EXECUTION COPY
U.S. $600,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 27, 1998
Among
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
as the Borrower,
THE ▇▇▇▇▇▇ GROUP INC.
as a Guarantor,
THE LENDERS NAMED HEREIN
as the Lenders,
and
BANK OF MONTREAL
as L/C Issuer, Swing Line Lender and Administrative and Syndication Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1.1. Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II THE CREDITS
2.1. The Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.2. Repayment of the Revolving Loans . . . . . . . . . . . . . . . . . . . . . 25
2.3. Ratable Revolving Loans; Types of Advances . . . . . . . . . . . . . . . . 25
2.4. Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . . . . . . 25
2.5. Optional Prepayments of Revolving Loans. . . . . . . . . . . . . . . . . . 25
2.6. Method of Selecting Types and Interest Periods for New Advances. . . . . . 26
2.7. Conversion and Continuation of Outstanding Advances. . . . . . . . . . . . 26
2.8. Payment of Interest on Revolving Loans and Advances. . . . . . . . . . . . 27
2.9. Changes in Interest Rate, Etc. . . . . . . . . . . . . . . . . . . . . . . 27
2.10. Commitment Fee; Mandatory and Voluntary Reductions in Aggregate
Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.11. Rates Applicable After Default . . . . . . . . . . . . . . . . . . . . . . 29
2.12. Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.13. Evidence of Debt; Telephonic Notices . . . . . . . . . . . . . . . . . . . 29
2.14. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.15. Lending Installations. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.16. Non-Receipt of Funds by the Agent. . . . . . . . . . . . . . . . . . . . . 31
2.17. Withholding Tax Exemption; Gross Up. . . . . . . . . . . . . . . . . . . . 31
2.18. Extension of Facility Termination Date . . . . . . . . . . . . . . . . . . 32
2.19. Mandatory Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.20. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.21. Letter of Credit Facility. . . . . . . . . . . . . . . . . . . . . . . . . 34
2.21.1 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . . . 34
2.21.2 Letter of Credit Participation . . . . . . . . . . . . . . . . . . 34
2.21.3 Reimbursement Obligation . . . . . . . . . . . . . . . . . . . . . 35
2.21.4 Cash Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.21.5 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . . . 37
2.21.6 Indemnification; Exoneration . . . . . . . . . . . . . . . . . . . 38
2.21.7 Letter of Credit Cancellation. . . . . . . . . . . . . . . . . . . 39
2.22. Swing Line Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.23. Borrowing Procedures for Swing Line Loans. . . . . . . . . . . . . . . . . 40
2.24. Refunding of Swing Line Loans. . . . . . . . . . . . . . . . . . . . . . . 40
2.25. Participations in Swing Line Loans . . . . . . . . . . . . . . . . . . . . 41
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2.26. Swing Line Participation Obligations Unconditional . . . . . . . . . . . . 41
2.27. Evidence of Swing Line Loans; Telephonic Notices . . . . . . . . . . . . . 41
2.28. Conditions to Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE III CHANGE IN CIRCUMSTANCES
3.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.2. Changes in Capital Adequacy Regulations. . . . . . . . . . . . . . . . . . 43
3.3. Availability of Types of Advances. . . . . . . . . . . . . . . . . . . . . 44
3.4. Funding Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.5. Mitigation; Lender Statements; Survival of Indemnity . . . . . . . . . . . 44
ARTICLE IV CONDITIONS PRECEDENT
4 Conditions Precedent to Amendment and Restatement. . . . . . . . . . . . . 45
4.1. Initial Advance, Swing Line Loan and Letter of Credit. . . . . . . . . . . 45
4.2. Each Advance, Swing Line Loan and Letter of Credit . . . . . . . . . . . . 47
ARTICLE V TLGI GUARANTY
5.1. The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.2. Guaranty Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.3. Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.4. Waiver by TLGI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.5. Waiver of Subrogation Rights . . . . . . . . . . . . . . . . . . . . . . . 50
5.6. Stay of Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.7. Gross-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . 51
6.1. Corporate Existence and Standing . . . . . . . . . . . . . . . . . . . . . 51
6.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . . . . . . 51
6.3. No Conflict; Government Consent. . . . . . . . . . . . . . . . . . . . . . 51
6.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.5. Material Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.7. Litigation and Contingent Liabilities. . . . . . . . . . . . . . . . . . . 52
6.8. Subsidiaries; Pledge of Stock. . . . . . . . . . . . . . . . . . . . . . . 53
6.9. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.10. Accuracy of Information. . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.11. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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6.12. Material Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.13. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.14. Ownership of Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.15. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.16. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . 54
6.17. Post-Retirement Benefits . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.18. Negative Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6.20. Existing Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 55
6.21. No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE VII COVENANTS
7 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.1. Financial Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.2. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.3. Notices of Default, Litigation, Etc. . . . . . . . . . . . . . . . . . . . 59
7.4. Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.6. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.8. Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . . . . 60
