the day specified in the public
announcement of such change.
-37-
"PRINCIPAL AMORTIZATION PAYMENT" means a scheduled principal payment
on the Term A Loans pursuant to SECTION 2.09(b) or on the Term B Loans pursuant
to SECTION 2.09(c).
"PRINCIPAL AMORTIZATION PAYMENT DATE" means (i) in the case of the
Term A Loans (A) the last Business Day of each calendar quarter, commencing with
the first such date occurring at least 90 days after the Closing Date and ending
prior to the Term A Maturity Date and (B) the Term A Maturity Date, and (ii) in
the case of the Term B Loans, (A) the last Business Day of each calendar
quarter, commencing with the first such date occurring at least 90 days after
the Closing Date and ending prior to the Term B Maturity Date, and (B) the Term
B Maturity Date.
"PRO-FORMA BASIS" means, for purposes of calculating compliance of any
transaction with any provision hereof, that the transaction in question shall be
deemed to have occurred as of the first day of the most recent period of four
consecutive fiscal quarters (or, for purposes of calculating Fixed Charge
Coverage Ratio for the fiscal quarter ended on February 28, 2005, six
consecutive months, or, for purposes of calculating Fixed Charge Coverage Ratio
for the fiscal quarter ended on May 31, 2005, nine consecutive months) of the
Parent Borrower which precedes or ends on the date of such transaction and with
respect to which the Administrative Agents have received the financial
information for the Parent Borrower and its Consolidated Subsidiaries required
under SECTION 6.01(a) or (b), as applicable, and the certificate required by
SECTION 6.01(c) for such period. As used in this definition, "transaction" means
(i) any incurrence or assumption by a Group Company of Debt under SECTION 7.01
or Attributable Debt in respect of a Sale/Leaseback Transaction under SECTION
7.13, (ii) any merger or consolidation referred to in SECTION 7.04, (iii) any
Permitted Business Acquisition, (iv) any Restricted Payment referred to in
SECTION 7.07(iv) or (v) any computation of Consolidated EBITDA under the
circumstances contemplated by the second sentence of the definition thereof. In
connection with any calculation of the financial covenants set forth in SECTION
7.19 upon giving effect to a transaction on a "Pro-Forma Basis", (i) any Debt
incurred by the Parent Borrower or any of its Subsidiaries in connection with
such transaction (or any other transaction which occurred during the relevant
four fiscal quarter period) shall be deemed to have been incurred (and the
proceeds thereof applied) as of the first day of the relevant four
fiscal-quarter period, (ii) if such Debt has a floating or formula rate, then
the rate of interest for such Debt for the applicable period for purposes of the
calculations contemplated by this definition shall be determined by utilizing
the rate which is or would be in effect with respect to such Debt as at the
relevant date of such calculations and (iii) income statement items (whether
positive or negative) attributable to all property acquired in such transaction
or to the Investment comprising such transaction, as applicable, shall be
included as if such transaction has occurred as of the first day of the relevant
four-fiscal-quarter period, without giving effect to cost savings, and (iv) such
other factually supportable and identifiable pro-forma adjustments which would
be permitted or required by Regulations S-K and S-X under the Securities Act
shall be taken into account.
"PRO-FORMA COMPLIANCE CERTIFICATE" means a certificate of the chief
financial officer or chief accounting officer of the Parent Borrower delivered
to the Administrative Agents in connection with any "transaction" as defined in
the definition of "Pro-Forma Basis" above and containing reasonably detailed
calculations (with pro-forma adjustments reasonably satisfactory to the
Administrative Agents), upon giving effect to the applicable transaction on a
Pro-Forma Basis, of the Fixed Charge Coverage Ratio and the Leverage Ratio as of
the last day of the most recent period of four consecutive fiscal quarters of
the Parent Borrower which precedes or ends on the date of the applicable
transaction and with respect to which the Administrative Agents shall have
received the consolidated financial information for the Parent Borrower and its
Consolidated Subsidiaries required under SECTION 6.01(a) or (b), as applicable,
and the certificate required by SECTION 6.01(c) for such period.
"PROPCO" means any of PJC Special Realty Holdings, Inc., PJC
Arlington Realty LLC, PJC Dorchester Realty LLC, PJC Essex Realty LLC, PJC
Haverhill Realty LLC, PJC Hyde Park Realty
-38-
LLC, PJC Manchester Realty LLC, PJC Mansfield Realty LLC, PJC New London Realty
LLC, PJC Norwich Realty LLC, PJC Peterborough Realty LLC, PJC Providence Realty
LLC, PJC Revere Realty LLC, PJC Lease Holdings, Inc., PJC of East Providence,
Inc., or PJC of Rhode Island, Inc. and "PROPCOS" means one or more of them.
"PURCHASE MONEY DEBT" means Debt of the Parent Borrower or any of its
Subsidiaries incurred for the purpose of financing all or any part of the
purchase price or cost of construction or improvement of property used in the
business of the Parent Borrower or such Subsidiary; PROVIDED that such Debt is
incurred within 90 days after such property is acquired or, in the case of
improvements, constructed.
"PURCHASE MONEY NOTE" means a promissory note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Parent
Borrower or any Subsidiary in connection with a Permitted Securitization
Transaction permitted by SECTION 7.05(xiii) to a Securitization Entity, which
note is repayable from cash available to such Securitization Entity, other than
amounts required to be established as reserves pursuant to contractual
arrangements with entities that are not Affiliates entered into as part of such
Permitted Securitization Transaction, amounts paid to investors in respect of
interest, principal and other amounts owing to such investors and amounts paid
in connection with the purchase of newly generated accounts receivable.
"QUALIFIED CAPITAL STOCK" means common stock of the Parent Borrower.
"QUALIFYING EQUITY ISSUANCE" means (i) the offer and sale of
subscription proceeds, each representing the right to receive one Class A
Subordinate Voting Share of the Parent Borrower, for aggregate gross proceeds of
C$581,957,500, the Net Cash Proceeds of which are used to fund the Transactions,
(ii) any issuance of Equity Interests of the Parent Borrower to management and
officers of any Group Company; PROVIDED that any such issuance is made in the
ordinary course of business in accordance with the relevant stock option plan or
employee stock ownership plan approved by the Parent Borrower's board of
directors and maintained by the Parent Borrower from time to time and (iii) any
issuance of Equity Interests of the parent Borrower the Net Cash Proceeds of
which are used, substantially concurrently with such issuance, to fund
Investments permitted by SECTION 7.06.
"QUEBEC HYPOTHEC" means the Quebec Hypothec, substantially in the form
of EXHIBIT F-7 hereto, dated as of July 22, 2004, among the Credit Parties party
thereto and the Canadian Collateral Agent, as the same may be amended, modified
or supplemented from time to time.
"REAL PROPERTY" means, with respect to any Person, all of the right,
title and interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"RECORDED LEASEHOLD INTEREST" means a Leased Mortgaged Property with
respect to which a Recorded Document has been recorded in all places necessary
or desirable, in the reasonable judgment of the Lead Arrangers, to give
constructive notice of such Leased Mortgaged Property to third-party purchasers
and encumbrancers of the affected real property. For purposes of this
definition, the term "RECORDED DOCUMENT" means, with respect to any Leased
Mortgaged Property, (i) the lease evidencing such Leased Mortgaged Property or a
memorandum thereof, executed and acknowledged by the owner of the affected real
property, as lessor, or (ii) if such Leased Mortgaged Property was acquired or
subleased from the holder of a Recorded Leasehold Interest, the applicable
assignment or sublease document, executed and acknowledged by such holder, in
each case in form and sufficient to give such constructive notice upon
recordation and otherwise in form reasonably satisfactory to the Lead Arrangers.
-39-
"REFINANCED AGREEMENTS" means those instruments, documents and
agreements listed on SCHEDULE 1.01C.
"REFINANCING DEBT" has the meaning set forth in SECTION 7.01(vi).
"REFUNDED SWINGLINE LOAN" has the meaning set forth in SECTION
2.01(d)(iv).
"REGISTER" has the meaning set forth in SECTION 10.06(d).
"REGULATION D, O, T, U OR X" means Regulation D, 0, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
amended, or any successor regulation.
"REINVESTMENT FUNDS" means, with respect to any Net Cash Proceeds of
an Asset Disposition, that portion of the funds as shall be reinvested in
accordance with SECTION 2.10 (c)(i)(A),(B) and (C), and with respect to any
Insurance Proceeds or any Condemnation Award, that portion of such funds as
shall be reinvested in accordance with SECTION 2.10 (c)(ii)(A),(B) and (C).
"REPLACEMENT DATE" has the meaning set forth in SECTION 2.11(c).
"REPLACEMENT REVOLVER" means one or more revolving credit facilities
of the Borrowers (including any refinancing, replacement or refunding thereof);
PROVIDED that: (i) such revolving credit facilities are entered into on or after
the Revolving Termination Date, (ii) the aggregate U.S. Dollar Amount of
commitments under such revolving credit facilities do not exceed US$350,000,000,
(iii) the covenants, events of default and Guaranty Obligations in respect of
such revolving credit facilities shall be the same (or less restrictive and less
favorable to the lenders thereunder, as determined by the Administrative Agents
in their discretion) as those contained in the Senior Finance Documents, (iv)
such revolving credit facilities shall not have borrowers that are not Borrowers
hereunder or guarantors that do not guarantee the Senior Obligations, (v) Liens
securing such revolving credit facilities shall rank pari passu or junior (as
determined by the Administrative Agents in their reasonable discretion) to the
Liens created by the Collateral Documents, and (vi) at the time of and after
giving effect to the entering into such revolving credit facilities, no Default
or Event of Default shall have occurred and be continuing and the Parent
Borrower shall have delivered to the Administrative Agents a Pro-Forma
Compliance Certificate demonstrating that, upon giving effect to such revolving
credit facilities on a Pro-Forma Basis the Parent Borrower shall be in
compliance with all of the financial covenants set forth in SECTION 7.19 as of
the last day of the most recent period of four consecutive quarters of the
Parent Borrower which precedes or ends on the date of such revolving credit
facilities and with respect to which the Administrative Agents have received the
consolidated financial information required under SECTIONS 6.01(a) and (b) and
the certificate required by SECTIONS 6.01(c).
"REQUIRED CANADIAN REVOLVING LENDERS" means Lenders whose aggregate
Canadian Revolving Credit Exposure (as hereinafter defined) constitutes more
than 50% of the Canadian Revolving Credit Exposure of all Lenders at such time;
PROVIDED, HOWEVER, that if any Lender shall be a Defaulting Lender at such time
then there shall be excluded from the determination of Required Canadian
Revolving Lenders such Lender and the aggregate principal amount of Canadian
Revolving Credit Exposure of such Lender at such time. For purposes of the
preceding sentence, the term "CANADIAN REVOLVING CREDIT EXPOSURE" as applied to
each Lender shall mean (i) at any time prior to the termination of the Canadian
Revolving Commitments, the Canadian Revolving Commitment Percentage of such
Lender multiplied by the Canadian Revolving Committed Amount, and (ii) at any
time after the termination of the Canadian Revolving Commitments, the sum of (A)
the U.S. Dollar Amount of the outstanding Canadian Revolving Loans of such
Lender, plus (B) the U.S. Dollar Amount of such Lender's Participation Interests
in all
-40-
Canadian LC Obligations and Canadian Swingline Loans, plus (C) the U.S. Dollar
Amount of BA Reimbursement Obligations owing to such Lender.
"REQUIRED U.S. REVOLVING LENDERS" means Lenders whose aggregate U.S.
Revolving Credit Exposure (as hereinafter defined) constitutes more than 50% of
the U.S. Revolving Credit Exposure of all Lenders at such time; PROVIDED,
HOWEVER, that if any Lender shall be a Defaulting Lender at such time then there
shall be excluded from the determination of Required U.S. Revolving Lenders such
Lender and the aggregate principal amount of U.S. Revolving Credit Exposure of
such Lender at such time. For purposes of the preceding sentence, the term "U.S.
REVOLVING CREDIT EXPOSURE" as applied to each Lender shall mean (i) at any time
prior to the termination of the U.S. Revolving Commitments, the U.S. Revolving
Commitment Percentage of such Lender multiplied by the U.S. Revolving Committed
Amount, and (ii) at any time after the termination of the U.S. Revolving
Commitments, the sum of (A) the principal balance of the outstanding U.S.
Revolving Loans of such Lender plus (B) the U.S. Dollar Amount of such Lender's
Participation Interests in all LC Obligations and Swingline Loans.
"REQUIRED LENDERS" means Lenders whose aggregate Credit Exposure '(as
hereinafter defined) constitutes more than 50% of the Credit Exposure of all
Lenders at such time; PROVIDED, HOWEVER, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders such Lender and the aggregate principal amount
of Credit Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "CREDIT EXPOSURE" as applied to each Lender shall mean (i) at
any time prior to the termination of the Commitments, the sum of (A) the U.S.
Revolving Commitment Percentage of such Lender multiplied by the U.S. Revolving
Committed Amount plus (B) the Canadian Revolving Commitment Percentage of such
Lender multiplied by the Canadian Revolving Committed Amount plus (C) the Term A
Commitment Percentage of such Lender multiplied by the U.S. Dollar Amount of the
Term A Loans outstanding at such time plus (D) the Term B Commitment Percentage
of such Lender multiplied by the U.S. Dollar Amount of the Term B Loans
outstanding at such time, and (ii) at any time after the termination of the
Commitments, the sum of (A) the aggregate U.S. Dollar Amount of the outstanding
Loans of such Lender plus (B) the U.S. Dollar Amount of such Lender's
Participation Interests in all LC Obligations and Swingline Loans plus (C) the
U.S. Dollar Amount of the BA Reimbursement Obligations owing to such Lender.
"RESET DATE" has the meaning set forth in SECTION 1.05.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
senior vice president, vice president, chief financial officer, treasurer,
assistant treasurer, secretary or clerk, as the case may be, or, with respect to
closing deliveries only, assistant secretary or assistant vice president of a
Credit Party. Any document delivered hereunder that is signed by a Responsible
Officer of a Credit Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of such
Credit Party and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Credit Party.
"RESTRICTED PAVEMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any class of Equity Interests or Equity
Equivalents of any Group Company, now or hereafter outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding, and (iii)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire any class of Equity Interests or
Equity Equivalents of any Group Company, now or hereafter outstanding.
-41-
"REVOLVING BORROWING" means a U.S. Revolving Borrowing or a Canadian
Revolving Borrowing, and "REVOLVING BORROWINGS" means any combination of two or
more of them.
"REVOLVING COMMITMENT" means a U.S. Revolving Commitment or a Canadian
Revolving Commitment, and "REVOLVING COMMITMENTS" means any combination of two
or more of them.
"REVOLVING COMMITMENT PERCENTAGE" with respect to any Revolving
Lender, means its U.S. Revolving Commitment Percentage or its Canadian Revolving
Commitment Percentage, as the case may be, and "REVOLVING COMMITMENT
PERCENTAGES" means any combination of two or more of them.
"REVOLVING LENDER" means a U.S. Revolving Lender or a Canadian
Revolving Lender, and "REVOLVING LENDERS" means any two or more of them.
"REVOLVING LOAN" means a U.S. Revolving Loan or a Canadian Revolving
Loan, and "REVOLVING LOANS" means any two or more of them.
"REVOLVING OUTSTANDINGS" means, at any date, collectively, the U.S.
Revolving Outstandings and the Canadian Revolving Outstandings, as of such date.
"REVOLVING TERMINATION DATE" means the fifth anniversary of the
Closing Date (or, if such day is not a Business Day for the relevant currency,
the next preceding Business Day for such currency) or such earlier date upon
which the relevant Revolving Commitments shall have been terminated in their
entirety in accordance with this Agreement.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., a New York corporation, and its successor or, absent any such
successor, such nationally recognized statistical rating organization as the
Parent Borrower and the Administrative Agents may select.
"SALE/LEASEBACK TRANSACTION" means any direct or indirect arrangement
with any Person or to which any such Person is a party providing for the leasing
to the Parent Borrower or any of its Subsidiaries of any property, whether owned
by the Parent Borrower or any of its Subsidiaries as of the Closing Date or
later acquired, which has been or is to be sold or transferred by the Parent
Borrower or any of its Subsidiaries to such Person or to any other Person from
whom funds have been, or are to be, advanced by such Person on the security of
such property.
"SARBANES-OXLEVY ACT" has the meaning set forth in SECTION 5.05(g).
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SECURITIZATION ENTITY" means a Wholly Owned Subsidiary of the Parent
Borrower that engages in no activities other than in connection with the
financing of accounts receivable, chattel paper and related assets and that is
designated by the board of directors of the Parent Borrower (as provided below)
as a Securitization Entity (a) no portion of Debt or any other obligations
(contingent or otherwise) of which (i) is guaranteed by any Credit Party
(excluding guarantees of obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is
recourse to or obligates any Credit Party in any way other than pursuant to
Standard Securitization Undertakings or (iii) subjects any property or assets of
any Credit Party, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which no Credit Party has any material contract,
agreement, arrangement or understanding other than on terms no less favorable to
such Credit Party than those that might be obtained
-42-
at the time from persons that are not Affiliates of the Parent Borrower, other
than fees payable in the ordinary course of business in connection with
servicing receivables, chattel paper and related assets of such entity, and (c)
to which no Credit Party (other than such entity) has any obligation to maintain
or preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results. Any such designation by the board of
directors of the Company shall be evidenced to the Administrative Agents by
filing with the Administrative Agents a certified copy of the resolution of the
board of directors of the Parent Borrower giving effect to such designation and
a certificate of a Responsible Officer certifying that such designation complied
with the foregoing conditions.
"SELLER" means TDI Consolidated Corporation, a Delaware corporation.
"SENIOR FINANCE DOCUMENTS" means this Agreement, the Notes, the
Guaranty, the Collateral Documents, each Perfection Certificate, the
Intercompany Notes, each Accession Agreement, each Borrowing Subsidiary
Agreement and each LC Document, collectively, and all other related agreements
and documents issued or delivered hereunder or thereunder or pursuant hereto or
thereto, in each case as the same may be amended, modified or supplemented from
time to time.
"SENIOR NOTE" means any one of the 7.625% Senior Notes Due 2012 issued
by the Parent Borrower in favor of the Senior Noteholders pursuant to the Senior
Note Indenture, as such Senior Notes may be amended, modified or supplemented
from time to time in accordance with the provisions thereof and of this
Agreement, and "SENIOR NOTES" means any two or more of them, collectively.
"SENIOR NOTE DOCUMENTS" means the Senior Note Indenture, the Purchase
Agreement among the Parent Borrower and the initial Senior Noteholders, in each
case including all exhibits and schedules thereto, and all other agreements,
documents and instruments relating to the Senior Notes, in each case as the same
may be amended, modified or supplemented from time to time in accordance with
the provisions thereof and of this Agreement.
"SENIOR NOTE INDENTURE" means an Indenture, dated as of the Closing
Date, between the Parent Borrower and The Bank of New York, as trustee, as such
Senior Note Indenture may be amended, modified or supplemented from time to time
in accordance with the provisions thereof and of this Agreement.
"SENIOR NOTEHOLDER" means any one of the holders from time to time of
the Senior Notes.
"SENIOR OBLIGATIONS" means with respect to each Credit Party, without
duplication:
(i) in the case of each Borrower, all principal of and
interest (including, without limitation, any interest which accrues after
the commencement of any bankruptcy or insolvency proceeding with respect
to, whether or not allowed or allowable as a claim under any bankruptcy or
insolvency proceeding) on any Loan made to or LC Obligation or BA
Reimbursement Obligation under, or any Note issued pursuant to, this
Agreement or any other Senior Finance Document;
(ii) all fees, expenses, indemnification obligations, foreign
currency exchange obligations and other amounts of whatever nature now or
hereafter payable by such Credit Party (including, without limitation, any
amounts which accrue after the commencement of any bankruptcy or insolvency
proceeding with respect to such Credit Party, whether or not allowed or
allowable as a claim under any bankruptcy or insolvency proceeding)
pursuant to this Agreement or any other Senior Finance Document;
-43-
(iii) all expenses of the Agents as to which one or more of the
Agents have a right to reimbursement by such Credit Party under SECTION
10.04 of this Agreement or under any other similar provision of any other
Senior Finance Document, including, without limitation, any and all sums
advanced by the Collateral Agents to preserve the Collateral or preserve
their security interests in the Collateral to the extent permitted under
any Senior Finance Document or applicable Law;
(iv) all amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement by such Credit Party under
SECTION 10.05 of this Agreement or under any other similar provision of any
other Senior Finance Document; and
(v) in the case of each Subsidiary Guarantor and each
Borrower, in its capacity as guarantor under the Guaranty, all amounts now
or hereafter payable by such Subsidiary Guarantor or such Borrower and all
other obligations or liabilities now existing or hereafter arising or
incurred (including, without limitation, any amounts which accrue after the
commencement of any bankruptcy or insolvency proceeding with respect to
such Subsidiary Guarantor or such Borrower, whether or not allowed or
allowable as a claim under any bankruptcy or insolvency proceeding) on the
part of such Subsidiary Guarantor or such Borrower pursuant to this
Agreement, any Guaranty or any other Senior Finance Document;
in each case whether now or hereafter due, owing or incurred in any manner,
whether actual or contingent, whether incurred solely or jointly with any other
Person and whether as principal or surety (and including all liabilities in
connection with any notes, bills or other instruments accepted by any Finance
Party in connection therewith), together in each case with all renewals,
modifications, consolidations or extensions thereof.
"SINKING FUND ACCOUNT" has the meaning set forth in
SECTION 2.10(b)(xiii).
"SINKING FUND DEPOSITS" has the meaning set forth in
SECTION 2.10(b)(xiii).
"SOLVENT" means, with respect to any Person as of a particular date,
that on such date (i) such Person is able generally to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and does not
believe that it will, incur debts beyond such Person's ability to pay as such
debts mature, (iii) such Person is not engaged in a business or a transaction,
and is not about to engage in a business or a transaction, for which such
Person's assets would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such Person is
engaged or is to engage, (iv) the fair value (determined in accordance with the
Bankruptcy Code and the interpretive cases thereto) of the assets of such Person
is greater than the total amount of liabilities, including, without limitation,
probable liabilities, of such Person and (v) the present fair value (I.E., the
amount that may be realized within a commercially reasonable time, either
through collection or sale at the regular market value, conceiving the latter as
the amount that could be obtained for the assets in question within such period
by a capable and diligent business person from buyer who is willing to purchase
under ordinary selling conditions) of the assets of such Person will exceed the
amount that will be required to pay the probable liability on such Person's
existing debts as they become absolute and matured. For purposes of this
definition, "debt" means (x) any legal liability whether matured, unmatured,
liquidated or unliquidated, absolute, fixed or contingent, or (y) where a right
gives rise to an equitable remedy, such remedy is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
-44-
"SPV" means each of ▇▇▇▇ ▇▇▇▇▇ Group Holdings (USA), LLC, JCG Holdings
(USA), Inc., 3090671 Nova Scotia Company and 3090672 Nova Scotia Company and
"SPVs" means one or more of them.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, guarantees, covenants and indemnities entered into by any Credit
Party that are reasonably customary in securitization transaction relating to
accounts receivable, chattel paper and related assets in connection with a
Permitted Securitization Transaction.
"STANDBY LETTER OF CREDIT" has the meaning set forth in
SECTION 2.05(b).
"STANDBY LETTER OF CREDIT FEE" has the meaning set forth in
SECTION 2.12(b)(i).
"SUBORDINATED DEBT" of any Person means (i) the Subordinated Notes
(ii) all other unsecured Debt which (A) the principal of which by its terms is
not required to be repaid, in whole or in part, before at least six months after
the latest of the Revolving Termination Date, the Term A Maturity Date and the
Term B Maturity Date, (B) is subordinated in right of payment to such Person's
indebtedness, obligations and liabilities to the Finance Parties under the
Finance Documents pursuant to payment and subordination provisions reasonably
satisfactory in form and substance to the Administrative Agents, (C) is issued
pursuant to credit documents having covenants, subordination provisions and
events of default that are, on the whole, in no event less favorable, including
with respect to rights of acceleration, to such Person than the terms of the
Subordinated Notes or are otherwise satisfactory in form and substance to the
Administrative Agents, and (D) provides for no guaranties thereof by any Group
Company unless such guaranty is subordinated to the Guaranty on terms
satisfactory to the Administrative Agents.
"SUBORDINATED NOTE" means any one of the 8.5% Senior Subordinated
Notes Due 2014 issued by the Parent Borrower in favor of the Subordinated
Noteholders pursuant to the Subordinated Note Indenture, as such Subordinated
Notes may be amended, modified or supplemented from time to time in accordance
with the provisions thereof and of this Agreement, and "SUBORDINATED NOTES"
means any two or more of them, collectively.
"SUBORDINATED NOTE DOCUMENTS" means the Subordinated Note Indenture,
the Purchase Agreement among the Parent Borrower and the initial Subordinated
Noteholders, in each case including all exhibits and schedules thereto, and all
other agreements, documents and instruments relating to the Subordinated Notes,
in each case as the same may be amended, modified or supplemented from time to
time in accordance with the provisions thereof and of this Agreement.
"SUBORDINATED NOTE INDENTURE" means an Indenture, dated as of the
Closing Date, between the Parent Borrower and ▇▇▇▇▇ Fargo N.A., as trustee, as
such Subordinated Note Indenture may be amended, modified or supplemented from
time to time in accordance with the provisions thereof and of this Agreement.
"SUBORDINATED NOTEHOLDER" means any one of the holders from time to
time of the Subordinated Notes.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (i) if a corporation, more than 50% of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a
-45-
partnership, limited liability company, association or business entity other
than a corporation, more than 50% of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have more than 50%
ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated more than 50%
of partnership, association or other business entity gains or losses or shall be
or control the managing director, manager or a general partner of such
partnership, association or other business entity.
"SUBSIDIARY BORROWER" means either a U.S. Subsidiary Borrower or a
Canadian Subsidiary Borrower.
"SUBSIDIARY GUARANTOR" means each U.S. Subsidiary Guarantor and each
other Subsidiary of the Parent Borrower that becomes a party to a Guaranty
guaranteeing the Finance Obligations of the Borrowers on or after the Closing
Date by execution of such Guaranty or an Accession Agreement referring thereto,
and "SUBSIDIARY GUARANTORS" means any two or more of them.
"SWINGLINE COMMITMENTS" means, collectively, the Canadian Swingline
Commitment and the U.S. Swingline Commitment, and "SWINGLINE COMMITMENT" means
any one of them.
"SWINGLINE LOAN REQUEST" has the meaning set forth in SECTION 2.02(b).
"SWINGLINE LOANS" means, collectively, the Canadian Swingline Loan and
the U.S. Swingline Loan, and "SWINGLINE LOAN" means any one of them.
"SWINGLINE LENDERS" means, collectively, the Canadian Swingline Lender
and the U.S. Swingline Lender, and "SWINGLINE LENDER" means any one of them.
"SYNDICATION DATE" means the earlier of (i) the date which is 60 days
after the Closing Date and (ii) the date on which the Co-Syndication Agents
determine in their sole discretion (and notify the Parent Borrower) that the
primary syndication (and the resulting addition of Lenders pursuant to SECTION
10.06(b)) has been completed.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a Person
under (i) a so-called synthetic, off-balance sheet or tax retention lease or
(ii) an agreement for the use or possession of property creating obligations
that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).
"TARGET" means Eckerd Corporation, a Delaware corporation, Thrift Drug
Inc., a Delaware corporation and ▇▇▇▇▇▇▇▇ Drug Stores, Inc., a Delaware
corporation, and their respective successors.
"TAXES" has the meaning set forth in SECTION 3.01(a).
"TERM A BORROWING" means a Borrowing comprised of Term A Loans and
identified as such in the Notice of Borrowing with respect thereto.
"TERM A COMMITMENT" means, with respect to any Lender, the commitment
of such Lender to make a Term A Loan on the Closing Date in a principal amount
equal to such Lender's Term A Commitment Percentage of the Term A Committed
Amount.
-46-
"TERM A COMMITMENT PERCENTAGE" means, for each Lender, the percentage
identified as its Term A Commitment Percentage on SCHEDULE 1.01A, as such
percentage may be (i) reduced pursuant to SECTION 2.11(b) and (ii) modified in
connection with any Assignment and Acceptance made in accordance with the
provisions of SECTION 10.06(b).
"TERM A COMMITTED AMOUNT" means US$250,000,000.
"TERM A LENDER" means each Lender identified on SCHEDULE 1.01A as
having a Term A Commitment and each Eligible Assignee which acquires a Term A
Loan pursuant to SECTION 10.06(b) and their respective successors.
"TERM A LOAN" means a Loan made to the Parent Borrower under
SECTION 2.01(b).
"TERM A MATURITY DATE" means the fifth anniversary of the Closing Date
(or if such day is not a Business Day, the next preceding Business Day).
"TERM B ADMINISTRATIVE AGENT" means Deutsche Bank Trust Company
Americas, in its capacity as administrative agent for the Term B Lenders
hereunder and under the other Senior Finance Documents, and its successor or
successors in such capacity.
"TERM B ADMINISTRATIVE AGENT'S OFFICE" means (i) for credit notices,
the office of the Term B Administrative Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
and Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) for operational notices, the office
of the Term B Administrative Agent located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Telephone No.:
(▇▇▇)▇▇▇-▇▇▇▇, and Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, or such other office or
Person as the Term B Administrative Agent may hereafter designate in writing as
such to the other parties hereto.
"TERM B ADMINISTRATIVE AGENT'S BRANCH" means the branch of the Term B
Administrative Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or
such other branch as the Term B Administrative Agent may specify from time to
time.
"TERM B BORROWING" means a Borrowing comprised of Term B Loans and
identified as such in the Notice of Borrowing with respect thereto.
"TERM B COMMITMENT" means, with respect to any Lender, the commitment
of such Lender to make a Term B Loan on the Closing Date in a principal amount
equal to such Lender's Term B Commitment Percentage of the Term B Committed
Amount.
"TERM B COMMITMENT PERCENTAGE" means, for each Lender, the percentage
identified as its Term B Commitment Percentage on SCHEDULE 1.01A, as such
percentage may be (i) reduced pursuant to SECTION 2.11(b) and (ii) modified in
connection with any assignment made in accordance with the provisions of
SECTION 10.06(b).
"TERM B COMMITTED AMOUNT" means US$1,100,000,000.
"TERM B LENDER" means each Lender identified on SCHEDULE 1.01A as
having a Term B Commitment and each Eligible Assignee which acquires a Term B
Loan pursuant to SECTION 10.06(b) and their respective successors.
"TERM B LOAN" means a Loan made to the Parent Borrower under
SECTION 2.0(c).
-47-
"TERM B MATURITY DATE" means the seventh anniversary of the Closing
Date (or if such day is not a Business Day, the next preceding Business Day).
"TERM B NOTE" means a promissory note, substantially in the form of
EXHIBIT B-4 hereto, evidencing the obligation of the Parent Borrower to repay
outstanding Term B Loans, as such note may be amended, modified or supplemented
from time to time.
"TERM LOAN" means a Term A Loan or a Term B Loan, and "TERM LOANS"
means any two or more of them, collectively.
"TITLE INSURANCE COMPANY" has the meaning set forth in
SECTION 4.01(j).
"TRADE LETTER OF CREDIT" has the meaning set forth in SECTION 2.05(b).
"TRADE LETTER OF CREDIT FEE" has the meaning set forth in
SECTION 2.12(b)(ii).
"TRANSACTION" means the events contemplated by the Transaction
Documents.
"TRANSACTION DOCUMENTS" means the Acquisition Documents, the documents
relating to the transactions described on SCHEDULE 7.12, the Senior Note
Documents, the Subordinated Note Documents and the Finance Documents,
collectively, and "TRANSACTION DOCUMENT" means any one of them.
"TYPE" has the meaning set forth in SECTION 1.04.
"UNFUNDED LIABILITIES" means with respect to each Plan other than a
Multiemployer Plan, the amount (if any) by which the present value of all
nonforfeitable benefits under each Plan exceeds the current value of such Plan's
assets allocable to such benefits, all determined in accordance with the
respective most recent valuations for such Plan using applicable PBGC plan
termination actuarial assumptions used in the preparation of such most recent
valuation (the terms "present value" and "current value" shall have the same
meanings specified in Section 3 of ERISA).
"UNITED STATES" means the United States of America, including each of
the States and the District of Columbia, but excluding its territories and
possessions.
"UNUSED CANADIAN REVOLVING COMMITMENT AMOUNT" means, for any period,
the amount by which (i) the then applicable Canadian Revolving Committed Amount
exceeds (ii) the daily average sum for such period of the Canadian Revolving
Outstandings.
"UNUSED U.S. REVOLVING COMMITMENT AMOUNT" means, for any period, the
amount by which (i) the then applicable U.S. Revolving Committed Amount exceeds
(ii) the daily average sum for such period of the U.S. Revolving Outstandings.
"U.S. BORROWER" means The ▇▇▇▇ ▇▇▇▇▇ Group (PJC) USA, Inc., a Delaware
corporation, and its successors.
"U.S. BORROWER'S ACCOUNT" means (A) in relation to U.S. Revolving
Loans and U.S. Letters of Credit, the U.S. Dollar account bearing account number
602250-001 established at the Canadian Administrative Agent's Branch, or such
other account at the Canadian Administrative Agent's Branch as the Canadian
Administrative Agent may specify from time to time and (B) in relation to U.S.
Swingline Loans, the U.S. Dollar account established at the U.S. Swingline
Lender's Branch, or such
-48-
other account at the U.S. Swingline Lender's Branch as the U.S. Swingline Lender
may specify from time to time.
"U.S. COLLATERAL AGENT" means Deutsche Bank Trust Company Americas, in
its capacity as collateral agent for the Finance Parties under the U.S.
Collateral Documents, and its successor or successors in such capacity.
"U.S. COLLATERAL DOCUMENTS" means the U.S. Security Agreement, the
Pledge Agreement, the U.S. Mortgages and the U.S. Depositary Bank Agreements.
"U.S. DEPOSITARY BANK AGREEMENT" means an agreement between a Credit
Party and any bank or other depositary institution, substantially in the form of
EXHIBIT D to the U.S. Security Agreement, as the same may be amended, modified
or supplemented from time to time.
"U.S. DOLLAR AMOUNT" means on any date:
(i) with respect to U.S. Dollar-Denominated Loans, the
aggregate outstanding principal amount thereof after giving effect to any
Borrowings, conversions, continuations and prepayments or repayments of
such Loans occurring on such date;
(ii) with respect to C$ Prime Loans, the U.S. Dollar Equivalent
of the aggregate outstanding principal amount thereof after giving effect
to any Borrowings, continuations, prepayments or repayments of any such
Loans occurring on such date;
(iii) with respect to U.S. LC Obligations in respect of U.S.
Letters of Credit or Canadian LC Obligations in respect of Canadian Letters
of Credit denominated in U.S. Dollars, the aggregate amount of such U.S. LC
Obligations or such Canadian LC Obligations, after giving effect to any
changes in the aggregate amount of such U.S. LC Obligations or such
Canadian LC Obligations, as of such date;
(iv) with respect to Canadian LC Obligations in respect of
Canadian Letters of Credit denominated in Canadian Dollars, the U.S. Dollar
Equivalent of the aggregate amount of such Canadian LC Obligations after
giving effect to any changes in the aggregate amount of such Canadian LC
Obligations on such date;
(v) with respect to LC Obligations in respect of U.S. Foreign
Currency Letters of Credit or Canadian Foreign Currency Letters of Credit,
the U.S. Dollar Equivalent of the aggregate amount of such LC Obligations
after giving effect to any changes in the aggregate amount of such LC
Obligations on such date; and
(vi) with respect to Bankers' Acceptances, the U.S. Dollar
Equivalent of the aggregate outstanding face amount thereof after giving
effect to any issuances, acceptances, purchases or reimbursements of
Bankers' Acceptances occurring on such date.
"U.S. DOLLAR-DENOMINATED LOAN" means any Loan that is made in U.S.
Dollars in accordance with the applicable Notice of Borrowing.
"U.S. DOLLAR EQUIVALENT" means, on any date of determination with
respect to any Loan, any LC Obligation, any Bankers' Acceptance, any Commitment
or any other amount determined in a currency other than U.S. Dollars, the
equivalent of such amount in U.S. Dollars determined by the relevant
Administrative Agent pursuant to SECTION 1.05 using the applicable Exchange
Rate.
-49-
"U.S. DOLLARS" and the sign "US$" means lawful money of the United
States of America.
"U.S. FOREIGN CURRENCY LC COMMITTED AMOUNT" has the meaning set forth
in SECTION 2.05(b).
"U.S. FOREIGN CURRENCY LC EXPOSURE" means at any time, the sum of (i)
the U.S. Dollar Amount of the aggregate undrawn and unexpired amount of all
outstanding U.S. Foreign Currency Letters of Credit at such time plus (ii) the
U.S. Dollar Amount of the aggregate amount of U.S. LC Disbursements in respect
of U.S. Foreign Currency Letters of Credit that have not been reimbursed at such
time.
"U.S. FOREIGN CURRENCY LETTER OF CREDIT" means a U.S. Letter of Credit
denominated in an Agreed Foreign Currency.
"U.S. GAAP" means, at any time, generally accepted accounting
principles as then in effect in the United States, applied on a basis consistent
(except for changes with which the Parent Borrower's independent public
accountants have concurred) with the most recent audited consolidated financial
statements of the Parent Borrower and its Consolidated Subsidiaries previously
delivered to the Lenders.
"U.S. ISSUING LENDER" means in the case of U.S. Letters of Credit, (i)
National Bank of Canada (or any of its Affiliates), in its capacity as an
issuing lender and its successor or successors in such capacity, (ii) each
Person listed on SCHEDULE 2.05 hereto as the issuer of an Existing U.S. Letter
of Credit, and (iii) any other U.S. Revolving Lender which the U.S. Borrower
shall have designated as an "Issuing Lender" by notice to and acceptance of the
Canadian Administrative Agent.
"U.S. JOINT LEAD ARRANGERS" means Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and National Bank Financial
Inc. in their respective capacities as joint lead arrangers in connection with
the U.S. Revolving Loans and the Term B Loans, and "U.S. Joint Lead Arranger"
means any one of them individually.
"U.S. ▇▇ ▇▇▇▇ COLLATERAL ACCOUNT" has the meaning set forth in the
U.S. Security Agreement.
"U.S. LC COMMITMENT" means the commitment of the U.S. Issuing Lender
to issue U.S. Letters of Credit in an aggregate face amount (calculated at the
U.S. Dollar Amount thereof) at any one time outstanding (together with the
aggregate U.S. Dollar Amount of any unreimbursed drawings thereon) of up to the
U.S. LC Committed Amount.
"U.S. LC COMMITTED AMOUNT" has the meaning set forth in
SECTION 2.05(b).
"U.S. LC DISBURSEMENT" means a payment or disbursement made by a U.S.
Issuing Lender pursuant to a U.S. Letter of Credit.
"U.S. LC DOCUMENTS" means, with respect to any U.S. Letter of Credit,
such U.S. Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor and any agreements, instruments,
guaranties or other documents (whether general in application or applicable only
to such U.S. Letter of Credit) governing or providing for (i) the rights and
obligations of the parties concerned or at risk or (ii) any collateral security
for such obligations.
-50-
"U.S. LC OBLIGATIONS" means at any time, the sum of (i) the maximum
U.S. Dollar Amount which is, or at any time thereafter may become, available to
be drawn under U.S. Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such U.S. Letters of Credit plus
(ii) the aggregate U.S. Dollar Amount of all U.S. LC Disbursements not yet
reimbursed by the relevant Borrower as provided in SECTION 2.05(h) to the U.S.
Issuing Lender in respect of drawings under U.S. Letters of Credit, including
any portion of any such obligation to which a Lender has become subrogated
pursuant to SECTION 2.05(i).
"U.S. LEASED MORTGAGED PROPERTY" and "U.S. LEASED MORTGAGED
PROPERTIES" have the respective meanings set forth in SECTION 4.01(j).
"U.S. LETTER OF CREDIT" means an Existing U.S. Letter of Credit or an
Additional U.S. Letter of Credit, and "U.S. LETTERS OF CREDIT" means any
combination of the foregoing.
"U.S. MORTGAGE" means (i) in the case of owned real property
interests, a mortgage or deed of trust, substantially in the form of, or
otherwise substantially identical in substance to, the provisions of EXHIBIT F-4
hereto, among any Credit Party, the U.S. Collateral Agent and one or more
trustees, as the same may be amended, modified or supplemented from time to
time, or (ii) in the case of Leaseholds, a leasehold mortgage or leasehold deed
of trust, substantially in the form of, or otherwise substantially identical in
substance to, the provisions of, EXHIBIT F-5 hereto, among any Credit Party, the
U.S. Collateral Agent and one or more trustees, as the same may be amended,
modified or supplemented from time to time.
"U.S. OWNED MORTGAGED PROPERTY" and "U.S. OWNED MORTGAGED PROPERTIES"
have the respective meanings set forth in SECTION 4.01(j).
"U.S. PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Title III of Pub. L. 107-56 (signed into Law October 26, 2001)), as the
same may be amended, supplemented, modified, replaced or otherwise in effect
from time to time.
"U.S. REVOLVING BORROWING" means a Borrowing comprised of U.S.
Revolving Loans and identified as such in the Notice of Borrowing with respect
thereto.
"U.S. REVOLVING COMMITMENT" means, with respect to any U.S. Revolving
Lender, the commitment of such U.S. Revolving Lender, in an aggregate principal
amount at any time outstanding of up to such U.S. Revolving Lender's U.S.
Revolving Commitment Percentage of the U.S. Revolving Committed Amount, (i) to
make U.S. Revolving Loans in accordance with the provisions of SECTION
2.01(a)(i), (ii) to purchase Participation Interests in U.S. Swingline Loans in
accordance with the provisions of SECTION 2.01(d) and (iii) to purchase
Participation Interests in U.S. Letters of Credit in accordance with the
provisions of SECTION 2.05(d).
"U.S. REVOLVING COMMITMENT PERCENTAGE" means, for each U.S. Revolving
Lender, the percentage identified as its U.S. Revolving Commitment Percentage on
SCHEDULE 1.01A hereto, as such percentage may be modified in connection with any
assignment made in accordance with the provisions of SECTION 10.06(b).
"U.S. REVOLVING COMMITTED AMOUNT" means US$250,000,000 or such lesser
or greater amount to which the U.S. Revolving Committed Amount may be adjusted
pursuant to SECTION 2.11.
-51-
"U.S. REVOLVING CREDIT EXPOSURE" has the meaning set forth in the
definition of "REQUIRED U.S. REVOLVING LENDERS" contained in this SECTION 1.01.
"U.S. REVOLVING LENDER" means each Lender identified in SCHEDULE 1.01A
as having a U.S. Revolving Commitment and each Eligible Assignee which acquires
a U.S. Revolving Commitment or U.S. Revolving Loan pursuant to SECTION 10.06(b)
and their respective successors.
"U.S. REVOLVING LOAN" means a Loan made to the U.S. Borrower under
SECTION 2.01(a)(i).
"U.S. REVOLVING NOTE" means a promissory note, substantially in the
form of EXHIBIT B-1 hereto, evidencing the obligation of the U.S. Borrower to
repay outstanding U.S. Revolving Loans, as such note may be amended,
supplemented, extended, renewed or replaced from time to time.
"U.S. REVOLVING OUTSTANDINGS" means at any date the aggregate U.S.
Dollar Amount of all outstanding U.S. Revolving Loans and U.S. Swingline Loans
plus the aggregate U.S. Dollar Amount of all U.S. LC Obligations.
"U.S. SECURITY AGREEMENT" means the U.S. Security Agreement,
substantially in the form of EXHIBIT F-2 hereto, dated as of the date hereof
among the Parent Borrower, the U.S. Borrower, the U.S. Subsidiary Guarantors and
the U.S. Collateral Agent, as the same may be amended, modified or supplemented
from time to time.
"U.S. SUBSIDIARY" means with respect to any Person each Subsidiary of
such Person which is organized under the laws of the United States or any
political subdivision or territory thereof, and "U.S. SUBSIDIARIES" means any
two or more of them.
"U.S. SUBSIDIARY BORROWER" means any U.S. Subsidiary of the Parent
Borrower designated as a U.S. Subsidiary Borrower by the Parent Borrower
pursuant to SECTION 2.16 that has not ceased to be a U.S. Subsidiary Borrower
pursuant to such Section.
"U.S. SUBSIDIARY GUARANTOR" means each Subsidiary of the Parent
Borrower existing on the Closing Date (other than a Canadian Subsidiary or a
Foreign Subsidiary) and each Subsidiary of the Parent Borrower (other than a
Canadian Subsidiary or a Foreign Subsidiary, except to the extent otherwise
provided in SECTION 6.10(d)) that becomes a party to a Guaranty guaranteeing the
obligations of the Borrowers after the Closing Date (by execution of an
Accession Agreement referring to such Guaranty or otherwise), and "U.S.
SUBSIDIARY GUARANTORS" means any two or more of them.
"U.S. SWINGLINE COMMITMENT" means the agreement of the U.S. Swingline
Lender to make Loans pursuant to SECTION 2.01(d).
"U.S. SWINGLINE COMMITTED AMOUNT" means US$35,000,000 (or such other
amount not in excess of US$35,000,000 as the U.S. Borrower and the U.S.
Swingline Lender may agree from time to time), as such U.S. Swingline Committed
Amount may be reduced pursuant to SECTION 2.11.
"U.S. SWINGLINE LENDER" means Bank of America, N.A., in its capacity
as the U.S. Swingline Lender under SECTION 2.01(d), and its successor or
successors in such capacity.
"U.S. SWINGLINE LENDER'S BRANCH" means a branch of the U.S. Swingline
Lender located in the United States, as the U.S. Swingline Lender may specify
from time to time.
-52-
"U.S. SWINGLINE LOAN" means a Base Rate Loan made by the U.S.
Swingline Lender pursuant to SECTION 2.01(d), and "U.S. SWINGLINE LOANS" means
any two or more of such Base Rate Loans.
"U.S. SWINGLINE NOTE" means a promissory note, substantially in the
form of EXHIBIT B-5 hereto, evidencing the obligation of the U.S. Borrower to
repay outstanding U.S. Swingline Loans, as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"U.S. SWINGLINE TERMINATION DATE" means the earlier of (i) the fifth
Business Day prior to the Revolving Termination Date (or, if such day is not a
Business Day, the next preceding Business Day) or such earlier date upon which
the U.S. Revolving Commitments shall have been terminated in their entirety in
accordance with this Agreement and (ii) the date on which the U.S. Swingline
Commitment is terminated in its entirety in accordance with this Agreement.
"WELFARE PLAN" means a "welfare plan" as such term is defined in
SECTION 3(1) of ERISA.
"WHOLLY-OWNED CANADIAN SUBSIDIARY" means, with respect to any Person
at any date, any Wholly-Owned Subsidiary of such Person that is a Canadian
Subsidiary.
"WHOLLY-OWNED FOREIGN SUBSIDIARY" means, with respect to any Person at
any date, any Wholly-Owned Subsidiary of such Person that is a Foreign
Subsidiary.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Person at any
date, any Subsidiary of such Person, all of the shares of capital stock or other
ownership interests of which (except (x) directors' qualifying shares and (y)
Equity Interests or other ownership interests of a Securitization Entity issued
to a Person other than the Parent Borrower or a Wholly Owned Subsidiary of the
Parent Borrower in connection with a Permitted Securitization Transaction for
the purpose of establishing independence and not in order to provide substantive
economic or controlling voting interests to such Person) are at the time
directly or indirectly owned by such Person.
"WHOLLY-OWNED U.S. SUBSIDIARY" means, with respect to any Person at
any date, any Wholly-Owned Subsidiary of such Person that is a U.S. Subsidiary.
SECTION 1.02 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL
PROVISIONS. For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". All references to time herein shall be references to Eastern
Standard time or Eastern Daylight time, as the case may be, unless specified
otherwise. References in this Agreement to Articles, Sections, Schedules,
Appendices or Exhibits shall be to Articles, Sections, Schedules, Appendices or
Exhibits of or to this Agreement unless otherwise specifically provided. The
definitions in SECTION 1.01 shall apply equally to both the singular and plural
forms of the terms defined.
SECTION 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared in accordance with GAAP applied on a consistent basis; PROVIDED that,
the delivery by the Parent Borrower of financial statements in accordance with
GAAP shall be accompanied by reconciliation with U.S. GAAP reasonably
satisfactory to the Administrative Agents in order to satisfy the requirements
of this sentence and any other provision of this Agreement requiring the
delivery of financial statements in accordance with GAAP. All financial
statements delivered to the Lenders hereunder shall be accompanied by a
statement from the Parent Borrower that GAAP has not changed since the most
recent
-53-
financial statements delivered by the Parent Borrower to the Lenders or if GAAP
has changed describing such changes in detail and explaining how such changes
affect the financial statements. All calculations made for the purposes of
determining compliance with this Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered pursuant
to SECTION 6.01 (or, prior to the delivery of the first financial statements
pursuant to SECTION 6.01, consistent with the financial statements described in
SECTION 5.05(a) (but without giving effect to any deviations from GAAP disclosed
therein);); PROVIDED, HOWEVER, if (i) the Parent Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (ii) any of the Administrative Agents or the Required Lenders
shall so object in writing within 60 days after delivery of such financial
statements (or after the Lenders have been informed of the change in GAAP
affecting such financial statements, if later), then such calculations shall be
made on a basis consistent with the most recent financial statements delivered
by the Parent Borrower to the Lenders as to which no such objection shall have
been made. If any determination hereunder is required by the terms hereof to be
made for a period of four consecutive fiscal quarters at a time at which fewer
than four full fiscal quarters have elapsed since the Closing Date, such
determination shall (except as otherwise expressly provided herein) be made for
the period elapsed from the Closing Date through the most recent fiscal quarter
then ended (annualized on a simple arithmetic basis, if such determination is to
be used in a ratio with a balance sheet item). Any financial ratios required to
be maintained by any Group Company pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
SECTION 1.04 CLASSES AND TYPES OF BORROWINGS. The term "BORROWING"
denotes the aggregation of Loans of one or more Lenders made to a Borrower
pursuant to ARTICLE II on the same date, all of which Loans are of the same
Class, Type and currency (subject to ARTICLE III) and, in the case of Eurodollar
Loans, have the same initial Interest Period. Loans hereunder are distinguished
by "Class" and "Type". The "CLASS" of a Loan (or of a Commitment to make such a
Loan or of a Borrowing comprised of such Loans) refers to whether such Loan is a
U.S. Revolving Loan, a Canadian Revolving Loan, a Term A Loan or a Term B Loan.
The "TYPE" of a Loan or any other Credit Extension refers to whether such Loan
or such other Credit Extension is a Eurodollar Loan, a C$ Prime Loan, a Bankers'
Acceptance or a Base Rate Loan. Identification of a Loan (or a Borrowing) by
both Class and Type (e.g., a "Term A Eurodollar Loan") indicates that such Loan
is a Loan of both such Class and such Type (e.g., both a Term A Loan and a
Eurodollar Loan) or that such Borrowing is comprised of such Loans.
SECTION 1.05 EXCHANGE RATES. On each Currency Calculation Date, the
Canadian Administrative Agent shall determine the applicable Exchange Rates as
of such Currency Calculation Date used for calculating relevant U.S. Dollar
Equivalents or Canadian Dollar Equivalents. The Exchange Rates so determined
shall become effective on the relevant Currency Calculation Date (a "RESET
DATE"), shall remain effective until the next succeeding Reset Date and shall
for all purposes of this Agreement (other than provisions expressly requiring
the use of a current Exchange Rate) be the Exchange Rates employed in converting
any amounts between U.S. Dollars, Canadian Dollars and Agreed Foreign Currency.
Whenever in this Agreement in connection with a Borrowing, conversion or
continuation of a Loan, the issuance or extension of a Letter of Credit or the
issuance or acceptance of a Bankers' Acceptance: (a) an amount, such as a
required minimum or multiple amount, is expressed in U.S. Dollars, but such
Borrowing, Loan, Letter of Credit or Bankers' Acceptance is denominated in
currency other than U.S. Dollars, such amount shall be the relevant equivalent
in such currency of such U.S. Dollar Amount (rounded to the nearest 1,000th unit
of such currency), as determined by the Canadian Administrative Agent and (b) an
amount, such as a required minimum or multiple amount, is expressed in Canadian
Dollars, but such Borrowing, Loan or Letter of Credit is denominated in currency
other than
-54-
Canadian Dollars, such amount shall be the relevant equivalent in U.S. Dollars
of such Canadian Dollar Amount (rounded to the nearest 1,000th unit of such
currency), as determined by the Canadian Administrative Agent.
SECTION 1.06 CURRENCY CONVERSION.
(a) If more than one currency or currency unit are at the same time
recognized by the central bank of any country as the lawful currency of that
country, then (i) any reference in the Senior Finance Documents to, and any
obligations arising under the Senior Finance Documents in, the currency of that
country shall be translated into or paid in the currency or currency unit of
that country designated by the relevant Administrative Agent and (ii) any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognized by the central bank of the relevant country
for conversion of that currency or currency unit into the other, rounded up or
down by the Administrative Agents as they deem appropriate.
(b) If a change in any currency of a country occurs, this Agreement
shall be amended (and each party hereto agrees to enter into any supplemental
agreement necessary to effect any such amendment) to the extent that the
Administrative Agents specify to be necessary to reflect the change in currency
and to put the Lenders in the same position, so far as possible, that they would
have been in if no change in currency had occurred.
ARTICLE II
THE CREDIT FACILITIES
SECTION 2.01 COMMITMENTS TO LEND.
(a) REVOLVING LOANS.
(i) U.S. REVOLVING LOANS. Each U.S. Revolving Lender
severally agrees, on the terms and conditions set forth in this Agreement,
to make Revolving Loans denominated in U.S. Dollars to the U.S. Borrower
pursuant to this SECTION 2.01(a)(i) from time to time during the
Availability Period in amounts such that its U.S. Revolving Outstandings
shall not exceed (after giving effect to all U.S. Revolving Loans repaid,
all reimbursements of U.S. LC Disbursements made, and all Refunded U.S.
Swingline Loans paid concurrently with the making of any U.S. Revolving
Loans) its U.S. Revolving Commitment; PROVIDED that, immediately after
giving effect to each such U.S. Revolving Loan, (A) the aggregate U.S.
Revolving Outstandings shall not exceed the U.S. Revolving Committed Amount
and (B) with respect to each U.S. Revolving Lender individually, such
Lender's outstanding U.S. Revolving Loans plus its (other than the U.S.
Swingline Lender's in its capacity as such) Participation Interests in
outstanding U.S. Swingline Loans plus its Participation Interests in
outstanding U.S. LC Obligations shall not exceed such Lender's U.S.
Revolving Commitment Percentage of the U.S. Revolving Committed Amount.
Each U.S. Revolving Borrowing shall be in an aggregate principal amount of
US$5,000,000 or any larger multiple of US$1,000,000 (except that any such
Borrowing may be in the aggregate amount of the unused U.S. Revolving
Commitments) shall be made and maintained as Base Rate Loans or Eurodollar
Loans, as provided in this Agreement, and shall be made from the several
U.S. Revolving Lenders ratably in proportion to their respective U.S.
Revolving Commitments. Within the foregoing limits, the U.S. Borrower may
borrow under this SECTION 2.01(a)(i), repay, or, to the extent permitted by
SECTION 2.10, prepay, U.S. Revolving Loans and reborrow under this SECTION
2.01(a)(i).
-55-
(ii) CANADIAN REVOLVING LOANS. Each Canadian Revolving Lender
severally agrees, on the terms and conditions set forth in this Agreement,
to make Revolving Loans denominated either in Canadian Dollars or in U.S.
Dollars to the Parent Borrower pursuant to this SECTION 2.01(a)(ii) from
time to time during the Availability Period in amounts such that its
Canadian Revolving Outstandings shall not exceed (after giving effect to
all Canadian Revolving Loans repaid, all reimbursements of Canadian LC
Disbursements made, all Canadian Swingline Loans that are Refunded
Swingline Loans paid and Bankers' Acceptances made concurrently with the
making of any Canadian Revolving Loans) its Canadian Revolving Commitment;
PROVIDED that, immediately after giving effect to each such Revolving Loan,
(A) the aggregate Canadian Revolving Outstandings shall not exceed the
Canadian Revolving Committed Amount and (B) with respect to each Canadian
Revolving Lender individually, the U.S. Dollar Amount of such Lender's
outstanding Canadian Revolving Loans plus the aggregate undiscounted U.S.
Dollar Amount of all outstanding Bankers' Acceptances accepted by it plus
(other than the Canadian Swingline Lender's in its capacity as such) the
U.S. Dollar Amount of Participation Interests in outstanding Canadian
Swingline Loans plus the U.S. Dollar Amount of its Participation Interests
in outstanding Canadian LC Obligations shall not exceed such Lender's
Canadian Revolving Commitment Percentage of the Canadian Revolving
Committed Amount. Each Canadian Revolving Borrowing shall be in an
aggregate principal amount of C$5,000,000 or any larger multiple of
C$1,000,000, in the case of C$ Prime Loans, and US$5,000,000 or any larger
multiple of US$1,000,000, in the case of U.S. Dollar-Denominated Loans
(except in each case that any such Borrowing may be in the aggregate amount
of the unused Canadian Revolving Commitments), shall be made and maintained
as C$ Prime Loans, Base Rate Loans or Eurodollar Loans, as provided in this
Agreement, and shall be made from the several Canadian Revolving Lenders
ratably in proportion to their respective Canadian Revolving Commitments.
Within the foregoing limits, the Parent Borrower may borrow under this
SECTION 2.01(a)(ii), repay, or, to the extent permitted by SECTION 2.10,
prepay, Canadian Revolving Loans and reborrow under this SECTION
2.01(a)(ii).
(b) TERM A LOANS. Each Term A Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make a Term A Loan to the Parent
Borrower on the Closing Date in a principal amount not exceeding its Term A
Commitment. The Term A Borrowing shall be made from the several Term A Lenders
ratably in proportion to their respective Term A Commitments. The Term A
Commitments are not revolving in nature, and amounts repaid or prepaid prior to
the Term A Maturity Date may not be reborrowed. Term A Loans shall be made and
maintained as U.S. Dollar-Denominated Loans.
(c) TERM B LOANS. Each Term B Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make a Term B Loan to the Parent
Borrower on the Closing Date in a principal amount not exceeding its Term B
Commitment. The Term B Borrowing shall be made from the several Term B Lenders
ratably in proportion to their respective Term B Commitments. The Term B
Commitments are not revolving in nature, and amounts repaid or prepaid prior to
the Term B Maturity Date may not be reborrowed. Term B Loans shall be made and
maintained as U.S. Dollar-Denominated Loans.
(d) SWINGLINE LOANS.
(i) The U.S. Swingline Lender agrees, on the terms and
subject to the conditions set forth herein and in the other Senior Finance
Documents, to make a portion of the U.S. Revolving Commitments available to
the U.S. Borrower from time to time during the Availability Period by
making U.S. Swingline Loans to the U.S. Borrower in U.S. Dollars (each such
loan, a "U.S. SWINGLINE LOAN" and, collectively, the "U.S. SWINGLINE
LOANS"); PROVIDED that
-56-
(A) the aggregate principal amount of the U.S. Swingline Loans outstanding
at any one time shall not exceed the U.S. Swingline Committed Amount, (B)
with regard to each Revolving Lender individually (other than the Swingline
Lender in its capacity as such), such Revolving Lender's outstanding U.S.
Revolving Loans plus its Participation Interests in outstanding U.S.
Swingline Loans plus its Participation Interests in outstanding U.S. LC
Obligations shall not at any time exceed such Revolving Lender's U.S.
Revolving Commitment Percentage of the U.S. Revolving Committed Amount, (C)
with regard to the U.S. Revolving Lenders collectively, the sum of the
aggregate principal amount of Swingline Loans outstanding plus the
aggregate amount of U.S. Revolving Loans outstanding plus the aggregate
amount of U.S. LC Obligations outstanding shall not exceed the U.S.
Revolving Committed Amount and (D) the U.S. Swingline Committed Amount
shall not exceed the aggregate of the U.S. Revolving Commitments then in
effect. U.S. Swingline Loans shall be made and maintained as Base Rate
Loans and may be repaid and reborrowed in accordance with the provisions
hereof prior to the U.S. Swingline Termination Date. U.S. Swingline Loans
may be made notwithstanding the fact that such U.S. Swingline Loans, when
aggregated with the Swingline Lender's other U.S. Revolving Outstandings,
exceeds its U.S. Revolving Commitment. The proceeds of a U.S. Swingline
Borrowing may not be used, in whole or in part, to refund any prior U.S.
