EXHIBIT 10(M)
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CREDIT AGREEMENT
dated as of June 25, 2002,
by and among
G&K SERVICES INC.,
as Domestic Borrower,
G&K SERVICES CANADA INC.,
as Canadian Borrower,
the Lenders referred to herein,
as Lenders
BANK ONE, NA,
as Administrative Agent,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
WACHOVIA SECURITIES, INC. (f/k/a FIRST UNION SECURITIES, INC.) and
BANC ONE CAPITAL MARKETS, INC.,
acted as Joint Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................1
SECTION 1.1 Definitions..............................................................................1
SECTION 1.2 General.................................................................................20
SECTION 1.3. Other Definitions and Provisions........................................................20
ARTICLE II REVOLVING CREDIT FACILITY............................................................................21
SECTION 2.1 Revolving Credit Loans..................................................................21
SECTION 2.2 Alternative Currency Loans..............................................................21
SECTION 2.3 Swingline Loans.........................................................................23
SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Alternative Currency
Loans and Swingline Loans...............................................................25
SECTION 2.5 Bankers' Acceptances....................................................................27
SECTION 2.6 Repayment of Loans......................................................................29
SECTION 2.7 Permanent Reduction of the Revolving Credit Commitment and the
Alternative Currency Commitment.........................................................31
SECTION 2.8 Termination of Credit Facility..........................................................32
SECTION 2.9 Increase of Revolving Credit Commitment.................................................32
ARTICLE III LETTER OF CREDIT FACILITY...........................................................................33
SECTION 3.1 L/C Commitment..........................................................................33
SECTION 3.2 Procedure for Issuance of Letters of Credit.............................................34
SECTION 3.3 Commissions and Other Charges...........................................................35
SECTION 3.4 L/C Participations......................................................................35
SECTION 3.5 Reimbursement Obligation of the Borrowers...............................................36
SECTION 3.6 Obligations Absolute....................................................................37
SECTION 3.7 Actions of the Issuing Lender...........................................................37
SECTION 3.8 Indemnification by Borrowers............................................................38
SECTION 3.9 Indemnification by Lenders..............................................................38
SECTION 3.10 Rights as a Lender......................................................................38
ARTICLE IV TERM LOAN FACILITY...................................................................................39
SECTION 4.1 Term Loan...............................................................................39
SECTION 4.2 Procedure for Advance of Term Loan......................................................39
SECTION 4.3 Repayment of Term Loan..................................................................39
SECTION 4.4 Prepayments of Term Loan................................................................40
ARTICLE V GENERAL LOAN PROVISIONS...............................................................................42
SECTION 5.1 Interest................................................................................42
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans................................45
SECTION 5.3 Fees....................................................................................47
SECTION 5.4 Manner of Payment.......................................................................48
SECTION 5.5 Noteless Agreement; Evidence of Indebtedness............................................49
SECTION 5.6 Crediting of Payments and Proceeds......................................................50
SECTION 5.7 Adjustments.............................................................................50
SECTION 5.8 Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent..................................................50
SECTION 5.9. Redenomination of Alternative Currency Loans............................................51
SECTION 5.10. Regulatory Limitation...................................................................51
SECTION 5.11 Changed Circumstances...................................................................52
SECTION 5.12 Indemnity...............................................................................54
SECTION 5.13 Capital Requirements....................................................................55
SECTION 5.14 Taxes...................................................................................55
SECTION 5.15 Replacement of Lenders..................................................................57
SECTION 5.16 Guaranty Requirements...................................................................58
ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING.........................................................59
SECTION 6.1 Closing.................................................................................59
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit..................................59
SECTION 6.3 Conditions to All Extensions of Credit..................................................62
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.....................................................63
SECTION 7.1 Representations and Warranties..........................................................63
SECTION 7.2 Survival of Representations and Warranties, Etc.........................................70
ARTICLE VIII FINANCIAL INFORMATION AND NOTICES..................................................................70
SECTION 8.1 Financial Statements and Projections....................................................71
SECTION 8.2 Officer's Compliance Certificate........................................................72
SECTION 8.3 Accountants' Certificate................................................................72
SECTION 8.4 Other Reports...........................................................................72
SECTION 8.5 Notice of Litigation and Other Matters..................................................73
SECTION 8.6 Accuracy of Information.................................................................74
ARTICLE IX AFFIRMATIVE COVENANTS................................................................................74
SECTION 9.1 Preservation of Corporate Existence and Related Matters.................................74
SECTION 9.2 Maintenance of Property.................................................................74
SECTION 9.3 Insurance...............................................................................74
SECTION 9.4 Accounting Methods and Financial Records................................................74
SECTION 9.5 Payment and Performance of Obligations..................................................74
SECTION 9.6 Compliance With Laws and Approvals......................................................75
SECTION 9.7 Environmental Laws......................................................................75
SECTION 9.8 Compliance with ERISA...................................................................75
SECTION 9.9 Compliance With Agreements..............................................................76
SECTION 9.10 Visits and Inspections..................................................................76
SECTION 9.11 Additional Subsidiaries.................................................................76
SECTION 9.12 Use of Proceeds.........................................................................76
SECTION 9.13 Further Assurances......................................................................77
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ARTICLE X FINANCIAL COVENANTS...................................................................................77
SECTION 10.1 Leverage Ratio...........................................................................77
SECTION 10.2 Fixed Charge Coverage Ratio..............................................................77
SECTION 10.3 Net Worth................................................................................77
ARTICLE XI NEGATIVE COVENANTS...................................................................................77
SECTION 11.1 Limitations on Debt......................................................................78
SECTION 11.2 Limitations on Liens.....................................................................79
SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions.............................80
SECTION 11.4 Limitations on Mergers and Liquidation...................................................82
SECTION 11.5 Limitations on Sale of Assets............................................................82
SECTION 11.6 Limitations on Dividends and Distributions...............................................83
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock....................................83
SECTION 11.8 Transactions with Affiliates.............................................................83
SECTION 11.9 Certain Accounting Changes; Organizational Documents.....................................83
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Debt................................84
SECTION 11.11 Restrictive Agreements...................................................................84
SECTION 11.12 Nature of Business.......................................................................84
ARTICLE XII UNCONDITIONAL DOMESTIC BORROWER GUARANTY AGREEMENT..................................................84
SECTION 12.1 Guaranty of Obligations..................................................................84
SECTION 12.2 Nature of Guaranty.......................................................................85
SECTION 12.3 Demand by the Administrative Agent.......................................................86
SECTION 12.4 Waivers..................................................................................86
SECTION 12.5 Modification of Loan Documents etc.......................................................86
SECTION 12.6 Reinstatement............................................................................87
SECTION 12.7 No Subrogation...........................................................................88
ARTICLE XIII DEFAULT AND REMEDIES...............................................................................88
SECTION 13.1 Events of Default........................................................................88
SECTION 13.2 Remedies.................................................................................91
SECTION 13.3 Rights and Remedies Cumulative; Non-Waiver; etc..........................................92
SECTION 13.4. Judgment Currency........................................................................92
ARTICLE XIV THE AGENTS..........................................................................................93
SECTION 14.1 Appointment; Nature of Relationship......................................................93
SECTION 14.2 Powers...................................................................................93
SECTION 14.3 General Immunity.........................................................................93
SECTION 14.4 No Responsibility for Loan, Recitals, etc................................................93
SECTION 14.5 Action on Instructions of Lenders........................................................94
SECTION 14.6 Employment of Agents and Counsel.........................................................94
SECTION 14.7 Reliance on Documents; Counsel...........................................................94
SECTION 14.8 Agent's Reimbursement and Indemnification................................................94
SECTION 14.9 Notice of Default........................................................................95
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SECTION 14.10 Rights as a Lender.......................................................................95
SECTION 14.11 Lender Credit Decision...................................................................95
SECTION 14.12 Successor Agents.........................................................................96
SECTION 14.13 Delegation to Affiliates.................................................................96
ARTICLE XV MISCELLANEOUS........................................................................................97
SECTION 15.1 Notices..................................................................................97
SECTION 15.2 Expenses; Indemnity......................................................................98
SECTION 15.3 Set-off..................................................................................99
SECTION 15.4 Governing Law...........................................................................100
SECTION 15.5 Jurisdiction and Venue..................................................................100
SECTION 15.6 Binding Arbitration; Waiver of Jury Trial...............................................101
SECTION 15.7 Reversal of Payments....................................................................102
SECTION 15.8 Injunctive Relief; Punitive Damages.....................................................102
SECTION 15.9 Accounting Matters......................................................................102
SECTION 15.10 Successors and Assigns; Participations..................................................103
SECTION 15.11 Amendments, Waivers and Consents........................................................106
SECTION 15.12 Performance of Duties...................................................................107
SECTION 15.13 All Powers Coupled with Interest........................................................107
SECTION 15.14 Survival of Indemnities.................................................................107
SECTION 15.15 Titles and Captions.....................................................................107
SECTION 15.16 Severability of Provisions..............................................................108
SECTION 15.17 Counterparts............................................................................108
SECTION 15.18 Term of Agreement.......................................................................108
SECTION 15.19 Advice of Counsel.......................................................................108
SECTION 15.20 No Strict Construction..................................................................108
SECTION 15.21 Nature of Obligations...................................................................108
SECTION 15.22 Domestic Borrower as Agent for the Borrowers............................................108
SECTION 15.23 Inconsistencies with Other Documents; Independent Effect of Covenants...................109
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EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swingline Note
Exhibit A-3 - Form of Term Note
Exhibit A-4 - Form of Alternative Currency Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E-1 - Form of Notice of Conversion/Continuation
Exhibit E-2 - Form of Notice of Conversion to Acceptances
Exhibit E-3 - Form of Notice to Renew Acceptances
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H-1 - Form of Domestic Subsidiary Guaranty Agreement
Exhibit H-2 - Form of Canadian Subsidiary Guaranty Agreement
SCHEDULES
Schedule 1.1(a) - Lenders and Commitments
Schedule 1.1(b) - Administrative Agent's Correspondent
Schedule 1.1(c) - Existing Letters of Credit
Schedule 7.1(a) - Jurisdictions of Organization and Qualification
Schedule 7.1(b) - Subsidiaries and Capitalization
Schedule 7.1(i) - ERISA Plans
Schedule 7.1(l) - Material Contracts
Schedule 7.1(m) - Labor and Collective Bargaining Agreements
Schedule 7.1(t) - Debt and Guaranty Obligations
Schedule 7.1(u) - Litigation
Schedule 11.1 - Existing Debt
Schedule 11.2 - Existing Liens
Schedule 11.3 - Existing Loans, Advances and Investments
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 25th day of June, 2002 by and among
G&K SERVICES, INC., a Minnesota corporation, as Domestic Borrower (the "Domestic
Borrower"), G&K SERVICES CANADA INC., an Ontario corporation, as Canadian
Borrower (the "Canadian Borrower" and, together with the Domestic Borrower, the
"Borrowers"), the lenders who are or may become a party to this Agreement, as
Lenders (the "Lenders"), BANK ONE, NA, a national banking association, as
Administrative Agent for the Lenders (the "Administrative Agent"), and WACHOVIA
BANK, NATIONAL ASSOCIATION, a national banking association, as Syndication Agent
for the Lenders (the "Syndication Agent" and, together with the Administrative
Agent, the "Agents").
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Acceptance" means a Draft duly stamped and accepted by the Alternative
Currency Lender in accordance with Section 2.5 or Section 5.2.
"Acceptance Amount" means the sum of (a) the aggregate face amount of
all issued and outstanding Acceptances and (b) amounts paid under an Acceptance
for which the Alternative Currency Lender has neither been reimbursed nor made a
Canadian Base Rate Loan.
"Acceptance Fee" has the meaning specified in Section 2.5(d).
"Administrative Agent" means Bank One, in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 14.12.
"Administrative Agent's Correspondent" means, with respect to the
distribution and payment of Alternative Currency Loans, the office, branch,
affiliate or correspondent bank of the Administrative Agent specified as the
"Administrative Agent's Correspondent" for each applicable Alternative Currency
on Schedule 1.1(b) hereto, or such other office, branch, affiliate or
correspondent bank of the Administrative Agent as the Administrative Agent may
from time to time specify to the Borrowers and the Lenders as the Administrative
Agent's Correspondent.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
15.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of the Domestic Borrower) which directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, such first Person or any of its Subsidiaries. The term "control"
means (a) the power to vote ten percent (10%) or more of the securities or other
equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Agents" means the collective reference to the Administrative Agent and
the Syndication Agent; "Agent" means each of the Agents individually, as the
context requires.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced, increased or otherwise
modified at any time or from time to time pursuant to the terms hereof. On the
Closing Date, the Aggregate Commitment shall be Three Hundred Twenty-Five
Million Dollars ($325,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Alternative Currency" means Canadian Dollars.
"Alternative Currency Amount" means with respect to each Alternative
Currency Loan, the amount of the applicable Alternative Currency which is
equivalent to the principal amount in Dollars of such Loan calculated on the
basis of the arithmetic mean of the buy and sell spot rates of exchange
determined by the Administrative Agent to be available to it at approximately
11:00 a.m. (London time) three (3) Business Days before such Loan is made or
continued (or to be made or continued). When used with respect to any other sum
expressed in Dollars, "Alternative Currency Amount" shall mean the amount of
such Alternative Currency which is equivalent to the amount so expressed in
Dollars calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange determined by the Administrative Agent to be available to it
at the relevant time.
"Alternative Currency Commitment" means the lesser of (i) Twenty-Five
Million Dollars ($25,000,000) and (ii) the Revolving Credit Commitment, as such
amount may be reduced or modified at any time or from time to time pursuant to
the terms hereof.
"Alternative Currency Facility" means the alternative currency facility
established pursuant to Section 2.2.
"Alternative Currency Lender" means Bank One, in its capacity as
alternative currency lender hereunder.
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"Alternative Currency Loan" means any revolving credit loan made by the
Alternative Currency Lender pursuant to Section 2.2 (including, without
limitation, any Canadian BA Borrowing issued pursuant to Section 2.5), and all
such Alternative Currency Loans collectively as the context requires.
"Alternative Currency Note" means the Alternative Currency Note made by
the Borrowers payable to the order of the Alternative Currency Lender,
substantially in the form of Exhibit A-4 hereto, evidencing the Alternative
Currency Loans, and any amendments, supplements and modifications thereto, any
substitutes therefor and any replacements, restatements, renewals or extensions
thereof, in whole or in part.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in Section
5.1(c).
"Approved Fund" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business;
provided, that with respect to any assignment of any Revolving Credit
Commitment, such Approved Fund must be administered by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Arbitration Rules" shall have the meaning assigned thereto in Section
15.6(a).
"Asset Sale Proceeds" shall have the meaning assigned thereto in
Section 4.4(b)(iii).
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 15.10(b)(i).
"Bank One" means Bank One, NA, a national banking association, with its
main office in Chicago, Illinois, and its successors.
"BA Purchase Price" shall mean the product of (a) the face amount of
Drafts to be sold in connection with an Alternative Currency Loan times (b) the
applicable Discount, as determined by the Alternative Currency Lender, less the
Acceptance Fee retained by the Alternative Currency Lender in consideration for
the acceptance of such Drafts.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in
the Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
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"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 5.1(a).
"Benefited Lender" shall have the meaning assigned thereto in Section
5.7.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Chicago, Illinois, Charlotte, North Carolina and New York, New
York, are open for the conduct of substantially all of their commercial lending
activities and on which interbank wire transfers can be made on the Fedwire
system, as applicable, and (b) with respect to all notices and determinations in
connection with, and payments of principal and interest on, any LIBOR Rate Loan,
any day (i) that is a Business Day described in clause (a) and that is also a
day for trading by and between banks in deposits for the applicable Permitted
Currency in the London interbank market and (ii) on which banks are open for the
conduct of their domestic and international banking business in the place where
the Administrative Agent or the Administrative Agent's Correspondent shall make
available Loans in such Permitted Currency.
"Canadian BA Borrowing" means the creation and discounting of
Acceptances by the Alternative Currency Lender in accordance with Section 2.5.
"Canadian Base Rate" means the rate of interest announced from time to
time by the Alternative Currency Lender as its prime rate for overnight loans in
Canadian Dollars or, if the Alternative Currency Lender ceases to announce a
rate so designated, any similar successor rate designated by the Alternative
Currency Lender. The Canadian Base Rate is not necessarily the most favored rate
of the Alternative Currency Lender and the Alternative Currency Lender may lend
to its customers at rates that are at, above or below the Canadian Base Rate.
"Canadian Base Rate Loan" means any Alternative Currency Loan which
bears interest at a rate determined by reference to the Canadian Base Rate.
"Canadian Borrower" means G&K Services Canada Inc., an Ontario
corporation, in its capacity as borrower hereunder.
"Canadian Business Day" means any day other than a Saturday or Sunday
on which Canadian banks are open for business in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
"Calculation Date" shall have the meaning assigned thereto in Section
5.1(c).
"Canadian Dollar" or "C$" means, at any time of determination, the then
official currency of Canada.
"Canadian Interest Period" means, relative to any Acceptance, a period
of 30, 60, 90 or 180 days after the date of issuance, rollover or conversion, as
the case may be, as the Domestic Borrower, on behalf of itself or the Canadian
Borrower, may select in its relevant notice pursuant to Section 2.4 or Section
5.2; provided, however, that:
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(a) no more than four (4) different Canadian Interest Periods may be
outstanding at any one time;
(b) if a Canadian Interest Period would otherwise end on a day which is
not a Canadian Business Day, such Canadian Interest Period shall end on the next
following Canadian Business Day (unless such next following Canadian Business
Day is the first Canadian Business Day of a month, in which case such Canadian
Interest Period shall end on the next preceding Canadian Business Day); and
(c) no Canadian Interest Period may end later than the Revolving Credit
Maturity Date.
"Canadian Outstandings" means, as of any date of determination, the
aggregate principal amount of all outstanding Alternative Currency Loans
(including, without limitation, the Acceptance Amount).
"Canadian Subsidiary" means any Subsidiary of the Domestic Borrower
organized under the laws of Canada.
"Canadian Subsidiary Guaranty Agreement" means the unconditional
guaranty agreement of even date executed with respect to the Obligations of the
Canadian Borrower by each Material Canadian Subsidiary in favor of the
Administrative Agent, for the benefit of the Agents and the Lenders,
substantially in the form of Exhibit H-2, as amended, restated, supplemented or
otherwise modified from time to time.
"Capital Asset" means, with respect to the Domestic Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Domestic
Borrower and its Subsidiaries.
"Capital Expenditures" means, with respect to the Domestic Borrower and
its Subsidiaries for any period, the aggregate cost of all Capital Assets
acquired by the Domestic Borrower and its Subsidiaries during such period, as
determined in accordance with GAAP; provided, that for the purposes of
determining Capital Expenditures for any period during which an acquisition
permitted hereunder is consummated, Capital Expenditures shall be adjusted to
give effect to the consummation of such acquisition on a pro forma basis in
accordance with GAAP, as if such acquisition occurred on the first day of such
period, such adjustments to be calculated in a manner reasonably satisfactory to
the Agents (with respect to any acquisition that does not require the consent of
the Required Lenders pursuant to Section 11.3(c)) and in a manner reasonably
satisfactory to the Agents and the Required Lenders (with respect to any
acquisition that requires the consent of the Agents and the Required Lenders
pursuant to Section 11.3(c)).
"Capital Lease" means, with respect to the Domestic Borrower and its
Subsidiaries, any lease of any property that should, in accordance with GAAP, be
classified and accounted for as a capital lease on a Consolidated balance sheet
of the Domestic Borrower and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
13.1(i).
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"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 6.2 shall be satisfied or
waived in all respects in a manner acceptable to the Agents, each in their sole
discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Commitment" means, as to any Lender, the sum of such Lender's
Revolving Credit Commitment and Term Loan Commitment as set forth opposite such
Lender's name on Schedule 1.1(a) hereto, as such Commitment may be reduced or
otherwise modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Fee Rate" shall have the meaning assigned thereto in
Section 5.3(a).
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Domestic Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Credit Facility" means, collectively, the Revolving Credit Facility,
the Term Loan Facility, the Swingline Facility, the Alternative Currency
Facility, and the L/C Facility.
"Debt" means, with respect to the Domestic Borrower and its
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including, but not limited to, obligations
evidenced by bonds, debentures, notes or other similar instruments of any such
Person, (b) all obligations to pay the deferred purchase price of property or
services of any such Person (including, without limitation, all obligations
under non-competition agreements), except trade payables arising in the ordinary
course of business not more than ninety (90) days past due, (c) all obligations
of any such Person as lessee under Capital Leases, (d) all Debt of any other
Person to the extent secured by a Lien on any asset of any such Person, (e) all
Guaranty Obligations of any such Person for the Debt of any other Person, (f)
all obligations, contingent or otherwise, of any such Person relative to the
face amount of letters of credit, whether or not drawn, including without
limitation any Reimbursement Obligation, and banker's acceptances issued for the
account of any such Person, (g) all obligations of any such Person to redeem,
repurchase, exchange, defease or otherwise make payments in respect of capital
stock or other securities or partnership interests of such Person, (h) all net
payment obligations incurred by any such Person pursuant to Hedging Agreements,
(i) all outstanding payment obligations with respect to Synthetic Leases and (j)
the outstanding attributed principal amount under any asset securitization
program to the extent that there is recourse to the Domestic Borrower or any of
its Subsidiaries.
"Default" means any of the events specified in Section 13.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Discount" means the bid rate established by the Alternative Currency
Lender for the sale of its banker's acceptances in an amount and bearing a
maturity approximately equal to a
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proposed Canadian BA Borrowing or a renewal or conversion of Acceptances at
approximately 10:00 a.m. (the time of the Administrative Agent's Correspondent),
on the date of such proposed Canadian BA Borrowing, renewal or conversion of
Acceptances, which bid rate shall be conclusive and binding absent manifest
error.
"Disputes" shall have the meaning set forth in Section 15.6.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or continued
(or to be made or continued) in Dollars, the principal amount thereof and (b)
with respect to each Alternative Currency Loan, the amount of Dollars which is
equivalent to the principal amount of such Alternative Currency Loan calculated
on the basis of the arithmetic mean of the buy and sell spot rates of exchange
determined by the Administrative Agent at approximately 11:00 a.m. (London time)
on the date on or as of which such amount is to be determined. When used with
respect to any other sum expressed in an Alternative Currency, "Dollar Amount"
shall mean the amount of Dollars which is equivalent to the amount so expressed
in such Alternative Currency calculated on the basis of the arithmetic mean of
the buy and sell spot rates of exchange determined by the Administrative Agent
to be available to it at the relevant time.
"Domestic Borrower" means G&K Services, Inc., a Minnesota corporation,
in its capacity as borrower (and, as applicable, as guarantor) hereunder.
"Domestic Borrower Guaranty Agreement" means the unconditional guaranty
of the Obligations by the Domestic Borrower under Article XII in favor of the
Administrative Agent, for the benefit of the Agents and the Lenders.
"Domestic Subsidiary" means any Subsidiary of the Domestic Borrower
organized under the laws of any state of the United States or the District of
Columbia.
"Domestic Subsidiary Guaranty Agreement" means the unconditional
guaranty agreement of even date executed with respect to the Obligations of the
Borrowers by each Material Domestic Subsidiary in favor of the Administrative
Agent, for the benefit of the Agents and the Lenders, substantially in the form
of Exhibit H-1, as amended, restated, supplemented or otherwise modified from
time to time.
"Draft" means a draft of the Domestic Borrower, on behalf of itself or
the Canadian Borrower, as applicable, denominated in Canadian Dollars, duly
executed and delivered to the Alternative Currency Lender in accordance with
Section 2.5(a).
"EBITDA" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Domestic Borrower and its
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
income and franchise taxes, (ii) Interest Expense, and (iii) amortization,
depreciation and other non-cash charges less (c) interest income and any
extraordinary gains;
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provided, that for the purposes of determining EBITDA for any period during
which an acquisition permitted hereunder is consummated, EBITDA shall be
adjusted to give effect to the consummation of such acquisition on a pro forma
basis in accordance with GAAP, as if such acquisition occurred on the first day
of such period, such adjustments to be calculated in a manner reasonably
satisfactory to the Agents (with respect to any acquisition that does not
require the consent of the Required Lenders pursuant to Section 11.3(c)) and in
a manner reasonably satisfactory to the Agents and the Required Lenders (with
respect to any acquisition that requires the consent of the Agents and the
Required Lenders pursuant to Section 11.3(c)).
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Domestic Borrower or any ERISA Affiliate or (b) has at any time within the
preceding six (6) years been maintained for the employees of the Domestic
Borrower or any current or former ERISA Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Domestic
Borrower is treated as a single employer within the meaning of Section 414(b),
(c), (m) or (o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day with respect to any
LIBOR Rate Loan denominated in Dollars, the percentage (expressed as a decimal
and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in
effect for such day as prescribed by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement (including without
limitation any basic, supplemental or emergency reserves) in respect of
eurocurrency liabilities or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
8
"Event of Default" means any of the events specified in Section 13.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excess Proceeds" shall have the meaning assigned thereto in Section
2.6(d).
"Existing Facility" means the Credit Agreement dated as of July 14,
1997 among the Borrowers, as borrowers, the lenders party thereto and the agents
party thereto, as amended as of the date hereof.
"Existing Letters of Credit" means all letters of credit identified on
Schedule 1.1(c).
"Extensions of Credit" means, as to any Lender at any time, (a) an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender's Revolving
Credit Commitment Percentage of the L/C Obligations then outstanding, (iii) such
Lender's Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding, (iv) such Lender's Revolving Credit Commitment Percentage of the
Alternative Currency Loans then outstanding and (v) the aggregate principal
amount of all Term Loans made by such Lender then outstanding, or (b) the making
of any Loan or participation in any Letter of Credit by such Lender, as the
context requires.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three (3) Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Fiscal Year" means the fiscal year of the Domestic Borrower and its
Subsidiaries ending on the Saturday closest to June 30 (e.g., ending June 28,
2003, July 3, 2004, July 2, 2005, July 1, 2006 and June 30, 2007, etc).
"Fixed Charges" means, for any period, the sum of the following
determined on a Consolidated basis, without duplication, for the Domestic
Borrower and its Subsidiaries in accordance with GAAP: (a) Interest Expense, (b)
scheduled principal payments with respect to Debt (excluding the principal
payments related to the Existing Facility) and (c) cash taxes; provided, that
for the purposes of determining Fixed Charges for any period during which an
acquisition permitted hereunder is consummated, Fixed Charges shall be adjusted
to give effect to the consummation of such acquisition on a pro forma basis in
accordance with GAAP, as if such acquisition occurred on the first day of such
period, such adjustments to be calculated in a manner reasonably satisfactory to
the Agents (with respect to any acquisition that does not require the consent of
the Required Lenders pursuant to Section 11.3(c)) and in a manner reasonably
9
satisfactory to the Agents and the Required Lenders (with respect to any
acquisition that requires the consent of the Agents and the Required Lenders
pursuant to Section 11.3(c)).
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Domestic Borrower and its Subsidiaries throughout the period
indicated and (subject to Section 15.9) consistent with the prior financial
practice of the Domestic Borrower and its Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranteed Obligations" shall have the meaning assigned thereto in
Section 12.1; provided that for the purposes of each Subsidiary Guaranty
Agreement, "Guaranteed Obligations" shall have the meaning assigned thereto in
such Subsidiary Guaranty Agreement.
"Guaranty Obligation" means, with respect to the Domestic Borrower and
its Subsidiaries, without duplication, any obligation, contingent or otherwise,
of any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated
10
biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic
gas.
"Hedging Agreement" means any agreement with respect to any Interest
Rate Contract, forward rate agreement, commodity swap, forward foreign exchange
agreement, currency swap agreement, cross-currency rate swap agreement, currency
option agreement or other agreement or arrangement designed to alter the risks
of any Person arising from fluctuations in interest rates, currency values or
commodity prices, all as amended, restated, supplemented or otherwise modified
from time to time.
"Hedging Obligations" shall have the meaning assigned thereto in the
definition of "Obligations".
"Insurance and Condemnation Proceeds" shall have the meaning assigned
thereto in Section 4.4(b)(iv).
"Interest Expense" means, with respect to the Domestic Borrower and its
Subsidiaries for any period, the gross interest expense (including, without
limitation, interest expense attributable to Capital Leases and all net payment
obligations pursuant to Hedging Agreements) of the Domestic Borrower and its
Subsidiaries, all determined for such period on a Consolidated basis, without
duplication, in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
5.1(b).
"Interest Rate Contract" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"ISP98" means the International Standby Practices (1998 Revision,
effective January 1, 1999), International Chamber of Commerce Publication No.
590.