7.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.10. Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.11. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.12. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.13. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.14. Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.15. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.16. Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.17. Negative Pledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.18. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7.19. Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . 68
7.20. Minimum Consolidated Tangible Net Worth. . . . . . . . . . . . . . . . . . 68
7.21. Maximum Consolidated Indebtedness to Consolidated Capitalization . . . . . 68
7.22. Interest Charges Coverage. . . . . . . . . . . . . . . . . . . . . . . . . 68
7.23. Maximum Consolidated Indebtedness to Adjusted EBITDAR. . . . . . . . . . . 69
7.24. Ownership of the Borrower. . . . . . . . . . . . . . . . . . . . . . . . . 69
7.25. Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.26. Pledge of Stock and Grant of Security Interest in Certain Assets . . . . . 69
7.27. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.28. Subsidiaries' Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.29. Synthetic Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
iii
7.30. Deliveries regarding Pledgor Subsidiaries. . . . . . . . . . . . . . . . . 73
7.31. Unrestricted Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE VIII DEFAULTS
8 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
9.3. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE X GENERAL PROVISIONS
10.1. Survival of Representations. . . . . . . . . . . . . . . . . . . . . . . . 79
10.2. Governmental Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.3. Stamp Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
10.5. Entire Agreement; Independence of Covenants. . . . . . . . . . . . . . . . 79
10.6. Several Obligations; Benefits of this Agreement. . . . . . . . . . . . . . 80
10.7. Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 80
10.8. Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
10.9. Accounting; Currency Conversions . . . . . . . . . . . . . . . . . . . . . 81
10.10. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . 82
10.11. Nonliability of Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.12. CHOICE OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.13. CONSENT TO JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.14. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.15. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
10.16. Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
10.17. Canadian Interest Antidotes. . . . . . . . . . . . . . . . . . . . . . . . 84
10.18. Counterparts; Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE XI THE AGENT AND THE DOCUMENTATION AGENT
11.1. Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.3. General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.4. No Responsibility for Revolving Loans, Swing Line Loans, Recitals, Etc.. . 85
11.5. Action on Instructions of Lenders. . . . . . . . . . . . . . . . . . . . . 85
iv
11.6. Employment of Agents and Counsel . . . . . . . . . . . . . . . . . . . . . 86
11.7. Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . 86
11.8. Agent's Reimbursement and Indemnification. . . . . . . . . . . . . . . . . 86
11.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
11.10. Lenders' Credit Decisions. . . . . . . . . . . . . . . . . . . . . . . . . 87
11.11. Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.12. Agent's Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.13. Documentation Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
ARTICLE XII SETOFF; RATABLE PAYMENTS
12.1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
12.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
13.2.1 Permitted Participations; Effect . . . . . . . . . . . . . . . . . 89
13.2.2 Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.2.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.3. Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.3.1 Permitted Assignments. . . . . . . . . . . . . . . . . . . . . . . 90
13.3.2 Effect; Effective Date of Assignments. . . . . . . . . . . . . . . 91
13.4. Dissemination of Information . . . . . . . . . . . . . . . . . . . . . . . 92
13.5. Tax Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE XIV NOTICES
14.1. Giving Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.2. Change of Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE XV COLLATERAL TRUST AGREEMENT
15.1. Appointment of Secured Party Representative. . . . . . . . . . . . . . . . 93
15.2. Appointment of Enforcement Representatives . . . . . . . . . . . . . . . . 93
15.3. Actions of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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ARTICLE XVI AMENDMENT AND RESTATEMENT
16.1. Amendment and Restatement. . . . . . . . . . . . . . . . . . . . . . . . . 93
16.2. Departing Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
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SCHEDULE 1 - Disclosure Schedule
SCHEDULE 2 - Applicable Margins and Applicable Commitment Fee and Letter
of Credit Fee Rates
SCHEDULE 3 - Senior Obligations
SCHEDULE 4 - Existing Letters of Credit
SCHEDULE 5 - Commitments of the Lenders
SCHEDULE 6 - Certain Pledged Shares Subject to Transfer Restrictions
SCHEDULE 7 - Insurance Companies
EXHIBIT A - Form of Revolving Note
EXHIBIT B - Required Opinions
EXHIBIT C - Form of Compliance Certificate
EXHIBIT D - Form of Assignment Agreement
EXHIBIT E - Form of Revolving Loan/Swing Line Loan/Credit Related Money
Transfer Instruction
EXHIBIT F - Form of Revolving Loan Borrowing Notice
EXHIBIT G - Form of Prepayment Notice
EXHIBIT H - Form of Extension Request
EXHIBIT I - Form of Conversion/Continuation Notice
EXHIBIT J - Collateral Trust Agreement
EXHIBIT K - Form of Approved Sale Certificate
EXHIBIT L - Form of Swing Line Loan Borrowing Notice
vii
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 27,
1998, is among ▇▇▇▇▇▇ GROUP INTERNATIONAL, INC., a Delaware corporation, as the
Borrower, THE ▇▇▇▇▇▇ GROUP INC., a corporation organized under the laws of the
Province of British Columbia, Canada, as a Guarantor, THE LENDERS NAMED HEREIN,