Swingline Borrowing. Notwithstanding anything to the contrary contained in
this SECTION 2.01(d)(i), (i) the U.S. Swingline Lender shall not be
obligated to make any U.S. Swingline Loans for so long as a Failed Loan has
not been made in full unless the U.S. Swingline Lender has entered into
arrangements satisfactory to it and the U.S. Borrower to eliminate the U.S.
Swingline Lender's risk with respect to the Defaulting Lender's or
Defaulting Lenders' participation in such U.S. Swingline Loans, including
by cash collateralizing such Defaulting Lender's or Defaulting Lenders'
U.S. Revolving Commitment Percentage of the outstanding U.S. Swingline
Loans, and (ii) the U.S. Swingline Lender shall not make any U.S. Swingline
Loan after it has received written notice from the U.S. Borrower, any other
Credit Party or the Required Lenders stating that a Default or an Event of
Default exists and is continuing until such time as the U.S. Swingline
Lender shall have received written notice (A) of rescission of all such
notices from the party or parties originally delivering such notice or
notices or (B) of the waiver of such Default or Event of Default by the
Required Lenders.
(ii) The Canadian Swingline Lender agrees, on the terms and
subject to the conditions set forth herein and in the other Senior Finance
Documents, to make a portion of the Canadian Revolving Commitments
available to the Parent Borrower from time to time during the Availability
Period by making Canadian Swingline Loans to the Parent Borrower either in
Canadian Dollars or in U.S. Dollars (each such loan, a "CANADIAN SWINGLINE
LOAN" and, collectively, the "CANADIAN SWINGLINE LOANS"); PROVIDED that (A)
the U.S. Dollar Amount of the Canadian Swingline Loans outstanding at any
one time shall not exceed the Canadian Swingline Committed Amount, (B) with
regard to each Revolving Lender individually (other than the Swingline
Lender in its capacity as such), the U.S. Dollar Amount of such Revolving
Lender's outstanding Canadian Revolving Loans plus the aggregate
undiscounted U.S. Dollar Amount of all outstanding Bankers' Acceptances
accepted by it plus the U.S. Dollar Amount of its Participation Interests
in outstanding Canadian Swingline Loans plus the U.S. Dollar Amount of its
Participation Interests in outstanding Canadian LC Obligations shall not at
any time exceed such Revolving Lender's Canadian Revolving Commitment
Percentage of the Canadian Revolving Committed Amount, (C) with regard to
the Canadian Revolving Lenders collectively, the sum of the U.S. Dollar
Amount of Canadian Swingline Loans outstanding plus the U.S. Dollar Amount
of Canadian Revolving Loans outstanding plus the aggregate undiscounted
U.S. Dollar Amount of all outstanding Bankers' Acceptances accepted by them
plus the U.S. Dollar Amount of Canadian LC Obligations outstanding shall
not exceed the Canadian Revolving Committed Amount and (D) the Canadian
Swingline Committed Amount shall not exceed the aggregate of the Canadian
Revolving Commitments then in effect. Canadian Swingline Loans
-57-
shall be made and maintained as C$ Prime Loans or Base Rate Loans, as
provided in this Agreement and may be repaid and reborrowed in accordance
with the provisions hereof prior to the Canadian Swingline Termination
Date. Canadian Swingline Loans may be made notwithstanding the fact that
the Canadian Dollar Amount of such Canadian Swingline Loans, when
aggregated with the Canadian Swingline Lender's other Canadian Revolving
Outstandings, exceeds its Canadian Revolving Commitment. The proceeds of a
Canadian Swingline Borrowing may not be used, in whole or in part, to
refund any prior Canadian Swingline Borrowing. Notwithstanding anything to
the contrary contained in this SECTION 2.01(d)(ii), (i) the Canadian
Swingline Lender shall not be obligated to make any Canadian Swingline
Loans for so long as a Failed Loan has not been made in full unless the
Canadian Swingline Lender has entered into arrangements satisfactory to it
and the Parent Borrower to eliminate the Canadian Swingline Lender's risk
with respect to the Defaulting Lender's or Defaulting Lenders'
participation in such Canadian Swingline Loans, including by cash
collateralizing such Defaulting Lender's or Defaulting Lenders' Canadian
Revolving Commitment Percentage of the outstanding Canadian Swingline
Loans, and (ii) the Canadian Swingline Lender shall not make any Canadian
Swingline Loan after it has received written notice from the Parent
Borrower, any other Credit Party or the Required Lenders stating that a
Default or an Event of Default exists and is continuing until such time as
the Canadian Swingline Lender shall have received written notice (A) of
rescission of all such notices from the party or parties originally
delivering such notice or notices or (B) of the waiver of such Default or
Event of Default by the Required Lenders.
(iii) The principal amount of all Swingline Loans shall be due
and payable on the earliest of (A) subject to CLAUSE (iv) below, the
maturity date agreed to by the relevant Swingline Lender and the U.S.
Borrower or the Parent Borrower (as applicable) with respect to such
Swingline Loan (which maturity date shall be no later than the last
Business Day of the week during which such Swingline Loan was made); (B)
the U.S. Swingline Termination Date or Canadian Swingline Termination Date
(as applicable), (C) the occurrence of an Event of Default under SECTION
8.01(f) hereof with respect to the U.S. Borrower or the Parent Borrower or
(D) the acceleration of any Loan or the termination of the U.S. Revolving
Commitments or Canadian Revolving Commitments pursuant to SECTION 8.02.
(iv) With respect to any Swingline Loans that have not been
prepaid by the U.S. Borrower or the Parent Borrower, as applicable, or paid
by the U.S. Borrower or the Parent Borrower, as applicable, when due under
CLAUSE (iii) above, the relevant Swingline Lender (by request to the
Canadian Administrative Agent) or the Canadian Administrative Agent at any
time may, and shall at any time where Swingline Loans in an amount of (x)
US$7,500,000 or more, in the case of the Canadian Swingline Loans, or (y)
US$17,500,000 or more, in the case of the U.S. Swingline Loans, shall have
been outstanding, on the last Business Day of any week, on one Business
Day's prior notice, require each U.S. Revolving Lender or Canadian
Revolving Lender (as the case may be), including the relevant Swingline
Lender, and each such Lender hereby agrees, subject to the provisions of
this SECTION 2.01(d), to make a U.S. Revolving Loan or a Canadian Revolving
Loan, as applicable (each of which shall be initially funded as a Base Rate
Loan or a C$ Prime Loan, as applicable), in an amount equal to such
Lender's U.S. Revolving Commitment Percentage or Canadian Revolving
Commitment Percentage (as applicable) of the amount of the relevant
Swingline Loans (the "REFUNDED SWINGLINE LOANS") outstanding on the date
notice is given.
(v) In the case of U.S. Revolving Loans or Canadian
Revolving Loans made by Lenders other than the relevant Swingline Lender,
in each case, under CLAUSE (iv) above, each such Revolving Lender shall
make the amount of its U.S. Revolving Loan or Canadian Revolving Loan, as
the case may be, available to the Canadian Administrative Agent in each
case in same
-58-
day funds, at the Canadian Administrative Agent's Office, not later than
1:00 P.M. on the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Loans shall be immediately delivered
to the relevant Swingline Lender (and not to any Borrower) and applied to
repay the relevant Refunded Swingline Loans. On the day such Revolving
Loans are made, the relevant Swingline Lender's Revolving Commitment
Percentage of the Refunded Swingline Loans shall be deemed to be paid with
the proceeds of such Revolving Loan made by the relevant Swingline Lender
and such portion of the Swingline Loans deemed to be so paid shall no
longer be outstanding as Swingline Loans and shall instead be outstanding
as U.S. Revolving Loans or Canadian Revolving Loans (as the case may be).
The relevant Borrower authorizes the Canadian Administrative Agent and the
relevant Swingline Lender to charge the relevant Borrower's account with
the Canadian Administrative Agent (up to the amount available in such
account), in order to pay immediately to the relevant Swingline Lender the
amount of such Refunded Swingline Loans to the extent amounts received from
the U.S. Revolving Lenders or the Canadian Revolving Lenders (as the case
may be), including amounts deemed to be received from the relevant
Swingline Lender, are not sufficient to repay in full such Refunded
Swingline Loans. If any portion of any such amount paid (or deemed to be
paid) to the relevant Swingline Lender should be recovered by or on behalf
of any Borrower from the relevant Swingline Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all U.S. Revolving
Lenders or the Canadian Revolving Lenders (as the case may be) in the
manner contemplated by SECTION 2.14.
(vi) A copy of each notice given by a Swingline Lender
pursuant to this SECTION 2.01(d) shall be promptly delivered by such
Swingline Lender to the Canadian Administrative Agent and the relevant
Borrower. Upon the making of a U.S. Revolving Loan by a U.S. Revolving
Lender or a Canadian Revolving Loan by a Canadian Revolving Lender pursuant
to this SECTION 2.01(d), the amount so funded shall no longer be owed in
respect of their Participation Interest in the related Refunded Swingline
Loans.
(vii) If as a result of any bankruptcy or similar proceeding,
U.S. Revolving Loans or Canadian Revolving Loans are not made pursuant to
this SECTION 2.01(d) sufficient to repay any amounts owed to the relevant
Swingline Lender as a result of a nonpayment of outstanding U.S. Swingline
Loans or Canadian Swingline Loans (as the case may be), each U.S. Revolving
Lender or Canadian Revolving Lender, in each case, agrees to purchase, and
shall be deemed to have purchased, a participation in such outstanding
Swingline Loans in an amount equal to its U.S. Revolving Commitment
Percentage or Canadian Revolving Commitment Percentage of the unpaid amount
together with accrued interest thereon. Upon one Business Day's notice from
the relevant Swingline Lender, each U.S. Revolving Lender or each Canadian
Revolving Lender, as the case may be, shall deliver to the relevant
Swingline Lender an amount equal to its respective Participation Interest
in such Swingline Loans in same day funds at the office of the relevant
Swingline Lender specified or referred to in SECTION 10.01. In order to
evidence such Participation Interest each U.S. Revolving Lender or each
Canadian Revolving Lender, as the case may be, agrees to enter into a
participation agreement at the request of the relevant Swingline Lender in
form and substance reasonably satisfactory to all parties. In the event any
U.S. Revolving Lender or any Canadian Revolving Lender, as the case may be,
fails to make available to the relevant Swingline Lender the amount of such
U.S. Revolving Lender's Participation Interest or such Canadian Revolving
Lender's Participation Interest (as the case may be) as provided in this
SECTION 2.0l(d)(vii), the relevant Swingline Lender shall be entitled to
recover such amount on demand from the relevant Revolving Lender together
with interest at the customary rate set by the relevant Swingline Lender
for correction of errors among banks in New York City, in the case of U.S.
Swingline Loans, or Montreal, Quebec, in the case of Canadian Swingline
Loans, for one Business Day and thereafter at the Base Rate plus the then
Applicable
-59-
Margin for Base Rate Loans (in the case of U.S. Swingline Loans) and at the
C$ Prime Rate plus the then Applicable Margin for C$ Prime Loans or at the
Base Rate plus the then Applicable Margin for Base Rate Loans, as the case
may be (in the case of Canadian Swingline Loans).
(viii) Each U.S. Revolving Lender's obligation to make U.S.
Revolving Loans or Canadian Revolving Lender's obligation to make Canadian
Revolving Loans each pursuant to CLAUSE (v) above and to purchase
Participation Interests in outstanding Swingline Loans pursuant to CLAUSE
(vii) above shall be absolute and unconditional and shall not be affected
by any circumstance, including (without limitation) (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving
Lender or any other Person may have against the relevant Swingline Lender,
the U.S. Borrower, the Parent Borrower or any other Credit Party, (ii) the
occurrence or continuance of a Default or an Event of Default or the
termination or reduction in the amount of the U.S. Revolving Commitments or
Canadian Revolving Commitments after any such Swingline Loans were made,
(iii) any adverse change in the condition (financial or otherwise) of the
U.S. Borrower or the Parent Borrower or any other Person, (iv) any breach
of this Agreement or any other Finance Document by the U.S. Borrower or the
Parent Borrower or any other Lender, (v) whether any condition specified in
ARTICLE IV is then satisfied or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the forgoing. If such
Lender does not pay such amount forthwith upon the relevant Swingline
Lender's demand therefor, and until such time as such Lender makes the
required payment, the relevant Swingline Lender shall be deemed to continue
to have outstanding Swingline Loans in the amount of such unpaid
Participation Interest for all purposes of the Finance Documents other than
those provisions requiring the other Lenders to purchase a participation
therein. Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other amounts
due to it hereunder to the relevant Swingline Lender to fund Swingline
Loans in the amount of the Participation Interest in Swingline Loans that
such Lender failed to purchase pursuant to this SECTION 2.0l(d)(vi) until
such amount has been purchased (as a result of such assignment or
otherwise).
SECTION 2.02 NOTICE OF BORROWINGS.
(a) BORROWINGS OF U.S. DOLLAR-DENOMINATED LOANS OTHER THAN SWINGLINE
LOANS. Except in the case of Swingline Loans, the relevant Borrower shall give
the Term B Administrative Agent (in the case of a Term B Borrowing) or the
Canadian Administrative Agent (in the case of a U.S. Revolving Borrowing, a
Canadian Revolving Borrowing comprised of U.S. Dollar-Denominated Loans or a
Term A Borrowing) a Notice of Borrowing not later than 10:00 A.M. on (i) the
Business Day immediately preceding each Base Rate Borrowing and (ii) the third
Business Day before each Borrowing of Eurodollar Loans, specifying:
(A) the date of such Borrowing, which shall be a
Business Day;
(B) the aggregate principal amount of such
Borrowing;
(C) the Class and initial Type of the Loans
comprising such Borrowing; and
(d) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period and to
SECTION 2.07(a).
-60-
If the duration of the initial Interest Period is not specified with respect to
any requested Eurodollar Borrowing, then the relevant Borrower shall be deemed
to have selected an initial Interest Period of one month, subject to the
provisions of the definition of Interest Period and to SECTION 2.07(a).
(b) SWINGLINE BORROWINGS. The Parent Borrower or the U.S. Borrower (as
applicable) shall request a Swingline Loan by way of an overdraft in the
applicable Borrower's Accounts opened for such purpose with the Canadian
Swingline Lender or the U.S. Swingline Lender (as applicable), accompanied, in
the case of the U.S. Swingline Loans only, by notice by 1:00 p.m. (New York)
time or Montreal, Quebec, time as applicable) of the date of each Swingline
Borrowing by telephone followed by facsimile, up to a maximum outstanding amount
of such overdraft not exceeding the Canadian Swingline Committed Amount or the
U.S. Swingline Committed Amount, as the case may be. Any check, payment
instruction or debit authorization drawn on or made to the relevant Swingline
Lender from the relevant Borrower resulting in an overdraft in any such account
will be deemed to be a request (a "SWINGLINE LOAN REQUEST") for such Swingline
Loan in an amount that is sufficient to cover such overdraft. Each Canadian
Swingline Loan shall be made as either a C$ Prime Loan or a U.S. Dollar
Denominated Base Rate Loan and each U.S. Swingline Loan shall be made as a U.S.
Dollar Denominated Base Rate Loan. Subject to SECTION 2.0l(d)(iii), each
Swingline Loan shall have such maturity date as agreed to by the relevant
Swingline Lender and the Parent Borrower or the U.S. Borrower (as the case may
be) upon receipt by the relevant Swingline Lender of the Swingline Loan Request
from the Parent Borrower or the U.S. Borrower (as the case may be).
Notwithstanding the foregoing the notice required in the first sentence of this
SECTION 2.02(b) shall not be required at any time after all of the cash
management agreements, including all treasury, depositary, overdraft, credit or
debit card, electronic funds transfer and other cash management arrangements, in
connection with the Senior Finance Documents have been concentrated under Bank
of America, N.A. or its Affiliate, Fleet National Bank.
(c) BORROWINGS OF C$ PRIME LOANS OTHER THAN CANADIAN SWINGLINE LOANS.
The Parent Borrower shall give the Canadian Administrative Agent a Notice of
Borrowing no later than 10:00 A.M. (Montreal, Canada time) one Business Day
prior to each Borrowing of C$ Prime Loans. Each such Notice of Borrowing shall
be irrevocable and shall specify:
(A) the date of such Borrowing, which shall be a
Business Day; and
(B) the aggregate principal amount of such
Borrowing.
SECTION 2.03 NOTICE TO LENDERS; FUNDING; OF LOANS.
(a) NOTICE TO LENDERS. Upon receipt of a Notice of Borrowing, the Term
B Administrative Agent (in the case of Term B Loans) or the Canadian
Administrative Agent (in the case of U.S. Revolving Loans, Canadian Revolving
Loans or Term A Loans) shall promptly notify each Lender of such Lender's
ratable share (if any) of the Borrowing referred to therein, and such Notice of
Borrowing shall not thereafter be revocable by the relevant Borrower.
(b) FUNDING OF LOANS.
(i) On the date of each Borrowing (other than a Swingline
Borrowing), each Lender participating therein shall: (A) if such Borrowing
is to be made in U.S. Dollars, make available its share of such Borrowing
in U.S. Dollars no later than 11:00 A.M. (New York time), in Federal (U.S.
or Canadian, as applicable) or other immediately available funds, to the
relevant Administrative Agent at such Administrative Agent's Administrative
Office or (B) if such Borrowing is a Borrowing of C$ Prime Loans, make
available its share of such Borrowing in Canadian Dollars no later than
11:00 A.M. (Montreal, Canada time), in immediately available
-61-
funds, to the Canadian Administrative Agent at the Canadian Administrative
Agent's Office. Unless the Term B Administrative Agent or Canadian
Administrative Agent, as applicable, determines that any applicable
condition specified in ARTICLE IV has not been satisfied, the Term B
Administrative Agent or the Canadian Administrative Agent, as applicable,
shall, by 2:30 P.M., credit the amounts so received to the applicable
Borrower's Account or, if a Borrowing shall not occur on such date because
any condition precedent herein shall not have been met, promptly return the
amounts received from the Lenders in like funds.
(ii) Not later than 3:00 P.M. on the date of each Swingline
Borrowing, the relevant Swingline Lender shall, unless the Canadian
Administrative Agent shall have notified such Swingline Lender that any
applicable condition specified in SECTION 4.02 has not been satisfied, make
available the amount of such Swingline Borrowing, in Federal (U.S. or
Canadian, as applicable) or other immediately available funds, to the
Parent Borrower or U.S. Borrower (as applicable) to the applicable
Borrower's Account.
(c) FUNDING BY ADMINISTRATIVE AGENTS IN ANTICIPATION OF AMOUNTS DUE
FROM THE LENDERS. Unless the relevant Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will
not make available to the Term B Administrative Agent or the Canadian
Administrative Agent, as applicable, such Lender's share of such Borrowing, such
Administrative Agent may assume that such Lender has made such share available
to such Administrative Agent on the date of such Borrowing in accordance with
SUBSECTION (b) of this SECTION, and such Administrative Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such share available to the relevant Administrative Agent, such Lender and the
relevant Borrower severally agree to repay to the relevant 'Administrative Agent
forthwith on demand such corresponding amount, together with interest thereon
for each day from the date such amount is made available to the relevant
Borrower until the date such amount is repaid to the relevant Administrative
Agent at (i) a rate per annum equal to the higher of the Federal Funds Rate (if
such Borrowing is in U.S. Dollars) or CDOR Rate (if such Borrowing is in
Canadian Dollars), plus 1.0% and the interest rate applicable thereto pursuant
to SECTION 2.07, in the case of the relevant Borrower, and (ii) the Federal
Funds Rate (if such Borrowing is in U.S. Dollars) or CDOR Rate (if such
Borrowing is in Canadian Dollars), plus in each case 1.0%, in the case of such
Lender. If such Lender shall repay to the relevant Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's Loan
included in such Borrowing for purposes of this Agreement.
(d) OBLIGATIONS OF LENDERS SEVERAL. The failure of any Lender to make
a Loan required to be made by it as part of any Borrowing hereunder shall not
relieve any other Lender of its obligation, if any, hereunder to make any Loan
on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
such date of Borrowing.
(e) FAILED LOANS. If any Lender shall fail to make any Loan (a "FAILED
LOAN") which such Lender is otherwise obligated hereunder to make to any
Borrower on the date of Borrowing thereof, and the Term B Administrative Agent
or the Canadian Administrative Agent, as the case may be, shall not have
received notice from any Borrower or the required percentage of Lenders of the
relevant Class or shall not otherwise be aware that any condition precedent to
the making of the Failed Loan has not been satisfied, then, until such Lender
shall have made or be deemed to have made (pursuant to the last sentence of this
SUBSECTION (e)) the Failed Loan in full or the Term B Administrative Agent or
the Canadian Administrative Agent, as the case may be, shall have received
notice from any Borrower or the required percentage of Lenders that any
condition precedent to the making of the Failed Loan was not satisfied at the
time the Failed Loan was to have been made, whenever the Term B Administrative
Agent
-62-
or the Canadian Administrative Agent, as applicable, shall receive any amount
from the relevant Borrower for the account of such Lender, (i) the amount so
received (up to the amount of such Failed Loan) will, upon receipt by the
relevant Administrative Agent be deemed to have been paid to the Lender in
satisfaction of the obligation for which paid, without actual disbursement of
such amount to the Lender, (ii) the Lender will be deemed to have made the same
amount available to the Term B Administrative Agent or the Canadian
Administrative Agent, as applicable, for disbursement as a Loan to the relevant
Borrower (up to the amount of such Failed Loan) and (iii) the Term B
Administrative Agent or the Canadian Administrative Agent, as applicable, will
disburse such amount (up to the amount of the Failed Loan) to the relevant
Borrower or, if the Term B Administrative Agent or the Canadian Administrative
Agent, as applicable, has previously made such amount available to the relevant
Borrower on behalf of such Lender pursuant to the provisions hereof, reimburse
itself (up to the amount of the amount made available to the relevant Borrower);
PROVIDED, HOWEVER, that neither the Term B Administrative Agent nor the Canadian
Administrative Agent, as applicable, shall have any obligation to disburse any
such amount to the relevant Borrower or otherwise apply it or deem it applied as
provided herein unless the Term B Administrative Agent or the Canadian
Administrative Agent, as applicable, shall have determined in its sole
discretion that to so disburse such amount will not violate any law, rule,
regulation or requirement applicable to it. Upon any such disbursement by the
Term B Administrative Agent or the Canadian Administrative Agent, as applicable,
such Lender shall be deemed to have made a Base Rate Loan of the same Class as
the Failed Loan (in the case of U.S. Dollar-Denominated Loans) or a C$ Prime
Loan (in the case of C$ Prime Loans) to the relevant Borrower in satisfaction,
to the extent thereof, of such Lender's obligation to make the Failed Loan.
SECTION 2.04 EVIDENCE OF LOANS.
(a) LENDER ACCOUNTS. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness to such
Lender resulting from each Loan and each Bankers' Acceptance made by such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Agreement.
(b) TERM B ADMINISTRATIVE AGENT/CANADIAN ADMINISTRATIVE AGENT RECORDS.
Each of the Term B Administrative Agent and the Canadian Administrative Agent
shall maintain accounts in which it will record (i) the amount (in the
applicable currency) of each Loan made hereunder administered by such Agent and
the currency, U.S. Dollar Amount (if applicable), Class and Type of each such
Loan made and the Interest Period, if any, applicable thereto and of each
Bankers' Acceptance accepted hereunder and BA Contract Period applicable
thereto, (ii) the U.S. Dollar Amount (or, in the case of amounts due in respect
of C$ Prime Loans or Bankers' Acceptances, the Canadian Dollar Amount) of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the U.S. Dollar Amount (or, in the
case of amounts received in respect of C$ Prime Loans or Bankers' Acceptances,
the Canadian Dollar Amount) of any sum received by the Term B Administrative
Agent or the Canadian Administrative Agent, as applicable, hereunder from any
Borrower and each Lender's share thereof.
(c) EVIDENCE OF DEBT. The entries made in the accounts maintained
pursuant to SUBSECTIONS (a) and (b) of this SECTION 2.04 shall be prima facie
evidence of the existence and amounts of the obligations therein recorded;
PROVIDED, HOWEVER, that the failure of any Lender, the Term B Administrative
Agent or the Canadian Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligations of any Borrower to
repay the Loans or Bankers' Acceptances made to it in accordance with their
terms.
(d) NOTES. Notwithstanding any other provision of this Agreement, if
any Lender shall request and receive a Note or Notes as provided in
SECTION 10.06 or otherwise, then the U.S. Revolving
-63-
Loans or the Term B Loans of such Lender shall be evidenced by a single U.S.
Revolving Note or Term B Note, as applicable, in each case, substantially in the
form of EXHIBIT B-1 or B-2, as applicable, payable to the order of such Lender
for the account of its Applicable Lending Office in an amount equal to the
aggregate unpaid principal amount of such Lender's U.S. Revolving Loans or Term
B Loans, as applicable. If requested by the U.S. Swingline Lender, the U.S.
Swingline Loans shall be evidenced by a single U.S. Swingline Note substantially
in the form of EXHIBIT B-3, payable to the order of the U.S. Swingline Lender in
an amount equal to the aggregate unpaid principal amount of the U.S. Swingline
Loans.
(e) NOTES FOR LOANS OF DIFFERENT TYPES. Each Lender may, by notice to
the relevant Borrower and the relevant Administrative Agent request that its
U.S. Revolving Loans, its U.S. Swingline Loans or its Term B Loans of a
particular Type be evidenced by separate Notes in an amount equal to the
aggregate unpaid principal amount of such Loans. Each such Note shall be in
substantially the form of EXHIBIT ▇-▇, ▇-▇, or B-3 hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the relevant
Type and/or currency. Each reference in this Agreement to such Lender's "Note"
of a particular Class shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(f) NOTE ENDORSEMENTS. Each Lender having one or more Notes issued by
a Borrower shall record the date, amount (in the applicable currency), currency,
U.S. Dollar Amount (if applicable), Class and Type of each Loan made by it to
such Borrower evidenced by such Note and the date and amount of each payment of
principal made by such Borrower with respect thereto, and may, if such Lender so
elects in connection with any transfer or enforcement of any Note, endorse on
the reverse side or on the schedule, if any, forming a part thereof appropriate
notations to evidence the foregoing information with respect to each outstanding
Loan evidenced thereby; PROVIDED that the failure of any Lender to make any such
recordation or endorsement, or any error therein, shall not affect the
obligations of any Borrower hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by each Borrower so to endorse each of its Notes
and to attach to and make a part of each of its Notes a continuation of any such
schedule as and when required.
SECTION 2.05 LETTERS OF CREDIT.
(a) EXISTING LETTERS OF CREDIT. On the Closing Date, (i) each Issuing
Lender that has issued an Existing U.S. Letter of Credit shall be deemed,
without further action by any party hereto, to have sold to each U.S. Revolving
Lender, and each such U.S. Revolving Lender shall be deemed, without further
action by any party hereto, to have purchased from each such Issuing Lender,
without recourse or warranty, an undivided participation interest in such
Existing U.S. Letter of Credit and the related U.S. LC Obligations in the
proportion its U.S. Revolving Commitment Percentage bears to the U.S. Revolving
Committed Amount (although any fronting fee payable under SECTION 2.12 shall be
payable directly to the Canadian Administrative Agent for the account of each
applicable Issuing Lender, and the Lenders (other than the applicable Issuing
Lender) shall have no right to receive any portion of such fronting fee) and any
security therefor or guaranty pertaining thereto, and (ii) each Issuing Lender
that has issued an Existing Canadian Letter of Credit shall be deemed, without
further action by any party hereto, to have sold to each Canadian Revolving
Lender, and each such Canadian Revolving Lender shall be deemed, without further
action by any party thereto, to have purchased from each such Issuing Lender,
without recourse or warranty, an undivided participation interest in such
Existing Canadian Letter of Credit and the related Canadian LC Obligations in
the proportion its Canadian Revolving Commitment Percentage bears to the
Canadian Revolving Committed Amount (although any fronting fee payable under
SECTION 2.12 shall be payable directly to the Canadian Administrative Agent for
the account of each applicable Issuing Lender, and the Lenders (other than the
applicable Issuing Lender) shall have no right to receive
-64-
any portion of such fronting fee) and any security therefor or guaranty
pertaining thereto. On and after the Closing Date, each Existing Letter of
Credit shall constitute a Letter of Credit for all purposes hereof.
(b) ADDITIONAL LETTERS OF CREDIT. Each Issuing Lender (as applicable)
agrees, on the terms and conditions set forth in this Agreement, to issue
Letters of Credit on a sight basis only and denominated in U.S. Dollars,
Canadian Dollars or Agreed Foreign Currency, as applicable, from time to time
before the 30th day prior to the Revolving Termination Date for the account, and
upon the request, of the relevant Borrower and in support of (i) trade
obligations of such Borrower and/or its Subsidiaries (each such letter of
credit, a "TRADE LETTER OF CREDIT" and, collectively, the "TRADE LETTERS OF
CREDIT"), and (ii) such other obligations of such Borrower or such Subsidiary
for which Letters of Credit may be used pursuant to SECTION 5.14 hereof (each
such letter of credit, a "STANDBY LETTER OF CREDIT" and, collectively, the
"STANDBY LETTERS OF CREDIT"); PROVIDED that, immediately after each Letter of
Credit is issued, (i) the aggregate U.S. LC Obligations shall not exceed
US$130,000,000 in the case of U.S. Letters of Credit (as such amount may be
adjusted from time to time pursuant to SECTION 2.11(d), the "U.S. LC COMMITTED
AMOUNT"), (ii) the aggregate Canadian LC Obligations shall not exceed
US$20,000,000 in the case of Canadian Letters of Credit (as such amount may be
adjusted from time to time pursuant to SECTION 2.11(d), the "CANADIAN LC
COMMITTED AMOUNT"), (iii) the U.S. Foreign Currency LC Exposure shall not exceed
US$20,000,0000 (the "U.S. FOREIGN CURRENCY LC COMMITTED AMOUNT"), (iv) the
Canadian Foreign Currency LC Exposure shall not exceed US$10,000,0000 (the
"CANADIAN FOREIGN CURRENCY LC COMMITTED AMOUNT"), (v) the aggregate U.S.
Revolving Outstandings shall not exceed the U.S. Revolving Committed Amount,
(vi) with respect to each individual U.S. Revolving Lender, the aggregate
outstanding principal amount of the U.S. Revolving Lender's U.S. Revolving Loans
plus the aggregate U.S. Dollar Amount of its Participation Interests in
outstanding U.S. LC Obligations plus its (other than the U.S. Swingline
Lender's) Participation Interests in outstanding U.S. Swingline Loans shall not
exceed such U.S. Revolving Lender's U.S. Revolving Commitment Percentage of the
U.S. Revolving Committed Amount, (vii) the aggregate Canadian Revolving
Outstandings shall not exceed the Canadian Revolving Committed Amount, and
(viii) with respect to each individual Canadian Revolving Lender, the U.S.
Dollar Amount of the Canadian Revolving Lender's Canadian Revolving Loans plus
the U.S. Dollar Amount of its Participation Interests in outstanding Canadian LC
Obligations plus the U.S. Dollar Amount of its (other than the Canadian
Swingline Lender's) Participation Interests in outstanding Canadian Swingline
Loans shall not exceed such Canadian Revolving Lender's Canadian Revolving
Commitment Percentage of the Canadian Revolving Committed Amount.
(c) METHOD OF ISSUANCE OF LETTERS OF CREDIT. The relevant Borrower
shall give the applicable Issuing Lender notice (with a copy to the Canadian
Administrative Agent) in the form of EXHIBIT A-3 hereto, in the case of the U.S.
Borrower, or in the form of EXHIBIT A-4 hereto, in the case of the Parent
Borrower (a "LETTER OF CREDIT REQUEST") of the requested issuance or amendment
of a Letter of Credit prior to 11:00 A.M. (New York or Montreal, Canada time, as
applicable) at least one Business Day before the proposed date of the issuance
or amendment of Trade Letters of Credit (which shall be a Business Day) and at
least three Business Days before the proposed date of issuance or extension of
Standby Letters of Credit (which shall be a Business Day) (or such shorter
period as may be agreed by the applicable Issuing Lender in any particular
instance). In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Request shall specify in form and detail
reasonably satisfactory to the applicable Issuing Lender: (i) the name of the
relevant Borrower requesting the issuance of such Letter of Credit; (ii) the
proposed issuance date of the requested Letter of Credit (which shall be a
Business Day); (iii) the currency in which such Letter of Credit is to be
denominated (which shall be U.S. Dollars, Canadian Dollars or Agreed Foreign
Currency); (iv) the amount thereof (in the applicable currency); (v) the expiry
date thereof; (vi) the name and address of the beneficiary thereof; (vii) the
documents to be presented by such beneficiary in case of any drawing thereunder;
(viii) the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (ix) such other matters as the applicable
Issuing Lender may require. In the case of a request for an amendment of any
-65-
outstanding Letter of Credit, such Letter of Credit Request shall specify in
form and detail satisfactory to the applicable Issuing Lender: (i) the Letter of
Credit to be amended; (ii) the proposed date of amendment thereof (which shall
be a Business Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the relevant Issuing Lender may require. If requested by the
applicable Issuing Lender, the relevant Borrower shall also submit a letter of
credit application on such Issuing Lender's standard form in connection with any
request for the issuance, amendment or extension of a Letter of Credit. The
extension or renewal of any Letter of Credit shall be deemed to be an issuance
of such Letter of Credit. Notwithstanding anything herein to the contrary,
Standby Letters of Credit may be issued on a sight basis only. Subject to the
provisions of the following paragraph with respect to automatically extendible
Letters of Credit, (i) no Standby Letter of Credit shall expire later than the
date which is one year after its date of issuance or the fifth Business Day
prior to the Revolving Termination Date, and (ii) no Trade Letter of Credit
shall expire later than the date which is 180 days after the date of its
issuance or the thirtieth day prior to the Revolving Termination Date.
If the relevant Borrower so requests in a Letter of Credit Request,
the applicable Issuing Lender may, in its sole discretion, agree to issue a
Standby Letter of Credit that has automatic extension provisions; provided that
any such Letter of Credit must permit the applicable Issuing Lender to prevent
any such extension at least once in any 12 month period (commencing with the
date of issuance of such Letter of Credit) by giving prior written notice to the
beneficiary thereof not later than a day (the "NON-EXTENSION NOTICE DATE") in
each such 12 month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the applicable Issuing Lender, the relevant
Borrower shall not be required to make a specific request to the applicable
Issuing Lender for any such extension. Once such an extendible Letter of Credit
has been issued, the U.S. Revolving Lenders or the Canadian Revolving Lenders
(as the case may be) shall be deemed to have authorized (but not required) the
applicable Issuing Lender to permit the extension of such Letter of Credit at
any time to a date not later than the fifth Business Day prior to the Revolving
Termination Date; PROVIDED, HOWEVER, that the applicable Issuing Lender shall
not permit any such extension if (i) the applicable Issuing Lender would have no
obligation at such time to issue such Letter of Credit, in its extended form
under the terms hereof, or (ii) it has received notice in writing on or before
the Business Day immediately preceding the Non-Extension Notice Date (A) from
the Canadian Administrative Agent that the Required U.S. Revolving Lenders or
the Required Canadian Revolving Lenders, as applicable, have elected not to
permit such extension, or (B) from the Canadian Administrative Agent or any U.S.
Revolving Lender or Canadian Revolving Lender, as applicable, or any Borrower
that one or more of the applicable conditions specified in SECTION 4.02 is not
then satisfied. Notwithstanding anything to the contrary contained herein, the
applicable Issuing Lender shall have no obligation to permit the extension of
any Letter of Credit at any time. Notwithstanding anything to the contrary
contained in this Agreement, for so long as a Failed Loan has not been made in
full, no Issuing Lender shall be required to issue any Letter of Credit unless
such Issuing Lender has entered into arrangements satisfactory to it and the
applicable Borrower to eliminate such Issuing Lender's risk with respect to the
participation in Letters of Credit by the Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender's or Lenders'
applicable Revolving Commitment Percentage of the LC Obligations.
Promptly after receipt of any Letter of Credit Request, the relevant
Issuing Lender will confirm with the Canadian Administrative Agent (by telephone
or in writing) that the Canadian Administrative Agent has received a copy of
such Letter of Credit Request from the relevant Borrower and, if not, said
Issuing Lender will provide the Canadian Administrative Agent with a copy
thereof. Upon receipt by the Issuing Lender of confirmation from the Canadian
Administrative Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and conditions
thereof, the Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the relevant Borrower or enter into the applicable
amendment, as the case may be, in each case in accordance with the Issuing
Lender's usual and customary business practices.
-66-
Promptly after the issuance or amendment of any Standby Letter of
Credit, the relevant Issuing Lender shall notify the relevant Borrower and the
Canadian Administrative Agent, in writing, of such issuance or amendment and
such notice will be accompanied by a copy of such issuance or amendment. Upon
receipt of such notice, the Canadian Administrative Agent shall notify the U.S
Revolving Lenders or the Canadian Revolving Lenders (as the case may be), in
writing, of such issuance or amendment. Upon the issuance, renewal or amendment
of any Letter of Credit, each Issuing Lender will furnish the Canadian
Administrative Agent, by facsimile, with a report detailing such Issuing
Lender's aggregate daily Letter of Credit outstanding for the period from the
delivery of the prior such report (or from the Closing Date for the first such
report).
(d) CONDITIONS TO ISSUANCE OF ADDITIONAL LETTERS OF CREDIT. The
issuance by an Issuing Lender of each Additional Letter of Credit shall, in
addition to the conditions precedent set forth in SECTION 4.02, be subject to
the conditions precedent that (i) such Letter of Credit shall be reasonably
satisfactory in form and substance to the applicable Issuing Lender, (ii) the
relevant Borrower shall have executed and delivered such other instruments and
agreements relating to such Letter of Credit as the Issuing Lender shall have
reasonably requested, (iii) the applicable Issuing Lender shall have confirmed
with the Canadian Administrative Agent on the date of (and after giving effect
to) such issuance that (A) (x) the aggregate amount of all U.S. LC Obligations
will not exceed the U.S. LC Committed Amount, or (y) the U.S. Dollar Amount of
all Canadian LC Obligations will not exceed the Canadian LC Committed Amount, as
the case may be, (B) (x) the U.S. Foreign Currency LC Exposure will not exceed
the U.S. Foreign Currency LC Committed Amount or (y) the Canadian Foreign
Currency LC Exposure will not exceed the Canadian Foreign Currency LC Committed
Amount, (C) the aggregate U.S. Revolving Outstandings will not exceed the U.S.
Revolving Committed Amount and (D) the aggregate Canadian Revolving Outstandings
will not exceed the Canadian Revolving Committed Amount and (iv) the applicable
Issuing Lender shall not have been notified by the Canadian Administrative Agent
or the Required Lenders that any condition specified in SECTION 4.02(b) or (c)
is not satisfied on the date such Letter of Credit is to be issued.
Notwithstanding any other provision of this SECTION 2.05, no Issuing Lender
shall be under any obligation to issue any Additional Letter of Credit if: (i)
any order, judgment or decree of any Governmental Authority shall by its terms
purport to enjoin or restrain the applicable Issuing Lender from issuing such
Additional Letter of Credit, or any requirement of Law applicable to such
Issuing Lender or any request or directive (whether or not having a force of
Law) from any Governmental Authority with jurisdiction over such Issuing Lender
shall prohibit, or request that such Issuing Lender refrain from, the issuance
of letters of credit generally or such Additional Letter of Credit in particular
or shall impose upon such Issuing Lender with respect to such Additional Letter
of Credit any restriction, reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon such Issuing Lender any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which such
Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or (ii) the issuance of such
Additional Letter of Credit shall violate any applicable general policies of
such Issuing Lender.
(e) PURCHASE AND SALE OF LETTER OF CREDIT PARTICIPATIONS. Upon the
issuance by an Issuing Lender of an Additional Letter of Credit, such Issuing
Lender shall be deemed, without further action by any party hereto, to have sold
(i) in the case of an Additional U.S. Letter of Credit to each U.S. Revolving
Lender, and each U.S. Revolving Lender shall be deemed, without further action
by any party hereto, to have purchased from such Issuing Lender, without
recourse or warranty, an undivided participation interest in such Letter of
Credit and the related U.S. LC Obligations in the proportion its U.S. Revolving
Commitment Percentage bears to the U.S. Revolving Committed Amount and, (ii) in
the case of an Additional Canadian Letter of Credit, to each Canadian Revolving
Lender, and each Canadian Revolving Lender shall be deemed, without further
action by any party hereto, to have purchased, without recourse or warranty, an
undivided participation interest in such Letter of Credit and the related
Canadian LC Obligations in the proportion its Canadian Revolving Commitment
Percentage bears to the Canadian
-67-
Revolving Committed Amount (although any fronting fee payable under SECTION 2.12
shall be payable directly to the Canadian Administrative Agent for the account
of the applicable Issuing Lender, and the Lenders (other than such Issuing
Lender) shall have no right to receive any portion of any such fronting fee) and
any security therefor or guaranty pertaining thereto. Upon any change in the
U.S. Revolving Commitments or Canadian Revolving Commitments pursuant to SECTION
10.06, there shall be an automatic adjustment to the Participation Interests in
all outstanding Letters of Credit (including all Existing Letters of Credit, if
any) and all relevant LC Obligations to reflect the adjusted U.S. Revolving
Commitments or Canadian Revolving Commitments, as applicable, of the assigning
and assignee Lenders or of all Lenders having U.S. Revolving Commitments or
Canadian Revolving Commitments, as applicable, as the case may be.
(f) DRAWINGS UNDER LETTERS OF CREDIT. Upon receipt from the
beneficiary of any Letter of Credit of a drawing under such Letter of Credit,
the applicable Issuing Lender shall determine in accordance with the terms of
such Letter of Credit whether such drawing should be honored. If such Issuing
Lender determines that any such drawing shall be honored, such Issuing Lender
shall make available to such beneficiary in accordance with the terms of such
Letter of Credit the amount of the drawing and shall notify the relevant
Borrower and the relevant Administrative Agent as to the amount to be paid as a
result of such drawing and the payment date.
(g) DUTIES OF ISSUING LENDERS TO U.S. REVOLVING LENDERS OR CANADIAN
REVOLVING LENDERS; RELIANCE. IN determining whether to pay under any Letter of
Credit, the relevant Issuing Lender shall not have any obligation relative to
the U.S. Revolving Lenders or Canadian Revolving Lenders participating in such
Letter of Credit or the related LC Obligations other than to determine that any
document or documents required to be delivered under such Letter of Credit have
been delivered and that they substantially comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by an Issuing Lender under or in connection with any Letter of Credit shall not
create for the Issuing Lender any resulting liability if taken or omitted in the
absence of gross negligence or willful misconduct, as determined by a final and
non-appealable decision of a court of competent jurisdiction. Each Issuing
Lender shall be entitled (but not obligated) to rely, and shall be fully
protected in relying, on the representation and warranty by the relevant
Borrower set forth in the last sentence of SECTION 4.02 to establish whether the
conditions specified in PARAGRAPHS (b) and (c) of SECTION 4.02 are met in
connection with any issuance or extension of a Letter of Credit. Each Issuing
Lender shall be entitled to rely, and shall be fully protected in relying, upon
advice and statements of legal counsel, independent accountants and other
experts selected by such Issuing Lender and upon any Letter of Credit, draft,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopier, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary unless
the beneficiary and the relevant Borrower shall have notified such Issuing
Lender that such documents do not comply with the terms and conditions of the
Letter of Credit. Each Issuing Lender shall be fully justified in refusing to
take any action requested of it under this SECTION 2.05 in respect of any Letter
of Credit unless it shall first have received such advice or concurrence of the
Required U.S. Revolving Lenders or Required Canadian Revolving Lenders (as the
case may be) as it reasonably deems appropriate or it shall first be indemnified
to its reasonable satisfaction by the U.S. Revolving Lenders or Canadian
Revolving Lenders (as the case may be) against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take, or
omitting or continuing to omit, any such action. Notwithstanding any other
provision of this SECTION 2.05, each Issuing Lender shall in all cases be fully
protected in acting, or in refraining from acting, under this Section in respect
of any Letter of Credit in accordance with a request of the Required U.S.
Revolving Lenders or Required Canadian Revolving Lenders (as the case may be),
-68-
and such request and any action taken or failure to act pursuant hereto shall be
binding upon all U.S. Revolving Lenders and all future holders of participations
in such Letter of Credit.
(h) REIMBURSEMENT OBLIGATIONS. Each relevant Borrower shall be
irrevocably and unconditionally obligated forthwith to reimburse each Issuing
Lender in U.S. Dollars or, subject to this SECTION 2.05(h), Canadian Dollars or
Agreed Foreign Currency, as applicable, for any amounts paid by such Issuing
Lender upon any drawing under any Letter of Credit issued for the account of
such Borrower, together with any and all reasonable charges and expenses which
the Issuing Lender may pay or incur relative to such drawing and interest on the
amount drawn at the rate applicable to U.S. Revolving Base Rate Loans, in the
case of U.S. Letters of Credit, Canadian Revolving Base Rate Loans, in the case
of Canadian Letters of Credit denominated in U.S. Dollars, or C$ Prime Loans, in
the case of Canadian Letters of Credit denominated in Canadian Dollars, in each
case, for each day from and including the date such amount is drawn to but
excluding the date such reimbursement payment is due and payable; PROVIDED that,
in the case of an LC Disbursement made under a Foreign Currency Letter of
Credit, the amount of interest due with respect thereto shall (i) in the case of
any LC Disbursement that is reimbursed on or before the Business Day immediately
succeeding such LC Disbursement, (A) be payable in the applicable Agreed Foreign
Currency and (B) if not reimbursed on the date of such LC Disbursement, bear
interest at a rate equal to the rate reasonably determined by the applicable
Issuing Lender to be the cost to such Issuing Lender of funding such LC
Disbursement plus the Applicable Margin applicable to the Revolving Eurodollar
Loans at such time and (ii) in the case of any LC Disbursement that is
reimbursed after the Business Day immediately succeeding such LC Disbursement
(A) be payable in U.S. Dollars, and (B) accrue interest on the U.S. Dollar
Amount thereof calculated using the Exchange Rate in effect on the date such LC
Disbursement was made, at the rate per annum then applicable to U.S. Revolving
Base Rate Loans or Canadian Revolving Base Rate Loans, as the case may be. Such
reimbursement payment shall be due and payable (i) at or before 1:00 P.M. (New
York time or Montreal, Quebec, time, as applicable) on the date the relevant
Issuing Lender notifies the relevant Borrower of such drawing, if such notice is
given at or before 10:00 A.M. (New York time or Montreal, Quebec, time, as
applicable) on such date or (ii) at or before 10:00 A.M. (New York time or
Montreal, Quebec, time, as applicable) on the next succeeding Business Day, if
such notice is given after 10:00 A.M. (New York time or Montreal, Quebec, time,
as applicable) on such date; PROVIDED that no payment otherwise required by this
sentence to be made by the relevant Borrower at or before 1:00 P.M. (New York
time or Montreal, Quebec, time, as applicable) on any day shall be overdue
hereunder if arrangements for such payment satisfactory to the applicable
Issuing Lender, in its reasonable discretion, shall have been made by the
relevant Borrower at or before 1:00 P.M. (New York time or the relevant local
time, as applicable) on such day and such payment is actually made at or before
3:00 P.M. (New York time or Montreal, Quebec time, as applicable) on such day.
If the relevant Borrower's reimbursement of, or obligation to reimburse, any
amounts in Canadian Dollars or Agreed Foreign Currency would subject the
Canadian Administrative Agent, the applicable Issuing Lender or any Lender to
any stamp duty, ad valorem charge or similar tax that would not be payable if
such reimbursement were made or required to be made in U.S. Dollars, such
Borrower shall, at its option, either (i) pay the amount of such tax requested
by the Canadian Administrative Agent, the relevant Issuing Lender or the
relevant Lender or (ii) reimburse each such LC Disbursement in U.S. Dollars, in
an amount equal to the U.S. Dollar Amount thereof, calculated using the
applicable Exchange Rate in effect on the date such LC Disbursement is made. If
the relevant Borrower fails to make any reimbursement when due hereunder, then
(i) if such payment relates to a Foreign Currency Letter of Credit,
automatically and with no further action required, such Borrower's obligation to
reimburse the applicable Issuing Lender and each other applicable Revolving
Lender for the applicable LC Disbursement shall be permanently converted into an
obligation to reimburse the U.S. Dollar Amount thereof calculated using the
Exchange Rate in effect on the date when such payment was due and (ii) the
Canadian Administrative Agent shall promptly notify the applicable Issuing
Lender and each other applicable Revolving Lender of the applicable LC
Disbursement, the U.S. Dollar Amount thereof and the payment then due from the
relevant Borrower in
-69-
respect thereof. In addition to the foregoing, each relevant Borrower agrees to
pay to the relevant Issuing Lender interest, payable on demand, on any and all
amounts not paid by such Borrower to such Issuing Lender when due under this
SUBSECTION (h), for each day from and including the date when such amount
becomes due to but excluding the date such amount is paid in full, whether
before or after judgment, at a rate per annum equal to the sum of 2% plus the
rate applicable to U.S. Revolving Base Rate Loans, in the case of U.S. LC
Obligations, Canadian Revolving Base Rate Loans, in the case of Canadian LC
Obligations denominated in U.S. Dollars or C$ Prime Loans, in the case of
Canadian LC Obligations denominated in Canadian Dollars, as applicable, for such
day. Subject to the satisfaction of all applicable conditions set forth in
SECTION 4.02, the relevant Borrower may, at its option, utilize the U.S.
Swingline Commitment or Canadian Swingline Commitment or the U.S. Revolving
Commitments or Canadian Revolving Commitments, as applicable, in each case, or
make other arrangements for payment satisfactory to the relevant Issuing Lender,
for the reimbursement of all U.S. LC Disbursements or Canadian LC Disbursements,
as the case may be, as required by this SUBSECTION (h). Each reimbursement
payment to be made by any Borrower pursuant to this SUBSECTION (h) shall be made
to the relevant Issuing Lender in Federal (U.S. or Canadian, as applicable) or
other funds immediately available to it at its address referred to in
SECTION 10.01.
(i) OBLIGATIONS OF U.S. REVOLVING LENDERS OR CANADIAN REVOLVING
LENDERS TO REIMBURSE ISSUING LENDERS FOR UNPAID LC DISBURSEMENTS. If the
relevant Borrower shall not have reimbursed an Issuing Lender in full for any LC
Disbursement as required pursuant to SUBSECTION (h) of this SECTION 2.05, the
Issuing Lender shall promptly notify the Canadian Administrative Agent and the
Canadian Administrative Agent shall promptly notify each U.S. Revolving Lender
or Canadian Revolving Lender as applicable (other than the relevant Issuing
Lender), and each such Revolving Lender shall promptly and unconditionally pay
to the Canadian Administrative Agent for the account of such Issuing Lender,
such U.S. Revolving Lender's or Canadian Revolving Lender's, as applicable,
pro-rata share of such unreimbursed LC Disbursement, each such Lender's pro-rata
share of such LC Disbursement to be determined by the proportion its U.S.
Revolving Commitment Percentage or Canadian Revolving Commitment Percentage, as
the case may be, bears to the aggregate U.S. Revolving Committed Amount or
aggregate Canadian Revolving Committed Amount, as applicable, in U.S. Dollars,
in the case of unreimbursed U.S. LC Disbursements, or unreimbursed Canadian LC
Disbursements denominated in U.S. Dollars or Agreed Foreign Currency, or
Canadian Dollars, in the case of unreimbursed Canadian LC Disbursements
denominated in Canadian Dollars, in each case, in Federal (U.S. or Canadian, as
applicable) or other immediately available funds. Such payment from the U.S.
Revolving Lenders or Canadian Revolving Lenders shall be due (i) at or before
1:00 P.M. (New York or Montreal, Quebec, time as applicable) on the date the
Canadian Administrative Agent so notifies a U.S. Revolving Lender or Canadian
Revolving Lender, as applicable, if such notice is given at or before 10:00 A.M.
(New York or Montreal, Quebec, time as applicable) on such date or (ii) at or
before 10:00 A.M. (New York or Montreal, Quebec, time as applicable) on the next
succeeding Business Day, together with interest on such amount for each day from
and including the date of such drawing to but excluding the day such payment is
due from such U.S. Revolving Lender or Canadian Revolving Lender, as applicable,
at the Federal Funds Rate, in the case of unreimbursed U.S. LC Disbursements or
unreimbursed Canadian LC Disbursements denominated in U.S. Dollars and CDOR Rate
in the case of unreimbursed Canadian LC Disbursements denominated in Canadian
Dollars, in each case, for such day (which funds the Canadian Administrative
Agent shall promptly remit to the applicable Issuing Lender). The failure of any
U.S. Revolving Lender or Canadian Revolving Lender, as -applicable, to make
available to the Canadian Administrative Agent for the account of an Issuing
Lender its pro-rata share of any unreimbursed LC Disbursement shall not relieve
any other U.S. Revolving Lender or Canadian Revolving Lender, as applicable, of
its obligation hereunder to make available to the Canadian Administrative Agent
for the account of such Issuing Lender its pro-rata share of any payment made
under any Letter of Credit on the date required, as specified above, but no such
Lender shall be responsible for the failure of any other Lender to make
available to the Canadian Administrative Agent for the account of the Issuing
Lender
-70-
such other Lender's pro-rata share of any such payment. Upon payment in full of
all amounts payable by a Lender under this SUBSECTION (i), such Lender shall be
subrogated to the rights of the relevant Issuing Lender against the relevant
Borrower to the extent of such Lender's pro-rata share of the related LC
Obligation so paid (including interest accrued thereon). If any U.S. Revolving
Lender or Canadian Revolving Lender, as applicable, fails to pay any amount
required to be paid by it pursuant to this SUBSECTION (i) on the date on which
such payment is due, interest shall accrue on such Lender's obligation to make
such payment, for each day from and including the date such payment became due
to but excluding the date such Lender makes such payment, whether before or
after judgment, at a rate per annum equal to (i) for each day from the date such
payment is due to the third succeeding Business Day, inclusive, the Federal
Funds Rate in the case of unreimbursed U.S. LC Disbursements or unreimbursed
Canadian LC Disbursements denominated in U.S. Dollars or Agreed Foreign Currency
or the CDOR Rate in the case of unreimbursed Canadian LC Disbursements
denominated in Canadian Dollars, in each case, for such day as determined by the
relevant Issuing Lender and (ii) for each day thereafter, the sum of 2% plus the
rate applicable to its U.S. Revolving Base Rate Loans, Canadian Revolving Base
Rate Loans or C$ Prime Loans for such day. Any payment made by any Lender after
3:00 P.M. (New York or Montreal, Quebec, time as applicable) on any Business Day
shall be deemed for purposes of the preceding sentence to have been made on the
next succeeding Business Day.
(j) FUNDS RECEIVED FROM A BORROWER IN RESPECT OF DRAWN LETTERS OF
CREDIT. Whenever an Issuing Lender receives a payment of a U.S. LC Obligation or
a Canadian LC Obligation as to which the Canadian Administrative Agent has
received for the account of such Issuing Lender any payments from the Lenders
pursuant to SUBSECTION (i) above, such Issuing Lender shall pay the amount of
such payment to the Canadian Administrative Agent and the Canadian
Administrative Agent shall promptly pay to each U.S. Revolving Lender or
Canadian Revolving Lender, as applicable, which has paid its pro-rata share
thereof, in U.S. Dollars or Canadian Dollars in Federal (U.S. or Canadian, as
applicable) or other immediately available funds, an amount equal to such
Lender's pro-rata share of the principal amount thereof and interest thereon for
each day after relevant date of payment at the Federal Funds Rate, in the case
of the U.S. LC Obligations or Canadian LC Obligations denominated in U.S.
Dollars or Agreed Foreign Currency or the CDOR Rate, in the case of Canadian LC
Obligations denominated in Canadian Dollars.
(k) OBLIGATIONS IN RESPECT OF LETTERS OF CREDIT UNCONDITIONAL. The
obligations of each relevant Borrower under SECTION 2.05(h) above shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement, under all circumstances whatsoever,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of this Agreement or any Letter of Credit
or any document related hereto or thereto;
(iii) the use which may be made of the Letter of Credit by, or
any acts or omission of, a beneficiary of a Letter of Credit (or any Person
for whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other
rights that such Borrower or any Subsidiary thereof may have at any time
against a beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), any Issuing Lender or any other
-71-
Person, whether in connection with this Agreement or any Letter of Credit
or any document related hereto or thereto or any unrelated transaction;
(v) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) payment under a Letter of Credit against presentation to
an Issuing Lender of a draft or certificate that does not comply with the
terms of such Letter of Credit; PROVIDED that the relevant Issuing Lender's
determination that documents presented under such Letter of Credit comply
with the terms thereof shall not have constituted gross negligence or
willful misconduct, as determined by a final and non-appealable decision of
a court of competent jurisdiction, of such Issuing Lender; or
(vii) any other act or omission to act or delay of any kind by
any Issuing Lender (not constituting gross negligence or willful misconduct
as determined by a final and non-appealable decision of a court of
competent jurisdiction) or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of this
SUBSECTION (vii), constitute a legal or equitable discharge of such
Borrower's obligations hereunder.
(l) DESIGNATION OF SUBSIDIARIES AS ACCOUNT PARTIES. Notwithstanding
anything to the contrary set forth in this Agreement, a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Subsidiary of the relevant Borrower; PROVIDED that
notwithstanding such statement, the relevant Borrower requesting such Letter of
Credit shall be the actual account party for all purposes of this Agreement for
such Letter of Credit and such statement shall not affect such Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
(m) MODIFICATION AND EXTENSION. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as a Credit Extension
hereunder.
(n) UNIFORM CUSTOMS AND PRACTICES. Unless otherwise expressly agreed
by the relevant Issuing Lender and the relevant Borrower when a Letter of Credit
is issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the "International Standby Practices 1998" published
by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each Standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance shall apply to each Trade Letter of
Credit.
(o) RESPONSIBILITY OF ISSUING LENDERS. It is expressly understood and
agreed that the obligations of the Issuing Lenders hereunder to the U.S.
Revolving Lenders or Canadian Revolving Lenders, as applicable, are only those
expressly set forth in this Agreement and that each Issuing Lender shall be
entitled to assume that the conditions precedent set forth in SECTION 4.02 have
been satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; PROVIDED, HOWEVER, that nothing set
forth in this SECTION 2.05 shall be deemed to prejudice the right of any U.S.
Revolving Lender or Canadian Revolving Lender, as applicable, to recover from
any Issuing Lender any amounts made available by such U.S. Revolving Lender or
Canadian Revolving Lender as applicable to such Issuing Lender pursuant to this
SECTION 2.05 in the event that it is determined by a final and non-appealable
decision of a court of competent jurisdiction that the payment with respect to a
Letter of Credit constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
-72-
(p) CONFLICT WITH LC DOCUMENTS. In the event of any conflict between
this Agreement and any LC Document, this Agreement shall govern.
(q) INDEMNIFICATION OF ISSUING LENDERS.
(i) In addition to its other obligations under this
Agreement, each relevant Borrower hereby agrees to protect, indemnify, pay
and save each Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that such Issuing Lender may incur
or be subject to as a consequence, direct or indirect, of (A) the issuance
of any Letter of Credit for the account of such Borrower or (B) the failure
of such Issuing Lender to honor a drawing under a Letter of Credit issued
for the account of such Borrower as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority (all such acts or omissions, herein
called "GOVERNMENT ACTS").
(ii) As between each relevant Borrower and each Issuing
Lender, the relevant Borrower shall assume all risks of the acts or
omissions of or the misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lenders shall not be responsible for: (A) the form,
validity, sufficiency, accuracy, genuineness (except with respect to such
Issuing Lender) or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw
upon a Letter of Credit; (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any documents required in order to make a
drawing under a Letter of Credit or of the proceeds thereof; and (G) any
consequences arising from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's rights or
powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted
by an Issuing Lender, under or in connection with any Letter of Credit or
the related certificates, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to any Borrower or any
other Credit Party; PROVIDED, HOWEVER, that notwithstanding the foregoing,
the Borrowers may have a claim against an Issuing Lender, and such Issuing
Lender may be liable to the Borrowers, to the extent, but only to the
extent, of any direct (as opposed to consequential or exemplary) damages
suffered by either Borrower which such Borrower proves in a final and
non-appealable judgment of a court of competent jurisdiction were caused by
such Issuing Lender's willful misconduct or gross negligence or such
Issuing Lender's failure to pay under any Letter of Credit issued by such
Issuing Lender after the presentation to it by the beneficiary thereof of a
sight draft and certificate(s) strictly complying with the terms and
conditions of such Letter of Credit. It is the intention of the parties
that this Agreement shall be construed and applied to protect and indemnify
the Issuing Lenders against any and all risks involved in the issuance of
any Letter of Credit, all of which risks are hereby assumed by the Credit
Parties, including, without limitation, any and all risks of any present or
future Government Acts; PROVIDED, HOWEVER, that notwithstanding the
foregoing, the Borrowers may have a claim against an Issuing Lender, and
-73-
such Issuing Lender may be liable to the Borrowers, to the extent, but only
to the extent, of any direct (as opposed to consequential or exemplary)
damages suffered by either Borrower which such Borrower proves in a final
and non-appealable judgment of a court of competent jurisdiction were
caused by such Issuing Lender's willful misconduct or gross negligence or
such Issuing Lender's failure to pay under any Letter of Credit issued by
such Issuing Lender after the presentation to it by the beneficiary thereof
of a sight draft and certificate(s) strictly complying with the terms and
conditions of such Letter of Credit. The Issuing Lenders shall not, in any
way, be liable for any failure by the Issuing Lenders or anyone else to pay
any drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lenders.