"Issuing Lender" means (a) with respect to Letters of Credit issued
hereunder, Bank One, in its capacity as issuer thereof, or any successor thereto
and (b) with respect to the Existing Letters of Credit, the Lender issuing such
Existing Letter of Credit.
"L/C Commitment" means the lesser of (a) Twenty-Five Million Dollars
($25,000,000) and (b) the Revolving Credit Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
11
"L/C Participants" means the collective reference to all of the Lenders
other than the Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender, the Swingline Lender and the
Alternative Currency Lender unless the context otherwise requires) set forth on
the signature pages hereto and each Person that hereafter becomes a party to
this Agreement as a Lender pursuant to Section 15.10.
"Lender Addition and Acknowledgment Agreement" means each agreement
executed pursuant to Section 2.9 by the Borrowers and an existing Lender or a
Person not theretofore a Lender, as applicable, and acknowledged by the Agents
and each Material Subsidiary, providing for an increase in the Revolving Credit
Commitment hereunder, acknowledging that any Person not theretofore a Lender
shall be a party hereto and have the rights and obligations of a Lender
hereunder, and setting forth the Revolving Credit Commitment of each Lender.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable, of the Extensions of Credit.
"Letters of Credit" means the collective reference to letters of credit
issued pursuant to Section 3.1 and the Existing Letters of Credit.
"Leverage Ratio" means the ratio calculated pursuant to Section 10.1.
"LIBOR" means, with respect to a LIBOR Rate Loan for the relevant
Interest Period, the applicable British Bankers' Association LIBOR rate for
deposits in the applicable Permitted Currency as reported by any generally
recognized financial information service as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period; provided that, if no such British
Bankers' Association LIBOR rate is available, the "LIBOR" for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which Bank One or one of its Affiliate banks offers to place
deposits in the applicable Permitted Currency with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, in the approximate
amount the relevant LIBOR Rate Loan and having a maturity equal to such Interest
Period. Each calculation by the Administrative Agent of LIBOR shall be
conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means, with respect to a LIBOR Rate Loan for the relevant
Interest Period, the quotient of (a) LIBOR applicable to such Interest Period,
divided by (b) one (1) minus the Reserve Requirement (expressed as a decimal)
applicable to such Interest Period, if any. Each calculation by the
Administrative Agent of the LIBOR Rate shall be conclusive and binding for all
purposes, absent manifest error.
12
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 5.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold
mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance
of any kind in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, Capital Lease or other title retention agreement relating to
such asset.
"Loan Documents" means, collectively, this Agreement, any Notes, the
Acceptances (as and when created), the Subsidiary Guaranty Agreements and each
other document, instrument, certificate and agreement executed and delivered by
the Domestic Borrower or any Subsidiary thereof in connection with this
Agreement or otherwise referred to herein or contemplated hereby (excluding any
Hedging Agreement), all as may be amended, restated, supplemented or otherwise
modified from time to time.
"Loans" means the collective reference to the Revolving Credit Loans,
the Term Loans, the Swingline Loans and the Alternative Currency Loans and
"Loan" means any of such Loans.
"Material Adverse Effect" means, with respect to the Domestic Borrower
and its Subsidiaries taken as a whole, a material adverse effect on the
properties, business, prospects, operations or condition (financial or
otherwise) of the Domestic Borrower and its Subsidiaries, taken as a whole, or
the ability of any such Persons to perform their obligations under the Loan
Documents or Material Contracts.
"Material Contract" means (a) any contract or other agreement, written
or oral, of the Domestic Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $15,000,000 per
annum, or (b) any other contract or agreement, written or oral, of the Domestic
Borrower or any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
"Material Canadian Subsidiary" means any direct or indirect Canadian
Subsidiary of the Domestic Borrower that is a Material Subsidiary.
"Material Domestic Subsidiary" means any direct or indirect Domestic
Subsidiary of the Domestic Borrower that is a Material Subsidiary.
"Material Subsidiary" means any Subsidiary of the Domestic Borrower
that owns assets with a book value in excess of $100,000.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Domestic Borrower or any ERISA Affiliate is
making, or is accruing an obligation to make, or has accrued an obligation to
make, contributions within the preceding six (6) years.
13
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the Domestic
Borrower or any of its Subsidiaries from such sale less the sum of (i) all
income taxes and other taxes assessed by a Governmental Authority as a result of
such sale and any other fees and expenses incurred in connection therewith and
(ii) the principal amount of, premium, if any, and interest on any Debt secured
by a Lien on the asset (or a portion thereof) sold, which Debt is required to be
repaid in connection with such sale, (b) with respect to any offering of capital
stock or issuance of Debt, the gross cash proceeds received by the Domestic
Borrower or any of its Subsidiaries therefrom less all legal, underwriting and
other fees and expenses incurred in connection therewith and (c) with respect to
any payment under an insurance policy or in connection with a condemnation
proceeding, the amount of cash proceeds received by the Domestic Borrower or its
Subsidiaries from an insurance company or Governmental Authority, as applicable,
net of all expenses of collection.
"Net Income" means, with respect to the Domestic Borrower and its
Subsidiaries, for any period of determination, the net income (or loss) of the
Domestic Borrower and its Subsidiaries for such period, determined on a
Consolidated basis in accordance with GAAP; provided that there shall be
excluded from Net Income (a) the net income (or loss) of any Person (other than
a Subsidiary which shall be subject to clause (c) below), in which the Domestic
Borrower or any of its Subsidiaries has a joint interest with a third party,
except to the extent such net income is actually paid to the Domestic Borrower
or any of its Subsidiaries by dividend or other distribution during such period,
(b) the net income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary of such Person or is merged into or consolidated with such Person
or any of its Subsidiaries or that Person's assets are acquired by such Person
or any of its Subsidiaries except to the extent included pursuant to the
foregoing clause (a), (c) the net income (if positive) of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary to the Domestic Borrower or any of its Subsidiaries of such net
income (i) is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute rule or
governmental regulation applicable to such Subsidiary or (ii) would be subject
to any taxes payable on such dividends or distributions.
"Net Worth" means, with respect to the Domestic Borrower and its
Subsidiaries as of any date of determination, shareholders' equity of the
Domestic Borrower and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP.
"Notes" means the collective reference to the Revolving Credit Notes,
the Term Notes, the Alternative Currency Note and the Swingline Note, in each
case if applicable, and "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.4(b).
"Notice of Borrowing" shall have the meaning assigned thereto in
Section 2.4(a).
14
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 5.2.
"Notice of Conversion to Acceptances" shall have the meaning assigned
thereto in Section 5.2(b).
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.6(c).
"Notice to Renew Acceptances" shall have the meaning assigned thereto
in Section 5.2(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) the obligations of the Domestic Borrower pursuant to
Article XI, (d) all existing or future payment and other obligations owing by
any Borrower under any Hedging Agreement (which such Hedging Agreement is
permitted hereunder) with any Person that is a Lender hereunder or an Affiliate
of a Lender hereunder at the time such Hedging Agreement is executed (all such
obligations with respect to any such Hedging Agreement, "Hedging Obligations")
and (e) all other fees and commissions (including attorneys' fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Domestic Borrower or any of its Subsidiaries
to the Lenders or the Agents, in each case under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents of
every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 8.2.
"Operating Lease" shall mean, as to any Person as determined in
accordance with GAAP, any lease of property (whether real, personal or mixed) by
such Person as lessee which is not a Capital Lease.
"Other Taxes" shall have the meaning assigned thereto in Section
5.14(b).
"Participant" shall have the meaning assigned thereto in Section
14.10(c)(i).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Domestic Borrower or any ERISA Affiliates or (b) has at any time within the
preceding six (6) years been maintained for the employees of the Domestic
Borrower or any of its current or former ERISA Affiliates.
"Permitted Acquisition Value" means the aggregate amount of the
purchase price consisting of cash paid or to be paid, including, without
limitation, any earn-outs and deferred
15
payments (to the extent a fixed and determinable obligation is incurred), and
assumed debt, net of the applicable acquiree's cash (including cash equivalents)
balance as shown on the most recent financial statements of the acquiree
delivered in connection with the applicable permitted acquisition), as set forth
in the applicable stock or asset purchase documents executed by the Domestic
Borrower or any Subsidiary thereof in order to consummate the applicable
permitted acquisition.
"Permitted Currency" means Dollars or any Alternative Currency, or each
such currency, as the context requires.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Pricing Differential" shall have the meaning assigned thereto in
Section 2.5(h).
"Prime Rate" means, at any time, a rate per annum equal to the prime
rate of interest announced from time to time by Bank One or its parent (which is
not necessarily the lowest rate charged to any customer), changing when and as
said prime rate changes.
"Purchaser" shall have the meaning assigned thereto in Section
14.10(b)(i).
"Quoted Swingline Rate" means a rate to be agreed upon from time to
time by the Swingline Lender and the Domestic Borrower.
"Quoted Swingline Rate Loan" means any Swingline Loan bearing interest
at a rate based upon the Quoted Swingline Rate as provided in Section 5.1(a).
"Register" shall have the meaning assigned thereto in Section
15.10(b)(iv).
"Reimbursement Obligation" means the obligation of the Domestic
Borrower to reimburse the Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
"Replaced Lender" shall have the meaning assigned thereto in Section
5.15(c).
"Replacement Lender" shall have the meaning assigned thereto in Section
5.15(c).
"Required Lenders" means, at any date, (a) any combination of Lenders
holding in the aggregate at least fifty-one percent (51%) of the outstanding
Extensions of Credit plus the aggregate unused Revolving Credit Commitment at
such time or, (b) if the Credit Facility has been terminated pursuant to Section
13.2, any combination of Lenders holding at least fifty-one percent (51%) of the
aggregate Extensions of Credit.
16
"Responsible Officer" means any of the following: the chief executive
officer or chief financial officer of the Domestic Borrower or any other officer
of the Domestic Borrower reasonably acceptable to the Agents.
"Revolving Credit Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the Domestic
Borrower (including, without limitation, to participate in Swingline Loans made
to the Domestic Borrower and Alternative Currency Loans made to the Borrowers)
and issue or participate in Letters of Credit issued for the account of the
Domestic Borrower hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name on
Schedule 1.1(a) hereto as such amount may be increased, reduced or modified at
any time or from time to time pursuant to the terms hereof and (b) as to all
Lenders, the aggregate commitment of all Lenders to make Revolving Credit Loans,
as such amount may be reduced at any time or from time to time pursuant to the
terms hereof. The Revolving Credit Commitment of all Lenders on the Closing Date
shall be Two Hundred Fifty Million Dollars ($250,000,000).
"Revolving Credit Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Revolving Credit Commitments of all Lenders.
"Revolving Credit Facility" means the revolving credit, alternative
currency and swingline facility established pursuant to Article II.
"Revolving Credit Loans" means any revolving credit loan denominated in
Dollars made to any Borrower pursuant to Section 2.1, and all such revolving
credit loans collectively as the context requires.
"Revolving Credit Maturity Date" means the earliest of the dates
referred to in Section 2.8.
"Revolving Credit Note" means a Revolving Credit Note made by the
Domestic Borrower payable to the order of a Lender, substantially in the form of
Exhibit A-1 hereto, evidencing such Lender's Revolving Credit Loans, and any
amendments, supplements and modifications thereto, any substitutes therefor, and
any replacements, restatements, renewals or extensions thereof, in whole or in
part; "Revolving Credit Notes" means the collective reference to all such
Revolving Credit Notes.
"Senior Debt" means the sum of Total Debt minus Subordinated Debt.
"Solvent" means, as to the Domestic Borrower and its Subsidiaries on a
particular date, that any such Person (a) has capital sufficient to carry on its
business and transactions and all business and transactions in which it is about
to engage and is able to pay its debts as they mature, (b) owns property having
a value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
17
"Subordinated Debt" means the collective reference to any Debt of the
Domestic Borrower or any of its Subsidiaries subordinated in right and time of
payment to the Obligations and containing such other terms and conditions, in
each case as are reasonably satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation, partnership,
limited liability company or other entity shall have or might have voting power
by reason of the happening of any contingency). Unless otherwise qualified
references to "Subsidiary" or "Subsidiaries" herein shall refer to those of the
Domestic Borrower and shall include, without limitation, the Canadian Borrower
and its Subsidiaries.
"Subsidiary Guaranty Agreements" means, collectively, the Domestic
Subsidiary Guaranty Agreement and the Canadian Subsidiary Guaranty Agreement;
"Subsidiary Guaranty Agreement" means any of such Subsidiary Guaranty
Agreements.
"Swingline Commitment" means the lesser of (a) Twenty Million Dollars
($20,000,000) and (b) the Revolving Credit Commitment.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.3.
"Swingline Lender" means Bank One in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Domestic Borrower pursuant to Section 2.3, and all such swingline loans
collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Domestic Borrower
payable to the order of the Swingline Lender, substantially in the form of
Exhibit A-2 hereto, evidencing the Swingline Loans, and any amendments,
supplements and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of Bank One as Administrative Agent in accordance with Section 14.12
and (b) the Revolving Credit Maturity Date.
"Syndication Agent" means Wachovia, in its capacity as Syndication
Agent hereunder, and any successor thereto appointed pursuant to Section 14.12.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.
18
"Taxes" shall have the meaning assigned thereto in Section 5.14(a).
"Term Loans" shall mean the term loans to be made to the Domestic
Borrower by the Lenders pursuant to Section 4.1.
"Term Loan Commitment" means (a) as to any Lender, the obligation of
such Lender to make the Term Loans to the account of the Domestic Borrower
hereunder in an aggregate principal amount not to exceed the amount set forth
opposite such Lender's name on Schedule 1.1(a) hereto, as such amount may be
reduced or otherwise modified at any time or from time to time pursuant to the
terms hereof and (b) as to all Lenders, the aggregate commitment to make Term
Loans. The Term Loan Commitment of all Lenders as of the Closing Date shall be
Seventy-Five Million Dollars ($75,000,000).
"Term Loan Facility" shall mean the term loan facility established
pursuant to Article IV.
"Term Loan Maturity Date" means the first to occur of (a) July 2, 2007
or (b) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to Section 13.2(a).
"Term Loan Percentage" means, as to any Lender, (a) prior to making the
Term Loans, the ratio of (i) the Term Loan Commitment of such Lender to (ii) the
Term Loan Commitments of all Lenders and (b) after the Term Loans are made, the
ratio of (i) the outstanding principal balance of the Term Loan of such Lender
to (ii) the aggregate outstanding principal balance of the Term Loans of all
Lenders.
"Term Note" means a Term Note made by the Domestic Borrower payable to
the order of a Lender, substantially in the form of Exhibit A-3 hereto,
evidencing such Lender's Term Loans, and any amendments, modifications and
supplements thereto, any substitute therefor, and any replacement, restatements,
renewals or extensions thereof, in whole or in part; "Term Notes" means the
collective reference to all such Term Notes.
"Termination Event" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the
Domestic Borrower or any ERISA Affiliate from a Pension Plan during a plan year
in which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, if the plan assets are not sufficient to pay all plan liabilities under
Section 4063 of ERISA, (c) the termination of a Pension Plan, the filing of a
notice of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination, under Section 4041 of ERISA, if the plan assets are
not sufficient to pay all plan liabilities, or (d) the institution of
proceedings to terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC, or (e) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan, or (f) the imposition
of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g)
the partial or complete withdrawal of the Domestic Borrower of any ERISA
Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such
plan, or (h) any event or condition
19
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Debt" means, as of any date of determination with respect to the
Domestic Borrower and its Subsidiaries on a Consolidated basis without
duplication, the sum of all Debt of the Domestic Borrower and its Subsidiaries.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994 International
Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina, as amended or modified from time to time.
"United States" means the United States of America.
"Wachovia" means Wachovia Bank, National Association, a national
banking association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by the Domestic Borrower and/or one
or more of its Wholly-Owned Subsidiaries (except for directors' qualifying
shares or other shares required by Applicable Law to be owned by a Person other
than the Domestic Borrower).
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular article, section, subsection, Schedule or Exhibit is a
reference to that article, section, subsection, Schedule or Exhibit of this
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Chicago time"
shall refer to the applicable time of day in Chicago, Illinois.
SECTION 1.3. Other Definitions and Provisions
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
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ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make Revolving Credit Loans in
Dollars to the Domestic Borrower from time to time from the Closing Date
through, but not including, the Revolving Credit Maturity Date as requested by
the Domestic Borrower in accordance with the terms of Section 2.4; provided that
based upon the Dollar Amount of all outstanding Revolving Credit Loans,
Swingline Loans, L/C Obligations and Canadian Outstandings, (a) the aggregate
principal amount of all outstanding Revolving Credit Loans (after giving effect
to any amount requested) shall not exceed the Revolving Credit Commitment less
the sum of all outstanding Swingline Loans, L/C Obligations and Canadian
Outstandings and (b) the aggregate principal amount of all outstanding Revolving
Credit Loans from any Lender to the Domestic Borrower shall not at any time
exceed such Lender's Revolving Credit Commitment less such Lender's Revolving
Credit Commitment Percentage of the sum of all outstanding Swingline Loans, L/C
Obligations and the Canadian Outstandings; provided further that Revolving
Credit Loans may be made to the Canadian Borrower as required, and only as
required, by Sections 2.2, 2.5, 3.5 and 5.11. Each Revolving Credit Loan by a
Lender shall be in a principal amount equal to such Lender's Revolving Credit
Commitment Percentage of the aggregate principal amount of Revolving Credit
Loans requested on such occasion. Subject to the terms and conditions hereof,
the Domestic Borrower may borrow, repay and reborrow Revolving Credit Loans
hereunder until the Revolving Credit Maturity Date.
SECTION 2.2 Alternative Currency Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth
herein, the Alternative Currency Lender agrees to make Alternative Currency
Loans to the applicable Borrower from time to time from the Closing Date through
the Revolving Credit Maturity Date as requested by the applicable Borrower in
accordance with the terms of Section 2.4; provided that, based upon the Dollar
Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C
Obligations and Canadian Outstandings, the aggregate principal amount of all
Canadian Outstandings (after giving effect to any amount requested) shall not
exceed the lesser of (i) the Revolving Credit Commitment less the sum of the
aggregate principal amount of all outstanding Revolving Credit Loans less the
sum of the aggregate principal amount of all outstanding Swingline Loans less
the sum of the aggregate principal amount of all outstanding L/C Obligations and
(ii) the Alternative Currency Commitment. Subject to the terms and conditions
hereof, the Borrowers may borrow, repay and reborrow Alternative Currency Loans
hereunder until the Revolving Credit Maturity Date.
(b) Refunding of Alternative Currency Loans.
(i) Upon the occurrence and during the continuance of an Event
of Default, each Alternative Currency Loan may, at the discretion of the
Alternative Currency Lender, be
21
converted immediately to a Base Rate Loan funded in Dollars by the Lenders in an
amount equal to the Dollar Amount of such Alternative Currency Loan; provided
that the Borrowers shall pay to the Alternative Currency Lender any and all
costs, fees and other expenses incurred by the Alternative Currency Lender in
effecting such conversion. Such Base Rate Loan shall thereafter be reflected as
a Revolving Credit Loan of the Lenders on the books and records of the
Administrative Agent. Each Lender shall fund its respective Revolving Credit
Commitment Percentage of such Base Rate Loan as required to repay Alternative
Currency Loans outstanding to the Alternative Currency Lender upon such demand
by the Alternative Currency Lender in no event later than 2:00 p.m. (Chicago
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Revolving Credit Commitment Percentage of any
Base Rate Loan required to repay such Alternative Currency Loan shall be
affected by any other Lender's failure to fund its Revolving Credit Commitment
Percentage of such Base Rate Loan, nor shall any Lender's Revolving Credit
Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Revolving Credit Commitment Percentage of such Base Rate
Loan.
(ii) The Borrowers shall pay to the Alternative Currency
Lender, for the account of the Alternative Currency Lender, on demand the amount
of such Alternative Currency Loans to the extent that the Lenders fail to refund
in full the outstanding Alternative Currency Loans requested or required to be
refunded. In addition, the Borrowers hereby authorize the Administrative Agent
to charge any account maintained by any Borrower with the Alternative Currency
Lender (up to the amount available therein) in order to immediately pay the
Alternative Currency Lender the amount of such Alternative Currency Loans to the
extent amounts received from the Lenders are not sufficient to repay in full the
outstanding Alternative Currency Loans requested or required to be refunded. If
any portion of any such amount paid to the Alternative Currency Lender shall be
recovered by or on behalf of the Borrowers from the Alternative Currency Lender
in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Commitment
Percentages.
(iii) Each Lender acknowledges and agrees that its obligation
to refund Alternative Currency Loans in accordance with the terms of this
Section 2.2 is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article VI; provided, that if prior to the refunding of
any outstanding Alternative Currency Loans pursuant to this Section 2.2, one of
the events described in Section 13.1(j) or (k) shall have occurred, each Lender
will, on the date the applicable Revolving Credit Loan would have been made to
refund such Alternative Currency Loans, purchase an undivided participating
interest in such Alternative Currency Loans in an amount equal to its Revolving
Credit Commitment Percentage of the aggregate amount of such Alternative
Currency Loans. Each Lender will immediately transfer to the Administrative
Agent, for the account of the Alternative Currency Lender, in immediately
available funds in Dollars, the amount of its participation. Whenever, at any
time after the Alternative Currency Lender has received from any Lender such
Lender's participating interest in the refunded Alternative Currency Loans, the
Alternative Currency Lender receives any payment on account thereof, the
Alternative Currency Lender will distribute to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded).
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(iv) In the event that any Lender fails to make payment to the
Alternative Currency Lender of any amount due under this Section 2.2, the
Administrative Agent, on behalf of the Alternative Currency Lender, shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Alternative
Currency Lender receives such payment from such Lender or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason any
Lender fails to make payment to the Alternative Currency Lender of any amount
due under this Section 2.2, such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased from the
Alternative Currency Lender, without recourse or warranty, an undivided interest
and participation in the applicable Alternative Currency Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received.
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Domestic
Borrower from time to time from the Closing Date through, but not including, the
Swingline Termination Date; provided that (i) all Swingline Loans shall be
denominated in Dollars and (ii) based upon the Dollar Amount of all outstanding
Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian
Outstandings, the aggregate principal amount of all outstanding Swingline Loans
(after giving effect to any amount requested), shall not exceed the lesser of
(A) the Revolving Credit Commitment less the sum of all outstanding Revolving
Credit Loans, L/C Obligations and Canadian Outstandings and (B) the Swingline
Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand
by the Swingline Lender. Such refundings shall be made by the Lenders in
accordance with their respective Revolving Credit Commitment Percentages and
shall thereafter be reflected as Revolving Credit Loans of the Lenders on the
books and records of the Administrative Agent. Each Lender shall fund its
respective Revolving Credit Commitment Percentage of Revolving Credit Loans as
required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 12:00 noon (Chicago
time) on the day such demand is made. No Lender's obligation to fund its
respective Revolving Credit Commitment Percentage of a Swingline Loan shall be
affected by any other Lender's failure to fund its Revolving Credit Commitment
Percentage of a Swingline Loan, nor shall any Lender's Revolving Credit
Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Domestic Borrower shall pay to the Swingline Lender
on demand, but in any case, before the seventh (7th) Business Day after the date
such Swingline Loan was made, the amount of such Swingline Loans to the extent
amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. In addition,
23
the Domestic Borrower hereby authorizes the Administrative Agent to charge any
account maintained by the Domestic Borrower with the Swingline Lender (up to the
amount available therein) in order to immediately pay the Swingline Lender the
amount of such Swingline Loans to the extent amounts received from the Lenders
are not sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. If any portion of any such amount paid to the Swingline
Lender shall be recovered by or on behalf of the Domestic Borrower from the
Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered
shall be ratably shared among all the Lenders in accordance with their
respective Revolving Credit Commitment Percentages (unless the amounts so
recovered by or on behalf of the Domestic Borrower pertain to a Swingline Loan
extended after the occurrence and during the continuance of an Event of Default
of which the Administrative Agent has received notice in the manner required
pursuant to Section 14.9 and which such Event of Default has not been waived by
the Required Lenders or the Lenders, as applicable).
(iii) Each Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this Section 2.3 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Article VI. Further, each Lender agrees and acknowledges that if
prior to the refunding of any outstanding Swingline Loans pursuant to this
Section 2.3, one of the events described in Section 13.1(j) or (k) shall have
occurred, each Lender will, on the date the applicable Revolving Credit Loan
would have been made, purchase an undivided participating interest in the
Swingline Loan to be refunded in an amount equal to its Revolving Credit
Commitment Percentage of the aggregate amount of such Swingline Loan. Each
Lender will immediately transfer to the Swingline Lender, in immediately
available funds, the amount of its participation. Whenever, at any time after
the Swingline Lender has received from any Lender such Lender's participating
interest in a Swingline Loan, the Swingline Lender receives any payment on
account thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded).
(iv) In the event that any Lender fails to make payment to the
Swingline Lender of any amount due under this Section 2.3, the Administrative
Agent, on behalf of the Swingline Lender, shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Swingline Lender receives such payment from
such Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the Swingline
Lender of any amount due under this Section 2.3, such Lender shall be deemed, at
the option of the Administrative Agent, to have unconditionally and irrevocably
purchased from the Swingline Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swingline Loan, and such interest
and participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is received.
24
SECTION 2.4 Procedure for Advances of Revolving Credit Loans,
Alternative Currency Loans and Swingline Loans.
(a) Requests for Borrowing. The Domestic Borrower, on behalf of itself
or the Canadian Borrower, as applicable, shall give the Administrative Agent
irrevocable prior written notice in the form attached hereto as Exhibit B (a
"Notice of Borrowing") not later than (i) 10:00 a.m. (Chicago time) on the same
Business Day as each Base Rate Loan (other than Swingline Loans) and each Quoted
Swingline Rate Loan, (ii) 12:00 noon (Chicago time) on the same Business Day as
each Swingline Loan (other than Quoted Swingline Rate Loans), (iii) 10:00 a.m.
(Chicago time) at least three (3) Business Days before each LIBOR Rate Loan,
(iv) 12:00 noon (the time of the Administrative Agent's Correspondent) at least
three (3) Canadian Business Days before each Canadian BA Borrowing, of its
intention to borrow, and (v) 12:00 noon (the time of the Administrative Agent's
Correspondent) at least one (1) Canadian Business Day before each Canadian Base
Rate Loan, of its intention to borrow, specifying:
(A) the date of such borrowing, which shall be (1) a Business
Day for Revolving Credit Loans and Swingline Loans or (2) a Canadian Business
Day for Alternative Currency Loans,
(B) whether such Loan is to be a Revolving Credit Loan, an
Alternative Currency Loan or a Swingline Loan,
(C) if such Loan is a Revolving Credit Loan, whether such
Revolving Credit Loan shall be a LIBOR Rate Loan or a Base Rate Loan,
(D) if such Loan is a Swingline Loan, whether such Swingline
Loan shall be a Quoted Swingline Rate Loan or a Base Rate Loan,
(E) if such Loan is an Alternative Currency Loan, whether such
Alternative Currency Loan shall be a Canadian Base Rate Loan or a Canadian BA
Borrowing,
(F) the amount of such borrowing, which shall be in an amount
equal to the amount of the Revolving Credit Commitment or the Alternative
Currency Commitment, as applicable, then available to the applicable Borrower,
or if less, (1) with respect to Base Rate Loans (other than Swingline Loans), in
an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in
excess thereof, (2) with respect to LIBOR Rate Loans, in an aggregate principal
amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof, (3)
with respect to Canadian Base Rate Loans, in an aggregate principal amount of
C$500,000 or a whole multiple of C$100,000 in excess thereof, (4) with respect
to Canadian BA Borrowings, in an aggregate principal amount of C$1,500,000 or a
whole multiple of C$500,000 in excess thereof and (5) with respect to Swingline
Loans, in an aggregate principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof,
(G) in the case of a LIBOR Rate Loan, the duration of the
Interest Period applicable thereto, and
25
(H) in the case of a Canadian BA Borrowing, the date and
amount of Acceptances and the Canadian Interest Period applicable thereto,
A Notice of Borrowing received after the times set forth above for such
Revolving Credit Loan, Alternative Currency Loan or Swingline Loan shall be
deemed received on the next Business Day or Canadian Business Day, as
applicable. The Administrative Agent shall promptly notify the Lenders of each
Notice of Borrowing.