as the initial Lenders, and BANK OF MONTREAL, as the L/C Issuer and the Swing
Line Lender and as the Administrative and Syndication Agent for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, The ▇▇▇▇▇▇ Group Inc., certain Lenders and other
Persons party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Agent for the Lenders, entered into a Credit Agreement, dated as of May 15, 1996
(the "Original Agreement"), pursuant to which the Lenders made certain loans to
the Borrower, and the L/C Issuer issued, upon the application of the Borrower,
certain letters of credit for the account of the Borrower; and
WHEREAS, the Borrower, The ▇▇▇▇▇▇ Group Inc., certain Lenders and other
Persons party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for the Lenders, entered into an Amended
and Restated Credit Agreement, dated as of September 29, 1997 (together with all
amendments thereto prior to the date hereof, the "Original Amended Agreement"),
pursuant to which the Lenders made certain loans to the Borrower, and the L/C
Issuer issued, upon the application of the Borrower, certain letters of credit
for the account of the Borrower; and
WHEREAS, the Borrower, The ▇▇▇▇▇▇ Group Inc., certain of the Lenders party
thereto and Bank of Montreal desire to amend and restate the Original Amended
Agreement to provide for, among other things, (i) a reduction in the maximum
aggregate principal amount of the Commitments (as defined in the Original
Amended Agreement), (ii) a modification of the term of the Commitments, and
(iii) certain other modifications, all on the terms and conditions set forth
herein; and
WHEREAS, the proceeds of the Revolving Loans and Swing Line Loans will be
used:
(a) to make payment in full of all Indebtedness identified on ANNEX I
of SCHEDULE 1 hereto under the heading "Indebtedness to be Paid";
(b) for general corporate purposes and working capital purposes of
the Borrower and its Subsidiaries; and
(c) to finance non-contested acquisitions made by the Borrower or its
Subsidiaries (other than Unrestricted Subsidiaries) under the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. As used in this Agreement the following
terms shall have the following meanings, such meanings being equally applicable
to both the singular and plural forms of the terms defined:
"ACQUISITION" means any transaction, or any series of related transactions,
by which TLGI or any of its Subsidiaries (other than an Unrestricted Subsidiary)
(a) acquires any going business or all or substantially all of the assets of any
firm, corporation, limited liability company, partnership or other Person, or
(as applicable) any operation or division thereof which constitutes a going
business, whether through purchase of assets, merger or otherwise or
(b) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership, membership
interests of a limited liability company, or other ownership interests of any
Person.
"ADJUSTED EBITDAR" shall mean at any time for the four consecutive fiscal
quarter period then most recently ended the sum of (a) EBITDAR of TLGI and the
Borrower and the other Subsidiaries (but exclusive of any Unrestricted
Subsidiaries) for such four consecutive fiscal quarter period determined on a
consolidated basis, PLUS (b) EBITDAR for such four consecutive fiscal quarter
period of all Persons acquired by TLGI, the Borrower or the other Subsidiaries
(but exclusive of any Unrestricted Subsidiaries) during the six-month period
ending on the last day of such four consecutive fiscal quarter period (but only
to the extent the Acquisitions of such Persons constituted Permitted
Acquisitions), LESS (c) all amounts included in the foregoing CLAUSE (b) to the
extent such amounts are included in the foregoing CLAUSE (a); provided that
EBITDAR of any such acquired Person shall be determined on the basis of actual
EBITDAR for such acquired Person as set forth in the financial statements of
such acquired Person, which financial statements shall be (x) audited for the
portion of such four consecutive fiscal quarter period which falls within the
most recently ended fiscal year of such acquired Person ended prior to the date
on which such Person became a Subsidiary of TLGI, the Borrower or another
Subsidiary and unaudited for the portion of such four consecutive fiscal quarter
period which falls after the end of the most recently ended fiscal year of such
acquired Person ended
2
prior to the date on which such Person became a Subsidiary of TLGI, the
Borrower or another Subsidiary if the total consideration payable in
connection with such Acquisition is in excess of $25,000,000, and (y)
unaudited for such four consecutive fiscal quarter period if the total
consideration payable in connection with such Acquisition is $25,000,000
or less.
"ADVANCE" means a borrowing consisting of simultaneous Revolving Loans
of the same Type made to the Borrower by each of the Lenders pursuant to
SECTION 2.1 for, in the case of Fixed Rate Advances, the same Interest Period.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"AGENT" means Bank of Montreal in its capacity as Administrative and
Syndication Agent for the Lenders pursuant to ARTICLE XI, and not in its
capacity as the Swing Line Lender, the L/C Issuer or a Lender, and any successor
Agent appointed pursuant to ARTICLE XI.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"AGREEMENT" means this Second Amended and Restated Credit Agreement, as it
from time to time may be amended, restated, supplemented or otherwise modified
in accordance with the terms hereof.
"AGREEMENT ACCOUNTING PRINCIPLES" means GAAP as in effect from time to
time, applied in a manner consistent with that used in preparing the financial
statements referred to in SECTION 6.4.
"ALTERNATE BASE RATE" means, for any day, a floating rate of interest per
annum equal to the higher of (a) the Base Rate for such day and (b) the sum of
the Federal Funds Effective Rate for such day plus 0.50% per annum. Changes in
the rate of interest on that portion of any Revolving Loans maintained as
Floating Rate Advances and on all Swing Line Loans (and in the rate of interest
on any other Obligations from time to time bearing interest at a rate determined
by reference to the Alternate Base Rate) will take effect simultaneously with
each change in the Alternate Base Rate.