(iv) Nothing in this SUBSECTION (q) is intended to limit the
reimbursement obligation of any Borrower contained in this SECTION 2.05.
The obligations of each relevant Borrower under this SUBSECTION (q) shall
survive the termination of this Agreement. No act or omission of any
current or prior beneficiary of a Letter of Credit shall in any way affect
or impair the rights of any Issuing Lender to enforce any right, power or
benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in
this SUBSECTION (q), no Borrower shall have any obligation to indemnify any
Issuing Lender to the extent arising out of any liability incurred by the
Issuing Lender arising of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction in a
final and non-appealable judgment. Nothing in this Agreement shall relieve
any Issuing Lender of any liability to any Borrower in respect of any
action taken by the Issuing Lender which action constitutes gross
negligence or willful misconduct of the Issuing Lender or a violation of
the UCP or Uniform Commercial Code, as applicable, as determined by a final
and non-appealable decision of a court of competent jurisdiction.
(r) CASH COLLATERAL. If any Borrower is required pursuant to the terms
of this Agreement or any other Senior Finance Document to Cash Collateralize any
LC Obligations, such Borrower shall deposit in a U.S. Dollar or Canadian Dollar
account, as applicable (which may be a U.S. ▇▇ ▇▇▇▇ Collateral Account under the
U.S. Security Agreement or Canadian ▇▇ ▇▇▇▇ Collateral Account under the PPSA
Security Agreement, as the case may be), with the relevant Collateral Agent an
amount in U.S. Dollars in the case of U.S. LC Obligations or Canadian LC
Obligations denominated in U.S. Dollars and Canadian Dollars in the case of
Canadian LC Obligations denominated in Canadian Dollars in cash, equal to 105%
of such LC Obligations; PROVIDED that the portions of such amount attributable
to undrawn Foreign Currency Letters of Credit or LC Disbursements in an Agreed
Foreign Currency reimbursement for which is not yet overdue shall be deposited
in such Agreed Foreign Currency in the actual amounts of such undrawn Letters of
Credit and LC Disbursements. Such deposits shall be held by the relevant
Collateral Agent as collateral for the payment and performance of the respective
LC Obligations. For purposes of this PARAGRAPH (r), the relevant Foreign
Currency LC Exposure shall be calculated using the Exchange Rates in effect on
the date the applicable Borrower is required to Cash Collateralize the relevant
Foreign Currency Letter of Credit pursuant to this Agreement or any other Senior
Finance Document. The relevant Collateral Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over each collateral
account referred to in this SUBSECTION (r). The relevant Collateral Agent will,
at the request of the relevant Borrower, invest amounts deposited in such
accounts in Cash Equivalents; PROVIDED, HOWEVER, that (i) the relevant
Collateral Agent shall not be required to make any investment that, in its sole
judgment, would require or cause such Collateral Agent to be in, or would result
in any, violation of any Law, (ii) such Cash Equivalents shall be subjected to a
first priority perfected security interest in favor of such Collateral Agent and
(iii) if an Event of Default shall have occurred and be continuing, the
selection of such Cash Equivalents shall be in the sole discretion of such
Collateral Agent. The relevant Borrower shall indemnify each Collateral Agent
for any losses relating to
-74-
such investments in Cash Equivalents. Other than any interest or profits earned
on such investments, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in such accounts. Moneys in such
accounts shall be applied by the relevant Collateral Agent to reimburse the
Issuing Lenders immediately for drawings under the applicable Letters of Credit
and, if the maturity of the Loans has been accelerated, to satisfy the relevant
LC Obligations of the relevant Borrower. If a Borrower is required to provide an
amount of cash collateral hereunder as a result of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to such
Borrower within three Business Days after all Events of Default have been cured
or waived. If a Borrower is required to provide an amount of cash collateral
hereunder pursuant to SECTION 2.09(a) or 2.10(b)(i), (ii) or (iii), such amount
(to the extent not applied as aforesaid) shall be returned to such Borrower upon
demand; PROVIDED that, after giving effect to such return, (i) the aggregate
U.S. Revolving Outstandings would not exceed the U.S. Revolving Committed Amount
or the aggregate Canadian Revolving Outstandings would not exceed the Canadian
Revolving Committed Amount, as applicable, and (ii) no Default or Event of
Default shall have occurred and be continuing. Each Borrower hereby pledges and
assigns to each respective Collateral Agent, for its respective benefit and the
benefit of the Finance Parties, each cash collateral account established by it
hereunder (and all monies and investments held therein) to secure its Finance
Obligations.
(s) CONVERSION. If the Loans become immediately due and payable on any
date pursuant to ARTICLE VIII, all amounts (i) that a Borrower is at the time or
thereafter becomes required to reimburse or otherwise pay to the Canadian
Administrative Agent in respect of LC Disbursements made under any Foreign
Currency Letter of Credit (other than amounts in respect of which such Borrower
has deposited cash collateral pursuant to SECTION 2.05(r), if such cash
collateral was deposited in the applicable Agreed Foreign Currency, to the
extent so deposited or applied), (ii) that the applicable Revolving Lenders are
at the time or thereafter become required to pay to the Canadian Administrative
Agent and the Canadian Administrative Agent is at the time or thereafter becomes
required to distribute to the applicable Issuing Lender pursuant to SECTION
2.05(i) above in respect of unreimbursed LC Disbursements made under any Foreign
Currency Letter of Credit and (iii) of each applicable Revolving Lender's
Participation Interest in any Foreign Currency Letter of Credit under which an
LC Disbursement has been made shall, in each case automatically and with no
further action required, be converted into the U.S. Dollar Amount thereof
calculated using the Exchange Rates in effect on such date (or in the case of
any LC Disbursements made after such date, on the date such LC Disbursement is
made). On and after such conversion, all amounts accruing and owed to the
Canadian Administrative Agent, the applicable Issuing Lender or any Lender in
respect of the Senior Obligations described in this paragraph shall accrue and
be payable in U.S. Dollars at the rates otherwise applicable hereunder.
(t) RESIGNATION OR REMOVAL OF AN ISSUING LENDER. An Issuing Lender may
resign at any time by giving 60 days' notice to the Canadian Administrative
Agent, the U.S. Revolving Lenders or Canadian Revolving Lenders, as applicable,
and the Parent Borrower or the U.S. Borrower, as applicable; PROVIDED, HOWEVER,
that any such resignation shall not affect the rights or obligations of the
Issuing Lender with respect to Letters of Credit issued by it prior to such
resignation. Upon any such resignation, the Parent Borrower or the U.S.
Borrower, as applicable, shall (within 60 days after such notice of resignation)
either appoint a successor, or terminate the unutilized LC Commitment of such
Issuing Lender; PROVIDED, HOWEVER, that, if the Parent Borrower elects to
terminate such unutilized LC Commitment, the Parent Borrower or the U.S.
Borrower, as applicable, may at any time thereafter that the U.S. Revolving
Commitments or Canadian Revolving Commitment as applicable are in effect
reinstate such LC Commitment in connection with the appointment of another
Issuing Lender. Subject to SUBSECTION (u) below, upon the acceptance of any
appointment as an Issuing Lender hereunder by a successor Issuing Lender, such
successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Issuing Lender and the retiring Issuing Lender shall
be discharged from its obligations to issue Additional Letters of Credit
hereunder. The acceptance of any appointment as Issuing
-75-
Lender hereunder by a successor Issuing Lender shall be evidenced by an
agreement entered into by such successor, in a form reasonably satisfactory to
the Parent Borrower or the U.S. Borrower, as applicable, and the Canadian
Administrative Agent and, from and after the effective date of such agreement,
(i) such successor shall be a party hereto and have all the rights and
obligations of an Issuing Lender under this Agreement and the other Senior
Finance Documents and (ii) references herein and in the other Senior Finance
Documents to the "Issuing Lender" shall be deemed to refer to such successor or
to any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require.
(u) RIGHTS WITH RESPECT TO OUTSTANDING LETTERS OF CREDIT. After the
resignation of an Issuing Lender hereunder the retiring Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement and the other Senior Finance Documents
with respect to Letters of Credit issued by it prior to such resignation, but
shall not be required to issue additional Letters of Credit.
(v) REPORTING. Each Issuing Lender will report in writing to the
Canadian Administrative Agent (i) on or prior to each Business Day on which such
Issuing Lender expects to issue, amend, renew or extend any Letter of Credit,
the date of such issuance or amendment, and the aggregate U.S. Dollar Amount
(and Canadian Dollar Amount in the case of Canadian Letters of Credit
denominated in Canadian Dollars) of the face amount of Letters of Credit to be
issued, amended, renewed or extended by it and outstanding after giving effect
to such issuance, amendment, renewal or extension (and such Issuing Lender shall
advise the Canadian Administrative Agent on such Business Day whether such
issuance, amendment, renewal or extension occurred and whether the amount
thereof changed), (ii) on each Business Day on which such Issuing Lender makes
any LC Disbursement, the date of such LC Disbursement, the amount (in the
applicable currency), the currency and the U.S. Dollar Amount (and, if
applicable, the Canadian Dollar Amount) of such LC Disbursement and (iii) on any
Business Day on which any relevant Borrower fails to reimburse an LC
Disbursement required to be reimbursed to such Issuing Lender on such day, the
date of such failure, the relevant Borrower, the currency and the U.S. Dollar
Amount (and, if applicable, Canadian Dollar Amount) of such LC Disbursement.
SECTION 2.06 BANKERS' ACCEPTANCES. The Parent Borrower may issue
Bankers' Acceptances denominated in Canadian Dollars, for acceptance and, at the
Parent Borrower's option, purchase by the Canadian Revolving Lenders (in the
case of a new Credit Extension under the Canadian Revolving Commitment or a
conversion/continuation of Canadian Revolving Loans pursuant to SECTION 2.08) in
accordance with the provisions of this SECTION 2.06. Notwithstanding any other
provision of this SECTION 2.06, no Canadian Revolving Lender shall be obligated
to make a new Credit Extension by accepting and purchasing Bankers' Acceptances
unless, after giving effect to such Credit Extension, the aggregate Canadian
Revolving Outstandings do not exceed the Canadian Revolving Committed Amount.
(a) METHOD OF ISSUANCE OF BANKERS' ACCEPTANCES. The Parent Borrower
shall give the Canadian Administrative Agent notice substantially in the form of
EXHIBIT A-2 hereto (a "BANKERS' ACCEPTANCE REQUEST") of any requested borrowing
by way of Bankers' Acceptances prior to 10:00 A.M. (Montreal, Canada time) two
Business Days prior to the proposed date of the issuance of Bankers'
Acceptances. Such Bankers' Acceptance Request shall specify: (i) the proposed
issuance date of the related Bankers' Acceptances (which shall be a Business
Day); (ii) the amount of such borrowing (in Canadian Dollars); (iii) the
proposed BA Contract Period to be applicable thereto; and (iv) if such borrowing
relates to conversion/continuation of a Loan or previously issued Banker's
Acceptance, the relevant Notice of Extension/Conversion. Each borrowing by way
of Bankers' Acceptances shall be in a minimum aggregate undiscounted face amount
of C$2,500,000 or any larger multiple of C$1,000,000 (except that any such
borrowing in the form of a new Credit Extension under the Canadian Revolving
Commitment may be in the aggregate amount of the unused Canadian Revolving
Committed Amount). The undiscounted face amount of each Bankers' Acceptance
shall be C$1,000,000 or any larger multiple
-76-
thereof. Bankers' Acceptances shall be in form and substance reasonably
satisfactory to each Canadian Revolving Lender. Notwithstanding anything herein
to the contrary, no more than 15 issuances of Bankers' Acceptances shall be
outstanding hereunder at any one time.
(b) BANKERS' ACCEPTANCES IN BLANK. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, the Parent Borrower shall, from time
to time as required, provide to the Canadian Administrative Agent Drafts duly
executed and endorsed in blank by the Parent Borrower in quantities sufficient
for each Canadian Revolving Lender to fulfill its obligations hereunder. In
addition, the Parent Borrower hereby appoints each Canadian Revolving Lender or
the Canadian Administrative Agent as its attorney, with respect to Bankers'
Acceptances for which the Parent Borrower has provided a Bankers' Acceptance
Request:
(i) to complete and sign on behalf of the Parent Borrower,
either manually or by facsimile or mechanical signature, the Drafts to
create the Bankers' Acceptances (with, in each relevant Lender's or the
Canadian Administrative Agent's discretion, the inscription "This is a
depository ▇▇▇▇ subject to the Depository Bills and Notes Act (Canada)");
(ii) after the acceptance thereof by any Canadian Revolving
Lender or the Canadian Administrative Agent, to endorse on behalf of the
Parent Borrower, either manually or by facsimile or mechanical signature,
such Bankers' Acceptance in favor of the applicable purchaser or endorsee
thereof including, in such Canadian Revolving Lender's or the Canadian
Administrative Agent's discretion, such Lender or the Canadian
Administrative Agent or a clearing house (as defined by the Depository
Bills and Notes Act (Canada));
(iii) to deliver such Bankers' Acceptances to such purchaser
or to deposit such Bankers' Acceptances with such clearing house; and
(iv) to comply with the procedures and requirements
established from time to time by such Lender or the Canadian Administrative
Agent or such clearing house in respect of the delivery, transfer and
collection of bankers' acceptances and depository bills.
Furthermore, while Canadian Revolving Loans, Bankers' Acceptances or
Canadian Revolving Commitments are outstanding, the Canadian Administrative
Agent is hereby appointed the irrevocable agent of the Parent Borrower with the
power and authority to make the necessary arrangements for the negotiation, sale
and delivery on the money market, in accordance with normal market practice, of
Bankers' Acceptances issued hereunder.
The Parent Borrower recognizes and agrees that all Bankers'
Acceptances signed, endorsed, delivered or deposited on its behalf by a Canadian
Revolving Lender shall bind the Parent Borrower as fully and effectually as if
signed in the handwriting of and duly issued, delivered or deposited by an
authorized officer of the Parent Borrower. Each Canadian Revolving Lender is
hereby authorized to accept such Drafts or issue such Bankers' Acceptances
endorsed in blank in such face amounts as may be determined by such Canadian
Revolving Lender in accordance with the terms of this Agreement; PROVIDED that
the aggregate amount thereof is less than or equal to the aggregate amount of
Bankers' Acceptances required to be accepted by such Canadian Revolving Lender.
No Canadian Revolving Lender shall be responsible or liable for its failure to
accept a Bankers' Acceptance if the cause of such failure is, in whole or in
part, due to the failure of the Parent Borrower to provide duly executed and
endorsed Drafts to the Canadian Administrative Agent on a timely basis, nor
shall any Canadian Revolving Lender be liable for any damage, loss or other
claim arising by reason of any loss or improper use of any such instrument,
except loss or improper use arising by reason of the gross negligence or willful
misconduct of such Canadian Revolving Lender. The Canadian Administrative Agent
and each
-77-
Canadian Revolving Lender shall exercise such care in the custody and
safekeeping of Drafts as it would exercise in the custody and safekeeping of
similar property owned by it. Each Canadian Revolving Lender will, upon the
request of the Parent Borrower, promptly advise the relevant Borrower of the
number and designation, if any, of Drafts then held by it for the Parent
Borrower. Each Canadian Revolving Lender shall maintain a record with respect to
Drafts and Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent in blank hereunder, (ii) voided by it for any reason, (iii)
accepted by it hereunder, (iv) purchased by it hereunder and (v) canceled at
their respective maturities. Each Canadian Revolving Lender further agrees to
retain such records in the manner and for the statutory periods provided in the
various Canadian provincial or federal statutes and regulations which apply to
such Canadian Revolving Lender.
(c) EXECUTION OF BANKERS' ACCEPTANCES. Drafts of the Parent Borrower
to be accepted as Bankers' Acceptances hereunder shall be duly executed on
behalf of the Parent Borrower. Notwithstanding that any person whose signature
appears on any Bankers' Acceptance as a signatory for the Parent Borrower may no
longer be an authorized signatory for the relevant Borrower at the date of
issuance of a Bankers' Acceptance, such signature shall nevertheless be valid
and sufficient for all purposes as if such authority had remained in force at
the time of such issuance, and any such Bankers' Acceptance so signed shall be
binding on the Parent Borrower.
(d) ISSUANCE OF BANKERS' ACCEPTANCES. Promptly following receipt of
Bankers' Acceptance Requests, the Canadian Administrative Agent shall so advise
the Canadian Revolving Lenders, and shall advise each Canadian Revolving Lender
of the undiscounted face amount and BA Contract Period of each Draft to be
accepted by it. The aggregate face amount of Drafts to be accepted by a Canadian
Revolving Lender shall be determined by the Canadian Administrative Agent on a
pro-rata basis by reference to the respective Canadian Revolving Commitments of
the Canadian Revolving Lenders except that, if the face amount of a Draft which
would otherwise be accepted by a Canadian Revolving Lender would not be
C$100,000 or a larger multiple thereof, such face amount shall be increased or
reduced by the Canadian Administrative Agent in its reasonable discretion to the
nearest whole multiple of C$100,000.
(e) ACCEPTANCE OF BANKERS' ACCEPTANCES. Each Draft to be accepted by a
Canadian Revolving Lender shall be accepted at such Lender's Applicable Lending
Office in Canada.
(f) PURCHASE OF BANKERS' ACCEPTANCES. Each Canadian Revolving Lender
shall be required to purchase (subject to the commercial availability of a
resale market) from the Parent Borrower on the date of issuance of each Bankers'
Acceptance, at the Applicable BA Discount Rate, the Bankers' Acceptances
accepted by it on such date and to provide to the Canadian Administrative Agent
the BA Discount Proceeds thereof not later than 12:00 Noon (Montreal, Canada
time) on such date for the account of the Parent Borrower. The BA Acceptance Fee
payable by the Parent Borrower to such Canadian Revolving Lender under
SECTION 2.12(c) in respect of each Bankers' Acceptance accepted and purchased by
such Canadian Revolving Lender from the Parent Borrower shall be netted out of
the BA Discount Proceeds payable by such Canadian Revolving Lender under this
SECTION 2.06(f). Not later than 2:00 P.M. (Montreal, Canada time) on the date of
issuance of each Bankers' Acceptance, the Canadian Administrative Agent shall
make such BA Discount Proceeds available to the Parent Borrower by crediting the
account of the Parent Borrower on the books of the Canadian Administrative
Agent's Office with the aggregate of the amounts made available to the Canadian
Administrative Agent by the Canadian Revolving Lenders and in like funds as
received by the Canadian Administrative Agent.
(g) SALE OF BANKERS' ACCEPTANCES. Each Lender may at any time and from
time to time hold, sell, rediscount or otherwise dispose of any or all of the
Bankers' Acceptances accepted and purchased by it hereunder.
-78-
(h) WAIVER OF PRESENTMENT AND OTHER CONDITIONS. To the extent
permitted by applicable law, the Parent Borrower waives presentment for payment
and any other defense to payment of any amounts due to a Lender in respect of a
Bankers' Acceptance accepted by it pursuant to this Agreement, which might exist
solely by reason of such Bankers' Acceptance being held, at the maturity
thereof, by such Lender in its own right, and the Parent Borrower agrees not to
claim any days of grace if such Lender as holder sues the Parent Borrower on the
Bankers' Acceptances for payment of the amount payable by the Parent Borrower
thereunder.
(i) REIMBURSEMENT OBLIGATIONS. The Parent Borrower shall be
irrevocably and unconditionally obligated forthwith to reimburse each relevant
Lender in Canadian Dollars for the face amount of each Bankers' Acceptance
accepted by such Lender pursuant to this Agreement. Such reimbursement payment
shall be due and payable at or before 12:00 Noon (Montreal, Canada time) on the
maturity date for the relevant Bankers' Acceptance. The Parent Borrower shall
make each such reimbursement payment (i) by causing any proceeds of a Refunding
Bankers' Acceptance issued in accordance with SUBSECTION 2.06(d) or conversion
of such Bankers' Acceptance in accordance with SECTION 2.08 to be applied in
reduction of such reimbursement payment and/or (ii) by depositing the amount of
such reimbursement payment (or any portion thereof remaining unpaid after
application of any proceeds referred to in CLAUSE (i)) with the Canadian
Administrative Agent's Office. The Parent Borrower's payment in accordance with
this subsection shall satisfy its obligations under any Bankers' Acceptance to
which it relates, and the Lender, which has accepted such Bankers' Acceptance,
shall thereafter be solely responsible for the payment of such Bankers'
Acceptance.
(j) REFUNDING BANKERS' ACCEPTANCES. The Parent Borrower shall give the
Canadian Administrative Agent notice prior to 10:00 A.M. (Montreal, Canada time)
two Business Days prior to the maturity date of each Bankers' Acceptance of the
Parent Borrower's intention to issue a Bankers' Acceptance (each a "REFUNDING
BANKERS' ACCEPTANCE") on such maturity date to provide for the payment of such
maturing Bankers' Acceptance (it being understood that payments by the Parent
Borrower and fundings by the Lenders in respect of each maturing Bankers'
Acceptance and the related Refunding Bankers' Acceptance shall be made on a net
basis reflecting the difference between the undiscounted face amount of such
maturing Bankers' Acceptance and the BA Discount Proceeds (net of the applicable
BA Acceptance Fee) of such Refunding Bankers' Acceptance). If the Parent
Borrower fails to give such notice or does not have sufficient funds on deposit
in the amount of reimbursement payment in accordance with SECTION 2.06(i), the
Parent Borrower shall be deemed to have requested that such maturing Bankers'
Acceptance be repaid with the proceeds of C$ Prime Loans (without any
requirement to give notice with respect thereto), commencing on the maturity
date of such maturing Bankers' Acceptance.
(k) CASH COLLATERAL. Upon the occurrence and during the continuance of
any Event of Default, the Parent Borrower shall, forthwith, without any demand
or the taking of any action by the Canadian Administrative Agent, deposit in an
account with the Canadian Collateral Agent an amount in Canadian Dollars in cash
equal to the then aggregate face amount of all outstanding Bankers' Acceptances.
The Canadian Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Such deposits
shall bear interest at the Canadian Collateral Agent's rates as may be
applicable in respect of other deposits of similar amounts for similar terms.
Interest, if any, on amounts held in such account shall accumulate in such
account. Monies in such account shall be applied by the Canadian Collateral
Agent to reimburse the Canadian Revolving Lenders immediately upon the maturity
of outstanding Bankers' Acceptances purchased by such Lenders. If the Parent
Borrower is required to provide an amount of cash collateral hereunder, such
amount (to the extent not applied as aforesaid) shall be returned to the Parent
Borrower within three Business Days after all Events of Default have been cured
or waived. The Parent Borrower hereby pledges and assigns to the Canadian
Collateral Agent, for its benefit and the benefit of the Finance Parties, each
cash collateral
-79-
account established by it hereunder (and all monies and investments held
therein) to secure its Finance Obligations.
(l) SPECIAL INTERPRETIVE PROVISIONS RELATING TO NOTES. For avoidance
of doubt, any note contemplated by clause (b) of the definition of Bankers'
Acceptances and issued by the Parent Borrower hereunder shall be deemed to be
accepted by the relevant Canadian Revolving Lender upon the purchase of such
note by such Canadian Revolving Lender and the provisions of this SECTION 2.06
shall govern and be read accordingly.
SECTION 2.07 INTEREST.
(a) RATE OPTIONS APPLICABLE TO LOANS. Each Borrowing made prior to the
Syndication Date shall be comprised of (i) in the case of U.S.
Dollar-Denominated Loans, Base Rate Loans or (except in the case of the U.S.
Dollar-Denominated Loans that are Swingline Loans, which shall be made and
maintained as Base Rate Loans), no earlier than 30 days after the Closing Date
(unless earlier consented to by the Administrative Agents in their sole
discretion), Eurodollar Loans with a one-month Interest Period (ending on the
same date) and (ii) in the case of Loans denominated in Canadian Dollars, C$
Prime Loans, in each case as the relevant Borrower may request pursuant to
SECTION 2.02. Each Borrowing made on or after the Syndication Date shall be
comprised of (i) in the case of U.S. Dollar-Denominated Loans, Base Rate Loans
or (except in the case of the U.S. Dollar-Denominated Loans that are Swingline
Loans, which shall be made and maintained as Base Rate Loans) Eurodollar Loans
and (ii) in the case of Loans denominated in Canadian Dollars, C$ Prime Loans,
in each case as the relevant Borrower may request pursuant to SECTION 2.02.
Borrowings of more than one Type may be outstanding at the same time; PROVIDED,
HOWEVER, that no Borrower may request any Borrowing that, if made, would result
in an aggregate for any Class of more than 10 separate Groups of Eurodollar
Loans being outstanding hereunder at any one time. For this purpose, Loans
having different Interest Periods, regardless of whether commencing on the same
date, shall be considered separate Groups.
(b) BASE RATE LOANS. Each Loan of a Class, which is made as, or
converted into, a Base Rate Loan, shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made as, or
converted into, a Base Rate Loan until it becomes due or is converted into a
Loan of any other Type, at a rate per annum equal to the Base Rate for such day
plus the then Applicable Margin. Such interest shall be payable in arrears on
each Interest Payment Date and, with respect to the principal amount of any Base
Rate Loan converted to a Eurodollar Loan, on the date such Base Rate Loan is so
converted. Any overdue principal of and, to the extent permitted by Law,
interest on any Base Rate Loan of any Class shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to Base Rate Loans of the same Class for such day.
(c) C$ PRIME LOANS. Each C$ Prime Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made as, or converted into, a C$ Prime Loan until it becomes due or is converted
into a Bankers' Acceptance, at a rate per annum equal to the C$ Prime Rate for
such day plus the then Applicable Margin. Such interest shall be payable in
arrears on each Interest Payment Date and, with respect to the principal amount
of any C$ Prime Loan converted to a Bankers' Acceptance, on the date such C$
Prime Loan is so converted. To the extent permitted by Law, any overdue
principal of and interest on any C$ Prime Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the rate otherwise applicable to C$ Prime Loans for such day.
(d) EURODOLLAR LOANS. Each Eurodollar Loan of a Class shall bear
interest on the outstanding principal amount thereof, for each day during the
Interest Period applicable thereto, at a rate
-80-
per annum equal to the sum of the applicable Adjusted Eurodollar Rate for such
Interest Period plus the Applicable Margin. Such interest shall be payable for
each Interest Period on each Interest payment Date. To the extent permitted by
Law, any overdue principal of and interest on any Eurodollar Loan of any Class
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the sum of 2% plus the rate otherwise applicable to Eurodollar
Loans of the same Class for such day.
(e) DETERMINATION AND NOTICE OF INTEREST RATES. The Term B
Administrative Agent or Canadian Administrative Agent, as applicable, shall
determine each interest rate applicable to the Loans hereunder. The relevant
Administrative Agent shall give prompt notice to the relevant Borrower and the
participating Lenders of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error. Any
notice with respect to Eurodollar Loans shall, without the necessity of the
relevant Administrative Agent so stating in such notice, be subject to the
provisions of the definition of "Applicable Margin" providing for adjustments in
the Applicable Margin applicable to such Loans after the beginning of the
Interest Period applicable thereto. When during an Interest Period any event
occurs that causes an adjustment in the Applicable Margin applicable to Loans to
which such Interest Period is applicable, the relevant Administrative Agent
shall give prompt notice to the relevant Borrower and the Lenders of such event
and the adjusted rate of interest so determined for such Loans, and its
determination thereof shall be conclusive in the absence of manifest error.
(f) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default, the principal of and, to the extent permitted by Law,
interest on the Loans and any other amounts owing herein or under the other
Finance Documents shall bear interest, payable on demand, at a per annum rate
equal to (i) in the case of principal of any Loan, the rate otherwise applicable
to such Loan during such period pursuant to this SECTION 2.07 plus 2.00%
(without duplication of any amount owing in respect of Base Rate Loans under the
third sentence of SECTION 2.07(b), in respect of C$ Prime Loans under the third
sentence of SECTION 2.07(c) or in respect of Eurodollar Loans under the third
sentence of SECTION 2.07(d)), (ii) in the case of interest on any Loan, the rate
specified in the third sentence of SECTION 2.07(b) in respect of Base Rate
Loans, the rate specified in the third sentence of SECTION 2.07(c) in respect of
C$ Prime Rate Loans or the rate specified in the third sentence of SECTION
2.07(d) in respect of Eurodollar Loans and (iii) in the case of any other
amount, if expressly provided for herein, at the rate so provided and otherwise
at the Base Rate plus the Applicable Margin for U.S. Revolving Base Rate Loans
plus 2.00%.
SECTION 2.08 EXTENSION AND CONVERSION.
(a) CONTINUATION AND CONVERSION OPTIONS. The Loans included in each
Borrowing shall bear interest initially at the type of rate allowed by
SECTION 2.07 and as specified by the relevant Borrower in the applicable Notice
of Borrowing. Thereafter, the relevant Borrower shall have the option, on any
Business Day, to elect to change or continue the type of interest rate borne by
each Group of Loans or Credit Extensions (subject in each case to the provisions
of ARTICLE III, SECTIONS 2.07(a) and 2.08(d)), as follows:
(i) if such Loans are Base Rate Loans, the relevant Borrower
may elect to convert such Loans to Eurodollar Loans as of any Business Day;
(ii) if such Loans are Eurodollar Loans, the relevant
Borrower may elect to continue such Loans as Eurodollar Loans for an
additional Interest Period, subject to SECTION 3.05 in the case of any such
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans;
-81-
(iii) if such Loans are Eurodollar Loans, the relevant
Borrower may elect to convert such loans to Base Rate Loans, subject to
SECTION 3.05 in the case of any such conversion effective on any day other
than the last day of the then current Interest Period applicable to such
Loans;
(iv) if such Loans are C$ Prime Loans, the Parent Borrower
may elect to convert such Loans to Bankers' Acceptances; and
(v) the Parent Borrower may elect to convert Bankers'
Acceptances to C$ Prime Loans.
Each such election shall be made by delivering a notice, substantially in the
form of EXHIBIT A-1 hereto, in the case of the U.S. Borrower, or substantially
in the form of EXHIBIT A-2 hereto, in the case of the Parent Borrower (a "NOTICE
OF EXTENSION/CONVERSION," which may be by telephone if promptly confirmed in
writing), which notice shall not thereafter be revocable by the relevant
Borrower, to the Term B Administrative Agent (in the case of Term B Loans) and
the Canadian Administrative Agent (in the case of U.S. Revolving Loans, Canadian
Revolving Loans, Term A Loans and Bankers' Acceptances) not later than
10:00 A.M. (local time in the applicable Administrative Office) on the third
Business Day before the conversion or continuation selected in such notice is to
be effective. A Notice of Extension/Conversion may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans
and/or the amount of Bankers' Acceptances; PROVIDED that (i) such portion is
allocated ratably among the Loans comprising such Group and (ii) the portion to
which such Notice applies, and the remaining portion to which it does not apply,
are each (A) C$1,000,000 (and larger multiples of C$1,000,000 in excess
thereof), in the case of conversions to or from Bankers' Acceptances, (B)
C$1,000,000 (and larger multiples of C$1,000,000), in the case of conversions to
C$ Prime Loans and (C) in all other cases, US$2,000,000 or any larger multiple
of US$500,000. Notwithstanding the foregoing, a Borrower may not (i) elect to
convert the currency in which any Loan is denominated, (ii) elect to convert any
C$ Prime Loan to a Bankers' Acceptance while any Default or Event of Default has
occurred and is continuing or (iii) elect to convert any Bankers' Acceptance to
a C$ Prime Loan on any date other than the maturity date for such Bankers'
Acceptance.
(b) CONTENTS OF NOTICE OF EXTENSION/CONVERSION. Each Notice of
Extension/Conversion shall specify:
(i) the Group of Loans (or portion thereof) or Bankers'
Acceptances to which such notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with the
applicable clause of SUBSECTION 2.08(a) above;
(iii) if the Loans comprising such Group are to be converted,
the new Type of Loans and, (A) if the Loans being converted are to be
Eurodollar Loans, the duration of the next succeeding Interest Period
applicable thereto or, (B) if the Loans converted are to be borrowed by way
of Bankers' Acceptances, the duration of the next succeeding BA Contract
Period applicable thereto; and
(iv) if such Loans are to be continued as Eurodollar Loans
for an additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period and BA Contract Period specified in a Notice of Interest
Rate Election shall comply with the provisions of the definitions of the terms
"Interest Period" and "BA Contract Period",
-82-
respectively. If no Notice of Extension/Conversion is timely received prior to
the end of an Interest Period for any Group of Eurodollar Loans, the relevant
Borrower shall be deemed to have elected that such Group be converted to Base
Rate Loans as of the last day of such Interest Period.
(c) NOTIFICATION TO LENDERS. Upon receipt of a Notice of
Extension/Conversion from a Borrower pursuant to SECTION 2.08(a) above, the Term
B Administrative Agent, or the Canadian Administrative Agent, as applicable,
shall promptly notify each relevant Lender of the contents thereof.
(d) LIMITATION ON CONVERSION/CONTINUATION OPTIONS. No Borrower shall
be entitled to elect to convert any U.S. Dollar-Denominated Loans to, or
continue any U.S. Dollar-Denominated Loans for an additional Interest Period as,
Eurodollar Loans if (i) the aggregate principal amount of any Group of
Eurodollar Loans created or continued as a result of such election would be less
than US$2,000,000 or (ii) a Default under SECTION 8.01(a) or an Event of Default
shall have occurred and be continuing when such Borrower delivers notice of such
election to the relevant Administrative Agent.
(e) CERTAIN MANDATORY CONVERSIONS AND PREPAYMENTS OF EURODOLLAR LOANS.
On the date on which the aggregate unpaid U.S. Dollar Amount of Eurodollar Loans
comprising any Group of Loans shall be reduced, by payment, prepayment or
otherwise, to less than US$2,000,000, such Loans shall, on the last day of the
then current Interest Period therefor, automatically be converted into Base Rate
Loans. Upon the occurrence and during the continuance of a Default under
SECTION 8.01(a) or an Event of Default, (i) each Eurodollar Loan shall
automatically, on the last day of the then current Interest Period therefor, be
converted into Base Rate Loans and (ii) the obligation of the Lenders to make,
or to continue or convert Loans into, Eurodollar Loans shall be suspended. The
relevant Administrative Agent shall promptly notify each Lender of the relevant
Class of the aggregate U.S. Dollar Amount of any such Eurodollar Loan and such
Lender's pro-rata share of such Loan.
(f) ACCRUED INTEREST. Accrued interest on a Loan (or portion thereof)
being extended or converted shall be paid by the relevant Borrower (i) with
respect to any Base Rate Loan being converted to a Eurodollar Loan or any C$
Prime Loan being converted to a borrowing by way of Bankers' Acceptance, on the
last day of the first fiscal quarter of the Borrowers ending on or after the
date of conversion and (ii) otherwise, on the date of extension or conversion.
SECTION 2.09 MATURITY OF LOANS.
(a) MATURITY OF REVOLVING LOANS. The Revolving Loans shall mature on
the Revolving Termination Date, and any Revolving Loans, LC Obligations and BA
Reimbursement Obligations then outstanding (together with accrued interest
thereon and fees in respect thereof) shall be due and payable on such date. The
Swingline Loans shall mature on the Canadian Swingline Termination Date or the
U.S. Swingline Termination Date, as applicable, and any Swingline Loans
(together with accrued interest thereon and fees in respect thereof) shall be
due and payable on such date.
(b) SCHEDULED AMORTIZATION OF TERM A LOANS. On each Principal
Amortization Payment Date set forth below, the Parent Borrower shall repay, and
there shall become due and payable (together with accrued interest thereon), the
percentage of the aggregate initial principal amount of Term A Loans set forth
below opposite such date, and the Term A Loans of each Lender shall be ratably
repaid:
TERM A LOAN PRINCIPAL
PRINCIPAL AMORTIZATION PAYMENT DATES AMORTIZATION PAYMENT, %
------------------------------------ -----------------------
February 28, 2005 2.50%
May 31, 2005 2.50%
August 31, 2005 3.75%
-83-
TERM A LOAN PRINCIPAL
PRINCIPAL AMORTIZATION PAYMENT DATES AMORTIZATION PAYMENT, %
------------------------------------ -----------------------
November 30, 2005 3.75%
February 28, 2006 3.75%
May 31, 2006 3.75%
August 31, 2006 5.00%
November 30, 2006 5.00%
February 28, 2007 5.00%
May 31, 2007 5.00%
August 31, 2007 6.25%
November 30, 2007 6.25%
February 29, 2008 6.25%
May 31, 2008 6.25%
August 31, 2008 6.25%
November 30, 2008 6.25%
February 28, 2009 6.25%
Term A Maturity Date 16.25%
Total 100.00%
Each amount specified above with respect to Term A Loans shall be ratably
reduced by the excess, if any, of the Term A Committed Amount over the aggregate
outstanding principal amount of the Term A Borrowing funded on the Closing Date.
To the extent not previously paid in full, all amounts outstanding in respect of
the Term A Loans shall be due and payable on the Term A Maturity Date.
(c) SCHEDULED AMORTIZATION OF TERM B LOANS. On each Principal
Amortization Payment Date set forth below, the Parent Borrower shall repay, and
there shall become due and payable (together with accrued interest thereon), the
percentage of the aggregate initial principal amount of Term B Loans set forth
below opposite such date, and the Term B Loans of each Lender shall be ratably
repaid:
TERM B LOAN PRINCIPAL
PRINCIPAL AMORTIZATION PAYMENT DATES AMORTIZATION PAYMENT, %
------------------------------------ -----------------------
November 30, 2004 0.25%
February 28, 2005 0.25%
May 31, 2005 0.25%
August 31, 2005 0.25%
November 30, 2005 0.25%
February 28, 2006 0.25%
May 31, 2006 0.25%
August 31, 2006 0.25%
November 30, 2006 0.25%
February 28, 2007 0.25%
May 31, 2007 0.25%
August 31, 2007 0.25%
November 30, 2007 0.25%
February 29, 2008 0.25%
May 31, 2008 0.25%
August 31, 2008 0.25%
November 30, 2008 0.25%
February 28, 2009 0.25%
May 31, 2009 0.25%
August 31, 2009 0.25%
November 30, 2009 0.25%
February 28, 2010 0.25%
-84-
TERM B LOAN PRINCIPAL
PRINCIPAL AMORTIZATION PAYMENT DATES AMORTIZATION PAYMENT, %
------------------------------------ -----------------------
May 31, 2010 0.25%
August 31, 2010 0.25%
November 30, 2010 23.50%
February 28, 2011 23.50%
May 31, 2011 23.50%
Term B Maturity Date 23.50%
Total 100.00%
Each amount specified above with respect to Term B Loans shall be ratably
reduced by the excess, if any, of the Term B Committed Amount over the
aggregate outstanding principal amount of the Term B Borrowing funded on the
Closing Date. To the extent not previously paid in full, all amounts
outstanding in respect of the Term B Loans shall be due and payable on the Term
B Maturity Date.
SECTION 2.10 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrowers shall have the right
voluntarily to prepay Loans in whole or in part from time to time, subject to
SECTION 3.06 but otherwise without premium or penalty; PROVIDED, HOWEVER, that
(i) each partial prepayment of Loans shall be in a minimum principal amount of
(A) US$5,000,000 and integral multiples of US$1,000,000 in excess thereof, in
the case of U.S. Dollar-Denominated Loans, and (B) C$5,000,000 and integral
multiples of C$1,000,000 in excess thereof, in the case of C$ Prime Loans, (ii)
the relevant Borrower shall have given prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the Term B
Administrative Agent or the Canadian Administrative Agent (with a copy to the
other), as applicable, (A) in the case of any Revolving Loan, which is a Base
Rate Loan, by 11:00 A.M. (local time in the applicable Administrative Office),
on the date of prepayment, (B) in the case of any Canadian Revolving Loan which
is a C$ Prime Loan, by 11:00 A.M. (Montreal, Quebec, time) at least one Business
Day prior to the date of prepayment and (C) in the case of any other Loan, by
10:00 A.M. (local time in the applicable Administrative Office), at least three
Business Days prior to the date of prepayment; PROVIDED that no notice shall be
required in connection with the prepayment of Swingline Loans or the Borrowers'
reimbursement obligations pursuant to SECTION 2.05(h), and (iii) voluntary
prepayments of Term Loans under this SECTION 2.10(a) shall be applied ratably to
the Term A Loans and the Term B Loans (in each case in inverse order of the
remaining Principal Amortization Payments thereof). Each notice of prepayment
shall specify the prepayment date, the principal amount (in the relevant
currency) and U.S. Dollar Amount or Canadian Dollar Amount (if applicable) to be
prepaid, whether the Loan to be prepaid is a U.S. Revolving Loan, Canadian
Revolving Loan, Term A Loan, Term B Loan or Swingline Loan, the currency of the
Loan to be prepaid, whether the Loan to be prepaid is a Eurodollar Loan, a C$
Prime Loan or a Base Rate Loan and, in the case of a Eurodollar Loan, the
Interest Period of such Loan. Each notice of prepayment shall be irrevocable and
shall commit the relevant Borrower to prepay such Loan by the amount stated
therein on the date stated therein. Subject to the foregoing, amounts prepaid
under this SECTION 2.10(a) shall be applied as the relevant Borrower may elect;
PROVIDED that (i) if the U.S. Borrower (or the U.S. Subsidiary Borrower) fails
to specify the application of a voluntary prepayment, then such prepayment shall
be applied first to U.S. Revolving Loans, then to U.S. Swingline Loans in each
case first to Base Rate Loans and then to Eurodollar Loans of the applicable
Class in direct order of Interest Period maturities, and (ii) if the Parent
Borrower (or the Canadian Subsidiary Borrower) fails to specify the application
of a voluntary prepayment, then such prepayment shall be applied first to
Canadian Revolving Loans then to Canadian Swingline Loans, in each case first to
C$ Prime Loans, and Base Rate Loans and then to Eurodollar Loans of the
applicable Class in direct order of Interest Period maturities, then ratably to
the Term A Loans and to the Term B Loans (in each case in inverse order of the
remaining Principal Amortization Payments thereof) in each case first to Base
Rate Loans and then to Eurodollar Loans of the
-85-
applicable Class in direct order of Interest Period maturities. All prepayments
under this SECTION 2.10(a) shall be accompanied by accrued interest on the
principal amount being prepaid to the date of payment. Notwithstanding anything
to the contrary above, borrowings by way of Bankers' Acceptances may not be
prepaid.
(b) MANDATORY PREPAYMENTS.
(i) U.S. REVOLVING COMMITTED AMOUNT. If on any date the
aggregate U.S. Revolving Outstandings exceed the U.S. Revolving Committed
Amount: (A) the U.S. Borrower shall repay, and there shall become due and
payable (together with accrued interest thereon), on such date an aggregate
principal amount of U.S. Swingline Loans equal to such excess; (B) if the
outstanding U.S. Swingline Loans have been repaid in full or if no U.S.
Swingline Loans are outstanding, the U.S. Borrower shall prepay, and there
shall become due and payable (together with accrued interest thereon), U.S.
Revolving Loans in such amounts as are necessary so that, after giving
effect to the repayment of the U.S. Swingline Loans and the repayment of
U.S. Revolving Loans, the aggregate U.S. Revolving Outstandings do not
exceed the U.S. Revolving Committed Amount; and (C) if the outstanding U.S.
Revolving Loans and U.S. Swingline Loans have been repaid in full, the U.S.
Borrower shall Cash Collateralize U.S. LC Obligations so that, after giving
effect to the repayment of U.S. Swingline Loans and U.S. Revolving Loans
and the Cash Collateralization of U.S. LC Obligations pursuant to this
SUBSECTION (i), the aggregate U.S. Revolving Outstandings does not exceed
the U.S. Revolving Committed Amount. In determining the aggregate U.S.
Revolving Outstandings for purposes of this SUBSECTION (i), U.S. LC
Obligations shall be reduced to the extent that they are Cash
Collateralized as contemplated by this SUBSECTION (i). Each prepayment of
U.S. Revolving Loans required pursuant to this SUBSECTION (i) shall be
applied ratably among outstanding U.S. Revolving Loans based on the
respective amounts of principal then outstanding. Each Cash
Collateralization of U.S. LC Obligations required by this SUBSECTION (i)
shall be applied ratably among U.S. LC Obligations based on the respective
amounts thereof then outstanding.
(ii) CANADIAN REVOLVING COMMITTED AMOUNT. IF on any date the
aggregate Canadian Revolving Outstandings exceeds the Canadian Revolving
Committed Amount for any reason whatsoever, including, without limitation
(but subject to the last sentence of this SUBSECTION (ii)), due to
fluctuations in the Exchange Rate: (A) the Parent Borrower shall repay, and
there shall become due and payable (together with accrued interest
thereon), on such date an aggregate principal amount of the Canadian
Swingline Loans equal to such excess; (B) if the outstanding Canadian
Swingline Loans have been repaid in full, the Parent Borrower shall prepay,
and these shall become due and payable (together with accrued interest
thereon) Canadian Revolving Loans in such amounts as are necessary so that,
after giving effect to the repayment of the Canadian Swingline Loans and
the repayment of Canadian Revolving Loans, the aggregate Canadian Revolving
Outstandings do not exceed the Canadian Revolving Committed Amount; (C) if
the outstanding Canadian Revolving Loans and Canadian Swingline Loans have
been repaid in full, the Parent Borrower shall Cash Collateralize Canadian
LC Obligations so that, after giving effect to the repayment of Canadian
Swingline Loans and Canadian Revolving Loans and the Cash Collateralization
of Canadian LC Obligations pursuant to this SUBSECTION (ii), the aggregate
Canadian Revolving Outstandings does not exceed the Canadian Revolving
Committed Amount; and (D) if the outstanding Canadian LC Obligations have
been Cash Collateralized in full and Canadian Revolving Loans and Canadian
Swingline Loans repaid in full, the Parent Borrower shall Cash
Collateralize BA Reimbursement Obligations so that, after giving effect to
the repayment thereof pursuant to this SUBSECTION (i), the aggregate
Canadian Revolving Outstandings does not exceed the Canadian Revolving
Committed Amount. In determining the aggregate Canadian Revolving
Outstandings for purposes of this SUBSECTION (ii), Canadian LC
-86-
Obligations and BA Reimbursement Obligations shall be reduced to the extent
that they are Cash Collateralized as contemplated by this SUBSECTION (ii).
Each prepayment of Canadian Revolving Loans by the Parent Borrower required
pursuant to this SUBSECTION (ii) shall be applied ratably among outstanding
Canadian Revolving Loans of the Parent Borrower based on the respective
amounts of principal then outstanding. Each Cash Collateralization of
Canadian LC Obligations or BA Reimbursement Obligations of the Parent
Borrower required by this SUBSECTION (ii) shall be applied ratably among
Canadian LC Obligations or BA Reimbursement Obligations, respectively, of
the Parent Borrower based on the respective amounts thereof then
outstanding. Notwithstanding anything herein to the contrary, if on any
Currency Calculation Date, the Canadian Administrative Agent shall
determine in its sole discretion that, due to the fluctuations in the
Exchange Rate, the aggregate Canadian Revolving Outstandings exceed the
Canadian Revolving Committed Amount, the Canadian Administrative Agent
shall notify the Parent Borrower and the Canadian Revolving Lenders of such
excess and the Parent Borrower shall, if the amount of such excess is 5% or
more of the Canadian Revolving Committed Amount, within three Business Days
of the receipt of such notice, pay the Loans and/or Cash Collateralize or
pay the LC Obligations and the BA Reimbursement Obligations in the order
and in the manner provided in this SUBSECTION (ii).
(iii) FOREIGN CURRENCY LETTERS OF CREDIT. IF on any Currency
Calculation Date after giving effect to the determination of all relevant
U.S. Dollar Amounts or Canadian Dollar Amounts, as the case may be,
hereunder, (x) the aggregate U.S. Foreign Currency LC Exposure exceeds the
U.S. Foreign Currency LC Committed Amount or (y) the aggregate Canadian
Foreign Currency LC Exposure exceeds the Canadian Foreign Currency LC
Committed Amount, the relevant Borrower shall Cash Collateralize LC
Obligations in respect of the relevant Foreign Currency Letters of Credit
so that, after giving effect to the Cash Collateralization of such LC
Obligations pursuant to this SUBSECTION (iii), the relevant aggregate
Foreign Currency LC Exposure does not exceed the US. Foreign Currency LC
Committed Amount or the Canadian Foreign Currency LC Committed Amount, as
the case may be. In determining the relevant aggregate Foreign Currency LC
Exposure for purposes of this SUBSECTION (iii), LC Obligations shall be
reduced to the extent that they are Cash Collateralized as contemplated by
this SUBSECTION (iii). Each Cash Collateralization of LC Obligations
required by this SUBSECTION (iii) shall be applied ratably among LC
Obligations in respect of all relevant Foreign Currency Letters of Credit
based on the respective amounts thereof then outstanding.
(iv) EXCESS CASH FLOW. Within 110 days after the end of each
fiscal year of the Parent Borrower (commencing with the fiscal year ending
May 31, 2005), the Borrowers shall prepay the Loans in an aggregate U.S.
Dollar Amount equal to (A) 50% of the Excess Cash Flow for such prior
fiscal year (or, in the case of the fiscal year ending May 31, 2005, a
portion thereof from the Closing Date), if the Leverage Ratio as of the
last day of such fiscal year was equal to or greater than 3.25 to 1.00, or
(B) 0% of the Excess Cash Flow for such prior fiscal year, if the Leverage
Ratio as of the last day of such fiscal year was less than 3.25 to 1.00.
(v) ASSET DISPOSITIONS, CASUALTIES AND CONDEMNATIONS. ETC.
Upon acceptance by the Term A Lenders and Term B Lenders of the Asset
Disposition Event Offer or Casualty/Condemnation Event Offer, as provided
in SUBSECTION (c) below, or any reduction after the Closing Date of the
cash consideration paid to the Seller under the Acquisition Agreement
(including as a result of any indemnity payment by the Seller to the Parent
Borrower or the U.S. Borrower), the Borrowers shall prepay the Term Loans
in an aggregate U.S. Dollar Amount equal to 100% of the accepted Asset
Disposition Proceeds, 100% of the accepted Casualty Proceeds or
Condemnation Proceeds, or 100% of the proceeds of such reduction, as
applicable; PROVIDED that if no Term Loans remain outstanding at the time
an Asset Disposition (other than an Excluded
-87-
Asset Disposition), a Casualty or Condemnation shall occur, the Borrowers
shall prepay the Revolving Loans in an aggregate U.S. Dollar Amount equal
to 100% of such Asset Disposition Proceeds, Casualty Proceeds or
Condemnation Proceeds, as the case may be.
(vi) DEBT ISSUANCES. Within two Business Days after receipt
by any Group Company of proceeds from any Debt Issuance (other than any
Debt Issuance permitted pursuant to SECTION 7.01(i) THROUGH (xvi)of this
Agreement), the Borrowers shall prepay the Loans in an aggregate U.S.
Dollar Amount equal to 100% of the Net Cash Proceeds of such Debt Issuance.
(vii) EQUITY ISSUANCES. Within two Business Days after receipt
by any Group Company of proceeds from any Equity Issuance (other than any
Excluded Equity Issuance), the Borrowers shall prepay the Loans in an
aggregate U.S. Dollar Amount equal to (A) 50% of the Net Cash Proceeds of
such Equity Issuance if the Leverage Ratio as of the last day of the fiscal
quarter of the Parent Borrower ending on or most recently preceding the
date of the receipt of such proceeds was equal to or greater than 3.25 to
1.00, or (B) 0% of such Equity Issuance if the Leverage Ratio as of the
last day of the fiscal quarter of the Parent Borrower ending on or most
recently preceding the date of receipt of such proceeds was less than 3.25
to 1.00.
(viii) PAYMENTS IN RESPECT OF SUBORDINATED DEBT. Immediately
upon receipt by the relevant Administrative Agent or any Lender of any
amount so payable pursuant to the subordination provision of any Debt of
the Parent Borrower or any of its Subsidiaries that is subordinate to the
Senior Obligations, all proceeds thereof shall be applied as set forth in
SUBSECTION (ix)(B) below.
(ix) APPLICATION OF MANDATORY PREPAYMENTS. All amounts
required to be paid pursuant to this SECTION 2.10(b) shall be applied as
follows:
(A) with respect to all amounts paid pursuant to
SECTION 2.10(b)(i) or (ii), in the order provided in such Section; and
(B) subject to SUBSECTIONS (b)(x), (xi) and (c)below,
with respect to all amounts paid pursuant to SECTIONS 2.10(b)(iv),
(v), (vi), or (vii), (viii), (1) first, pro-rata to the Term A Loans
and the Term B Loans (in each case ratably to the remaining Principal
Amortization Payments thereof) and (2) second, to (x) the U.S.
Revolving Loans and the Canadian Revolving Loans ratably based upon
the remaining outstanding U.S. Dollar Amount thereof (without
reduction in the U.S. Revolving Committed Amount or the Canadian
Revolving Committed Amount) and (y) then to Swingline Loans (without
reduction in the U.S. Revolving Committed Amount or the Canadian
Revolving Committed Amount, or the U.S. Swingline Committed Amount or
the Canadian Swingline Committed Amount).
(x) TERM B FACILITY EXCEPTIONS. Notwithstanding anything
contained in any Senior Finance Document, but subject to Article VIII, the
aggregate amount of repayments or prepayments, as the case may be, required
to be made under SECTION 2.09(c) and this SECTION 2.10(b)(iv), (but only
with respect to the prepayment arising out of any reduction of the cash
consideration under the Acquisition Agreement), (vi),(vii) or (viii) from
the Closing Date to the first day after the fifth anniversary thereof (the
"CATCH-UP DATE") in respect of Term B Loans shall not exceed 25% of the
aggregate outstanding principal amount of Term B Loans as of the Closing
Date. Within five (5) Business Days following the Catch-up Date, the Parent
Borrower shall repay or prepay the Term B Loans in an aggregate principal
amount equal to the amounts that should have been applied to the repayments
or prepayments in respect of the Term
-88-
B Loans but for this SECTION 2.10(b)(x), and such payments shall be applied
first, to the Term B Loans and then, in the manner specified in SECTION
2.10(b)(ix) above. Pending the prepayment described in the preceding
sentence, the funds for such prepayment shall be kept in the Sinking Fund
Account pursuant to SUBSECTION (xiii) below.
(xi) TERM B DEFERRALS. Notwithstanding the forgoing, any
holder of Term B Loans may elect, subject to the limitations set forth
below, to decline all or a portion of any mandatory prepayment of Term B
Loans of such Lender pursuant to SECTION 2.10(b)(iv), (v), (vi), (vii),
(viii) or (x), PROVIDED that (A) such holder shall have given written or
telecopy notice to the Term B Administrative Agent (with a copy to the
Canadian Administrative Agent) (or telephone notice promptly confirmed in
writing) at least one Business Day prior to the date on which such
prepayment is proposed to be made by the Parent Borrower, as set forth in
the notice from the Parent Borrower pursuant to SECTION 2.10(b)(xv), and
(B) after giving effect to any concurrent prepayment of Term A Loans
pursuant to SECTION 2.l0(b)(iv), (v), (vi), (vii) or (viii), the Term A
Loans shall not have been paid in full. Any such notice from a holder of
Term B Loans shall set forth the percentage that such holder has elected to
decline of the prepayment which such holder would otherwise receive
pursuant to this SECTION 2.10(b). If any such election is made, the
aggregate amount of the prepayment which holders of Term B Loans shall have
elected to decline shall be applied, first, to prepay Term A Loans (ratably
to the remaining Principal Amortization Payments thereof) and, second,
after the Term A Loans have been paid in full, to the Term B Loans held by
each Lender which elected to decline any portion of such mandatory
prepayment (ratably to the remaining Principal Amortization Payments
thereof), pro-rata according to the amount of such prepayment which each
such holder elected to decline.
(xii) ORDER OF APPLICATIONS. All amounts allocated to
Revolving Outstandings as provided in this SECTION 2.10(b) shall be applied
(A) in the case of U.S. Revolving Outstandings, first, to Revolving Loans,
second, after all Revolving Loans have been repaid, to Swingline Loans, and
third (in the case of SUBSECTIONS (b)(i) and (b)(iii) only), after all
Swingline Loans have been repaid, to Cash Collateralize or pay the LC
Obligations, and (B) in the case of Canadian Revolving Outstandings, first,
to Revolving Loans, second, after all Revolving Loans have been repaid, to
Swingline Loans, and third (in the case of SUBSECTIONS (b)(ii) and (b)(iii)
only), after all Swingline Loans have been repaid, to Cash Collateralize or
pay BA Reimbursement Obligations and LC Obligations; PROVIDED that any
balance of such amounts remaining after all Revolving Loans of the
applicable Class have been repaid and, if applicable, all LC Obligations
and/or BA Reimbursement Obligations have been Cash Collateralized shall be
applied pro-rata to the Term A Loans and Term B Loans (in each case ratably
to the remaining Principal Amortization Payments thereof). Within the
parameters of the applications set forth above, prepayments of Revolving
Loans and Term Loans shall be applied first to Base Rate Loans or C$ Prime
Loans, as the case may be, and then, subject to SUBSECTION (xiii) below, to
Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this SECTION 2.10(b) shall be subject to SECTION 3.06.
All prepayments under this SECTION 2.10(b) shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
(xiii) SINKING FUND ACCOUNT. Amounts that should have been
applied, but for SUBSECTION (x) above, to the prepayment of Term B Loans
shall be deposited by the Borrowers in a separate Sinking Fund Account (as
defined below) for the Loans of such Class (the aggregate amounts so
deposited (exclusive of any interest or earnings thereon), "SINKING FUND
DEPOSITS"). The Sinking Fund Deposits can be withdrawn by the Parent
Borrower on the occurrence of the first of: (i) the Parent Borrower having
fulfilled all of its obligations described in SUBSECTION (x) above
(including the penultimate sentence thereof), and (ii) all outstanding Term
B Loans, with respect to which amounts above have been deposited in the
Sinking Fund Account, have been
-89-
paid in full. If the Parent Borrower does not fulfill all of its
obligations described in SUBSECTION (x) above within five Business Days
following the Catch-up Date, the U.S. Collateral Agent may withdraw such
amounts in the Sinking Fund Account necessary to fulfill the Parent
Borrower's obligations established in subsection (x) above. The Term B
Administrative Agent shall apply any cash deposited in the Sinking Fund
Account that is withdrawn by the U.S. Collateral Agent pursuant to the
preceding sentence to prepay the Term B Loans. For purposes of this
Agreement, the term "SINKING FUND ACCOUNT" shall mean an account (which may
include the Sinking Fund Account established under the U.S. Security
Agreement) established by the Parent Borrower over which the U.S.
Collateral Agent shall have a fully perfected first priority security
interest, including the exclusive right of withdrawal to fulfill the Parent
Borrower's obligations pursuant to subsection (x) above where the Parent
Borrower has not otherwise fulfilled its obligations existing in accordance
with the terms of SUBSECTION (x) above. The U.S. Collateral Agent will, on
the instructions of the Parent Borrower, invest amounts on deposit in the
Sinking Fund Account in (x) Cash Equivalents and (y) other Investments
otherwise permitted by this Agreement, in each case of the foregoing
clauses (x) and (y) that mature or that can be liquidated for their cash
value on or prior to the Catch-up Date, PROVIDED, HOWEVER, that (i) no
Investment will be made on behalf of the Borrower that, in the sole
judgment of the U.S. Collateral Agent, would result in any, violation of
any Law, (ii) Investments permitted under this subsection (xiii) shall be
subjected to a first priority perfected security interest in favor of the
U.S. Collateral Agent and (iii) if any Event of Default shall have occurred
and be continuing, the selection of such Investments permitted under this
subsection (xiii) shall be in the sole discretion of the U.S. Collateral
Agent. The Parent Borrower may, upon giving prior written notice to the
U.S. Collateral Agent, withdraw interest and profits (including capital
gains) on the Investments from the cash on deposit in such account. The
Parent Borrower shall have the obligation to ensure that the aggregate
value of the Sinking Fund Account is not less than the Sinking Fund
Deposits and shall contribute to the Sinking Fund Account an amount to
cover any deficiency as and when required by the U.S. Collateral Agent.
Other than any interest and profits (including capital gains) earned on
such Investments, the Sinking Fund Account shall not bear interest. If the
maturity of the Loans has been accelerated pursuant to SECTION 8.02, the
Term B Administrative Agent may, in its sole discretion, cause the U.S.