(b) Disbursement of Revolving Credit Loans and Swingline Loans. (i) Not
later than 12:00 noon (Chicago time) on the proposed borrowing date for any
Revolving Credit Loan, each Lender will make available to the Administrative
Agent, for the account of the Domestic Borrower, at the office of the
Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, such Lender's Revolving Credit Commitment Percentage of
the Revolving Credit Loan to be made on such borrowing date and (ii) not later
than 2:00 p.m. (Chicago time) on the proposed borrowing date for any Swingline
Loan, the Swingline Lender will make available to the Administrative Agent, for
the account of the Domestic Borrower, at the office of the Administrative Agent
in Dollars in funds immediately available to the Administrative Agent, the
Swingline Loan to be made on such borrowing date. The Domestic Borrower hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of each
borrowing requested pursuant to this Section 2.4 in immediately available funds
by crediting such proceeds to the deposit account of the Domestic Borrower at
the Administrative Agent identified in the most recent notice substantially in
the form of Exhibit C hereto (a "Notice of Account Designation") delivered by
the Domestic Borrower, on behalf of itself and the Canadian Borrower, to the
Administrative Agent or as may be otherwise agreed upon by the Domestic Borrower
and the Administrative Agent from time to time. Subject to Section 5.8, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.4 to
the extent that any Lender has not made available to the Administrative Agent
its Revolving Credit Commitment Percentage of such Revolving Credit Loan.
Revolving Credit Loans to be made for the purpose of refunding Swingline Loans
shall be made by the Lenders as provided in Section 2.3(b). Revolving Credit
Loans to be made for the purpose of refunding Alternative Currency Loans shall
be made by the Lenders as provided in Section 2.2(b).
(c) Disbursement of Alternative Currency Loans.
(i) Canadian Base Rate Loans. Not later than 12:00 noon (the
time of the Administrative Agent's Correspondent) on or before the
proposed borrowing date for any Canadian Base Rate Loan, the
Alternative Currency Lender will make available to the Administrative
Agent, for the account of the applicable Borrower, at the office of the
Administrative Agent's Correspondent in the requested Alternative
Currency in funds immediately available to the Administrative Agent,
the Canadian Base Rate Loan to be made on such borrowing date. The
Borrowers hereby irrevocably authorize the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this
Section 2.4 in immediately available funds by crediting such proceeds
to the deposit account of the applicable Borrower at the Administrative
Agent's Correspondent identified in the most recent Notice of Account
Designation delivered by the Domestic
26
Borrower, on behalf of itself the Canadian Borrower, to the
Administrative Agent or as may be otherwise agreed upon by the
Borrowers and the Administrative Agent from time to time.
(ii) Canadian BA Borrowings. Canadian BA Borrowings shall be
made pursuant to the terms of Section 2.5.
SECTION 2.5 Bankers' Acceptances. Subject to the terms and conditions
of this Agreement (including, without limitation, Section 2.2), Acceptances
shall be created, purchased and repaid in accordance with the following:
(a) Drafts. To enable the Alternative Currency Lender to extend
Canadian BA Borrowings in the manner specified in this Section 2.5, the Domestic
Borrower, on behalf of itself or the Canadian Borrower, as applicable, shall
supply the Alternative Currency Lender with such number of Drafts as the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable,
may reasonably request, duly endorsed and executed by the Domestic Borrower, on
behalf of itself or the Canadian Borrower, as applicable, by any one or more of
its officers. The Alternative Currency 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. The Alternative Currency Lender,
upon request of the Domestic Borrower, on behalf of itself or the Canadian
Borrower, as applicable, will promptly advise the Domestic Borrower of the
number and designations, if any, of the uncompleted Drafts then held by it. The
signatures of such officers may be mechanically reproduced in facsimile and
Drafts and Acceptances bearing such facsimile signatures shall be binding upon
the Domestic Borrower or the Canadian Borrower, as applicable, as if they had
been manually signed by such officers. Notwithstanding that any of the
individuals whose manual or facsimile signatures appear on any draft as one of
such officers may no longer hold office as of the date thereof or as of the date
of acceptance of a Draft by the Alternative Currency Lender or at any time
hereafter, any Draft so signed shall be valid and binding on the Domestic
Borrower or the Canadian Borrower, as applicable,.
(b) Form of Drafts. Drafts tendered by the Domestic Borrower, on behalf
of itself or the Canadian Borrower, as applicable, for acceptance by the
Alternative Currency Lender shall be in the form provided by the Alternative
Currency Lender to the Domestic Borrower or the Canadian Borrower, as
applicable, and shall (i) be dated the date of the Canadian BA Borrowing and
(ii) mature and be payable by the Domestic Borrower or the Canadian Borrower, as
applicable, on the last day of the Canadian Interest Period designated by the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable,
with respect to such Drafts. The Domestic Borrower and the Canadian Borrower
hereby renounce, and shall not claim, any days of grace for payment of any
Acceptances.
(c) Procedures on Borrowing Date. Not later than 12:00 noon (the time
of the Administrative Agent's Correspondent) on the Canadian Business Day on
which any Canadian BA Borrowing is to be made, the Alternative Currency Lender
shall (i) complete one or more Drafts dated as of such date, in an aggregate
amount of the requested Canadian BA Borrowing, (ii) stamp such Drafts as
accepted by the Alternative Currency Lender and (iii) provide for the
discounting of such Acceptances in accordance with this Section 2.5.
27
(d) Acceptance Fee. On the proposed date on which any Canadian BA
Borrowing is to be made, the Domestic Borrower or the Canadian Borrower, as
applicable, shall pay to the Alternative Currency Lender, for its own account, a
stamping fee computed at an annual rate on the basis of (i) the Applicable
Margin times (ii) the face amount of the Draft being accepted and (iii) the term
thereof (the "Acceptance Fee"); provided, however, that if an Event of Default
has occurred and is continuing, (x) with respect to currently outstanding
Acceptances, the Domestic Borrower or the Canadian Borrower, as applicable,
shall pay to the Alternative Currency Lender, for its own account, an additional
stamping fee for the unexpired term of such Acceptances computed at a rate of
two percent (2%) per annum of the face amount of such Acceptances and (y) with
respect to new Acceptances created thereafter, the Acceptance Fee shall be
increased by two percent (2%).
(e) BA Purchase Price. On the proposed date on which any Canadian BA
Borrowing is to be made, the Alternative Currency Lender shall deliver to the
Administrative Agent the applicable BA Purchase Price for the Acceptances
created in accordance with notices received from the Administrative Agent under
Section 2.4 or Section 5.2. Acceptances purchased by the Alternative Currency
Lender may be held by it for its own account until maturity or sold by it at any
time prior thereto in any relevant market, in the Alternative Currency Lender's
sole discretion.
(f) Maturity Date for Acceptances. The Domestic Borrower or the
Canadian Borrower, as applicable, shall pay to the Administrative Agent, and
there shall become due and payable, at 12:00 noon (the time of the
Administrative Agent's Correspondent), on the maturity date of each Acceptance,
an amount in Canadian Dollars in immediately available funds equal to the face
amount of such Acceptance so maturing. The Domestic Borrower or the Canadian
Borrower, as applicable, shall make each payment of a maturing Acceptance by
deposit of the required funds to the Administrative Agent or by requesting the
Administrative Agent to debit the demand deposit account of the Domestic
Borrower or the Canadian Borrower, as applicable, for the amount of such funds.
If the Domestic Borrower or the Canadian Borrower, as applicable, fails to pay
the face amount of any Acceptance when and as the same shall become due, or
cause the creation and discounting of new Acceptances pursuant to Section 5.2,
the unpaid amount thereof shall automatically be converted to a Canadian Base
Rate Loan in accordance with Section 5.2, with the proceeds of such Canadian
Base Rate Loan being used to pay in full each maturing Acceptance.
(g) Setting and Notice of BA Purchase Price. The applicable BA Purchase
Price for each Canadian Interest Period shall be determined by the
Administrative Agent between the opening of business and 12:00 noon (the time of
the Administrative Agent's Correspondent) on the first Canadian Business Day of
such Canadian Interest Period, whereupon notice thereof (which may be by
telephone) shall be given by the Administrative Agent to the Domestic Borrower
or the Canadian Borrower, as applicable, and to the Alternative Currency Lender.
Each such determination of the applicable BA Purchase Price shall be conclusive
and binding upon the parties hereto, in the absence of manifest error. The
Administrative Agent, upon written request of the Domestic Borrower, on behalf
itself or the Canadian Borrower, as applicable, or the Alternative Currency
Lender, shall deliver to the Domestic Borrower or the Canadian Borrower, as
applicable, or the Alternative Currency Lender a statement showing the
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computations used by the Administrative Agent in determining the applicable BA
Purchase Price hereunder.
(h) Restrictions on Conversion From Acceptances to Canadian Base Rate
Loans. If at any time the annual interest rate which would be applicable to a
Canadian Base Rate Loan is less than the annual effective interest rate on
Acceptances (determined by applying the applicable Discount and Acceptance Fees
to a Canadian BA Borrowing) (herein the "Pricing Differential"), the
Administrative Agent, in its discretion, by notice in writing to the Domestic
Borrower, on behalf of itself or the Canadian Borrower, as applicable, may
require, and if the Pricing Differential equals or exceeds one percent (1%), the
Administrative Agent shall require, that the Domestic Borrower or the Canadian
Borrower, as applicable, cause all or a portion of maturing Acceptances to be
replaced with new Acceptances created and discounted in accordance with this
Section 2.5.
SECTION 2.6 Repayment of Loans.
(a) Repayment on the Revolving Credit Maturity Date. The Borrowers
shall repay the outstanding principal amount of (i) all Revolving Credit Loans
in full in Dollars on the Revolving Credit Maturity Date, (ii) all Alternative
Currency Loans in full in the Alternative Currency in which each Alternative
Currency Loan was initially funded on the Revolving Credit Maturity Date and
(iii) all Swingline Loans in accordance with Section 2.3(b) or, if earlier, on
the Revolving Credit Maturity Date, together, in each case, with all accrued but
unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans.
(i) Revolving Credit Commitment. If at any time (as determined
by the Administrative Agent under Section 2.6(b)(v)), based upon the Dollar
Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C
Obligations and Canadian Outstandings, for any reason, the outstanding principal
amount of all Revolving Credit Loans exceeds the Revolving Credit Commitment
less the sum of all outstanding Swingline Loans, L/C Obligations and Canadian
Outstandings, then, in each such case, the Borrowers shall (A) first, with
respect to the Domestic Borrower, if (and to the extent) necessary to eliminate
such excess, immediately repay outstanding Swingline Loans (and/or reduce any
pending request for Swingline Loans on such day by the Dollar Amount of such
excess), (B) second, with respect to the Domestic Borrower, if (and to the
extent) necessary to eliminate such excess, immediately repay outstanding
Revolving Credit Loans which are Base Rate Loans by the amount of such excess
(and/or reduce any pending request for Revolving Credit Loans on such day by the
amount of such excess), (C) third, with respect to any Borrower, if (and to the
extent) necessary to eliminate such excess, immediately repay Revolving Credit
Loans which are LIBOR Rate Loans and Alternative Currency Loans (and/or reduce
any pending requests for a borrowing or continuation or conversion of Revolving
Credit Loans or Alternative Currency Loans submitted in respect of Revolving
Credit Loans or Alternative Currency Loans on such day by the Dollar Amount of
such excess) and (D) fourth, with respect to any Letters of Credit then
outstanding, make a payment of cash collateral into a cash collateral account
opened by the Administrative Agent, for the benefit of the Agents and the
Lenders, in an amount equal to the aggregate then undrawn and
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unexpired amount of such Letters of Credit (such cash collateral to be applied
in accordance with Section 13.2(b)).
(ii) Alternative Currency Commitment. If at any time (as
determined by the Administrative Agent under Section 2.6(b)(v)), based upon the
Dollar Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C
Obligations and Canadian Outstandings, and for any reason, the outstanding
principal amount of all Canadian Outstandings exceeds the lesser of (A) the
Revolving Credit Commitment less the sum of all outstanding Revolving Credit
Loans, Swingline Loans and L/C Obligations and (B) the Alternative Currency
Commitment, then, in each such case, such excess shall be immediately repaid, in
the Alternative Currency in which such Alternative Currency Loan or Alternative
Currency Loans were initially funded, by the Borrowers to the Administrative
Agent for the account of the Lenders.
(iii) Swingline Commitment. If at any time (as determined by
the Administrative Agent under Section 2.6(b)(v)), based upon the Dollar Amount
of all outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations and
Canadian Outstandings, and for any reason, the outstanding principal amount of
all Swingline Loans exceeds the lesser of (A) the Revolving Credit Commitment
less the sum of all outstanding Revolving Credit Loans, L/C Obligations and
Canadian Outstandings and (B) the Swingline Commitment, then, in each such case,
such excess shall be immediately repaid by the Domestic Borrower to the
Administrative Agent for the account of the Lenders.
(iv) Excess L/C Obligations. If at any time (as determined by
the Administrative Agent under Section 2.6(b)(v)), and for any reason, the
outstanding amount of all L/C Obligations exceeds the lesser of (A) the
Revolving Credit Commitment less the sum of the Dollar Amount of all outstanding
Revolving Credit Loans, Swingline Loans and Canadian Outstandings and (B) the
L/C Commitment, then, in each such case, the Domestic Borrower shall make a
payment of cash collateral into a cash collateral account opened by the
Administrative Agent, for the benefit of the Agents and the Lenders, in an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit (such cash collateral to be applied in accordance with Section
13.2(b)).
(v) Compliance and Payments. The Borrowers' compliance with
this Section 2.6(b) shall be tested from time to time by the Administrative
Agent at its sole discretion, but in any event shall be tested on (A) the date
on which any Borrower requests that the applicable Lenders make a Revolving
Credit Loan, Alternative Currency Loan or Swingline Loan or the Issuing Lender
issue a Letter of Credit under Section 6.3 and (B) the date an interest payment
is due under Section 5.1(e). Each such repayment pursuant to this Section 2.6(b)
shall be accompanied by any amount required to be paid pursuant to Section 5.12.
(c) Optional Repayments. The Borrowers may at any time and from time to
time repay the Revolving Credit Loans, Swingline Loans and Alternative Currency
Loans, in whole or in part, (i) upon at least four (4) Business Days'
irrevocable notice to the Administrative Agent with respect to Alternative
Currency Loans, (ii) upon at least three (3) Business Days' irrevocable notice
to the Administrative Agent with respect to LIBOR Rate Loans, (iii) upon one (1)
Business Day irrevocable notice with respect to Base Rate Loans (other than
Swingline
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Loans) and Quoted Swingline Rate Loans, and (iv) by 11:00 a.m. (Chicago time) on
the same Business Day irrevocable notice with respect to Swingline Loans (other
than Quoted Swingline Rate Loans), in the form attached hereto as Exhibit D (a
"Notice of Prepayment"), specifying (A) the date of repayment, (B) the amount of
repayment, (C) whether the repayment is of Revolving Credit Loans, Swingline
Loans, Alternative Currency Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each and (D) whether the repayment
is of LIBOR Rate Loans, Base Rate Loans, Quoted Swingline Loans, Canadian Base
Rate Loans, Canadian BA Borrowings or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such notice,
the Administrative Agent shall promptly notify each Lender. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date set forth in such notice. Partial repayments shall be in an aggregate
amount of (i) $3,000,000 or a whole multiple of $1,000,000 in excess thereof
with respect to Base Rate Loans (other than Swingline Loans), (ii) $3,000,000 or
a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate
Loans, (iii) $1,000,000 or a whole multiple of $100,000 in excess thereof with
respect to Swingline Loans, (iv) C$500,000 or a whole multiple of C$100,000 in
excess thereof with respect to Canadian Base Rate Loans and (v) C$1,500,000 or a
whole multiple of C$500,000 in excess thereof with respect to Canadian BA
Borrowings. Each such repayment shall be accompanied by any amount required to
be paid pursuant to Section 5.12.
(d) Repayment of Excess Proceeds. In the event proceeds ("Excess
Proceeds") remain after the prepayment of Term Loans pursuant to Section 4.4(b),
the amount of such Excess Proceeds shall be used on the date of the required
prepayment under Section 4.4(b) to prepay the outstanding principal amount of
the Revolving Credit Loans without a corresponding reduction of the Revolving
Credit Commitment.
(e) Limitation on Repayment of LIBOR Rate Loans and Alternative
Currency Loans. The Borrowers may not repay any LIBOR Rate Loan or any
Alternative Currency Loan on any day other than on the last day of the Interest
Period or the Canadian Interest Period, if any, applicable thereto unless such
repayment is accompanied by any amount required to be paid pursuant to Section
5.12.
(f) Payment of Interest and Other Expenses. Each repayment pursuant to
this Section 2.6 shall be accompanied by accrued interest on the amount repaid.
(g) Hedging Agreements. No repayment or prepayment pursuant to this
Section 2.6 shall affect any obligations of any Borrower under any Hedging
Agreement.
SECTION 2.7 Permanent Reduction of the Revolving Credit Commitment and
the Alternative Currency Commitment.
(a) Voluntary Reduction. The Domestic Borrower, on behalf of itself and
the Canadian Borrower, shall have the right at any time and from time to time,
upon at least five (5) Business Days prior written notice to the Administrative
Agent, to permanently reduce, without premium or penalty, (i) the entire
Revolving Credit Commitment at any time or (ii) portions of the Revolving Credit
Commitment, from time to time, in an aggregate principal amount not less
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than $3,000,000 or any whole multiple of $1,000,000 in excess thereof; provided
that in no event shall the Revolving Credit Commitment be reduced to an amount
less than the face amount of all Letters of Credit then outstanding.
(b) Payments. Each permanent reduction permitted or required pursuant
to this Section 2.7 shall be accompanied by a payment of principal sufficient to
reduce (i) the aggregate Dollar Amount of all outstanding Revolving Credit
Loans, Swingline Loans, L/C Obligations and Canadian Outstandings, as
applicable, after such reduction to the Revolving Credit Commitment as so
reduced and (ii) to the extent that the Alternative Currency Commitment is
reduced, the aggregate Dollar Amount of all outstanding Alternative Currency
Loans to the Alternate Currency Commitment as so reduced. If the Revolving
Credit Commitment as so reduced is less than the aggregate amount of all
outstanding Letters of Credit, the Borrowers shall be required to deposit in a
cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. Any
reduction of the Revolving Credit Commitment to zero shall be accompanied by
payment of all outstanding Revolving Credit Loans, Alternative Currency Loans
and Swingline Loans (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the
termination of the Revolving Credit Commitment, the Alternative Currency
Commitment and the Swingline Commitment and the Revolving Credit Facility. Such
cash collateral shall be applied in accordance with Section 13.2(b). If the
reduction of the Revolving Credit Commitment or the Alternative Currency
Commitment, as applicable, requires the repayment of any LIBOR Rate Loan or any
Alternative Currency Loan, such repayment shall be accompanied by any amount
required to be paid pursuant to Section 5.12.
SECTION 2.8 Termination of Credit Facility. The Revolving Credit
Facility shall terminate on the earliest of (a) July 2, 2007, (b) the date of
termination by the Domestic Borrower, on behalf of itself and the Canadian
Borrower, pursuant to Section 2.7 and the repayment of all of the Obligations,
and (c) the date of termination by the Administrative Agent on behalf of the
Lenders pursuant to Section 13.2(a).
SECTION 2.9 Increase of Revolving Credit Commitment. So long as no
Default or Event of Default shall have occurred and be continuing, at any time
prior to the Revolving Credit Maturity Date, the Domestic Borrower, on behalf of
itself and the Canadian Borrower, shall have the right from time to time upon
not less than thirty (30) days' prior written notice to the Agents to increase
the Revolving Credit Commitment; provided that (i) no Lender shall have any
obligation to increase its Revolving Credit Commitment, (ii) the Domestic
Borrower shall only be permitted to request such an increase on three (3)
separate occasions, (iii) each such requested increase shall be in a minimum
principal amount of $10,000,000, (iv) in no event shall the Revolving Credit
Commitment be increased to an aggregate amount greater than $300,000,000 and (v)
the Borrowers and an existing Lender or a Person not theretofore a Lender, as
applicable, shall execute a Lender Addition and Acknowledgement Agreement, which
shall be acknowledged by the Agents and each Material Subsidiary and shall be in
form and substance reasonably satisfactory to the Agents; provided further that:
(a) Any increase in the Revolving Credit Commitment which is
accomplished by increasing the Revolving Credit Commitment of any Lender or
Lenders who are at the time of such
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increase party to this Agreement (which Lender or Lenders shall consent to such
increase in their sole and absolute discretion) shall be accomplished as
follows: (i) this Agreement will be amended by the Borrowers, the Agents and
those Lender(s) whose Commitment(s) is or are being increased (but without any
requirement that the consent of any other Lenders be obtained) to reflect the
revised Revolving Credit Commitment amounts of each of the Lenders, (ii) the
Administrative Agent will deliver an updated Schedule 1.1(a) to the Borrowers,
the Issuing Lender and each of the Lenders reflecting the revised Revolving
Credit Commitment amount and Revolving Credit Commitment Percentage of each of
the Lenders, (iii) the outstanding Revolving Credit Loans and Revolving Credit
Commitment Percentages of L/C Obligations will be reallocated on the effective
date of such increase among the Lenders in accordance with their revised
Revolving Credit Commitment Percentages (and the Lenders agree to make all
payments and adjustments necessary to effect the reallocation and the Borrowers
shall pay any and all costs required pursuant to Section 5.12 in connection with
such reallocation as if such reallocation were a repayment) and (iv) if
requested, the Borrowers will deliver new Revolving Credit Note(s) to the Lender
or Lenders whose Commitment(s) is or are being increased reflecting the revised
Revolving Credit Commitment amount of such Lender(s);
(b) Any increase in the Revolving Credit Commitment which is
accomplished by addition of a new Lender under this Agreement shall be
accomplished as follows: (i) such new Lender shall be subject to the consent of
the Agents and the Domestic Borrower, on behalf of itself and the Canadian
Borrower, which consent shall not be unreasonably withheld, (ii) this Agreement
will be amended by the Borrowers, the Agents and such new Lender (but without
any requirement that the consent of any other Lenders be obtained) to reflect
the addition of such new Lender as a Lender hereunder, (iii) the Administrative
Agent will deliver an updated Schedule 1.1(a) to the Borrowers, the Issuing
Lender and each of the Lenders reflecting the revised Revolving Credit
Commitment amounts and Revolving Credit Commitment Percentages of each of the
Lenders, (iv) the outstanding Revolving Credit Loans and Revolving Credit
Commitment Percentages of L/C Obligations will be reallocated on the effective
date of such increase among the Lenders in accordance with their revised
Revolving Credit Commitment Percentages (and the Lenders agree to make all
payments and adjustments necessary to effect the reallocation and the Borrowers
shall pay any and all costs required pursuant to Section 5.12 in connection with
such reallocation as if such reallocation were a repayment) and (v) if requested
the Borrowers will deliver a Revolving Credit Note to such new Lender; and
(c) Notwithstanding anything to the contrary contained in this
Agreement, upon any voluntary reduction of the Revolving Credit Commitment
pursuant to Section 2.7(a), the Domestic Borrower shall no longer have the
option to request an increase in the Revolving Credit Commitment pursuant to
this Section 2.9.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Lenders set forth
in Section 3.4(a),
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agrees to issue standby Letters of Credit for the account of any Borrower on any
Business Day from the Closing Date to, but not including, the Revolving Credit
Maturity Date in such form as may be approved from time to time by the Issuing
Lender; provided that the Issuing Lender shall have no obligation to issue any
Letter of Credit if, after giving effect to such issuance, based upon the Dollar
Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C
Obligations and Canadian Outstandings, (a) the L/C Obligations would exceed the
L/C Commitment or (b) the aggregate principal amount of outstanding Revolving
Credit Loans, plus the aggregate principal amount of outstanding Swingline
Loans, plus the aggregate amount of Canadian Outstandings, plus the aggregate
amount of L/C Obligations would exceed the Revolving Credit Commitment. Each
Letter of Credit shall (i) be denominated in a Permitted Currency in a minimum
amount of $100,000 (or the Alternative Currency Amount thereof with respect to
any Letter of Credit denominated in an Alternative Currency) unless otherwise
agreed by the Issuing Lender with respect to replacement Letters of Credit for
the Existing Letters of Credit, (ii) be a standby letter of credit issued to
support obligations of the applicable Borrower or any of its Subsidiaries,
contingent or otherwise, incurred in the ordinary course of business, (iii)
expire on a date satisfactory to the Issuing Lender, which date shall be no
later than the earlier of (A) one year after its date of issuance and (B) the
fifth (5th) Business Day prior to the Revolving Credit Maturity Date and (iv) be
subject to the Uniform Customs and/or ISP98 or as otherwise determined by the
Issuing Lender, and, to the extent not inconsistent therewith, the laws of the
State of North Carolina. The Issuing Lender shall not at any time be obligated
to issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of
any existing Letters of Credit, unless the context otherwise requires. The
Existing Letters of Credit shall be deemed to be Letters of Credit issued and
outstanding under this Agreement on and after the Closing Date.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Domestic
Borrower, on behalf of itself or the Canadian Borrower, may from time to time
request that the Issuing Lender issue a Letter of Credit by giving written
notice to the Administrative Agent and the Issuing Lender prior to 10:00 a.m.
(Chicago time) at least five (5) Business Days prior to the proposed date of
issuance, specifying the beneficiary, the proposed date of issuance and the
expiry date of such Letter of Credit and describing the proposed terms of such
Letter of Credit (including the Permitted Currency in which such Letter of
Credit shall be denominated) and the nature of the transactions proposed to be
supported thereby, together with an application/reimbursement agreement and such
other certificates, documents and other papers and information as the Issuing
Lender may request. Upon receipt of any such notice, the Issuing Lender shall
process such notice and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall, subject to Section 3.1 and Article VI, promptly
issue the Letter of Credit requested thereby by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Domestic Borrower, on behalf of itself or the Canadian
Borrower. The Issuing Lender shall promptly furnish to the Domestic Borrower, on
behalf of itself or the Canadian Borrower, a copy of such Letter of Credit and
promptly notify the Administrative Agent, and the Administrative Agent shall
promptly notify each Lender, of the issuance of such Letter of Credit and, upon
request by any Lender, the Issuing Lender shall
34
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's participation therein.
SECTION 3.3 Commissions, Fees and Other Charges.
(a) The applicable Borrower shall pay to the Administrative Agent, for
the account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit in an amount equal to the
undrawn amount of such Letter of Credit multiplied by the Applicable Margin with
respect to Revolving Credit Loans that are LIBOR Rate Loans (determined on a per
annum basis). Such letter of credit commission shall be payable quarterly in
arrears on the last Business Day of each calendar quarter and on the Revolving
Credit Maturity Date. The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
letter of credit commissions received pursuant to this Section 3.3(a) in
accordance with their respective Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the applicable Borrower
shall pay the Issuing Lender an issuance fee with respect to each Letter of
Credit in an amount equal to the face amount of such Letter of Credit multiplied
by one eighth of one percent (0.125%) per annum. Such issuance fee shall be
payable quarterly in arrears on the last Business Day of each calendar quarter
and on the Revolving Credit Maturity Date.
(c) In addition to the foregoing fees and commissions, the applicable
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
documentary and processing charges, costs and expenses as are reasonably
incurred or charged by the Issuing Lender in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit.
(d) The commissions, fees, charges, costs and expenses payable pursuant
to this Section 3.3 shall be payable in the Permitted Currency in which the
applicable Letter of Credit is denominated.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the applicable Borrower through a Revolving Credit Loan or
otherwise in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender in the applicable Permitted Currency upon demand
at the Issuing Lender's address for notices specified
35
herein an amount equal to such L/C Participant's Revolving Credit Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify the Administrative Agent and the
Administrative Agent shall promptly notify each L/C Participant of the amount
and due date of such required payment and such L/C Participant shall pay to the
Issuing Lender in the applicable Permitted Currency the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
in the applicable Permitted Currency on demand, in addition to such amount,
interest on the foregoing amount to be reimbursed by such L/C Participant, for
each day from the date of the Issuing Lender's demand for such reimbursement
(or, if such demand is made after 11:00 a.m. (Chicago time) on such date, from
the next succeeding Business Day) to the date on which such L/C Participant pays
the amount to be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Rate for the first three (3) days and, thereafter, at a rate of
interest equal to the rate applicable to Base Rate Loans.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section 3.4, the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrowers or otherwise), or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrowers. In the event of
any drawing under any Letter of Credit, the Borrowers agree to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section 3.5
or with funds from other sources), in same day funds, the Issuing Lender on each
date on which the Issuing Lender notifies the Domestic Borrower, on behalf of
itself or the Canadian Borrower, of the date and amount of a draft paid under
any Letter of Credit for the amount of (a) such draft so paid and (b) any
amounts referred to in Section 3.3(c) incurred by the Issuing Lender in
connection with such payment. Unless the Domestic Borrower, on behalf of itself
or the Canadian Borrower, shall immediately notify the Issuing Lender that the
applicable Borrower intends to reimburse the Issuing Lender for such drawing
from other sources or funds, the Domestic Borrower, on behalf of itself or the
Canadian Borrower, shall be deemed to have timely given a Notice of Borrowing to
the Administrative Agent requesting that the Lenders make a Revolving Credit
Loan funded in Dollars bearing interest at the Base Rate on such date in the
amount of (a) such draft so paid and (b) any amounts referred to in Section
3.3(c) incurred by the Issuing Lender in connection with such payment
(including, without limitation, any and all costs, fees and other expenses
incurred by the Issuing Lender in effecting the payment of any Letter of Credit
denominated in an Alternative Currency), and the Lenders shall make a Revolving
Credit Loan funded in Dollars bearing interest at the Base Rate in such
36
amount, the proceeds of which shall be applied to reimburse the Issuing Lender
for the amount of the related drawing and costs and expenses. Each Lender
acknowledges and agrees that its obligation to fund a Revolving Credit Loan in
accordance with this Section 3.5 to reimburse the Issuing Lender for any draft
paid under a Letter of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Section 2.4 or Article VI. If
the applicable Borrower has elected to pay the amount of such drawing with funds
from other sources and shall fail to reimburse the Issuing Lender as provided
above, the unreimbursed amount of such drawing shall bear interest at the rate
which would be payable on any outstanding Base Rate Loans which were then
overdue from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The Borrowers' obligations under this
Article III (including, without limitation, the Reimbursement Obligation) shall
be absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which any Borrower may have
or have had against the Issuing Lender or any beneficiary of a Letter of Credit
or any other Person. The Borrowers also agree that the Issuing Lender and the
L/C Participants shall not be responsible for, and the Domestic Borrowers'
Reimbursement Obligation under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among any Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of any Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrowers agree that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct, shall be binding on the Borrowers and shall not result in
any liability of the Issuing Lender or any L/C Participant to the Borrowers. The
responsibility of the Issuing Lender to the Borrowers in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
SECTION 3.7 Actions of the Issuing Lender. The Issuing Lender shall be
entitled to rely, and shall be fully protected in relying, upon any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document 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, independent accountants and other experts selected
by the Issuing Lender. The Issuing Lender shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Lenders as it reasonably
deems appropriate or it shall first be indemnified to its reasonable
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.