"APPLICABLE COMMITMENT FEE RATE" means a per annum rate determined from
time to time by reference to the ratio of Consolidated Indebtedness determined
at such time to Adjusted EBITDAR determined for the period of four consecutive
fiscal quarters then most
3
recently ended as specified on SCHEDULE 2 hereto. Any change in the
Applicable Commitment Fee Rate resulting from a change in such ratio will
take effect as of the date of the change of such ratio.
"APPLICABLE LETTER OF CREDIT FEE RATE" means a per annum rate determined
from time to time by reference to the ratio of Consolidated Indebtedness
determined at such time to Adjusted EBITDAR determined for the period of four
consecutive fiscal quarters then most recently ended as specified on SCHEDULE 2
hereto. Any change in the Applicable Letter of Credit Fee Rate resulting from a
change in such ratio will take effect as of the date of the change of such
ratio.
"APPLICABLE MARGIN" means a per annum rate determined from time to time by
reference to the ratio of Consolidated Indebtedness determined at such time to
Adjusted EBITDAR determined for the period of four consecutive fiscal quarters
then most recently ended as specified on SCHEDULE 2 hereto. Any change in the
Applicable Margin resulting from a change in such ratio will take effect as of
the date of the change of such ratio.
"APPROVED SALE" means any sale of Property pledged to the Collateral Agent
under the terms of the Collateral Trust Agreement (i) which is expressly
permitted by the terms of SECTION 7.13 and with respect to which TLGI and the
Borrower shall have delivered to the Agent prior to consummation of such sale a
certificate from an Authorized Officer in the form of EXHIBIT K hereto
certifying that both immediately before and after giving effect to such sale, no
Default or Unmatured Default shall have occurred and be continuing, or
(ii) which is otherwise approved by the Required Lenders.
"ARTICLE" means a numbered article of this Agreement, unless another
document is specifically referenced.
"AUTHORIZED OFFICER" means (a) with respect to TLGI, any of the President,
Executive Vice President, Senior Vice President and CFO or Vice President,
Finance of TLGI, or any Person designated by any two of the foregoing, acting
singly and (b) with respect to the Borrower, any of the President, Executive
Vice President, Senior Vice President and CFO or Vice President, Finance of the
Borrower, or any Person designated by any two of the foregoing, acting singly.
"BANK OF MONTREAL" means Bank of Montreal in its individual capacity, and
its successors.
"BASE RATE" means, at any time, the floating rate per annum then most
recently announced by Bank of Montreal in Chicago, Illinois as the reference
rate of interest it will use to determine rates of interest for loans in Dollars
in the United States and referred to by it as its "U.S. base rate". The Base
Rate is not necessarily intended to be the lowest rate of interest determined by
the Bank of Montreal in connection with extensions of credit.
4
"BORROWER" means ▇▇▇▇▇▇ Group International, Inc., a Delaware corporation,
and its successors and assigns to the extent permitted under the terms of this
Agreement.
"BUSINESS DAY" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday or
other day on which banks are authorized or required to be closed) on which banks
generally are open in Chicago, New York and London for the conduct of
substantially all of their commercial lending activities and (b) for all other
purposes, a day (other than a Saturday or Sunday or other day on which banks are
authorized or required to be closed) on which banks generally are open in
Chicago and New York for the conduct of substantially all of their commercial
lending activities.
"CANADIAN DOLLARS" and "C$" means the lawful money of Canada.
"CANADIAN GAAP" means, at any time, generally accepted accounting
principles in Canada at such time.
"CANADIAN PLAN" means a pension plan provided by TLGI or any other
Subsidiary incorporated under the laws of Canada or any Province of Canada.
"CAPITALIZED LEASE" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CHANGE OF CONTROL" means an event which shall be deemed to have occurred
if (a) the Borrower shall at any time cease to be a Wholly-Owned Subsidiary of
TLGI, or (b) any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either (x) acquire
beneficial ownership of more than 50% of any outstanding class of common stock
of TLGI having ordinary voting power in the election of directors of TLGI or
(y) obtain the power (whether or not exercised) to elect a majority of TLGI's
directors, or (c) during any period of 12 consecutive calendar months,
individuals (i) who were directors of TLGI on the first day of such period, or
(ii) whose election or nomination for election to the board of directors of TLGI
was recommended or approved by at least a majority of the directors then still
in office who were directors of TLGI on the first day of such period, or whose
election or nomination for election was so approved, shall cease to constitute a
majority of the board of directors of TLGI.
"CHIEF FINANCIAL OFFICER" means, at any time, the Person who reports to the
board of directors of TLGI on the financial affairs of TLGI and the
Subsidiaries.
5
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL AGENT" means Bankers Trust Company and its successors in the
capacity of collateral agent under the terms of the Collateral Trust Agreement.
"COLLATERAL RELEASE DATE" has the meaning specified in SECTION 7.26.
"COLLATERAL TRUST AGREEMENT" means that certain Collateral Trust Agreement,
a copy of which is attached as EXHIBIT J hereto, dated as of May 15, 1996 and
executed by TLGI, the Borrower, all Pledgor Subsidiaries, and the Collateral
Agent, as such Collateral Trust Agreement may be amended or modified and is in
effect from time to time.