Collateral Agent to withdraw amounts on deposit in the Sinking Fund Account
and apply such funds to satisfy any of the Senior Obligations.
(xiv) PAYMENTS CUMULATIVE. Except as otherwise expressly
provided in this SECTION 2.10, payments required under any subsection or
clause of this SECTION 2.10 are in addition to payments made or required
under any other subsection or clause of this SECTION 2.10.
(xv) NOTICE. The Parent Borrower shall give to the
Administrative Agents and the Lenders at least five Business Days' prior
written or telecopy notice of each and every event or occurrence requiring
a prepayment under SECTION 2.10(b)(iv), (v), (vi), (vii), (viii), (ix) or
(x), including the amount of Net Cash Proceeds expected to be received
therefrom and the expected schedule for receiving such proceeds; PROVIDED,
HOWEVER, that in the case of any prepayment event consisting of a Casualty
or Condemnation, the Parent Borrower shall give such notice within five
Business Days after the occurrence of such event.
(c) DISPOSITION EVENTS, CASUALTY EVENTS AND CONDEMNATION EVENTS.
(i) DISPOSITION EVENTS. Within two (2) Business Days after
any Asset Disposition (other than an Excluded Asset Disposition) the
Borrowers shall give written notice to the Administrative Agents thereof
(an "ASSET DISPOSITION EVENT OFFER"), which shall contain and constitute an
offer by and on behalf of the Borrowers to prepay the Term Loans as
specified in SECTIONS 2.10(b)(v) and (ix) in an aggregate principal amount
equal to the entire amount of such
-90-
Asset Disposition Proceeds on a date specified in the Asset Disposition
Event Offer that is not less than two Business Days and not more than five
Business Days after the date of the Asset Disposition Event Offer. For
purposes of this SECTION 2.10(c)(i):
(A) Asset Disposition Proceeds shall not include Net
Cash Proceeds from an Asset Disposition Event to the extent that (1)
no Default or Event of Default then exists or would arise therefrom,
and (2) the Borrowers have delivered a certificate of a senior
financial officer of the Borrowers to the Administrative Agents on or
prior to such date stating that such Net Cash Proceeds shall be
reinvested in assets used or usable in the business of the Parent
Borrower and its Subsidiaries (but if such Subsidiary is not a
Subsidiary Guarantor, such reinvestment must be permitted by
SECTION 7.06 hereof) within one year following the date of such Asset
Disposition Event (which certificate shall set forth the estimates of
the proceeds so expended);
(B) if all or any portion of Net Cash Proceeds
permitted to be applied to reinvestment pursuant to clause (A) above
are not so used within the period beginning on the date such Net Cash
Proceeds are received and ending on the first anniversary of such date
(or if during such period of time the Borrowers shall not have entered
into a definitive written agreement to reinvest such Net Cash Proceeds
pursuant to clause (A) above and such reinvestment pursuant to such
agreement is not consummated within the reasonable period of time not
exceeding 60 days after the date of such agreement), then such
remaining portion shall be deemed Asset Disposition Proceeds received
on the last day of such period (or such earlier date as the relevant
Subsidiary determines not to reinvest any portion thereof) or upon the
acceleration of the maturity of the Loans, as applicable, as specified
in SECTIONS 2.10(b)(v) and (ix) (it being understood that the
foregoing shall in no way affect the obligation of any Subsidiary to
obtain the consent of the Required Lenders to effect any Asset
Disposition not permitted by this Agreement);
(C) pending reinvestment in accordance with clause
(A) above or the making of an Asset Disposition Event Offer, the
relevant Borrower shall either (1) temporarily prepay U.S. Revolving
Loans and/or the Canadian Revolving Loans, as applicable, in
accordance with SECTION 2.10(a) in an amount equal to such Net Cash
Proceeds or (2) deposit such Net Cash Proceeds in the relevant
Reinvestment Funds Account of such Borrower established under the U.S.
Security Agreement or PPSA Security Agreement (as applicable), to be
released therefrom in connection with such reinvestment (unless the
maturity of the Loans shall have accelerated) or otherwise applied in
accordance with the terms of the PPSA Security Agreement or U.S.
Security Agreement, as applicable; and
(D) Asset Disposition Proceeds from a Permitted
Securitization Transaction permitted by SECTION 7.05(xiii) or a
Sale/Leaseback Transaction permitted by SECTION 7.13 shall be limited
to 75% of Net Cash Proceeds from such Permitted Securitization
Transaction or such Sale/Leaseback Transaction; PROVIDED that such
Asset Disposition Proceeds may not be reinvested and clauses (A)
through (C) above shall not apply to such Asset Disposition Proceeds.
Each Lender shall have the right to accept or decline the Asset Disposition
Event Offer by providing written notice to the Parent Borrower (on behalf
of itself and the other Borrowers) within ten (10) Business Days of receipt
of the Asset Disposition Event Offer. The failure of any Lender to notify
the Parent Borrower of its acceptance within such ten (10) Business Days
shall be deemed to be a rejection of the Asset Disposition Event Offer. To
the extent any portion of
-91-
Asset Disposition Proceeds subject to the Asset Disposition Event Offer are
declined by the relevant Lenders, the relevant Borrower may use such
portion of the Asset Disposition Proceeds for any purpose not otherwise
prohibited by this Agreement.
(ii) CASUALTY EVENTS AND CONDEMNATION EVENTS. Within two (2)
Business Days after any Casualty or Condemnation, the Borrowers shall give
written notice to the Administrative Agents thereof (a
"CASUALTY/CONDEMNATION EVENT OFFER"), which shall contain and constitute an
offer by and on behalf of the Borrowers to prepay the Term Loans as
specified in SECTIONS 2.10(b)(v) and (ix) in an aggregate principal amount
equal to the entire amount of such Casualty Proceeds or Condemnation Award
on a date specified in the Casualty/Condemnation Event Offer that is not
less than two Business Days and not more than five Business Days after the
date of the Casualty/Condemnation Event Offer. For purposes of this SECTION
2.10(c)(ii):
(A) Casualty Proceeds and Condemnation Proceeds shall
not include Net Cash Proceeds from a Casualty Event or Condemnation
Event to the extent that (1) no Default or Event of Default then
exists or would arise therefrom, (2) the Borrowers have delivered a
certificate of a senior financial officer of the Borrowers to the
Administrative Agents on or prior to such date stating that such Net
Cash Proceeds shall be reinvested in assets used or usable in the
business of the Parent Borrower or any of its Subsidiaries or the
repair, replacement or restoration of the property in respect of which
such Casualty Event or Condemnation Event has occurred, in each case
within one year following the date of the receipt of such Net Cash
Proceeds (which certificate shall set forth the estimates of the
proceeds to be so expended);
(B) the relevant Group Company shall diligently
proceed in a commercially reasonable manner to complete the repair,
restoration or replacement of the properties that were the subject of
such Casualty or Condemnation, as described in the certificate
referenced in SUBSECTION (A)(2) above, and if all or any portion of
Net Cash Proceeds permitted to be applied to reinvestment pursuant to
clause (A) above are not so used within the period beginning on the
date such Net Cash Proceeds are received and ending on the first
anniversary of such date (or if during such period of time the
Borrowers shall not have entered into a definitive written agreement
to reinvest such Net Cash Proceeds pursuant to clause (A) above and
such reinvestment pursuant to such agreement is not consummated within
the reasonable period of time not exceeding 60 days after the date of
such agreement), then such remaining portion shall be deemed Casualty
Proceeds or Condemnation Proceeds (as the case may be) received on the
last day of such period (or such earlier date as the relevant Group
Company determines not to reinvest any portion thereof) or upon the
acceleration of the maturity of the Loans, as applicable, as specified
in SECTIONS 2.10(b)(v) and (ix); and
(C) pending reinvestment in accordance with
clause (A) above or the making of a Casualty/Condemnation Event Offer,
the relevant Borrower shall either (1) temporarily prepay U.S.
Revolving Loans and/or the Canadian Revolving Loans, as applicable, in
accordance with SECTION 2.10(a) in an amount equal to such Net Cash
Proceeds or (2) deposit such Net Cash Proceeds in the relevant
Reinvestment Funds Account of such Borrower established under the U.S.
Security Agreement or PPSA Security Agreement (as applicable), to be
released therefrom in connection with such reinvestment (unless the
maturity of the Loans shall have been accelerated) or otherwise
-92-
applied in accordance with the terms of the PPSA Security Agreement or
the U.S. Security Agreement, as applicable.
Each Lender shall have the right to accept or decline the
Casualty/Condemnation Event Offer by providing written notice to the Parent
Borrower (on behalf of itself and the other Borrowers) within ten (10)
Business Days of the receipt of the Casualty/Condemnation Event Offer. The
failure of any Lender to notify the Parent Borrower of its acceptance
within such ten (10) Business Days shall be deemed to be a rejection of the
Casualty/Condemnation Event Offer. To the extent any portion of Casualty
Proceeds or Condemnation Proceeds subject to the Casualty/Condemnation
Event Offer are declined by the relevant Lenders, the relevant Borrower may
use such portion of the Casualty Proceeds or Condemnation Proceeds for any
purpose not otherwise prohibited by this Agreement.
SECTION 2.11 ADJUSTMENT OF COMMITMENTS; RIGHT TO REPLACE LENDERS.
(a) OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS (PRO-RATA). The
U.S. Borrower may from time to time permanently reduce or terminate the U.S.
Revolving Committed Amount, and the Parent Borrower may from time to time
permanently reduce or terminate the Canadian Revolving Committed Amount, in each
case, in whole or in part, in minimum aggregate amounts of US$5,000,000 or in
integral multiples of US$1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable U.S. Revolving Committed Amount, and/or
the Canadian Revolving Committed Amount), upon five Business Days' prior written
or telecopy notice to the Canadian Administrative Agent; PROVIDED, HOWEVER, that
no such termination or reduction shall be made which would cause (i) the U.S.
Revolving Outstandings to exceed the U.S. Revolving Committed Amount as so
reduced, or (ii) the Canadian Revolving Outstandings to exceed the Canadian
Revolving Committed Amount as so reduced unless, concurrently with such
termination or reduction, the Loans of the applicable Class are repaid or, if no
Loans of the applicable Class are outstanding, BA Reimbursement Obligations
and/or LC Obligations are Cash Collateralized to the extent necessary to
eliminate such excess. The Canadian Administrative Agent shall promptly notify
each affected Lender of the receipt by the Canadian Administrative Agent of any
notice from the Parent Borrower pursuant to this SECTION 2.1l(a). Any partial
reduction of the U.S. Revolving Committed Amount, and/or the Canadian Revolving
Committed Amount pursuant to this SECTION 2.11(a) shall be applied to the
Revolving Commitments of the Lenders of the applicable Class pro-rata based upon
their respective U.S. Revolving Commitment Percentages, or Canadian Revolving
Commitment Percentages, as applicable. The Parent Borrower shall pay to the
Canadian Administrative Agent for the account of the Lenders in accordance with
the terms of SECTION 2.12, on the date of each termination or reduction of the
U.S. Revolving Committed Amount and/or the Canadian Revolving Committed Amount,
any fees accrued through the date of such termination or reduction on the amount
of the U.S. Revolving Committed Amount and/or the Canadian Revolving Committed
Amount so terminated or reduced.
(b) TERMINATION. The Revolving Commitments of the Lenders and the LC
Commitments of the Issuing Lenders shall terminate automatically on the
Revolving Termination Date. The Swingline Commitments of the Swingline Lenders
shall terminate automatically on the Swingline Termination Date. The Term A
Commitments and Term B Commitments of the Lenders shall terminate automatically
immediately after the making of the Term Loans on the Closing Date.
(c) OPTIONAL TERMINATION OF COMMITMENTS (NON-PRO-RATA); REPLACEMENT OF
LENDERS. If (i) any Lender has demanded compensation or indemnification pursuant
to SECTION 3.01 or SECTION 3.05 or suspension of its obligations hereunder
pursuant to SECTION 3.02, (ii) any Lender is a Defaulting Lender or (iii) any
Lender has failed to consent to a proposed amendment, waiver, discharge or
termination, which pursuant to the terms of SECTION 10.03 or any other provision
of any Senior Finance Document requires
-93-
the consent of all of the Lenders and with respect to which the Required Lenders
shall have granted their consent, the U.S. Borrower (in the case of a U.S.
Revolving Lender) or the Parent Borrower (in all other cases) shall have the
right, if no Default or Event of Default then exists, to (i) remove such Lender
by terminating such Lender's Commitment in full or (ii) replace such Lender by
causing such Lender to assign its Commitment (without payment of any assignment
fee) to one or more existing Lenders or Eligible Assignees pursuant to SECTION
10.06 who are prepared, in the case of the replacement of a Lender for the
reason set forth in clause (iii) above, to consent to such proposed amendment,
waiver, discharge or termination. The replacement of a Lender pursuant to this
SECTION 2.11(c) shall be effective no later than the tenth Business Day (the
"REPLACEMENT DATE") following the date of notice of such replacement to the
Lenders through the Administrative Agents, subject to the satisfaction of the
following conditions:
(i) each replacement Lender and/or Eligible Assignee, and
the relevant Administrative Agent acting on behalf of each Lender subject
to replacement, shall have satisfied the conditions to an Assignment and
Acceptance set forth in SECTION 10.06(b) and, in connection therewith, the
replacement Lender(s) and/or Eligible Assignee(s) shall pay:
(A) to each Lender subject to replacement an amount
equal in the aggregate to the sum of (w) the U.S. Dollar Amount of,
and the U.S. Dollar Amount of all accrued but unpaid interest on, its
outstanding Loans, (x) the U.S. Dollar Amount of all LC Disbursements
that have been funded by (and not reimbursed to) it under SECTION
2.05, together with all accrued but unpaid interest with respect
thereto, (y) the U.S. Dollar Amount of all Bankers' Acceptances that
have been accepted by (and not reimbursed to) it under SECTION 2.06
and (2) all accrued but unpaid fees owing to it pursuant to SECTION 2.
12;
(B) to the Issuing Lenders an amount equal to the
aggregate U.S. Dollar Amount owing by the replaced Lenders to the
Issuing Lenders as reimbursement pursuant to SECTION 2.05, to the
extent such amount was not theretofore funded by such replaced
Lenders; and
(C) to the Swingline Lenders an amount equal to the
aggregate U.S. Dollar Amount owing by the replaced Lenders to the
Swingline Lenders pursuant to SECTIONS 2.01(d)(v) and (vii) to the
extent such amount was not theretofore funded by such replaced
Lenders; and
(ii) the Borrowers shall have paid to the relevant
Administrative Agent for the account of each replaced Lender an amount
equal to all obligations owing to such replaced Lenders by the Borrowers
pursuant to this Agreement and the other Senior Finance Documents (other
than those obligations of the Borrowers referred to in CLAUSE (i)(A)
above).
(iii) In the case of the removal of a Lender pursuant to this
SECTION 2.11(c), upon (i) payment by the Borrowers to the relevant
Administrative Agent for the account of the Lender subject to such removal
of an amount equal to the U.S. Dollar Amount of the sum of (A) the
aggregate principal amount of all Loans and LC Obligations held by such
Lender, (B) the aggregate face amount of all outstanding Bankers'
Acceptances accepted by such Lender and (C) all accrued interest, fees and
other amounts owing to such Lender hereunder, including, without
limitation, all amounts payable by the Borrowers to such Lender under
ARTICLE III or SECTIONS 10.04 and 10.05, and (ii) provision by the relevant
Borrower to each Swingline Lender and each Issuing Lender of appropriate
assurances and indemnities (which may include letters of credit) as each
may reasonably require with respect to any continuing obligation of such
removed Lender to purchase Participation Interests in any LC Obligations or
Swingline Loans then outstanding, such
-94-
Lender shall without any further consent or other action by it, cease to
constitute a Lender hereunder; PROVIDED that the provisions of this
Agreement (including, without limitation, the provisions of ARTICLE III and
SECTIONS 10.04 and 10.05) shall continue to govern the rights and
obligations of a removed Lender with respect to any Loans made, any Letters
of Credit issued, any Bankers' Acceptances accepted or any other actions
taken by such removed Lender while it was a Lender.
(d) ADJUSTMENT OF THE COMMITMENTS. At any time prior to the Revolving
Termination Date, upon giving not less than thirty (30) days prior written
notice to the Canadian Administrative Agent, the Borrowers may request an
increase to the U.S. Revolving Commitment and a corresponding reduction to the
Canadian Revolving Commitment or an increase to the Canadian Revolving
Commitment and a corresponding reduction to the U.S. Revolving Commitment. Any
such notice may also include the request to increase the U.S. LC Commitment with
a corresponding reduction of the Canadian LC Commitment or to increase the
Canadian LC Commitment with a corresponding reduction of the U.S. LC Commitment.
Any such notice may request increases or decreases of the Revolving Commitments
only in the minimum amounts of US$5,000,000 (or the Canadian Dollar Equivalent
thereof) and integral multiples of US$1,000,000 (or the Canadian Dollar
Equivalent thereof) (unless the requested adjustment applies to the entire
amount of the relevant Revolving Commitment). Upon receipt of any such notice,
the Canadian Administrative Agent shall promptly communicate such request to the
Revolving Lenders. If within twenty (20) days following the giving of such
notice by the Canadian Administrative Agent, any Revolving Lender who is a
member of the Class of Revolving Lenders that is being requested to increase
their Revolving Commitments does not approve such increase in writing, THEN the
Borrowers shall have the right, if no Default or Event of Default then exists,
to replace such Lender (together with its Affiliated Revolving Lender) by
causing such Lender and its Affiliated Revolving Lender to assign their
Revolving Commitments, as adjusted pursuant to this SECTION 2.11(d) to one or
more existing Lenders or Eligible Assignees pursuant to SECTION 10.06; PROVIDED
that such replacement shall comply with the provisions of SECTION 2.1L(c)(i),
(ii) and (iii). Subject to the satisfaction of the conditions set forth in the
next sentence, any adjustment provided for in this SECTION 2.11(d) will be
effective on the first Business Day of the fiscal quarter of the Parent Borrower
(any such date, an "ADJUSTMENT DATE") following the expiry of said thirty-day
notice period and will remain in effect until the next Adjustment Date, if any.
Notwithstanding anything herein to the contrary, no adjustment of the
Commitments may be effective unless on the Adjustment Date, (i) immediately
after giving effect to such adjustment, (A) the Aggregate Revolving Committed
Amount does not exceed US$350,000,000 and (B) if the adjustment of LC
Commitments is requested (or required to comply with clause (ii) below), the sum
of the U.S. LC Committed Amount and the Canadian LC Committed Amount does not
exceed US$150,000,000, in each case of the foregoing clauses (A) and (B), as
such amounts may be reduced after giving effect to any permanent reduction of
the Revolving Commitments pursuant to SECTION 2.11(a), (ii) immediately after
giving effect to such adjustment the Canadian Revolving Commitment Percentage of
each Canadian Revolving Lender is equal to the U.S. Revolving Commitment
Percentage of such Canadian Revolving Lender or the Affiliated Revolving Lender
of such Canadian Revolving Lender and (iii) immediately prior to and after
giving effect to such adjustment, the conditions set forth in SECTION 4.02(b),
(c) and (d) are satisfied (as if such adjustment were a Credit Extension).
(e) GENERAL. The Borrowers shall pay to the Canadian Administrative
Agent for the account of the Lenders in accordance with the terms of SECTION
2.12, on the date of each termination or reduction of the U.S. Revolving
Committed Amount or the Canadian Revolving Committed Amount, as applicable, the
Commitment Fee accrued through the date of such termination or reduction on the
amount of the U.S. Revolving Committed Amount or the Canadian Revolving
Committed Amount, as the case may be, so terminated or reduced.
SECTION 2.12 FEES.
-95-
(a) COMMITMENT FEE. The Parent Borrower shall pay to the Canadian
Administrative Agent for the account of each Canadian Revolving Lender a fee on
such Lender's Canadian Revolving Commitment Percentage of the daily Unused
Canadian Revolving Commitment Amount, and the U.S. Borrower shall pay to the
Canadian Administrative Agent for the account of each U.S. Revolving Lender a
fee on such Lender's U.S. Revolving Commitment Percentage of the daily Unused
U.S. Revolving Commitment Amount, computed in each case at a per annum rate for
each day equal to 0.50% (each such fee, the "COMMITMENT FEE"). The Commitment
Fee shall commence to accrue on the date of this Agreement and shall be due and
payable in arrears on the first Business Day of each fiscal quarter of the
Parent Borrower (and any date that the U.S. Revolving Committed Amount or the
Canadian Revolving Committed Amount, as the case may be, is reduced as provided
in SECTION 2.11(a) and the Revolving Termination Date for the applicable Class)
for the immediately preceding quarter (or portion thereof), beginning with the
first of such dates to occur after the Closing Date.
(b) LETTER OF CREDIT FEES.
(i) STANDBY LETTER OF CREDIT ISSUANCE FEE. (A) The Parent
Borrower shall in the case of a Canadian Letter of Credit pay to the
Canadian Administrative Agent for the account of each Canadian Revolving
Lender and (B) the U.S. Borrower shall in the case of a U.S. Letter of
Credit cause the U.S. Borrower to pay to the Canadian Administrative Agent
for the account of each U.S. Revolving Lender, a fee (the "STANDBY LETTER
OF CREDIT FEE") on such Lender's respective Revolving Commitment Percentage
of the daily maximum amount available to be drawn under each such Standby
Letter of Credit computed at a per annum rate for each day from the date of
issuance through the date of expiration equal to the Applicable Margin for
Standby Letter of Credit Fees in effect from time to time. The Standby
Letter of Credit Fee will be payable quarterly in arrears on the second
Business Day of each fiscal quarter of the Parent Borrower for the
immediately preceding quarter (or portion thereof), beginning with the
first of such dates to occur after the date of issuance of such Letter of
Credit, and on the Revolving Termination Date for the applicable Revolving
Commitment.
(ii) TRADE LETTER OF CREDIT FEE. (A) The Parent Borrower
shall in the case of a Canadian Letter of Credit pay to the Canadian
Administrative Agent for the account of each Canadian Revolving Lender and
(B) the U.S. Borrower shall in the case of a U.S. Letter of Credit cause
the U.S. Borrower to pay to the Canadian Administrative Agent for the
account of each U.S. Revolving Lender, a fee (the "TRADE LETTER OF CREDIT
FEE") on such Lender's respective Revolving Commitment Percentage of the
daily maximum amount available to be drawn under each such Trade Letter of
Credit computed at a per annum rate for each day from the date of issuance
through the date of expiration equal to the Applicable Margin for Trade
Letter of Credit Fees in effect from time to time. The Trade Letter of
Credit Fee will be payable quarterly in arrears on the second Business Day
of each fiscal quarter of the Parent Borrower for the immediately preceding
quarter (or portion thereof), beginning with the first of such dates to
occur after the date of issuance of such Letter of Credit, and on the
Revolving Termination Date for the applicable Revolving Commitment.
(iii) FRONTING FEES. The Parent Borrower, in the case of an
Additional Canadian Letter of Credit, or the U.S. Borrower, in the case of
an Additional U.S. Letter of Credit, shall pay directly to the relevant
Issuing Lender for its own account a fronting fee in the amount the greater
of (A) (1) with respect to each Trade Letter of Credit, equal to 1/4 of 1%
of the amount of such Trade Letter of Credit due and payable upon the
issuance thereof and (2) with respect to each Standby Letter of Credit,
equal to 1/4 of 1% per annum on the daily maximum amount available to be
drawn thereunder, and (B) US$500, in each case, due and payable quarterly
in arrears on the second Business Day of each fiscal quarter of the Parent
Borrower for
-96-
the immediately preceding quarter (or portion thereof), commencing with the
first such date after the issuance of such Letter of Credit, and on the
Revolving Termination Date for the applicable Revolving Commitment.
(iv) ISSUING LENDER FEES. In addition to the Standby Letter
of Credit Fee payable pursuant to CLAUSE (i) above and the Trade Letter of
Credit Fee payable pursuant to CLAUSE (ii) above and any fronting fees
payable pursuant to CLAUSE (iii) above, the applicable Borrower shall pay
to the applicable Issuing Lender for its own account without sharing by the
other Lenders the letter of credit fronting and negotiation fees agreed to
by such Borrower and such Issuing Lender from time to time and the
customary charges from time to time of such Issuing Lender with respect to
the amendment, transfer, administration, cancellation and conversion of,
and drawings under, each Letter of Credit issued for the account of such
Borrower (collectively, the "ISSUING LENDER FEES").
(v) COMPUTATION OF CERTAIN FEES AFTER DEFAULT. Upon the
occurrence and during the continuance of an Event of Default, the Standby
Letter of Credit Fee and the Trade Letter of Credit Fee payable under
SUBSECTIONS (i) and (ii) above shall be computed at a rate per annum equal
to the relevant "Applicable Margin for Standby Letter of Credit Fee" and
the "Applicable Margin for Trade Letter of Credit Fee" as set forth in the
applicable table in the definition of "Applicable Margin" in SECTION 1.01
hereof (based on Pricing Level I) plus 2.00%.
(vi) COMPUTATION OF FEES WITH RESPECT TO FOREIGN CURRENCY
LETTERS OF CREDIT. For the purposes of calculating the average daily
maximum amount available to be drawn under any Foreign Currency Letter of
Credit for any period under SECTION 2.12(b)(i) or (ii) above, such average
daily maximum amount shall be calculated by multiplying (A) the average
daily balance of such Foreign Currency Letter of Credit (expressed in the
currency in which such Foreign Currency Letter of Credit is denominated) by
(B) the Exchange Rate for each relevant Agreed Foreign Currency in effect
on the last Business Day of such period or by such other reasonable method
that the Canadian Administrative Agent deems appropriate.
(c) BA ACCEPTANCE FEE. The Parent Borrower shall pay to each Canadian
Revolving Lender for its own account a fee (the "BA ACCEPTANCE FEE") on the face
amount of each Bankers' Acceptance issued by the Parent Borrower and to be
accepted by such Canadian Revolving Lender computed at a per annum rate for each
day during the BA Contract Period of such Bankers' Acceptance equal to the
Applicable Margin for BA Acceptance Fees in effect on the date of issuance of
such Bankers' Acceptance. Each BA Acceptance Fee shall be due and payable in
advance on the date of issuance of the applicable Bankers' Acceptance in the
manner specified in SECTION 2.06(f) hereof.
(d) OTHER FEES. The Parent Borrower shall pay to the Agents such other
fees pursuant to SECTION 9.12 below.
SECTION 2.13 PRO-RATA TREATMENT. Except to the extent otherwise
provided herein:
(a) LOANS. Each Borrowing, each payment or prepayment of principal of
or interest on any Loan, each payment of fees (other than the fronting fees and
Issuing Lender Fees retained by an Issuing Lender for its own account and the
administrative fees retained by the Administrative Agents for their own
account), each reduction of the U.S. Revolving Committed Amount or the Canadian
Revolving Committed Amount and each conversion or continuation of any Loan,
shall be allocated pro-rata among the relevant Lenders in accordance with the
respective U.S. Revolving Commitment Percentages, Canadian Revolving Commitment
Percentages, Term A Commitment Percentages and Term B Commitment Percentages, as
applicable, of such Lenders (or, if the Commitments of such Lenders have
-97-
expired or been terminated, in accordance with the respective principal amounts
of the outstanding Loans of the applicable Class and Participation Interests of
such Lenders); PROVIDED that, in the event any amount paid to any Lender
pursuant to this SUBSECTION (a) is rescinded or must otherwise be returned by
the relevant Administrative Agent, each Lender shall, upon the request of the
relevant Administrative Agent repay to such Administrative Agent the amount so
paid to such Lender, with interest for the period commencing on the date such
payment is returned by such Administrative Agent until the date such
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate (in the case of amounts denominated in U.S.
Dollars) or CDOR Rate (in the case of amounts denominated in Canadian Dollars)
as its cost of funds for the relevant currency borrowed in the relevant
interbank market, and thereafter, the Base Rate, C$ Prime Rate or Eurodollar
Rate for one-day deposits in the applicable currency, as applicable, plus 2.00%
per annum.
(b) LETTERS OF CREDIT.
(i) U.S. LETTERS OF CREDIT. Each payment of U.S. LC
Obligations shall be allocated to each U.S. Revolving Lender pro-rata in
accordance with its U.S. Revolving Commitment Percentage; PROVIDED that, if
any U.S. Revolving Lender shall have failed to pay its applicable pro-rata
share of any U.S. LC Disbursement, then any amount to which such U.S.
Revolving Lender would otherwise be entitled pursuant to this SUBSECTION
(b) shall instead be payable to the U.S. Issuing Lender; PROVIDED, FURTHER,
that in the event any amount paid to any U.S. Revolving Lender pursuant to
this SUBSECTION (b) is rescinded or must otherwise be returned by the U.S.
Issuing Lender, each U.S. Revolving Lender shall, upon the request of the
Issuing Lender, repay to the Canadian Administrative Agent for the account
of the U.S. Issuing Lender the amount so paid to such U.S. Revolving
Lender, with interest for the period commencing on the date such payment is
returned by the U.S. Issuing Lender until the date the U.S. Issuing Lender
receives such repayment at a rate per annum equal to, during the period to
but excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus 2.00% per annum.
(ii) CANADIAN LETTERS OF CREDIT. Each payment of Canadian LC
Obligations shall be allocated to each Canadian Revolving Lender pro-rata
in accordance with its Canadian Revolving Commitment Percentage; PROVIDED
that, if any Canadian Revolving Lender shall have failed to pay its
applicable pro-rata share of any Canadian LC Disbursement, then any amount
to which such Canadian Revolving Lender would otherwise be entitled
pursuant to this SUBSECTION (b) shall instead be payable to the Canadian
Issuing Lender; PROVIDED, FURTHER, that in the event any amount paid to any
Canadian Revolving Lender pursuant to this SUBSECTION (b) is rescinded or
must otherwise be returned by the Canadian Issuing Lender, each Canadian
Revolving Lender shall, upon the request of the Canadian Issuing Lender,
repay to the Canadian Administrative Agent for the account of the Canadian
Issuing Lender the amount so paid to such Canadian Revolving Lender, with
interest for the period commencing on the date such payment is returned by
the Canadian Issuing Lender until the date the Canadian Issuing Lender
receives such repayment at a rate per annum equal to, during the period to
but excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus 2.00% per annum (in the case
of Canadian LC Obligations denominated in U.S. Dollars) or the CDOR Rate,
and thereafter, the C$ Prime Rate plus 2.00% per annum (in the case of
Canadian LC Obligations denominated in Canadian Dollars).
(c) BANKERS' ACCEPTANCES. Each payment of BA Reimbursement Obligations
shall be allocated to each Canadian Revolving Lender pro-rata in accordance with
its Canadian Revolving Commitment Percentage; PROVIDED that, in the event any
amount paid to any Canadian Revolving Lender
-98-
pursuant to this SUBSECTION (c) is rescinded or must otherwise be returned by
the Canadian Administrative Agent, each Canadian Revolving Lender shall, upon
the request of the Canadian Administrative Agent, repay to the Canadian
Administrative Agent for its account the amount so paid to such Canadian
Revolving Lender with interest for the period commencing on the date such
payment is returned by the Canadian Administrative Agent, until the date the
Canadian Administrative Agent receives such repayment at a rate per annum equal
to, during the period to but excluding the date two Business Days after such
request, the CDOR Rate and thereafter, the C$ Prime Rate plus 2.00% per annum.
SECTION 2.14 SHARING OF PAYMENTS. The Lenders agree among themselves
that, except to the extent otherwise provided herein, if any Lender shall obtain
payment in respect of any Loan, unreimbursed LC Disbursements, unreimbursed
Bankers' Acceptances or any other obligation owing to such Lender under this
Agreement through the exercise of a right of set-off, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar Law or otherwise, or by any other means, in excess of its pro-rata
share of such payment as provided for in this Agreement, such Lender shall
promptly pay in cash or purchase from the other Lenders a participation in such
Loans, unreimbursed LC Disbursements, unreimbursed Bankers' Acceptances and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of set-off,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrowers agree that any
Lender so purchasing such a participation may, to the fullest extent permitted
by Law, exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan, LC Obligation, Bankers' Acceptance or other obligation in
the amount of such participation. Except as otherwise expressly provided in this
Agreement, if any Lender or Agent shall fail to remit to any other Agent or
Lender an amount payable by such Lender or Agent to such other Agent or Lender
pursuant to this Agreement on the date when such amount is due, such payments
shall be made together with interest thereon if paid within two Business Days of
the date when such amount is due at a per annum rate equal to the Federal Funds
Rate (in the case of amounts denominated in U.S. Dollars) or CDOR Rate (in the
case of amounts denominated in Canadian Dollars), and thereafter, at a per annum
rate equal to the Base Rate, C$ Prime Rate or Eurodollar Rate for one-day
deposits in the applicable currency, as applicable, until the date such amount
is paid to such other Agent or Lender. If under any applicable bankruptcy,
insolvency or other similar Law, any Lender receives a secured claim in lieu of
a set-off to which this SECTION 2.14 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this SECTION 2.14 to share in
the benefits of any recovery on such secured claim.
SECTION 2.15 PAYMENTS: COMPUTATIONS.
(a) PAYMENTS BY THE BORROWERS. Each payment of principal of and
interest on Loans, LC Obligations, BA Reimbursement Obligations and fees
hereunder (other than fees payable directly to the Issuing Lenders) shall be
paid not later than 2:00 P.M. (local time in the relevant Administrative Office)
on the date when due, in the applicable currency and in funds immediately
available to the relevant Administrative Agent (or, in the case of payments in
respect of the U.S. Swingline Loans, to the U.S. Swingline Lender) at the
applicable Borrower's Account. Each such payment shall be made irrespective of
any set-off, counterclaim or defense to payment which might in the absence of
this provision be
-99-
asserted by any Borrower or any Affiliate against any Administrative Agent or
any Lender. Payments received after 2:00 P.M. (local time in the relevant
Administrative Office) shall be deemed to have been received on the next
Business Day. Each Borrower shall, at the time it makes any payments under this
Agreement, specify to the relevant Administrative Agent the Loan, Letters of
Credit, Bankers' Acceptances, fees or other amounts payable by such Borrower
hereunder to which such payment is to be applied (and if it fails to specify or
if such application would be inconsistent with the terms hereof, the relevant
Administrative Agent shall, subject to SECTION 2.13, distribute such payment to
the Lenders in such manner as the relevant Administrative Agent may deem
reasonably appropriate). The relevant Administrative Agent may in its sole
discretion distribute such payments to the applicable Lenders on the date of
receipt thereof, if such payment is received prior to 2:00 P.M. (local time in
the relevant Administrative Office); otherwise the relevant Administrative Agent
may in its sole discretion, distribute such payment to the applicable Lenders on
the date of receipt thereof or on the immediately succeeding Business Day.
Whenever any payment hereunder shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to the next succeeding
Business Day unless (in the case of Eurodollar Loans) such Business Day falls in
another calendar month, in which case the date for payment thereof shall be the
next preceding Business Day. If the date for any payment of principal is
extended by operation of Law or otherwise, interest thereon shall be payable for
such extended time. Each Borrower hereby authorizes and directs each
Administrative Agent to debit any account maintained by such Borrower with such
Administrative Agent to pay when due any amounts required to be paid from time
to time under this Agreement. All payments in respect of the principal or
interest on U.S. Dollar-Denominated Loans shall be made by the relevant
Borrower in U.S. Dollars which may be by telephone if promptly confirmed in
writing and all payments in respect of the principal of or interest on Loans
denominated in Canadian Dollars shall be made by the relevant Borrower in
Canadian Dollars which may be by telephone if promptly confirmed in writing.
Unless converted to U.S. Dollars or Canadian Dollars, as applicable, pursuant to
the express terms of this Agreement, all reimbursement of amounts drawn under
Letters of Credit denominated in an Agreed Foreign Currency, shall be made by
the relevant Borrower in such relevant currency.
(b) DISTRIBUTIONS BY THE ADMINISTRATIVE AGENTS. Unless the relevant
Administrative Agent shall have received notice which may be made by telephone
if promptly confirmed in writing from the relevant Borrower prior to the date on
which any payment is due to the Lenders hereunder that such Borrower will not
make such payment in full, the relevant Administrative Agent may assume that
such Borrower has made such payment in full to the relevant Administrative Agent
on such date, and the relevant Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the relevant
Borrower shall not have so made such payment, each Lender shall repay to the
relevant Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the relevant Administrative Agent, at (i) the Federal Funds Rate (if
such amount was distributed in U.S. Dollars) or (ii) the CDOR Rate (if such
amount was distributed in Canadian Dollars.
(c) COMPUTATIONS. Except for (x) interest on Base Rate Loans, C$ Prime
Loans, Trade Letter of Credit Fees and Standby Letter of Credit Fees for
Canadian Letters of Credit, and any Commitment Fees paid to the Canadian
Administrative Agent for the account of Canadian Revolving Lenders pursuant to
SECTION 2.12(a), each of which shall be computed on the basis of a 365 or 366
day year as the case may be (unless the Base Rate is determined by reference to
the Federal Funds Rate) and (y) BA Acceptance Fees which shall be computed on
the basis of a 365 day year, all computations of interest and fees hereunder
shall be made on the basis of the actual number of days elapsed over a year of
360 days. Interest shall accrue from and including the date of borrowing (or
continuation or conversion) but excluding the date of payment. For the purposes
of the Interest Act (Canada), in any case in which an
-100-
interest rate is stated in this Agreement to be calculated on the basis of a
year of 360 days or 365 (or 366) days, as the case may be, the yearly rate of
interest to which such interest rate is equivalent is equal to such interest
rate multiplied by the number of days in the year in which the relevant interest
payment accrues and divided by 360 or 365 (or 366), respectively. In addition,
the principle of deemed investment of interest does not apply to any interest
calculations under this Agreement and the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.
SECTION 2.16 ADDITIONAL BORROWERS. With the consent of the
Administrative Agents (not to be unreasonably withheld, delayed or conditioned),
the Parent Borrower may from time to time designate (i) one or more U.S.
Subsidiaries of the Parent Borrower as a U.S. Subsidiary Borrower of a U.S.
Revolving Loan, or (ii) one or more Canadian Subsidiaries of the Parent Borrower
as a Canadian Subsidiary Borrower of a Canadian Revolving Loan; in each case by
delivering to the relevant Administrative Agent a Borrowing Subsidiary Agreement
executed by such Subsidiary, the Parent Borrower, the relevant Administrative
Agent, and, in addition in the case of a U.S. Revolving Borrowing, the U.S.
Borrower, together with an opinion from counsel to such Subsidiary Borrower
covering the matters set forth in EXHIBIT D-4 hereto, and such other documents
and instruments as the relevant Administrative Agent may reasonably request.
Upon such delivery, such Subsidiary shall for all purposes of this Agreement be
a Subsidiary Borrower and a party to this Agreement until the Parent Borrower
shall have executed and delivered to the relevant Administrative Agent a
Borrowing Subsidiary Termination with respect to such Subsidiary, whereupon such
Subsidiary shall cease to be a Subsidiary Borrower and a party to this
Agreement. Notwithstanding the preceding sentence, no Borrowing Subsidiary
Termination will become effective as to any Subsidiary Borrower at a time when
any principal of or interest on any Loan to such Subsidiary Borrower, or any
Letter of Credit issued for the account of such Subsidiary Borrower, or any
Bankers' Acceptance issued by such Canadian Subsidiary Borrower, shall be
outstanding hereunder; provided that such Borrowing Subsidiary Termination shall
be effective to terminate such Subsidiary Borrower's right to make further
borrowings or request other Credit Extensions under this Agreement.
SECTION 2.17 AUTHORITY TO DEBIT AND CREDIT. Subject to the provisions
of this Agreement, each Borrower does hereby expressly and irrevocably authorize
the Canadian Administrative Agent to effect all the necessary debits, deposits
and credits (with respect to the Borrower's Accounts) in order to accommodate
the Lenders in making Credit Extensions and in order to accommodate the
Borrowers in making payments to the Lenders.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 TAXES.
(a) PAYMENTS NET OF CERTAIN TAXES. Any and all payments by any
Borrower to or for the account of any Lender or any Agent hereunder or under any
other Senior Finance Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
assessments, deductions, charges or withholdings of any nature whatsoever now or
hereafter imposed by any Governmental Authority, and all liabilities (including,
without limitation, interest, penalties and additions to tax) with respect
thereto, excluding any and all Excluded Taxes (all such non-Excluded Taxes
being hereinafter referred to as "TAXES"). If any Borrower shall be required by
Law to deduct or withhold any Taxes from or in respect of any sum payable under
this Agreement or any other Senior Finance Document to any Lender or any Agent,
(i) the sum payable shall be increased as necessary so that after making all
required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this SECTION 3.01) such Lender or
such Agent receives an amount equal to the sum it would have received had no
such deductions or withholdings been made, (ii)
-101-
such Borrower shall make such deductions and withholdings, (iii) such Borrower
shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable Law and (iv) such
Borrower shall furnish to the relevant Administrative Agent, at its
Administrative Office, the original or a certified copy of a receipt evidencing
payment thereof.
(b) OTHER TAXES. In addition, each Borrower agrees to pay any and all
present or future stamp, documentary, excise or property taxes, charges or
similar levies (including, without limitation, mortgage recording taxes and
similar fees) which arise from any payment made by it under this Agreement or
any other Senior Finance Document or from the execution, delivery, registration
or enforcement of, or otherwise with respect to, this Agreement or any other
Senior Finance Document (hereinafter referred to as "OTHER TAXES").
(c) ADDITIONAL TAXES. Each Borrower agrees to indemnify each Lender
and each Agent, within 10 days after written demand therefor, for the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this SECTION 3.01),as
applicable, paid by such Lender or such Agent (as the case may be) and all
liabilities (including, without limitation, penalties, interest and expenses)
arising therefrom or with respect thereto. A certificate as to the amount of
such payment or liability delivered to the relevant Borrower by a Lender, or by
an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) U.S. TAX FORMS AND CERTIFICATES. Each U.S. Revolving Lender that
is not a "United States person" within the meaning of Section 7701(a)(30) of the
Code (a "NON-U.S. LENDER"), on or prior to the date of its execution and
delivery of this Agreement in the case of each such U.S. Revolving Lender listed
on the signature pages hereof and on or prior to the date on which it becomes a
U.S. Revolving Lender in the case of each such other U.S. Revolving Lender, and
thereafter as reasonably requested from time to time by the U.S. Borrower or the
relevant Administrative Agent, shall provide the U.S. Borrower and the relevant
Administrative Agent with duly completed copies of whichever of the following
forms and certificates (as applicable) that such U.S. Revolving Lender is
legally able to deliver: (i) Internal Revenue Service Form W-8BEN, certifying
that such Non-U.S. Lender is entitled to benefits under an income tax treaty to
which the United States is a party that reduces to zero the rate of withholding
of U.S. federal income tax on payments of interest; (ii) Internal Revenue
Service Form W-8ECI; (iii) in the case of a Non-U.S. Lender claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) Internal Revenue Service Form W-8BEN and (y) a certificate to the
effect that such Non- U.S. Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the U.S.
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the Code;
or (iv) any other form or certificate required under the Code or the Treasury
Regulations certifying that such Non-U.S. Lender or each of its beneficial
owners is entitled to a complete exemption from U.S. federal income tax on
payments of interest pursuant to this Agreement or any other Senior Finance
Document.
(e) FAILURE TO PROVIDE TAX FORMS AND CERTIFICATES. For any period with
respect to which a U.S. Revolving Lender that is a Non-U.S. Lender has failed to
provide the U.S. Borrower and the relevant Administrative Agent with the
appropriate form and/or certificate pursuant to SECTION 3.01(d) (unless such
failure is due to a change in Law or an income tax treaty to which the United
States is a party that occurred subsequent to the date on which a form and/or
certificate originally was required to be provided by such U.S. Revolving
Lender), such U.S. Revolving Lender shall not be entitled to receive any
additional amounts or indemnification under SECTION 3.01(a) or 3.01(c) with
respect to withholding of United States federal income tax on interest payments
made with respect to such period on its U.S. Revolving Loans or U.S. Revolving
Note; PROVIDED, HOWEVER, that should a U.S. Revolving Lender, which is otherwise
exempt from or subject to a reduced rate of withholding of United States federal
income tax, become subject to such Taxes because of its failure to deliver a
form required to be delivered
-102-
hereunder, the U.S. Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such Taxes;
PROVIDED that any such steps shall not subject the U.S. Borrower to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Borrower in any material respect.
(f) OBLIGATIONS IN RESPECT OF NON-U.S. LENDERS. The U.S. Borrower
shall not be required to indemnify or pay any additional amounts pursuant to
SECTION 3.01(a) or 3.01(c) to any U.S. Revolving Lender that is a Non-U.S.
Lender in respect of withholding of United States federal income tax on interest
payments on its U.S. Revolving Loans or U.S. Revolving Note to the extent that
the obligation to withhold United States federal income tax on interest payments
on its U.S. Revolving Loans or U.S. Revolving Note existed on the date such U.S.
Revolving Lender became a party to this Agreement or, with respect to payments
to a new Applicable Lending Office, the date such U.S. Revolving Lender
designated such new Applicable Lending Office with respect to its U.S. Revolving
Loans; PROVIDED, HOWEVER, that this SUBSECTION (f) shall not apply (i) to any
new Applicable Lending Office that becomes a new Applicable Lending Office as a
result of an assignment, transfer or designation made at the request of the
Parent Borrower or the U.S. Borrower, (ii) to any Eligible Assignee pursuant to
a request by Parent Borrower under SECTION 2.11(c), and (iii) to the extent the
indemnity payment or additional amounts any Lender (or its assignor, if any)
would be entitled to receive at the time of designation of a new Applicable
Lending Office (or assignment), without regard to this SUBSECTION (f), do not
exceed the indemnity payment or additional amounts that such Lender would have
been entitled to receive in the absence of such designation (or assignment).
(g) MITIGATION. If any Credit Party is required to pay additional
amounts to or for the account of any Lender pursuant to this SECTION 3.01, then
such Lender shall use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender.
(h) OBLIGATIONS IN RESPECT OF CANADIAN WITHHOLDING TAXES.
(i) In the event that any Credit Party is, has become or
would become obligated to pay additional amounts or indemnification under
SECTION 3.01(a) or 3.01(c) with respect to Canadian withholding tax on
interest payments to a Term B Lender with respect to its Term B Loan as a
result of any change in applicable Law which is announced or becomes
effective on or after the date of this Agreement, and the Parent Borrower
makes a written request to such Term B Lender to provide information,
documents or other evidence concerning such Term B Lender's nationality,
residence, entitlement to treaty benefits or connection with Canada or any
political subdivision or authority thereof and provides reasonable
assistance to such Term B Lender in the completion and provision or filing
of any relevant form or other documentation, then such Term B Lender shall
comply with such request no later than 90 days after receipt of such
request but only provided that (i) such Term B Lender's compliance with
such request could not expose such Term B Lender to any material liability,
delay or obligation (including unreimbursed costs or out-of-pocket
expenses) as determined solely in the discretion of such Term B Lender,
(ii) such Term B Lender is legally able to comply with such request, (iii)
under applicable Law such Term B Lender's compliance with such request is a
precondition to reduction or exemption of Canadian withholding tax on
interest payments on its Term B Loan, and (iv) such Term B Lender's
compliance with such request does not require disclosure of any information
that is confidential or proprietary and is not otherwise disadvantageous to
such Term B Lender in any material respect, in each case, as determined in
solely in the discretion of such Term B Lender. For any period with respect
to which any Term B Lender fails to comply with
-103-
the immediately preceding sentence of this SECTION 3.01(h), such Term B
Lender shall not be entitled to receive any additional amounts or
indemnification under SECTION 3.01(a) or 3.01(c) with respect to any
Canadian withholding tax on interest payments made with respect to such
period on its Term B Loan.
(ii) For any period with respect to which any Term A Lender,
Canadian Revolving Lender, Canadian Swingline Lender or Canadian Issuing
Lender has ceased to qualify as a Canadian Resident (unless such Term A
Lender, Canadian Revolving Lender, Canadian Swingline Lender or Canadian
Issuing Lender, as the case may be, has ceased to qualify as a Canadian
Resident as a result of a change in Law), such Term A Lender, Canadian
Revolving Lender, Canadian Swingline Lender or Canadian Issuing Lender, as
the case may be, shall not be entitled to receive any additional amounts or
indemnification under SECTION 3.01(a) or 3.01(c) with respect to any
Canadian withholding tax on interest payments made with respect to such
period on its Term A Loan, Canadian Revolving Loans, Canadian Swingline
Loans, Canadian Letters of Credit or Bankers' Acceptances, as applicable.
(i) REFUNDS. If any Lender or any Agent determines in its sole
discretion that it has received a refund of any Taxes as to which it has
received from any Borrower additional amounts or indemnification under
SECTION 3.01(a) or 3.01(c), as long as no Default or Event of Default then
exists it shall pay over such refund to such Borrower (to the extent of
indemnity payments made, or additional amounts paid, by such Credit Party under
SECTION 3.01(a) or 3.01(c) with respect to Taxes giving rise to such refund),
net of all out-of-pocket expenses (including, without limitation, any Taxes or
Excluded Taxes attributable to such refund) of such Lender or Agent and without
interest (other than any interest paid by the relevant taxing authority with
respect to such refund (net of any Taxes or Excluded Taxes attributable to such
interest)); PROVIDED that each Borrower, upon request of such Lender or Agent,
agrees to repay to such Lender or Agent within 10 days after receiving such
request, the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) in the event such
Lender or Agent is required to repay such refund to the relevant Governmental
Authority. This SECTION 3.01(i) shall not be construed to require any Agent or
any Lender to make available its tax returns (or any other information relating
to its taxes which it deems confidential) to any Borrower or any other person.
SECTION 3.02 CHANGE IN LAW, ETC. If, on or after the date of this
Agreement, (i) the adoption of any applicable Law, or any change in any
applicable Law, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of Law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible (A) for any Lender (or its Applicable Lending
Office) to make, maintain or fund any of its Eurodollar Loans, (B) for any
Issuing Lender to issue Letters of Credit denominated in Canadian Dollars or any
Agreed Foreign Currency or (C) for any Canadian Revolving Lender to accept
Bankers' Acceptances or (ii) there shall have occurred any change in national or
international financial, political or economic conditions (including the
imposition of or any change in exchange controls) or currency exchange rates
that would make it impracticable (A) for any Lender (or its Applicable Lending
Office) to make, maintain or fund any of its Eurodollar Loans, (B) for any
Issuing Lender to issue Letters of Credit denominated in Canadian Dollars or any
Agreed Foreign Currency or (C) for any Canadian Revolving Lender to accept
Bankers' Acceptances, and, in each such case, the affected Lender shall so
notify the Administrative Agents, the Administrative Agents shall forthwith give
notice thereof to the other Lenders and the Borrowers, whereupon, until each
affected Lender notifies the Parent Borrower and the Administrative Agents that
the circumstances giving rise to such suspension no longer exist, (i) the
obligation of each affected Lender to make Eurodollar Loans, or to convert
outstanding Loans into Eurodollar Loans, shall be suspended,
-104-
(ii) the obligation of the affected Issuing Lender to issue Letters of Credit in
Canadian Dollars or such Agreed Foreign Currency shall be suspended and (iii)
the commitment of the affected Canadian Revolving Lender to accept Bankers'
Acceptances (including Refunding Bankers' Acceptances) shall be suspended and
such Lender's outstanding Bankers' Acceptances, if any, shall (on the respective
last days of the then current BA Contract Periods or within such earlier period
as required by Law) be converted automatically to C$ Prime Loans. Before giving
any notice to the Administrative Agents pursuant to this SECTION 3.02, such
Lender shall designate a different Applicable Lending Office if such designation
will avoid the need for giving such notice and will not, in the good faith
judgment of such Lender, be otherwise disadvantageous to such Lender. If such
notice is given, the Borrower shall be given the option to prepay each
Eurodollar Loan of such Lender then outstanding or convert such Eurodollar Loan
to a Base Rate Loan, in each case, either (i) on the last day of the then
current Interest Period applicable to such Eurodollar Loan, if such Lender may
lawfully continue to maintain and fund such Loan to such day or (ii)
immediately, if such Lender shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
SECTION 3.03 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.
If on or prior to the first day of any Interest Period for any Eurodollar
Borrowing:
(i) the relevant Administrative Agent, acting in good faith,
determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the applicable Eurodollar Rate for such
Interest Period; or
(ii) Lenders having 50% or more of the aggregate amount of
the Commitments of the relevant Class advise the relevant Administrative
Agent that the London Interbank Offered Rate as determined by the relevant
Administrative Agent will not adequately and fairly reflect the cost to
such Lenders of funding their Eurodollar Loans included in such Borrowing
for such Interest Period; or
(iii) the relevant Administrative Agent, acting in good faith,
determines (which determination shall be conclusive) that deposits in the
principal amounts of the Loans comprising such Borrowing and in U.S.
Dollars are not generally available in the relevant market;
such Administrative Agent shall forthwith give notice thereof to the Parent
Borrower and the relevant Lenders, whereupon, until the relevant Administrative
Agent notifies the Parent Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Lenders to make
Eurodollar Loans of such Class, or to continue or convert outstanding Loans as
or into Eurodollar Loans of such Class, shall be suspended and (ii) each
outstanding Eurodollar Loan shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Parent
Borrower notifies the relevant Administrative Agent at least two Business Days
before the date of any Eurodollar Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing or a C$ Prime Borrowing, as
applicable, in the same aggregate U.S. Dollar Amount as the requested Borrowing
and shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the rate
applicable to the Revolving Base Rate Loans or C$ Prime Loans, as applicable,
for such day.
SECTION 3.04 CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE.
(a) If the Canadian Administrative Agent determines in good faith
(which determination shall be final, conclusive and binding upon the Parent
Borrower) and notifies the Parent Borrower that, by
-105-
reason of circumstances affecting the Canadian money market, there is no market
for Bankers' Acceptances, then:
(i) the right of the Parent Borrower to request a borrowing
by way of Bankers' Acceptances shall be suspended until the Canadian
Administrative Agent determines that the circumstances causing such
suspension no longer exist and the Canadian Administrative Agent so
notifies the Parent Borrower; and
(ii) any notice relating to a borrowing by way of Bankers'
Acceptances which is outstanding at such time shall be deemed to be a
notice requesting C$ Prime Loans (all as if it were a notice given pursuant
to SECTION 2.02(c)).
(b) The Canadian Administrative Agent shall promptly notify the Parent
Borrower and the Canadian Revolving Lenders of the suspension of the Parent
Borrower's right to request a borrowing by way of Bankers' Acceptances and of
the termination of such suspension.
SECTION 3.05 INCREASED COSTS AND REDUCED RETURN.
(a) If on or after the date hereof, the adoption of or any change in
any applicable Law or in the interpretation or application thereof applicable to
any Lender (or its Applicable Lending Office), or compliance by any Lender (or
its Applicable Lending Office) with any request or directive (whether or not
having the force of Law) from any central bank or other Governmental Authority,
in each case made subsequent to the Effective Date (or, if later, the date on
which such Lender becomes a Lender):
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax of any kind whatsoever with respect to any Letter of
Credit, any Bankers' Acceptance, any Eurodollar Loans made by it or any of
its Notes or its obligation to make Eurodollar Loans, to participate in
Letters of Credit or to accept Bankers' Acceptances, or change the basis of
taxation of payments to such Lender (or its Applicable Lending Office) in
respect thereof (except for (A) Taxes and Other Taxes covered by SECTION
3.01 (including Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under SECTION 3.01(e)) and (B)
Excluded Taxes);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender (or its Applicable Lending Office) which is not
otherwise included in the determination of the Eurodollar Rate hereunder;
or
(iii) shall impose on such Lender (or its Applicable Lending
Office) any other condition (excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, converting into, continuing or
maintaining any Eurodollar Loans, issuing or participating in Letters of Credit
or accepting Bankers' Acceptances or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, upon notice to each relevant
Borrower from such Lender, through the relevant Administrative Agent, in
accordance herewith, each relevant Borrower shall be obligated to promptly pay
such Lender, upon its demand, any additional amounts necessary to compensate
such Lender on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such increased
cost or reduced amount receivable.
-106-
(b) If any Lender shall have determined that the adoption or the
effectiveness of, or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable Law regarding capital adequacy, or compliance by such Lender, or its
parent corporation, with any request or directive regarding capital adequacy
(whether or not having the force of Law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender, or its parent corporation, could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Lender's (or parent corporation's) policies with respect to capital adequacy),
then, upon notice from such Lender to the relevant Borrower, each relevant
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such reduction. Each determination by any such Lender of amounts owing under
this SECTION 3.05 shall, absent manifest error be conclusive and binding on the
parties hereto.
(c) A certificate of each Lender setting forth in reasonable detail
such amount or amounts as shall be necessary to compensate such Lender or its
holding company as specified in SUBSECTION (a) or (b) above, as the case may be,
shall be delivered to the relevant Borrower and shall be conclusive absent
manifest error. The relevant Borrower shall pay each Lender or the Issuing
Lender the amount shown as due on any such certificate delivered by it within 10
Business Days after receipt of the same.
(d) Promptly (but in no event more than 120 days) after any Lender
becomes aware of any circumstance that will, in its reasonable judgment, result
in a request for increased compensation pursuant to this SECTION 3.05, such
Lender shall notify the relevant Borrower thereof. Failure on the part of any
Lender so to notify any Borrower or to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any period shall not constitute a waiver of such
Lender's right to demand compensation with respect to any other period. The
protection of this SECTION 3.05 shall be available to each Lender regardless of
any possible contention of the invalidity or inapplicability of the Law, rule,
regulation, guideline or other change or condition which shall have occurred or
been imposed.
SECTION 3.06 FUNDING LOSSES. The relevant Borrower shall indemnify
each Lender against any loss or expense (including any loss of anticipated
profits) which such Lender may sustain or incur as a consequence of (i) any
failure by such Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in ARTICLE IV,(ii) any failure by such Borrower
to borrow or to refinance, convert or continue any Loan hereunder after
irrevocable notice of such Borrowing, refinancing, conversion or continuation
has been given pursuant to SECTION 2.02 or 2.08, (iii) any payment, prepayment
or conversion of a Eurodollar Loan or Bankers' Acceptance, whether voluntary or
involuntary, pursuant to any other provision of this Agreement or otherwise made
on a date other than the last day of the Interest Period or BA Contract Period
applicable thereto, (iv) any default in payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, by irrevocable notice of prepayment or
otherwise), (v) the occurrence of any Event of Default or (vi) the assignment of
any Eurodollar Loan or Bankers' Acceptance other than on the last day of the
Interest Period or BA Contract Period applicable thereto as a result of a
request by the Parent Borrower pursuant to SECTION 2.11(c), including, in each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurodollar
Loan. Such loss or reasonable expense shall be the amount as reasonably
determined by such Lender as the excess, if any, of (i) the amount of interest
which would have accrued to such Lender on the amount
-107-
so paid, prepaid, converted, not borrowed, redenominated or assigned at a rate
of interest equal to the Adjusted Eurodollar Rate for such Loan, for the period
from the date of such payment, prepayment, conversion, failure to borrow,
redenomination or assignment to the last day (x) in the case of a payment,
prepayment, conversion, redenomination or assignment other than on the last day
of the Interest Period for such Loan, of the then current Interest Period for
such Loan, or (y) in the case of such failure to borrow, of the Interest Period
for such Loan which would have commenced on the date of such failure to borrow,
over (ii) the amount of interest which would have accrued to such Lender on such
amount by placing such amount on deposit in the applicable currency for a
comparable period with leading banks in the relevant interbank market. A
certificate of any Lender setting forth any amount or amounts which such Lender
is entitled to receive pursuant to this SECTION 3.06 shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error.
SECTION 3.07 BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURODOLLAR
LOANS. If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Eurodollar Loans has been suspended pursuant to
SECTION 3.02 or (ii) any Lender has demanded compensation under SECTION 3.01 or
3.05 with respect to its Eurodollar Loans, and in any such case the relevant
Borrower shall, by at least five Business Days' prior notice to such Lender
through the relevant Administrative Agent, have elected that the provisions of
this SECTION 3.07 shall apply to such Lender, then, unless and until such Lender
notifies the relevant Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, all Loans which would
otherwise be made by such Lender as (or continued as or converted to) Eurodollar
Loans in the affected currency or currencies shall instead be U.S.
Dollar-Denominated Loans bearing interest at the Base Rate then in effect for
relevant Revolving Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other Lenders). If
such Lender notifies the relevant Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist, the principal amount
of each such Loan shall be converted into a Eurodollar Loan of the relevant
Class on the first day of the next succeeding Interest Period applicable to the
related Eurodollar Loans of the other Lenders.