Notwithstanding any other provision
37
of this Section 3.7, the Issuing Lender shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Letter of Credit.
SECTION 3.8 Indemnification by Borrowers. Subject to the terms of
Section 15.21, the Borrowers hereby agree to indemnify and hold harmless each
Lender, the Issuing Lender and each Agent, and their respective directors,
officers, agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Lender, Issuing Lender or
Agent may incur (or which may be claimed against such Lender, Issuing Lender or
Agent by any Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit or any actual or proposed use of any Letter of Credit,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the Issuing Lender may incur by reason of or in connection
with (i) the failure of any other Lender to fulfill or comply with its
obligations to the Issuing Lender hereunder (but nothing herein contained shall
affect any rights the Borrowers may have against any defaulting Lender) or (ii)
by reason of or on account of the Issuing Lender issuing any Letter of Credit
which specifies that the term "beneficiary" included therein includes any
successor by operation of law of the named beneficiary, but which Letter of
Credit does not require that any drawing by any such successor beneficiary be
accompanied by a copy of a legal document, satisfactory to the Issuing Lender,
evidencing the appointment of such successor beneficiary; provided that the
Borrowers shall not be required to indemnify any Lender, Issuing Lender or Agent
for any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (x) the willful misconduct or gross negligence
of the Issuing Lender in determining whether a request presented under any
Letter of Credit complied with the terms of such Letter of Credit or (y) the
Issuing Lender's failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 3.8 is intended to limit the
obligations of the Borrowers under any other provision of this Agreement.
SECTION 3.9 Indemnification by Lenders. Each Lender shall, ratably in
accordance with its Revolving Credit Commitment Percentage, indemnify the
Issuing Lender, its affiliates and their respective directors, officers, agents
and employees (to the extent not reimbursed by the Borrowers) against any cost,
expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such indemnitees' gross
negligence or willful misconduct or the Issuing Lender's failure to pay under
any Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of the Letter of Credit) that such
indemnitees may suffer or incur in connection with Article III or any action
taken or omitted by such indemnitees hereunder.
SECTION 3.10 Rights as a Lender. In its capacity as a Lender, the
Issuing Lender shall have the same rights and obligations as any other Lender.
38
ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1 Term Loan. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make a Term Loan in Dollars to the
Domestic Borrower on the Closing Date. The Term Loan shall be funded by each
Lender in a principal amount equal to such Lender's Term Loan Percentage of the
aggregate principal amount of the Term Loans made on the Closing Date, which
aggregate principal amount shall equal the total Term Loan Commitment as of the
Closing Date.
SECTION 4.2 Procedure for Advance of Term Loan. The Domestic Borrower
shall give the Administrative Agent an irrevocable Notice of Borrowing prior to
10:00 a.m. (Chicago time) on the Closing Date requesting that the Lenders make
the Term Loan as a Base Rate Loan on such date. Upon receipt of such Notice of
Borrowing from the Domestic Borrower, the Administrative Agent shall promptly
notify each Lender thereof. Not later than 1:00 p.m. (Chicago time) on the
Closing Date, each Lender will make available to the Administrative Agent for
the account of the Domestic Borrower, at the office of the Administrative Agent
in immediately available funds, the amount of such Term Loan to be made by such
Lender on such borrowing date. The Domestic Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of the Term Loan in
immediately available funds by crediting such proceeds to the deposit account of
the Domestic Borrower maintained with the Administrative Agent.
SECTION 4.3 Repayment of Term Loan. The Domestic Borrower shall repay
the aggregate outstanding principal amount of the Term Loan in consecutive
quarterly installments on the last Business Day of each of March, June,
September and December commencing September 30, 2002 as set forth below, except
as the amounts of individual installments may be adjusted pursuant to Section
4.4:
-----------------------------------------------------------------------------------------------------
PAYMENT DATE PRINCIPAL INSTALLMENT REMAINING PRINCIPAL
-----------------------------------------------------------------------------------------------------
September 30, 2002 $1,875,000 $73,125,000
-----------------------------------------------------------------------------------------------------
December 31, 2002 $1,875,000 $71,250,000
-----------------------------------------------------------------------------------------------------
March 31, 2003 $1,875,000 $69,375,000
-----------------------------------------------------------------------------------------------------
June 30, 2003 $1,875,000 $67,500,000
-----------------------------------------------------------------------------------------------------
September 30, 2003 $2,812,500 $64,687,500
-----------------------------------------------------------------------------------------------------
December 31, 2003 $2,812,500 $61,875,000
-----------------------------------------------------------------------------------------------------
March 31, 2004 $2,812,500 $59,062,500
-----------------------------------------------------------------------------------------------------
June 30, 2004 $2,812,500 $56,250,000
-----------------------------------------------------------------------------------------------------
September 30, 2004 $3,750,000 $52,500,000
-----------------------------------------------------------------------------------------------------
December 31, 2004 $3,750,000 $48,750,000
-----------------------------------------------------------------------------------------------------
March 31, 2005 $3,750,000 $45,000,000
-----------------------------------------------------------------------------------------------------
June 30, 2005 $3,750,000 $41,250,000
-----------------------------------------------------------------------------------------------------
September 30, 2005 $4,687,500 $36,562,500
-----------------------------------------------------------------------------------------------------
December 31, 2005 $4,687,500 $31,875,000
-----------------------------------------------------------------------------------------------------
March 31, 2006 $4,687,500 $27,187,500
-----------------------------------------------------------------------------------------------------
June 30, 2006 $4,687,500 $22,500,000
-----------------------------------------------------------------------------------------------------
39
-----------------------------------------------------------------------------------------------------
September 30, 2006 $5,625,000 $16,875,000
-----------------------------------------------------------------------------------------------------
December 31, 2006 $5,625,000 $11,250,000
-----------------------------------------------------------------------------------------------------
March 31, 2007 $5,625,000 $ 5,625,000
-----------------------------------------------------------------------------------------------------
July 2, 2007 $5,625,000 $ 0
-----------------------------------------------------------------------------------------------------
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date.
SECTION 4.4 Prepayments of Term Loan.
(a) Optional Prepayment of Term Loan. The Domestic Borrower shall have
the right at any time and from time to time, upon delivery to the Administrative
Agent of a Notice of Prepayment at least three (3) Business Days prior to any
repayment, to prepay the Term Loan in whole or in part without premium or
penalty except as provided in Section 5.12. Each optional prepayment of the Term
Loan hereunder shall be in an aggregate principal amount of at least $5,000,000
or any whole multiple of $1,000,000 in excess thereof and shall be applied to
reduce on a pro rata basis the remaining scheduled principal installments of the
Term Loans pursuant to Section 4.3. Each repayment shall be accompanied by any
amount required to be paid pursuant to Section 5.12.
(b) Mandatory Prepayment of Term Loan.
(i) Debt Proceeds.
(A) The Domestic Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(v) below in amounts equal to one hundred percent (100%) of the aggregate
Net Cash Proceeds from any incurrence of Senior Debt permitted pursuant to
Section 11.1(j) or any other Senior Debt not permitted hereunder (but otherwise
consented to by the Required Lenders) by the Domestic Borrower or any of its
Subsidiaries; provided that such mandatory principal prepayment shall not be
required if (1) the utilization of the Revolving Credit Commitment less all cash
on the balance sheet of the Domestic Borrower and its Subsidiaries (excluding
the proceeds of such Senior Debt) exceeds fifty percent (50%) of the Revolving
Credit Commitment both before and after giving effect to such incurrence of
Senior Debt, (2) no Default or Event of Default has occurred and is continuing
both before and after giving effect to such incurrence of Senior Debt and (3)
the Borrower shall have delivered to the Administrative Agent evidence, in form
and substance satisfactory to the Administrative Agent, demonstrating pro forma
compliance with each covenant contained in Articles X and XI. Such prepayment
shall be made within three (3) Business Days after the date of receipt of Net
Cash Proceeds of any such transaction.
(B) The Domestic Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(v) below in amounts equal to fifty percent (50%) of the aggregate Net
Cash Proceeds from any incurrence of Subordinated Debt permitted pursuant to
Section 11.1(i) or any other Subordinated Debt not permitted hereunder (but
otherwise consented to by the Required Lenders) by the Domestic Borrower or any
of its Subsidiaries. Such prepayment shall be made within three (3) Business
Days after the date of receipt of Net Cash Proceeds of any such transaction.
40
(ii) Equity Proceeds. The Domestic Borrower shall make
mandatory principal prepayments of the Term Loans in the manner set forth in
Section 4.4(b)(v) below in amounts equal to twenty-five percent (25%) of the
aggregate Net Cash Proceeds from any offering of equity securities by the
Domestic Borrower or any of its Subsidiaries. Such prepayment shall be made
within three (3) Business Days after the date of receipt of Net Cash Proceeds of
any such transaction.
(iii) Asset Sale Proceeds. No later than one hundred eighty
(180) days following the receipt by the Domestic Borrower or any of its
Subsidiaries, the Domestic Borrower or such Subsidiary shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(v) below in amounts equal to one hundred percent (100%) of the aggregate
Net Cash Proceeds from the sale or other disposition or series of related sales
or other dispositions of assets by the Domestic Borrower or any of its
Subsidiaries permitted pursuant to Section 11.5(f) ("Asset Sale Proceeds"), to
the extent such Asset Sales Proceeds exceed $10,000,000 during any Fiscal Year;
provided that in connection with any sale, transfer or other disposition of any
asset on terms whereby the asset or a substantially similar asset is or will be
leased or reacquired by the Domestic Borrower or any of its Subsidiaries over a
period of time in excess of three (3) years, Asset Sale Proceeds shall be
applied pro rata in accordance with Section 10.6 of the Note Purchase Agreement
dated as of July 20, 2000 (as in effect on the date hereof) by the Domestic
Borrower providing for the issuance of $50,000,000 aggregate principal amount of
its 8.40% Senior Notes due 2010; provided further that such prepayment shall not
be required to the extent the amount of such Net Cash Proceeds are reinvested in
comparable replacement assets within one hundred eighty (180) days of any such
transaction. Notwithstanding any of the foregoing to the contrary, upon and
during the continuance of a Default or an Event of Default and upon notice from
the Administrative Agent, all Asset Sale Proceeds received by the Domestic
Borrower or any of its Subsidiaries shall be applied to make mandatory principal
prepayments of the Term Loans, such mandatory principal prepayments to be made
within three (3) Business Days after the date of receipt of such Asset Sale
Proceeds.
(iv) Insurance and Condemnation Proceeds. No later than one
hundred eighty (180) days following the date of receipt by the Domestic Borrower
or any of its Subsidiaries of any Net Cash Proceeds under any of the insurance
policies maintained pursuant to Section 9.3 or from any condemnation proceeding
(the "Insurance and Condemnation Proceeds"), to the extent that such amount has
not been reinvested as of such date in similar replacement assets, the Domestic
Borrower or such Subsidiary shall make mandatory principal prepayments of the
Term Loans in the manner set forth in Section 4.4(b)(v) below in amounts equal
to one hundred percent (100%) of the aggregate amount of such Insurance and
Condemnation Proceeds received by the Domestic Borrower or such Subsidiary.
Notwithstanding any of the foregoing to the contrary, upon and during the
continuance of a Default or an Event of Default and upon notice from the
Administrative Agent, all Insurance and Condemnation Proceeds received by the
Domestic Borrower or any of its Subsidiaries shall be applied to make mandatory
principal prepayments of the Term Loans, such mandatory principal prepayments to
be made within three (3) Business Days after the date of receipt of such
Insurance and Condemnation Proceeds.
41
(v) Notice; Manner of Payment. Upon the occurrence of any
event triggering the prepayment requirement under Sections 4.4(b)(i) through and
including 4.4(b)(iv), the Domestic Borrower shall promptly deliver a Notice of
Prepayment to the Administrative Agent and upon receipt of such notice, the
Administrative Agent shall promptly so notify the Lenders. Each prepayment under
this Section 4.4(b) shall be applied as follows: first, to reduce on a pro rata
basis the remaining scheduled principal installments of the Term Loans pursuant
to Section 4.3 and (ii) second, to the extent of any excess, to repay the
Revolving Credit Loans pursuant to Section 2.6(d).
(c) No Reborrowings. Amounts prepaid under the Term Loan pursuant to
this Section 4.4 may not be reborrowed and will constitute a permanent reduction
in such Term Loan Commitment. Each prepayment shall be accompanied by any amount
required to be paid pursuant to Section 5.12.
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) Interest Rate Options.
(i) Revolving Credit Loans, Alternative Currency Loans and
Term Loans. Subject to the provisions of this Section 5.1, at the election of
the Domestic Borrower, on behalf of itself or the Canadian Borrower, as
applicable, (i) Revolving Credit Loans and Term Loans shall bear interest at (A)
the Base Rate plus the Applicable Margin as set forth in Section 5.1(c) or (B)
the LIBOR Rate plus the Applicable Margin as set forth in Section 5.1(c) and
(ii) Alternative Currency Loans (A) shall bear interest at the Canadian Base
Rate plus the Applicable Margin as set forth in Section 5.1(c) or (B) shall be
created and discounted pursuant to Section 2.5; provided that the LIBOR Rate
shall not be available until three (3) Business Days after the Closing Date and
Canadian BA Borrowings shall not be available until three (3) Canadian Business
Days after the Closing Date. The Domestic Borrower shall select the rate of
interest and the Interest Period or the Canadian Interest Period, if any,
applicable to any Revolving Credit Loan, any Alternative Currency Loan and any
Term Loan at the time a Notice of Borrowing is given pursuant to Section 2.4 or
Section 4.2, at the time a Notice of Conversion/Continuation is given pursuant
to Section 5.2(a), at the time a Notice of Conversion to Acceptances is given
pursuant to Section 5.2(b) or at the time a Notice of Renew Acceptances is given
pursuant to Section 5.2(c). Each Revolving Credit Loan, each Term Loan or each
portion thereof bearing interest based on the Base Rate shall be a "Base Rate
Loan", each Revolving Credit Loan, each Term Loan or each portion thereof
bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan", each
Alternative Currency Loan or each portion thereof bearing interest based on the
Canadian Base Rate shall be a "Canadian Base Rate Loan" and each Alternative
Currency Loan or each portion thereof created and discounted pursuant to Section
2.5 shall be a "Canadian BA Borrowing". Any Revolving Credit Loan, any Term Loan
or any portion thereof as to which the Domestic Borrower has not duly specified
an interest rate
42
as provided herein shall be deemed a Base Rate Loan. Any Alternative Currency
Loan or any portion thereof as to which the Domestic Borrower, on behalf of
itself or the Canadian Borrower as applicable, has not duly specified an
interest rate as provided herein (or requested a Canadian BA Borrowing pursuant
to Section 2.5) shall be deemed a Canadian Base Rate Loan.
(ii) Swingline Loans. Subject to the provisions of this
Section 5.1, at the election of the Domestic Borrower, each Swingline Loan shall
bear interest at (A) the Base Rate plus the Applicable Margin as set forth in
Section 5.1(c) or (B) the Quoted Swingline Rate (if agreed upon by the Swingline
Lender and the Domestic Borrower). The Domestic Borrower shall select the rate
of interest applicable to any Swingline Loan at the time a Notice of Borrowing
is given pursuant to Section 2.4. Each Swingline Loan or portion thereof bearing
interest based on the Base Rate shall be a "Base Rate Loan" and each Swingline
Loan or portion thereof bearing interest based on the Quoted Swingline Rate
shall be a "Quoted Swingline Rate Loan". Any Swingline Loan or any portion
thereof as to which the Domestic Borrower has not duly specified an interest
rate as provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable,
by giving notice at the times described in Section 5.1(a), shall elect an
interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3), or six
(6) months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect to a
LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving
Credit Maturity Date or the Term Loan Maturity Date, as applicable, and Interest
Periods shall be selected by the Domestic Borrower, on behalf of itself or the
Canadian Borrower, as applicable, so as to permit the Borrowers to make the
quarterly principal installment payments pursuant to Section 4.3 without payment
of any amounts pursuant to Section 5.12; and
(v) there shall be no more than eight (8) Interest Periods in
effect at any time.
43
(c) Applicable Margin. The Applicable Margin provided for in Section
5.1(a) with respect to any Loan and in Section 2.5(d) with respect to any
Acceptance Fee applicable to any Canadian BA Borrowing (the "Applicable Margin")
shall be based upon the table set forth below and shall be determined and
adjusted quarterly on the date (each a "Calculation Date") ten (10) Business
Days after the date by which the Domestic Borrower, on behalf of itself and the
Canadian Borrower, is required to provide an Officer's Compliance Certificate
for the most recently ended fiscal quarter of the Domestic Borrower; provided,
however, that (a) the initial Applicable Margin shall be based on Pricing Level
III (as shown below) and shall remain at Pricing Level III until the first
Calculation Date occurring after the fiscal quarter ending June 30, 2002 and,
thereafter the Pricing Level shall be determined by reference to the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Domestic Borrower preceding the applicable Calculation Date, and (b) if the
Domestic Borrower, on behalf of itself and the Canadian Borrower, fails to
provide the Officer's Compliance Certificate as required by Section 8.2 for the
most recently ended fiscal quarter of the Domestic Borrower preceding the
applicable Calculation Date, the Applicable Margin from such Calculation Date
shall be based on Pricing Level I (as shown below) until such time as an
appropriate Officer's Compliance Certificate is provided, at which time the
Pricing Level shall be determined by reference to the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the Domestic Borrower
preceding such Calculation Date. The Applicable Margin shall be effective from
one Calculation Date until the next Calculation Date. Any adjustment in the
Applicable Margin shall be applicable to all Extensions of Credit then existing
or subsequently made or issued.
---------------------------------
Applicable Margin
-----------------------------------------------------------------------------------------------------------------
Pricing Level Leverage Ratio LIBOR Rate Base Rate and
and Canadian Base
Acceptance Rate
Fee
=================================================================================================================
I Greater than or equal to 2.75 to 1.00 1.750 0.500
-----------------------------------------------------------------------------------------------------------------
II Greater than or equal to 2.25 to 1.00 but less than 2.75 to 1.00 1.500 0.250
-----------------------------------------------------------------------------------------------------------------
III Greater than or equal to 1.75 to 1.00 but less than 2.25 to 1.00 1.250 0.000
-----------------------------------------------------------------------------------------------------------------
IV Less than 1.75 to 1.00 1.000 0.000
-----------------------------------------------------------------------------------------------------------------
(d) Default Rate. Subject to Section 13.3, at the discretion of the
Administrative Agent or as directed by the Required Lenders, upon the occurrence
and during the continuance of an Event of Default and upon written notice to the
Domestic Borrower, (i) the Borrowers shall no longer have the option to request
LIBOR Rate Loans, Canadian BA Borrowings or Swingline Loans, (ii) all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum two percent
(2%) in excess of the rate then applicable to LIBOR Rate Loans until the end of
the applicable Interest Period and thereafter at a rate equal to two percent
(2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Canadian Base Rate Loans shall bear interest at a rate per annum two
percent (2%) in excess of the rate then applicable to Canadian Base Rate Loans
and (iv) all outstanding Base Rate Loans, Quoted Swingline Rate Loans and other
Obligations arising hereunder or under any other Loan Document shall bear
interest at a rate per
44
annum equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans. Interest shall continue to accrue on the Notes after the filing by
or against any Borrower of any petition seeking any relief in bankruptcy or
under any act or law pertaining to insolvency or debtor relief, whether state,
federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan,
Canadian Base Rate Loan and each Quoted Swingline Rate Loan shall be payable in
arrears on the last Business Day or Canadian Business Day, as applicable, of
each calendar quarter commencing June 30, 2002; and interest on each LIBOR Rate
Loan shall be payable on the last day of each Interest Period applicable
thereto, and if such Interest Period extends over three (3) months, at the end
of each three (3) month interval during such Interest Period. Interest on LIBOR
Rate Loans and all fees payable hereunder shall be computed on the basis of a
360-day year and assessed for the actual number of days elapsed and interest on
Base Rate Loans and Canadian Base Rate Loans shall be computed on the basis of a
365/66-day year and assessed for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrowers any interest received by the
Lenders in excess of the maximum lawful rate or (ii) apply such excess to the
principal balance of the Obligations on a pro rata basis. It is the intent
hereof that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans.
(a) Conversion or Continuation of Revolving Credit Loans. Provided that
no Default or Event of Default has occurred and is then continuing, the Domestic
Borrower, on behalf of itself or the Canadian Borrower, as applicable, shall
have the option to (a) convert at any time following the third Business Day
after the Closing Date all or any portion of any outstanding Base Rate Loans
(other than Swingline Loans) in a principal amount equal to $3,000,000 or any
whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate
Loans, (b) upon the expiration of any Interest Period, convert all or any part
of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or
a whole multiple of $1,000,000 in excess thereof into Base Rate Loans (other
than Swingline Loans), or (c) upon the expiration of any Interest Period,
continue any LIBOR Rate Loan in a principal amount of $3,000,000 or any whole
multiple of $1,000,000 in excess thereof as a LIBOR Rate Loan. Whenever the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable,
desires to convert or continue Loans as provided above, the Borrower shall give
the Administrative Agent irrevocable prior written notice in the form attached
as Exhibit E-1 (a "Notice of Conversion/Continuation")
45
not later than 10:00 a.m. (Chicago time) three (3) Business Days before the day
on which a proposed conversion or continuation of such Loan is to be effective
specifying (A) the Loans to be converted or continued, and, in the case of any
LIBOR Rate Loan to be converted or continued, the last day of the Interest
Period therefor, (B) the effective date of such conversion or continuation
(which shall be a Business Day), (C) the principal amount of such Loans to be
converted or continued, and (D) the Interest Period to be applicable to such
converted or continued LIBOR Rate Loan. The Administrative Agent shall promptly
notify the Lenders of such Notice of Conversion/Continuation.
(b) Conversion of Canadian Base Rate Loans to Canadian BA Borrowings.
Provided that no Default or Event of Default has occurred and is then
continuing, the Domestic Borrower, on behalf of itself or the Canadian Borrower,
as applicable, shall have the option to convert all or any part of any
outstanding Canadian Base Rate Loans in a principal amount equal to C$1,500,000
or a whole multiple of C$500,000 in excess thereof into Canadian BA Borrowings
by giving the Administrative Agent irrevocable prior written notice in the form
attached as Exhibit E-2 (a "Notice of Conversion to Acceptances") not later than
12:00 noon (the time of the Administrative Agent's Correspondent) on a Canadian
Business Day which is at least three (3) Canadian Business Days prior to the day
on which a proposed conversion of such Canadian Base Rate Loan is to be
effective specifying the date of such conversion, the total amount of Canadian
Base Rate Loans to be so converted and the Canadian Interest Period to be
applicable to such converted Canadian Base Rate Loan. The Administrative Agent
shall promptly notify the Lenders of such Notice of Conversion to Acceptances.
(c) Procedures at End of a Canadian Interest Period. Unless the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable,
requests a new Canadian BA Borrowing in accordance with the procedures set forth
below, the Alternative Currency Lender shall automatically and without request
by the Domestic Borrower or the Canadian Borrower, as applicable, make a
Canadian Base Rate Loan on the last day of the relevant Canadian Interest Period
in an amount sufficient to pay in full all Acceptances maturing on such day. So
long as no Default or Event of Default shall exist, the Domestic Borrower, on
behalf of itself or the Canadian Borrower, as applicable, may request a new
Canadian BA Borrowing pursuant to the terms and conditions of Section 2.5 in a
principal amount equal to C$1,500,000 or a whole multiple of C$500,000 in excess
thereof at the end of the then applicable Canadian Interest Period by giving the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit E-3 (a "Notice to Renew Acceptances") not later than 12:00 noon (the
time of the Administrative Agent's Correspondent) on a Canadian Business Day
which is at least three (3) Canadian Business Days prior to the first day of the
new Canadian Interest Period specifying the first day of the applicable Canadian
Interest Period, the amount of the Canadian BA Borrowing and the Canadian
Interest Period to be applicable thereto. The Administrative Agent shall
promptly notify the Lenders of such Notice to Renew Acceptances.
(d) Telephonic Notices. The Domestic Borrower, on behalf of itself and
the Canadian Borrower, hereby authorizes the Lenders and the Administrative
Agent to extend, convert or continue Loans and to transfer funds based on
telephonic notices made by any Person or Persons the Administrative Agent or any
Lender in good faith believes to be acting on behalf of the Borrowers, it being
understood that the foregoing authorization is specifically intended to
46
allow Notices of Borrowing and Notices Conversion/Continuation to be given
telephonically. The Domestic Borrower, on behalf of itself and the Canadian
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Responsible Officer. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
SECTION 5.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrowers shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to the applicable rate
based upon the table set forth below (the "Commitment Fee Rate") on the average
daily unused portion of the Revolving Credit Commitment; provided that the
amount of outstanding Swingline Loans and Alternative Currency Loans shall not
be considered usage of the Revolving Credit Commitment for the purpose of
calculating such commitment fee. The commitment fee shall be payable in arrears
on the last Business Day of each calendar quarter during the term of this
Agreement commencing September 30, 2002, and on the Revolving Credit Maturity
Date. Such commitment fee shall be distributed by the Administrative Agent to
the Lenders pro rata in accordance with the Lenders' respective Revolving Credit
Commitment Percentages. The Commitment Fee Rate shall be determined and adjusted
quarterly on each Calculation Date; provided, however, that (a) the initial
Commitment Fee Rate shall be based on Pricing Level III (as shown below) and
shall remain at Pricing Level III until the first Calculation Date occurring
after the fiscal quarter ending June 30, 2002 and, thereafter the Pricing Level
shall be determined by reference to the Leverage Ratio as of the last day of the
most recently ended fiscal quarter of the Domestic Borrower preceding the
applicable Calculation Date, and (b) if the Domestic Borrower, on behalf of
itself and the Canadian Borrower, fails to provide the Officer's Compliance
Certificate as required by Section 8.2 for the most recently ended fiscal
quarter of the Domestic Borrower preceding the applicable Calculation Date, the
Commitment Fee Rate from such Calculation Date shall be based on Pricing Level I
(as shown below) until such time as an appropriate Officer's Compliance
Certificate is provided, at which time the Pricing Level shall be determined by
reference to the Leverage Ratio as of the last day of the most recently ended
fiscal quarter of the Parent preceding such Calculation Date. The Commitment Fee
Rate shall be effective from one Calculation Date until the next Calculation
Date.
------------------------------------------------------------------------------------------------------------------
Pricing Level Leverage Ratio Commitment Fee Rate
==================================================================================================================
I Greater than or equal to 2.75 to 1.00 0.300%
------------------------------------------------------------------------------------------------------------------
II Greater than or equal to 2.25 to 1.00 but less than 2.75 to 1.00 0.275%
------------------------------------------------------------------------------------------------------------------
III Greater than or equal to 1.75 to 1.00 but less than 2.25 to 1.00 0.250%
------------------------------------------------------------------------------------------------------------------
IV Less than 1.75 to 1.00 0.225%
------------------------------------------------------------------------------------------------------------------
(b) Administrative Agent's, Syndication Agent's and Other Fees.