"COMMITMENT" means, relative to any Lender, the obligation of such Lender
to make Revolving Loans, to purchase participations in Swing Line Loans and to
purchase participations in Letters of Credit not exceeding the amount set forth
opposite such Lender's name on Schedule 5 hereto or as set forth in any Notice
of Assignment relating to any assignment that has become effective pursuant to
SECTION 13.3.2, as such amount may be modified from time to time pursuant to the
terms hereof.
"CONDEMNATION" has the meaning specified in SECTION 8.8.
"CONSOLIDATED CAPITALIZATION" means at any time of determination, the sum
of (a) the Consolidated Indebtedness of TLGI at such time, and (b) the
Consolidated Net Worth of TLGI at such time.
"CONSOLIDATED DISTRIBUTABLE AMOUNT" means, at any time of determination,
the sum of,
(a) $100,000,000, plus
(b) 50% of Consolidated Net Income (or if such Consolidated Net
Income is a deficit figure, then minus 100% of such deficit) determined on
a cumulative basis for the period commencing on January 1, 1998, and ending
on the date of determination, plus
(c) 33 1/3% of the aggregate amount of the net cash proceeds received
by TLGI and the Borrower and their respective Subsidiaries from the
issuance or sale on or after January 1, 1998 (other than sales or issuances
to TLGI or the Borrower or any of their respective Subsidiaries) of the
capital stock of TLGI or Indebtedness of TLGI, the Borrower or any of their
respective Subsidiaries which has been converted into capital stock of
TLGI.
6
"CONSOLIDATED FIXED CHARGES" means, for any period, without duplication,
the sum of the amounts for such period of (i) Consolidated Interest Charges and
(ii) the product of (a) the aggregate amount of dividends and other
distributions paid or accrued during such period in respect of (1) preferred
stock of TLGI, the Borrower or any other Subsidiary (but exclusive of preferred
stock issued to TLGI or an Affiliate of TLGI) and (2) capital stock of TLGI
which is or may be redeemable or convertible into debt prior to the Facility
Termination Date and (b) for each such dividend or distribution, a multiplier,
the numerator of which is one and the denominator of which is one minus the then
current combined federal, provincial, state and local statutory tax rate of TLGI
and its Subsidiaries determined on a consolidated basis, such multiplier to be
expressed as a decimal, PROVIDED, HOWEVER, that the multiplier in CLAUSE (ii)(b)
shall be deemed to be one if such dividend or other distribution described in
the preceding CLAUSE (ii)(a) is fully tax deductible.
"CONSOLIDATED INDEBTEDNESS" means, at any time of determination, without
duplication, all Indebtedness of TLGI, the Borrower and the Subsidiaries (other
than Unrestricted Subsidiaries) of TLGI and the Borrower at such time determined
on a consolidated basis in accordance with GAAP (to the extent GAAP is
applicable thereto).
"CONSOLIDATED INTEREST CHARGES" for any period shall mean on a consolidated
basis all interest (including the interest component of Capitalized Lease
Obligations and Synthetic Lease Obligations), and all amortization of debt
discount and expense on all Indebtedness of TLGI and the Borrower and their
Subsidiaries (other than Unrestricted Subsidiaries) for such period.
"CONSOLIDATED NET INCOME" for any period shall mean the gross revenues of
TLGI and the Borrower and the other Subsidiaries (other than Unrestricted
Subsidiaries) for such period less all expenses and other proper charges
(including taxes on income), determined on a consolidated basis after
eliminating earnings or losses attributable to outstanding Minority Interests,
but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such excluded
gains and any tax deductions or credits on account of any such excluded
losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the
date it became a Subsidiary;
(d) net earnings and losses of any corporation (other than a
Subsidiary) substantially all the assets of which have been acquired in any
manner by TLGI or any Subsidiary, realized by such corporation prior to the
date of such acquisition;
7
(e) net earnings and losses of any corporation (other than a
Subsidiary) with which TLGI or a Subsidiary shall have consolidated or
which shall have merged into or amalgamated with TLGI or a Subsidiary prior
to the date of such consolidation, merger or amalgamation;
(f) net earnings of any business entity (other than a Subsidiary) in
which TLGI or any Subsidiary has an ownership interest unless such net
earnings shall have actually been received by TLGI or such Subsidiary in
the form of cash distributions;
(g) any portion of the net earnings of any Subsidiary which for any
reason is unavailable for payment of dividends to TLGI or any other
Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or write-up
of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of the acquisition thereof over the
amount invested in such Subsidiary;
(j) any gain or loss arising from the acquisition of any securities
of TLGI or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such period; and
(l) any other unusual or extraordinary gain;
provided for the purpose of calculating Consolidated Net Income for the fiscal
quarter ended September 30, 1997, but only to the extent that Consolidated Net
Income is calculated as part of the calculation of EBITDAR for such fiscal
quarter to determine compliance with SECTIONS 7.22 and 7.23, there shall be
included in Consolidated Net Income for such fiscal quarter an amount equal to
$61,800,000.