ARTICLE IV
CONDITIONS
SECTION 4.01 CONDITIONS TO CLOSING. The obligation of each Lender to
make a Loan, issue a Letter of Credit or accept a Bankers' Acceptance on the
Closing Date is subject to the satisfaction of the following conditions:
(a) EXECUTED FINANCE DOCUMENTS. Receipt by each of the Lead Arrangers
and the Administrative Agents of duly executed copies of: (i) this Agreement;
(ii) the Notes; (iii) the Guaranties; (iv) the Collateral Documents and (v) all
other Senior Finance Documents, each in form and substance satisfactory to the
Lead Arrangers in their sole discretion.
(b) LEGAL MATTERS. All legal matters incident to this Agreement and
the borrowings hereunder shall be satisfactory to the Lead Arrangers and to
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, the U.S. counsel for the
Administrative Agents and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Canadian counsel for the
Administrative Agents.
(c) ORGANIZATIONAL DOCUMENTS. After giving effect to the transactions
contemplated by the Transaction Documents, the ownership, capital, corporate,
organizational and legal structure of each Credit Party shall be reasonably
satisfactory to the Lead Arrangers, and the Lead Arrangers and the
Administrative Agents shall have received: (i) a copy of the certificate or
articles of incorporation or other organizational documents, as applicable,
including all amendments thereto, of each Credit Party, certified as of a recent
date by the Secretary of State or other applicable authority of its respective
-108-
jurisdiction of organization; (ii) a certificate as to the good standing of each
Credit Party, as of a recent date, from the Secretary of State or other
applicable Governmental Authority of its respective jurisdiction of
organization, together in the case of each Material Credit Party, to the extent
generally available, with a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the appropriate taxing
authority of each such jurisdiction; (iii) a certificate of the Secretary or
Assistant Secretary of each Credit Party dated the Closing Date and certifying
(A) that the certificate or articles of incorporation or other organizational
documents, as applicable, of such Credit Party have not been amended since the
date of the last amendment thereto shown on the certificate of good standing
from its jurisdiction of organization furnished pursuant to CLAUSE (ii) above;
(B) that attached thereto is a true and complete copy of the agreement of
limited partnership, operating agreement or by-laws of such Credit Party, as
applicable, as in effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in CLAUSE (C) below, (C) that attached
thereto is a true and complete copy of resolutions duly adopted by the board of
directors or other governing body of such Credit Party authorizing the
execution, delivery and performance of the Transaction Documents to which it is
to be a party and, in the case of a Borrower, the borrowings by it hereunder,
and that such resolutions have not been modified, rescinded or amended and are
in full force and effect; and (D) as to the incumbency and specimen signature of
each officer executing any Senior Finance Document or any other document
delivered in connection herewith on behalf of such Credit Party; (iv) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
CLAUSE (iii) above; and (v) such corporate or other constitutive or
organizational other documents as the Lead Arrangers or Fried, Frank, Harris,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, the U.S. counsel for the Administrative Agents or
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Canadian counsel for the Administrative Agents, may
reasonably request.
(d) OFFICER'S CERTIFICATES. The Lead Arrangers and the Administrative
Agents shall have received (i) a certificate, dated the Closing Date and signed
by a Responsible Officer of each of the Borrowers, confirming compliance with
the conditions precedent set forth in PARAGRAPHS (b) and (c) of SECTION 4.02 and
(ii) a certificate, dated the Closing Date and signed by a Responsible Officer
of each other Credit Party, confirming compliance with the condition precedent
set forth in PARAGRAPH (b) of SECTION 4.02.
(e) OPINIONS OF COUNSEL. On the Closing Date, the Administrative
Agents shall have received:
(i) favorable written opinions of (A) ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
LLP, special U.S. counsel to the Credit Parties, addressed to the
Administrative Agents, the Lead Arrangers, the Collateral Agents and each
Lender, dated the Closing Date, substantially in the form of EXHIBIT D-l(a)
hereto and (B) Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to
the Credit Parties, addressed to the Administrative Agents, the Lead
Arrangers, the Collateral Agents and each Lender, dated the Closing Date,
substantially in the form of EXHIBIT D-1(b) hereto;
(ii) from special local counsel to the Parent Borrower and the
other Credit Parties (which counsel shall be reasonably satisfactory to the
Lead Arrangers) for each State or Province in which any Material Credit
Party either is located (within the meaning of Section 9-301 of the
Uniform Commercial Code as in effect in the State of New York) or has its
registered or chief executive office, an opinion addressed to the
Administrative Agents, the Lead Arrangers, the Collateral Agents and each
Lender, dated the Closing Date, substantially in the form of EXHIBIT D-2
hereto;
-109-
(iii) from special local counsel to the Parent Borrower and the
other Credit Parties (which counsel shall be reasonably satisfactory to the
Lead Arrangers) for each jurisdiction in which a Material Mortgaged
Property is located, an opinion addressed to the Administrative Agents, the
Lead Arrangers, the Collateral Agents and each Lender, dated the Closing
Date, substantially in the form of EXHIBIT D-3 hereto;
(iv) from counsel to the Seller in respect of the Acquisition,
copies of the opinions delivered by them as required under the Acquisition
Agreement; and
(v) from counsel to the Parent Borrower, copies of the
opinions delivered by them under the underwriting or purchase agreements
for the Senior Notes and the Subordinated Notes.
(f) ISSUANCE OF THE JUNIOR DEBT. On or prior to the Closing Date,
(i) (A) the Parent Borrower shall have entered into the
Subordinated Note Indenture on terms that are satisfactory to the Lead
Arrangers, (B) the Parent Borrower shall have executed and delivered the
Subordinated Notes, (C) the Lead Arrangers and the Administrative Agents
shall have received true and correct copies of the Subordinated Note
Indenture and each of the Subordinated Notes as originally executed and
delivered, each of which shall be in full force and effect, (D) the Parent
Borrower shall have received gross cash proceeds of at least US$850,000,000
from the issuance of the Subordinated Notes (it being understood that such
cash proceeds shall include all amounts directly applied to pay
underwriting and placement commissions and discounts and related fees) and
(E) the Parent Borrower shall have utilized the full amount of such cash
proceeds to make payments owing in connection with the Transaction prior to
or concurrently with the utilization of any proceeds of the Loans and
Bankers' Acceptances for such purpose.
(ii) (A) the Parent Borrower shall have entered into the Senior
Note Indenture on terms that are satisfactory to the Lead Arrangers, (B)
the Parent Borrower shall have executed and delivered the Senior Notes, (C)
the Lead Arrangers and the Administrative Agents shall have received true
and correct copies of the Senior Note Indenture and each of the Senior
Notes as originally executed and delivered, each of which shall be in full
force and effect, (D) the Parent Borrower shall have received gross cash
proceeds of at least US$350,000,000 from the issuance of the Senior Notes
(it being understood that such cash proceeds shall include all amounts
directly applied to pay underwriting and placement commissions and
discounts and related fees) and (E) the Parent Borrower shall have utilized
the full amount of such cash proceeds to make payments owing in connection
with the Transaction prior to or concurrently with the utilization of any
proceeds of the Loans and Bankers' Acceptances for such purpose.
(g) CONSUMMATION OF THE ACQUISITION.On or prior to the Closing Date,
there shall have been delivered to the Lead Arrangers and the Administrative
Agents true and correct copies of all Acquisition Documents and all terms and
conditions of the Acquisition Documents shall be in form and substance
reasonably satisfactory to the Lead Arrangers. The Lenders shall be satisfied
with the amount and type of assets and liabilities being acquired and/or assumed
in the Acquisition. The Acquisition, including all of the terms and conditions
thereof, shall have been duly approved by the board of directors and (if
required by applicable Law) the shareholders of the Group Companies party
thereto, and all Acquisition Documents shall have been duly executed and
delivered by the parties thereto and shall be in full force and effect. The
representations and warranties set forth in the Acquisition Documents shall be
true and correct in all material respects as if made on and as of the Closing
Date (except to the extent such representations and warranties expressly refer
to a prior date, in which case such representations and
-110-
warranties shall have been true and consent as of such prior date), and each of
the parties to the Acquisition Documents shall have complied in all material
respects with all covenants set forth in the Acquisition Documents to be
complied with by it on or prior to the Closing Date (without giving effect to
any modification, amendment, supplement or waiver of any of the material terms
thereof unless consented to by the Lead Arrangers, which consent shall not be
unreasonably withheld or delayed). Each of the conditions precedent to the Group
Companies' obligations to consummate the Acquisition as set forth in the
Acquisition Documents shall have been satisfied to the reasonable satisfaction
of the Lead Arrangers or waived with the consent of the Lead Arrangers, and the
Acquisition shall have been consummated for aggregate consideration not in
excess of US$2,375,000,000 (prior to any working capital adjustment and
excluding related transaction fees and expenses not exceeding US$130,000,000) in
accordance with all applicable laws and the Acquisition Documents (without
giving effect to any amendment or modification thereof or waiver with respect
thereto unless consented to by the Lead Arrangers).
(h) REFINANCING OF CERTAIN EXISTING DEBT; OTHER DEBT. On the Closing
Date, the commitments under all Refinanced Agreements shall have been
terminated, all loans outstanding thereunder shall have been repaid in full
(other than contingent indemnification obligations not yet due and payable),
together with accrued interest thereon (including, without limitation, any
prepayment premium), all letters of credit issued thereunder shall have been
terminated, backstopped through the issuance of Letters of Credit hereunder or
shall have become Letters of Credit hereunder and all other amounts owing
pursuant to each Refinanced Agreement shall have been repaid in full, and the
Lead Arrangers shall have received evidence in form, scope and substance
reasonably satisfactory to it that the matters set forth in this SUBSECTION (h)
have been satisfied at such time. In addition, on the Closing Date, the
creditors under each Refinanced Agreement shall have terminated and released all
applicable Liens on the capital stock of and assets owned by the Parent Borrower
and its Subsidiaries (including, without limitation, the assets acquired in the
Acquisition), and the Lead Arrangers shall have received all such releases as
may have been requested by the Lead Arrangers, which releases shall be in form
and substance reasonably satisfactory to the Lead Arrangers. After the
consummation of the transactions contemplated by the Acquisition Agreement on
the Closing Date, the Group Companies shall have no material liabilities (actual
or contingent) or Preferred Stock, except (i) as disclosed in the most recent
interim balance sheet included in the financial statements delivered pursuant to
SUBSECTION (p) below or in the footnotes thereto, (ii) for accounts payable
incurred in the ordinary course of business consistent with past practice since
the date of the most recent interim balance sheet included in the financial
statements delivered pursuant to SUBSECTION (p) below and not in violation of
the Acquisition Agreement, (iii) Debt under the Finance Documents, the Senior
Notes, the Subordinated Notes and (iv) the Existing Debt.
(i) PERFECTION OF PERSONAL PROPERTY SECURITY INTERESTS AND PLEDGES;
SEARCH REPORTS. On or prior to the Closing Date, each Collateral Agent shall
have received:
(i) a Perfection Certificate from each Credit Party;
(ii) appropriate financing statements (Form UCC-1, registration
notices under the laws of the Province of Quebec, or such other financing
statements or similar notices as shall be required by local Law)
authenticated and authorized for filing under the Uniform Commercial Code,
the Civil Code of Quebec or other applicable local Law of each jurisdiction
in which the filing of a financing statement or giving of notice may be
required, or reasonably requested by the relevant Collateral Agent, to
perfect the security interests intended to be created by the Collateral
Documents;
(iii) copies of reports from CLAS Information Services or
another independent search service or special local counsel reasonably
satisfactory to the relevant Collateral Agent listing all effective
financing statements, notices of tax, PBGC or judgment
-111-
Liens or similar notices that name the Parent Borrower, any other Credit
Party (or, in the case of tax, PBGC or judgment Liens, Material Credit
Party) or the Seller, as such (under its present name and any previous name
and, if requested by the relevant Collateral Agent, under any trade names),
as debtor or seller that are filed in the jurisdictions referred to in
CLAUSE (ii) above or in any other jurisdiction having files which must be
searched in order to determine fully the existence of security interests,
notices of the filing of federal tax liens (filed pursuant to Schedule 6323
of the Code), liens of the PBGC (filed pursuant to Section 4068 of ERISA)
or judgment liens on the Collateral, together with copies of such financing
statements, land registry office registrations, notices of tax, PBGC or
judgment Liens or similar notices (none of which shall cover the Collateral
except to the extent evidencing Permitted Liens or for which the relevant
Collateral Agent shall have received termination statements (Form UCC-3 or
such other termination statements as shall be required by Law)
authenticated and authorized for filing);
(iv) searches of ownership of intellectual property in the
appropriate governmental offices and such patent, trademark and/or
copyright filings as may be reasonably requested by the relevant Collateral
Agent to the extent necessary or reasonably advisable to perfect each
Collateral Agent's security interest in intellectual property Collateral;
(v) all of the Pledged Collateral, which Pledged Collateral
shall be in suitable form for transfer by delivery, or shall be accompanied
by duly executed instruments of transfer or assignment in blank, with
signatures appropriately guaranteed, accompanied in each case by any
required transfer tax stamps, all in form and substance reasonably
satisfactory to the U.S. Collateral Agent; and
(vi) evidence of the completion of all other filings and
recordings of or with respect to the Collateral Documents and of all other
actions as may be necessary or, in the opinion of the Collateral Agents,
reasonably desirable to perfect the security interests intended to be
created by the Collateral Documents.
(i) REAL PROPERTY COLLATERAL. The Collateral Agents shall have
received (in form and substance satisfactory to the Collateral Agents):
(i) fully executed and notarized Mortgages encumbering the
interest of the Credit Parties in each real property asset owned by a Credit
Party set forth on (A) SCHEDULE 4.01(j)(i) (each a "CANADIAN OWNED MORTGAGED
PROPERTY" and collectively the "CANADIAN OWNED MORTGAGED PROPERTIES") and (B)
SCHEDULE 4.01(j)(ii) (each a "U.S. OWNED MORTGAGED PROPERTY", collectively the
"U.S. OWNED MORTGAGED PROPERTIES", and together with the Canadian Owned
Mortgaged Property, the "OWNED MORTGAGED PROPERTIES"), and the leasehold
interest of the Credit Parties in each real property asset leased by a Credit
Party set forth on (C) SCHEDULE 4.01(j)(iii) (each a "CANADIAN LEASED MORTGAGED
PROPERTY" and collectively the "CANADIAN LEASED MORTGAGED PROPERTIES") and (D)
SCHEDULE 4.01(j)(iv) (each a "U.S. LEASED MORTGAGED PROPERTY", collectively the
"U.S. LEASED MORTGAGED PROPERTIES" and together with the Canadian Leased
Mortgaged Properties, the "LEASED MORTGAGED PROPERTIES" and, together with the
Owned Mortgaged Properties, each a "MORTGAGED PROPERTY" and collectively, the
"MORTGAGED PROPERTIES"), together with (x) such UCC-1 financing statements or
similar notices as the relevant Collateral Agent shall reasonably deem
appropriate with respect to each such Mortgaged Property and (y) a certification
with respect to Schedule 4.01(j) as to the relevant materiality standards of the
properties listed therein to the reasonable satisfaction of the Lead Arrangers;
-112-
(ii) a fully executed Landlord Estoppel and Consent with
respect to each Leased Mortgaged Property, together with evidence that such
Leased Mortgaged Property is a Recorded Leasehold Interest;
(iii) ALTA or other appropriate form mortgagee title insurance
policies (the "MORTGAGE POLICIES") issued jointly by Chicago Title
Insurance Company and Lawyers Title Insurance Company or any other title
insurance company satisfactory to the relevant Collateral Agent (the "TITLE
INSURANCE COMPANY"), in an amount satisfactory to the relevant Collateral
Agent with respect to each Material Mortgaged Property, assuring the
relevant Collateral Agent that the applicable Mortgages create valid and
enforceable first priority mortgage liens on the respective Material
Mortgaged Property, free and clear of all defects and encumbrances except
Permitted Encumbrances, which Mortgage Policies shall contain such
endorsements as shall be reasonably satisfactory to the relevant Collateral
Agent and for any other matters that the relevant Collateral Agent may
request, and providing affirmative insurance and such reinsurance as the
relevant Collateral Agent may request, all of the foregoing in form and
substance reasonably satisfactory to the relevant Collateral Agent;
(iv) maps or plats of an as-built survey of the sites of the
Material Mortgaged Properties situated in the State of Florida (other than
condominiums) certified to the relevant Collateral Agent and the Title
Insurance Company in a manner reasonably satisfactory to them, dated a date
satisfactory to the relevant Collateral Agent and the Title Insurance
Company by an independent professional licensed land surveyor reasonably
satisfactory to the relevant Collateral Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are based shall
be sufficient to delete any standard printed survey exception contained in
the applicable Mortgage Policy and be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps, plats or surveys
the following: (A) the locations on such sites of all the buildings,
structures and other improvements and the established building setback
lines; (B) the lines of streets abutting the sites and width thereof; (C)
all access and other easements appurtenant to the sites necessary to use
the sites; (D) all roadways, paths, driveways, easements, encroachments and
overhanging projections and similar encumbrances affecting the site,
whether recorded, apparent from a physical inspection of the sites or
otherwise known to the surveyor; (E) any encroachments on any adjoining
property by the building structures and improvements on the sites; and (F)
if the site is described as being on a filed map, a legend relating the
survey to said map;
(v) copies of all recorded documents listed as exceptions to
title or otherwise referred to in the Material Mortgaged Properties;
(vi) if requested by the relevant Collateral Agent,
certification from a registered engineer or land surveyor in a form
reasonably satisfactory to the relevant Collateral Agent or other evidence
acceptable to the relevant Collateral Agent that none of the improvements
on the Material Mortgaged Properties are located within any area designated
by the Director of the Federal Emergency Management Agency as a "special
flood hazard" area or if any improvements on the Mortgaged Properties are
located within a "special flood hazard" area, evidence of a flood insurance
policy (if such insurance is required by applicable law) from a company and
in an amount satisfactory to the relevant Collateral Agent for the
applicable portion of the premises, naming the relevant Collateral Agent,
for the benefit of the Lenders, as mortgagee; and
-113-
(vii) evidence reasonably satisfactory to the Collateral Agents
that each of the Mortgaged Properties, and the uses of the Mortgaged
Properties, are in compliance in all material respects with all applicable
Laws.
(k) EVIDENCE OF INSURANCE. Receipt by the Collateral Agents of copies
of insurance policies or certificates of insurance of the Credit Parties and
their Subsidiaries evidencing liability and casualty insurance meeting the
requirements set forth in the Finance Documents, including, but not limited to,
naming each of the Collateral Agents as additional insured and loss payee on
behalf of the Lenders.
(1) CONSENTS AND APPROVALS. On the Closing Date, all necessary
governmental (domestic or foreign), regulatory and third party approvals
(including, without limitation, with respect to real property leases and license
agreements relating to intellectual property) in connection with the
transactions contemplated by the Acquisition Agreement and the other Transaction
Documents and otherwise referred to herein or therein shall have been obtained
and remain in full force and effect, and all applicable waiting and appeal
periods (including any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976) shall have expired, in each case without any
action being taken or threatened by any competent authority which have or could
have a reasonable likelihood of restraining, preventing or imposing materially
burdensome conditions on such transactions or impose, in the reasonable judgment
of the Lead Arrangers, materially burdensome conditions upon the consummation of
such transactions.
(m) LITIGATION; JUDGMENTS. On the Closing Date, there shall be no
actions, suits, proceedings, counterclaims or investigations pending or, to the
knowledge of the Credit Parties, threatened by or before any court or
governmental, administrative or regulatory agency or authority, domestic or
foreign (i) challenging the consummation of any portion of the Transaction or
which in the reasonable judgment of the Required Lenders or the Lead Arrangers
could restrain, prevent or impose adverse or burdensome conditions on the
Transaction, individually or in the aggregate, or any other transaction
contemplated hereunder, (ii) seeking to prohibit the ownership or operation by
the Parent Borrower, the Target or any of their respective Subsidiaries of all
or any material portion of any of their respective businesses or assets or (iii)
seeking to obtain, or which could result or has resulted in the entry of, any
judgment, order or injunction that (A) would restrain, prohibit or impose
adverse or burdensome conditions on the ability of the Lenders to make the Loans
or accept Bankers' Acceptances, (B) in the reasonable judgment of the Required
Lenders or the Lead Arrangers could reasonably be expected to result in a
Material Adverse Effect with respect to the Target and its Subsidiaries taken as
a whole (after giving effect to the Transaction), (C) could purport to affect
the legality, validity or enforceability of any Senior Finance Document or could
have a material adverse effect on the ability of any Credit Party to fully and
timely perform their payment and security obligations under the Senior Finance
Documents or the rights and remedies of the Lenders or (D) could be materially
adversely inconsistent with the stated assumptions underlying the projections
provided to the Administrative Agents and the Lenders. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the consummation of
the transactions contemplated by the Transaction Documents and otherwise
referred to herein or therein.
(n) SOLVENCY CERTIFICATE. On or prior to the Closing Date, the Parent
Borrower shall have delivered or caused to be delivered to the Lead Arrangers
and the Administrative Agents a solvency certificate from the chief financial or
chief accounting officer of the Parent Borrower, substantially in the form of
EXHIBIT K hereto, in form and substance reasonably satisfactory to the Lead
Arrangers, setting forth the conclusions that, after giving effect to the
Acquisition and the consummation of all financings
-114-
contemplated herein, the Parent Borrower and its Subsidiaries (on a consolidated
basis) and the U.S. Borrower and its Subsidiaries (on a consolidated basis) are
Solvent.
(o) ENVIRONMENTAL REPORTS. On or prior to the Closing Date, the Parent
Borrower shall have delivered or caused to be delivered to the Administrative
Agents the environmental and Hazardous Materials analyses and reports set forth
on SCHEDULE 4.01(o), in scope, form and substance satisfactory to the Required
Lenders, together with a reliance letter with respect thereto.
(p) FINANCIAL INFORMATION. The Lead Arrangers shall each be reasonably
satisfied that the financial statements referred to in SECTION 5.05 are not
materially inconsistent with the information or projections or the financial
model delivered to the Lead Arrangers prior to the Closing Date. In addition,
(i) the Lead Arrangers and the Administrative Agents shall have received the
most recently available pro-forma consolidated balance sheet of Parent
Borrower, prepared giving effect to the transactions contemplated by the
Transaction Documents as if they had occurred on such date, together with a
certificate of a Responsible Officer of the Parent Borrower to the effect that
such pro-forma balance sheet fairly presents in all material respects the
pro-forma financial position of the Parent Borrower and its Subsidiaries in
accordance with GAAP and (ii) the Lead Arrangers shall be reasonably satisfied
that such pro-forma balance sheet is not materially inconsistent with the
sources and uses of funds, projections and financial model delivered to the Lead
Arrangers and the Administrative Agents prior to the Closing Date.
(q) MATERIAL ADVERSE EFFECT. Since January 31, 2004, there shall not
have occurred or become known any condition, fact, event or development that has
resulted or could reasonably be expected to result in a Material Adverse Effect.
(r) MINIMUM EBITDA: MAXIMUM PRO-FORMA LEVERAGE RATIO. The Lead
Arrangers and the Administrative Agents shall have received evidence reasonably
satisfactory to them that (i) the Consolidated EBITDA of the Parent Borrower and
Target and their Consolidated Subsidiaries calculated on a Pro-Forma Basis,
after giving effect to the Transactions for the 52-week period ended on May 1,
2004 for the Target and their Consolidated Subsidiaries and February 29, 2004
for the Parent Borrower and its Consolidated Subsidiaries, in each case adjusted
for those items described on SCHEDULE 4.01(r) was not less than US$525,000,000
in the aggregate and (ii) the ratio (calculated on a Pro-Forma Basis, after
giving effect to the Transactions) of Consolidated Debt as of February 29, 2004
to Consolidated EBITDA calculated as set forth in clause (i) above was not
greater than 5.25:1.00.
(s) APPOINTMENT OF AGENT FOR SERVICE OF PROCESS. The Administrative
Agents shall have received a letter from CT Corporation, presently located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, indicating its consent to its
appointment by each Credit Party as its agent to receive service of process as
specified in SECTION 10.16 hereof.
(t) PAYMENT OF FEES. All costs, fees and expenses due to the Global
Transaction Coordinator, the Term B Administrative Agent, the Canadian
Administrative Agent, the Collateral Agents, the Lenders and the Lead Arrangers
on or before the Closing Date shall have been paid.
(u) COUNSEL FEES. The Administrative Agents shall have received full
payment from the Parent Borrower of the fees and expenses of Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP described in SECTION
10.04 which are billed through the Closing Date.
(v) REVOLVING AVAILABILITY. After giving effect to all Credit
Extensions occurring on the Closing Date, the Aggregate Revolving Outstandings
(exclusive of any outstanding LC Obligations) shall not exceed US$50,000,000 and
the outstanding LC Obligations shall not exceed US$85,000,000.
-115-
(w) OFAC/ANTI-TERRORISM COMPLIANCE CERTIFICATE. The Administrative
Agents shall have received a certificate substantially in the form of EXHIBIT J
hereto, dated the Closing Date and signed by a Responsible Officer of the Parent
Borrower, certifying as to the matters set forth in EXHIBIT J.
All corporate and legal proceedings and instruments and agreements
relating to the transactions contemplated by this Agreement and the other
Transaction Documents or in any other document delivered in connection herewith
or therewith shall be reasonably satisfactory in form and substance to the Lead
Arrangers and their counsel, and the Lead Arrangers and the Administrative
Agents shall have received all information and copies of all documents and
papers, including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down facsimiles, if any, which the Lead
Arrangers reasonably may have requested in connection therewith, such documents
and papers where appropriate to be certified by proper corporate or Governmental
Authorities. The documents referred to in this SECTION 4.01 shall be delivered
to the Lead Arrangers and the Administrative Agents no later than the Closing
Date. The certificates and opinions referred to in this SECTION 4.01 shall be
dated the Closing Date.
The requirement that any document, agreement, certificate or other
writing be reasonably satisfactory to the Required Lenders shall be deemed to be
satisfied if (i) such document, agreement, certificate or other writing was
delivered to the Lenders not less than two Business Days prior to the Closing
Date, (ii) such document, agreement, certificate or other writing is
satisfactory to the Administrative Agents and (iii) Lenders holding at least 50%
of the Commitments have not objected in writing to such document, agreement,
certificate or other writing to the Lead Arrangers prior to the Closing Date.
Promptly after the Closing Date occurs, the Administrative Agents
shall notify the Borrowers and the Lenders of the Closing Date, and such notice
shall be conclusive and binding on all parties hereto. If the Closing Date does
not occur before 5:00 P.M. on August 31, 2004 the Commitments shall terminate at
the close of business on such date and all unpaid fees accrued to such date
shall be due and payable on such date. The satisfaction by the Credit Parties of
the conditions to Closing set forth in this SECTION 4.01 is subject to the
escrow arrangements set forth in SECTION 10.24.
SECTION 4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
any Lender to make a Loan on the occasion of any Borrowing, the obligation of
any Issuing Lender to issue (or renew or extend the term of) any Letter of
Credit and the obligation of any Canadian Revolving Lender to accept any
Bankers' Acceptance (including any Refunding Bankers' Acceptance) is subject to
the occurrence of the Closing Date and satisfaction of the following conditions:
(a) NOTICE. The relevant Borrower shall have delivered (i) in the case
of any Revolving Loan, to the Canadian Administrative Agent, an appropriate
Notice of Borrowing, duly executed and completed, by the time specified in, and
otherwise as permitted by, SECTION 2.02, (ii) in the case of any Letter of
Credit, to the appropriate Issuing Lender, an appropriate Letter of Credit
Request duly executed and completed in accordance with the provisions of SECTION
2.05, (iii) in the case of any Swingline Loan, to the appropriate Swingline
Lender, a Swingline Loan Request, as specified in SECTION 2.02, and (iv) in the
case of any Bankers' Acceptance, to the Canadian Administrative Agent, an
appropriate Bankers' Acceptance Request duly executed and completed in
accordance with the provisions of SECTION 2.06.
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by the Credit Parties in each Finance Document shall be true and correct in
all material respects (or in all respects in the case of such representations or
warranties containing materiality qualifiers) at and as if made as of such date
except to the extent they expressly relate to an earlier date, in which case
such representations and warranties shall be true and correct as of such earlier
date and except that for purposes
-116-
of this SECTION 4.02, the references in Article V to Schedules shall be deemed
to refer to the most updated supplements to the Schedules furnished pursuant to
SECTION 6.01(c) (or interim supplements deemed furnished pursuant to SECTION
6.01(h) and (j) hereof); PROVIDED, HOWEVER, that any supplement made to
SCHEDULE 5.08, 5.10 or 5.11 shall, for purposes of this SECTION 4.02 only, be
subject to the consent of the Required Lenders.
(c) NO DEFAULT. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
(d) AVAILABILITY. Immediately after giving effect to the making of a
Loan (and the application of the proceeds thereof) or to the issuance of a
Letter of Credit or acceptance of a Bankers' Acceptance, as the case may be, (i)
the sum of the U.S. Revolving Loans outstanding plus the amount of all U.S. LC
Obligations outstanding plus all U.S. Swingline Loans outstanding shall not
exceed the U.S. Revolving Committed Amount, (ii) (x) the amount of all U.S. LC
Obligations outstanding shall not exceed the U.S. LC Committed Amount and (y)
the U.S. Foreign Currency LC Exposure shall not exceed the U.S. Foreign Currency
LC Committed Amount, (iii) the sum of all U.S. Swingline Loans outstanding shall
not exceed the U.S. Swingline Committed Amount, (iv) the sum of the U.S. Dollar
Amount of all Canadian Revolving Loans outstanding plus the U.S. Dollar Amount
of all Canadian LC Obligations outstanding plus the U.S. Dollar Amount of all
Canadian Swingline Loans outstanding plus the undiscounted U.S. Dollar Amount of
all Bankers' Acceptances outstanding shall not exceed the Canadian Revolving
Committed Amount, (v) (x) the U.S. Dollar Amount of all Canadian LC Obligations
outstanding shall not exceed the Canadian LC Committed Amount and (y) the
Canadian Foreign Currency LC Exposure shall not exceed the Canadian Foreign
Currency LC Committed Amount and (vi) the sum of the U.S. Dollar Amount of all
Canadian Swingline Loans outstanding shall not exceed the Canadian Swingline
Committed Amount.
(e) TERM BORROWINGS. In the case of the initial Revolving Borrowings,
prior to, or concurrently with, such Revolving Borrowings, the Parent Borrower
has made a Term A Borrowing in the full amount of the Term A Commitments and a
Term B Borrowing in the full amount of the Term B Commitments.
The delivery of each Notice of Borrowing, Swingline Loan Request,
Bankers' Acceptance Request and each request for a Letter of Credit shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in SUBSECTIONS (b), (c) and (d) above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers, jointly and severally, represents and warrants
that:
SECTION 5.01 ORGANIZATION AND GOOD STANDING. Each of the Group
Companies (i) is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the laws of the
jurisdiction of its formation, (ii) has all corporate, partnership or limited
liability company powers and all material governmental licenses, franchises,
permits, certificates, authorizations, qualifications, accreditations,
ceasements, rights of way and other rights, consents and approvals required to
own its property and carry on its business as now conducted and (iii) is duly
qualified as a foreign corporation, licensed and in good standing in each
jurisdiction where qualification or licensing is required by the nature of its
business or the character and location of its property, business or customers,
except, in the case of clauses (ii) and (iii) to the extent the failure to do
so, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
-117-
SECTION 5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each of
the Credit Parties has the corporate, partnership, limited liability company or
other necessary power and authority, and the legal right, to execute, deliver
and perform the Transaction Documents to which it is a party and, in the case of
each Borrower, to obtain extensions of credit hereunder, and has taken all
necessary corporate, partnership or limited liability company action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Transaction Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Credit Party in connection with the borrowings or
other extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of the Transaction Documents, except for
(i) consents, authorizations, notices and filings disclosed in SCHEDULE 5.02,
all of which have been obtained or made (except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect), and (ii) filings to perfect the Liens created by the
Collateral Documents. This Agreement has been, and each other Transaction
Document to which the Parent Borrower or any of its Subsidiaries is a party will
be, duly executed and delivered on behalf of such Person. This Agreement
constitutes, and each other Transaction Document to which any Credit Party is a
party when executed and delivered will constitute, a legal, valid and binding
obligation of each Credit Party party thereto, enforceable against each such
Credit Party in accordance with its terms, except (i) as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and (ii)
that rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability (regardless of whether
enforcement is sought by proceedings in equity or at law).
SECTION 5.03 NO CONFLICTS. Neither the execution and delivery by any
Credit Party of the Transaction Documents to which it is a party, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Person, nor the
exercise of remedies by the Agents and the Lenders under the Senior Finance
Documents, will (i) violate or conflict with any provision of the articles or
certificate of incorporation, bylaws, partnership agreement, operating agreement
or other organizational or governing documents of such Person, (ii) violate,
contravene or conflict with any Law applicable to it or its properties, (iii)
violate, contravene or conflict with contractual provisions of, cause an event
of default under, or give rise to material increased, additional, accelerated or
guaranteed, rights of any Person under, (A) any indenture, loan agreement,
mortgage or deed of trust, or (B) other material agreement or instrument to
which it is a party or by which it may be bound or (iv) result in or require the
creation of any Lien (other than the Lien of the Collateral Documents) upon or
with respect to its properties, except in the case of CLAUSE (iii) for such
violations as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
SECTION 5.04 NO DEFAULT. None of the Group Companies is in default in
any respect under (i) any loan agreement, indenture, mortgage, security
agreement or other agreement relating to Debt or any other contract, lease,
agreement or obligation to which it is a party or by which any of its properties
is bound which default, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, (ii) the Senior Note Indenture or
(ii) the Subordinated Note Indenture. No Default or Event of Default has
occurred or exists.
SECTION 5.05 FINANCIAL CONDITION.
(a) AUDITED FINANCIAL STATEMENTS. The draft consolidated balance
sheets for three years ended January 31, 2004 of the Target and its Consolidated
Subsidiaries and the related draft consolidated and consolidating statements of
income and cash flows for the fiscal years then ended (and the related
footnotes) to be reported on by KPMG LLP, and the consolidated balance sheets of
the Parent Borrower
-118-
and its Consolidated Subsidiaries as of three years ended May 31, 2003 and the
related consolidated and consolidating statements of income and cash flows for
the fiscal years then ended, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇ / Deloitte & Touche
s.e.n.c.r.l., copies of which have been delivered to each of the Lenders,
fairly present, in all material respects and in conformity with GAAP, the
consolidated financial position of the Parent Borrower, Target and their
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) INTERIM FINANCIAL STATEMENTS. The unaudited consolidated balance
sheet of the Target and its Consolidated Subsidiaries as of May 1, 2004 and the
related consolidated and consolidating statements of income and cash for the
thirteen weeks then ended and the unaudited consolidated balance sheet of the
Parent Borrower and its Consolidated Subsidiaries as of February 29, 2004 and
the related unaudited consolidated and consolidating statements of income and
cash flows for the nine months then ended, in each case reviewed in accordance
with SAS 100 by KPMG LLP in the case of the Target and Samson BClair / Deloitte
& Touche s.e.n.c.r.l. in the case of the Parent Borrower, copies of which have
been delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in
SUBSECTION (a) of this SECTION 5.05 (except for the absence of footnotes and
normal year-end audit adjustments), the consolidated financial position of the
Parent Borrower and Target and their respective Consolidated Subsidiaries as of
such date and their consolidated results of operations and cash flows for such
periods (subject to normal year end audit adjustments). During the period from
May 1, 2004 (in the case of the Target and its Consolidated Subsidiaries) or
February 29, 2004 (in the case of the Parent Borrower and its Consolidated
Subsidiaries) to and including the Closing Date, there has been no sale,
transfer or other disposition by the Parent Borrower and Target or any of their
respective Consolidated Subsidiaries of any material part of the business or
property of the Parent Borrower and Target and their respective Consolidated
Subsidiaries, taken as a whole, and no purchase or other acquisition by them of
any business or property (including any Equity Interests of any other Person)
material in relation to the consolidated financial condition of the Parent
Borrower and Target and their respective Consolidated Subsidiaries, taken as a
whole, which is not reflected in the foregoing financial statements or in the
notes thereto. The balance sheets and the notes thereto included in the
financial statements referred to in this SUBSECTION (b) and in SUBSECTION (a)
above disclose all material liabilities, actual or contingent, of the Parent
Borrower, Target and their respective Consolidated Subsidiaries as of the date
thereof.
(c) PRO-FORMA FINANCIAL STATEMENTS. The consolidated balance sheet of
the Parent Borrower, Target and their respective Consolidated Subsidiaries as of
the end of the most recent fiscal month prior to the Closing Date for which
financial information is available, prepared on a pro-forma basis in accordance
with Regulation S-X giving effect to the consummation of the Transactions, has
heretofore been furnished to each Lender as part of the Pre-Commitment
Information. Such pro-forma balance sheet has been prepared in good faith by the
Parent Borrower, based on the assumptions used to prepare the pro-forma
financial information contained in the Pre-Commitment Information (which
assumptions are believed by the Parent Borrower on the date hereof and on the
Closing Date to be reasonable and fair in light of current conditions and facts
known to the Parent Borrower), is based on the best information available to the
Parent Borrower as of the date of delivery thereof, accurately reflects all
material adjustments required to be made to give effect to the Transactions,
including estimated purchase price accounting adjustments, and presents fairly
on a pro-forma basis the estimated consolidated financial position of the Parent
Borrower and its Consolidated Subsidiaries as of February 29, 2004, assuming
that the Transactions had actually occurred on that date. No Responsible Officer
of the Parent Borrower or any of its Subsidiaries (including Target and its
Subsidiaries) has any reason to believe that such pro-forma balance sheet is
misleading in any material respect in light of the circumstances existing at the
time of the preparation thereof.
-119-
(d) PROJECTIONS. The projections prepared as part of, and included in,
the Pre-Commitment Information (which include projected balance sheets, income
and cash flow statements on a quarterly basis for the fiscal years ended May
31, 2005 and May 31, 2006 and on an annual basis for each of the following 6
fiscal years) have been prepared on a basis consistent with the financial
statements referred to in SUBSECTION (a) above and are based on good faith
estimates and assumptions made by management of the Parent Borrower. On the
Closing Date, such management believes that such projections are reasonable and
attainable, it being recognized by the Lenders, however, that projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by such projections may differ from the projected
results and that such differences may be material. There is no fact known to any
Responsible Officer of the Parent Borrower or any of its Subsidiaries (including
Target and its Subsidiaries) which could reasonably be expected to have a
Material Adverse Effect which has not been disclosed herein or in the
Pre-Commitment Information.
(e) POST-CLOSING FINANCIAL STATEMENTS. The financial statements
delivered to the Lenders pursuant to SECTION 6.01(a) and (b), if any, (i) have
been prepared in accordance with GAAP (except as may otherwise be permitted
under SECTION 6.01(a) and (b)) and (ii) present fairly (on the basis disclosed
in the footnotes to such financial statements, if any) in all material respects
the consolidated and consolidating financial condition, results of operations
and cash flows of the Parent Borrower, the U.S. Borrower and each of their
respective Consolidated Subsidiaries as of the respective dates thereof and for
the respective periods covered thereby.
(f) NO UNDISCLOSED LIABILITIES. Except as fully reflected in the
financial statements described in SUBSECTION (a) and (b) above and the Debt
incurred under this Agreement, the Senior Note Indenture and the Subordinated
Note Indenture, (i) there were as of the Closing Date (and after giving effect
to any Loans made and Letters of Credit and Bankers' Acceptances issued on such
date), no liabilities or obligations (excluding current obligations incurred in
the ordinary course of business) with respect to any Group Company of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due and including obligations or liabilities for taxes, long-term leases and
unusual forward or other long-term commitments), and (ii) neither the Parent
Borrower nor the U.S. Borrower knows of any basis for the assertion against any
Group Company of any such liability or obligation which, either individually or
in the aggregate, are or could reasonably be expected to have, a Material
Adverse Effect.
(g) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT COMPLIANCE. Each required form, report and
document containing financial statements that has been filed with or submitted
to the United States Securities and Exchange Commission since July 31, 2002, was
accompanied by the certifications required to be filed or submitted by the chief
executive officer and chief financial officer of any Group Company pursuant to
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT"), and at the time of
filing or submission of each such certification, such certification was true and
accurate and complied with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations
promulgated thereunder. Since January 31, 2004, no Group Company nor, to the
knowledge of any of the Responsible Officers of any Borrower, any director,
officer, employee, auditor, accountant or representative of any Group Company
has received or otherwise had or obtained knowledge of any complaint,
allegation, assertion or claim, whether written or oral, regarding the
accounting or auditing practices, procedures, methodologies or methods of any
Group Company or their respective internal accounting controls, including any
complaint, allegation, assertion or claim that any Group Company has engaged in
questionable accounting or auditing practices. No attorney representing any
Group Company, whether or not employed by any Group Company, has reported
(pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) evidence of a material violation of
securities laws, breach of fiduciary duty or similar violation by any Group
Company or any of its officers, directors, employees or agents to the board of
directors of any Group Company or any committee thereof or to any director or
officer of any Group Company.
-120-
SECTION 5.06 NO MATERIAL CHANGE. Since January 31, 2004, there has
been no Material Adverse Effect, and no event or development has occurred
which, either individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.07 TITLE TO PROPERTIES; POSSESSION UNDER LEASES. Each Group
Company has good, insurable and marketable title to, or valid leasehold
interests in, all its material properties and assets, except for minor defects
in title that do not interfere with its ability to conduct its business as
currently conducted. All such material properties and assets are free and clear
of Liens other than Permitted Liens. Each Group Company has complied with all
obligations under all leases to which it is a party, other than leases that,
individually or in the aggregate, are not material to the Group Companies, taken
as a whole, and the violation of which will not result in a Material Adverse
Effect, and all such leases are in full force and effect, other than leases
that, individually or in the aggregate, are not material to the Group Companies,
taken as a whole, and in respect of which the failure to be in full force and
effect will not result in a Material Adverse Effect. Each Group Company enjoys
peaceful and undisturbed possession under all such leases with respect to which
it is the lessee, other than Permitted Encumbrances and leases that,
individually or in the aggregate, are not material to the Group Companies, taken
as a whole, and in respect of which the failure to enjoy peaceful and
undisturbed possession will not result in a Material Adverse Effect.
SECTION 5.08 LITIGATION. Except as disclosed in SCHEDULE 5.08, there
are no actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings pending or, to the knowledge of any Credit Party,
threatened against or affecting any Group Company in which there is a reasonable
possibility of an adverse decision that (i) involve any Senior Finance Document
or any of the Transactions or (ii) if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.
SECTION 5.09 TAXES. Each Group Company has filed, or caused to be
filed, all federal tax returns and all material state, provincial, local and
foreign tax returns required to be filed and paid (i) all amounts of taxes shown
thereon to be due (including interest and penalties) and (ii) all other taxes,
fees, assessments and other governmental charges (including mortgage recording
taxes, documentary stamp taxes and intangible taxes) owing by it, except for
such taxes (A) which are not yet delinquent or (B) that are being contested in
good faith and by proper proceedings diligently pursued, and as to which
adequate reserves are being maintained in accordance with GAAP. No Responsible
Officer of a Credit Party knows of any pending investigation of such party by
any taxing authority or proposed tax assessments against any Group Company.
SECTION 5.10 COMPLIANCE WITH LAW. Each Group Company is in compliance
with all requirements of Law (including Environmental Laws) applicable to it or
to its properties, except for any such failure to comply which, individually or
in the aggregate, could not reasonably be expected to cause a Material Adverse
Effect. To the knowledge of the Credit Parties, none of the Group Companies or
any of their respective material properties or assets is subject to or in
default with respect to any judgment, writ, injunction, decree or order of any
court or other Governmental Authority which, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Except as
disclosed in SCHEDULE 5.10, none of the Group Companies has received any written
communication from any Governmental Authority that alleges that any of the Group
Companies is not in compliance in any material respect with any Law, except for
allegations that either (i) have been satisfactorily resolved and are no longer
outstanding or (ii) individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
-121-
SECTION 5.11 EMPLOYEE BENEFIT ARRANGEMENTS. Except as disclosed in
SCHEDULE 5.11:
(a) ERISA.
(i) There are no Unfunded Liabilities (A) with respect to any
member of the Group Companies and (B) with respect to any ERISA Affiliate;
PROVIDED that for purposes of this SECTION 5.11(a)(i)(B) only. Unfunded
Liabilities shall mean the amount (if any) by which the projected benefit
obligation materially exceeds the value of the plan's assets as of its last
valuation date.
(ii) Each Plan, other than a Multiemployer Plan, complies in
all material respects with the applicable requirements of ERISA and the
Code, and each Group Company complies in all respects with the applicable
requirements of ERISA and the Code with respect to all Multiemployer Plans
to which it contributes.
(iii) No ERISA Event has occurred or, subject to the passage of
time, is reasonably expected to occur with respect to any Plan maintained
by any member of the Group Companies or any ERISA Affiliate which could
reasonably be expected to result in an aggregate liability of at least
US$5,000,000.
(iv) No Group Company: (A) is or has been within the last six
years a party to any Multiemployer Plan; or (B) has completely or partially
withdrawn from any Multiemployer Plan.
(v) If any Group Company or any ERISA Affiliate were to incur
a complete withdrawal (as described in Section 4203 of ERISA) from each
Multiemployer Plan as of the Closing Date, the aggregate withdrawal
liability, as determined under Section 4201 of ERISA, with respect to all
such Multiemployer Plans would not exceed US$5,000,000.
(vi) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder will not involve
any transaction that is subject to the prohibitions of Section 406 of ERISA
or in connection with which taxes could be imposed pursuant to Section
4975(c)(1)(A)-(D) of the Code, for which an exemption under ERISA does not
apply.
(vii) No Group Company has any contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability
for continuation coverage described in Part 6 of Title I of ERISA, which is
not reflected on the consolidated balance sheet.
(viii) There is no material liability under any Employee Benefit
Arrangement maintained outside the United States or Canada that is not
reflected on the consolidated balance sheet.
(b) CANADIAN PENSION PLANS. During the twelve-consecutive-month period
prior to the Effective Date and prior to the date of any Credit Extension
hereunder, no steps have been taken to terminate any Canadian Pension Plan, and
no contribution failure has occurred with respect to any Canadian Pension Plan
that could reasonably be expected to have a Material Adverse Effect. No
condition exists or event or transaction has occurred with respect to any
Canadian Pension Plan which might result in the incurrence by the Parent
Borrower or any of its Subsidiaries of any material liability, fine or penalty.
Except as disclosed in SCHEDULE 5.11, neither the Parent Borrower nor any of its
-122-
Subsidiaries has any contingent liability with respect to any benefit under a
Canadian Pension Plan which could reasonably be expected to have a Material
Adverse Effect.
(c) EMPLOYEE BENEFIT ARRANGEMENTS.
(i) All liabilities under the Employee Benefit Arrangements
are (A) funded to at least the minimum level required by Law or, if higher,
to the level required by the terms governing the Employee Benefit
Arrangements, (B) insured with a reputable insurance company, (C) provided
for or recognized in the financial statements most recently delivered to
the Administrative Agents pursuant to SECTION 6.01(b) here of or (D)
estimated in the formal notes to the financial statements most recently
delivered to the Administrative Agents pursuant to SECTION 6.01(a) hereof,
where such failure to fund, insure, provide for, recognize or estimate the
liabilities arising under such arrangements could reasonably be expected to
result in a material liability for any Group Company or ERISA Affiliate.
(ii) There are no circumstances which may give rise to a
liability in relation to the Employee Benefit Arrangements which are not
funded, insured, provided for, recognized or estimated in the manner
described in CLAUSE (i) above.
(iii) Each Group Company is in material compliance with all
applicable Laws, trust documentation and contracts relating to the Employee
Benefit Arrangements.
SECTION 5.12 SUBSIDIARIES. SCHEDULE 5.12 sets forth a complete and
accurate list as of the Closing Date of all Subsidiaries of the Parent Borrower.
SCHEDULE 5.12 sets forth as of the Closing Date the jurisdiction of formation of
each such Subsidiary, whether each such Subsidiary is a Subsidiary Guarantor
(and, if less than all the Senior Obligations of the Borrowers are Guaranteed by
such Subsidiary, a description of the Senior Obligations Guaranteed by such
Subsidiary), the number of authorized shares of each class of Equity Interests
of each such Subsidiary, the number of outstanding shares of each class of
Equity Interests, the number and percentage of outstanding shares of each class
of Equity Interests of each such Subsidiary owned (directly or indirectly) by
any Person and the number and effect, if exercised, of all Equity Equivalents
with respect to capital stock of each such Subsidiary. All the outstanding
Equity Interests of each Subsidiary of the Parent Borrower are validly issued,
fully paid and non-assessable and were not issued in violation of the preemptive
rights of any shareholder and, as of the Closing Date, are owned by the Parent
Borrower, directly or indirectly, free and clear of all Liens (other than those
arising under the Collateral Documents, Liens securing the Replacement Revolver
and as set forth on SCHEDULE 7.12). Other than as set forth on SCHEDULE 5.12, as
of the Closing Date, no such Subsidiary has outstanding any Equity Equivalents
nor does any such Person have outstanding any rights to subscribe for or to
purchase or any options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments or claims of
any character relating to, its Equity Interests.
SECTION 5.13 GOVERNMENTAL REGULATIONS, ETC.
(a) None of the Parent Borrower and its Subsidiaries (including Target
and its Subsidiaries) is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying "margin stock" within the meaning of Regulation U. No part of the
Letters of Credit or proceeds of the Loans or Bankers' Acceptances will be used,
directly or indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U. If requested by any Lender or any
Administrative Agent, each Borrower will furnish to such Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out
-123-
of the proceeds of the Loans or Bankers' Acceptances was or will be incurred for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more than
25% of the value of the consolidated assets of the Parent Borrower and its
Consolidated Subsidiaries. None of the transactions contemplated by this
Agreement (including the direct or indirect use of the proceeds of the Loans or
Bankers' Acceptances) will violate or result in a violation of the Securities
Act, the Exchange Act, or Regulation T, U or X.
(b) None of the Group Companies is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, none of the Group
Companies is (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, (ii) controlled by such a
company, or (iii) a "holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary" of a
"holding company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
SECTION 5.14 PURPOSE OF LOANS AND LETTERS OF CREDIT. The proceeds of
the Term A Loans, the Term B Loans and any Revolving Loans made on the Closing
Date will be used solely to fund a portion of the consideration paid pursuant to
the Acquisition Agreement, to refinance existing Debt of the Parent Borrower,
the Target and their respective Subsidiaries and to pay fees and expenses
incurred in connection with the transactions contemplated by the Acquisition
Agreement. The proceeds of the Revolving Loans and Swingline Loans made and
Bankers' Acceptances issued after the Closing Date will be used solely to
provide for the working capital requirements of the Parent Borrower, the U.S.
Borrower and their respective Subsidiaries and for the general corporate
purposes of the Parent Borrower, the U.S. Borrower and their respective
Subsidiaries. The Letters of Credit shall be used only for or in connection with
appeal bonds, reimbursement obligations arising in connection with surety and
reclamation bonds, reinsurance, domestic or international trade transactions and
other obligations acceptable to the Administrative Agents relating to
transactions entered into by the Parent Borrower, the U.S. Borrower and their
respective Subsidiaries in the ordinary course of business.
SECTION 5.15 LABOR MATTERS. There are no strikes against the Parent
Borrower, the U.S. Borrower or any of their respective Subsidiaries, other than
any strikes that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The consummation of the
Transactions will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Parent Borrower or any of its Subsidiaries is a party or by which
the Parent Borrower or any of its Subsidiaries (or any predecessor) is bound,
other than collective bargaining agreements which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 5.16 ENVIRONMENTAL MATTERS. No Group Company has failed to
comply with any Environmental Law or to obtain, maintain, or comply with any
permit, license, certificate, authorization or other approval required under any
Environmental Law or is subject to any Environmental Liability or has received
notice of any claim with respect to any Environmental Liability, and no Group
Company knows of any basis for any Environmental Liability against any Group
Company, except to the extent such failure, non-compliance, notification or
liability, which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.17 INTELLECTUAL PROPERTY. (a) The Parent Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other rights that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person and (b) no
slogan or other
-124-
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Parent Borrower or any
Subsidiary infringes upon any rights held by any other Person, except to the
extent that the failure of the statements made in clauses (a) or (b) above,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
SECTION 5.18 SOLVENCY AND SURPLUS. Each Credit Party is and, after
consummation of the Transactions, will be Solvent. The total amount of any
distributions paid by the Parent Borrower in connection with the transactions
contemplated by the Transaction Documents will not exceed the aggregate amount
of funds of the Parent Borrower legally available therefor at the time of
consummation of the Acquisition.
SECTION 5.19 DISCLOSURE. No information or data (excluding financial
projections, budgets, estimates and general market data) made by any Credit
Party in any Senior Finance Document or furnished in writing to the
Administrative Agents or any Lender by or on behalf of any Credit Party in
connection with any Senior Finance Document, when taken as a whole as of the
date furnished contains any untrue statement of a material fact or omits any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not materially misleading in light of
the circumstances under which such statements were made; PROVIDED that (i) to
the extent any such statement, information or report therein was based upon or
constitutes a forecast or projection, the Parent Borrower represents only that
it acted in good faith and utilized assumptions believed by it to be reasonable
at the time made (it being understood and agreed that projections as to future
events are not to be viewed as facts or guaranties of future performance, that
actual results during the period or periods covered by such projections may
differ from the projects results and that such differences may be material and
that the Credit Parties make no representation that such representations will in
fact be realized) and (ii) as to statements, information and reports specified
as having been supplied by third parties, other than Affiliates of the Parent
Borrower or any of its Subsidiaries, the Parent Borrower represents only that
none of its Responsible Officers is aware of any material misstatement or
omission therein.
SECTION 5.20 COLLATERAL DOCUMENTS.
(a) SECURITY INTERESTS. Each of the Collateral Documents is effective
to create in favor of the applicable Collateral Agent, for the ratable benefit
of the Finance Parties, a legal, valid and enforceable security interest in the
Collateral (other than the Mortgage Properties) described therein and, when
financing or other similar statements in appropriate form are filed in the
offices specified on SCHEDULE 5.20(a) hereto and the Pledged Collateral is
delivered to the relevant Collateral Agent, each of the Collateral Documents
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such of the Collateral in which
a security interest can be perfected under Article 9 of the Uniform Commercial
Code, the Civil Code of Quebec and the Personal Property Security Acts of
New-Brunswick and Ontario in each case prior and superior in right to any other
Person, other than with respect to Permitted Liens.
(b) INTELLECTUAL PROPERTY. When financing statements in appropriate
form are filed in the offices specified on SCHEDULE 5.20(b) hereto, the
Assignment of Patents and Trademarks, substantially in the form of EXHIBIT A to
the U.S. Security Agreement, is filed in the United States Patent and Trademark
Office, the Assignment of Copyrights, substantially in the form of EXHIBIT B to
the U.S. Security Agreement, is filed in the United States Copyright Office and
a copy of the Quebec Hypothec is filed in the Canadian Intellectual Property
Office, the U.S. Security Agreement and the Quebec Hypothec shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in the United States and Canadian trademarks,
copyrights, patents, licenses and other intellectual property rights covered in
such documents, in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in such offices may be necessary to
perfect a
-125-
lien on registered trademarks, trademark applications and copyrights acquired by
the Credit Parties after the Closing Date) other than with respect to Permitted
Liens.
(c) REAL PROPERTY MORTGAGES. The Mortgages are effective to create in
favor of the Collateral Agents, for the ratable benefit of the Finance Parties,
a legal, valid and enforceable Lien on all of the right, title and interest of
the Credit Parties in and to the Mortgaged Properties thereunder and the
proceeds thereof, and when the Mortgages are filed in the offices specified on
SCHEDULE 5.20(c), the Mortgages shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Credit Parties in
such Mortgaged Properties and the proceeds thereof, in each case prior in right
to any other Person, other than with respect to Permitted Liens.
(d) STATUS OF LIENS. The Collateral Agents, for the ratable benefit of
the Finance Parties, will at all times have the Liens provided for in the
Collateral Documents and, subject to the filing by the Collateral Agents of
continuation statements to the extent required by the Uniform Commercial Code,
the Civil Code of Quebec or the Personal Property Security Acts, the Collateral
Documents will at all times constitute valid and continuing liens of record and
first priority perfected security interests in all the Collateral referred to
therein, except as priority may be affected by Permitted Liens. As of the
Closing Date, no filings or recordings are required in order to perfect the
security interests created under the Collateral Documents, except for filings or
recordings listed on SCHEDULE 5.20(a) and all such listed filings and recordings
have been made.
SECTION 5.21 CERTAIN TRANSACTIONS.
(a) ACQUISITION AGREEMENT. On the Closing Date, (i) the Acquisition
Agreement has not been amended or modified in any material respect, nor has any
material condition thereof been waived by the Parent Borrower, (ii) all
conditions to the obligations of the Parent Borrower to consummate the
transactions contemplated by the Acquisition Agreement have been satisfied or
waived with the consent of the Lead Arrangers, (iii) all funds advanced on the
Closing Date by the Lenders have been used in accordance with SECTION 5.14 and
(iv) the transactions contemplated by the Acquisition Agreement have been
consummated in accordance with the Acquisition Agreement and all applicable
requirements of Law.
(b) SENIOR NOTES. On the Closing Date, (i) the Senior Note Indenture
has not been amended or modified, nor has any condition thereof been waived by
the Parent Borrower in a manner adverse in any material respect to the rights or
interests of the Lenders and (ii) all funds advanced by the Senior Noteholders
have been used to consummate the transactions contemplated by the Acquisition
Agreement.
(c) SUBORDINATED NOTES. On the Closing Date, (i) the Subordinated Note
Indenture has not been amended or modified, nor has any condition thereof been
waived by the Parent Borrower in a manner adverse in any material respect to the
rights or interests of the Lenders and (ii) all funds advanced by the
Subordinated Noteholders have been used to consummate the transactions
contemplated by the Acquisition Agreement.
(d) NO BROKER'S FEES. Except as disclosed on SCHEDULE 5.21, no
broker's or finder's fee or commission will be payable with respect to this
Agreement or any of the transactions contemplated hereby as a result of any
action by or on behalf of the Borrowers or their Affiliates, and each of the
Borrowers hereby indemnifies each Agent and each Lender against, and agrees that
it will hold each Agent and each Lender harmless from, any claim, demand or
liability for any such broker's or finder's fees alleged to have been incurred
in connection herewith or therewith and any expenses (including
-126-
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each of the Borrowers, jointly and severally, agrees that so long as
any Lender has any Commitment hereunder, any Senior Obligation or other amount
payable hereunder or under any Note or other Senior Finance Document or any LC
Obligation or BA Reimbursement Obligation (in each case other than contingent
indemnification obligations) remains unpaid or any Letter of Credit or Bankers'
Acceptance remains in effect:
SECTION 6.01 INFORMATION. The Parent Borrower will furnish, or cause
to be furnished, to the Administrative Agents for delivery to each of the
Lenders (two copies to each Administrative Agent and such number of additional
copies as shall be sufficient for all Lenders):
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available, and in any
event within 90 days after the end of each fiscal year of the Parent Borrower, a
consolidated balance sheet and income statement of the Parent Borrower and its
Consolidated Subsidiaries, as of the end of such fiscal year, and the related
consolidated statement of operations and retained earnings and consolidated
statement of cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
statements to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agents and accompanied by an opinion of such
accountants (which shall not be qualified or limited in any material respect) to
the effect that such consolidated financial statements have been prepared in
accordance with GAAP and present fairly in all material respects the
consolidated financial position and consolidated results of operations and cash
flows of the Parent Borrower and its Consolidated Subsidiaries in accordance
with GAAP consistently applied (except for changes with which such accountants
concur) and accompanied by a written statement by the accountants reporting on
compliance with this Agreement to the effect that in the course of the audit
upon which their opinion on such financial statements was based (but without any
special or additional audit procedures for the purpose), they obtained knowledge
of no condition or event relating to financial matters which constitutes a
Default or an Event of Default or, if such accountants shall have obtained in
the course of such audit knowledge of any such Default or Event of Default,
disclosing in such written statement the nature and period of existence thereof,
it being understood that such accountants shall be under no liability, directly
or indirectly, to the Lenders for failure to obtain knowledge of any such
condition or event.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available, and in any
event within 45 days after the end of each of the first three fiscal quarters in
each fiscal year of the Parent Borrower, a consolidated balance sheet of the
Parent Borrower and its Consolidated Subsidiaries as of the end of such fiscal
quarter, together with related consolidated statement of operations and retained
earnings and consolidated statement of cash flows for such fiscal quarter and
the then elapsed portion of such fiscal year, setting forth in comparative form
consolidated figures for the corresponding periods of the preceding fiscal year,
all such financial statements to be in form and detail and reasonably acceptable
to the Administrative Agents, and accompanied by a certificate of the chief
financial officer of the Parent Borrower to the effect that such quarterly
financial statements have been prepared in accordance with GAAP and present
fairly in all material respects the consolidated financial position and
consolidated results of operations and cash flows of the Parent Borrower and its
Consolidated Subsidiaries in accordance with GAAP consistently applied, subject
to changes resulting from normal year-end audit adjustments and the absence of
footnotes required by GAAP.