47
(i) In order to compensate the Administrative Agent for
administering the Credit Facility and for its obligations hereunder, the
Borrowers agree to pay to the Administrative Agent, for its account, the fees
set forth in the separate fee letter agreement executed by the Domestic
Borrower, on behalf of itself and the Canadian Borrower, and the Administrative
Agent dated May 14, 2002.
(ii) In order to compensate the Syndication Agent for
structuring and syndicating the Extensions of Credit and for its obligations
hereunder, the Borrowers agree to pay to the Syndication Agent, for its account,
the fees set forth in the separate fee letter agreement executed by the Domestic
Borrower, on behalf of itself and the Canadian Borrower, and the Administrative
Agent dated May 7, 2002.
(c) Alternative Currency Lender's Fee. The applicable Borrower shall
pay the Alternative Currency Lender a fronting fee with respect to the Canadian
Outstandings in an amount equal to the Dollar Amount of the Canadian
Outstandings multiplied by one eighth of one percent (0.125%) per annum. Such
fronting fee shall be payable quarterly in arrears on the last Business Day of
each calendar quarter and on the Revolving Credit Maturity Date.
SECTION 5.4 Manner of Payment.
(a) Loans Denominated in Dollars. Each payment by the Borrowers on
account of the principal of or interest on the Loans denominated in Dollars or
of any fee, commission or other amounts (including the Reimbursement Obligation)
payable to the Lenders under this Agreement or any Note (except as set forth in
Section 5.4(b)) shall be made in Dollars not later than 12:00 noon (Chicago
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below) pro rata in accordance with their
respective Revolving Credit Commitment Percentages or Term Loan Percentages, as
applicable, (except as specified below), in immediately available funds and
shall be made without any set-off, counterclaim or deduction whatsoever. Any
payment received after 12:00 noon (Chicago time) shall be deemed to have been
made on the next succeeding Business Day for all purposes.
(b) Alternative Currency Loans. Each payment by the Borrowers on
account of the principal of or interest on the Alternative Currency Loans shall
be made in such Alternative Currency not later than 12:00 noon (the time of the
Administrative Agent's Correspondent) on the date specified for payment under
this Agreement to the Administrative Agent's account with the Administrative
Agent's Correspondent for the account of the Alternative Currency Lender (except
as specified below) pro rata in accordance with their respective Revolving
Credit Commitment Percentages (other than as set forth below) in immediately
available funds, and shall be made without any set-off, counterclaim or
deduction whatsoever. Any payment received after 12:00 noon (the time of the
Administrative Agent's Correspondent) shall be deemed to have been made on the
next succeeding Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each Lender at
its address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Revolving
48
Credit Commitment Percentage or Term Loan Percentage, as applicable, (except as
specified below), and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of the Issuing Lender's fees or
any L/C Participants' commissions shall be made in like manner, but for the
account of the Issuing Lender or the L/C Participants, as the case may be. Each
payment to the Administrative Agent of Administrative Agent's fees or expenses
shall be made for the account of the Administrative Agent. Each payment to the
Administrative Agent with respect to the Swingline Note (including, without
limitation, the Swingline Lender's fees or expenses) shall be made for the
account of the Swingline Lender. Each payment to the Administrative Agent with
respect to the Alternative Currency Note (including, without limitation, the
Alternative Currency Lender's fees or expenses) shall be made for the account of
the Alternative Currency Lender. Any amount payable to any Lender under Sections
5.10, 5.11, 5.12, 5.13 or 15.2 shall be paid to the Administrative Agent for the
account of the applicable Lender. Subject to Section 5.1(b)(ii), if any payment
under this Agreement or any Note shall be specified to be made upon a day which
is not a Business Day, it shall be made on the next succeeding day which is a
Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
SECTION 5.5 Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan 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 hereunder.
(b) The Administrative Agent shall also maintain accounts in which it
will record (i) the amount of each Loan made hereunder and, if applicable, the
Interest Period or the Canadian Interest Period, as applicable, with respect
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrowers to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from the
Borrowers and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and
the amounts of the Obligations therein recorded; provided, however, that the
failure of the Administrative Agent or any Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a Revolving
Credit Note, a Term Note, in the case of the Swingline Lender, a Swingline Note
or, in the case of the Alternative Currency Lender, an Alternative Currency
Note. In such event, the Borrowers shall prepare, execute and deliver to such
Lender such applicable Note or Notes payable to the order of such Lender.
Thereafter, the Loans evidenced by each such Note and interest thereon shall at
all times (prior to any assignment pursuant to Section 15.10) be represented by
one or more Notes payable to the order of the Lender named therein, except to
the extent that any such Lender subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (a) and (b) above.
49
SECTION 5.6 Crediting of Payments and Proceeds. In the event that the
Borrowers shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 13.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied: (a) first to all expenses then
due and payable by the Borrowers hereunder and under the other Loan Documents,
(b) then to all indemnity obligations then due and payable by the Borrowers
hereunder and under the other Loan Documents, (c) then to all Agents,' Issuing
Lender's and Alternative Currency Lender's fees then due and payable, (d) then
to all commitment and other fees and commissions then due and payable, (e) then
to accrued and unpaid interest on the Swingline Note to the Swingline Lender and
the Alternative Currency Note to the Alternative Currency Lender (pro rata in
accordance with all such amounts due), (f) then to the principal amount
outstanding under the Swingline Note to the Swingline Lender and the Alternative
Currency Note to the Alternative Currency Lender (pro rata in accordance with
all such amounts due), (g) then to accrued and unpaid interest on the other
Loans and Notes, accrued and unpaid interest on the Reimbursement Obligation and
any Hedging Obligations (including any termination payments and any accrued and
unpaid interest thereon) (pro rata in accordance with all such amounts due), (h)
then to the principal amount of the other Loans and Notes and Reimbursement
Obligation (pro rata in accordance with all such amounts due) and (i) then to
the cash collateral account described in Section 13.2(b) to the extent of any
L/C Obligations then outstanding, in that order.
SECTION 5.7 Adjustments. If any Lender (a "Benefited Lender") shall at
any time receive any payment of all or part of the Obligations owing to it, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to the Obligations owing to it (whether voluntarily or involuntarily, by
set-off or otherwise) (other than pursuant to Sections 5.8, 5.9, 5.10, 5.11 or
15.2) in a greater proportion than any such payment to and collateral received
by any other Lender, if any, in respect of the similar Obligations owing to such
other Lender, or interest thereon, such Benefited Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Extensions of
Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Borrowers
agree that each Lender so purchasing a portion of another Lender's Extensions of
Credit may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
SECTION 5.8 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans denominated in Dollars and issue or
participate in Letters of Credit are several and are not joint or joint and
several. Unless the Administrative Agent shall have received notice from a
Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
amount to be borrowed on such date (which notice shall not release such Lender
of its obligations hereunder), the Administrative
50
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with Sections
2.3 and 4.2, and the Administrative Agent may, in reliance upon such assumption,
make available to the applicable Borrower on such date a corresponding amount.
If such amount is made available to the Administrative Agent on a date after
such borrowing date, such Lender shall pay to the Administrative Agent on demand
an amount, until paid, equal to interest on the amount not made available by
such Lender in accordance with the terms hereof, for each day from and including
such borrowing date to the date on which such amount not made available by such
Lender in accordance with the terms hereof shall have become immediately
available to the Administrative Agent, at a rate per annum equal to the Federal
Funds Rate for the first three (3) days and, thereafter, at a rate per annum
equal to the rate applicable to Base Rate Loans. A certificate of the
Administrative Agent with respect to any amounts owing under this Section 5.8
shall be conclusive, absent manifest error. If such Lender's Revolving Credit
Commitment Percentage or Term Loan Percentage, as applicable, of such borrowing
is not made available to the Administrative Agent by such Lender within three
(3) Business Days after such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to Base Rate Loans hereunder,
on demand, from the Domestic Borrower. The failure of any Lender to make
available its Revolving Credit Commitment Percentage or Term Loan Percentage, as
applicable, of any Loan denominated in Dollars requested by the Domestic
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Revolving Credit Commitment Percentage or Term Loan
Percentage, as applicable, of such Loan available on the borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make its
Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable,
of such Loan available on the borrowing date. Notwithstanding anything set forth
herein to the contrary, any Lender that fails to make available its Revolving
Credit Commitment Percentage or Term Loan Percentage, as applicable, shall not
(a) have any voting or consent rights under or with respect to any Loan Document
or (b) constitute a "Lender" (or be included in the calculation of Required
Lenders hereunder) for any voting or consent rights under or with respect to any
Loan Document.
SECTION 5.9. Redenomination of Alternative Currency Loans. If any
Alternative Currency Loan is required to bear interest based at the Base Rate
rather than the LIBOR Rate pursuant to Section 5.1(d), Section 5.11 or any other
applicable provision hereof, such Loan shall be funded in Dollars in an amount
equal to the Dollar Amount of such Alternative Currency Loan, all subject to the
provisions of Section 2.5(b). The Borrowers shall reimburse the Alternative
Currency Lender or the Lenders, as applicable, upon any such conversion for any
amounts required to be paid under Section 5.12.
SECTION 5.10. Regulatory Limitation. In the event, as a result of
increases in the value of Alternative Currencies against the Dollar or for any
other reason, the obligation of any of the Lenders to make Loans (taking into
account the Dollar Amount of the Obligations and all other indebtedness required
to be aggregated under 12 U.S.C.A. ss.84, as amended, the regulations
promulgated thereunder and any other Applicable Law) is determined by such
Lender to exceed its then applicable legal lending limit under 12 U.S.C.A.
ss.84, as amended, and the regulations promulgated thereunder, or any other
Applicable Law, the amount of additional Extensions of Credit such Lender shall
be obligated to make or issue or participate in hereunder shall
51
immediately be reduced to the maximum amount which such Lender may legally
advance (as determined by such Lender), the obligation of each of the remaining
Lenders hereunder shall be proportionately reduced, based on their applicable
Revolving Credit Commitment Percentages or Term Loan Percentages, as applicable,
and, to the extent necessary under such laws and regulations (as determined by
each of the Lenders, with respect to the applicability of such laws and
regulations to itself), and the Borrowers shall reduce, or cause to be reduced,
complying to the extent practicable with the remaining provisions hereof, the
Obligations outstanding hereunder by an amount sufficient to comply with such
maximum amounts.
SECTION 5.11 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate and Alternative Currency
Availability. If with respect to any Interest Period for any LIBOR Rate Loan or
any Canadian Interest Period with respect to any Canadian BA Acceptance, the
Administrative Agent, the Alternative Currency Lender or any other Lender (after
consultation with the Administrative Agent) shall determine that (i) by reason
of circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars or an Alternative Currency in the applicable amounts are
not being quoted via any generally recognized financial information service or
offered to the Administrative Agent or such Lender for such Interest Period or
Canadian Interest Period, as applicable, (ii) a fundamental change has occurred
in the foreign exchange or interbank markets with respect to any Alternative
Currency (including, without limitation, changes in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls), (iii) it has become otherwise materially impractical for the
Alternative Currency Lender to make such Alternative Currency Loan or (iv) by
reason of circumstances affecting the market for bankers' acceptances
denominated in Canadian Dollars there is no market in Canada for such bankers'
acceptances or that the demand therefor is insufficient to justify the
Alternative Currency Lender continuing to create and sell (or purchase) bankers'
acceptances in such market, then the Administrative Agent shall forthwith give
notice thereof to the Domestic Borrower, on behalf of itself and the Canadian
Borrower. Thereafter, until the Administrative Agent notifies the Domestic
Borrower, on behalf of itself and the Canadian Borrower, that such circumstances
no longer exist, the obligation of the Lenders or the Alternative Currency
Lender, as applicable, to make LIBOR Rate Loans or Alternative Currency Loans or
create Acceptances, as applicable, and the right of the Borrowers to convert any
Loan to or continue any Loan as a LIBOR Rate Loan or an Alternative Currency
Loan, as applicable, shall be suspended, and the Borrowers shall repay in full
(or cause to be repaid in full) the then outstanding principal amount of each
such LIBOR Rate Loan or Alternative Currency Loan, as applicable, together with
accrued interest thereon, on the last day of the then current Interest Period or
Canadian Interest Period applicable to such LIBOR Rate Loan or Alternative
Currency Loan, as applicable, or convert the then outstanding principal amount
of each such LIBOR Rate Loan or Alternative Currency Loan, as applicable, to a
Base Rate Loan in Dollars as of the last day of such Interest Period or Canadian
Interest Period, as applicable; provided that if the Borrowers elect to make
such conversion, the Borrowers shall pay to the Administrative Agent, the
Alternative Currency Lender and the Lenders any and all costs, fees and other
expenses incurred by the Administrative Agent, the Alternative Currency Lender
and the Lenders in effecting such conversion.
52
(b) Laws Affecting LIBOR Rate and Alternative Currency Availability.
If, after the date hereof, the introduction of, 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 any of
its Lending Offices) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, shall make it unlawful or impossible for any of the Lenders (or any of
their respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan or any Alternative Currency Loan, as applicable,
such Lender shall promptly give notice thereof to the Administrative Agent and
the Administrative Agent shall promptly give notice to the Domestic Borrower, on
behalf of itself and the Canadian Borrower, and the other Lenders. Thereafter,
until the Administrative Agent notifies the Domestic Borrower, on behalf of
itself and the Canadian Borrower, that such circumstances no longer exist, (i)
the obligations of the Lenders to make LIBOR Rate Loans or Alternative Currency
Loans, as applicable, and the right of the Borrowers to convert any Loan or
continue any Loan as a LIBOR Rate Loan or an Alternative Currency Loan, as
applicable, shall be suspended and thereafter the Borrowers may select only Base
Rate Loans in Dollars hereunder, and (ii) if any of the Lenders may not lawfully
continue to maintain a LIBOR Rate Loan or an Alternative Currency Loan, as
applicable, to the end of the then current Interest Period or Canadian Interest
Period applicable thereto as a LIBOR Rate Loan or Alternative Currency Loan, as
applicable, the applicable LIBOR Rate Loan or an Alternative Currency Loan, as
applicable, shall immediately be converted to a Base Rate Loan in Dollars for
the remainder of such Interest Period or Canadian Interest Period, as
applicable; provided that if the Borrowers elect to make such conversion, the
Borrowers shall pay to the Administrative Agent, the Alternative Currency Lender
and the Lenders any and all costs, fees and other expenses incurred by the
Administrative Agent, the Alternative Currency Lender and the Lenders in
effecting such conversion.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or 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 of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall (except as provided in Section 5.14(e)) subject any
of the Lenders (or any of their respective Lending Offices) to any tax, duty or
other charge with respect to any Note or Letter of Credit or shall change the
basis of taxation of payments to any of the Lenders (or any of their respective
Lending Offices) of the principal of or interest on any Note or Letter of Credit
or any other amounts due under this Agreement in respect thereof (except for
changes in the rate of franchise tax or tax on the overall net income of any of
the Lenders or any of their respective Lending Offices imposed by the
jurisdiction in which such Lender is organized or is or should be qualified to
do business or such Lending Office is located); provided that the Borrowers
shall not be obligated to pay any amounts pursuant to this Section 5.11(c)(i) to
the extent that such amounts are duplicative of any amounts paid by the Borrower
pursuant to Section 5.14; or
53
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note;
and the result of any of the foregoing events described in clause (i) or (ii)
above is to increase the costs to any of the Lenders of maintaining any LIBOR
Rate Loan or an Alternative Currency Loan, as applicable, or issuing or
participating in Letters of Credit or to reduce the yield or amount of any sum
received or receivable by any of the Lenders under this Agreement or under the
Notes in respect of a LIBOR Rate Loan or an Alternative Currency Loan, as
applicable, or Letter of Credit, then such Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Domestic Borrower, on behalf of itself and the Canadian Borrower, of such fact
and demand compensation therefor and, within fifteen (15) days after such notice
by the Administrative Agent, the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for such
increased cost or reduction. The Administrative Agent will promptly notify the
Domestic Borrower, on behalf of itself and the Canadian Borrower, of any event
of which it has knowledge which will entitle such Lender to compensation
pursuant to this Section 5.11(c); provided, that the Administrative Agent shall
incur no liability whatsoever to the Lenders or the Borrowers in the event it
fails to do so. The amount of such compensation shall be determined, in the
applicable Lender's sole discretion, based upon the assumption that such Lender
funded its Revolving Credit Commitment Percentage or Term Loan Percentage, as
applicable, of the LIBOR Rate Loans or Alternative Currency Loans as applicable,
in the London interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Domestic Borrower, on behalf
of itself and the Canadian Borrower, through the Administrative Agent and shall
be conclusively presumed to be correct save for manifest error.
(d) Exchange Indemnification and Increased Costs. Subject to the terms
of Section 15.21, the Borrowers shall, upon demand from the Administrative
Agent, pay to the Administrative Agent or any applicable Lender, the amount of
(i) any loss or cost or increased cost incurred by the Administrative Agent or
any applicable Lender, (ii) any reduction in any amount payable to or in the
effective return on the capital to the Administrative Agent or any applicable
Lender or (iii) any currency exchange loss, that the Administrative Agent or any
applicable Lender sustains as a result of any payment being made by the Borrower
in a currency other than that originally extended to the Borrower or as a result
of any other currency exchange loss incurred by the Administrative Agent or any
applicable Lender under this Agreement. A certificate of the Administrative
Agent setting forth the basis for determining such additional amount or amounts
necessary to compensate the Administrative Agent or the applicable Lender shall
be conclusively presumed to be correct save for manifest error.
SECTION 5.12 Indemnity. Subject to the terms of Section 15.21, the
Borrowers hereby indemnify each of the Lenders against any loss or expense
(including, without limitation, any foreign exchange costs) which may arise or
be attributable to each Lender's obtaining,
54
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by any Borrower to make
any payment when due of any amount due hereunder in connection with a LIBOR Rate
Loan or an Alternative Currency Loan, as applicable, (b) due to any failure of
any Borrower to borrow, continue or convert on a date specified therefor in a
Notice of Borrowing, a Notice of Conversion/Continuation, a Notice of Conversion
to Acceptances or a Notice to Renew Acceptances or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan or any Alternative Currency
Loan, as applicable, on a date other than the last day of the Interest Period or
Canadian Interest Period, as applicable, therefor. The amount of such loss or
expense shall be determined, in the applicable Lender's sole discretion, based
upon the assumption that such Lender funded its Revolving Credit Commitment
Percentage or Term Loan Percentage, as applicable, of the LIBOR Rate Loans in
the London interbank market and using any reasonable attribution or averaging
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Domestic Borrower, on behalf
of itself and the Canadian Borrower, through the Administrative Agent and shall
be conclusively presumed to be correct save for manifest error.
SECTION 5.13 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which such Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrowers shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Domestic Borrower, on behalf of itself and the
Canadian Borrower, and the Administrative Agent by such Lender, shall, in the
absence of manifest error, be presumed to be correct and binding for all
purposes.
SECTION 5.14 Taxes.
(a) Payments Free and Clear. Except as otherwise provided in Section
5.14(e), any and all payments by the Borrowers hereunder or under the Notes or
the Letters of Credit shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholding, and all liabilities with respect thereto excluding, (i) in the case
of each Lender and the Administrative Agent, income and franchise taxes imposed
by each jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or is or should be qualified to do
business or any political subdivision thereof and (ii) in the case of each
Lender, income and franchise taxes imposed by the jurisdiction of such Lender's
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct or
55
withhold any Taxes from or in respect of any sum payable hereunder or under any
Note or in respect of any Letter of Credit to any Lender or the Administrative
Agent, (A) except as otherwise provided in Section 5.14(e), the sum payable
shall be increased as may be necessary so that after making all required
deductions or withholdings (including deductions or withholdings applicable to
additional sums payable under this Section 5.14) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the amount
such party would have received had no such deductions or withholdings been made,
(B) such Borrower shall make such deductions or withholdings, (C) such Borrower
shall pay the full amount deducted to the relevant taxing authority or other
authority in accordance with Applicable Law, and (D) such Borrower shall deliver
to the Administrative Agent and such Lender evidence of such payment to the
relevant taxing authority or other Governmental Authority in the manner provided
in Section 5.14(d).
(b) Stamp and Other Taxes. Except for Taxes and income and franchise
taxes excluded from the definition of "Taxes" herein, the Borrowers shall pay
any present or future stamp, registration, recordation or documentary taxes or
any other similar fees or charges or excise or property taxes, levies of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Loans, the Letters of Credit, the other Loan Documents, or the
perfection of any rights or security interest in respect thereof (hereinafter
referred to as "Other Taxes").
(c) Indemnity. Except as otherwise provided in Sections 5.14(e) and
15.21, the Borrowers shall indemnify each Lender and the Administrative Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes and Other Taxes imposed by any jurisdiction on amounts payable under this
Section 5.14) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Such indemnification shall be made within thirty
(30) days from the date such Lender or the Administrative Agent (as the case may
be) makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Domestic Borrower, on behalf of itself and
the Canadian Borrower, shall furnish to the Administrative Agent, at its address
referred to in Section 15.1, the original or a certified copy of a receipt
evidencing payment thereof or other evidence of payment satisfactory to the
Administrative Agent.
(e) Delivery of Tax Forms. To the extent required by Applicable Law to
reduce or eliminate withholding or payment of taxes, each Lender that is
organized under the laws of any jurisdiction other than the United States of
America or any State thereof (including the District of Columbia) shall deliver
to the Domestic Borrower, on behalf of itself and the Canadian Borrower, with a
copy to the Administrative Agent, on the Closing Date or concurrently with the
delivery of the relevant Assignment and Acceptance, as applicable, (i) two
United States Internal Revenue Service Forms W-9, Forms W-8ECI or Forms W-8BEN,
as applicable (or successor forms) properly completed and certifying in each
case that such Lender is entitled to a complete exemption
56
from withholding or deduction for or on account of any United States federal
income taxes, and (ii) an Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding taxes. Each such Lender further agrees to
deliver to the Domestic Borrower, on behalf of itself and the Canadian Borrower,
with a copy to the Administrative Agent, as applicable, two Form W-9, Form
W-8BEN or W-8ECI, or successor applicable forms or manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Domestic Borrower, on behalf of
itself and the Canadian Borrower, certifying in the case of a Form W-9, Form
W-8BEN or W-8ECI (or successor forms) that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes (unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
such forms inapplicable or the exemption to which such forms relate unavailable
and such Lender notifies the Domestic Borrower, on behalf of itself and the
Canadian Borrower, and the Administrative Agent that it is not entitled to
receive payments without deduction or withholding of United States federal
income taxes) and, in the case of a Form W-9, Form W-8BEN or W-8ECI,
establishing an exemption from United States backup withholding tax.
Notwithstanding anything in any Loan Document to the contrary, the Borrowers
shall not be required to pay additional amounts to any Lender or the
Administrative Agent under this Section 5.14 or Section 5.11(c), (i) if such
Lender or the Administrative Agent fails to comply with the requirements of this
Section 5.14(e), other than to the extent that such failure is due to a change
in Applicable Law occurring after the date on which such Lender or the
Administrative Agent became a party to this Agreement or (ii) that are the
result of such Lender's or the Administrative Agent's gross negligence or
willful misconduct, as applicable.
(f) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 5.14 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 5.15 Replacement of Lenders.
(a) If any Lender requests compensation pursuant to Section 5.11 or
Section 5.13, or if the Domestic Borrower or the Canadian Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 5.14, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 5.11, Section 5.13 or Section 5.14, as the case may
be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrowers hereby agree to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
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(b) If any Lender requests compensation pursuant to Section 5.11 or
Section 5.13, or if the Domestic Borrower or the Canadian Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 5.14, then the Domestic Borrower may,
at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 15.10), all of its interests, rights and obligations under this
Agreement to a Purchaser that shall assume such obligations (which Purchaser may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Domestic Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees, breakage costs
and all other amounts payable to it hereunder, from the Purchaser (to the extent
of such outstanding principal and accrued interest and fees) or the Borrowers
(in the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation pursuant to Section 5.11 or Section
5.13, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Domestic Borrower to require such
assignment and delegation cease to apply.
(c) To the extent that any Lender (a "Replaced Lender") is required to
assign all of its interests, rights and obligations under this Agreement to a
Purchaser (a "Replacement Lender") pursuant to this Section 5.15, upon the
execution of all applicable assignment documents and the satisfaction of all
other conditions set forth herein, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to be a Lender hereunder, except
with respect to the indemnification provisions under this Agreement, which
provisions shall survive as to such Replaced Lender.
SECTION 5.16 Guaranty Requirements.
(a) The Obligations of the Domestic Borrower shall be guarantied by the
Material Domestic Subsidiaries pursuant to the Domestic Subsidiary Guaranty
Agreement (including, without limitation, each supplement executed pursuant
thereto).
(b) The Obligations of the Canadian Borrower shall be guarantied by (i)
the Material Domestic Subsidiaries pursuant to the Domestic Subsidiary Guaranty
Agreement (including, without limitation, each supplement executed pursuant
thereto), (ii) the Material Canadian Subsidiaries pursuant to the Canadian
Subsidiary Guaranty Agreement (including, without limitation, each supplement
executed pursuant thereto) and (iii) the Domestic Borrower pursuant to the
Domestic Borrower Guaranty Agreement.
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ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. at 10:00 a.m. on June 25, 2002, or
on such other date and time, or such other place as the parties hereto shall
mutually agree.
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents in form and
substance satisfactory to the Agents and each Lender:
(i) this Agreement;
(ii) the Revolving Credit Notes (as applicable);
(iii) the Swingline Note (as applicable);
(iv) the Alternative Currency Note (as applicable);
(v) the Term Notes (as applicable);
(vi) the Subsidiary Guaranty Agreements; and
(vii) all other applicable Loan Documents;
shall have been duly authorized, executed and delivered to the Agents by the
parties thereto, shall be in full force and effect and no Default or Event of
Default shall exist thereunder, and the Borrowers shall have delivered original
counterparts thereof to the Agents.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Domestic Borrower. The Agents
shall have received a certificate from a Responsible Officer of the Domestic
Borrower, in form and substance satisfactory to the Agents, to the effect that
all representations and warranties of the Domestic Borrower and its Subsidiaries
contained in this Agreement and the other Loan Documents are true, correct and
complete; that the Domestic Borrower and its Subsidiaries are not in violation
of any of the covenants contained in this Agreement and the other Loan
Documents; that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is continuing; and
that the Domestic Borrower and its Subsidiaries have satisfied each of the
closing conditions.
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(ii) Certificate of Secretary of the Borrowers and the
Material Subsidiaries. The Agents shall have received a certificate of the
secretary or assistant secretary of each Borrower and each Material Subsidiary
certifying as to the incumbency and genuineness of the signature of each officer
of each Borrower and each Material Subsidiary executing Loan Documents to which
it is a party and certifying that attached thereto is a true, correct and
complete copy of (A) the articles of incorporation of such Borrower or such
Material Subsidiary and all amendments thereto, certified as of a recent date by
the appropriate Governmental Authority in its jurisdiction of incorporation, (B)
the bylaws of such Borrower or such Material Subsidiary as in effect on the date
of such certifications, (C) resolutions duly adopted by the Board of Directors
of such Borrower or such Material Subsidiary authorizing the borrowings
contemplated hereunder, the delivery of the Domestic Borrower Guaranty Agreement
or the delivery of the Subsidiary Guaranty Agreements, as the case may be, and
the execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party, and (D) each certificate required to be
delivered pursuant to Section 6.2(b)(iii).
(iii) Certificates of Good Standing of the Borrowers and the
Material Subsidiaries. The Agents shall have received certificates as of a
recent date of the good standing of each Borrower and each Material Subsidiary
under the laws of its jurisdiction of organization and, to the extent requested
by the Agents, each other jurisdiction where each Borrower and each Material
Subsidiary is qualified to do business and a certificate of the relevant taxing
authorities of such jurisdictions certifying that such Person has filed required
tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel.
(A) The Agents shall have received favorable
opinions of counsel to the Domestic Borrower and the Material Domestic
Subsidiaries addressed to the Agents and the Lenders with respect to the
Domestic Borrower, the Material Subsidiaries, the Loan Documents and such other
matters as the Lenders shall request.
(B) The Agents shall have received favorable opinions
of counsel to the Canadian Borrower and the Material Canadian Subsidiaries
addressed to the Agents and the Lenders with respect to the Canadian Borrower,
the Material Canadian Subsidiaries, the Loan Documents and such other matters as
the Lenders shall request.
(v) Tax Forms. The Agents shall have received copies of the
United States Internal Revenue Service forms required by Section 5.14(e).