"CONSOLIDATED NET WORTH" means, as of the date of any determination
thereof, the sum of the amount of the shareholders' equity of TLGI and the
Borrower and the other Subsidiaries (other than Unrestricted Subsidiaries) as
would be shown on the consolidated balance sheet of TLGI and the Borrower and
the other Subsidiaries (other than Unrestricted Subsidiaries) determined on a
consolidated basis in accordance with GAAP, which in any event shall include (x)
the MIPS and (y) the amount of all preferred stock of TLGI and the Borrower and
all Subsidiaries (other than Unrestricted Subsidiaries) of TLGI and the Borrower
to the extent such preferred stock is not redeemable at the option of the holder
for cash or indebtedness for any reason, and which shall exclude the amount of
all preferred stock of TLGI and the Borrower and all Subsidiaries (other than
Unrestricted Subsidiaries) of TLGI and the Borrower to
8
the extent such preferred stock is redeemable at the option of the holder for
cash or indebtedness for any reason.
"CONSOLIDATED REVENUES" for any period shall mean the gross revenues
of TLGI and the Borrower and the other Subsidiaries (other than Unrestricted
Subsidiaries) for such period, determined on a consolidated basis after
eliminating revenues attributable to outstanding Minority Interests determined
in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of the date of any
determination thereof, as to any Person, the Consolidated Net Worth of such
Person, less the sum of the value, as set forth or reflected on the most recent
consolidated balance sheet of such Person and its consolidated Subsidiaries
(other than Unrestricted Subsidiaries), prepared in accordance with GAAP, of:
(a) any surplus resulting from any write-up of assets subsequent to
December 31, 1995;
(b) all assets which would be treated as intangible assets for
balance sheet presentation purposes under GAAP, including without
limitation goodwill (whether representing the excess of cost over book
value of assets acquired, or otherwise), trademarks, trade names, service
marks, copyrights, patents and technologies, names and reputations,
covenants not to compete, organization or developmental expenses, and
unamortized debt discount and expense;
(c) to the extent not included in CLAUSE (b) of this definition, any
amount at which shares of capital stock of such Person and its consolidated
Subsidiaries (other than Unrestricted Subsidiaries) appear as an asset on
the balance sheet of such Person and its consolidated Subsidiaries (other
than Unrestricted Subsidiaries);
(d) Revolving Loans or Advances or Swing Line Loans or proceeds of
Letters of Credit provided to stockholders, directors, officers or
employees of such Person or its Subsidiaries (other than Unrestricted
Subsidiaries); and
(e) to the extent not included in CLAUSE (b) of this definition,
deferred expenses.
"CONSUMER FINANCE RECEIVABLES" means (i) any Receivables owned by
TLGI, the Borrower or any other Subsidiaries arising under a pre-need contract
for the sale of cemetery plots or other cemetery-related merchandise or
services, or arising under a pre-need contract for the performance of funeral
services or the sale of funeral-related merchandise, or (ii) any Receivables
owned by TLGI, the Borrower or any other Subsidiaries arising under an at-need
contract for the sale of cemetery plots or other cemetery-related merchandise or
services, or arising under an at-need contract for the performance of funeral
services or the sale of funeral-
9
related merchandise; PROVIDED, HOWEVER, that Receivables of TLGI, the
Borrower and other Subsidiaries (including any Unrestricted Subsidiaries)
which are of the types set forth in this CLAUSE (ii) shall not at any time be
deemed to be "Consumer Finance Receivables" to the extent that the amount of
all such Receivables, in the aggregate and without duplication, of TLGI, the
Borrower and the other Subsidiaries exceeds $200,000,000 at such time.
"CONTINGENT OBLIGATION" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or reimbursement obligation arising pursuant to
a letter of credit (including any Letter of Credit).
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"CONVERSION/CONTINUATION NOTICE" has the meaning specified in SECTION 2.7.
"DCT ENTITY" means any Subsidiary of TLGI, the Borrower, or any of
their respective Subsidiaries in which Directors Cemetery (Texas), Inc., a Texas
corporation, has an equity or other ownership interest and with respect to which
Directors Cemetery (Texas), Inc. has entered into a valid and binding agreement
prohibiting the pledging by Directors Cemetery (Texas), Inc. of the outstanding
capital stock of, or other equity interests in, such Subsidiary; PROVIDED,
HOWEVER, that any such Subsidiary that merges, consolidates, or amalgamates into
or with Directors Cemetery (Texas), Inc. shall not, from the date of such
merger, consolidation or amalgamation, be considered a "DCT Entity".
"DEFAULT" means an event described in ARTICLE VIII.
"DISTRIBUTION" in respect of any corporation shall mean (a) dividends
or other distributions on capital stock of the corporation (except dividends or
other distributions payable solely in shares of capital stock), and (b) the
redemption, retirement or acquisition of such stock or of warrants, rights or
other options to purchase such stock (except when solely in exchange for such
stock).
"DISTRIBUTION DATE" has the meaning specified in SECTION 7.10(d).
"DOLLARS" and "$" mean the lawful money of the United States.
10
"DSP ENTITY" means any Subsidiary of TLGI, the Borrower, or any of
their respective Subsidiaries in which DSP General Partners, Inc., a Texas
corporation, has an equity or other ownership interest and with respect to which
DSP General Partners, Inc. has entered into a valid and binding agreement
prohibiting the pledging by DSP General Partners, Inc. of the outstanding
capital stock of, or other equity interests in, such Subsidiary; PROVIDED,
HOWEVER, that any such Subsidiary that merges, consolidates, or amalgamates into
or with DSP General Partners, Inc. shall not, from the date of such merger,
consolidation or amalgamation, be considered a "DSP Entity".