-127-
(c) OFFICER'S CERTIFICATE. At the time of delivery of the financial
statements provided for in SECTIONS 6.01(a) and 6.01(b) above, a certificate of
the chief financial officer of the Parent Borrower (i) demonstrating compliance
with the financial covenants contained in SECTION 7.19 by calculation thereof as
of the end of the fiscal period covered by such financial statements, (ii)
stating that no Default or Event of Default exists, or if any Default or Event
of Default does exist, specifying the nature and extent thereof and what action
the Parent Borrower and the other Credit Parties propose to take with respect
thereto, (iii) stating whether, since the date of the most recent financial
statements delivered hereunder, there has been any material change in the GAAP
applied in the preparation of the financial statements of the Parent Borrower
and its Consolidated Subsidiaries, and, if so, describing such change, (iv)
identifying all Asset Dispositions, Casualties, Condemnations, Debt Issuances
and Equity Issuances that were made since the end of the previous fiscal quarter
and setting forth a reasonably detailed calculation of the Net Cash Proceeds
received from all Asset Dispositions (other than Excluded Asset Dispositions),
Casualties, Condemnations, Debt Issuances (other than Debt Issuances permitted
under SECTIONS 7.01(i) through (xiv) and Equity Issuances (other than Excluded
Equity Issuances) that were made since the end of the previous fiscal quarter
and (v) providing modifications and supplements to SCHEDULES 5.08, 5.10, 5.11,
5.20(a), 5.20(b) or 5.20(c). The certificate that is required to be delivered by
the Parent Borrower shall include a statement indicating any change in the
Leverage Ratio that would change the then existing Applicable Margin.
(d) ANNUAL BUSINESS PLAN AND BUDGETS. At least 60 days after the end
of each fiscal year of the Parent Borrower, beginning with the fiscal year
ending May 31, 2005, an annual business plan and budget of the Parent Borrower
and its Consolidated Subsidiaries in reasonable detail and containing, among
other things, projected financial statements for the next fiscal year.
(e) EXCESS CASH FLOW. Within 90 days after the end of each fiscal year
of the Parent Borrower, commencing with the fiscal year ending May 31, 2005, a
certificate of the chief financial officer of the Parent Borrower containing the
calculations in reasonable detail to arrive at Excess Cash Flow for such fiscal
year.
(f) AUDITOR'S REPORTS. Promptly (and in no event more than three days)
upon receipt thereof, a copy of any other fiscal report or "management letter"
submitted by independent accountants to the Parent Borrower or any of its
Subsidiaries in connection with any annual, interim or special audit of the
books of the Parent Borrower or any of its Subsidiaries.
(g) REPORTS. Promptly (and in no event more than three days) upon
transmission or receipt thereof, copies of all filings and registrations with,
and reports to or from, the Securities and Exchange Commission, or any successor
agency, the Autorite des Marches Financiers, the Ontario Securities Commission
or the Toronto Stock Exchange (or any successor entity of any of the foregoing)
and copies of all financial statements, proxy statements, notices and reports
any Group Company shall send to its shareholders or to a holder of any Debt owed
by any Group Company in its capacity as such a holder.
(h) NOTICES. Prompt (and in no event more than three days after any
Responsible Officer of any Borrower becomes aware of the same) notice of: (i)
the occurrence of any Default or Event of Default; (ii) any matter that has
resulted or may result in a Material Adverse Effect, including (but not limited
to) (A) breach or non-performance of, or any default under, any material
agreement of the Parent Borrower or any Material Credit Parties; (B) any
dispute, litigation, investigation, proceeding or suspension between the Parent
Borrower or any of its Subsidiaries and any Governmental Authority; (C) the
commencement of, or any material adverse development in, any material litigation
or proceeding affecting the Parent Borrower or any of its Subsidiaries,
including pursuant to any applicable Environmental Law; (D) any litigation,
investigation or proceeding affecting any Credit Party in which
-128-
the amount involved exceeds US$1,000,000, or in which injunctive relief or
similar relief is sought, which relief, if granted, could be reasonably expected
to have a Material Adverse Effect; and (E) any change in accounting policies or
financial reporting practice by the Parent Borrower and its Subsidiaries that is
material to the Parent Borrower and its Subsidiaries, taken as a whole. Each
notice pursuant to this SECTION 6.01(h) shall (i) be accompanied by a statement
of a Responsible Officer of the Parent Borrower setting forth details of the
occurrence referred to therein and stating what action the Parent Borrower or
one or more other Credit Parties has taken and proposes to take with respect
thereto and (ii) describe with particularity any and all provisions of this
Agreement or the other Senior Finance Documents that have been breached. Notices
delivered pursuant to this clause (h) shall be deemed to modify any applicable
Schedules under ARTICLE V until such time as the officer's certificate pursuant
to SECTION 6.01(c) has been delivered (except with respect to SECTION 4.02).
(i) EMPLOYEE BENEFITS ARRANGEMENTS.
(i) The Parent Borrower will give written notice to the
Administrative Agents promptly (and in any event within five Business Days
after any officer of any Group Company obtains knowledge thereof) of: (A)
any event or condition that constitutes, or is reasonably likely to lead
to, an ERISA Event; or (B) any change in the funding status of any Plan or
Canadian Pension Plan that could have a Material Adverse Effect, together
with a description of any such event or condition or a copy of any such
notice and a statement by the chief financial officer of the Parent
Borrower briefly setting forth the details regarding such event, condition
or notice and the action, if any, which has been or is being taken or is
proposed to be taken by the Parent Borrower and the other Credit Parties
with respect thereto; or (C) any event or condition that constitutes, or is
reasonably likely to lead to, an event described in SECTION
8.01(h)(iii)-(viii). Promptly upon request, the Parent Borrower shall
furnish the Administrative Agents and the Lenders with such additional
information concerning any Plan, Canadian Pension Plan or Employee Benefit
Arrangement as may be reasonably requested, including, but not limited to,
with respect to any Plans, copies of each annual report/return (Form 5500
series), as well as all schedules and attachments thereto required to be
filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year" (within
the meaning of Section 3(39) of ERISA) of each Plan; and
(ii) The Parent Borrower will (A) promptly deliver to the
Administrative Agents the most recently prepared actuarial reports in
relation to all Plans, Canadian Pension Plans and Employee Benefit
Arrangements for the time being operated by Group Companies which are
prepared in order to comply with the then current statutory or auditing
requirements within the relevant jurisdiction; and (B) if requested by any
Administrative Agent, promptly instruct an actuary to prepare such
actuarial reports and deliver those to the relevant Administrative Agent,
if any Administrative Agent has reasonable grounds for believing that any
relevant statutory or auditing requirement within the relevant jurisdiction
is not being complied with.
(j) ENVIRONMENTAL.
(i) If either Administrative Agent has reasonable grounds for
believing that a Group Company could reasonably be expected to incur any
Environmental Liability, upon its written request, the Parent Borrower will
furnish or cause to be furnished to the Administrative Agents, at the
expense of the Parent Borrower, a report of an environmental assessment of
reasonable scope, form and depth (including, where appropriate, invasive
soil or groundwater sampling) by a consultant acceptable to the requesting
Administrative Agent as to the nature and extent of the presence of any
Hazardous Substances on any properties of any Group Company
-129-
and as to the compliance by any Group Company with Environmental Laws
at such properties. If any Group Company fails to deliver such an
environmental report within 60 days after receipt of such written request,
then the requesting Administrative Agent may arrange for the same, the
Parent Borrower hereby grant, and agrees to cause the other Group Companies
to grant, to the Administrative Agents and their representatives access to
such properties to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling). The reasonable
cost of any assessment arranged by the Administrative Agents pursuant to
this provision shall be payable by the Parent Borrower on demand and shall
be added to the obligations secured by the Collateral Documents.
(ii) The Parent Borrower will, or will cause each Group Company
to, conduct and complete all investigations, studies, sampling and testing
and all remedial, removal and other actions necessary to address all
Hazardous Substances on, from or affecting any properties of any Group
Company to the extent necessary to be in compliance with all Environmental
Laws and with the orders and directives of all Governmental Authorities
with jurisdiction over such properties to the extent any failure to take
the foregoing actions could reasonably be expected to have a Material
Adverse Effect. The Parent Borrower acknowledges and agrees that if any of
it or any other Group Company fails to perform any of the actions required
under this SECTION 6.01(j)(ii), the Administrative Agents shall have the
right (but not the obligation) to do so for such Person consistent with
SECTION 6.09 hereof. The Parent Borrower further acknowledges and agrees
that if any Group Company fails to cooperate (e.g., by allowing access to
any premises or permitting the drilling of core samples, etc.) the
Administrative Agents and the Lenders will not have an adequate remedy at
Law.
(k) ADDITIONAL PATENTS, TRADEMARKS AND COPYRIGHTS. At the time of
delivery of the financial statements and reports provided for in SECTION 6.01(a)
or (b), a report signed by the chief financial officer of the Parent Borrower
setting forth (i) a list of registration numbers for all patents, trademarks,
service marks, tradenames and copyrights awarded to any Group Company since the
last day of the immediately preceding fiscal year or quarter of the Parent
Borrower and (ii) a list of all patent applications, trademark applications,
service ▇▇▇▇ applications, trade name applications and copyright applications
submitted by any Group Company since the last day of the immediately preceding
fiscal year or quarter and the status of each such application, all in such form
as shall be reasonably satisfactory to the Administrative Agents.
(l) DOMESTICATION IN OTHER JURISDICTION. Not less than 30 days prior
to any change in the jurisdiction of organization of any Credit Party, a copy of
all documents and certificates intended to be filed or otherwise executed to
effect such change.
(m) OTHER INFORMATION. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial
condition of any Group Company as either of the Administrative Agents or any
other Finance Party (through the Administrative Agents) may reasonably request,
which may include such information as any Finance Party may reasonably determine
is necessary or advisable to enable it either (i) to comply with the policies
and procedures adopted by it and its Affiliates to comply with the Bank Secrecy
Act, the U.S. Patriot Act and all applicable regulations thereunder or (ii) to
respond to requests for information concerning the Parent Borrower and its
Subsidiaries from any governmental, self-regulatory organization or financial
institution in connection with its anti-money laundering and anti-terrorism
regulatory requirements or its compliance procedures under the U.S. Patriot Act,
including in each case information concerning the Parent Borrower's direct and
indirect shareholders and its use of the proceeds of the Credit Extensions
hereunder.
-130-
SECTION 6.02 PRESERVATION OF EXISTENCE AND FRANCHISES. Except as a
result of or in connection with a dissolution, merger or disposition of a
Subsidiary of the Parent Borrower permitted under SECTION 7.04 or SECTION 7.05,
each Group Company will do all things necessary to preserve and keep in full
force and effect its legal existence and do or cause to be done all things
necessary to obtain, preserve, renew, extend and keep in full force and effect
the rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business and to
maintain and operate such business in substantially the manner in which it is
presently conducted (after taking into account the consummation of the
Acquisition); PROVIDED, HOWEVER, that neither the Parent Borrower nor any of its
Subsidiaries shall be required to preserve any such rights, licenses, permits,
franchises, authorizations or intellectual property if the preservation thereof
is no longer desirable in the conduct of the business of the Parent Borrower and
its Subsidiaries or the loss thereof, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.03 BOOKS AND RECORDS; LENDER MEETING. Each of the Group
Companies will keep complete and accurate books and records of its transactions
in accordance with good accounting practices on the basis of GAAP (including the
establishment and maintenance of appropriate reserves). Unless the
Administrative Agents shall notify the Parent Borrower that no meeting is
required, within 120 days after the end of each fiscal year of the Parent
Borrower, the Parent Borrower will conduct a meeting of the Lenders to discuss
such fiscal year's results and the financial condition of the Parent Borrower
and its Consolidated Subsidiaries. The chief executive officer and the chief
financial officer of each of the Borrowers and such other officers of the
Borrowers as the Parent Borrower's chief executive officers shall designate
shall be present at each such meeting. Such meetings shall be held at times and
places convenient to the Lenders and to the Parent Borrower.
SECTION 6.04 COMPLIANCE WITH LAW. Each of the Group Companies will
comply with all requirements of Law applicable to it and its properties to the
extent that noncompliance with any such requirement of Law, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
SECTION 6.05 PAYMENT OF TAXES AND OTHER DEBT. Each of the Group
Companies will pay and discharge (i) all taxes, assessments and other
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent, (ii) all
lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien (other than a Permitted Lien) upon any of its
properties, and (iii) except as prohibited hereunder or under the terms of the
Senior Notes or the Subordinated Notes, all of its other Debt as it shall become
due; PROVIDED, HOWEVER, that no Group Company shall be required to pay any such
tax, assessment, charge, levy, claim or Debt which is being contested in good
faith by appropriate proceedings diligently pursued and as to which adequate
reserves have been established in accordance with GAAP, unless the failure to
make any such payment, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.06 INSURANCE: CERTAIN PROCEEDS.
(a) INSURANCE POLICIES. Each of the Group Companies will at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risk and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice (or as are otherwise required by the Collateral Documents).
Each of the Collateral Agents shall be named as loss payee or mortgagee, as
their respective interests may appear, with respect to all such property and
casualty policies and additional insured with respect to all such other policies
(other than workers' compensation and employee health and directors' and
officers' policies), and each provider of any such
-131-
insurance shall agree, by endorsement upon the policy or policies issued by it
or by independent instruments furnished to the Collateral Agents, that if the
insurance carrier shall have received written notice from either of the
Collateral Agents of the occurrence and continuance of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Parent
Borrower or one or more of its Subsidiaries under such policies directly to the
Collateral Agents (which agreement shall be evidenced by a "standard" or "New
York" lender's loss payable endorsement in the names of the Collateral Agents on
Accord Form 27 or comparative Canadian form) and that it will give the
Collateral Agents 30 days' prior written notice before any such policy or
policies shall be altered or canceled, and that no act or default of any Group
Company or any other Person shall affect the rights of the Collateral Agents or
the Lenders under such policy or policies.
(b) LOSS EVENTS. In case of any Casualty or Condemnation with respect
to any property of any Group Company or any part thereof, the Parent Borrower
shall promptly give written notice thereof to the Administrative Agents
generally describing the nature and extent of such damage, destruction or
taking. In such case, the Parent Borrower shall, or shall cause such Group
Company to, promptly repair, restore or replace the property of such Person (or
part thereof) which was subject to such Casualty or Condemnation, at such
Person's cost and expense, whether or not the Insurance Proceeds or Condemnation
Award, if any, received on account of such event shall be sufficient for that
purpose; PROVIDED, HOWEVER, that such property need not be repaired, restored or
replaced to the extent the failure to make such repair, restoration or
replacement (i)(A) is desirable to the proper conduct of the business of such
Person in the ordinary course and otherwise in the best interest of such Person
and (B) would not materially impair the rights and benefits of the Collateral
Agents or the Finance Parties under the Collateral Documents or any other Senior
Finance Document or (ii) the failure to repair, restore or replace the property
is attributable to the application of the Insurance Proceeds from such Casualty
or the Condemnation Award from such Condemnation to payment of the Senior
Obligations in accordance with the following provisions of this SECTION 6.06(b).
If the Parent Borrower or any of its Subsidiaries shall receive any Insurance
Proceeds from a Casualty or Condemnation Award from a Condemnation, such Person
will immediately pay over or make an offer to pay over, as the case may be, such
proceeds to the relevant Administrative Agent, for payment of the Senior
Obligations in accordance with SECTIONS 2.10(b) and (c) or, if such funds
constitute Reinvestment Funds, to be held by the relevant Collateral Agent in
the Reinvestment Funds Account established under the U.S. Security Agreement or
the PPSA Security Agreement (as applicable). The relevant Administrative Agent
agrees to cause the relevant Collateral Agent to release such Insurance Proceeds
or Condemnation Awards held by such Collateral Agent to the Parent Borrower upon
its request and as needed from time to time to pay for the repair, restoration
or replacement of the portion of the property subject to such Casualty or
Condemnation if, but only if, the conditions set forth in the definition of
"Reinvestment Funds" are satisfied at the time of such request.
(c) CERTAIN RIGHTS OF THE LENDERS. IN connection with the covenants
set forth in this SECTION 6.06, it is understood and agreed that:
(i) none of the Agents, the Lenders or their respective
agents or employees shall be liable for any loss or damage insured by the
insurance policies required to be maintained under this SECTION 6.06, it
being understood that (A) the Group Companies shall look solely to their
insurance companies or any other parties other than the aforesaid parties
for the recovery of such loss or damage and (B) such insurance companies
shall have no rights of subrogation against the Agents, the Lenders or
their agents or employees; PROVIDED, HOWEVER, that if the insurance
policies do not provide waiver of subrogation rights against such parties,
as required above, then each of the Credit Parties hereby agrees to, and to
cause each of the Group Companies to, waive its right of recovery, if any,
against the Agents, the Lenders and their agents and employees, to the
extent permitted by Law;
-132-
(ii) the Group Companies will permit an insurance consultant
retained by the Administrative Agents, at the expense of the Parent
Borrower, to review from time to time the insurance policies maintained by
the Group Companies annually or upon the occurrence of an Event of Default;
and
(iii) the Required Lenders shall have the right from time to
time to require the Group Companies to keep other insurance in such form
and amount as the Administrative Agents or the Required Lenders may
reasonably request; PROVIDED that such insurance shall be obtainable on
commercially reasonable terms; and PROVIDED, FURTHER, that the designation
of any form, type or amount of insurance coverage by the Administrative
Agents or the Required Lenders under this SECTION 6.06 shall in no event be
deemed a representation, warranty or advice by any Agent or the Lenders
that such insurance is adequate for the purposes of the business of the
Group Companies or the protection of their respective properties.
SECTION 6.07 MAINTENANCE OF PROPERTY. Each of the Group Companies will
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition in all material
respects, normal wear and tear and Casualty and Condemnation excepted, and will
make, or cause to be made, as to such properties and equipment from time to time
all repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
SECTION 6.08 USE OF PROCEEDS. The Borrowers will use the proceeds of
the Loans and Bankers' Acceptances and will use the Letters of Credit solely for
the purposes set forth in SECTION 5.14.
SECTION 6.09 AUDITS/INSPECTIONS. Upon reasonable notice and during
normal business hours, each of the Group Companies will permit representatives
appointed by the Agents or the Required Lenders, including independent
accountants, agents, employees, attorneys and appraisers, to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representatives obtain and shall permit the Agents or such representatives to
investigate and verify the accuracy of information provided to the Lenders and
to discuss all such matters with the officers, employees, independent
accountants, attorneys and representatives of the Group Companies; PROVIDED,
HOWEVER, that (i) nothing herein shall obligate any Group Company to provide any
document or take any other action that would constitute a violation of
applicable laws regarding confidentiality of patient health information and
other confidentiality restrictions of Governmental Authorities by which any
Credit Party is bound, and (ii) such visits or inspections shall not occur more
than once in any period of 12 consecutive months, unless a Default or Event of
Default has occurred and is continuing. Each Credit Party will, from time to
time upon the reasonable request of either Collateral Agent, permit such
Collateral Agent or professionals (including investment bankers, consultants,
accountants, lawyers and appraisers) retained by such Collateral Agent to
conduct evaluations and appraisals of the assets included in the Collateral, and
the Parent Borrower will pay the reasonable fees and expenses of such
professionals in accordance with SECTION 10.04; PROVIDED, HOWEVER, that (i)
nothing herein shall obligate any Credit Party to provide any document or take
any other action that would constitute a violation of applicable laws regarding
confidentiality of patient health information and other confidentiality
restrictions of Governmental Authorities by which any Credit Party is bound, and
(ii) such evaluations or appraisals shall not occur more than once in any period
of 12 consecutive months, unless a Default or Event of Default has occurred and
is continuing. The Parent Borrower hereby irrevocably authorizes and directs all
accountants and auditors employed by it or any other Borrower at any time during
the term of this Agreement to exhibit and deliver to the Administrative Agents
and the Lenders copies of any of the financial statements, trial balances or
other accounting records of any sort of any Group Company in the accountant's or
auditor's possession, and to disclose to the Administrative Agents
-133-
and the Lenders any information they may have concerning the financial status
and business operations of any Group Company. Each of the Parent Borrower and
each other Borrower hereby irrevocably authorizes all federal, state and
municipal authorities to furnish to the Lenders copies of reports or
examinations relating to any Group Company, whether made by the Group Companies
or otherwise.
SECTION 6.10 ADDITIONAL CREDIT PARTIES: ADDITIONAL SECURITY.
(a) ADDITIONAL SUBSIDIARY GUARANTORS. The Parent Borrower wiIl take,
and will cause each of its Subsidiaries (other than Foreign Subsidiaries, except
to the extent provided in SUBSECTION (d) below) to take, such actions from time
to time as shall be necessary to ensure that all Subsidiaries of the Parent
Borrower (other than Foreign Subsidiaries, except to the extent provided in
SUBSECTION (d) below) are Subsidiary Guarantors. Without limiting the generality
of the foregoing, if any Group Company shall form or acquire any new Subsidiary,
the Parent Borrower, as soon as practicable and in any event within 10 days
after such formation or acquisition, will provide the Collateral Agents with
notice of such formation or acquisition setting forth in reasonable detail a
description of all of the assets of such new Subsidiary and will cause such new
Subsidiary (other than a Foreign Subsidiary, except to the extent provided in
SUBSECTION (d) below) to:
(i) within 10 days after such formation or acquisition,
execute an Accession Agreement or any other document or instrument pursuant
to which such new Subsidiary shall agree to become a "Guarantor" under the
Guaranty delivered by the Subsidiary Guarantors, a "Credit Party" under the
U.S. Security Agreement, the PPSA Security Agreement, the Quebec Hypothec,
the Pledge Agreement, and/or an obligor under such other Collateral
Documents as may be applicable to such new Subsidiary; and
(ii) deliver such proof of organizational authority, incumbency
of officers, opinions of counsel and other documents as is consistent with
those delivered by each Credit Party pursuant to SECTION 4.01 on the
Closing Date or as the Administrative Agents, the Collateral Agents or the
Required Lenders shall have requested.
(b) ADDITIONAL SECURITY. In the case of any property acquired after
the Closing Date, the Parent Borrower will cause, and will cause each of its
Subsidiaries (other than a Foreign Subsidiary, except to the extent provided in
SUBSECTION (d) below) to cause, (i) all of its owned personal property, (ii) all
of its owned Real Properties, (iii) all of its leased Material Real Properties
and (iv) all other assets and properties of the Parent Borrower and its
Subsidiaries as are not covered by the original Collateral Documents and as may
be requested by either Collateral Agent, the Global Transaction Coordinator or
the Required Lenders in each of their sole reasonable discretion to be subject
at all times to first priority (subject only to Permitted Liens), perfected and,
in the case of Material Real Property (whether leased or owned), title insured
Liens in favor of the relevant Collateral Agent pursuant to the Collateral
Documents or such other security agreements, pledge agreements, mortgages or
similar collateral documents as the relevant Collateral Agent or the Global
Transaction Coordinator shall request in each of their sole and reasonable
discretion (collectively, the "ADDITIONAL COLLATERAL DOCUMENTS"). With respect
to any owned Real Property or any leased Material Real Property acquired or
leased by any Credit Party subsequent to the Closing Date, such Person will
cause to be delivered to the relevant Collateral Agent with respect to such Real
Property fully executed and notarized Mortgages encumbering the interest of such
Person in such Real Property (except for leased properties with respect to which
landlord consent for such Mortgage cannot be obtained after commercially
reasonable efforts by the Parent Borrower to do so or as are otherwise approved
by the Administrative Agents) and, in the case of any Material Real Property,
such other documents, instruments and other items of the types required to be
delivered pursuant to SECTION 4.01(i), all in form, content and scope reasonably
satisfactory to such Collateral Agent. In furtherance of the foregoing terms of
this SECTION 6.10, the Parent Borrower agrees to promptly provide
-134-
the Administrative Agents with written notice of the acquisition by it or any of
its Subsidiaries of any Material Real Property or the entering into a lease by
the Parent Borrower or any of its Subsidiaries of any Material Real Property,
setting forth in each case in reasonable detail the location and a description
of the asset(s) so acquired or leased. Without limiting the generality of the
foregoing, the Parent Borrower will cause, and will cause each of its
Subsidiaries to cause, 100% of the Equity Interests of each of its direct and
indirect Subsidiaries (or 65% of such Equity Interests, if such Subsidiary is a
direct Foreign Subsidiary, except as provided in SUBSECTION (d) below) to be
subject at all times to a first priority, perfected Lien in favor of the
relevant Collateral Agent pursuant to the terms and conditions of the Collateral
Documents, subject only to Permitted Liens described in SECTION 7.02(iii) or
(iv) and Liens securing the Replacement Revolver.
If, subsequent to the Closing Date, a Credit Party shall acquire any
intellectual property, securities, instruments, chattel paper or other personal
property required to be delivered to the relevant Collateral Agent as Collateral
hereunder or under any of the Collateral Documents, the Parent Borrower shall
promptly (and in any event within five Business Days after any Responsible
Officer of any Credit Party acquires knowledge of the same) notify such
Collateral Agent of the same; PROVIDED that no such notice shall be required
with respect to personal property the security interest in which has been
perfected by filing as of the Closing Date of the financing statements or other
registration notices referred to in SECTION 4.01(i)(ii). Each of the Credit
Parties shall adhere to the covenants regarding the location of personal
property as set forth in the Collateral Documents.
All such security interests and mortgages shall be granted pursuant to
documentation consistent with the Collateral Documents executed at the Closing
and otherwise reasonably satisfactory in form and substance to the relevant
Collateral Agent and shall constitute valid and enforceable perfected security
interests and mortgages superior to and prior to the rights of all third Persons
and subject to no other Liens except for Permitted Liens. The Additional
Collateral Documents or instruments related thereto shall have been duly
recorded or filed in such manner and in such places as are required by Law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agents required to be granted pursuant to the Additional Collateral Documents,
and all taxes, fees and other charges payable in connection therewith shall have
been paid in full. The Parent Borrower shall cause to be delivered to the
relevant Collateral Agent such opinions of counsel, title insurance and other
related documents as may be reasonably requested by such Collateral Agent to
assure itself that this SECTION 6.10(b) has been complied with; PROVIDED that
the Borrowers shall not be required to provide opinions or title insurance with
respect to Real Property that is not a Material Real Property.
(c) REAL PROPERTY APPRAISALS. If either Collateral Agent or the
Required Lenders determine that they are required by Law or regulation to have
appraisals prepared in respect of the Real Property of any Group Company
constituting Collateral, the Parent Borrower shall (at the expense of the Parent
Borrower) provide to the Collateral Agents appraisals which satisfy the
applicable requirements set forth in 12 C.F.R., Part 34 - Subpart C or any
successor or similar statute, rule, regulation, guideline or order, and which
shall be in scope, form and substance, and from appraisers, reasonably
satisfactory to the Administrative Agents and shall be accompanied by a
certification of the appraisal firm providing such appraisals that the
appraisals comply with such requirements.
(d) FOREIGN SUBSIDIARIES SECURITY. If, following a change that is
reasonably determined to be relevant by the Administrative Agents in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
U.S. Borrower reasonably acceptable to the U.S. Collateral Agent and the
Required Lenders does not within 30 days after a request from the U.S.
Collateral Agent or the Required Lenders deliver evidence, in form and substance
mutually satisfactory to the U.S. Collateral Agent and the U.S. Borrower, with
respect to any Foreign Subsidiary of the U.S. Borrower which has not already had
all of the Equity Interests issued by it
-135-
pledged pursuant to the Pledge Agreement that (i) a pledge of 65.0% or more of
the total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, (ii) the entering into by such Foreign Subsidiary
of a guaranty in form and substance substantially identical to the Guaranty
delivered by the U.S. Subsidiary Guarantors, (iii) the entering into by such
Foreign Subsidiary of a security agreement in form and substance substantially
identical to the U.S. Security Agreement, and (iv) the entering into by such
Foreign Subsidiary of a pledge agreement substantially identical to the Pledge
Agreement, in any such case would cause the undistributed earnings of such
Foreign Subsidiary as determined for United States federal income tax purposes
to be treated as a deemed dividend to such Foreign Subsidiary's United States
parent or other domestic Affiliate for United States federal income tax
purposes, then, (A) in the case of a failure to deliver the evidence described
in CLAUSE (i) above, that portion of such Foreign Subsidiary's outstanding
capital stock so issued by such Foreign Subsidiary, in each case not theretofore
pledged pursuant to the Pledge Agreement, shall be pledged to the U.S.
Collateral Agent for the benefit of the Finance Parties pursuant to the Pledge
Agreement (or another pledge agreement in substantially identical form, if
needed); (B) in the case of a failure to deliver the evidence described in
CLAUSE (ii) above, such Foreign Subsidiary shall execute and deliver the
Guaranty delivered by the U.S. Subsidiary Guarantors (or another guaranty in
substantially identical form, if needed), guaranteeing the Finance Obligations
of the U.S. Borrower and each of its Subsidiaries; (C) in the case of a failure
to deliver the evidence described in CLAUSE (iii) above, such Foreign Subsidiary
shall execute and deliver the U.S. Security Agreement (or another security
agreement in substantially identical form, if needed), granting to the U.S.
Collateral Agent, for the benefit of the Finance Parties, a security interest in
all of such Foreign Subsidiary's assets and securing the Finance Obligations of
the Parent Borrower and each of its Subsidiaries; and (D) in the case of a
failure to deliver the evidence described in CLAUSE (iv) above, such Foreign
Subsidiary shall execute and deliver the Pledge Agreement (or another pledge
agreement in substantially identical form, if needed), pledging to the U.S.
Collateral Agent, for the benefit of the Finance Parties, all of the capital
stock owned by such Foreign Subsidiary, in each case to the extent that entering
into the Guaranty, U.S. Security Agreement or Pledge Agreement is permitted by
the Laws of the respective foreign jurisdiction and with all documents delivered
pursuant to this SECTION 6.10(d) to be in form, scope and substance reasonably
satisfactory to the U.S. Collateral Agent and the Required Lenders. In addition
to the foregoing, unless counsel for the U.S. Borrower acceptable to the U.S.
Collateral Agent and the Required Lenders delivers evidence within 30 days after
a request from the U.S. Collateral Agent or the Required Lenders, in form and
substance mutually satisfactory to the U.S. Collateral Agent and the U.S.
Borrower, with respect to any Foreign Subsidiary of the Parent Borrower that (i)
a pledge of all or any portion of the total combined voting power of all classes
of capital stock of such Foreign Subsidiary entitled to vote, (ii) the entering
into by such Foreign Subsidiary of a Guaranty in form and substance satisfactory
to the Administrative Agents and the Required Lenders guaranteeing all or any
portion of the Finance Obligations of any Borrower or other Credit Party or
identifiable subset thereof, (iii) the entering into by such Foreign Subsidiary
of a security agreement in form and substance, and covering such property and
assets of such Foreign Subsidiary as is, satisfactory to the U.S. Collateral
Agent and the Required Lenders securing all or any portion of the Finance
Obligations of any Borrower or other Credit Party or identifiable subset
thereof, and (iv) the entering into by such Foreign Subsidiary of a pledge
agreement in form and substance, and covering such property and assets of such
Foreign Subsidiary as is, satisfactory to the U.S. Collateral Agent and the
Required Lenders securing all or any portion of the Finance Obligations of any
Borrower or other Credit Party or identifiable subset thereof, in any such case
would result in materially adverse tax consequences to the U.S. Borrower and its
Consolidated Subsidiaries, taken as a whole, or would be prohibited by the local
Laws of any jurisdiction applicable to such Foreign Subsidiary or its properties
and assets, then, (A) in the case of a failure to deliver the evidence described
in CLAUSE (i) above, that portion of such Foreign Subsidiary's outstanding
capital stock so issued by such Foreign Subsidiary shall be pledged to the U.S.
Collateral Agent for the benefit of the Finance Parties to the maximum extent
possible as security for the Finance Obligations; (B) in the case of a failure
to deliver the evidence described in CLAUSE (ii) above, such Foreign Subsidiary
shall execute and deliver a Guaranty guaranteeing the Finance Obligations to the
maximum extent possible; (C)
-136-
in the case of a failure to deliver the evidence described in CLAUSES (iii) and
(iv) above, such Foreign Subsidiary shall execute and deliver such security
agreements, pledge agreements, mortgages, assignments and other Additional
Collateral Documents as may be necessary or desirable to grant to the U.S.
Collateral Agent, for the benefit of the Finance Parties, a security interest in
such Foreign Subsidiary's assets to the maximum extent possible as security for
the Finance Obligations, in each case pursuant to documentation in form, scope
and substance reasonably satisfactory to the U.S. Collateral Agent and the
Required Lenders.
(e) LANDLORD CONSENTS; LEASEHOLD MORTGAGES. To the extent not
delivered on the Closing Date and except as otherwise reasonably agreed by the
relevant Collateral Agent, the Parent Borrower will use commercially reasonable
efforts for a period of 90 days after the Closing Date to obtain a fully
executed Landlord Estoppel and Consent with respect to each Leased Mortgaged
Property, together with evidence that such Leased Mortgaged Property is a
Recorded Leasehold Interest, it being agreed that the relevant Collateral Agent
shall promptly thereafter return to the Parent Borrower the Mortgage with
respect to any Leased Real Property with respect to which the Parent Borrower
has failed to receive a Landlord Estoppel and Consent as contemplated by this
SECTION 6.10(e). The Parent Borrower hereby irrevocably authorizes each
Collateral Agent, upon receipt of each Leasehold Consent and Estoppel referred
to in this SECTION 6.10(e), to cause the Mortgage with respect to the relevant
Leased Mortgage Property to be recorded in all applicable filing offices.
Concurrently with such recordation, the Parent Borrower shall deliver or cause
to be delivered to the relevant Collateral Agent a Mortgage Policy with respect
to each such Leased Mortgage Property comparable to those delivered on the
Closing Date pursuant to SECTION 4.01(j)(iii) and otherwise in form, substance
and amount reasonably satisfactory to such Collateral Agent.
(f) The Parent Borrower agrees to complete each action set forth on
SCHEDULE 6.10 within the time periods indicated next to such action on such
Schedule.
(g) The Parent Borrower agrees that, except as otherwise provided in
this SECTION 6.10, each action required by this SECTION 6.10 shall be completed
as soon as possible, but in no event later than 60 days after such action is
either requested to be taken by either Collateral Agent or the Required Lenders
or required to be taken by the Parent Borrower or any of its Subsidiaries
pursuant to the terms of this SECTION 6.10.
(h) At any time or from time to time upon the request of either
Administrative Agent, each Credit Party will, at its expense, promptly execute,
acknowledge and deliver such further documents and do such other acts and things
as such Administrative Agent or either Collateral Agent may reasonably request
in order to effect fully the purposes of the Senior Finance Documents.
SECTION 6.11 INTEREST RATE PROTECTION AGREEMENTS. Within 60 days after
the Closing Date, the Parent Borrower will enter into and thereafter maintain in
full force and effect interest rate swaps, rate caps, collars or other similar
agreements or arrangements designed to hedge the position of the Borrowers with
respect to interest rates at rates and on terms reasonably satisfactory to the
Lead Arrangers, taking into account current market conditions, the effect of
which shall be to fix or limit the interest that would be payable in connection
with Loans (whether or not such Loans are then outstanding) and after giving
effect to such agreements or arrangements, the Loans bearing a floating rate of
interest shall not constitute more than 50% of the Consolidated Debt of the
Parent Borrower for a period expiring no earlier than 3 years after the Closing
Date. The Parent Borrower will promptly deliver evidence of the execution and
delivery of such agreements to the Administrative Agents.
-137-
ARTICLE VII
NEGATIVE COVENANTS
Each of the Borrowers, jointly and severally, covenants and agrees
that so long as any Lender has any Commitment hereunder, any Senior Obligations
or other amount payable hereunder or under any Note or other Senior Finance
Document or any LC Obligation or BA Reimbursement Obligation (in each case other
than contingent indemnification obligations) remains unpaid or any Letter of
Credit or Bankers' Acceptance remains unexpired:
SECTION 7.01 LIMITATION ON DEBT. None of the Group Companies will
incur, create, assume or permit to exist any Debt except:
(i) Debt of the Parent Borrower and its Subsidiaries
outstanding on the Closing Date and disclosed on SCHEDULE 7.01 not in
excess of US$10,000,000 in aggregate principal amount, without giving
effect to any subsequent extension, renewal or refinancing thereof
(collectively, the "EXISTING DEBT");
(ii) Debt of the Credit Parties under this Agreement and the
other Senior Finance Documents;
(iii) Debt of the Parent Borrower arising under (A) the Senior
Indenture and the Senior Notes issued on the Closing Date (but not
including any renewal, refinancing or extension thereof) and (B) the
Subordinated Indenture and the Subordinated Notes issued on the Closing
Date (but not including any renewal, refinancing or extension thereof);
(iv) Capital Lease Obligations and Purchase Money Debt of the
Parent Borrower and its Subsidiaries outstanding on the Closing Date or
incurred after the Closing Date to finance Capital Expenditures permitted
by SECTION 7.14; PROVIDED that (A) the aggregate amount of all such Debt
(together with refinancings thereof permitted by CLAUSE (vi) below) does
not exceed 3.0% of Consolidated Net Tangible Assets at any time
outstanding, (B) the Debt when incurred shall not be less than 90% or more
than 100% of the lesser of the cost or fair market value as of the time of
acquisition of the asset financed, (C) such Debt is issued and any Liens
securing such Debt are created concurrently with, or within 60 days after,
the acquisition of the asset financed and (D) no Lien securing such Debt
shall extend to or cover any property or asset of any Group Company other
than the asset so financed;
(v) Debt of the Parent Borrower or its Subsidiaries secured by
Liens permitted by CLAUSES (xii), (xiii) and (xlv) of SECTION 7.02 in an
aggregate outstanding principal amount (together with refinancings thereof
permitted by CLAUSE (vi) below) not exceeding US$50,000,000; PROVIDED that
(A) such Debt was not incurred in connection with, or in anticipation of,
the events described in such clauses or the relevant Permitted Business
Acquisition, (B) such Debt does not constitute debt for borrowed money (it
being understood that Capital Lease Obligations and Purchase Money Debt
shall not constitute debt for borrowed money solely for purposes of this
CLAUSE (v)) and (C) at the time of the events described in such Sections,
such Debt does not exceed 25% of the total value of the assets of the
Subsidiary so acquired, or of the assets so acquired, as the case may be;
(vi) (A) Debt of the Parent Borrower or its Subsidiaries
representing any refinancing, replacement or refunding of Debt permitted by
CLAUSES (i), (iv) or (v) above; PROVIDED that (1) such Debt (the
"REFINANCING DEBT") has an original aggregate principal amount not greater
than the aggregate principal amount of, and unpaid interest on, the Debt
being refinanced,
-138-
replaced or refunded plus the amount of any premiums required to be paid
thereon and fees and expense associated therewith, (2) such Refinancing
Debt has a later or equal final maturity and a larger or equal weighted
average life than the Debt being refinanced, replaced or refunded, (3) if
the Debt being refinanced, replaced or refunded is subordinated to the
Senior Obligations, such Refinancing Debt is subordinated to the Senior
Obligations on terms no less favorable to the Lenders than the terms of the
Debt being refinanced, replaced or refunded, (4) the covenants, events of
default and any Guaranty Obligations in respect thereof shall, on the
whole, be no less favorable to the Lenders than those contained in the Debt
being refinanced, replaced or refunded, (5) such Refinancing Debt is
incurred by the Group Company which is the obligor on the Debt being
refinanced, replaced or refunded, and (6) at the time of, and after giving
effect to, such refinancing, replacement or refunding, no Default or Event
of Default shall have occurred and be continuing, and (B) Debt incurred by
the Borrowers under the Replacement Revolver;
(vii) Derivatives Obligations of the Parent Borrower or any
Subsidiary under Derivatives Agreements to the extent entered into after
the Closing Date in compliance with SECTION 6.11 or to manage interest rate
or foreign currency exchange rate risks and not for speculative purposes;
(viii) Debt owed to any Person providing property, casualty or
liability insurance to the Parent Borrower or any Subsidiary of the Parent
Borrower (including any State insurance guarantee funds relating to any
such insurance policy), so long as such Debt shall not be in excess of the
amount of the unpaid cost of, and shall be incurred only to defer the cost
of, such insurance for the year in which such Debt is incurred and such
Debt shall be outstanding only during such year;
(ix) Debt arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that (A)
such Debt (other than credit or purchase cards) is extinguished within
three Business Days of its incurrence and (B) such Debt in respect of
credit or purchase cards in extinguished within 60 days from its
incurrence;
(x) Debt consisting of Guaranty Obligations (A) by the Parent
Borrower in respect of Debt and leases permitted to be incurred under
CLAUSES (i) through (ix) above by Wholly-Owned U.S. Subsidiaries and
Wholly-Owned Canadian Subsidiaries of the Parent Borrower, (B) by the
Parent Borrower in respect of Franchisee Buy-Back Arrangements in the
aggregate amount not exceeding the applicable Franchisee Buy-Back Limit,
(C) by the Parent Borrower in respect of Franchisee Guaranty Obligations in
the aggregate amount not exceeding the applicable Franchisee Guaranty
Limit, (D) by U.S. Subsidiary Guarantors of Debt and leases permitted to be
incurred under CLAUSES (i) through (ix) above by the Parent Borrower or
Wholly-Owned U.S. Subsidiaries or Wholly-Owned Canadian Subsidiaries of
the Parent Borrower, and (E) by Subsidiary Guarantors (other than the U.S.
Subsidiary Guarantors) of Debt and leases permitted to be incurred under
CLAUSES (i) through (ix) above by Wholly-Owned U.S. Subsidiaries or
Wholly-Owned Canadian Subsidiaries of the Parent Borrower or the Parent
Borrower; PROVIDED that the Guaranty Obligations of any Subordinated Debt
shall be subordinated to the Guaranty and other Senior Obligations on terms
that on the whole are no less favorable to the Lenders than the terms on
which such Subordinated Debt is subordinated to the Senior Obligations;
(xi) Debt owing to the Parent Borrower or a Subsidiary of the
Parent Borrower to the extent permitted by SECTION 7.06(a)(x) or (xi);
-139-
(xii) Debt of the Parent Borrower representing the obligation of
the Parent Borrower to make payments with respect to the cancellation or
repurchase of certain Equity Interests of officers, employees or directors
(or their estates) of the Parent Borrower and its Subsidiaries, to the
extent permitted by SECTION 7.07(iii);
(xiii) contingent liabilities in respect of any indemnification,
adjustment of purchase price, earn-out, non-compete, consulting, deferred
compensation and similar obligations of the Parent Borrower and its
Subsidiaries incurred in connection with the Acquisition and Permitted
Business Acquisitions;
(xiv) Subordinated Debt of the Parent Borrower to fund Permitted
Business Acquisitions in transactions permitted by this Agreement;
(xv) Permitted Securitization Transactions permitted by SECTION
7.05(xiii)
(xvi) unsecured Debt of the Parent Borrower not otherwise
permitted by this SECTION 7.01 incurred after the Closing Date in an
aggregate principal amount not to exceed US$125,000,000 at any time
outstanding; PROVIDED that (A) the credit documentation with respect to
such Debt shall not contain covenants or default provisions relating to the
Parent Borrower or any Subsidiary of the Parent Borrower that are more
restrictive than the covenants and default provisions contained in the
Senior Finance Documents, (B) no Default or Event of Default shall have
occurred and be continuing immediately before and immediately after giving
effect to such incurrence and (C) the Parent Borrower shall have delivered
to the Administrative Agents a certificate demonstrating that, upon giving
effect on a Pro-Forma Basis to the incurrence of such Debt and to the
concurrent retirement of any other Debt of any Group Company, the Credit
Parties shall be in compliance with the financial covenants set forth in
SECTION 7.19; and
(xvii) Subordinated Debt of the Parent Borrower not otherwise
permitted by this SECTION 7.01 incurred after the Closing Date in an
aggregate principal amount not to exceed US$250,000,000 at any time
outstanding; PROVIDED that (A) no Default or Event of Default shall have
occurred and be continuing immediately before and immediately after giving
effect to such incurrence, (B) the Parent Borrower shall have delivered to
the Administrative Agents a certificate demonstrating that, upon giving
effect on a Pro-Forma Basis to the incurrence of such Debt and to the
concurrent retirement of any other Debt of any Group Company, the Credit
Parties shall be in compliance with the financial covenants set forth in
SECTION 7.19 and (C) the proceeds of such Subordinated Debt are applied as
required by SECTION 2.10(b)(vi).
SECTION 7.02 RESTRICTION ON LIENS. None of the Group Companies will
create, incur, assume or permit to exist any Lien on any property or assets
(including Equity Interests or other securities of any Person, including any
Subsidiary of the Parent Borrower) now owned or hereafter acquired by it or on
any income or rights in respect of any thereof, except Liens described in any of
the following clauses (collectively, "PERMITTED LIENS"):
(i) Liens existing on the Closing Date and listed on SCHEDULE
7.02 hereto, PROVIDED that such Liens shall secure only those obligations,
which they secure on the date hereof (and permitted extensions, renewals
and refinancings of such obligations), and shall not subsequently apply to
any other property or assets of the Parent Borrower and its Subsidiaries
(other than accessions to and the proceeds of the property or assets
subject to such Liens to the extent provided by the terms thereof on the
date hereof);
(ii) Liens created by the Collateral Documents;
-140-
(iii) Liens (other than any Liens imposed by ERISA or pursuant
to any Environmental Law) for taxes, assessments or governmental charges or
levies not yet due or being contested in good faith and by appropriate
proceedings diligently pursued for which adequate reserves (in the good
faith judgment of the management of the Parent Borrower) have been
established in accordance with GAAP (and as to which the property or assets
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) Liens imposed by Law securing the charges, claims, demands
or levies of landlords, carriers, warehousemen, mechanics, carriers and
other like persons which were incurred in the ordinary course of business
and which (A) do not, individually or in the aggregate, materially detract
from the value of the property or assets, which are the subject of such
Lien or materially impair the use thereof in the operation of the business
of the Parent Borrower or any of its Subsidiaries, or (B) which are being
contested in good faith by appropriate proceedings diligently pursued,
which proceedings have the effect of preventing the forfeiture or sale of
the property or assets subject to such Lien;
(v) Liens arising from judgments, decrees or attachments (or
securing of appeal bonds with respect thereto) in circumstances not
constituting an Event of Default under SECTION 8.01; PROVIDED that no cash
or other property (other than proceeds of insurance payable by reason of
such judgments, decrees or attachments) the fair value of which exceeds
US$5,000,000 is deposited or delivered to secure any such judgment, decree
or award, or any appeal bond in respect thereof;
(vi) Liens (other than any Liens imposed by ERISA or pursuant
to any Environmental Law) not securing Debt or Derivatives Obligations
incurred or deposits made in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other types of
social security and other similar obligations incurred in the ordinary
course of business;
(vii) Liens securing obligations in respect of surety bonds
(other than appeal bonds), bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations incurred in the
ordinary course of business; PROVIDED that in the case of Liens on cash and
Cash Equivalents, the U.S. Dollar Amount of all cash and Cash Equivalents
subject to such Liens may at no time exceed US$1,000,000 in the aggregate;
(viii) pledges or deposits of cash and Cash Equivalents securing
deductibles, self-insurance, co-payment, co-insurance, retentions and
similar obligations to providers of insurance in the ordinary course of
business;
(ix) zoning restrictions, building codes, easements, rights of
way, licenses, reservations, covenants, conditions, waivers, restrictions
on the use of property or other minor encumbrances or irregularities of
title not securing Debt or Derivatives Obligations which do not,
individually or in the aggregate, materially impair the use of any property
in the operation or business of the Parent Borrower or any of its
Subsidiaries or the value of such property for the purpose of such
business;
(x) Permitted Encumbrances;
(xi) Liens securing Capital Lease Obligations and Purchase
Money Debt permitted to be incurred under SECTION 7.01(iv);
-141-
(xii) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Parent Borrower and not created in
contemplation of such event;
(xiii) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into the Parent Borrower or a
Subsidiary of the Parent Borrower and not created in contemplation of such
event;
(xiv) any Lien existing on any asset prior to the acquisition
thereof by the Parent Borrower or a Subsidiary of the Parent Borrower and
not created in contemplation of such acquisition;
(xv) any Lien securing Refinancing Debt in respect of any Debt
of the Parent Borrower or any Subsidiary of the Parent Borrower secured by
any Lien permitted by CLAUSES (i), (xi), (xii), (xiii) or (xiv) of this
SECTION 7.02; PROVIDED that such Debt is not secured by any additional
assets;
(xvi) Liens arising solely by virtue of any statutory or common
or civil Law provision relating to banker's liens, rights of set-off or
similar rights, in each case incurred in the ordinary course of business;
(xvii) licenses, leases or subleases granted to third Persons in
the ordinary course of business not interfering in any material respect
with the business of any Group Company other than a PropCo;
(xviii) Liens on (A) incurred premiums, dividends and rebates
which may become payable under insurance policies and loss payments which
reduce the incurred premiums on such insurance policies and (B) rights
which may arise under State insurance guarantee funds relating to any such
insurance policy, in each case securing Debt permitted to be incurred
pursuant to SECTION 7.01(viii);
(xix) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by
the Parent Borrower or any of its Subsidiaries in connection with any
letter of intent or purchase agreement with respect to a Permitted Business
Acquisition;
(xx) Liens upon specific items or inventory or other goods and
proceeds of the Parent Borrower or any of its Subsidiaries securing such
Person's obligations in respect of bankers' acceptances or documentary
letters of credit issued or created for the account of such Person to
facilitate the shipment or storage of such inventory or other goods;
(xxi) Undetermined or inchoate Liens (including priority
claims) which have not at such time been filed or registered in accordance
with applicable Law;
(xxii) Liens resulting from the right reserved to or vested in
any Governmental Authority by any statutory provision, or by the terms of
any lease, license, franchise, grant or permit of any Group Company, to
terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(xxiii) Liens securing the Replacement Revolver; and
-142-
(xxiv) Liens on assets transferred to a Securitization Entity or
an asset of a Securitization Entity, in either case, incurred as part of a
Permitted Securitization Transaction permitted by SECTION 7.05(xiii).
SECTION 7.03 NATURE OF BUSINESS. None of the Group Companies will
materially alter the character or conduct of the business conducted by such
Person as of the Closing Date and activities incidental thereto and similar or
related businesses.
SECTION 7.04 CONSOLIDATION, MERGER AND DISSOLUTION. Except in
connection with an Asset Disposition permitted by the terms of SECTION 7.05,
none of the Group Companies will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself or its affairs (or suffer
any liquidations or dissolutions); PROVIDED that:
(i) the Acquisition shall be permitted to be consummated as
provided in SECTION 4.01(g);
(ii) any (x) U.S. Subsidiary (other than the U.S. Borrower) or
Canadian Subsidiary of the Parent Borrower may merge with and into, or be
voluntarily dissolved or liquidated into, the Parent Borrower, and (y) any
U.S. Subsidiary of the U.S. Borrower may merge with and into or be
voluntarily dissolved or liquidated into the U.S. Borrower, so long as (A)
the Parent Borrower in the case of (x) above or the U.S. Borrower in the
case of (y) above, is the surviving corporation of such merger, dissolution
or liquidation, (B) the security interests granted to the relevant
Collateral Agent for the benefit of the Finance Parties pursuant to the
Collateral Documents in the assets of the Parent Borrower or the U.S.
Borrower and such U.S. Subsidiary or Canadian Subsidiary so merged,
dissolved or liquidated shall remain in full force and effect and perfected
(to at least the same extent as in effect immediately prior to such merger,
dissolution or liquidation), (C) no Default or Event of Default shall have
occurred and be continuing immediately before or immediately after giving
effect to such transaction and (D) no Person other than the Parent
Borrower, the U.S. Borrower or a Subsidiary Guarantor receives any
consideration in respect or as a result of such transaction;
(iii) any Wholly-Owned U.S. Subsidiary (other than the U.S.
Borrower) of the Parent Borrower may merge with and into, or be voluntarily
dissolved or liquidated into, any other Wholly-Owned U.S. Subsidiary of the
Parent Borrower and any Wholly-Owned Canadian Subsidiary of the Parent
Borrower may merge with and into, or be voluntarily dissolved or liquidated
into, any Wholly-Owned U.S. Subsidiary or any other Wholly-Owned Canadian
Subsidiary of the Parent Borrower, so long as (A) in the case of any such
merger, dissolution or liquidation involving one or more Subsidiary
Guarantors, (x) a Subsidiary Guarantor (or if any such merger, dissolution
or liquidation involves the U.S. Borrower, the U.S. Borrower) is the
surviving corporation of such merger, dissolution or liquidation, (y) no
Person other than the Parent Borrower or a Subsidiary Guarantor receives
any consideration in respect of or as a result of such transaction, (B) the
security interests granted to the relevant Collateral Agent for the benefit
of the Finance Parties pursuant to the Collateral Documents in the assets
of U.S. Subsidiary so merged, dissolved or liquidated and in the Equity
Interests of the surviving entity of such merger, dissolution or
liquidation shall remain in full force and effect and perfected (to at
least the same extent as in effect immediately prior to such merger,
dissolution or liquidation) and (C) no Default or Event of Default shall
have occurred and be continuing immediately before or immediately after
giving effect to such transaction;
(iv) any Foreign Subsidiary of the U.S. Borrower may be merged
with and into, or be voluntarily dissolved or liquidated into, the Parent
Borrower or any Wholly-Owned
-143-
Subsidiary of the Parent Borrower, so long as (A) in the case of any such
merger, dissolution or liquidation involving the Parent Borrower or one or
more Subsidiary Guarantors, (x) the Parent Borrower or such Subsidiary
Guarantor, as the case may be, is the surviving corporation of any such
merger, dissolution or liquidation and (y) no Person other than the Parent
Borrower or the U.S. Borrower or a Subsidiary Guarantor receives any
consideration in respect of or as a result of such transaction, (B) the
security interests granted to the relevant Collateral Agent for the benefit
of the Finance Parties pursuant to the Collateral Documents in the assets
of such Foreign Subsidiary, if any, and the Parent Borrower or such other
Wholly-Owned Subsidiary, as the case may be, shall remain in full force and
effect and perfected (to at least the same extent as in effect immediately
prior to such merger, dissolution or liquidation) and (C) no Default or
Event of Default shall have occurred and be continuing immediately before
or immediately after giving effect to such transaction; and
(v) the Parent Borrower or any Subsidiary of the Parent
Borrower may merge with any Person in connection with a Permitted Business
Acquisition if (A) in the case of any such merger involving the Parent
Borrower or the U.S. Borrower, the Parent Borrower or the U.S. Borrower, as
the case may be, shall be the continuing or surviving corporation in such
merger, (B) in the case of any such merger involving a Subsidiary
Guarantor, such Subsidiary Guarantor shall be the continuing or surviving
corporation in such merger or the continuing or surviving corporation in
such merger shall, simultaneously with the consummation of such merger,
become a Subsidiary Guarantor having all the responsibilities and
obligations of the Subsidiary Guarantor so merged, (C) the Credit Parties
shall cause to be executed and delivered such documents, instruments and
certificates as the Administrative Agents may reasonably request so as to
cause the Credit Parties to be in compliance with the terms of SECTION 6.10
after giving effect to such transactions, (D) no Default or Event of
Default shall have occurred and be continuing immediately before or
immediately after giving effect to such transaction and (E) the Parent
Borrower shall have delivered to the Administrative Agents a Pro-Forma
Compliance Certificate demonstrating that, upon giving effect on a
Pro-Forma Basis to such transaction, the Credit Parties will be in
compliance with all of the financial covenants set forth in SECTION 7.19 as
of the last day of the most recent period of four consecutive fiscal
quarters of the Parent Borrower which precedes or ends on the date of such
transaction and with respect to which the Administrative Agents have
received the consolidated financial information required under SECTION
6.01(a) or (b) and the officer's certificate required by SECTION 6.01 (c).
In the case of any merger or consolidation permitted by this SECTION 7.04 of any
Subsidiary of the Parent Borrower which is not a Credit Party into a Credit
Party, the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Administrative Agents may
reasonably request so as to cause the Credit Parties to be in compliance with
the terms of SECTION 6.10 after giving effect to such transaction.
Notwithstanding anything to the contrary contained above in this SECTION 7.04,
no action shall be permitted which results in a Change of Control.
SECTION 7.05 ASSET DISPOSITIONS. None of the Group Companies will make
any Asset Disposition; PROVIDED that:
(i) any Group Company may sell inventory in the ordinary
course of business for fair value and on an arm's-length basis;
(ii) the Parent Borrower may make any Asset Disposition to any
of the Subsidiary Guarantors if (A) the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as
either of the Administrative Agents or the Collateral Agents may reasonably
request so as to cause the Credit Parties to be in compliance with the
-144-
terms of SECTION 6.10 after giving effect to such Asset Disposition and (B)
after giving effect to such Asset Disposition, no Default or Event of
Default exists;
(iii) the Parent Borrower and its Subsidiaries may liquidate or
sell Cash Equivalents in the ordinary course of business;
(iv) the Parent Borrower or any of its Subsidiaries may sell,
lease, transfer, assign or otherwise dispose of assets (other than in
connection with any Casualty or Condemnation) to any other Person; PROVIDED
that the aggregate fair market value of all property disposed of pursuant
to this CLAUSE (iv) does not exceed (x) US$15,000,000 in the aggregate in
any fiscal year of the Parent Borrower plus the unused amounts under this
CLAUSE (iv) from the prior fiscal years or (y) US$75,000,000 in the
aggregate from and after the Closing Date;
(v) the Parent Borrower or any of its Subsidiaries may dispose
of machinery or equipment which will be replaced or upgraded with machinery
or equipment put to a similar use and owned by such Person; PROVIDED that
(A) such replacement or upgraded machinery and equipment is acquired within
90 days after such disposition, (B) the fair market value of all property
disposed of pursuant to this CLAUSE (v) does not exceed US$500,000 in the
aggregate in any fiscal year of the Parent Borrower and (C) upon their
acquisition, such replacement assets become subject to the Lien of the
Collateral Agents under the Collateral Documents;
(vi) the Parent Borrower or any of its Subsidiaries may dispose
of obsolete, worn-out or surplus tangible assets in the ordinary course of
business and in a commercially reasonable manner, so long as the fair
market value of all property disposed of pursuant to this CLAUSE (vi) does
not exceed US$500,000 in the aggregate in any fiscal year of the Parent
Borrower.
(vii) any Group Company may enter into any Sale/Leaseback
Transaction not prohibited by SECTION 7.13;
(viii) any Canadian Subsidiary of the Parent Borrower may sell,
lease or otherwise transfer all or substantially all or any part of its
assets (including any such transaction effected by the way of merger or
consolidation) to the Parent Borrower or any Wholly-Owned Subsidiary of the
Parent Borrower and any U.S. Subsidiary of the U.S. Borrower may sell,
lease or otherwise transfer all or substantially all or any part of its
assets (including any such transaction effected by way of merger or
consolidation) to the U.S. Borrower or any of its Wholly-Owned U.S.