(c) Hazard and Liability Insurance. The Agents shall have received
certificates of insurance, evidence of payment of all insurance premiums for the
current policy year of each, and, if requested by the Agents, copies (certified
by a Responsible Officer of the Domestic Borrower) of insurance policies in form
and substance reasonably satisfactory to the Agents, and a complete list of all
insurance required pursuant to Section 9.3.
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(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. Each Borrower and
each Material Subsidiary shall have obtained all necessary approvals,
authorizations and consents of any Person and of all Governmental Authorities
and courts having jurisdiction with respect to the transactions contemplated by
this Agreement and the other Loan Documents, all in form and substance
satisfactory to the Agents.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in each Agents' sole discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Agents shall have received the
most recent audited Consolidated financial statements of the Domestic Borrower
and its Subsidiaries, all in form and substance satisfactory to the Agents and
prepared in accordance with GAAP.
(ii) Financial Condition Certificate. The Domestic Borrower,
on behalf of itself and the Canadian Borrower, shall have delivered to the
Agents a certificate, in form and substance satisfactory to the Agents, and
certified as accurate by a Responsible Officer of the Domestic Borrower, that
(A) the Domestic Borrower and each of its Subsidiaries are each Solvent, (B) the
payables of the Domestic Borrower and each of its Subsidiaries are current and
not past due in any material respect, (C) attached thereto are calculations
evidencing compliance on a pro forma basis with the covenants contained in
Article X, (D) the financial projections previously delivered to the Agents
represent the good faith estimates (utilizing reasonable assumptions) of the
financial condition and operations of the Domestic Borrower and its
Subsidiaries, (E) attached thereto is a calculation of the Applicable Margin
pursuant to Section 5.1(c) and the Commitment Fee Rate pursuant to Section
5.3(a) and (F) attached thereto are the calculations of the book value of the
assets of the Domestic Borrower and each of its Subsidiaries for the purpose of
determining which Subsidiaries are Material Subsidiaries on the Closing Date.
(iii) Payment at Closing; Fee Letters. The Borrowers shall
have paid to the Agents and the Lenders the fees set forth or referenced in
Section 5.3 and any other accrued and unpaid fees or commissions due hereunder
(including, without limitation, legal fees and expenses) and to any other Person
such amount as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in connection
with the execution, delivery, recording, filing and registration of any of the
Loan Documents.
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(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing, as applicable, from the Domestic Borrower, on
behalf of itself and the Canadian Borrower, in accordance with Section 2.4 and
Section 4.2, and a Notice of Account Designation specifying the account or
accounts to which the proceeds of any Loans made after the Closing Date are to
be disbursed.
(ii) Existing Facility. The Existing Facility shall be repaid
in full (other than the Existing Letters of Credit) and terminated and all
collateral security therefor shall be released, and the Agents shall have
received a pay-off letter in form and substance satisfactory thereto evidencing
such repayment, termination, reconveyance and release.
(iii) Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory in form and substance to the Agents. The
Agents shall have received copies of all other documents, certificates and
instruments reasonably requested thereby with respect to the transactions
contemplated by this Agreement, all in form and substance satisfactory to the
Agents.
SECTION 6.3 Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, conversion, continuation,
issuance or extension date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VII shall be true and correct on and as of
such borrowing, conversion, continuation, issuance or extension date with the
same effect as if made on and as of such date; except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, conversion or continuation date
with respect to such Loan or after giving effect to the Loans to be made,
converted or continued on such date or (ii) on the issue date with respect to
such Letter of Credit or after giving effect to the issuance or extension of
such Letter of Credit on such date.
(c) Compliance with Borrowing Limits. The Borrowers shall have
demonstrated compliance with Section 2.6(b), (i) on the borrowing, conversion or
continuation date with respect to such Loan or after giving effect to the Loans
to be made, converted or continued on such date or (ii) on the issue date with
respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(d) Applicable Notices. The Administrative Agent shall have received a
Notice a Borrowing or Notice of Conversion/Continuation, as applicable, from the
Domestic Borrower, on
62
behalf of itself and the Canadian Borrower, in accordance with Section 2.4,
Section 4.2 or Section 5.2.
(e) Additional Documents. The Administrative Agent shall have received
each additional document, instrument, legal opinion or other item reasonably
requested by it, each of which shall be in form and substance satisfactory to
the Administrative Agent.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
SECTION 7.1 Representations and Warranties. To induce the Agents and
the Lenders to enter into this Agreement and to induce the Lenders to make
Extensions of Credit, the Borrowers hereby represent and warrant to the Agents
and Lenders both before and after giving effect to the transactions contemplated
hereunder that:
(a) Organization; Power; Qualification. Each of the Domestic Borrower
and its Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization except where failure to be so qualified and authorized could not
reasonably be expected to have a Material Adverse Effect. The jurisdictions in
which the Domestic Borrower and its Subsidiaries are organized as of the Closing
Date are described on Schedule 7.1(a).
(b) Ownership. Schedule 7.1(b) lists each Subsidiary of the Domestic
Borrower as of the Closing Date and identifies which Subsidiaries are Material
Domestic Subsidiaries or Material Canadian Subsidiaries. As of the Closing Date,
the capitalization of the Domestic Borrower and its Subsidiaries consists of the
number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 7.1(b). All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
and not subject to any preemptive or similar rights. The shareholders of the
Subsidiaries of the Domestic Borrower and the number of shares owned by each as
of the Closing Date are described on Schedule 7.1(b). As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Domestic Borrower or its Subsidiaries, except
as described on Schedule 7.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
the Domestic Borrower and its Subsidiaries has the right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents have been duly
63
executed and delivered by the duly authorized officers of the Domestic Borrower
and each of its Subsidiaries party thereto, and each such document constitutes
the legal, valid and binding obligation of the Domestic Borrower or its
Subsidiary party thereto, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Domestic Borrower and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder and
the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to the Domestic Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of
the Domestic Borrower or any of its Subsidiaries or any indenture, agreement or
other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
(iii) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Person other
than Liens arising under the Loan Documents or (iv) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement.
(e) Compliance with Law; Governmental Approvals. Each of the Domestic
Borrower and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, the failure of which to obtain could reasonably be
expected to have a Material Adverse Effect, (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties, the failure
of which to comply with could reasonably be expected to have a Material Adverse
Effect and (iii) has timely filed all reports, documents and other materials
required to be filed by it under all Applicable Laws with any Governmental
Authority and has retained all records and documents required to be retained by
it under Applicable Law, the failure of which to file or retain could reasonably
be expected to have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Domestic Borrower and its
Subsidiaries has duly filed or caused to be filed all federal and state income
tax returns, and all other material tax returns under Applicable Law to be
filed, and has paid, or made adequate provision for the payment of, all federal
and state income taxes, and all other material taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable. Such returns accurately reflect in all
material respects all liability for taxes of the Domestic Borrower and its
Subsidiaries for the periods covered thereby. There is no ongoing audit or
examination or, to the knowledge of the Borrowers, other investigation by any
Governmental
64
Authority of the tax liability of the Domestic Borrower and its
Subsidiaries which could reasonably be expected to result in liability of the
Domestic Borrower and its Subsidiaries in excess of $1,000,000, except such
audits, examinations or other investigations being contested by the Domestic
Borrower or such Subsidiary in good faith so long as adequate reserves are
maintained with respect thereto in accordance with GAAP. No Governmental
Authority has asserted any Lien or other claim against the Domestic Borrower or
any Subsidiary thereof in excess of $1,000,000 with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of the Domestic Borrower and any of its Subsidiaries in respect of
federal, state, local and other taxes for all Fiscal Years and portions thereof
since the organization of the Domestic Borrower and any of its Subsidiaries are
in the judgment of the Borrowers adequate, and the Borrowers do not anticipate
any additional material taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the Domestic Borrower and
its Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, service marks, service ▇▇▇▇ rights,
trade names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business, except where the failure
to own or possess could not reasonably be expected to have a Material Adverse
Effect. No event has occurred which permits, or after notice or lapse of time or
both would permit, the revocation or termination of any such rights, and neither
the Domestic Borrower nor any Subsidiary thereof is liable to any Person for
infringement under Applicable Law with respect to any such rights as a result of
its business operations.
(h) Environmental Matters.
(i) The properties owned, leased or operated by the Domestic
Borrower and its Subsidiaries now or in the past do not contain, and to their
knowledge have not previously contained, any Hazardous Materials in amounts or
concentrations which (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could give rise to liability under applicable
Environmental Laws the result of which could reasonably be expected to have a
Material Adverse Effect;
(ii) The Domestic Borrower, each Subsidiary and such
properties and all operations conducted in connection therewith are in
compliance, and have been in material compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about such
properties or such operations which could interfere with the continued operation
of such properties or impair the fair saleable value thereof except to the
extent any such non-compliance or contamination could not reasonably be expected
to have a Material Adverse Effect;
(iii) Neither the Domestic Borrower nor any Subsidiary thereof
has received any notice of any violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters, Hazardous
Materials, or compliance with Environmental Laws, nor does the Domestic Borrower
or any Subsidiary thereof have knowledge or reason to believe
65
that any such notice will be received or is being threatened except as could not
reasonably be expected to have a Material Adverse Effect;
(iv) Hazardous Materials have not been transported or disposed
of to or from the properties owned, leased or operated by the Domestic Borrower
and its Subsidiaries in violation of, or in a manner or to a location which
could give rise to liability under, Environmental Laws, nor have any Hazardous
Materials been generated, treated, stored or disposed of at, on or under any of
such properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Laws that could reasonably be
expected to have a Material Adverse Effect;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which the Domestic Borrower or any Subsidiary thereof is or
will be named as a potentially responsible party with respect to such properties
or operations conducted in connection therewith, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to Domestic Borrower, any Subsidiary or such
properties or such operations that could reasonably be expected to have a
Material Adverse Effect; and
(vi) There has been no release, or to the best of the
Borrowers' knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by the Domestic Borrower or any Subsidiary,
now or in the past, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws that could reasonably be expected to
have a Material Adverse Effect.
(i) ERISA.
(i) As of the Closing Date, neither the Domestic Borrower nor
any ERISA Affiliate maintains or contributes to, or has any obligation under,
any Employee Benefit Plans other than those identified on Schedule 7.1(i);
(ii) The Domestic Borrower and each ERISA Affiliate is in
material compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee Benefit
Plans except for any required amendments for which the remedial amendment period
as defined in Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue Service
to be so qualified, and each trust related to such plan has been determined to
be exempt under Section 501(a) of the Code except for such plans that have not
yet received determination letters that were timely requested by the Domestic
Borrower, or for which the remedial amendment period for submitting a
determination letter request has not yet expired. No liability has been incurred
by the Domestic Borrower or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be expected
to have a Material Adverse Effect;
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(iii) As of the Closing Date, no Pension Plan has been
terminated, nor has any accumulated funding deficiency (as defined in Section
412 of the Code) been incurred (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan, nor has the
Domestic Borrower or any ERISA Affiliate failed to make any contributions or to
pay any amounts due and owing as required by Section 412 of the Code, Section
302 of ERISA or the terms of any Pension Plan on or prior to the due dates of
such contributions under Section 412 of the Code or Section 302 of ERISA, nor
has there been any event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan;
(iv) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, neither the Domestic Borrower nor
any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction
described in Section 406 of the ERISA or Section 4975 of the Code, (B) incurred
any liability to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid, (C) failed
to make a required contribution or payment to a Multiemployer Plan, or (D)
failed to make a required installment or other required payment under Section
412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, no proceeding, claim (other than a
benefits claim in the ordinary course of business), lawsuit and/or investigation
is existing or, to the best knowledge of the Borrowers after due inquiry,
threatened concerning or involving any (A) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by the
Domestic Borrower or any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer
Plan.
(j) Margin Stock. Neither the Domestic Borrower nor any Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" (as each such term is defined or used, directly or indirectly, in
Regulation U of the Board of Governors of the Federal Reserve System). No part
of the proceeds of any of the Loans or Letters of Credit will be used for
purchasing or carrying margin stock or for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation T, U or X of such Board
of Governors.
(k) Government Regulation. Neither the Domestic Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Domestic Borrower nor any
Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Public Utility Holding Company Act of 1935
or the Interstate Commerce Act, each as amended, or any other Applicable Law
which limits its ability to incur or consummate the transactions contemplated
hereby.
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(l) Material Contracts. Schedule 7.1(l) sets forth a complete and
accurate list of all Material Contracts of the Domestic Borrower and its
Subsidiaries in effect as of the Closing Date not listed on any other Schedule
hereto; other than as set forth in Schedule 7.1(l), each such Material Contract
is, and after giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in accordance with the
terms thereof. The Domestic Borrower and its Subsidiaries have delivered to the
Agents a true and complete copy of each Material Contract required to be listed
on Schedule 7.1(l) or any other Schedule hereto. Neither the Domestic Borrower
nor any Subsidiary (nor, to the knowledge of the Borrowers, any other party
thereto) is in breach of or in default under any Material Contract in any
material respect.
(m) Employee Relations. Each of the Domestic Borrower and its
Subsidiaries has a stable work force in place and is not, as of the Closing
Date, party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees except as set forth on
Schedule 7.1(m). The Borrowers know of no pending, threatened or contemplated
strikes, work stoppage or other collective labor disputes involving its
employees or those of its Subsidiaries that could reasonably be expected to have
a Material Adverse Effect.
(n) Burdensome Provisions. Neither the Domestic Borrower nor any
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction, Governmental
Approval or Applicable Law which is so unusual or burdensome as in the
foreseeable future could be reasonably expected to have a Material Adverse
Effect. The Domestic Borrower and its Subsidiaries do not presently anticipate
that future expenditures needed to meet the provisions of any statutes, orders,
rules or regulations of a Governmental Authority will be so burdensome as to
have a Material Adverse Effect. No Subsidiary is party to any agreement or
instrument or otherwise subject to any restriction or encumbrance that restricts
or limits its ability to make dividend payments or other distributions in
respect of its capital stock to the Domestic Borrower or any Subsidiary or to
transfer any of its assets or properties to the Domestic Borrower or any other
Subsidiary in each case other than existing under or by reason of the Loan
Documents or Applicable Law.
(o) Financial Statements. The (i) audited Consolidated balance sheet of
the Domestic Borrower and its Subsidiaries as of June 30, 2001 and the related
audited statements of income and retained earnings and cash flows for the Fiscal
Year then ended and (ii) unaudited Consolidated balance sheet of the Domestic
Borrower and its Subsidiaries as of March 30, 2002 and related unaudited interim
statements of income and retained earnings, copies of which have been furnished
to the Agents and each Lender, are complete and correct in all material respects
and fairly present on a Consolidated basis the assets, liabilities and financial
position of the Domestic Borrower and its Subsidiaries as at such dates, and the
results of the operations and changes of financial position for the periods then
ended (other than customary, year end adjustments for unaudited financial
statements). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP. The Domestic Borrower
and its Subsidiaries have no Debt, obligation or other unusual forward or
long-term commitment which is not fairly reflected in the foregoing financial
statements or in the notes thereto.
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(p) No Material Adverse Change. Since June 30, 2001, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Domestic Borrower and its Subsidiaries
and no event has occurred or condition arisen that could reasonably be expected
to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Domestic Borrower and each of its
Subsidiaries will be Solvent.
(r) Titles to Properties. Each of the Domestic Borrower and its
Subsidiaries has such title to the real property owned or leased by it as is
necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets, including, but not limited to, those
reflected on the balance sheets of the Domestic Borrower and its Subsidiaries
delivered pursuant to Section 7.1(o), except those which have been disposed of
by the Domestic Borrower or its Subsidiaries subsequent to such date which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted hereunder or where the failure to own or lease could not
reasonably be expected to have a Material Adverse Effect.
(s) Liens. None of the properties and assets of the Domestic Borrower
or any Subsidiary thereof is subject to any Lien, except Liens permitted
pursuant to Section 11.2. Except to perfect those Liens permitted by Section
11.2, no financing statement under the Uniform Commercial Code of any state
which names the Domestic Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been terminated,
has been filed in any state or other jurisdiction with the consent of the
Domestic Borrower or such Subsidiary and neither the Domestic Borrower nor any
Subsidiary thereof has signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement.
(t) Debt and Guaranty Obligations. Schedule 7.1(t) is a complete and
correct listing of each Debt and Guaranty Obligation of the Domestic Borrower
and its Subsidiaries as of the Closing Date in excess of $5,000,000. The
Domestic Borrower and its Subsidiaries have performed and are in compliance with
all of the terms of such Debt and Guaranty Obligations and all instruments and
agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Domestic Borrower or any of its
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 7.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrowers, threatened against or in any other way
relating adversely to or affecting the Domestic Borrower or any Subsidiary
thereof or any of their respective properties reasonably likely to result in a
judgment for damages in excess of $5,000,000 in any court or before any
arbitrator of any kind or before or by any Governmental Authority.
(v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving
69
of notice or both would constitute, a default or event of default by the
Domestic Borrower or any Subsidiary thereof under any Material Contract or
judgment, decree or order to which the Domestic Borrower or its Subsidiaries is
a party or by which the Domestic Borrower or its Subsidiaries or any of their
respective properties may be bound or which would require the Domestic Borrower
or its Subsidiaries to make any payment thereunder prior to the scheduled
maturity date therefor.
(w) Senior Debt Status. The Obligations of the Borrowers and each of
their Subsidiaries under this Agreement and each of the other Loan Documents
ranks and shall continue to rank at least senior in priority of payment to all
Subordinated Debt and at least pari passu in priority of payment to all senior
unsecured Debt of each such Person and is designated as "Senior Indebtedness"
under all instruments and documents, now or in the future, relating to all
Subordinated Debt of such Person.
(x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Domestic
Borrower or any Subsidiary thereof (other than financial projections, which
shall be subject to the standard set forth in Section 8.1(c)) and furnished to
the Lenders were, at the time the same were so furnished, complete and correct
in all material respects to the extent necessary to give the recipient a true
and accurate knowledge of the subject matter. No document furnished or written
statement made to the Agents or the Lenders by the Domestic Borrower or any
Subsidiary thereof in connection with the negotiation, preparation or execution
of this Agreement or any of the Loan Documents contains or will contain any
untrue statement of a fact material to the creditworthiness of the Domestic
Borrower or its Subsidiaries or omits or will omit to state a fact necessary in
order to make the statements contained therein not materially misleading. The
Borrowers are not aware of any facts which they have not disclosed in writing to
the Agents having a Material Adverse Effect, or insofar as the Borrowers can now
foresee, which could reasonably be expected to have a Material Adverse Effect.
SECTION 7.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VII and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date (except those that are expressly made as of a specific date), shall
survive the Closing Date and shall not be waived by the execution and delivery
of this Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 15.11, the
70
Domestic Borrower, on behalf of itself and the Canadian Borrower, will furnish
or cause to be furnished to the Administrative Agent and the Syndication Agent
at their respective addresses set forth in Section 15.1 and to the Lenders at
their respective addresses as set forth on Schedule 1.1(a), or such other office
as may be designated by the Administrative Agent, the Syndication Agent and the
Lenders from time to time:
SECTION 8.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within fifty (50) days after the end of each fiscal quarter of each Fiscal
Year, an unaudited Consolidated and consolidating balance sheet of the Domestic
Borrower and its Subsidiaries as of the close of such fiscal quarter and
unaudited Consolidated and consolidating statements of income, retained earnings
and cash flows for the fiscal quarter then ended and that portion of the Fiscal
Year then ended, including the notes thereto, all in reasonable detail setting
forth in comparative form the corresponding figures as of the end of and for the
corresponding period in the preceding Fiscal Year and prepared by the Domestic
Borrower in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of the Domestic Borrower to present
fairly in all material respects the financial condition of the Domestic Borrower
and its Subsidiaries on a Consolidated and consolidating basis as of their
respective dates and the results of operations of the Domestic Borrower and its
Subsidiaries for the respective periods then ended, subject to normal year end
adjustments (it being agreed that the requirements of this subsection may be
satisfied by delivery of the applicable quarterly report on Form 10-Q of the
Domestic Borrower to the Securities and Exchange Commission to the extent that:
(i) it contains the foregoing information, (ii) it is delivered within the
applicable time period noted herein and is available to the Lenders on ▇▇▇▇▇ and
(iii) the Domestic Borrower notifies the Lenders within the time period noted
herein that it is available to them on ▇▇▇▇▇).
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety-five (95) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Domestic Borrower and its Subsidiaries as of
the close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the
notes thereto, all in reasonable detail setting forth in comparative form the
corresponding figures as of the end of and for the preceding Fiscal Year and
prepared by an independent certified public accounting firm acceptable to the
Administrative Agent in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
year, and accompanied by an unqualified audit report thereon by such certified
public accountants (it being agreed that the requirements of this subsection may
be satisfied by delivery of the applicable annual report on Form 10-K of the
Domestic Borrower to the Securities and Exchange Commission to the extent that:
(i) it contains the foregoing information, (ii) it is delivered within the
applicable time period noted herein and is available to the Lenders on ▇▇▇▇▇ and
(iii) the Domestic Borrower notifies the Lenders within the time period noted
herein that it is available to them on ▇▇▇▇▇).
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(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within forty-five (45) days after the beginning of
each Fiscal Year, a business plan of the Domestic Borrower and its Subsidiaries
(i) for the ensuing four (4) fiscal quarters, on a quarterly basis, and (ii) for
each ensuing Fiscal Year for the remaining term of this Agreement, on an annual
basis, such plan to be prepared in accordance with GAAP and to include, on a
quarterly or annual basis, as applicable, the following: an operating and
capital budget, a projected income statement, statement of cash flows and
balance sheet and a report containing management's discussion and analysis of
such projections, accompanied by a certificate from the chief financial officer
of the Domestic Borrower to the effect that, to the best of such officer's
knowledge, such projections are good faith estimates (utilizing reasonable
assumptions) of the financial condition and operations of the Domestic Borrower
and its Subsidiaries for such periods.
SECTION 8.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 8.1(a) or (b) and at such other
times as either of the Agents shall reasonably request, a certificate of the
chief financial officer or the treasurer of the Domestic Borrower in the form of
Exhibit F attached hereto (an "Officer's Compliance Certificate").
SECTION 8.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 8.1(b), a certificate of the independent
public accountants certifying such financial statements addressed to the
Administrative Agent, for the benefit of the Agents and the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required to
establish whether or not the Domestic Borrower and its Subsidiaries are in
compliance with the financial covenants set forth in Article X as at the end of
each respective period.
SECTION 8.4 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to any Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
(b) Such other information regarding the operations, business affairs
and financial condition of each Borrower and each Subsidiary thereof as any
Agent or any Lender may reasonably request.
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SECTION 8.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of (i) all proceedings and investigations by or
before any Governmental Authority involving the Domestic Borrower or any
Subsidiary thereof or any of their respective properties, assets or businesses
and (ii) all actions and proceedings in any court or before any arbitrator
reasonably likely to involve a claim for damages in excess of $5,000,000 against
the Domestic Borrower or any Subsidiary thereof or any of their respective
properties, assets or businesses;
(b) any notice of any violation received by the Domestic Borrower or
any Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, which in any such
case could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against the Domestic Borrower or any
Subsidiary thereof which could reasonably be expected to have a Material Adverse
Effect;
(d) any attachment, judgment, lien, levy or order exceeding $5,000,000
that may be assessed against or threatened against the Domestic Borrower or any
Subsidiary thereof;
(e) (i) any Default or Event of Default, (ii) the occurrence or
existence of any event or circumstance that foreseeably will become a Default or
Event of Default or (iii) any event which constitutes or which with the passage
of time or giving of notice or both would constitute a default or event of
default under any Material Contract to which the Domestic Borrower or any of its
Subsidiaries is a party or by which the Domestic Borrower or any of its
Subsidiaries or any of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Domestic Borrower or any ERISA Affiliate of the PBGC's intent to terminate any
Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by the Domestic Borrower or any ERISA Affiliate from
a Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA unless such liability could not
reasonably be expected to have a Material Adverse Effect and (iv) the Domestic
Borrower obtaining knowledge or reason to know that the Domestic Borrower or any
ERISA Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section 4041(c)
of ERISA; and
(g) any event which makes any of the representations set forth in
Section 7.1 inaccurate in any respect.
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SECTION 8.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrowers
to any Agent or any Lender whether pursuant to this Article VIII or any other
provision of this Agreement, shall, at the time the same is so furnished, comply
with the representations and warranties set forth in Section 7.1(x).
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 15.11, the Domestic Borrower will, and will cause each
of its Subsidiaries to:
SECTION 9.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 11.4, preserve and maintain its separate
corporate existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2 Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names, service marks and trademarks; maintain in good working
order and condition all material buildings, equipment and other tangible real
and personal property; and make or cause to be made all renewals, replacements
and additions to such property necessary for the conduct of its business, so
that the business carried on in connection therewith may be conducted in a
commercially reasonable manner.
SECTION 9.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law and, on the Closing Date and from time to time thereafter,
deliver to the Agents upon request a detailed list of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 9.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be necessary
to permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 9.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all material taxes, assessments and other governmental charges that
may be levied or assessed upon
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it or any of its property, and (b) all other indebtedness, obligations and
liabilities in accordance with customary trade practices; provided, that the
Domestic Borrower or such Subsidiary may contest any item described in clauses
(a) or (b) of this Section 9.5 in good faith so long as adequate reserves are
maintained with respect thereto in accordance with GAAP.
SECTION 9.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all Governmental Approvals, in each case applicable to the
conduct of its business, the failure of which to observe or comply with could
reasonably be expected to have a Material Adverse Effect.
SECTION 9.7 Environmental Laws. In addition to and without limiting the
generality of Section 9.6, (a) materially comply with, and ensure such material
compliance by all tenants and subtenants, if any, with all applicable
Environmental Laws and obtain and materially comply with and maintain, and
ensure that all tenants and subtenants, if any, obtain and materially comply
with and maintain, any and all material licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws, (b) conduct
and complete all necessary investigations, studies, sampling and testing, and
all remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, and (c) defend, indemnify and hold
harmless the Agents and the Lenders, and their respective parents, Subsidiaries,
Affiliates, employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the presence of Hazardous Materials,
or the violation of, noncompliance with or liability under any Environmental
Laws applicable to the operations of the Domestic Borrower or any such
Subsidiary, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 9.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 9.6, (a) except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
excluding any liability incurred in the ordinary course for plan contributions,
PBGC insurance premiums or withdrawal liability that the responsible Person will
timely pay or contest pursuant to Applicable Law, (iii) not participate in any
prohibited transaction that could result in any civil penalty under ERISA or tax
under the Code and (iv) operate each Employee Benefit Plan in such a manner that
will not incur any tax liability under Section 4980B of the Code or any
liability to any qualified beneficiary as defined in Section 4980B of the Code
and (b) furnish to the Agents upon request such additional information about any
Employee Benefit Plan as may be reasonably requested by either of the Agents.
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SECTION 9.9 Compliance With Agreements. Comply in all material respects
with each term, condition and provision of all material leases, agreements and
other instruments entered into in the conduct of its business including, without
limitation, any Material Contract; provided, that the Domestic Borrower or any
such Subsidiary may contest any such lease, agreement or other instrument in
good faith through applicable proceedings so long as adequate reserves are
maintained in accordance with GAAP.
SECTION 9.10 Visits and Inspections. Permit representatives of the
Agents or any Lender, from time to time, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent accountants; and
discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 9.11 Additional Subsidiaries.
(a) Upon (i) the creation or acquisition of any Material Domestic
Subsidiary or (ii) any Domestic Subsidiary becoming a Material Domestic
Subsidiary or being designated or identified as a Material Domestic Subsidiary
in accordance with the terms of this Agreement, cause to be executed and
delivered to the Agents (A) a supplement to the Domestic Subsidiary Guaranty
Agreement (pursuant to which such Material Domestic Subsidiary shall become
party to the Domestic Subsidiary Guaranty Agreement), (B) such closing documents
and closing certificates of the type required to be delivered pursuant to
Section 6.2(b), including, without limitation, favorable legal opinions
addressed to the Agents and the Lenders in form and substance reasonably
satisfactory thereto with respect to such duly executed supplement to the
Domestic Subsidiary Guaranty Agreement (and any other applicable Loan Documents
to which such Material Domestic Subsidiary shall become party thereto in
connection therewith), in each case as may reasonably be requested by the
Administrative Agent, and (C) such other documents and certificates as may be
requested by the Administrative Agent.