"EBITDAR" for any period shall mean the sum of (a) Consolidated Net
Income during such period, plus (in the case of CLAUSE (b) through CLAUSE (g)
below, to the extent deducted in determining Consolidated Net Income), (b) all
provisions for any income or similar taxes paid or accrued by TLGI and the
Borrower and the other Subsidiaries (other than Unrestricted Subsidiaries)
during such period, (c) depreciation, depletion and amortization for such period
for TLGI and the Borrower and the other Subsidiaries (other than Unrestricted
Subsidiaries), (d) other non-cash charges for TLGI and the Borrower and the
other Subsidiaries (other than Unrestricted Subsidiaries)', (e) Consolidated
Interest Charges of TLGI and the Borrower and the other Subsidiaries (other than
Unrestricted Subsidiaries) during such period determined in accordance with
GAAP, (f) Synthetic Lease Rentals during such period for TLGI and the Borrower
and the other Subsidiaries (other than Unrestricted Subsidiaries)', and (g) any
cash dividend or cash distribution declared and paid during such period by any
Unrestricted Subsidiary to TLGI, the Borrower or any of the other Subsidiaries
(other than another Unrestricted Subsidiary), but only to the extent such cash
dividends or cash distributions' have not already been included in the
calculation of EBITDAR.
"EFFECTIVE DATE" means the first date on which the Agent shall have
received counterparts of this Agreement duly executed by all parties hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"EURODOLLAR ADVANCE" means an Advance that bears interest at a
Eurodollar Rate.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, (a) the per annum rate for deposits in
Dollars for a period corresponding to the duration of the relevant Eurodollar
Interest Period, which appears on Telerate Page 3750 at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Eurodollar
Interest Period and (b) if such rate does not appear on Telerate Page 3750 on
such day, the per annum rate at which deposits in Dollars are offered by Bank of
Montreal to first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Eurodollar Interest Period, in the approximate amount of Bank of Montreal's
relevant Eurodollar Loan and having a maturity approximately equal to such
Eurodollar Interest Period. The reference to Telerate Page 3750 in
11
this definition shall be construed to be a reference to the relevant page or
any other page that may replace such page on the Telerate service or any
other service that may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for deposits in Dollars.
"EURODOLLAR INTEREST PERIOD" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Eurodollar Interest
Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months thereafter, unless there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, in which case such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a Business
Day, such Eurodollar Interest Period shall end on the next succeeding Business
Day, unless said next succeeding Business Day falls in a new calendar month, in
which case such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"EURODOLLAR LOAN" means a Revolving Loan which bears interest at a
Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (a) the quotient of (i) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(ii) one minus the Reserve Requirement (expressed as a decimal) applicable to
such Eurodollar Interest Period, plus (b) the Applicable Margin in effect from
time to time during such Eurodollar Interest Period. The Eurodollar Rate shall
be rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EXTENSION NOTIFICATION DATE" has the meaning specified in SECTION 2.18.
"EXTENSION REQUEST" has the meaning specified in SECTION 2.18.
"EXTENSION REQUEST DATE" has the meaning specified in SECTION 2.18.
"FACILITY TERMINATION DATE" means March 27, 2001, or such later date
in effect from time to time as the Facility Termination Date determined in
accordance with the procedures described in SECTION 2.18.
"FAIR VALUE" means the value of the relevant asset determined in an
arm's-length transaction conducted in good faith between an informed and willing
buyer, under no compulsion to buy, and an informed and willing seller, under no
compulsion to sell.
"FEDERAL FUNDS EFFECTIVE 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
12
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 Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole discretion.
"FINANCE SUBSIDIARY" means any captive finance Subsidiary of TLGI that
engages in no material activity other than (i) buying accounts receivable or
other financial assets of any Affiliate of TLGI, (ii) making loans or otherwise
extending credit to any such Affiliates, (iii) succeeding to (or having
succeeded to) any or all of the business of ▇▇▇▇▇▇ Luxembourg (No. 1) S.A. or
▇▇▇▇▇▇ Luxembourg (No. 2) S.A. or otherwise engaging in finance activities
similar to the finance activities engaged in by ▇▇▇▇▇▇ Luxembourg (No. 1) S.A.
or ▇▇▇▇▇▇ Luxembourg (No. 2)' S.A. from time to time, or (iv) making Investments
in other Finance Subsidiaries.
"FINANCIAL UNDERTAKING" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person and its
Subsidiaries, (c) obligations arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the consolidated balance sheet of such Person
and its Subsidiaries, or (d) net liabilities under any agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options.
"FIXED RATE" means the Eurodollar Rate.
"FIXED RATE ADVANCE" means an Advance which bears interest at a Fixed
Rate.
"FIXED RATE LOAN" means a Revolving Loan which bears interest at a
Fixed Rate.
"FLOATING RATE" means, for any day, a rate per annum equal to the sum
of (a) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes, plus (b) the Applicable Margin in effect for such day.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means, as applicable, a Revolving Loan or a Swing
Line Loan which bears interest at the Floating Rate.