Subsidiaries, in each case, so long as (A) the security interests granted
to the relevant Collateral Agent for the benefit of the Finance Parties
pursuant to the Collateral Documents in such assets shall remain in full
force and effect and perfected (to at least the same extent as in effect
immediately prior to such sale, lease or other transfer) and (B) after
giving effect to such Asset Disposition, no Default or Event of Default
exists;
(ix) any non-Wholly-Owned U.S. Subsidiary, Canadian Subsidiary
or Foreign Subsidiary of the Parent Borrower may sell, lease or otherwise
transfer all or any part of its assets (including any such transaction
effected by way of merger or consolidation) to any other non-Wholly-Owned
U.S. Subsidiary or Canadian Subsidiary of the Parent Borrower and any
Foreign Subsidiary of the U.S. Borrower may sell, lease or otherwise
transfer all or any part of its assets (including by way of merger or
consolidation) to any other Foreign Subsidiary of the U.S. Borrower, in
each case, so long as the security interests granted to the relevant
Collateral Agent for the benefit of the Finance Parties pursuant to the
Collateral Documents in such assets shall
-145-
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such sale, lease or other transfer);
(x) any Group Company may lease, as lessor or sublessor, or
license, as licensor or sublicensor, real or personal property in the
ordinary course of business and consistent with past practices;
(xi) any Group Company may dispose of defaulted receivables and
similar obligations in the ordinary course of business and not as part of
an accounts receivable financing transaction;
(xii) any Group Company may make an Asset Disposition not
otherwise permitted by CLAUSES (i) through (xi) above; PROVIDED that (A)
the property disposed of pursuant to this CLAUSE (xii) is disposed of for
cash or Cash Equivalents and for at least the fair market value thereof,
(B) the fair market value of all property disposed of pursuant to this
CLAUSE (xii) does not exceed US$50,000,000 in the aggregate in any fiscal
year of the Parent Borrower plus the unused amounts under this CLAUSE (xii)
from the prior fiscal years and (C) the Net Cash Proceeds of such Asset
Dispositions are applied in accordance with SECTION 2.10(b) and (c);
(xiii) sales of accounts receivable, chattel paper and related
assets of the type described in the definition of "PERMITTED SECURITIZATION
TRANSACTION" to a Securitization Entity for the fair market value thereof
and transfers of accounts receivable, chattel paper and related assets of
the type described in the definition of "PERMITTED SECURITIZATION
TRANSACTIONS" (or a fractional undivided interest therein) by a
Securitization Entity in a Permitted Securitization Transaction; PROVIDED
that (A) the fair market value of all property disposed of pursuant to this
CLAUSE (xiii) (without duplication) does not exceed 40% of the aggregate
amount of receivables of the Parent Borrower and its Consolidated
Subsidiaries and (B) 75% of the Net Cash Proceeds of such Asset
Dispositions are applied in accordance with SECTIONS 2.10(b) and (c);
(xiv) any Group Company may make an Asset Disposition of store
assets listed on SCHEDULE 7.05(xiv); PROVIDED that (A) the property
disposed of pursuant to this CLAUSE (xiv) is disposed of for cash or Cash
Equivalents and for at least the fair market value thereof and (B) the Net
Cash Proceeds of such Asset Dispositions are applied substantially
concurrently with the receipt thereof, in accordance with SECTION 2.10(b)
and (c), but, if the Leverage Ratio as of the last day of the fiscal
quarter of the Parent Borrower ending on or most recently preceding the
making of any such Asset Disposition equals or exceeds 3.25 to 1.00,
excluding the reinvestment option provided for in SECTION 2.10(c)(i)(A),(B)
and (c);
(xv) any Group Company may make an Asset Disposition of
non-core assets listed on SCHEDULE 7.05(xv); PROVIDED that (A) the property
disposed of pursuant to this CLAUSE (xv) is disposed of for cash or Cash
Equivalents and for at least the fair market value thereof and (B) the Net
Cash Proceeds of such Asset Dispositions are applied in accordance with
SECTION 2.10(b) and (c); and
(xvi) any Group Company may make an Asset Disposition not
otherwise permitted by CLAUSES (i) through (xv) above; PROVIDED that (A)
the property disposed of pursuant to this CLAUSE (xvi) is disposed of for
cash or Cash Equivalents and for at least the fair market value thereof,
(B) the fair market value of all property disposed of pursuant to this
CLAUSE (xvi) on or after the Closing Date does not exceed US$50,000,000 in
the aggregate and (C) the Net Cash Proceeds of such Asset Dispositions are
applied substantially concurrently with the receipt thereof in accordance
with SECTION 2.10(b) and (c) but, if the Leverage Ratio as of the last day
of
-146-
the fiscal quarter of the Parent Borrower ending on or most recently
preceding the making of any Asset Disposition equals or exceeds 3.25 to
1.00, excluding the reinvestment option provided for in SECTION
2.10(c)(i)(A), (B) and (C).
Upon consummation of an Asset Disposition permitted under this SECTION 7.05, the
Lien created thereon under the Collateral Documents (but not the Lien on any
proceeds thereof) shall be automatically released (subject to the concurrent
grant of a security interest in such assets pursuant to SECTION 6.10 if such
Asset Disposition is made to another Credit Party), and the relevant
Administrative Agent shall (or shall cause the relevant Collateral Agent to) (to
the extent applicable) deliver to the Parent Borrower, upon the Parent
Borrower's request and at the Parent Borrower's expense, such documentation as
is reasonably necessary to evidence the release of the relevant Collateral
Agent's security interests, if any, in the assets being disposed of, including
amendments or terminations of Uniform Commercial Code or Personal Property
Security Acts Financing Statements or registration statements registered at the
Register of Personal and Movable Real Rights, if any, the return of stock
certificates, if any, and the release of any Subsidiary being disposed of in its
entirety from all of its obligations, if any, under the Senior Finance
Documents.
SECTION 7.06 INVESTMENTS.
(a) INVESTMENTS. None of the Group Companies will hold, make or
acquire, any Investment in any Person, except the following:
(i) Investments existing on the date hereof in Persons which
are Subsidiaries on the date hereof;
(ii) the Parent Borrower and any Subsidiary of the Parent
Borrower may invest in cash and Cash Equivalents;
(iii) the Parent Borrower and any Subsidiary of the Parent
Borrower may acquire and hold receivables owing to them, if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(iv) the Parent Borrower and any Subsidiary of the Parent
Borrower may acquire and own Investments (including Debt obligations)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(v) to the extent it would be permitted by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, loans and advances by the Parent Borrower and its Subsidiaries to
employees of the Parent Borrower and its Subsidiaries for moving and travel
and other similar expenses, in each case in the ordinary course of
business, in an aggregate principal amount not to exceed US$10,000,000 at
any time outstanding (determined without regard to any write-downs or
write-offs of such loans and advances);
(vi) deposits by the Parent Borrower or any Subsidiary of the
Parent Borrower made in the ordinary course of business consistent with
past practices to secure the performance of leases shall be permitted;
(vii) the Parent Borrower may make contributions to an employee
stock ownership plan sponsored by it; PROVIDED that such contributions are
in Qualified Capital Stock, and the Parent Borrower may lend or contribute
money to an employee stock ownership plan
-147-
sponsored by it to permit such plan to immediately purchase Qualified
Capital Stock from the Parent Borrower with the proceeds of such loan or
contribution;
(viii) to the extent it would be permitted by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act, the Parent Borrower may acquire and hold obligations of one or more
officers or other employees of the Parent Borrower or any of its
Subsidiaries in connection with such officers' or employees' acquisition of
shares of common stock of the Parent Borrower, so long as no cash is paid
by the Parent Borrower or any of its Subsidiaries to such officers or
employees in connection with the acquisition of any such obligations;
(ix) the Parent Borrower may repurchase stock to the extent
permitted by SECTION 7.07(iii) and (iv);
(x) the Parent Borrower may make Investments in any of its
Wholly-Owned U.S. Subsidiaries or Wholly-Owned Canadian Subsidiaries and
any Subsidiary of the Parent Borrower may make Investments in the Parent
Borrower or any Wholly-Owned Subsidiary of the Parent Borrower; PROVIDED
that (A) each item of intercompany Debt shall be evidenced by a promissory
note in the form of EXHIBIT G hereto, (B) each promissory note evidencing
intercompany loans and advances made by a Foreign Subsidiary or a
non-Wholly-Owned Subsidiary to the Parent Borrower or a Wholly-Owned
Subsidiary of the Parent Borrower shall contain the subordination
provisions set forth in EXHIBIT H hereto and (C) each promissory note
evidencing intercompany loans and advances shall be pledged to the relevant
Collateral Agent pursuant to the Collateral Documents;
(xi) the Parent Borrower and its Subsidiaries may make
Investments in any Foreign Subsidiary or any non-Wholly-Owned Subsidiary of
the Parent Borrower (A) in the case of Investments by the Parent Borrower
or any Wholly-Owned Subsidiary of the Parent Borrower, in an aggregate
amount (determined without regard to any write-downs or write-offs of any
such Investments constituting Debt) at any one time outstanding not
exceeding 1.0% of Consolidated Net Tangible Assets or (B) to the extent
such Investments arise from the sale of inventory in the ordinary course
of business by the Parent Borrower or such Subsidiary to such Foreign
Subsidiary or non-Wholly-Owned Subsidiary for resale by such Foreign
Subsidiary or non-Wholly-Owned Subsidiary (including any such Investments
resulting from the extension of the payment terms with respect to such
sales); PROVIDED that (A) each item of intercompany Debt shall be evidenced
by a promissory note substantially in the form of EXHIBIT G hereto and (B)
each promissory note evidencing intercompany loans and advances shall be
pledged to the relevant Collateral Agent pursuant to the Collateral
Documents;
(xii) Investments arising out of the receipt by the Parent
Borrower and any of its Subsidiaries of non-cash consideration for the sale
of assets permitted under SECTION 7.05;
(xiii) the Parent Borrower and its Subsidiaries may purchase
inventory, machinery and equipment in the ordinary course of business and,
in the case of the Parent Borrower, pursuant to the Franchisee Buy-Back
Arrangements to the extent permitted by SECTION 7.01(x)(B)and Franchisee
Guaranty Obligations to the extent permitted by SECTION 7.Ol(x)(C);
(xiv) the Parent Borrower and its Subsidiaries may make
Investments in respect of (A) Permitted Business Acquisitions, (B) Capital
Expenditures permitted hereunder and (C) joint venture arrangements
permitted by clause (c) below;
-148-
(xv) the Parent Borrower and its Subsidiaries may make
Investment in a Securitization Entity or a Securitization Entity may make
Investment in any other Person, in each case in connection with a Permitted
Securitization Transaction permitted by SECTION 7.05(xiii); PROVIDED,
HOWEVER, that the foregoing Investment is in the form of a Purchase Money
Note or an Equity Interest; and
(xvi) the Parent Borrower may make loans to its Canadian
Drugstore franchisees in the ordinary course of its business in the amount
not to exceed US$40,000,000 outstanding at any time;
PROVIDED that no Group Company may make or own any Investment in Margin Stock.
(b) ASSET ACQUISITIONS. No Group Company will make any Business
Acquisition or any other acquisition of assets outside the ordinary course of
business; PROVIDED that (i) the Parent Borrower may effect the Acquisition
(subject to compliance with the applicable conditions precedent set forth in
ARTICLE IV) and (ii) subject to SECTION 7.06(a)(xiv), the Parent Borrower and
its Subsidiaries may make Permitted Business Acquisitions.
(c) JOINT VENTURES AND SIMILAR ARRANGEMENTS. No Group Company will
enter into any joint venture or partnership agreement or arrangement or any
other agreement or arrangement with any Person (other than another Group
Company) involving the sharing of profits or joint or coordinated purchasing or
distribution, except that a Group Company may enter into joint venture
arrangements so long as (i) such joint ventures are engaged in a business
similar, related or incidental to that engaged by the Parent Borrower and its
Subsidiaries, (ii) the aggregate amount of all such Investments from the Closing
Date does not exceed US$100,000,000, (iii) any such Investment satisfies
conditions (ii), (iii), (v) and (vi) to the definition of "PERMITTED BUSINESS
ACQUISITION", and (iv) except for joint ventures engaged solely in the business
of prescription benefit management, any such Investment shall constitute at
least 50% of Equity Interests of such joint venture.
(d) LIMITATION ON THE CREATION OF SUBSIDIARIES. No Group Company will
establish, create or acquire after the Closing Date any Subsidiary; PROVIDED
that the Parent Borrower and its Wholly-Owned Subsidiaries shall be permitted
to establish, create or acquire Wholly-Owned Subsidiaries so long as (i) at
least 30 days' prior written notice thereof is given to the Administrative
Agents, (ii) the capital stock or other equity interests of such new Subsidiary
(other than a Foreign Subsidiary, except to the extent otherwise required
pursuant to SECTION 6.10(d)) is pledged pursuant to, and to the extent required
by, the Collateral Documents and the certificates representing such interests,
together with transfer powers duly executed in blank, are delivered to the
relevant Collateral Agent, (iii) such new Subsidiary (other than a Foreign
Subsidiary, except to the extent otherwise required pursuant to SECTION 6.10(d))
executes a counterpart of the Accession Agreement, the Guaranty delivered by the
Subsidiary Guarantors, each Collateral Document as provided in SECTION 6.10(b),
and (iv) such new Subsidiary, to the extent requested by the Administrative
Agents, takes all other actions required pursuant to SECTION 6.10.
SECTION 7.07 RESTRICTED PAYMENTS, ETC. None of the Group Companies
will declare or pay any Restricted Payments (other than Restricted Payments
payable solely in Equity Interests (exclusive of Debt Equivalents) of such
Person), except that:
(i) any Wholly-Owned Subsidiary of the Parent Borrower may
make Restricted Payments to the Parent Borrower or to any Wholly-Owned
Subsidiary of the Parent Borrower;
-149-
(ii) any non-Wholly-Owned Subsidiary of the Parent Borrower may
make Restricted Payments to the Parent Borrower or to any Wholly-Owned
Subsidiary of the Parent Borrower or ratably to all holders of its
outstanding Equity Interests;
(iii) the Parent Borrower may redeem or repurchase Equity
Interests (or Equity Equivalents) from (A) officers, employees and
directors of any Group Company (or their estates, spouses or former
spouses) upon the death, permanent disability, retirement or termination of
employment of any such Person or otherwise in accordance with any stock
option plan or any employee stock ownership plan maintained by the Parent
Borrower or any of its Subsidiaries, or (B) other holders of Equity
Interests or Equity Equivalents in the Parent Borrower, so long as the
purpose of such purchase is to acquire common stock for reissuance to new
officers, employees and directors (or their estates) of any Group Company,
to the extent so reissued within 12 months of any such purchase; PROVIDED
that in all such cases (A) no Default or Event of Default is then in
existence or would otherwise arise therefrom, (B) the aggregate amount of
all cash paid in respect of all such shares so redeemed or repurchased does
not exceed US$1,000,000 in any fiscal year of the Parent Borrower or
US$7,000,000 in the aggregate from and after the Closing Date, and PROVIDED
FURTHER that the Parent Borrower may purchase, redeem or otherwise acquire
Equity Interests and Equity Equivalents of the Parent Borrower pursuant to
this CLAUSE (iii) without regard to the restrictions set forth in the first
proviso above for consideration consisting of the proceeds of key man life
insurance obtained for the purposes described in this CLAUSE (iii); and
(iv) so long as no Default or Event of Default is then in
existence or would arise therefrom, the Parent Borrower may make regular
quarterly dividend payments on and open market repurchases of Equity
Interests of the Parent Borrower in each case in the ordinary course of
business and consistent with past practices on the Parent Borrower's
outstanding Capital Stock; PROVIDED that the aggregate amount of all such
payments and repurchases does not exceed US$35,000,000 in the aggregate in
any fiscal year; and, PROVIDED, FURTHER, that for any of the fiscal
quarters of the Parent Borrower ending on August 31, 2004 and November 30,
2004, the per share amount of all such payments and repurchases shall not
exceed C$0.03; and
(v) so long as no Default or Event of Default is then in
existence or would arise therefrom, the Group Companies may make Restricted
Payments not otherwise permitted by CLAUSES (i) through (iv) of this
SECTION 7.07; PROVIDED that the aggregate amount of all Restricted Payments
made on or after the Closing Date pursuant to this CLAUSE (v) does not
exceed in the aggregate (A) if the Leverage Ratio as of the last day of the
fiscal quarter of the Parent Borrower ending on or most recently preceding
the making of any such Restricted Payment is less than 3.25 to 1.0,
US$40,000,000 and (B) otherwise, US$20,000,000 (it being understood and
agreed that any Restricted Payment made in compliance with clause (A) of
this proviso shall not cause a Default or Event of Default solely by reason
of a change in the Leverage Ratio subsequent to the making of such
Restricted Payment, which change results in the application of clause (B)
of this proviso).
SECTION 7.08 PREPAYMENTS OF DEBT, ETC.
(a) AMENDMENTS OF DEBT AGREEMENTS. None of the Group Companies
will, or will permit any of their respective Subsidiaries to, after the
issuance thereof, amend, waive or modify (or permit the amendment, waiver or
modification of) any of the terms, agreements, covenants or conditions of or
applicable to any Debt (other than the Senior Obligations or Debt listed on
SCHEDULE 7.12 and permitted by SECTION 7.01(xii) issued by such Group Company
if such amendment, waiver or modification would add or change any terms,
agreements, covenants or conditions in any manner materially adverse to any
-150-
Group Company, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any subordination provision thereof.
(b) PROHIBITION AGAINST CERTAIN PAVEMENTS OF PRINCIPAL AND INTEREST OF
OTHER DEBT. Except as provided in SUBSECTION (c) below, none of the Group
Companies will (i) directly or indirectly, redeem, purchase, prepay, retire,
defease or otherwise acquire for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Debt (other than the Senior
Obligations or Debt listed on SCHEDULE 7.12 and permitted by SECTION 7.01(xi)),
or set aside any funds for such purpose, whether such redemption, purchase,
prepayment, retirement or acquisition is made at the option of the maker or at
the option of the holder thereof, and whether or not any such redemption,
purchase, prepayment, retirement or acquisition is required under the terms and
conditions applicable to such Debt, (ii) make any interest payment in respect of
the Subordinated Notes, or (iii) release, cancel, compromise or forgive in whole
or in part any Debt evidenced by any Intercompany Note (other than Debt listed
on SCHEDULE 7.12 and permitted by SECTION 7.0l(xi)).
(c) CERTAIN ALLOWED PAYMENTS IN RESPECT OF SUBORDINATED DEBT. The
Parent Borrower may make regularly scheduled interest payments (together with
any Additional Amounts (as defined in the Subordinated Note Indenture) required
to be paid) as and when due in respect of the Subordinated Notes other than any
such payments prohibited by the subordination provisions thereof.
SECTION 7.09 TRANSACTIONS WITH AFFILIATES. None of the Group Companies
will enter into any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or
services) with or for the benefit of any Affiliate of the Parent Borrower (other
than any Credit Party) unless such transaction or series of related transactions
is entered into in good faith and in writing and:
(i) such transaction or series of related transactions is on
terms that are no less favorable to the Parent Borrower or such other Group
Company, as the case may be, than those that would be available in a
comparable transaction in arm's-length dealings with an unrelated third
party;
(ii) with respect to any transaction or series of related
transactions having a U.S. Dollar Amount or involving aggregate value in
excess of US$10,000,000, (A) the Parent Borrower delivers an officers'
certificate to the Administrative Agents certifying that such transaction
or series of related transactions complies with SUBSECTION (i) above and
(B) such transaction or series of related transactions has been approved by
a majority of the Disinterested Directors of the board of directors of the
Parent Borrower, or in the event there is only one Disinterested Director,
by such Disinterested Director, or
(iii) with respect to any transaction or series of related
transactions having a U.S. Dollar Amount involving aggregate value in
excess of US$50,000,000, the Parent Borrower delivers to the Administrative
Agents a written opinion of an investment banking firm of national standing
in the United States or Canada or other recognized independent expert with
experience appraising the terms and conditions of the type of transaction
or series of related transactions for which an opinion is required stating
that the transaction or series of related transactions is fair to the
Parent Borrower or another relevant Credit Party from a financial point of
view;
PROVIDED, HOWEVER, that this SECTION 7.09 shall not apply to: (1) employee
benefit arrangements with any officer or director of the Parent Borrower,
including under any stock option or stock incentive plans, and customary
indemnification arrangements with officers or directors of the Parent Borrower,
in each case
-151-
entered into in the ordinary course of business, (2) any Investments permitted
by SECTION 7.06 and any Restricted Payments permitted by SECTION 7.07, (3)
transactions effected as part of a Permitted Securitization Transaction
permitted pursuant to SECTION 7.05(xiii), (4) any fees paid to directors in the
ordinary course in their capacity as such, (5) any sale or issuance of Qualified
Capital Stock to Affiliates of the Parent Borrower, and (6) transactions entered
into in the ordinary course of business with Affiliates of the Parent Borrower
who are Canadian drugstore franchisees, whether currently owned or after-
acquired, in their capacities as such, for purposes of (x) the purchase and sale
of inventory for the related franchises or (y) Franchisee Buy-Back Arrangements
to the extent permitted by SECTION 7.01(x)(B) and Franchisee Guaranty
Obligations to the extent permitted by SECTION 7.01(x)(C).
SECTION 7.10 FISCAL YEAR; ORGANIZATIONAL AND OTHER DOCUMENTS. None of
the Group Companies will (i) change its fiscal year (except that the Borrowers
may cause Eckerd Corporation, Eckerd Fleet, Inc., EDC Licensing, Inc., ▇▇▇▇▇▇▇▇
Drug Stores, Inc., Max Drug South, L.P., Thrift Drug, Inc. and Thrift Drug
Services, Inc. to take such actions necessary to change their fiscal years to
conform to the fiscal year of the Borrowers) or consent to any amendment,
modification or supplement of any of the provisions of the Transaction Documents
(other than the Senior Notes and the Subordinated Notes, the amendments to which
shall be governed by SECTION 7.08 hereof) or (ii) enter into any
amendment, modification or waiver that is adverse in any material respect to the
Lenders to its articles or certificate of incorporation, bylaws (or analogous
organizational documents) or any agreement entered into by it with respect to
its Equity Interests, in each case as in effect on the Closing Date. The Parent
Borrower will cause the Group Companies to promptly provide the Lenders with
copies of all amendments to the foregoing documents and instruments entered into
after the Closing Date.
SECTION 7.11 RESTRICTIONS WITH RESPECT TO INTERCORPORATE TRANSFERS.
None of the Group Companies will create or otherwise cause or permit to exist
any encumbrance or restriction which prohibits or otherwise restricts (i) the
ability of any such Subsidiary to (A) make Restricted Payments or pay any Debt
owed to the Parent Borrower or any Subsidiary of the Parent Borrower, (B) pay
Debt or other obligations owed to any Credit Party, (C) make loans or advances
to the Parent Borrower or any Subsidiary of the Parent Borrower, (D) transfer
any of its properties or assets to the Parent Borrower or any Subsidiary of the
Parent Borrower or (E) act as a Subsidiary Guarantor and pledge its assets
pursuant to the Finance Documents or any renewals, refinancings, exchanges,
refundings or extensions thereof or (ii) the ability of the Parent Borrower or
any Subsidiary of the Parent Borrower to create, incur, assume or permit to
exist any Lien upon its property or assets whether now owned or hereafter
acquired to secure the Senior Obligations, except in each case for prohibitions
or restrictions existing under or by reason of:
(i) this Agreement, the other Senior Finance Documents and the
other Transaction Documents;
(ii) applicable Law;
(iii) restrictions in effect on the date of this Agreement
contained in the agreements governing Existing Debt, the Senior Note
Indenture, the Senior Notes, the Subordinated Note Indenture and the
Subordinated Notes all as in effect on the date of this Agreement, and, if
such Debt is renewed, extended or refinanced, restrictions in the
agreements governing the renewed, extended or refinancing Debt (and
successive renewals, extensions and refinancings thereof) if such
restrictions are no more restrictive than those contained in the agreements
governing the Debt being renewed, extended or refinanced;
(iv) customary non-assignment provisions with respect to (A)
leases or licensing agreements entered into by the Parent Borrower or any
of its Subsidiaries, in each case entered into in the ordinary course of
business and consistent with past practices or (B) the
-152-
continuation or extension of any such leases or licensing agreements that
may be in existence as of the Closing Date or were in existence at any time
during the five year period prior to the Closing Date;
(v) any restriction or encumbrance with respect to any asset
of the Parent Borrower or any of its Subsidiaries or a Subsidiary of the
Parent Borrower imposed pursuant to an agreement which has been entered
into for the sale or disposition of such assets or all or substantially all
of the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement; and
(vi) Liens permitted under SECTION 7.02 and any documents or
instruments governing the terms of any Debt or other obligations secured by
any such Liens; PROVIDED that such prohibitions or restrictions apply only
to the assets subject to such Liens.
SECTION 7.12 OWNERSHIP OF SUBSIDIARIES; LIMITATIONS ON THE PARENT
BORROWER; SPVs, PropCos.
(a) Except in connection with the transactions permitted by SECTION
7.06(a)(xi) or 7.06(c), the Parent Borrower will not (i) permit any Person
(other than the Parent Borrower or any Wholly-Owned Subsidiary of the Parent
Borrower or as permitted by CLAUSE (ii)(B) below) to own any Equity Interest of
any Subsidiary of the Parent Borrower, (ii) permit any Subsidiary of the Parent
Borrower to issue Equity Interests to any Person, except (A) the Parent Borrower
or any Wholly-Owned Subsidiary of the Parent Borrower or (B) to qualify
directors where required by applicable Law or to satisfy other requirements of
applicable Law with respect to the ownership of Equity Interests of Foreign
Subsidiaries, or (iii) except as set forth on SCHEDULE 7.12, permit the Parent
Borrower or any Subsidiary of the Parent Borrower to issue any shares of
Preferred Stock.
(b) Except (i) as set forth on SCHEDULE 7.12, (ii) acting as a
guarantor under the Senior Notes, the Subordinated Notes and the Guaranty and
(iii) acting as a guarantor and pledging its assets to the relevant Collateral
Agent under the Collateral Documents, no SPV shall hold, acquire or sell any
assets, make any Investments, have any liabilities or engage in any business.
(c) Except for acting as a guarantor under the Senior Notes, the
Subordinated Notes and the Guaranty and pledging its assets to the relevant
Collateral Agent under the Collateral Documents, no PropCo shall (i) hold,
acquire or sell any assets other than Real Property that is titled to such
PropCo, (ii) make any Investments or (iii) have any liabilities other than Debt
permitted by SECTIONS 7.01(i) and (iv) and refinancings thereof permitted by
SECTION 7.01(vi).
(d) ▇▇▇▇ ▇▇▇▇▇, L.L.C., a Delaware limited liability company, (i)
shall not own any assets (other the de minimus amount of cash), have any
liabilities or make any Investments and (ii) shall be dissolved no later than
January 31, 2005.
SECTION 7.13 SALE AND LEASEBACK TRANSACTIONS. None of the Group
Companies will directly or indirectly become or remain liable as lessee or as
guarantor or other surety with respect to any lease (whether an Operating Lease
or a Capital Lease) of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, (i) which such Group Company has sold or
transferred or is to sell or transfer to any other Person which is not a Group
Company or (ii) which such Group Company intends to use for substantially the
same purpose as any other property which has been sold or is to be sold or
transferred by such Group Company to another Person which is not a Group Company
in connection with such lease; PROVIDED, HOWEVER, that the Group Companies may
enter into such transactions with respect to personal property or real property,
in an aggregate amount of up to
-153-
US$50,000,000 in sales proceeds during the term of this Agreement, if (i) after
giving effect on a Pro-Forma Basis to any such transaction the Parent Borrower
shall be in compliance with all other provisions of this Agreement, including
SECTION 7.01 and SECTION 7.02, (ii) the gross cash proceeds of any such
transaction are at least equal to the fair market value of such property (as
determined by the Board of Directors, whose determination shall be prima facie
evidence thereof if made in good faith) and (iii) 75% of the Net Cash Proceeds
are forwarded to the Administrative Agents and applied in accordance with
SECTIONS 2.10(b) and (c) as required therein; PROVIDED that the Net Cash
Proceeds resulting from a sale and leaseback transaction that is consummated
within four months following the acquisition of the property that is the subject
of such transaction may be used to fund the purchase price of the such property
so acquired (in which case no repayments of the Loans would be required).
SECTION 7.14 CAPITAL EXPENDITURES.
(a) If on any date on which any Group Company proposes to make any
Consolidated Capital Expenditure the Leverage Ratio as of the last day of the
fiscal quarter of the Parent Borrower ending on or most recently preceding such
date is equal to or greater than 3.25 to 1.00, none of the Group Companies will
make any such Consolidated Capital Expenditures, except that during any of the
fiscal years set forth below, the Parent Borrower and its Subsidiaries may make
Consolidated Capital Expenditures so long as the aggregate amount of such
Consolidated Capital Expenditures does not exceed the amount indicated opposite
such period; PROVIDED that the reference below to the 2005 fiscal year shall be
to the year from the Closing Date to the last day of such fiscal year:
PERIOD AMOUNT
------ ------
2005 US$290,600,000
2006 US$230,800,000
2007 US$230,900,000
2008 US$235,100,000
2009 US$235,900,000
2010 US$235,900,000
2011 US$235,900,000
(b) Notwithstanding the foregoing, the Parent Borrower and its
Subsidiaries may make Consolidated Capital Expenditures (which Consolidated
Capital Expenditures will not be included in any determination under SUBSECTION
(a) above) financed with the Net Cash Proceeds of Equity Issuances and/or Asset
Dispositions, to the extent such Net Cash Proceeds are not required to be
applied to repay Loans pursuant to SECTION 2.10(b) or (c).
SECTION 7.15 ADDITIONAL NEGATIVE PLEDGES. None of the Group Companies
will enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the creation or assumption of any Lien upon its properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for an obligation if security is given for some other obligation,
except (i) pursuant to this Agreement, the other Senior Finance Documents, the
Senior Note Indenture and the Subordinated Note Indenture, and (ii) pursuant to
any document or instrument governing Capital Lease Obligations or Purchase Money
Debt incurred pursuant to SECTION 7.01 if any such restriction contained therein
relates only to the asset or assets acquired in connection therewith.
SECTION 7.16 NO OTHER "DESIGNATED SENIOR INDEBTEDNESS". The Parent
Borrower shall not designate, or permit the designation of, any Debt (other than
under this Agreement and the other Finance Documents) as "Designated Senior
Indebtedness" or any other similar term for the purpose of the definition of the
same or the subordination provisions contained in the Subordinated Note
Indenture or any indenture governing any Subordinated Debt permitted under
SECTION 7.01.
-154-
SECTION 7.17 IMPAIRMENT OF SECURITY INTERESTS. None of the Group
Companies will (i) take or omit to take any action which action or omission
might or would materially impair the security interests in favor of the
Collateral Agents with respect to the Collateral or (ii) grant to any Person
(other than the Collateral Agents pursuant to the Collateral Documents) any
interest whatsoever in the Collateral, except for Permitted Liens.
SECTION 7.18 SALES OF RECEIVABLES. None of the Group Companies will
sell with recourse, discount (other than in the ordinary course of business) or
otherwise sell or dispose of its accounts or notes receivables, except pursuant
to a Permitted Securitization Transaction permitted by SECTION 7.05(xiii).
SECTION 7.19 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. As of the close of business on any day on and
after the Closing Date, the Leverage Ratio at such date will not be greater than
the ratio set forth below opposite the period during which such date occurs:
PERIOD RATIO
------ -----
Closing Date through August 31, 2005 5.25 to 1.0
September 1, 2005 through November 30, 2005 5.00 to 1.0
December 1, 2005 through February 28, 2006 4.75 to 1.0
March 1, 2006 through February 28, 2007 4.50 to 1.0
March 1, 2007 through February 29, 2008 3.75 to 1.0
March 1, 2008 through February 28, 2009 3.00 to 1.0
March 1, 2009 and thereafter 2.50 to 1.0
(b) FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage Ratio for
any period of four consecutive fiscal quarters of the Parent Borrower (or, in
the case of the fiscal quarter ended on February 28, 2005, six consecutive
months, or, in the case of the fiscal quarter ended on May 31, 2005, nine
consecutive months), in each case taken as a single accounting period, ending on
a date set forth below will not be less than the ratio set forth opposite such
date:
FISCAL QUARTER ENDED RATIO
-------------------- -----
February 28, 2005 1.00 to 1.0
May 31, 2005 1.00 to 1.0
August 31, 2005 1.00 to 1.0
November 30, 2005 1.00 to 1.0
February 28, 2006 1.00 to 1.0
May 31, 2006 1.10 to 1.0
August 31, 2006 1.10 to 1.0
November 30, 2006 1.10 to 1.0
February 28, 2007 1.10 to 1.0
May 31, 2007 1.20 to 1.0
August 31, 2007 1.20 to 1.0
November 30, 2007 1.20 to 1.0
February 29, 2008 1.20 to 1.0
May 31, 2008 1.30 to 1.0
August 31, 2008 1.30 to 1.0
November 30, 2008 1.30 to 1.0
February 28, 2009 1.30 to 1.0
-155-
May 31, 2009 1.30 to 1.0
August 31, 2009 1.30 to 1.0
November 30, 2009 1.30 to 1.0
February 28, 2010 1.30 to 1.0
May 31, 2010 1.40 to 1.0
August 31, 2010 1.40 to 1.0
November 30, 2010 1.40 to 1.0
February 28, 2011 1.40 to 1.0
May 31, 2011 1.40 to 1.0
SECTION 7.20 INDEPENDENCE OF COVENANTS. All covenants contained herein
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that such action or condition
would be permitted by an exception to, or otherwise be within the limitations
of, another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
ARTICLE VIII
DEFAULTS
SECTION 8.01 EVENTS OF DEFAULT. An Event of Default shall exist upon
the occurrence of any of the following specified events or conditions (each an
"EVENT OF DEFAULT"):
(a) PAYMENT. Any Credit Party shall:
(i) default in the payment when due (whether by scheduled
maturity, acceleration or otherwise) of any principal of any of the Loans
or of any LC Disbursement or BA Reimbursement Obligation; or
(ii) default, and such default shall continue for three or
more Business Days, in the payment when due of any interest on the Loans,
or of any fees or other amounts owing hereunder, under any of the other
Senior Finance Documents or in connection herewith or therewith.
(b) REPRESENTATIONS. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Senior Finance
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
(or in all respects in the case of such representations or warranties containing
materiality qualifiers) on the date as of which it was made or deemed to have
been made.
(c) COVENANTS. Any Credit Party shall:
(i) default in the due performance or observance of any
term, covenant or agreement contained in SECTIONS 6.01, 6.02, 6.08,
6.10(f), 6.11 or ARTICLE VII;
(ii) default in the due performance or observance by it of
any term, covenant or agreement contained in ARTICLE VI (other than those
referred to in SUBSECTIONS (a), (b) or (c)(i) of this SECTION 8.01) and
such default shall continue unremedied for a period of five Business Days
after the earlier of a Responsible Officer of a Credit Party becoming aware
of such default or notice thereof given by either of the Administrative
Agents; or
-156-
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
SUBSECTIONS (a), (b) or (c)(i) or (ii) of this SECTION 8.01) contained in
this Agreement and such default shall continue unremedied for a period of
30 days after the earlier of a Responsible Officer of a Credit Party
becoming aware of such default or notice thereof given by either of the
Administrative Agents.
(d) OTHER SENIOR FINANCE DOCUMENTS. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement in any
of the other Senior Finance Documents (other than Below-Threshold Mortgages) and
such default shall continue unremedied for a period of 30 days after the earlier
of an executive officer of a Credit Party becoming aware of such default or
notice thereof given by either of the Administrative Agents, (ii) except
pursuant to the terms thereof, any Senior Finance Document (other than
Below-Threshold Mortgages) shall fail to be in full force and effect or any
Credit Party shall so assert or (iii) except pursuant to the terms thereof, any
Senior Finance Document (other than Below-Threshold Mortgages) shall fail to
give either Administrative Agent, either Collateral Agent and/or the Lenders the
security interests, liens, rights, powers and privileges purported to be created
thereby.
(e) CROSS-DEFAULT.
(i) Any Group Company (A) fails to make payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), regardless of amount, in respect of any Debt or Guaranty
Obligation (other than in respect of (x) Debt outstanding under the Senior
Finance Documents and (y) Derivatives Agreements) having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than US$25,000,000, (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition shall exist, under any agreement or instrument relating to any
such Debt or Guaranty Obligation, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders or beneficiary or
beneficiaries of such Debt or Guaranty Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause,
such Debt to be declared to be due and payable prior to its stated
maturity, or such Guaranty Obligation to become payable, or cash collateral
in respect thereof to be demanded or (C) shall be required by the terms of
such Debt or Guaranty Obligation to offer to prepay or repurchase such Debt
or the primary Debt underlying such Guaranty Obligation (or any portion
thereof) prior to the stated maturity thereof; or
(ii) there occurs under any Derivatives Agreement or
Derivatives Obligation an Early Termination Date (as defined in such
Derivatives Agreement) resulting from (A) any event of default under such
Derivatives Agreement as to which any Group Company is the Defaulting Party
(as defined in such Derivatives Agreement) or (B) any Termination Event (as
so defined) as to which any Group Company is an Affected Party (as so
defined), and, in either event, the Derivatives Termination Value owed by a
Group Company as a result thereof is greater than US$25,000,000.
(f) INSOLVENCY EVENTS. (i) Any Borrower, any other Material Credit
Party or any other Group Companies (which Group Companies, if taken together,
would either (a) have assets representing 5% or more of the Consolidated Total
Assets or (b) generate 5% or more of the Consolidated EBITDA of the Parent
Borrower and its Consolidated Subsidiaries) shall in each case commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar Law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property,
-157-
or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing or (ii) an
involuntary case or other proceeding shall be commenced against any Borrower,
any other Material Credit Party or any other Group Company referred to in clause
(i) above seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days, or any order for relief shall
be entered against any such Borrower, such other Material Credit Party or such
other Group Company under the federal bankruptcy laws as now or hereafter in
effect.
(g) JUDGMENTS. (i) One or more judgments, orders, decrees or
arbitration awards is entered against any Group Company involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance or an indemnity from a credit-worthy party as to which the insurer or
indemnitor, as applicable, does not dispute coverage), as to any single or
related series of transactions, incidents or conditions, of US$25,000,000 or
more, and the same shall not have been discharged, vacated or stayed pending
appeal within 30 days after the entry thereof, or any Group Company shall enter
into any agreement to settle or compromise any pending or threatened litigation,
as to any single or related series of claims, involving payment by any Group
Company of US$25,000,000 or more, or (ii) any non-monetary judgment, order or
decree is entered against any Group Company which has or would reasonably be
expected to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect.
(h) EMPLOYEE BENEFIT PLANS. (i) An ERISA Event occurs which has
resulted or could reasonably be expected to result in liability of any Group
Company or any ERISA Affiliate in an aggregate amount in excess of
US$25,000,000, (ii) there shall exist an amount of Unfunded Liabilities,
individually or in the aggregate, for all Plans and Canadian Pension Plans
(excluding for purposes of such computation any Plans and Canadian Pension Plans
with respect to which assets exceed benefit liabilities), in an aggregate amount
in excess of US$25,000,000, (iii) any Canadian Pension Plan is not in
substantial compliance with all applicable pension benefits and tax laws or has
Unfunded Liabilities (either on a "going concern" or on a "winding up" basis
determined in accordance with all applicable laws and using assumptions and
methods that are appropriate in the circumstances and in accordance with
generally accepted actuarial principles and practices in each relevant
jurisdiction), (iv) any contribution required to be made in accordance with any
applicable law or the terms of any Canadian Pension Plan has not been made; (v)
any event has occurred or condition exists with respect to any Canadian Pension
Plan that has resulted or could result in such Canadian Pension Plan being
ordered or required to be wound up in whole or in part pursuant to any
applicable laws or having any applicable registration revoked or refused for the
purposes of any applicable pension benefits or tax laws or being placed under
the administration of the relevant pension benefits regulatory authority or
being required to pay any taxes or penalties under applicable pension benefits
and tax laws; (vi) an order has been made or notice has been given pursuant to
any applicable pension benefits and tax laws in respect of any Canadian Pension
Plan requiring any person to take or refrain from taking any action in respect
thereof or that there has been a contravention of any such applicable laws;
(vii) an event has occurred or a condition exists that has resulted or could
result in any Group Company being required to pay, repay or refund any amount
other than contributions required to be made or expenses required to be paid in
the ordinary course) to or on account of any Canadian Pension Plan or a current
or former member thereof; or (viii) an event has occurred or a condition exists
that has resulted or could result in a payment being made out of a guarantee
fund established under the applicable pension benefits laws in respect of a
Canadian Pension Plan; and which, with respect to all the events and obligations
described in the preceding CLAUSES (iii) through (viii)
-158-
of this SECTION 8.01(h), in the opinion of the Required Lenders could reasonably
be expected to have a Material Adverse Effect.
(i) GUARANTIES. Any Guaranty given by any Credit Parties or any
provision thereof shall, except pursuant to the terms thereof, cease to be in
full force and effect, or any Guarantor thereunder or any Person acting by or on
behalf of such guarantor shall deny or disaffirm such Guarantor's obligations
under such Guaranty.
(j) IMPAIRMENT OF COLLATERAL. Any security interest purported to be
created by any Collateral Document shall cease to be, or shall be asserted by
any Group Company not to be, a valid, perfected, first-priority (except as
otherwise expressly provided in such Collateral Document) security interest in
the securities, assets or properties covered thereby, other than in respect of
an immaterial portion of the assets and properties.
(k) OWNERSHIP. A Change of Control shall occur.
(l) SUBORDINATED DEBT. (i) Any Governmental Authority with applicable
jurisdiction determines that the Lenders are not holders of "Designated Senior
Indebtedness" (as defined in the Subordinated Note Indenture) or (ii) the
subordination provisions creating the Subordinated Debt shall, in whole or in
part, terminate, cease to be effective or cease to be legally valid, binding and
enforceable as to any holder of the Subordinated Debt.
(m) ASSET DISPOSITION EVENT/CASUALTY/CONDEMNATION EVENT. The Parent
Borrower shall fail to make an Asset Disposition Event Offer or
Casualty/Condemnation Event Offer as required pursuant to SECTION 2.10(c), or if
such offer is accepted the Parent Borrower shall have failed to fulfill its
obligations pursuant thereto.
SECTION 8.02 ACCELERATION: REMEDIES. Upon the occurrence of an Event
of Default, and at any time thereafter unless and until such Event of Default
has been waived in writing by the Required Lenders (or the Lenders as may be
required pursuant to SECTION 10.03), either of the Administrative Agents (or the
Collateral Agents, as applicable) shall, upon the request and direction of the
Required Lenders, by written notice to the relevant Borrowers, take any of the
following actions without prejudice to the rights of the Agents or any Lender to
enforce its claims against the Credit Parties except as otherwise specifically
provided for herein:
(a) TERMINATION OF COMMITMENTS. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) ACCELERATION OF LOANS. Declare the unpaid principal of and any
accrued interest in respect of all Loans, all BA Reimbursement Obligations, any
reimbursement obligations arising from drawings under Letters of Credit and any
and all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the same shall
be immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties.
(c) CASH COLLATERAL. Direct the Borrowers to pay (and each Borrower
agrees that upon receipt of such notice, or upon the occurrence and during the
continuance of an Event of Default under SECTION 8.01(f), it will immediately
pay) to the relevant Collateral Agent additional cash, to be held by such
Collateral Agent, for the benefit of the Lenders, in a cash collateral account
as additional security for the LC Obligations in respect of subsequent drawings
under all then outstanding Letters of Credit and/or BA Reimbursement Obligations
in an amount equal to 105% of the maximum aggregate amount which
-159-
may be drawn under all Letters of Credits then outstanding and/or 105% of the
undiscounted face amount of all Bankers' Acceptances then outstanding, as
applicable.
(d) ENFORCEMENT OF RIGHTS. Enforce any and all rights and interests
created and existing under the Senior Finance Documents, including, without
limitation, all rights and remedies existing under the Collateral Documents, all
rights and remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
SECTION 8.01(f) shall occur with respect to any Borrower, then the Commitments
shall automatically terminate and all Loans, all reimbursement obligations under
Letters of Credit, all BA Reimbursement Obligations, all accrued interest in
respect thereof and all accrued and unpaid fees and other indebtedness or
obligations owing to the Lenders hereunder and under the other Senior Finance
Documents shall immediately become due and payable without the giving of any
notice or other action by any Administrative Agent or the Lenders, which notice
or other action is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with
either of the Administrative Agents, each Lender has, to the extent permitted by
Law, a separate right of payment and shall be considered a separate "creditor"
holding a separate "claim" within the meaning of Section 101(5) of the
Bankruptcy Code or any other insolvency statute.
In case any one or more of the covenants and/or agreements set forth
in this Agreement or any other Senior Finance Document shall have been breached
by any Credit Party, then either of the Administrative Agents or either
Collateral Agent may proceed to protect and enforce the Lenders' rights either
by suit in equity and/or by action at Law, including an action for damages as a
result of any such breach and/or an action for specific performance of any such
covenant or agreement contained in this Agreement or such other Senior Finance
Document. Without limitation of the foregoing, each Borrower agrees that failure
to comply with any of the covenants contained herein will cause irreparable harm
and that specific performance shall be available in the event of any breach
thereof. The Administrative Agents acting pursuant to this PARAGRAPH (d) shall
each be indemnified by each Borrower against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including
reasonable legal and accounting fees and expenses) in accordance with SECTION
10.05.
SECTION 8.03 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
(a) PRIORITY OF DISTRIBUTIONS. Each Borrower hereby irrevocably waives
the right to direct the application of any and all payments in respect of its
Finance Obligations and any proceeds of Collateral after the occurrence and
during the continuance of an Event of Default and agrees that, notwithstanding
the provisions of SECTIONS 2.10(b) and 2.15, after the occurrence and during the
continuance of an Event of Default, all amounts collected or received by any
Administrative Agent, any Collateral Agent or any Finance Party on account of
amounts then due and outstanding under any of the Senior Finance Documents or
any Derivative Agreement or in respect of the Collateral shall be paid over or
delivered in respect of its Finance Obligations as follows:
FIRST, the payment of interest on and then principal of any
portion of the Revolving Loans that either Administrative Agent may have
advanced on behalf of any Lender for which such Administrative Agent has
not then been reimbursed by such Lender or such Borrower;
SECOND, the payment of interest on and then principal of any
Swingline Loan;
-160-
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including reasonable attorneys' fees) of each of the Global
Transaction Coordinator, each Administrative Agent and each Collateral
Agent, in their capacities as such, in connection with enforcing the rights
of the Finance Parties under the Finance Documents, including all expenses
of sale or other realization of or in respect of the Collateral, including
reasonable compensation to the agents and counsel for each Collateral
Agent, and all expenses, liabilities and advances incurred or made by each
Collateral Agent in connection therewith, and any other obligations owing
to each Collateral Agent in respect of sums advanced by each Collateral
Agent to preserve the Collateral or to preserve its security interest in
the Collateral;
FOURTH, to the payment of all reasonable out-of-pocket costs
and expenses (including reasonable attorneys' fees) of (i) each of the
Lenders (including any Issuing Lender in its capacity as such) in
connection with enforcing its rights under the Senior Finance Documents or
otherwise with respect to the Senior Obligations owing to such Lender and
(ii) each Derivatives Creditor in connection with enforcing any of its
rights under the Derivatives Agreements or otherwise with respect to the
Derivatives Obligations owing to such Derivatives Creditor;
FIFTH, to the payment of all of the Senior Obligations
consisting of accrued fees and interest;
SIXTH, except as set forth in CLAUSES "FIRST" through "FIFTH"
above, to the payment of the outstanding Senior Obligations and Derivatives
Obligations owing to any Finance Party, Pro-Rata, as set forth below, with
(i) an amount equal to the Senior Obligations being paid to the Collateral
Agents (in the case of Senior Obligations owing to the Collateral Agents)
or to the Administrative Agents (in the case of all other Senior
Obligations) for the account of the Lenders or any Agent, with the
Collateral Agents, each Lender and the Agents receiving an amount equal to
its outstanding Senior Obligations, or, if the proceeds are insufficient to
pay in full all Senior Obligations, its Pro-Rata Share of the amount
remaining to be distributed, and (ii) an amount equal to the Derivatives
Obligations being paid to the trustee, paying agent or other similar
representative (each a "REPRESENTATIVE") for the Derivatives Creditors,
with each Derivatives Creditor receiving an amount equal to the outstanding
Derivatives Obligations owed to it by the Credit Parties or, if the
proceeds are insufficient to pay in full all such Derivatives Obligations,
its Pro-Rata Share of the amount remaining to be distributed; and
SEVENTH, to the payment of the surplus, if any, to whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Finance Parties shall receive an amount
equal to its Pro-Rata Share of amounts available to be applied pursuant to
CLAUSES "FOURTH", "FIFTH", and "SIXTH" above; and (iii) to the extent that any
amounts available for distribution pursuant to CLAUSE "SIXTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit
or to outstanding Bankers' Acceptances which are not yet required to be
reimbursed hereunder, such amounts shall be held by the relevant Collateral
Agent in a cash collateral account and applied (x) first, to reimburse any
Issuing Lender from time to time for any drawings under such Letters of Credit
or to reimburse any applicable Canadian Revolving Lender upon the maturity of
such Bankers' Acceptances and (y) then, following the expiration of all Letters
of Credit, to all other obligations of the types described in CLAUSE "SIXTH"
above in the manner provided in this SECTION 8.03.
-161-
(b) PRO-RATA TREATMENT. For purposes of this Section, "PRO-RATA SHARE"
means, when calculating a Finance Party's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid U.S. Dollar Amount of such Finance Party's Senior
Obligations or Derivatives Obligations, as the case may be, and the denominator
of which is the then outstanding U.S. Dollar Amount of all Senior Obligations or
Derivatives Obligations, as the case may be. When payments to the Finance
Parties are based upon their respective Pro-Rata Shares, the amounts received by
such Finance Parties hereunder shall be applied (for purposes of making
determinations under this SECTION 8.03 only) (i) first, to their Senior
Obligations, and (ii) second, to their Derivatives Obligations. If any payment
to any Finance Party of its Pro-Rata Share of any distribution would result in
overpayment to such Finance Party, such excess amount shall instead be
distributed in respect of the unpaid Senior Obligations or Derivatives
Obligations, as the case may be, of the other Finance Parties, with each Finance
Party whose Senior Obligations or Derivatives Obligations, as the case may be,
have not been paid in full to receive an amount equal to such excess amount
multiplied by a fraction the numerator of which is the unpaid Senior Obligations
or Derivatives Obligations, as the case may be, of such Finance Party and the
denominator of which is the unpaid Senior Obligations or Derivatives
Obligations, as the case may be, of all Finance Parties entitled to such
distribution.
(c) DISTRIBUTIONS WITH RESPECT TO LETTERS OF CREDIT. Each of the
Finance Parties agrees and acknowledges that if (after all outstanding Loans and
Reimbursement Obligations with respect to Letters of Credit have been paid in
full) the Lenders are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement, such amounts shall be deposited in the ▇▇ ▇▇▇▇ Collateral Accounts as
cash security for the repayment of Senior Obligations owing to the Lenders as
such. Upon termination of all outstanding Letters of Credit, all of such cash
security shall be applied to the remaining Senior Obligations of the Lenders. If
there remains any excess cash security, such excess cash shall be withdrawn by
the relevant Collateral Agent from the relevant ▇▇ ▇▇▇▇ Collateral Account and
distributed in accordance with SECTION 8.03(a) hereof.
(d) DISTRIBUTIONS WITH RESPECT TO BANKERS' ACCEPTANCES. Each of the
Finance Parties agrees and acknowledges that if (after all outstanding Loans, BA
Reimbursement Obligations and Reimbursement Obligations with respect to Letters
of Credit have been paid in full) the Lenders are to receive a distribution on
account of unmatured Bankers' Acceptances issued and purchased under the Credit
Agreement, such amounts shall be deposited in a collateral account as cash
security for the repayment of Senior Obligations owing to the Lenders as such.
Upon maturity of all outstanding Bankers' Acceptances, all of such cash security
shall be applied first to the BA Reimbursement Obligations in respect of such
Bankers' Acceptances and thereafter to the remaining Senior Obligations of the
Lenders. If there remains any excess cash security, such excess cash shall be
withdrawn by the relevant Collateral Agent from the applicable collateral
account and distributed in accordance with SECTION 8.03(a) hereof.
(e) DISTRIBUTIONS OF FUNDS ON DEPOSIT IN A SINKING FUND ACCOUNT.
Notwithstanding the foregoing provisions of this SECTION 8.03, amounts on
deposit in a Sinking Fund Account for any Class of Loans shall be applied upon
the occurrence of any Event of Default, first, to pay Loans of such Class and,
second, after all the Loans of such Class have been paid in full, to the other
Senior Obligations in the manner provided in this SECTION 8.03.
(f) RELIANCE BY COLLATERAL AGENTS. For purposes of applying payments
received in accordance with this SECTION 8.03, each Collateral Agent shall be
entitled to rely upon (i) the Administrative Agents under the Credit Agreement
and (ii) the Representative, if any, for the Derivatives Creditors for a
determination (which the Administrative Agents, each Representative for any
Derivatives Creditor and the Finance Parties agree (or shall agree) to provide
upon request of each Collateral Agent) of the outstanding Senior Obligations and
Derivatives Obligations owed to the Agents, the Lenders or the
-162-
Derivatives Creditors, as the case may be. Unless it has actual knowledge
(including by way of written notice from a Derivatives Creditor or any
Representatives thereof) to the contrary, each Collateral Agent, in acting
hereunder, shall be entitled to assume that no Derivatives Agreements are in
existence.
ARTICLE IX
AGENCY PROVISIONS
SECTION 9.01 APPOINTMENT; AUTHORIZATION.
(a) APPOINTMENT. Each Lender hereby designates and appoints Deutsche
Bank Trust Company Americas as the Term B Administrative Agent, National Bank of
Canada as the Canadian Administrative Agent, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated and Deutsche Bank Securities Inc. as Co-Syndication Agents in
respect of the Term A Loan and Canadian Revolving Loans, ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and National Bank of Canada as Co-Syndication Agents
in respect of the Term B Loan and U.S. Revolving Loans, Deutsche Bank Trust
Company Americas as U.S. Collateral Agent and National Bank of Canada as
Canadian Collateral Agent for such Lender to act as specified herein and in the
other Senior Finance Documents, and each such Lender hereby authorizes the
Agents, as the agents for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Senior Finance Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Senior Finance Documents, together with such other
powers as are reasonably incidental thereto. For purposes of Article 2692 of the
Civil Code of Quebec and without limiting the generality of the foregoing, each
Lender hereby irrevocably designates and appoints each of the Canadian
Administrative Agent and the Canadian Collateral Agent in its capacity as agent
and holder of a power of attorney of such Lenders under this Agreement and the
other Finance Documents. Notwithstanding any provision to the contrary elsewhere
herein and in the other Senior Finance Documents, the Agents shall not have any
duties or responsibilities, except those expressly set forth herein and therein,
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 of the other Senior Finance Documents, or shall
otherwise exist against the Agents. In performing its functions and duties under
this Agreement and the other Senior Finance Documents, each Agent shall act
solely as an agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation or relationship of agency or trust with or for any
Credit Party. Without limiting the generality of the foregoing two sentences,
the use of the term "agent" herein and in the other Senior Finance Documents
with reference to any Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
Law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. The provisions of this ARTICLE IX (other than
Section 9.10) are solely for the benefit of the Agents and the Lenders, and none
of the Credit Parties shall have any rights as a third party beneficiary of the
provisions hereof (other than SECTION 9.10).
(b) RELEASE OF COLLATERAL. The Lenders irrevocably authorize the
Collateral Agents, at each Collateral Agent's option and in its discretion, to
release any security interest in or Lien on any Collateral granted to or held by
such Collateral Agent (i) upon termination of this Agreement and the other
Senior Finance Documents, termination of the Commitments and all Letters of
Credit, maturity of all Bankers' Acceptances and payment in full of all Senior
Obligations, including all fees and indemnified costs and expenses that are
payable pursuant to the terms of the Senior Finance Documents, (ii) if such
Collateral constitutes property sold or to be sold or disposed of as part of or
in connection with any disposition permitted pursuant to the terms of this
Agreement or (iii) if approved by the Required Lenders or all of the Lenders, as
applicable, pursuant to the terms of SECTION 10.03. Upon the request of either
-163-
Collateral Agent, the Lenders will confirm in writing such Collateral Agent's
authority to release particular types or items of Collateral pursuant to this
SECTION 9.01(b).
(c) RELEASE OF GUARANTORS. The Lenders irrevocably authorize the
Administrative Agents, at each of such Administrative Agent's option
respectively and in their discretion, to release any Guarantor from its
obligations hereunder if (i) such Guarantor is no longer required to be a
Guarantor pursuant to the terms of this Agreement or (ii) if approved by the
Required Lenders or all of the Lenders, as applicable, pursuant to the terms of
SECTION 10.03. Upon the request of each of the Administrative Agents, the
Lenders will confirm in writing the relevant Administrative Agent's authority to
release a particular Guarantor pursuant to this SECTION 9.01(c).
SECTION 9.02 DELEGATION OF DUTIES. An Agent may execute any of its
duties hereunder or under the other Senior Finance Documents by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. An Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it in the absence of gross
negligence or willful misconduct.
SECTION 9.03 EXCULPATORY PROVISIONS. No Agent or Affiliate or any of
their respective directors, officers, employees or agents shall be (i) liable
for any action lawfully taken or omitted to be taken by any of them under or in
connection herewith or in connection with any of the other Senior Finance
Documents or the transactions contemplated hereby or thereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein (as determined by a court of competent jurisdiction in a final
and non-appealable judgment)) or (ii) responsible in any manner to any of the
Lenders or participants for any recitals, statements, representations or
warranties made by any of the Credit Parties contained herein or in any of the
other Senior Finance Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by an Agent under or in connection herewith or in connection
with the other Senior Finance Documents, or enforceability or sufficiency
therefor of any of the other Senior Finance Documents, or the validity,
perfection or priority of any of the security interests created by any of the
Security Documents, or for any failure of any Credit Party to perform its
obligations hereunder or thereunder or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or Bankers' Acceptances or the use of the Letters of
Credit or of the existence or possible existence of any Default or Event of
Default or to inspect the properties, books or records of the Credit Parties.
SECTION 9.04 RELIANCE ON COMMUNICATIONS. The Agents shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex, teletype or e-mail 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 any of
the Credit Parties, independent accountants and other experts selected by the
Agents). The Agents may deem and treat each Lender as the owner of its interests
hereunder for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agents in
accordance with SECTION 10.06(b). The Agents shall be fully justified in failing
or refusing to take any action under this Agreement or under any of the other
Senior Finance Documents unless it shall first receive such advice or
concurrence of the Required Lenders (or to the extent specifically provided in
SECTION 10.03, all or the required percentage, as applicable, of the relevant
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. The
Agents shall in all cases be fully protected in acting, or in refraining from
acting,
-164-
hereunder or under any of the other Senior Finance Documents in accordance with
a request of the Required Lenders (or to the extent specifically provided in
SECTION 10.03, all or the required percentage, as applicable, of the relevant
Lenders) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders (including their successors and
assigns). Where this Agreement expressly permits or prohibits an action unless
the Required Lenders (or to the extent specifically provided in SECTION 10.03,
all or the required percentage, as applicable, of the relevant Lenders)
otherwise determine, any Agent shall, and in all other instances an Agent may,
but shall not be required to, initiate any solicitation for the consent or vote
of the Lenders.
SECTION 9.05 NOTICE OF DEFAULT. An Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or a Borrower
referring to the Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". If an Agent receives such a
notice, such Agent shall give prompt notice thereof to each other Agent and the
Lenders. The relevant Administrative Agent, and the relevant Collateral Agent
shall take such actions with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; PROVIDED, HOWEVER, that
unless and until the relevant Administrative Agent, as applicable, has received
any such direction, such Administrative Agent, as applicable, 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 or it shall deem advisable or in the
best interest of the Lenders.
SECTION 9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY TERM B
ADMINISTRATIVE AGENT OR CANADIAN ADMINISTRATIVE AGENT. Each Lender expressly
acknowledges that no Agent has made any representations or warranties to it and
that no act by any Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Credit Party or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent to any Lender as to any matter, including whether any Agent has
disclosed material information in its possession. Each Lender represents to the
Agents that it has, independently and without reliance upon any 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,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Credit Parties, and all requirements of Law pertaining
to the Transaction, and made its own decision to make its Credit Extensions
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any 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 Senior Finance
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrowers and the other Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Term B Administrative Agent or the Canadian
Administrative Agent, as applicable hereunder, the Agents shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of any Credit Party or their
respective Affiliates which may come into the possession of any Agent.
SECTION 9.07 NO RELIANCE ON LEAD ARRANGER'S OR AGENT'S CUSTOMER
IDENTIFICATION PROGRAM. Each Lender acknowledges and agrees that neither such
Lender nor any of its Affiliates, participants or assignees may rely on the Lead
Arrangers or any Agent to carry out such Lender's, Affiliate's, participant's or
assignee's customer identification program, or other obligations required or
imposed under or pursuant to the U.S. Patriot Act or the regulations thereunder,
including the regulations contained in 31 C.F.R. 103.121 (as hereafter amended
or replaced, the "CIP REGULATIONS"), or any other Anti-Terrorism Law, including
any programs involving any of the following items relating to or in
-165-
connection with any of the Credit Parties, their Affiliates or agents, the
Senior Finance Documents or the transactions hereunder or contemplated hereby:
(i) any identification procedures; (ii) and recordkeeping; (iii) comparisons
with government lists, (iv) customer notices; or (v) other procedures required
under the CIP regulations or such other Laws.