(b) Upon (i) the creation or acquisition of any Material Canadian
Subsidiary or (ii) any Canadian Subsidiary becoming a Material Canadian
Subsidiary or being designated or identified as a Material Canadian Subsidiary
in accordance with the terms of this Agreement, cause to be executed and
delivered to the Agents (A) a supplement to the Canadian Subsidiary Guaranty
Agreement (pursuant to which such Material Canadian Subsidiary shall become
party to the Canadian Subsidiary Guaranty Agreement), (B) such closing documents
and closing certificates of the type required to be delivered pursuant to
Section 6.2(b), including, without limitation, favorable legal opinions
addressed to the Agents and the Lenders in form and substance reasonably
satisfactory thereto with respect to such duly executed supplement to the
Canadian Subsidiary Guaranty Agreement (and any other applicable Loan Documents
to which such Material Canadian Subsidiary shall become party thereto in
connection therewith), in each case as may reasonably be requested by the
Administrative Agent, and (C) such other documents and certificates as may be
requested by the Administrative Agent.
SECTION 9.12 Use of Proceeds. The Borrowers shall use the proceeds of
the Extensions of Credit (a) to finance the acquisition of Capital Assets, (b)
to refinance existing
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indebtedness of the Borrowers under the Existing Credit Facility, (c) to finance
acquisitions permitted hereunder and (d) for working capital and general
corporate requirements of the Borrowers and their Subsidiaries, including the
payment of certain fees and expenses incurred in connection with the
transactions.
SECTION 9.13 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as either of the
Agents or the Required Lenders (through the Administrative Agent) may reasonably
require to document and consummate the transactions contemplated hereby and to
vest completely in and insure the Agents and the Lenders their respective rights
under this Agreement, the Notes, the Letters of Credit and the other Loan
Documents.
ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 15.11, the Domestic Borrower and its Subsidiaries on a
Consolidated basis will not:
SECTION 10.1 Leverage Ratio. As of any fiscal quarter end, permit the
ratio of (a) Total Debt on such date to (b) EBITDA for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such quarter end
to be greater than 3.00 to 1.00.
SECTION 10.2 Fixed Charge Coverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) EBITDA for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date minus Capital Expenditures
for such period to (b) Fixed Charges for the period of four (4) consecutive
fiscal quarters ending on or immediately prior to such quarter end to be less
than 1.25 to 1.00.
SECTION 10.3 Net Worth. As of the end of any fiscal quarter, permit Net
Worth to be less than (a) $260,996,000 plus (b) fifty percent (50%) of Net
Income (if positive) for each fiscal quarter ending after March 30, 2002 plus
(c) fifty percent (50%) of Net Cash Proceeds received by the Domestic Borrower
or any Subsidiary thereof from any equity issuance after March 30, 2002.
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 15.11, the Domestic Borrower has not and will not permit any of
its Subsidiaries to:
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SECTION 11.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant
to Section 11.1(b));
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent; provided, that any counterparty that
is a Lender or an Affiliate of a Lender shall be deemed satisfactory to the
Administrative Agent.
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 11.1, as set forth on Schedule 11.1, and the renewal, refinancing,
extension and replacement (but not the increase in the aggregate principal
amount) thereof;
(d) Debt of the Domestic Borrower and its Subsidiaries incurred in
connection with Capitalized Leases in an aggregate amount not to exceed
$15,000,000 on any date of determination;
(e) purchase money Debt of the Domestic Borrower and its Subsidiaries
in an aggregate amount not to exceed $10,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent, for the
benefit of the Agents and the Lenders;
(g) Guaranty Obligations with respect to Debt permitted pursuant to
subsections (b) through (e) of this Section 11.1;
(h) intercompany Debt (i) between the Domestic Borrower and any
Material Domestic Subsidiary or between any Material Domestic Subsidiary and any
other Material Domestic Subsidiary, (ii) between the Canadian Borrower and any
Material Canadian Subsidiary or between any Material Canadian Subsidiary and any
other Material Canadian Subsidiary and (iii) between the Domestic Borrower and
the Canadian Borrower, between any Material Domestic Subsidiary and the Canadian
Borrower, between the Domestic Borrower and any Material Canadian Subsidiary, or
between any Material Domestic Subsidiary and any Material Canadian Subsidiary;
provided (x) that the net amount of all such intercompany Debt from the Domestic
Borrower and any Domestic Subsidiary to any Canadian Subsidiary and vice versa
permitted pursuant to clause (iii) shall not exceed $15,000,000 at any time and
(y) nothing in this Section 11.1(h) shall prohibit intercompany Debt of the
Domestic Borrower or any Domestic Subsidiary to any Canadian Subsidiary;
provided that such intercompany Debt is due within thirty (30) days from the
date of the incurrence thereof and does not exceed $50,000,000 in the aggregate
at any time; and
(i) Subordinated Debt;
(j) Debt not otherwise permitted by this Section 11.1 in an aggregate
amount not to exceed the greater of $50,000,000 or ten percent (10%) of Net
Worth on any date of determination
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(provided that the Domestic Borrower and its Subsidiaries shall comply with the
Section 4.4(b)(i) in connection with the incurrence of such Debt);
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section 11.1 shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of any Borrower to make any
payment to such Borrower or any of its Subsidiaries (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling such Borrower to
pay the Obligations.
SECTION 11.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties (including
without limitation shares of capital stock or other ownership interests), real
or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
(e) Liens of the Administrative Agent, for the benefit of the Agents
and the Lenders;
(f) Liens not otherwise permitted by this Section 11.2 and in existence
on the Closing Date and described on Schedule 11.2;
(g) Liens securing Debt permitted under Sections 11.1(d) and (e);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of Debt secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price or lease payment amount of such
property at the time it was acquired; and
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(h) Liens not otherwise permitted by this Section 11.2 securing Debt in
an aggregate principal amount not to exceed $15,000,000 on any date of
determination.
SECTION 11.3 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially all
or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person except:
(a) (i) investments in Subsidiaries existing on the Closing Date and
(ii) the other loans, advances and investments described on Schedule 11.3
existing on the Closing Date;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one hundred twenty (120) days from the date of acquisition
thereof, (ii) commercial paper maturing no more than one hundred twenty (120)
days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or ▇▇▇▇▇'▇ Investors Service, Inc., (iii)
certificates of deposit maturing no more than one hundred twenty (120) days from
the date of creation thereof issued by commercial banks incorporated under the
laws of the United States of America, each having combined capital, surplus and
undivided profits of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the aggregate
amount invested in such certificates of deposit shall not at any time exceed
$5,000,000 for any one such certificate of deposit and $10,000,000 for any one
such bank, or (iv) time deposits maturing no more than thirty (30) days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder;
(c) investments by the Domestic Borrower or any Subsidiary in the form
of acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of capital stock, assets or any combination
thereof) of any other Person if each such acquisition meets all of the following
requirements (provided that, except to the extent that clause (ix)(B) below is
applicable, for any acquisition for which the Permitted Acquisition Value is
less than $25,000,000, such acquisition must only meet the requirements of
clauses (vii) and (viii) below):
(i) the Domestic Borrower shall have delivered to the Agents
within ten (10) Business Days after the closing date of such acquisition
evidence of the approval of the acquisition by the board of directors or
equivalent governing body (or the shareholders) of the seller and/or the Person
to be acquired, in form and substance satisfactory to the Agents;
(ii) the Domestic Borrower shall have delivered to the Agents
within ten (10) Business Days after the closing date of such acquisition a
description of such acquisition
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(including, without limitation, a description of the Person or assets to be
acquired, the purchase price, the manner of acquisition, the payment structure
and any other terms and conditions reasonably required by the Agents) and draft
copies of the governing documentation (including, without limitation, the
purchase agreement) with respect to such acquisition;
(iii) the Domestic Borrower shall have delivered to the Agents
on or before the closing date of such acquisition an Officer's Compliance
Certificate dated as of the closing date of such acquisition demonstrating, in
form and substance reasonably satisfactory thereto, (A) pro forma compliance
with each covenant contained in Articles X and XI and (B) that the Person to be
acquired shall have positive pro forma cash flow;
(iv) the Domestic Borrower shall have delivered to the Agents
within ten (10) Business Days after the closing date of such acquisition all
documents required to be delivered pursuant to Section 9.11;
(v) the Person to be acquired shall engage in a business or
the assets to be acquired shall be used in a business described in Section
11.12;
(vi) the Domestic Borrower or any Subsidiary shall be the
surviving Person and no Change of Control shall have been effected thereby;
(vii) no Default or Event of Default shall have occurred and
be continuing both before and after giving effect to the acquisition;
(viii) the Domestic Borrower shall have delivered to the
Agents on or before the closing date of such acquisition evidence that after
giving effect to such acquisition, on a pro forma basis, the Leverage Ratio
shall be no greater than 2.75 to 1.00; and
(ix) for any acquisition for which (A) the Permitted
Acquisition Value of such acquisition exceeds $100,000,000 or (B) the Permitted
Acquisition Value of all acquisitions (not to include any acquisition
consummated prior to the Closing Date) during the most recent period of twelve
(12) consecutive calendar months (including, without limitation, such
acquisition) exceeds $125,000,000, (1) the Domestic Borrower shall have obtained
the prior written consent of the Administrative Agent and the Required Lenders
prior to the consummation of such acquisition and (2) the Domestic Borrower
shall deliver to the Agents and the Lenders at least ten (10) Business Days
prior to the consummation of such acquisition all documents and other
information as may be reasonably requested by the Administrative Agent or the
Required Lenders in connection with the proposed acquisition, including, without
information, financial information relating to the Person to be acquired, all
such documents and information to be in form and substance reasonably
satisfactory to the Agents and the Required Lenders;
(d) Hedging Agreements permitted pursuant to Section 11.1(b);
(e) intercompany loans and advances in connection with intercompany
Debt permitted under Section 11.1(h);
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(f) purchases of assets in the ordinary course of business; and
(g) investments not otherwise permitted by this Section 11.3 made in
the ordinary course of business consistent with historical practices not to
exceed the greater of $25,000,000 or seven and one-half percent (7.5%) of Net
Worth on any date of determination.
SECTION 11.4 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of the Domestic Borrower may merge with
the Domestic Borrower or any other Wholly-Owned Subsidiary of the Domestic
Borrower; provided that in any merger involving the Domestic Borrower, the
Domestic Borrower shall be the surviving entity;
(b) any Wholly-Owned Subsidiary of the Domestic Borrower may merge into
the Person acquired in connection with an acquisition permitted by Section
11.3(c); provided that the surviving entity shall be a Wholly-Owned Subsidiary
of the Domestic Borrower and the Domestic Borrower shall have complied with, or
caused compliance with, the terms of Section 9.11; and
(c) any Wholly-Owned Subsidiary of the Domestic Borrower may wind-up
into the Domestic Borrower or any other Wholly-Owned Subsidiary of the Domestic
Borrower;
provided that, notwithstanding the foregoing, no Domestic Subsidiary shall be
permitted to merge, consolidate or enter into any similar combination with any
Subsidiary which is not a Domestic Subsidiary.
SECTION 11.5 Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets and other assets reasonably determined
to be no longer used or usable in the business of the Domestic Borrower or any
of its Subsidiaries;
(c) the transfer of assets to the Domestic Borrower or any Wholly-Owned
Subsidiary of the Domestic Borrower pursuant to Section 11.4(c);
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(e) the disposition of any Hedging Agreement; and
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(f) the sale of any of its property, business or assets not otherwise
permitted by this Section 11.5 in an aggregate amount not to exceed the greater
of $50,000,000 or ten percent (10%) of Net Worth during the term of this
Agreement (provided that the Domestic Borrower and its Subsidiaries shall comply
with the Section 4.4(b)(iii) in connection with any such sale).
SECTION 11.6 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its capital stock or any other ownership interests;
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock or other ownership interests, or make any
distribution of cash, property or assets among the holders of shares of its
capital stock or other ownership interests, or make any change in its capital
structure which such change in its capital structure could reasonably be
expected to have a Material Adverse Effect; provided that:
(a) the Domestic Borrower or any Subsidiary may pay dividends in shares
of its own capital stock;
(b) any Subsidiary may pay cash dividends to the Domestic Borrower; and
(c) the Domestic Borrower may pay cash dividends on its capital stock
or repurchase its capital stock in an aggregate amount not to exceed $7,500,000
during any Fiscal Year (provided that no Default or Event of Default shall have
occurred and be continuing both before and after giving effect to such dividend
or repurchase).
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 11.8 Transactions with Affiliates. Except for transactions
permitted by Sections 11.3, 11.6 and 11.7, directly or indirectly (a) make any
loan or advance to, or purchase or assume any note or other obligation to or
from, any of its officers, directors, shareholders or other Affiliates, or to or
from any member of the immediate family of any of its officers, directors,
shareholders or other Affiliates, or subcontract any operations to any of its
Affiliates or (b) enter into, or be a party to, any other transaction not
described in clause (a) above with any of its Affiliates, except pursuant to the
reasonable requirements of its business and upon fair and reasonable terms that
are no less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 11.9 Certain Accounting Changes; Organizational Documents.
(a) Change its Fiscal Year end, or make any change in its accounting
treatment and reporting practices except as required by GAAP; or
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(b) Amend, modify or change its articles of incorporation (or corporate
charter or other similar organizational documents) or amend, modify or change
its bylaws (or other similar documents) in any manner adverse in any respect to
the rights or interests of the Lenders.
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt, or cancel or forgive, make any
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Subordinated Debt.
SECTION 11.11 Restrictive Agreements.
(a) Enter into any Debt which contains any negative pledge on assets or
any covenants more restrictive than the provisions of Articles IX, X and XI, or
which restricts, limits or otherwise encumbers its ability to incur Liens on or
with respect to any of its assets or properties other than the assets or
properties securing such Debt.
(b) Enter into or permit to exist any agreement which impairs or limits
the ability of any Subsidiary of any Borrower to pay dividends to any Borrower.
SECTION 11.12 Nature of Business. Alter in any material respect the
character or conduct of the business conducted by the Domestic Borrower and its
Subsidiaries as of the Closing Date; provided that the Domestic Borrower and its
Subsidiaries shall not be prohibited from expanding into complimentary or
related lines of business as determined by the Domestic Borrower and its
Subsidiaries in their reasonable discretion.
ARTICLE XII
UNCONDITIONAL DOMESTIC BORROWER GUARANTY AGREEMENT
SECTION 12.1 Guaranty of Obligations. The Domestic Borrower hereby
unconditionally guarantees to the Administrative Agent, for the benefit of the
Agents and the Lenders, and their respective successors, endorsees, transferees
and assigns, the prompt payment and performance of all Obligations of the
Canadian Borrower, whether primary or secondary (whether by way of endorsement
or otherwise), whether now existing or hereafter arising, whether or not from
time to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether or not recovery may be or hereafter becomes
barred by the statute of limitations, whether enforceable or unenforceable as
against the Borrowers, whether or not discharged, stayed or otherwise affected
by any bankruptcy, insolvency or other similar law or proceeding, whether
created directly with the Administrative Agent or any Lender or acquired by the
Administrative Agent or any Lender through assignment, endorsement or otherwise,
whether matured or unmatured, whether joint or several, as and when the same
become due and payable (whether at maturity or earlier, by reason of
acceleration, mandatory repayment or otherwise), in accordance with the terms of
any such instruments evidencing any
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such Obligations, including all renewals, extensions or modifications thereof
(all Obligations of the Canadian Borrower, including all of the foregoing, being
hereinafter collectively referred to as the "Guaranteed Obligations").
SECTION 12.2 Nature of Guaranty. The Domestic Borrower agrees that this
Domestic Borrower Guaranty Agreement is a continuing, unconditional guaranty of
payment and performance and not of collection, and that its obligations under
this Domestic Borrower Guaranty Agreement shall be primary, absolute and
unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, this Agreement or any other Loan Document or any
other agreement, document or instrument to which any Borrower is or may become a
party;
(b) any structural change in, restructuring of or other similar change
of any Borrower or any Subsidiary thereof;
(c) the absence of any action to enforce this Domestic Borrower
Guaranty Agreement, this Agreement or any other Loan Document or the waiver or
consent by the Administrative Agent or any Lender with respect to any of the
provisions of this Domestic Borrower Guaranty Agreement, this Agreement or any
other Loan Document;
(d) the existence, value or condition of, or failure to perfect its
Lien against, any security for or other guaranty of the Guaranteed Obligations
or any action, or the absence of any action, by the Administrative Agent or any
Lender in respect of such security or guaranty (including, without limitation,
the release of any such security or guaranty); or
(e) any other action or circumstances which might otherwise constitute
a legal or equitable discharge or defense of a surety or guarantor;
it being agreed by the Domestic Borrower that its obligations under this
Domestic Borrower Guaranty Agreement shall not be discharged until the final and
indefeasible payment and performance, in full, of the Guaranteed Obligations and
the termination of the Commitments. The Domestic Borrower expressly waives all
rights it may now or in the future have under any statute (including without
limitation North Carolina General Statutes Section 26-7, et seq. or similar
law), or at law or in equity, or otherwise, to compel the Administrative Agent
or any Lender to proceed in respect of the Guaranteed Obligations against any
Borrower or any other party or against any security for or other guaranty of the
payment and performance of the Guaranteed Obligations before proceeding against,
or as a condition to proceeding against, the Domestic Borrower. The Domestic
Borrower further expressly waives and agrees not to assert or take advantage of
any defense based upon the failure of the Administrative Agent or any Lender to
commence an action in respect of the Guaranteed Obligations against any Borrower
or any other party or any security for the payment and performance of the
Guaranteed Obligations. The Domestic Borrower agrees that any notice or
directive given at any time to the Administrative Agent or any Lender which is
inconsistent with the waivers in the preceding two sentences shall be null and
void and may be ignored by the Administrative Agent or such
85
Lender, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Domestic Borrower Guaranty Agreement for the reason
that such pleading or introduction would be at variance with the written terms
of this Domestic Borrower Guaranty Agreement, unless the Administrative Agent
and the Required Lenders have specifically agreed otherwise in writing. The
foregoing waivers are of the essence of the transaction contemplated by the Loan
Documents and, but for this Domestic Borrower Guaranty Agreement and such
waivers, the Administrative Agent and the Lenders would decline to enter into
this Agreement.
SECTION 12.3 Demand by the Administrative Agent. In addition to the
terms set forth in Section 12.2, and in no manner imposing any limitation on
such terms, if all or any portion of the then outstanding Guaranteed Obligations
under this Agreement are declared to be immediately due and payable, then the
Domestic Borrower shall, upon demand in writing therefor by the Administrative
Agent to the Domestic Borrower, pay all or such portion of the outstanding
Guaranteed Obligations then declared due and payable. Payment by the Domestic
Borrower shall be made to the Administrative Agent, to be credited and applied
upon the Guaranteed Obligations, in immediately available funds to an account
designated by the Administrative Agent or at the Administrative Agent's Office
or at any other address that may be specified in writing from time to time by
the Administrative Agent.
SECTION 12.4 Waivers. In addition to the waivers contained in Section
12.2, the Domestic Borrower waives, and agrees that it shall not at any time
insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by the Domestic
Borrower of its obligations under, or the enforcement by the Administrative
Agent or the Lenders of, this Domestic Borrower Guaranty Agreement. The Domestic
Borrower further hereby waives diligence, presentment, demand, protest and
notice of whatever kind or nature with respect to any of the Guaranteed
Obligations and waives the benefit of all provisions of law which are or might
be in conflict with the terms of this Domestic Borrower Guaranty Agreement. The
Domestic Borrower represents, warrants and agrees that its obligations under
this Domestic Borrower Guaranty Agreement are not and shall not be subject to
any counterclaims, offsets or defenses of any kind against the Administrative
Agent, the Lenders or the Borrowers whether now existing or which may arise in
the future.
SECTION 12.5 Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall, in compliance with the terms and conditions of this
Agreement, at any time or from time to time:
(a) change or extend the manner, place or terms of payment of, or renew
or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available to it
at law, in equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
86
(d) extend or waive the time for performance by the Domestic Borrower,
the Canadian Borrower, the Material Subsidiaries or any other Person of, or
compliance with, any term, covenant or agreement on its part to be performed or
observed under a Loan Document (other than this Domestic Borrower Guaranty
Agreement), or waive such performance or compliance or consent to a failure of,
or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment of the
Guaranteed Obligations or sell, exchange, release, dispose of, or otherwise deal
with, any property pledged, mortgaged or conveyed, or in which the
Administrative Agent or any Lender has been granted a Lien, to secure any Debt
of the Domestic Borrower, the Canadian Borrower or the Material Subsidiaries to
the Administrative Agent or any Lender;
(f) release anyone who may be liable in any manner for the payment of
any amounts owed by the Domestic Borrower, the Canadian Borrower or the Material
Subsidiaries to the Administrative Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of the Domestic Borrower,
the Canadian Borrower or the Material Subsidiaries are subordinated to the
claims of the Administrative Agent or any Lender; or
(h) apply any sums by whomever paid or however realized to any amounts
owing by the Domestic Borrower, the Canadian Borrower or the Material
Subsidiaries to the Administrative Agent or any Lender on account of the
Obligations in such manner as the Administrative Agent or any Lender shall
determine in its reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to the Domestic Borrower as a result thereof, and no such action shall impair or
release the obligations of the Domestic Borrower under this Domestic Borrower
Guaranty Agreement.
SECTION 12.6 Reinstatement. The Domestic Borrower agrees that, if any
payment made by any Borrower, any Material Subsidiary or any other Person
applied to the Obligations is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to
be refunded or repaid, or the proceeds of any collateral are required to be
returned by the Administrative Agent or any Lender to any Borrower, its estate,
trustee, receiver or any other party, including, without limitation, the
Domestic Borrower or any Material Subsidiary, under any Applicable Law or
equitable cause, then, to the extent of such payment or repayment, the Domestic
Borrower's liability hereunder (and any Lien or collateral securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made, and, if prior thereto, this Domestic Borrower
Guaranty Agreement shall have been canceled or surrendered (and if any Lien or
collateral securing the Domestic Borrower's liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), this
Domestic Borrower Guaranty Agreement (and such Lien or collateral) shall be
reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect
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the obligations of the Domestic Borrower in respect of the amount of such
payment (or any Lien or collateral securing such obligation).
SECTION 12.7 No Subrogation. Until all amounts owing to the
Administrative Agent and the Lenders on account of the Obligations are paid in
full and the Commitments are terminated, the Domestic Borrower hereby waives any
claims or other rights which it may now or hereafter acquire against any
Borrower that arise from the existence or performance of the Domestic Borrower's
obligations under this Domestic Borrower Guaranty Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, any right to participate in any claim or remedy of the
Administrative Agent or the Lenders against any Borrower or any collateral which
the Administrative Agent or the Lenders now have or may hereafter acquire,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, by any payment made hereunder or otherwise, including
without limitation, the right to take or receive from any Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to the Domestic Borrower on account of such rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by the Domestic Borrower in trust for the Administrative Agent,
segregated from other funds of the Domestic Borrower, and shall, forthwith upon
receipt by the Domestic Borrower, be turned over to the Administrative Agent in
the exact form received by the Domestic Borrower (duly indorsed by the Domestic
Borrower to the Administrative Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as set forth herein.
ARTICLE XIII
DEFAULT AND REMEDIES
SECTION 13.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. Any Borrower shall default in any payment of principal of any Loan,
Note or Reimbursement Obligation when and as due (whether at maturity, by reason
of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for five (5)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by the Domestic Borrower or any of its Subsidiaries under this
Agreement, any other Loan Document or any amendment hereto or thereto, shall at
any time prove to have been incorrect or misleading in any material respect when
made or deemed made.
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(d) Default in Performance of Certain Covenants. The Domestic Borrower
or any of its Subsidiaries shall default in the performance or observance of any
covenant or agreement contained in Sections 8.1, 8.2 or 8.5(e)(i) or Articles X
or XI of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Domestic Borrower or any of its Subsidiaries thereof shall default in the
performance or observance of any term, covenant, condition or agreement
contained in this Agreement (other than as specifically provided for otherwise
in this Section 13.1) or any other Loan Document and such default shall continue
for a period of thirty (30) days after written notice thereof has been given to
the Domestic Borrower, on behalf of itself and the Canadian Borrower, by the
Administrative Agent.
(f) Hedging Agreement. Any Borrower shall default in the performance or
observance of any terms, covenant, condition or agreement (after giving effect
to any applicable grace or cure period) under any Hedging Agreement with a
termination value in excess of $5,000,000 and such default causes the
termination of such Hedging Agreement or permits any counterparty to such
Hedging Agreement to terminate any such Hedging Agreement.
(g) Debt Cross-Default. The Domestic Borrower or any of its
Subsidiaries shall (i) default in the payment of any Debt (other than the Notes
or any Reimbursement Obligation) the aggregate outstanding amount of which Debt
is in excess of $5,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $5,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Other Cross-Defaults. The Domestic Borrower or any of its
Subsidiaries shall default in the payment when due, or in the performance or
observance, of any obligation or condition of any Material Contract unless, but
only as long as, the existence of any such default is being contested by the
Domestic Borrower or any such Subsidiary in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of the Domestic Borrower or such Subsidiary to the extent required by
GAAP.
(i) Change in Control. (A) Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended),
other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or a control group of which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is a
member, shall obtain ownership or control in one or more series of transactions
of more than twenty-five percent (25%) of the voting power of the Domestic
Borrower entitled to vote in the election of members of the board of directors
of the Domestic Borrower, (B) a change in the majority of the board of directors
of the Domestic Borrower occurring during any six (6) month period, or (C) there
shall have occurred under any indenture or other instrument evidencing any Debt
in excess of $5,000,000 any "change in
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control" (as defined in such indenture or other evidence of Debt) obligating the
Domestic Borrower to repurchase, redeem or repay all or any part of the Debt or
capital stock provided for therein (any such event in (A) through (C) above, a
"Change in Control"). For purposes of this Section 13.1(i), a control group of
which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ is a member shall include his spouse, direct or indirect
lineal descendants and any trust created for the benefit of any such persons.
(j) Voluntary Bankruptcy Proceeding. The Domestic Borrower or any
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such bankruptcy laws or
other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing any
of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Domestic Borrower or any Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Domestic Borrower or any Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue without dismissal or stay for a
period of sixty (60) consecutive days, or an order granting the relief requested
in such case or proceeding (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any material provision of this Agreement,
the Notes, the Domestic Borrower Guaranty Agreement or any Subsidiary Guaranty
Agreement shall for any reason cease to be valid and binding on the Domestic
Borrower or any of its Material Subsidiaries party thereto or any such Person
shall so state in writing, other than in accordance with the express terms
hereof or thereof.
(m) Termination Event. The occurrence of any of the following events:
(i) the Domestic Borrower or any ERISA Affiliate fails to make full payment when
due of all material amounts which, under the provisions of any Pension Plan or
Section 412 of the Code, the Domestic Borrower or any ERISA Affiliate is
required to pay as contributions thereto, (ii) an accumulated funding deficiency
in excess of $5,000,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, (iii) a Termination Event or (iv) the Domestic Borrower or any
ERISA Affiliate as employers under one or more Multiemployer Plans makes a
complete or partial withdrawal from any such Multiemployer Plan and the plan
sponsor of such Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments in an amount
exceeding $5,000,000.
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(n) Judgment. A judgment or order for the payment of money which causes
the aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal
Year shall be entered against the Domestic Borrower or any of its Subsidiaries
by any court and such judgment or order shall continue without discharge or stay
for a period of thirty (30) days.
(o) Environmental. Any one or more Environmental Claims shall have been
asserted against the Domestic Borrower or any of its Subsidiaries; the Domestic
Borrower and its Subsidiaries would be reasonable likely to incur liability as a
result thereof; and such liability would be reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect.
(p) Ownership of Canadian Borrower. The Canadian Borrower shall no
longer be a Subsidiary of the Borrower.
SECTION 13.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Domestic Borrower, on behalf of itself and the Canadian Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the Agents
under this Agreement or any of the other Loan Documents (including, without
limitation, all L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented or shall be entitled to
present the documents required thereunder) and all other Obligations (other than
Hedging Obligations), to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or the other Loan Documents to the contrary notwithstanding, or
terminate the Credit Facility and any right of the Borrowers to request
borrowings or Letters of Credit thereunder, or both; provided, that upon the
occurrence of an Event of Default specified in Section 13.1(j) or (k), the
Credit Facility shall be automatically terminated and all Obligations (other
than Hedging Obligations) shall automatically become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or in any other Loan Document to
the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration or the termination of the Credit Facility pursuant to the preceding
paragraph, require the Borrowers at such time to, and the Borrowers shall,
deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit issued for the account of such Borrower. The Borrowers hereby grant to
the Administrative Agent, for the benefit of the Agents and the Lenders, a
security interest in such cash collateral account and all amounts deposited
therein and all proceeds thereof as security for the Obligations. Amounts
deposited in such cash collateral account by each Borrower shall be applied by
the Administrative Agent to the payment of drafts drawn under such Letters of
Credit issued for the account of such Borrower, and the unused portion thereof
after all such Letters of
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Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay the other Obligations of such Borrower on a pro rata basis. After all such
Letters of Credit shall have expired or been fully drawn upon, the Reimbursement
Obligation shall have been satisfied and all other Obligations shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the applicable Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Obligations.