SECTION 9.08 INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, the Lenders agree to indemnify each
Administrative Agent and each Collateral Agent (to the extent not reimbursed by
the Parent Borrower or any other Credit Party and without limiting the
obligation of the Parent Borrower or any other Credit Party to do so), ratably
according to their respective Commitments (or if the Commitments have expired or
been terminated, in accordance with the respective principal amounts of
outstanding Loans, Bankers' Acceptances and Participation Interests of the
Lenders), from and against any and all Indemnified Liabilities which may at any
time (including, without limitation, at any time following payment in full of
the Senior Obligations) be imposed on, incurred by or asserted against any such
Administrative Agent or Collateral Agent in its capacity as such in any way
relating to or arising out of this Agreement or the other Senior Finance
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 an Administrative Agent or a Collateral Agent under or in connection with any
of the foregoing; PROVIDED that no Lender shall be liable for the payment to any
Administrative Agent or Collateral Agent of any portion of such Indemnified
Liabilities resulting from such Person's gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and non-
appealable judgment); PROVIDED, HOWEVER, that no action taken in accordance with
the directions of the Required Lenders (or to the extent specifically provided
in SECTION 10.03, all or the required percentage, as applicable, of the relevant
Lenders) shall be deemed to constitute gross negligence or willful misconduct
for purposes of this SECTION 9.08. If any indemnity furnished to an
Administrative Agent or a Collateral Agent for any purpose shall, in the opinion
of such Administrative Agent or Collateral Agent, be insufficient or become
impaired, such Administrative Agent or Collateral Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished. Without limitation of the foregoing,
each Lender shall reimburse each Administrative Agent upon demand for their
ratable share of any costs or out-of-pocket expenses (including reasonable fees
and disbursements of counsel) incurred by such Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Senior Finance Document, or
any document contemplated by or referred to herein, to the extent that either
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Parent Borrower or any other Credit Party. The agreements in this SECTION 9.08
shall survive the payment of the Senior Obligations and all other obligations
and amounts payable hereunder and under the other Senior Finance Documents.
SECTION 9.09 AGENTS IN THEIR INDIVIDUAL CAPACITY. Each Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire Equity Interests in, and generally engage in any kind of
banking, trust, financial advisory, underwriting and other business with the
Parent Borrower or any other Credit Party or Affiliate thereof as though such
Agent were not an Agent hereunder or under another Senior Finance Document. The
Lenders acknowledge that, pursuant to any such activities, an Agent or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and acknowledge that no Agent
shall be under any obligation to provide such information to them. With respect
to the Loans made by, Letters of Credit issued by, Bankers' Acceptances
accepted by and all obligations owing to it, an Agent shall have the same rights
and powers under this Agreement as any Lender and may exercise the same as
though it was not an Agent, and the terms "Lender" and "Lenders" shall include
each Agent in its individual capacity.
-166-
SECTION 9.10 SUCCESSOR AGENTS. Any Agent may, at any time, resign upon
30 days' written notice to the Lenders and the Parent Borrower. If an Agent
resigns under a Senior Finance Document, the Required Lenders shall appoint from
among the Lenders a successor Agent, which successor Agent shall be consented to
by the Parent Borrower at all times other than during the existence of an Event
of Default (which consent of the Parent Borrower shall not be unreasonably
withheld or delayed). If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment prior to the effective
date of the resignation of the resigning Agent, then the resigning Agent shall
have the right, after consulting with the Lenders and the Parent Borrower, to
appoint a successor Agent; PROVIDED such successor is a Lender hereunder or an
Eligible Assignee. If no successor Agent is appointed prior to the effective
date of the resignation of the resigning Agent, the Administrative Agents may
appoint, after consulting with the Lenders and the Parent Borrower, a successor
Agent from among the Lenders. Upon the acceptance of any appointment as an Agent
hereunder by a successor, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations as an Agent, as appropriate, under this Agreement and the other
Senior Finance Documents and the provisions of this SECTION 9.10 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement. If no successor Term B Administrative Agent has
accepted appointment as Term B Administrative Agent within 60 days after the
retiring Term B Administrative Agent's giving notice of resignation, the
retiring Term B Administrative Agent's resignation shall nevertheless become
effective and the Canadian Administrative Agent shall perform all duties of the
Term B Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor Term B Administrative Agent as provided for above.
If no successor Canadian Administrative Agent has accepted appointment as
Canadian Administrative Agent within 60 days after the retiring Canadian
Administrative Agent's giving notice of resignation, the retiring Canadian
Administrative Agent's resignation shall nevertheless become effective and the
Term B Administrative Agent shall perform all duties of the Canadian
Administrative Agent, hereunder until such time, if any, as the Required Lenders
appoint a successor Canadian Administrative Agent as provided for above.
Likewise, if no successor Collateral Agent has accepted appointment as a
Collateral Agent within 60 days after the retiring Collateral Agent's giving
notice of resignation, the retiring Collateral Agent's resignation shall
nevertheless become effective and the Lenders shall perform all duties of the
relevant Collateral Agent under the Collateral Documents until such time, if
any, as the Required Lenders appoint a successor Collateral Agent (either U.S.
Collateral Agent or Canadian Collateral Agent, as the case may be) as provided
for above.
SECTION 9.11 CERTAIN OTHER AGENTS. None of the Lenders identified on
the facing page or signature pages of this Agreement as a "co-syndication
agent", "documentation agent", "co-agent", "joint bookrunner", "lead manager"
or "joint lead arranger" shall have any right, power, obligation, liability,
responsibility or duty under the Agreement in their capacity as such. Without
limiting the foregoing, none of the Lenders or any such Person so identified
shall have or be deemed to have any fiduciary relationship to any Lender or
Credit Party. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
SECTION 9.12 AGENTS' FEES; LEAD ARRANGERS' FEES. The Parent Borrower
shall pay to the Term B Administrative Agent for its own account, to the
Canadian Administrative Agent for its own account, to the Collateral Agents for
their own account and to the Lead Arrangers, in their capacities as Lead
Arrangers, for their own account, fees in the amounts and at the times
previously agreed upon between the Parent Borrower and the Term B Administrative
Agent, the Canadian Administrative Agent, the Collateral Agents and the Lead
Arrangers, respectively, in each case with respect to this Agreement, the other
Senior Finance Documents and the transactions contemplated hereby and thereby.
-167-
ARTICLE X
MISCELLANEOUS
SECTION 10.01 NOTICES AND OTHER COMMUNICATIONS.
(a) GENERAL. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to SUBSECTION (c) below) electronic mail address
specified for notices: (i) in the case of the Parent Borrower, the U.S.
Borrower, the Term B Administrative Agent, the Canadian Administrative Agent or
the Swingline Lenders, as set forth on the signature pages hereof; (ii) in the
case of any Issuing Lender, as set forth on the signature pages hereof or in any
applicable agreement pursuant to which such Issuing Lender was designated as an
Issuing Lender hereunder; (iii) in the case of any Lender, as set forth in
SCHEDULE 1.01E hereto or in any applicable Assignment and Acceptance pursuant to
which such Lender became a Lender hereunder; and (iv) in the case of any party,
at such other address as shall be designated by such party in a notice to the
Parent Borrower, the Term B Administrative Agent, the Canadian Administrative
Agent, any Issuing Lender and any Swingline Lender. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone or
electronic confirmation; and (D) if delivered by electronic mail (which form of
delivery is subject to the provisions of SUBSECTION (c) below), when delivered;
PROVIDED, HOWEVER, that notices and other communications to any Administrative
Agent, any Issuing Lender and any Swingline Lender pursuant to ARTICLE II shall
not be effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder
shall be given, made or confirmed by means of a telephone call to the intended
recipient at the number specified pursuant to this SECTION 10.01, it being
understood and agreed that a voicemail message shall in no event be effective as
a notice, communication or confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Senior
Finance Documents may be transmitted and/or signed by facsimile or signed and
delivered by electronic mail in an Adobe PDF document. The effectiveness of any
such documents and signatures shall, subject to requirements of Law, have the
same force and effect as manually signed originals and shall be binding on all
Credit Parties, the Agents and the Lenders. The Term B Administrative Agent or
Canadian Administrative Agent, as applicable, may also require that any such
documents and signatures be confirmed by a manually signed original thereof;
PROVIDED, HOWEVER, that the failure to request or deliver the same shall not
limit the effectiveness of any facsimile document or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Except as expressly provided
herein or as may be agreed by the Term B Administrative Agent or Canadian
Administrative Agent, as applicable, in their sole discretion, electronic mail
and internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and to
distribute Senior Finance Documents for execution by the parties thereto and to
distribute executed Senior Finance Documents in Adobe PDF format, and may not be
used for any other purpose.
(d) RELIANCE BY AGENTS AND LENDERS. The Agents and the Lenders shall
be entitled to rely and act upon any notices purportedly given by or on behalf
of any Borrower or any other Credit Party even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed
by any other form of notice specified herein or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The
Borrowers, jointly and severally, shall indemnify each Agent and each Lender
from all losses, costs, expenses and liabilities resulting from the
-168-
reliance by such Person on each notice purportedly given by or on behalf of any
Borrower. All telephonic notices to and other communications with the Term B
Administrative Agent or Canadian Administrative Agent, as applicable, in
connection with the Finance Documents may be recorded by the Term B
Administrative Agent, or Canadian Administrative Agent, as applicable, and each
of the parties hereto hereby consents to such recording.
SECTION 10.02 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on
the part of an Agent or any Lender in exercising any right, power or privilege
hereunder or under any other Senior Finance Document and no course of dealing
between the Agents or any Lender and any of the Credit Parties shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Senior Finance Document preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the Agents or any
Lender would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle the Credit Parties to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Agents or the Lenders to any other or further action in any circumstances
without notice or demand.
SECTION 10.03 AMENDMENTS, WAIVERS AND CONSENTS. Neither this Agreement
nor any other Senior Finance Document nor any of the terms hereof or thereof may
be amended, changed, waived, discharged or terminated except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by the Parent Borrower, the U.S. Borrower and the Required Lenders or, in the
case of any other Senior Finance Document, pursuant to an agreement or
agreements in writing entered into by the Parent Borrower and/or any other
Credit Parties party thereto and each of the Administrative Agents and/or the
Collateral Agents, as applicable; PROVIDED that the foregoing shall not restrict
the ability of the Required Lenders to waive any Event of Default prior to the
time either Administrative Agent shall have declared, or the Required Lenders
shall have requested either Administrative Agent to declare, the Loans,
unreimbursed LC Obligations and BA Reimbursement Obligations immediately due and
payable pursuant to ARTICLE VIII; PROVIDED, HOWEVER, that:
(i) no such amendment, change, waiver, discharge or
termination shall, without the consent of each Lender directly affected
thereby or with respect to clauses (I), (J), (K), (L) and (M), the
requisite percentage of Lenders referred to therein:
(A) extend the final maturity of any Loan or the time of
payment of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit or from the maturity of
any Bankers' Acceptance, or extend or waive any Principal Amortization
Payment or any portion thereof; PROVIDED that this CLAUSE (A) shall
not restrict the ability of the Required Lenders to waive any Event of
Default (other than an Event of Default the waiver of which would
effectively result in any such extension or waiver), prior to the time
either Administrative Agent shall have declared, or the Required
Lenders shall have requested either Administrative Agent to declare,
the Loans, unreimbursed LC Obligations and BA Reimbursement
Obligations immediately due and payable pursuant to ARTICLE VIII;
(B) reduce the rate, or extend the time of payment, of
interest on any Loan (other than as a result of waiving the
applicability of any post-default increase in interest rates) thereon
or fees hereunder; PROVIDED, HOWEVER, that only the consent of the
Required Lenders shall be necessary to amend the provisions related to
the default rate of interest or to waive an obligation of a Borrower
to pay such default interest;
-169-
(C) reduce or waive the principal amount of any Loan,
any LC Disbursement or any BA Reimbursement Obligation;
(D) increase the Commitment of a Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or a mandatory reduction in the
Commitments shall not constitute a change in the terms of any
Commitment of any Lender);
(E) release all or substantially all of the Collateral
securing the Senior Obligations hereunder (PROVIDED that either
Collateral Agent may, without consent from any other Lender, release
any Collateral that is sold or transferred by a Credit Party in
compliance with SECTION 7.05 or released in compliance with SECTION
9.01(b));
(F) release any Borrower or substantially all of the
other Credit Parties from its or their obligations under the Senior
Finance Documents (PROVIDED that either Administrative Agent may,
without the consent of any other Lender, release any Guarantor that is
sold or transferred in compliance with SECTION 7.05 or released in
compliance with SECTION 9.01(c));
(G) amend, modify or waive any provision of SECTIONS
8.03(a), 2.13, or 2.14 or this SECTION 10.03 or reduce any percentage
specified in, or otherwise modify, the definition of Required Lenders;
(H) consent to the assignment or transfer by any
Borrower or all or substantially all of the other Credit Parties of
any of its or their rights and obligations under (or in respect of)
the Senior Finance Documents, except as permitted thereby;
(I) extend the time for, reduce the amount of or modify
the manner of application of proceeds of any mandatory prepayment
required by SECTION 2.10(b)(iv), (v), (vi), (vii),(viii), (ix) or (x),
SECTION 2.10(c) without the prior written consent of Lenders holding
in the aggregate at least a majority of the outstanding principal
amount of the Term A Loans and Lenders holding in the aggregate at
least a majority of the outstanding principal amount of the Term B
Loans;
(J) effect any waiver, amendment or modification that by
its terms adversely affects the rights, in respect of payments, the
Collateral or the Guaranties by the Guarantors, of the Lenders holding
Term A Loans or Revolving Loans differently from those of the Lenders
holding Term B Loans, without the prior written consent of Lenders
holding in the aggregate at least a majority of the outstanding
principal amount of the Term A Loans, Required Canadian Revolving
Lenders, Required U.S. Revolving Lenders and Lenders holding in the
aggregate at least a majority of the outstanding principal amount of
the Term B Loans;
(K) effect any waiver of the conditions to funding any
U.S. Revolving Loan or U.S. Swingline Loan or to issuing any U.S.
Letter of Credit in each case after the Closing Date, without the
prior written consent of the Required U.S. Revolving Lenders;
(L) effect any waiver of the conditions to funding any
Canadian Revolving Loan or Canadian Swingline Loan or to issuing any
Bankers' Acceptance or
-170-
any Canadian Letter of Credit in each case after the Closing Date,
without the prior written consent of the Required Canadian Revolving
Lenders;
(M) release any Material Credit Party from its
obligations under the Senior Finance Documents (PROVIDED that either
Administrative Agent may, without the consent of any other Lender,
release any Guarantor that is sold or transferred in compliance with
SECTION 7.05 or released in compliance with SECTION 9.01(c)) or any
material portion of the Collateral securing the Senior Obligations
hereunder (PROVIDED that either Collateral Agent may, without consent
from any other Lender, release any Collateral that is sold or
transferred by a Credit Party in compliance with SECTION 7.05 or
released in compliance with Section 9.01(b)), in each case, without
the prior written consent of Lenders whose aggregate Credit Exposure
constitutes more than 75% of the Credit Exposure of all Lenders at
such time; and
(ii) no provision of ARTICLE IX may be amended without the
consent of each Administrative Agent and each Collateral Agent, no
provision of SECTION 2.05 may be amended without the consent of each
Issuing Lender and no provision of SECTION 2.01(d) may be amended without
the consent of any Swingline Lender affected thereby.
Notwithstanding the above, the right to deliver a Payment Blockage
Notice (as defined in the Subordinated Note Indenture), shall reside solely with
either of the Administrative Agents, and either Administrative Agent shall
deliver such Payment Blockage Notice, only upon the direction of the Required
Lenders.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (i) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, the Letters of Credit or the Bankers' Acceptances, and
each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersede the unanimous consent provisions set forth herein and
(ii) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
Furthermore, no election by any Lender holding a Term B Loan to
decline a mandatory prepayment as provided in SECTION 2.10(b)(xi) shall require
the consent of any other Person. The various requirements of this SECTION 10.03
are cumulative. Each Lender and each holder of a Note shall be bound by any
waiver, amendment or modification authorized by this SECTION 10.03 regardless of
whether its Note shall have been marked to make reference therein, and any
consent by any Lender or holder of a Note pursuant to this SECTION 10.03 shall
bind any Person subsequently acquiring a Note from it, whether or not such Note
shall have been so marked.
SECTION 10.04 EXPENSES. The Borrowers, jointly and severally, agree
(i) to pay or reimburse each Agent for all reasonable costs and expenses
incurred in connection with the preparation, negotiation and execution of this
Agreement and the other Senior Finance Documents and any amendment, waiver,
consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable fees, disbursements and other charges of
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the
Administrative Agents and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Canadian counsel for the
Administrative Agents, and (ii) to pay or reimburse each Agent and each Lender
for all reasonable costs and expenses incurred in connection with the
enforcement, attempted enforcement or preservation of any rights or remedies
under this Agreement or the other Senior Finance Documents (including all such
costs and expenses incurred during any "workout" or restructuring in respect of
the Senior Obligations and during any legal
-171-
proceeding, including any proceeding under any bankruptcy or insolvency
proceeding), including all reasonable fees and disbursements of counsel
(including the allocated charges of internal counsel) and other consultants. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
reasonable out-of-pocket expenses incurred by any Agent and the cost of
independent public accountants and other outside experts retained by or on
behalf of any Agent or any Lender. The agreements in this SECTION 10.04 shall
survive the termination of the Commitments and repayment of all Senior
Obligations.
SECTION 10.05 INDEMNIFICATION; WAIVER OF CONSEQUENTIAL DAMAGES, ETC.
(a) INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Borrowers, jointly and severally, agree to
indemnify, save and hold harmless each Agent, each Lender and their respective
Affiliates, directors, officers, trustees, employees, counsel, agents, advisors,
representatives and attorneys-in-fact and their respective successors and
assigns (collectively, the "INDEMNITEES") from and against: (i) any and all
claims, demands, actions or causes of action joint or several that are asserted
against any Indemnitee by any Person (other than the Administrative Agents or
any Lender) relating directly or indirectly to a claim, demand, action or cause
of action that such Person asserts or may assert against any Credit Party, any
Affiliate of any Credit Party or any of their respective officers or directors;
(ii) any and all claims, demands, actions or causes of action joint or several
that may at any time (including at any time following repayment of the Senior
Obligations and the resignation or removal of any Agent or the replacement of
any Lender) be asserted or imposed against any Indemnitee, arising out of or
relating to, the Transaction, the Senior Finance Documents, any predecessor
Senior Finance Documents, the Commitments, the use of or contemplated use of the
proceeds of any Credit Extension, or the relationship of any Credit Party, any
Agent and the Lenders under this Agreement or any other Senior Finance Document
or from any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by any Group Company, or any Environmental
Liability related in any way to any Group Company; (iii) any administrative or
investigative proceeding by any Governmental Authority arising out of or related
to a claim, demand, action or cause of action described in CLAUSE (i) or (ii)
above; and (iv) any and all liabilities (including liabilities under
indemnities), losses, costs or expenses (including fees and disbursements of
counsel) that any Indemnitee suffers or incurs as a result of the assertion of
any foregoing claim, demand, action, cause of action or proceeding, or as a
result of the preparation of any defense in connection with any foregoing claim,
demand, action, cause of action or proceeding, in all cases, and whether or not
an Indemnitee is a party to such claim, demand, action, cause of action, or
proceeding (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES");
PROVIDED that no Indemnitee shall be entitled to indemnification for any claim
to the extent such claim is determined by a court of competent jurisdiction in a
final and non-appealable judgment to have been caused by its own gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this SECTION 10.05 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Credit Party, its directors, shareholders or
creditors or an Indemnitee or any other Person or any Indemnitee is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. Each of the Borrowers agrees not to assert or to permit any of
their respective Subsidiaries to assert any claim against any Agent, any Lender,
any of their Affiliates or any of their respective directors, officers,
employees, attorneys, agents, representatives and advisers on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Finance Documents, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Loans, the Letters of Credit or the Bankers' Acceptances. Without prejudice
to the survival of any other agreement of the Credit Parties hereunder and under
the other Senior Finance Documents, the agreements and obligations of the Credit
Parties contained in this SECTION 10.05 shall survive the repayment of the
Loans, LC Obligations, BA Reimbursement Obligations and other obligations under
the Senior Finance Documents and the termination of the Commitments hereunder.
-172-
(b) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the fullest extent
permitted by applicable law, no Credit Party shall assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Senior Finance Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indernnitee referred to in this
Agreement shall be liable for any damages arising from the use by unintended
recipients of any information or other material distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan documents or the transactions
contemplated hereby or thereby, except in the case of Indemnities, gross
negligence or willful misconduct.
SECTION 10.06 SUCCESSORS AND ASSIGNS.
(a) GENERALLY. This Agreement shall be biding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto; PROVIDED that none of the Credit Parties may assign or transfer
any of its interests and obligations without the prior written consent of either
the Required Lenders or the Lenders, as the terms set forth in SECTION 10.03 may
require;
(b) ASSIGNMENTS. Any Lender may assign all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Loans, its Notes, its Commitments, Bankers' Acceptances accepted
and purchased by it and any Participation Interest in Letters of Credit and
Swingline Loans held by it); PROVIDED, HOWEVER, that
(i) each such assignment shalI be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender,
an Affiliate of a Lender or any Approved Fund (A) the aggregate amount of
the U.S. Revolving Commitment of the assigning Lender subject to such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Canadian Administrative
Agent or, if a "Trade Date" is specified in the Assignment and Acceptance,
as of the Trade Date) shall not, without the consent of the Canadian
Administrative Agent and, if no Default or Event of Default has occurred
and is continuing at the time of such assignment, the U.S. Borrower, be
less than US$5,000,000 and an integral multiple of US$1,000,000 (or such
lesser amount as shall equal the assigning Lender's entire U.S. Revolving
Commitment), (B) the aggregate amount of the Canadian Revolving Commitment
of the assigning Lender subject to such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Canadian Administrative Agent or, if a "Trade Date" is
specified in the Assignment and Acceptance, as of the Trade Date) shall
not, without the consent of the Canadian Administrative Agent and, if no
Default or Event of Default has occurred and is continuing, the Parent
Borrower, be less than US$5,000,000 (or the Canadian Dollar Equivalent
thereof) and an integral multiple of US$1,000,000 (or the Canadian Dollar
Equivalent thereof) (or such lesser amount as shall equal the assigning
Lender's entire Canadian Revolving Commitment), and (C) the aggregate
amount of any Term A Loans or Term B Loans of an assigning Lender subject
to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the relevant
Administrative Agent or, if a "Trade Date" is specified in the Assignment
and Acceptance, as of the Trade Date) shall not, without the consent of the
Term B Administrative Agent (in the case of Term B Loans) and the Canadian
Administrative Agent (in the case of Term A Loans) and, if no Default or
Event of Default has occurred and is continuing at the time of such
assignment, the Parent Borrower, be less (with respect to either Class of
Term Loans) than US$1,000,000, and an integral multiple of
-173-
US$1,000,000 (or such lesser amount as shall equal the assigning Lender's
entire Term Loans of the applicable Class owing to it);
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all rights and obligations in respect of a
particular Class of Commitments under this Agreement and the other Senior
Finance Documents;
(iv) the parties to such assignment shall, in the sole
discretion of the relevant Administrative Agent, either (A) electronically
execute and deliver to the Term B Administrative Agent (in the case of an
assignment of the Term B Loans) or the Canadian Administrative Agent (in
the case of an assignment of the U.S. Revolving Commitments, Canadian
Revolving Commitments or Term A Loans) an Assignment and Acceptance via an
electronic settlement system acceptable to the relevant Administrative
Agent (which initially shall be Clearpar, LLC) or (B) execute and deliver
to the relevant Administrative Agent and, only with respect to any
assignment of all or a portion of the U.S. Revolving Committed Amount or
Canadian Revolving Committed Amount, the relevant Issuing Lenders for their
acceptance an Assignment and Acceptance, in each case together with any
Note subject to such assignment and a processing fee of US$3,500, payable
or agreed between the assigning Lender and the assignee (which shall not be
required to be paid by the Borrowers); PROVIDED that no processing fee
shall be payable with respect to assignments among Initial Lenders, their
Affiliates or their Approved Funds; and
(v) each such assignment by a Revolving Lender to an
assignee of all or a portion of its Revolving Commitment Percentage shall
be accompanied by a concurrent assignment by an Affiliated Revolving Lender
of the assignor of the same Revolving Commitment Percentage to an
Affiliated Revolving Lender of the assignee.
(c) ASSIGNMENT AND ACCEPTANCE. By executing and delivering an
Assignment and Acceptance in accordance with this SECTION 10.06, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and the
assignee warrants that it is an Eligible Assignee; (ii) except as set forth in
CLAUSE (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, any of the other
Senior Finance Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any of the other Senior
Finance Documents or any other instrument or document furnished pursuant hereto
or thereto or the financial condition of the Credit Parties or the performance
or observance by any Credit Party of any of its obligations under this
Agreement, any of the other Senior Finance Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such assignment
agreement; (iv) such assignee confirms that it has received a copy of this
Agreement, the other Senior Finance Documents, together with copies of the most
recent financial statements delivered pursuant to SECTION 6.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon either Administrative
Agent, any Issuing Lender, any Swingline Lender, such assigning Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Senior Finance Documents;
(vi) such assignee appoints and authorizes each of the Administrative Agents and
the Collateral Agents to take such action on its behalf and to exercise such
powers under this Agreement or any other Senior Finance Document as are
delegated to such Persons by the terms hereof or thereof, together with such
-174-
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement and the other Senior Finance Documents are required to
be performed by it as a Lender. Upon execution, delivery, and acceptance of such
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of such assignment, have the obligations, rights, and benefits of
a Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations under
this Agreement. Upon the consummation of any assignment pursuant to this SECTION
10.06(c), the assignor, the relevant Administrative Agent and the Credit Parties
shall make appropriate arrangements so that, if required, new Notes are issued
to the assignor and the assignee. In the case of an assignment of U.S. Revolving
Commitments or Term B Loans, if the assignee is not a "United States person"
under Section 7701(a)(30) of the Code, it shall deliver to the U.S. Borrower and
the relevant Administrative Agent forms and certificates in accordance with
SECTION 3.01. In addition, if applicable, the assignee shall deliver to the
relevant Administrative Agent the information referred to in SECTION 10.22.
(d) REGISTER. Each Borrower hereby designates the relevant
Administrative Agent to serve as such Borrower's agent, solely for purposes of
this SUBSECTION 10.06(d), to (i) maintain a register (the "REGISTER") on which
the relevant Administrative Agent will record the Commitments from time to time
of each Lender, the Loans and Bankers' Acceptances made by each Lender and each
repayment in respect of the principal amount of the Loans and Bankers'
Acceptances of each Lender and to (ii) retain a copy of each Assignment and
Acceptance delivered to such Administrative Agent pursuant to this SECTION
10.06. Failure to make any such recordation, or any error in such recordation,
shall not affect any Borrower's obligation in respect of such Loans or such
Bankers' Acceptances. The entries in the Register shall be conclusive, in the
absence of manifest error, and each Borrower, the relevant Administrative Agent,
the Issuing Lenders and the Lenders shall treat each Person in whose name a Loan
and the Note evidencing the same or Bankers' Acceptance is registered as the
owner thereof for all purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. With respect to any Lender, the assignment or
other transfer of the Commitments of such Lender and the rights to the principal
of, and interest on, any Loan made, Bankers' Acceptance issued and any Note
issued pursuant to this Agreement shall not be effective until such assignment
or other transfer is recorded on the Register and, except to the extent provided
in this SUBSECTION 10.06(d), otherwise complies with this Section 10.06, and
prior to such recordation all amounts owing to the transferring Lender with
respect to such Commitments, Loans, Bankers' Acceptances and Notes shall remain
owing to the transferring Lender. The registration of assignment or other
transfer of all or part of any Commitments, Loans, Bankers' Acceptances and
Notes for a Lender shall be recorded by the relevant Administrative Agent on the
Register only upon the acceptance by such Administrative Agent of a properly
executed and delivered Assignment and Acceptance and payment of the
administrative fee referred to in SECTION 10.06(b)(iv). The Register shall be
available at the offices where kept by such Administrative Agent for inspection
by any Borrower and any Lender at any reasonable time upon reasonable prior
notice to such Administrative Agent. The Parent Borrower may not replace any
Lender pursuant to SECTION 2.1 (c), unless, with respect to any Notes held by
such Lender, the requirements of SUBSECTION 10.06(b) and this SUBSECTION
10.06(d) have been satisfied.
(e) PARTICIPATIONS. Each Lender may, without the consent of any
Borrower, the Issuing Lenders, the Swingline Lenders or any Administrative
Agent, sell participations to one or more Persons in all or a portion of its
rights, obligations or rights and obligations under this Agreement (including
all or a portion of its Loans, its Notes, its Commitments, Bankers' Acceptances
accepted and purchased by it and any Participation Interest in Letters of Credit
and Swingline Loans held by it); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the benefit of the
right of set-off contained in SECTION 10.08 and the yield protection
-175-
provisions contained in SECTIONS 3.01,3.05 and 3.06 to the same extent that the
Lender from which such participant acquired its participation would be entitled
to the benefits of such yield protection provisions (and such participant shall
be entitled to the gross-up payments under those Sections only to the extent
they do not exceed the gross-up payments to which the Lender from which such
participant acquired its participation would be entitled to), (iv) the Credit
Parties, the Administrative Agents, the Issuing Lenders, the Swingline Lenders
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Credit Parties relating to the Senior Obligations owing to
such Lender, (v) such Lender shall not be permitted to delegate any voting
rights to such participant or grant such participant veto rights with respect to
any voting rights of such Lender (other than with respect to CLAUSES (i)(A),
(i)(B) or (i)(C)of SECTION 10.03), and (vi) the participant shall be bound by
SECTION 3.01(d), (e), (f) and (g) and, with respect to Canadian Revolving Loans,
Term A Loans and Bankers' Acceptances, 10.06(j) as though it were a Lender.
(f) CERTAIN RIGHTS OF ISSUING LENDERS. If S&P or ▇▇▇▇▇'▇ shall, after
the date that any Revolving Lender becomes a Revolving Lender, downgrade the
long-term certificate of deposit ratings or long-term senior unsecured debt
ratings of such Revolving Lender (or the parent company thereof), and the
resulting ratings shall be BBB+ or Baal or lower, respectively, or the
equivalent, then any relevant Issuing Lender shall have the right, but not the
obligation, at its own expense, upon notice to such Revolving Lender and the
relevant Administrative Agent, to replace (or to request the Parent Borrower, at
the sole expense of such Issuing Lender, to use its reasonable efforts to
replace) such Revolving Lender with respect to such Revolving Lender's Revolving
Commitment with an assignee (in accordance with and subject to the restrictions
contained in SECTION 10.06(b)), and such Revolving Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in SECTION 10.06(b)) all its interests, rights and
obligations in respect of its Revolving Commitment to such assignee; PROVIDED,
HOWEVER, that (i) no such assignment shall conflict with any Law, rule or
regulation or order of any Governmental Authority and (ii) such Issuing Lender
or such assignee, as the case may be, shall pay to such Revolving Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Revolving Loans made by such
Revolving Lender hereunder, the amount of Letter of Credit Disbursements, BA
Reimbursement Obligations and Refunded Swingline Loans funded by such Revolving
Lender together with interest accrued thereon to the date of payment and all
other amounts accrued for such Revolving Lender's account or owed to it
hereunder in respect of either thereof.
(g) OTHER ASSIGNMENTS. Any Lender may at any time (i) assign all or
any portion of its rights under this Agreement and any Notes to a Federal
Reserve Bank, (ii) pledge or assign a security interest in all or any portion of
its interest and rights under this Agreement (including all or any portion of
its Notes, if any) to secure obligations of such Lender and (iii) grant to an
SPC referred to in SUBSECTION below identified as such in writing from time to
time by such Lender to the relevant Administrative Agent and the Parent Borrower
the option to provide to the Borrowers all or any part of any Loans that such
Lender would otherwise be obligated to make to any Borrower pursuant to this
Agreement; PROVIDED that (x) no such assignment, option, pledge or security
interest shall release a Lender from any of its obligations hereunder or
substitute any such Federal Reserve bank or other Person to which such option,
pledge or assignment has been made for such Lender as a party hereto and (y) the
recipient of such assignment, option, pledge or security interest shall not be
entitled to any gross-up payments under SECTIONS 3.01 or 3.05 that exceed the
gross-up payments to which the relevant Lender would have been entitled under
those Sections.
(h) INFORMATION. Any Lender may furnish any information concerning any
Credit Party or any of their respective Subsidiaries in the possession of such
Lender from time to time to assignees and
-176-
participants (including prospective assignees and participants), subject,
however, to the provisions of SECTION 10.07.
(i) OTHER FUNDING VEHICLES. Notwithstanding anything to the
contrary contained herein, any Lender (a "GRANTING LENDER") may grant to a
special purpose funding vehicle (an "SPC") the option to fund all or any part
of any Loan or accept all or any portion of any Bankers' Acceptance that such
Granting Lender would otherwise be obligated to fund or accept pursuant to
this Agreement; PROVIDED that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan or accept any Bankers' Acceptance,
(ii) if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan or accept all or any portion of any such
Bankers' Acceptance, the Granting Lender shall be obligated to fund such Loan
or accept such Bankers' Acceptance pursuant to the terms hereof, (iii) no SPC
shall have any voting rights pursuant to SECTION 10.03 and (iv) with respect
to notices, payments and other matters hereunder, the Borrowers, the
Administrative Agents and the Lenders shall not be obligated to deal with an
SPC, but may limit their communications and other dealings relevant to such
SPC to the applicable Granting Lender. The funding of a Loan or acceptance of
any Bankers' Acceptance by an SPC hereunder shall utilize the relevant
Revolving Commitment of the Granting Lender to the same extent that, and as
if, such Loan were funded or such Bankers' Acceptance were accepted by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable
for any indemnity or payment under this Agreement for which a Lender would
otherwise be liable for so long as, and to the extent, the Granting Lender
provides such indemnity or makes such payment. Notwithstanding anything to
the contrary contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding of
Loans and/or acceptance of Bankers' Acceptances to any rating agency,
commercial paper dealer or provider of any surety or guarantee to such SPC.
This SUBSECTION (i) may not be amended without the prior written consent of
each Granting Lender, all or any part of whose Loan is being funded or whose
Bankers' Acceptances have been accepted by an SPC at the time of such
amendment.
(j) CANADIAN NON-RESIDENT. Each Person that is or becomes a Lender,
Administrative Agent or Issuing Lender in respect of the Term A Loans, the
Canadian Revolving Loans or Bankers' Acceptances shall (i) promptly confirm to
the Parent Borrower and the Administrative Agents that it is a Canadian Resident
and shall deliver to the Parent Borrower and the Administrative Agents such
certificates, forms, documents or other evidence as may be applicable and
determined by the Parent Borrower, acting reasonably, to be reasonably
satisfactory to establish that such Person is a Canadian Resident and (ii) if it
becomes a Person other than a Canadian Resident promptly notify the Parent
Borrower in writing that it is not a Canadian Resident.
SECTION 10.07 CONFIDENTIALITY AND DISCLOSURE. (a) Each of the
Administrative Agents and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (i)
to its and its Affiliates' directors, officers, employees, trustees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential); (ii) to the extent requested by any regulatory (including
self-regulatory) authority (in which case such Administrative Agent or such
Lender, as applicable, shall use reasonable efforts to notify the Parent
Borrower prior to such disclosure); (iii) to the extent required by applicable
Laws or regulations or by any subpoena or similar legal process; (iv) to any
other party to this Agreement; (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (vi) subject to an agreement containing
provisions substantially the same as those of this SECTION 10.07, to (A) any
Eligible Assignee of or participant in, or any prospective Eligible Assignee of
or participant in, any of its rights or obligations under this Agreement or (B)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to
-177-
any credit derivative transaction relating to obligations of any Borrower; (vii)
with the consent of the Parent Borrower; (viii) to the extent such information
(A) becomes publicly available other than as a result of a breach of this
Section or (B) becomes available to an Agent or any Lender on a nonconfidential
basis from a source other than the Parent Borrower; or (ix) to the National
Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's or its Affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its Affiliates. For the purposes of this
SECTION 10.07, "INFORMATION" means all information received from the Parent
Borrower relating to the Parent Borrower or its business, other than any such
information that is available to the Administrative Agents or any Lender on a
nonconfidential basis prior to disclosure by the Parent Borrower; PROVIDED that,
in the case of information received from the Parent Borrower after the date
hereof, such information is clearly identified in writing at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this SECTION 10.07 shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information. Notwithstanding the
foregoing, any Agent and any Lender may place advertisements in financial and
other newspapers and periodicals or on a home page or similar place for
dissemination of information on the Internet or worldwide web as it may choose,
and circulate similar promotional materials, after the closing of the
transactions contemplated by this Agreement in the form of a "tombstone" or
otherwise describing the names of the Credit Parties, or any of them, and the
amount, type and closing date of such transactions, all at their sole expense.
(b) Notwithstanding the foregoing or any other contrary provision in
this Agreement or any other Senior Finance Documents, the parties hereto hereby
agree that, from the commencement of discussions with respect to the
Transactions and the Senior Finance Documents, each of the parties hereto and
each of their respective employees, representatives and other agents may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure (as such terms are used in Sections 6011, 6111 and
6112 of the Code and the Treasury Regulations promulgated thereunder) of the
Senior Finance Documents and the Transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to any of the
parties hereto relating to such tax treatment and tax structure, other than any
information for which nondisclosure is reasonably necessary in order to comply
with applicable securities laws.
SECTION 10.08 SET-OFF. In addition to any rights now or hereafter
granted under applicable Law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender (and each of its Affiliates) is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of such rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or specific) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation, branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Credit Party then due to the Lenders hereunder, under the
Notes, under the other Senior Finance Documents or otherwise, irrespective of
whether the Administrative Agents or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
The Credit Parties hereby agree that to the extent permitted by Law any Person
purchasing a participation in the Loans, Commitments and LC Obligations
hereunder pursuant to SECTION 2.01(d), 2.05(a) or (e), 2.14 or 10.06(e) may
exercise all rights of set-off with respect to its participation interest as
fully as if such Person were a Lender hereunder and any such set-off shall
reduce the amount owed by such Credit Party to the Lender.
-178-
SECTION 10.09 INTEREST RATE LIMITATION.
(a) GENERAL INTEREST RATE PROVISIONS. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts that are treated as interest
on such Loan under applicable Law (collectively, the "CHARGES"), shall exceed
the maximum lawful rate (the "MAXIMUM RATE") that may be charged or contracted
for, charged or otherwise received by the Lender holding such Loan in accordance
with applicable Law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this SECTION 10.09, shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such Lender
shall have received such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of payment.
(b) CANADIAN INTEREST PROVISIONS.
(i) Notwithstanding the generality of CLAUSE (a) above, if
any provision of this Agreement would obligate any party hereto to make any
payment of interest or other amount payable to any Canadian Revolving
Lender in an amount or calculated at a rate which would be prohibited by
law or would result in a receipt by such Canadian Revolving Lender of
interest at a criminal rate (as such terms are construed under the Criminal
Code (Canada)), then notwithstanding such provision, such amount or rate
shall be deemed to have been adjusted with retroactive effect to the
maximum amount or rate of interest, as the case may be, as would not be so
prohibited by law or so result in a receipt by such Canadian Revolving
Lender of interest at a criminal rate, such adjustment to be effected, to
the extent necessary, as follows:
(A) FIRST, by reducing the amount or rates of interest
required to be paid under SECTION 2.07; and
(B) THEREAFTER, by reducing any fees, commissions,
premiums and other amounts which would constitute interest for
purposes of Section 347 of the Criminal Code (Canada).
(ii) If, notwithstanding the provisions of CLAUSE (i) of this
SECTION 10.09(b), and after giving effect to all adjustments contemplated
thereby, any Canadian Revolving Lender shall have received an amount in
excess of the maximum permitted by such clause, then the party having paid
such amount shall be entitled, by notice in writing to such Canadian
Revolving Lender, to obtain reimbursement from such Canadian Revolving
Lender of an amount equal to such excess, and, pending such reimbursement,
such amount shall be deemed to be an amount payable by such Canadian
Revolving Lender to such party.
(iii) Any amount or rate of interest referred to in this
SECTION 10.09(b) shall be determined in accordance with generally accepted
accounting practices and principles as an effective annual rate of interest
over the term of any Canadian Revolving Loan on the assumption that any
charges, fees or expenses that fall within the meaning of "interest" (as
defined in the Criminal Code (Canada)) shall, if they relate to a specific
period of time, be prorated over that period of time and otherwise be
prorated over the period from the Closing Date to the Revolving Termination
Date and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Chartered Accountants appointed by the Administrative
Agents shall be conclusive for the purposes of such determination absent
manifest error.
-179-
SECTION 10.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
SECTION 10.11 INTEGRATION. This Agreement, together with the other
Senior Finance Documents, comprises the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any
conflict between the provisions of this Agreement and those of any other Senior
Finance Document, the provisions of this Agreement shall control; PROVIDED that
the inclusion of supplemental rights or remedies in favor of the Administrative
Agents or the Lenders in any other Senior Finance Document shall not be deemed a
conflict with this Agreement. Each Senior Finance Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
SECTION 10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Senior Finance
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Agents and each Lender, regardless of any investigation made by any Agent or
any Lender or on their behalf and notwithstanding that any Agent or any Lender
may have had notice or knowledge of any Default or Event of Default at the time
of any Credit Extension, and shall continue in full force and effect as long as
any Loan or any other Senior Obligation shall remain unpaid or unsatisfied or
any Letter of Credit or Bankers' Acceptance shall remain outstanding.
SECTION 10.13 SEVERABILITY. Any provision of this Agreement and the
other Senior Finance Documents to which any Credit Party is a party that 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 thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.14 HEADINGS. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
SECTION 10.15 DEFAULTING LENDERS. Each Lender understands and agrees
that if such Lender is a Defaulting Lender then, notwithstanding the provisions
of SECTION 10.03, it shall not be entitled to vote on any matter requiring the
consent of the Required Lenders or to object to any matter requiring the consent
of all the Lenders adversely affected thereby; PROVIDED, HOWEVER, that all other
benefits and obligations under the Senior Finance Documents shall apply to such
Defaulting Lender, except as provided in SECTION 2.03(e).
SECTION 10.16 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE OTHER SENIOR FINANCE DOCUMENTS (OTHER THAN
LETTERS OF CREDIT AND BANKERS' ACCEPTANCES AND OTHER THAN AS EXPRESSLY SET
FORTH IN SUCH OTHER SENIOR FINANCE DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WlTH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION,
-180-
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH LETIER OF CREDIT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN
SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, (i) THE RULES
OF THE "INTERNATIONAL STANDBY PRACTICES 1998" PUBLISHED BY THE INSTITUTE OF
INTERNATIONAL BANKING LAW & PRACTICE (OR SUCH LATER VERSION AS MAY BE IN EFFECT
AT THE TIME OF ISSUANCE) AND (ii) THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE,
PUBLICATION NO. 500 AND, AS TO MATTERS NOT GOVERNED BY SUCH UNIFORM CUSTOMS, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES. EACH BANKERS' ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
PROVINCE OF QUEBEC, CANADA, WITHOUT REGARD TO CONFLICTS OF LAWS. Any legal
action or proceeding with respect to this Agreement or any other Senior Finance
Document may be brought in the courts of the State of New York in New York
County, or of the United States for the Southern District of New York, and, by
execution and delivery of this Agreement, each Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and unconditional,
the nonexclusive jurisdiction of such courts. Each Borrower irrevocably waives,
to the fullest extent permitted by Law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
court and any claim that any such proceeding brought in any such court has been
brought in an inconvenient forum.
(b) Each of the Borrowers hereby irrevocably appoints C.T. Corporation
System its authorized agent to accept and acknowledge service of any and all
process which may be served in any suit, action or proceeding of the nature
referred to in this SECTION 10.16 and consents to process being served in any
such suit, action or proceeding upon C.T. Corporation System in any manner or by
the mailing of a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to the Parent Borrower's (in the case of service of
process upon the Parent Borrower) or the U.S. Borrower's (in the case of service
of process on the U.S. Borrower) address referred to in SECTION 10.03, as the
case may be. Each of the Parent Borrower and each other Borrower agrees that
such service (i) shall be deemed in every respect effective service of process
upon it in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by Law, be taken and held to be valid personal service upon and
personal delivery to it. Nothing in this SECTION 10.16 shall affect the right of
any Lender to serve process in any manner permitted by Law or limit the right of
any Lender to bring proceedings against the Parent Borrower or any other
Borrower in the courts of any jurisdiction or jurisdictions.
SECTION 10.17 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY SENIOR FINANCE DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY SENIOR FINANCE DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY. EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE,
-181-
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 10.17.
SECTION 10.18 BINDING EFFECT. This Agreement shall become effective at
such time when it shall have been executed by the Parent Borrower, the U.S.
Borrower, each Administrative Agent shall have received copies hereof (telefaxed
or otherwise) which, when taken together, bear the signatures of each Lender,
and thereafter this Agreement shall be binding upon and inure to the benefit of
the Parent Borrower, the U.S. Borrower, each Agent and each Lender and their
respective successors and assigns; PROVIDED, HOWEVER, unless the conditions set
forth in SECTION 4.01 have been satisfied by the Credit Parties or waived by the
Lenders on or before August 31, 2004, none of the Borrowers, any Agent or the
Lenders shall have any obligations under this Agreement.
SECTION 10.19 SOURCE OF FUNDS. Each of the Lenders hereby represents
and warrants to each Borrower that at least one of the following statements is
an accurate representation as to the source of funds to be used by such Lender
in connection with the financing hereunder (referred to in this SECTION 10.19 as
a "SOURCE"):
(i) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA;
(ii) the Source is either a "plan" as such term is defined in
Section 3(3) of ERISA or Section 4975(e) of the Code (an "ERISA PLAN"),
more than one ERISA Plan or a separate account or trust fund comprised of
one or more ERISA Plans, each of which has been identified to the Group
Companies in writing pursuant to this PARAGRAPH (ii);
(iii) the Source is an "insurance company general account" as
the term is defined in Prohibited Transaction Exemption ("PTE") 95-60
(issued July 12, 1995 as amended by PTE 2002-13 ("PTE 95-60")) in respect
of which the reserves and liabilities for the general account contract(s)
held by or on behalf of any ERISA Plan (as defined by the annual statement
for life insurance companies approved by the National Association of
Insurance Commissioners (the "NAIC ANNUAL STATEMENT"), together with the
amount of the reserves and liabilities for the general account contracts(s)
held by or on behalf of any ERISA Plan maintained by the same employer (or
affiliate thereof within the meaning of Section V(a) of PTE 95-60) or by
the same employee organization in the general account to not exceed 10% of
the total reserves and liabilities of the general account (exclusive of
separate account liabilities) plus surplus as set forth in the NAIC Annual
Statement filed with your state of domicile;
(iv) the Source is a separate account of an insurance company
that is maintained by the Lender solely in connection with such Lender's
fixed contractual obligations under which the amounts payable, or credited,
to an ERISA Plan (or its related trust) that has any interest in such
separate account (or to any participant or beneficiary of such ERISA Plan
(including any annuitant) are not affected in any manner by the investment
performance of the separate account;
(v) the Source is either (x) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued January 29, 1990),
or (y) a bank collective investment fund, within the meaning of the PTE
91-38 (issued July 12, 1991) and, except as the Lender has
-182-
disclosed to the Group Companies in writing pursuant to this PARAGRAPH (v),
no ERISA Plan or group of ERISA Plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund;
(vi) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of the QPAM Exemption) managed by a
"qualified professional asset manager" or "QPAM" (within the meaning of
Part V of the QPAM Exemption), no ERISA Plan's assets that are included in
such investment fund, when combined with the assets of all other ERISA
Plans established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of such
employer or by the same employee organization and managed by such QPAM,
exceed 20% of the total client assets managed by such QPAM, the conditions
of Section I(c) and (g) of the QPAM Exemption are satisfied, neither the
QPAM nor a person controlling or controlled by the QPAM (applying the
definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or
more interest in the Parent Borrower and (x) the identity of such QPAM and
(y) the names of all ERISA Plans whose assets are included in such
investment fund have been disclosed to the Group Companies in writing
pursuant to this PARAGRAPH (vi);
(vii) the Source constitutes assets of a "plan" or more than
one "plan" within the meaning of Part IV of PTE 96-23 (the "INHAM
EXEMPTION") managed by an "in-house asset manager" or "INHAM" within the
meaning of Part IV of the INHAM Exemption, the conditions of Sections I(a),
(g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a
person controlling or controlled by the INHAM (applying the definition of
"control" in Section IV(d) of the INHAM Exemption) owns a 5% or more
interest in the Parent Borrower and (i) the identity of such INHAM and (ii)
the name(s) of the ERISA Plan(s) whose assets constitute the Source have
been disclosed to the Group Companies in writing pursuant to this PARAGRAPH
(vii); or
(viii) the Source is a governmental plan.
As used in this SECTION 10.19, the terms "governmental plan", "party in
interest" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
SECTION 10.20 JUDGMENT CURRENCY.
(a) The obligations of the Credit Parties hereunder and under the
other Senior Finance Documents to make payments in a specified currency (the
"OBLIGATION CURRENCY") shall not be discharged or satisfied by any tender or
recovery whether pursuant to any judgment or otherwise expressed in or converted
into any currency other than the Obligation Currency, except to the extent that
such tender or recovery results in the effective receipt by a Finance Party of
the full amount of the Obligation Currency expressed to be payable to it under
this Agreement or another Senior Finance Document. If, for the purpose of
obtaining or enforcing judgment against any Credit Party in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "JUDGMENT CURRENCY") an amount due in the Obligation Currency, the
conversion shall be made at the Exchange Rate determined as of the Business Day
immediately preceding the date on which the judgment is given (such Business Day
being hereinafter referred to as the "JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the Exchange Rate prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Parent Borrower and each other applicable Borrower covenants and agrees
to pay, or cause to be paid, or remit, or cause to be remitted,
-183-
such additional amounts, if any (but in any event not a lesser amount), as may
be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the Exchange Rate prevailing on the date of payment, will produce
the amount of the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the
Exchange Rate prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any Exchange Rate or currency
equivalent for this Section, such amounts shall include any premium and costs
payable in connection with the purchase of the Obligation Currency.
SECTION 10.21 LENDERS' U.S. PATRIOT ACT COMPLIANCE CERTIFICATION. Each
Lender or assignee or participant of a Lender that is a "foreign bank" (as
defined in the regulations promulgated under the U.S. Patriot Act) that is not
incorporated under the Laws of the United States or a State thereof (and is not
excepted from the certification requirement contained in Section 313 of the U.S.
Patriot Act and the applicable regulations because it is both (i) an Affiliate
of a depository institution or foreign bank that maintains a physical presence
in the United States or foreign country and (ii) subject to supervision by a
banking regulatory authority regulating such affiliated depository institution
or foreign bank) shall deliver to the relevant Administrative Agent the
certification or, if applicable, recertification, certifying that such Lender is
not a "shell" and certifying to other matters as required by Section 313 of the
U.S. Patriot Act and the applicable regulations thereunder: (i) within 10 days
after the Closing Date or, if later, the date such Lender, assignee or
participant of a Lender becomes a Lender, assignee or participant of a Lender
hereunder and (ii) at such other times as are required under the U.S. Patriot
Act.
SECTION 10.22 U.S. PATRIOT ACT NOTICE. Each Finance Party (for itself
and not on behalf of any other Finance Party) hereby notifies each Borrower
that, pursuant to the requirements of the U.S. Patriot Act, such Finance Party
is required to obtain, verify and record information that identifies each of the
Parent Borrower and each other Credit Party, which information includes the name
and address of each such Credit Party and other information that will allow such
Finance Party to identify each such Credit Party in accordance with the U.S.
Patriot Act.
SECTION 10.23 CONSENT TO TRANSACTIONS. Notwithstanding anything in the
Senior Finance Documents to the contrary, the Lenders and the Agents hereby
irrevocably consent to the consummation by the Parent Borrower and its
Subsidiaries of the transactions described on SCHEDULE 7.12 as of the Closing
Date and the payment and performance of all obligations under the documents in
respect of such transactions listed on such SCHEDULE 7.12.
SECTION 10.24 FUNDING ARRANGEMENTS.
(a) FUNDING INTO ACCOUNT. The parties hereto acknowledge and agree
that the Closing of the Transactions shall be consummated in accordance with the
Assignment, Assumption and Consent Agreement (the "FUNDING AGREEMENT"), dated as
of July 30, 2004, among the Parent Borrower, Bank of America, N.A. as escrow
agent (the "BANK"), the U.S. Collateral Agent, The Bank of New York, as trustee
under the Senior Note Indenture and ▇▇▇▇▇ Fargo N.A., as trustee under the
Subordinated Note Indenture, the Seller and other parties thereto. As
contemplated by the Funding Agreement but subject to the delivery of all
documents, instruments and opinions of counsel required to be delivered on the
Closing Date pursuant to ARTICLE IV and satisfaction of all other closing
conditions set forth in ARTICLE IV, on July 30, 2004, each Lender, in
anticipation of its obligations to fund the initial Loans to be funded by it
hereunder on the Closing Date, will fund an amount equal to such initial Loans
into an account or accounts of the Credit Parties with the Canadian Collateral
Agent who shall be irrevocably instructed by the Parent Borrower immediately
prior to such funding to promptly transfer the proceeds for funding such initial
Loans into an account (the "ACCOUNT") with the Bank in the name and for the
benefit of the U.S.
-184-
Collateral Agent. Subject to the provisions of the Funding Agreement, at 11:59
p.m. on July 31, 2004 (the "EFFECTIVE TIME"), the Bank will transfer title to
the Account to the Seller, without any further action on the part of any other
party to the Funding Agreement. The Closing Date shall be deemed to have
occurred and the Borrowings of Loans funded into the Account shall be deemed to
have been made by the Borrowers as of the Effective Time; PROVIDED that,
notwithstanding anything herein to the contrary, for purposes of calculating the
amount of interest under SECTION 2.07 due on the Loans funded into the Account
in anticipation of the Lenders' obligations hereunder, such Loans shall be
deemed to have been made on, and interest on such Loans shall accrue from,
July 30, 2004.
(b) REFUND OF ACCOUNT IF ACQUISITION DOES NOT CLOSE. If at the
Effective Time (which time can, for purposes of this clause (b) only, be
extended to August 2, 2004 in the sole and absolute discretion of the Lead
Arrangers), the title to the Account is not transferred to the Seller, the U.S.
Collateral Agent shall, on the Business Day next occurring after the Effective
Time, cause such funds to be distributed to each Lender in the amount of the
initial Loan that was funded by each such Lender in anticipation of its
obligations hereunder. In connection with such distribution and
contemporaneously therewith, the Borrowers, jointly and severally, shall
indemnify, save, hold harmless and pay to each Lender the amount of interest and
fees accrued (assuming that the Loans had been made on July 30, 2004) on the
Loans from July 30, 2004 through and including the date on which such Lender has
received the refund of the Loans funded by it into the Account.
[Signature Pages Follow]
-185-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) INC.
By: /s/ Francois ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: FRANCOIS ▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ IS8
Attention: Francois ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE ▇▇▇▇ ▇▇▇▇▇ GROUP (PJC) USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & Secretary
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Term B Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director
for credit notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
for operational notices:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
as U.S. Swingline Lender
By:
----------------------------------------
Name:
Title:
[NOTICE ADDRESS]
NATIONAL BANK OF CANADA
as Canadian Administrative Agent
By:
----------------------------------------
Name:
Title:
▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
S-2-
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Term B Administrative Agent
By:
----------------------------------------
Name:
Title:
for credit notices:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
for operational notices:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
as U.S. Swingline Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Bank of America NA
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇
FACSIMILE # ▇▇▇-▇▇▇-▇▇▇▇
TELEPHONE # ▇▇▇-▇▇▇-▇▇▇▇
[Signature Page to Credit Agreement]
▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
as Canadian Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice president
▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL BANK OF CANADA,
as Canadian Swingline Lender,
Canadian Issuing Lender and U.S. Issuing Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as U.S. Co-Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
S-3
NATIONAL BANK OF CANADA,
as U.S. Co-Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Canadian Co-Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK SECURITIES INC.
as Canadian Co-Syndication Agent
By:
-------------------------------------------
Name:
Title:
MERRlLL LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Global Transaction Coordinator, U.S. Joint Lead
Arranger, U.S. Joint Book Runner
By:
-------------------------------------------
Name:
Title:
[Signature Page to Credit Agreement]
S-4
DEUTSCHE BANK SECURITIES INC.
as Canadian CoSyndication Agent
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: MD
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Global Transaction Coordinator, U.S. Joint Lead
Arranger, U.S. Joint Book Runner
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
as U.S. Joint Lead Arranger and U.S. Joint
Bookrunner
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: MD
NATIONAL BANK FINANCIAL INC.
as U.S. Joint Lead Arranger
By:
-------------------------------------------
Name:
Title:
NATIONAL BANK FINANCIAL INC.
as Canadian Joint Lead Arranger and
Canadian Joint Bookrunner
By:
-------------------------------------------
Name:
Title:
▇-▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
as U.S. Co-Syndication Agent
By:
-------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Canadian Co-Syndication Agent
By:
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK SECURITIES INC.
as Canadian Co-Syndication Agent
By:
-------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Global Transaction Coordinator, U.S. Joint Lead
Arranger, U.S. Joint Book Runner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
S-4
DEUTSCHE BANK SECURITIES INC.
as U.S. Joint Lead Arranger and U.S. Joint
Bookrunner
By:
-------------------------------------------
Name:
Title:
NATIONAL BANK FINANCIAL INC.
as U.S. Joint Lead Arranger
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONAL BANK FINANCIAL INC.
as Canadian Joint Lead Arranger and
Canadian Joint Bookrunner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
MERRTLL LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Canadian Joint Lead Arranger and
Canadian Joint Book Runner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
S-5
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
as Canadian Joint Lead Arranger and
Canadian Joint Book Runner
By:
-------------------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
as Canadian Joint Lead Arranger and
Canadian Joint Bookrunner
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: MD
S-5-
BANK OF MONTREAL
as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
BANK OF MONTREAL, Chicago Branch
as Co-Documentation Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
THE ROYAL BANK OF CANADA
CO-DOCUMENTATION AGENT
(___________)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇-Coeur
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇-COEUR
Title: AUTHORIZED SIGNATORY
[Signature Page to Credit Agreement]
NATIONAL BANK OF CANADA
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Credit Agreement]
NATIONAL BANK OF CANADA
NEW YORK BRANCH
as U.S. Revolving Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: VP & Manager
[Signature Page to Credit Agreement]
DEUTSCHE BANK AG, CANADA BRANCH
as Canadian Revolving Lender and Term A
Loan Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director & CFO
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
[Signature Page to Credit Agreement]
S-3
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as US Revolving Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director
[Signature Page to Credit Agreement]
S-2
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Term B Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director
[Signature Page to Credit Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CANADA INC.
as Canadian Revolving Lender and Term A
Loan Lender
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: VICE PRESIDENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
as U.S. Revolving Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
[Signature Page to Credit Agreement]
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORP.
as Term B Loan Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
THE TORONTO-DOMINION BANK
as Canadian Revolving Lender
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: VP & D
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: MD
TORONTO DOMINION (TEXAS), INC.
as U.S. Revolving Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Credit Agreement]
THE BANK OF NOVA SCOTIA
By: /s/ [ILLEGIBLE]
-------------------------------------------
Name: [ILLEGIBLE]
Title: DIRECTOR
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: DIRECTOR
▇-▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
as U.S. Revolving Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Credit Agreement]
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
BANK OF MONTREAL, Chicago Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
[Signature Page to Credit Agreement]
CAISSE DE DEPOT ET PLACEMENT DU
QUEBEC, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
Manager
[Signature Page to Credit Agreement]
BNP PARIBAS (CANADA)
as Canadian Revolving Lender and Term A
Loan Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice-President
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (Quebec) ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
Attention : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier : (▇▇▇) ▇▇▇-▇▇▇▇
BNP PARIBAS
as U.S. Revolving Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: ASSOCIATE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attention : ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier : (▇▇▇) ▇▇▇-▇▇▇▇
[Signature Page to Credit Agreement]
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice-President
[Signature Page to Credit Agreement]
CANADIAN IMPERIAL BANK OF
COMMERCE
as Canadian Revolving Lender and Term A Loan
Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇. Mastromarini
-------------------------------------------
Name: ▇▇▇▇▇ ▇. MASTROMARINI
Title: EXECUTIVE DIRECTOR
[Signature Page to Credit Agreement]
CIBC Inc.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Director
CIBC World Markets Corp. As Agent
[Signature Page to Credit Agreement]
CAISSE CENTRALE ▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Credit Agreement]
DESJARDINS COMMERCIAL LENDING USA CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: TREASURER
[Signature Page to Credit Agreement]
▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇(▇▇▇▇▇▇)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
General Manager
[Signature Page to Credit Agreement]
The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
[Signature Page to Credit Agreement]
Export Development Canada
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Financial Services Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Financial Services Manager
[Signature Page to Credit Agreement]
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A. (Canada Branch)
By: /s/ ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
[Signature Page to Credit Agreement]
LAURENTIAN BANK OF CANADA
as Canadian Revolving Lender and Term A
Loan Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Credit Agreement]