SECTION 13.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Agents and the Lenders set forth
in this Agreement is not intended to be exhaustive and the exercise by the
Agents and the Lenders of any right or remedy shall not preclude the exercise of
any other rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the other Loan
Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the Administrative
Agent, the Syndication Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between the Borrowers, the Agents and the Lenders or their respective agents or
employees shall be effective to change, modify or discharge any provision of
this Agreement or any of the other Loan Documents or to constitute a waiver of
any Event of Default.
SECTION 13.4. Judgment Currency. The obligation of the Borrowers to
make payments of the principal of and interest on the Loans, the Notes and the
Reimbursement Obligations and the obligation of any such Person to make payments
of any other amounts payable hereunder or pursuant to any other Loan Document in
the currency specified for such payment shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any other currency, except to the extent that such tender or
recovery shall result in the actual receipt by each of the Administrative Agent,
the Syndication Agent and the Lenders of the full amount of the particular
Permitted Currency expressed to be payable pursuant to the applicable Loan
Document. The Administrative Agent shall, using all amounts obtained or received
from the Borrowers pursuant to any such tender or recovery in payment of
principal of and interest on the Obligations, promptly purchase the applicable
currency at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it. The obligation of the Borrowers to
make payments in the applicable currency shall be enforceable as an alternative
or additional cause of action solely for the purpose of recovering in the
applicable currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the currency expressed to be payable pursuant to the
applicable Loan Document.
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ARTICLE XIV
THE AGENTS
SECTION 14.1 Appointment; Nature of Relationship. Bank One is hereby
appointed by each of the Lenders as its contractual representative to serve as
the sole and exclusive Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. Wachovia
is hereby appointed by each of the Lenders as its contractual representative to
serve as the sole and exclusive Syndication Agent hereunder and under each other
Loan Document, and each of the Lenders irrevocably authorizes the Syndication
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Agents agree to act as such contractual representatives upon the express
conditions contained in this Article XIV. Notwithstanding the use of the defined
terms "administrative agent," "syndication agent" or "agent," it is expressly
understood and agreed that neither the Administrative Agent nor the Syndication
Agent shall have any fiduciary responsibilities to any Lender by reason of this
Agreement or any other Loan Document and that the Agents are merely acting as
the contractual representatives of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In
respective capacities as the Lenders' contractual representatives, the Agents
(i) do not hereby assume any fiduciary duties to any of the Lenders, (ii) are
both a "representative" of the Lenders within the meaning of the term "secured
party" as defined in the UCC and (iii) are acting as independent contractors,
the rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agents or either of them on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
SECTION 14.2 Powers. The Agents shall have and may exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to the Agents by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. The Agents shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action hereunder or
thereunder, except any action specifically provided by this Agreement and the
other Loan Documents to be taken by the applicable Agent.
SECTION 14.3 General Immunity. Neither the Agents nor any of their
respective directors, officers, agents or employees shall be liable to any
Borrower or any Lender for any action taken or omitted to be taken by them under
this Agreement or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
SECTION 14.4 No Responsibility for Loan, Recitals, etc. Neither the
Agents nor any of their respective directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or
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observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by any Borrower, any
Material Subsidiary or any other obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article VI, except
receipt of items required to be delivered solely to the Agents; (d) the
existence or possible existence of any Default or Event of Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien on any
collateral security; or (g) the financial condition of any Borrower, any
Material Subsidiary or any other guarantor of any of the Obligations or of any
of their respective Subsidiaries. The Agents shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrowers to
the Agents at such time, but is voluntarily furnished by the Borrowers to the
Agents (either in their capacity as an Agent or in their individual capacity).
SECTION 14.5 Action on Instructions of Lenders. The Agents shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agents shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agents shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
SECTION 14.6 Employment of Agents and Counsel. The Agents may execute
any of their respective duties as an Agent hereunder and under any other Loan
Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by them or
their respective authorized agents, for the default or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. The Agents
shall be entitled to advice of counsel concerning the contractual arrangement
between the Agents and the Lenders and all matters pertaining to the Agents'
respective duties hereunder and under any other Loan Document.
SECTION 14.7 Reliance on Documents; Counsel. The Agents shall be
entitled to rely upon any note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed thereby to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by either of the
Agents, which counsel may be employees of either of the Agents.
SECTION 14.8 Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify each of the Agents ratably in proportion to the
Lenders' respective Commitments (or, if the Commitments have been terminated, in
proportion to their Commitments immediately prior to such termination) (a) for
any amounts not reimbursed by the Domestic Borrower or Canadian Borrower, as
applicable, for which either of the Agents is
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entitled to reimbursement by such Borrower under the Loan Documents, (b) for any
other expenses incurred by the Agents' on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred by the
Agents in connection with any dispute between the Agents and any Lender or
between two or more of the Lenders) and (c) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against either of the Agents in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agents in
connection with any dispute between the Agents and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agents and (ii)
any indemnification required pursuant to Section 5.11, 5.12, 5.13 or 5.14 may,
notwithstanding the provisions of this Section 14.8, be paid by the relevant
Lender in accordance with the provisions thereof. The obligations of the Lenders
under this Section 14.8 shall survive payment of the Obligations and termination
of this Agreement.
SECTION 14.9 Notice of Default. Neither of the Agents shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received written notice from a Lender or the
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders.
SECTION 14.10 Rights as a Lender. In the event that either Agent is a
Lender, the Agents shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its Extensions of Credit
as any Lender and may exercise the same as though it were not an Agent, and the
term "Lender" or "Lenders" shall, at any time when either Agent is a Lender,
unless the context otherwise indicates, include such Agent in its individual
capacity. The Agents and their respective Affiliates may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with any Borrower or any of their respective Subsidiaries in
which any Borrower or any Subsidiary is not restricted hereby from engaging with
any other Person. The Agents, in their individual capacity, are not obligated to
remain Lenders.
SECTION 14.11 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agents, any Affiliate of either
of the Agents or any other Lender and based on the financial statements prepared
by the Borrowers and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents, any Affiliate of
either of the Agents or any other Lender and based on such documents and
information as it shall
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deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
SECTION 14.12 Successor Agents. Either of the Agents may resign at any
time by giving written notice thereof to the Lenders and the Domestic Borrower,
on behalf of itself and the Canadian Borrower, such resignation to be effective
upon the appointment of a successor Administrative Agent or Syndication Agent,
as applicable, or, if no successor Agent has been appointed, forty-five (45)
days after the retiring Agent gives notice of its intention to resign. Upon any
such resignation, the Required Lenders shall have the right to appoint, on
behalf of the Borrowers and the Lenders, a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders within thirty (30)
days after the resigning Agent's giving notice of its intention to resign, then
the resigning Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Agent. Notwithstanding the previous sentence, either of the Agents may
at any time without the consent of any Borrower or any Lender, appoint any of
its Affiliates which is a commercial bank as a successor Agent hereunder. If
either of the Agents has resigned and no successor Agent has been appointed, the
Lenders may perform all the duties of such Agent hereunder and the Borrowers and
Lenders shall deal directly with the Lenders. No successor Agent shall be deemed
to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the resigning Agent. Upon the effectiveness of the resignation of
an Agent, the resigning Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation of an Agent, the provisions of this Article XIV shall continue
in effect for the benefit of such Agent in respect of any actions taken or
omitted to be taken by it while it was acting as an Agent hereunder and under
the other Loan Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent assigns its duties
and obligations to an Affiliate pursuant to this Section 14.12, then the term
"Prime Rate" as used in this Agreement shall mean the prime rate, base rate or
other analogous rate of the new Administrative Agent.
SECTION 14.13 Delegation to Affiliates. The Borrowers and the Lenders
agree that the Agents may delegate any of their respective duties under this
Agreement to any of their respective Affiliates. Any such Affiliate (and such
Affiliate's directors, officers, agents and employees) which performs duties in
connection with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the Agents are
entitled under Articles XIV and XV.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if sent by recognized
overnight courier service and (iii) on the third Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at
the following addresses, or any other address as to which all the other parties
are notified in writing.
If to the Domestic Borrower
(on behalf of itself and
the Canadian Borrower): G&K Services Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Brand, LLP
3300 ▇▇▇▇▇ Fargo Center
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Bank One as Bank One, NA
Administrative Agent: ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to: Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Syndication Agent: Charlotte Plaza, CP-17
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Global Corporate Banking
Operations
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Wachovia Bank, National Association
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender: To the address set forth on Schedule
1.1(a) hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Domestic Borrower, on behalf of itself and the Canadian Borrower, and Lenders,
as the Administrative Agent's Office referred to herein, to which payments due
are to be made and at which Loans will be disbursed and Letters of Credit
issued, except for Alternative Currency Loans, to which payments due are to be
made at the office of the Administrative Agent's Correspondent.
SECTION 15.2 Expenses; Indemnity. The Borrowers will (a) pay all
reasonable out-of-pocket expenses (including, without limitation, all costs of
electronic or internet distribution of any information hereunder) of each Agent
in connection with (i) the preparation, execution and delivery of this Agreement
and each other Loan Document, whenever the same shall be executed and delivered,
including, without limitation, all out-of-pocket syndication and due diligence
expenses and reasonable fees and disbursements of counsel for each Agent and
(ii) the preparation,
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execution and delivery of any waiver, amendment or consent by the Agents or the
Lenders relating to this Agreement or any other Loan Document, including,
without limitation, reasonable fees and disbursements of counsel for each Agent,
(b) pay all reasonable out-of-pocket expenses of each Agent and each Lender
actually incurred in connection with the administration and enforcement of any
rights and remedies of the Agents and Lenders under the Credit Facility
(including, without limitation, reasonable fees and disbursements of counsel for
each Agent and each Lender), including, without limitation, in connection with
any workout, restructuring, bankruptcy or other similar proceeding, creating and
perfecting Liens in favor of Administrative Agent on behalf of Lenders pursuant
to any Loan Document, enforcing any Obligations of, or collecting any payments
due from, the Borrowers or any Material Subsidiary by reason of an Event of
Default (including in connection with the sale of, collection from, or other
realization upon any collateral or the enforcement of the Domestic Borrower
Guaranty Agreement or the Subsidiary Guaranty Agreement), consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of any Agent or any Lender
hereunder or under any other Loan Document or any factual matters in connection
therewith, which expenses shall include, without limitation, the reasonable fees
and disbursements of such Persons, and (c) defend, indemnify and hold harmless
the Agents and the Lenders, and their respective parents, Subsidiaries,
Affiliates, employees, agents, officers and directors, from and against any
losses, penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim (including, without
limitation, any Environmental Claims), investigation, litigation or other
proceeding (whether or not any Agent or any Lender is a party thereto) and the
prosecution and defense thereof, arising out of or in any way connected with the
Loans, this Agreement, any other Loan Document, or any documents, reports or
other information provided to any Agent or any Lender or contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby, including, without limitation, reasonable attorney's and consultant's
fees, except to the extent that any of the foregoing is determined in a final
non-appealable judgment by a court of competent jurisdiction to have directly
resulted from the gross negligence or willful misconduct of the party seeking
indemnification therefor.
SECTION 15.3 Set-off.
(a) In addition to any rights now or hereafter granted under Applicable
Law and not by way of limitation of any such rights, upon and after the
occurrence of any Event of Default and during the continuance thereof, the
Lenders, their Affiliates and any assignee or participant of a Lender in
accordance with Section 15.10 are hereby authorized by the Borrowers at any time
or from time to time, without notice to the Borrowers or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
to apply any and all deposits (general or special, time or demand, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
the Lenders, their Affiliates, or any such assignee or participant to or for the
credit or the account of the Borrowers against and on account of the Obligations
irrespective of whether or not (a) the Lenders shall have made any demand under
this Agreement or any of the other Loan Documents or (b) the Administrative
Agent shall have declared any or all of the Obligations to be due and payable as
permitted by Section 13.2 and although such Obligations shall be contingent or
unmatured. Notwithstanding the preceding sentence, each Lender agrees to notify
the Domestic Borrower, on behalf of itself and the Canadian Borrower, and the
Agents
99
after any such set-off and application; provided, that the failure to give such
notice shall not affect the validity of such set-off and application.
(b) Any amount to be set-off pursuant to Section 15.3(a) shall be
denominated in Dollars and any amount denominated in an Alternative Currency
shall be in an amount equal to the Dollar Amount of such amount at the most
favorable spot exchange rate determined by the Administrative Agent to be
available to it; provided that if at the time of any such determination no such
spot exchange rate can reasonably be determined, the Administrative Agent may
use any reasonable method as it deems applicable to determine such rate, any
such determination to be conclusive absent manifest error.
(c) Each Lender and any assignee or participant of such Lender in
accordance with Section 15.10 are hereby authorized by the Borrowers to combine
currencies, as deemed necessary by such Person, in order to effect any set-off
pursuant to Section 15.3(a).
SECTION 15.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 15.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrowers hereby irrevocably consent to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina and ▇▇▇▇ County, Illinois (and any courts from which an
appeal from any of such courts must or may be taken), in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement,
the Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrowers
hereby irrevocably consent to the service of a summons and complaint and other
process in any action, claim or proceeding brought by any Agent or any Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 14.1. Nothing in this Section 14.5 shall affect the right of any Agent
or any Lender to serve legal process in any other manner permitted by Applicable
Law or affect the right of any Agent or any Lender to bring any action or
proceeding against any Borrower or its properties in the courts of any other
jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any objection they
may have now or in the future to the laying of venue in the aforesaid
jurisdiction in any action, claim or other proceeding arising out of or in
connection with this Agreement, any other Loan Document or the rights and
obligations of the parties hereunder or thereunder. The Borrowers irrevocably
waive, in connection with such action, claim or proceeding, any plea or claim
that the action, claim or other proceeding has been brought in an inconvenient
forum.
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SECTION 15.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Agreement or any
other Loan Document ("Disputes"), between or among parties hereto and to the
other Loan Documents shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive the right
of that party to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, claims brought as class actions, claims
arising from Loan Documents executed in the future, disputes as to whether a
matter is subject to arbitration, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitations shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding anything foregoing to
the contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within
one-hundred twenty (120) days after such demand. These time limitations may not
be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys selected from
the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement.
(b) Jury Trial. EACH AGENT, EACH LENDER AND EACH BORROWER HEREBY
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in the
Loan Documents or under Applicable Law or by judicial foreclosure and sale,
including a proceeding to confirm the sale, (ii) all rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of
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property, (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and in
filing an involuntary bankruptcy proceeding, and (iv) when applicable, a
judgment by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be requested
by a party in a Dispute.
SECTION 15.7 Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent, for the benefit of the Agents
and the Lenders, or the Administrative Agent receives any payment or proceeds of
any collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 15.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event any Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrowers agree that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Agents, the Lenders and the Borrowers (on behalf of themselves
and their Subsidiaries) hereby agree that no such Person shall have a remedy of
punitive or exemplary damages against any other party to a Loan Document and
each such Person hereby waives any right or claim to punitive or exemplary
damages that they may now have or may arise in the future in connection with any
Dispute, whether such Dispute is resolved through arbitration or judicially.
SECTION 15.9 Accounting Matters. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time, provided that, if the
Domestic Borrower, on behalf of itself and the Canadian Borrower, notifies the
Agents that the Borrowers request an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the Agents
notify the Domestic Borrower, on behalf of itself and the Canadian Borrower,
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance therewith.
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SECTION 15.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrowers shall not have the right to assign their respective
rights or obligations under the Loan Documents without the prior written consent
of each Lender, (ii) any assignment by any Lender must be made in compliance
with Section 15.10(b), and (iii) any transfer by participation must be made in
compliance with Section 15.10(c). Any attempted assignment or transfer by any
party not made in compliance with Section 15.10(b) shall be null and void,
unless such attempted assignment or transfer is treated as a participation in
accordance with Section 15.10(c). The parties to this Agreement acknowledge that
clause (ii) of this Section 15.10(a) relates only to absolute assignments and
this Section 15.10 does not prohibit assignments creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all
or any portion of its rights under this Agreement and any Note to a Federal
Reserve Bank or (y) in the case of a Lender which is a Approved Fund, any pledge
or assignment of all or any portion of its rights under this Agreement and any
Note to its trustee in support of its obligations to its trustee; provided,
however, that no such pledge or assignment creating a security interest shall
release the transferor Lender from its obligations hereunder unless and until
the parties thereto have complied with the provisions of Section 15.10(b). The
Administrative Agent may treat the Person which made any Extension of Credit or
which holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 15.10(b); provided, however, that the
Administrative Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Extension of Credit or which holds
any Note to direct payments relating to such Extension of Credit or Note to
another Person. Any assignee of the rights to any Extension of Credit or any
Note agrees by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Extension of Credit (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Extension of Credit.
(b) Assignment by Lenders.
(i) Assignment. Any Lender may at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be evidenced by an
Assignment and Acceptance substantially in the form of Exhibit G (an "Assignment
and Acceptance") or shall be in such other form as may be agreed to by the
parties thereto. Each such assignment with respect to a Purchaser which is not a
Lender or an Affiliate of a Lender or an Approved Fund shall either be in an
amount equal to the entire applicable Commitment and Extensions of Credit Loans
of the assigning Lender or (unless each of the Domestic Borrower, on behalf of
itself and the Canadian Borrower, and the Administrative Agent otherwise
consents) be in an aggregate amount not less than $5,000,000. The amount of the
assignment shall be based on the Revolving Credit Commitment or Term Loan
Commitment, as applicable, or, if such Commitment has been terminated, the
outstanding Revolving Credit Loans or Term Loans, as applicable, subject to the
103
assignment, determined as of the date of such assignment or as of the effective
date specified in the Assignment and Acceptance.
(ii) Consents. The consent of the Domestic Borrower, on behalf
of itself and the Canadian Borrower, and the Administrative Agent shall be
required prior to an assignment becoming effective unless the Purchaser is a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the consent
of the Domestic Borrower, on behalf of itself and the Canadian Borrower, shall
not be required if a Default or Event of Default has occurred and is continuing.
Any consent required under this clause (ii) shall not be unreasonably withheld
or delayed.
(iii) Effect; Effective Date. Upon (A) delivery to the Agents
of an Assignment and Acceptance, together with any consents required by Section
15.10(b)(ii), and (B) payment of a $3,500 fee to the Administrative Agent for
processing such assignment (unless such fee is waived by the Administrative
Agent), such assignment shall become effective on the effective date specified
in such Assignment and Acceptance. The Assignment and Acceptance shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and/or Extensions of Credit Loans
under the applicable Assignment and Acceptance constitutes "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
thereto, and the transferor Lender shall be released with respect to the
Commitment and/or Loans assigned to such Purchaser without any further consent
or action by the Borrowers, the Lenders or the Agents. In the case of an
assignment covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the applicable agreement. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 15.10(b) shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 15.10(c). Upon the consummation of any
assignment to a Purchaser pursuant to this Section 15.10(b), the transferor
Lender, the Administrative Agent and the Borrowers shall, if the transferor
Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate, replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Commitments and/or Loans, as adjusted
pursuant to such assignment.
(iv) Register. The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at one of its offices
in Chicago, Illinois a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Extensions of Credit Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrowers,
the Agents and
104
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Domestic Borrower, on behalf of itself and the
Canadian Borrower, the Syndication Agent or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(c) Participations.
(i) Permitted Participants; Effect. Any Lender may at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Extension of Credit owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Extensions of Credit and the holder of any Note issued to it in
evidence thereof for all purposes under the Loan Documents, all amounts payable
by the Borrowers under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrowers and the Agents shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
(ii) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Extension of Credit or Commitment in
which such Participant has an interest which would require consent of all of the
Lenders pursuant to the terms of Section 15.11 or of any other Loan Document.
(iii) Benefit of Certain Provisions. The Borrowers agree that
each Participant shall be deemed to have the right of setoff provided in Section
15.3 in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 15.3 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 15.3, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 5.7 as if each Participant were a Lender.
The Borrower further agrees that each Participant shall be entitled to the
benefits of Sections 5.11, 5.12, 5.13 and 5.14 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to Section
15.10(b), provided that (i) a Participant shall not be entitled to receive any
greater payment under Section 5.11, 5.12, 5.13 or 5.14 than the Lender who sold
the participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such interest to
such Participant is made with the prior written consent of the Domestic
Borrower, on behalf of itself and the Canadian Borrower, and (ii) any
Participant not incorporated under the laws of the United States of America or
any
105
State thereof agrees to comply with the provisions of Section 5.14 to the same
extent as if it were a Lender.
(d) Disclosure of Information; Confidentiality. The Agents and the
Lenders shall hold all non-public information with respect to the Borrowers
obtained pursuant to the Loan Documents in accordance with their customary
procedures for handling confidential information; provided, that the Agents may
disclose information relating to this Agreement to Gold Sheets and other similar
bank trade publications, such information to consist of deal terms and other
information customarily found in such publications; and provided further, that
the Agents and Lenders may disclose any such information (i) to their Affiliates
and to other Agents, Lenders and their respective Affiliates, (ii) to legal
counsel, accountants, and other professional advisors to the Agents and the
Lenders or to a Purchaser or Participant, (iii) to regulatory officials, (iv) to
any Person as requested pursuant to or as required by law, regulation, or legal
process, (v) to any Person in connection with any legal proceeding to which any
Agent or any Lender is a party, (vi) to any Agent's or any Lender's direct or
indirect contractual counterparties in Hedging Agreements or to legal counsel,
accountant and other professional advisors to such counterparties, (vii) to any
Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents by operation of law and any prospective Participant or Purchaser
(provided such Participant, Purchaser or other Person agrees to be bound by this
Section 15.10(d)) and (viii) to rating agencies if requested or required by such
agencies in connection with a rating relating to the Extensions of Credit
hereunder. Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this Section
15.10, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided, that prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant shall
agree with the Borrowers or such Lender to preserve the confidentiality of any
confidential information relating to the Borrowers received from such Lender.
(e) Tax Treatment. If any interest in any Loan Document is transferred
to any Purchaser or Participant which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Purchaser or Participant, concurrently with the effectiveness of such transfer,
to comply with the provisions of Section 5.14.
SECTION 15.11 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any Loan Document (including, without
limitation, Section 2.9), any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the
Lenders, and any consent given by the Lenders, if, but only if, such amendment,
waiver or consent is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the
Borrowers; provided that, except as specifically set forth in Section 2.9, no
amendment, waiver or consent shall (a) increase the Revolving Credit Commitment
of any Lender, the Term Loan Commitment of any Lender or the amount of the
Loans, (b) reduce the rate of interest or fees payable on any Loan or
Reimbursement Obligation, (c) reduce or forgive the principal amount of any Loan
or Reimbursement Obligation or any fee or commission with respect thereto, (d)
extend the originally
106
scheduled time or times of payment of the principal of any Loan or Reimbursement
Obligation (including, without limitation, the Revolving Credit Maturity Date
and the Term Loan Maturity Date) or the time or times of payment of interest on
any Loan or Reimbursement Obligation or any fee or commission with respect
thereto, (e) permit any subordination of the principal or interest on any Loan
or Reimbursement Obligation, (f) release any Borrower from the Obligations
(other than Hedging Obligations) hereunder, (g) release the Domestic Borrower
from its Obligations under the Domestic Borrower Guaranty Agreement, (h) release
any Material Subsidiary from its Obligations under the Subsidiary Guaranty
Agreement, (i) permit any assignment (other than as specifically permitted or
contemplated in this Agreement) of any of the rights and obligations of any
Borrower hereunder, (j) release any material portion of any collateral or
release any applicable security document (other than asset sales permitted
pursuant to Section 11.5 and as otherwise specifically permitted or contemplated
in this Agreement or any applicable security document), (k) amend the definition
of Alternative Currency, (l) amend the provisions of this Section 15.11 or the
definition of Required Lenders or (m) extend the time of the obligation of the
Lenders holding Revolving Credit Commitments to make or issue or participate in
Letters of Credit, in each case, without the prior written consent of each
Lender (other than with respect to clause (m) above, in which case consent
rights shall apply only to each Lender holding Revolving Credit Loans or a
Revolving Credit Commitment). In addition, no amendment, waiver or consent to
the provisions of (a) Article XIV shall be made without the written consent of
the Agents, (b) Article III without the written consent of the Issuing Lender,
(c) any provision of this Agreement relating to Swingline Loans or the Swingline
Facility without the written consent of the Swingline Lender and (d) any
provision of this Agreement relating to Alternative Currency Loans or the
Alternative Currency Facility without the written consent of the Alternative
Currency Lender. Furthermore, the Borrowers shall forward any request for any
amendment, waiver or consent to the Agents.
SECTION 15.12 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Borrowers at their sole cost and expense.
SECTION 15.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Agents and any Persons
designated by any Agent or any Lender pursuant to any provisions of this
Agreement or any of the other Loan Documents shall be deemed coupled with an
interest and shall be irrevocable so long as any of the Obligations remain
unpaid or unsatisfied or the Credit Facility has not been terminated.
SECTION 15.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Agents and the Lenders are
entitled under the provisions of this Article XV and any other provision of this
Agreement and the other Loan Documents shall continue in full force and effect
and shall protect the Agents and the Lenders against events arising after such
termination as well as before.
SECTION 15.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
107
SECTION 15.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 15.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 15.18 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied in full and all Commitments have been
terminated. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination or in
respect of any provision of this Agreement which survives such termination.
SECTION 15.19 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 15.20 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
SECTION 15.21 Nature of Obligations. The Domestic Borrower shall be
jointly and severally liable for the Obligations, however incurred, and the
Canadian Borrower shall be severally and not jointly and severally liable for
the Obligations, however incurred. References to the Domestic Borrower with
respect to the Obligations, however incurred, or any portion thereof shall mean
the Domestic Borrower on a joint and several basis and references to the
Canadian Borrower with respect to the Obligations, however incurred, or any
portion thereof shall mean the Canadian Borrower on a several basis and not on a
joint and several basis. Notwithstanding anything to the contrary contained in
this Agreement, the indemnity obligations of the Canadian Borrower set forth in
Sections 3.8, 5.11(d), 5.12, 5.14(c) and 15.2 shall not apply to any loss or
claim attributable to the Domestic Borrower or any Domestic Subsidiary thereof.
SECTION 15.22 Domestic Borrower as Agent for the Borrowers. The
Borrowers hereby irrevocably appoint and authorize the Domestic Borrower (i) to
provide the Agents with all notices with respect to the Extensions of Credit
obtained for the benefit of any Borrower and all other notices and instructions
under this Agreement and the other Loan Documents and (ii) to take such action
on behalf of the Borrowers as the Domestic Borrower deems appropriate on its
behalf to obtain Extensions of Credit and to exercise such other powers as are
reasonably incidental thereto to carry out the purposes of this Agreement and
the other Loan Documents.
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SECTION 15.23 Inconsistencies with Other Documents; Independent Effect
of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control.
(b) The Borrowers expressly acknowledge and agree that each covenant
contained in Articles IX, X, or XI shall be given independent effect.
Accordingly, the Borrowers shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles IX, X, or XI if,
before or after giving effect to such transaction or act, the Borrowers shall or
would be in breach of any other covenant contained in Articles IX, X, or XI.
[Signature pages to follow]
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
DOMESTIC BORROWER:
G&K SERVICES INC., as Domestic Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
[Signature pages continued on the following page]
[Credit Agreement - G&K Services Inc.]
CANADIAN BORROWER:
G&K SERVICES CANADA INC., as Canadian
Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer,
Secretary & Treasurer
[Signature pages continued on the following page]
ADMINISTRATIVE AGENT, SYNDICATION
AGENT AND LENDERS:
BANK ONE, NA, as Administrative Agent and
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate Director
[Signature pages continued on the following page]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Syndication Agent and
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature pages continued on the following page]
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature pages continued on the following page]
▇▇▇▇▇ FARGO BANK, N.A. as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
BANK OF TOKYO-MITSUBISHI, LTD.,
Chicago Branch, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Manager
THE ROYAL BANK OF SCOTLAND PLC,
as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
COMERICA BANK, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
REGIONS BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A. as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
ALLIED IRISH BANKS, PLC, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
THE NORINCHUKIN BANK, NEW YORK
BRANCH, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: General Manager
THE NORTHERN TRUST COMPANY, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK HAPOALIM B.M., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ Lewroy ▇▇▇▇▇▇▇
----------------------------------
Name: Lewroy ▇▇▇▇▇▇▇
Title: Vice President
Schedule 1.1(b)
To
Credit Agreement
Administrative Agent's Correspondent
Alternative Currency Administrative Agent's Correspondent
Canadian Dollars ▇▇▇▇ ▇▇▇, ▇▇, ▇▇▇▇▇▇ Branch
BCE Place
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax #:▇▇▇-▇▇▇-▇▇▇▇