13
"GAAP" means the generally accepted accounting principles generally
applied by TLGI as at December 31, 1995, and thereafter, Canadian GAAP until
such time as TLGI and the Borrower shall prepare their respective books of
record and account in accordance with U.S. GAAP, at which time and at all times
thereafter, "GAAP" shall mean U.S. GAAP.
"GOVERNMENTAL ACTS" has the meaning specified in SECTION 2.21.6(a).
"GOVERNMENTAL AUTHORITY" means any country or nation, any political
subdivision of such country or nation, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government of any country or nation or political subdivision thereof.
"GUARANTOR" means each of TLGI and each Pledgor Subsidiary and their
respective successors and assigns.
"GUARANTY" means each of (a) the Guaranty of TLGI set forth in
ARTICLE V and (b) the Pledgor Subsidiary Guaranty.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens on or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (d) obligations which are evidenced by notes,
acceptances, or other instruments (but exclusive of notes, bills and checks
presented in the ordinary course of business by such Person to banks for
collection or deposit), (e) Capitalized Lease Obligations, (f) Synthetic Lease
Obligations, (g) Securitization Obligations (but only to the extent of the
maximum recourse liability of such Person (or one or more of its Affiliates)
under the documentation for the related securitization transaction giving rise
to such Securitization Obligations for losses or defaults which are attributable
to the obligors of the Receivables included in such securitization transaction),
(h) Financial Undertakings, (i) Contingent Obligations and (j) obligations under
or in connection with letters of credit (including, with respect to TLGI or the
Borrower, any Letter of Credit); but excluding, in any event, (x) amounts
payable by such Person in respect of covenants not to compete and (y) with
reference to TLGI, the Borrower and the other Subsidiaries, all obligations of
TLGI, the Borrower and the other Subsidiaries of the character referred to in
this definition to the extent owing to TLGI, the Borrower or any other
Subsidiary.
"INSURANCE COMPANY" means any Subsidiary of ▇▇▇▇▇▇ Life Insurance
Group, Inc. which is primarily engaged in the business of providing insurance
and related products primarily intended for the funding of funeral and cemetery
products and services, which Insurance Companies as of the date hereof consist
of those Subsidiaries set forth on SCHEDULE 7 hereto.
14
"INTEREST PERIOD" means a Eurodollar Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"L/C COMMITMENT AMOUNT" means $300,000,000.
"L/C DRAFT" means a draft drawn on the L/C Issuer pursuant to any of
the Letters of Credit.
"L/C INTEREST" has the meaning specified in SECTION 2.21.2.
"L/C ISSUER" means Bank of Montreal.
"L/C OBLIGATIONS" means an amount equal to the sum (without
duplication) of (i) the aggregate of the amount then available for drawing under
each of the Letters of Credit, (ii) the face amounts of all outstanding L/C
Drafts corresponding to the Letters of Credit, which L/C Drafts have been
accepted by the L/C Issuer but not yet paid, (iii) the aggregate outstanding
amount of Reimbursement Obligations at such time and (iv) the aggregate face
amount of all Letters of Credit requested by the Borrower but not yet issued
(unless such request has been denied).
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement (including the Swing Line Lender), and any other lending
institutions which may become party hereto pursuant to the terms hereof, and
their respective successors and assigns permitted in accordance with the terms
hereof. Notwithstanding the foregoing, at any time that Bank of Montreal is the
sole Lender hereunder, any references to "Lender", "Lenders" or "Required
Lenders" shall be deemed to be a reference to Bank of Montreal.
"LENDING INSTALLATION" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"LETTER OF CREDIT" means each letter of credit identified on SCHEDULE 4
hereto and any standby letter of credit issued pursuant to SECTION 2.21
hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, security interest, charge, assignment, deposit arrangement,
encumbrance or other security agreement or arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
15
agreement).
"LMIC" means ▇▇▇▇▇▇ Management Investment Corporation, a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"LOAN DOCUMENTS" means this Agreement, the Letters of Credit, the
Collateral Trust Agreement, and the promissory notes (if any) issued pursuant to
SECTION 13.1.
"▇▇▇▇▇▇ LUXEMBOURG (NO. 1) S.A." means ▇▇▇▇▇▇ Luxembourg (No. 1) S.A.,
a company organized under the laws of Luxembourg and a Wholly-Owned Subsidiary
of TLGI.
"▇▇▇▇▇▇ LUXEMBOURG (NO. 2) S.A." means ▇▇▇▇▇▇ Luxembourg (No. 2) S.A.,
a company organized under the laws of Luxembourg and a Wholly-Owned Subsidiary
of TLGI.
"MAJOR ACQUISITION" means any Acquisition of any Person which had
either (x) gross revenues in excess of $5,000,000 for the fiscal year of such
Person most recently ended at the time of closing of such Acquisition or (y)
total assets in excess of $5,000,000 as of the end of the fiscal year of such
Person most recently ended at the time of closing of such Acquisition.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, Property, financial condition, results of operations, or prospects of
TLGI, the Borrower and the other Subsidiaries taken as a whole, (b) the ability
of TLGI or the Borrower to perform its respective obligations under the Loan
Documents, or (c) the validity or enforceability of any of the Loan Documents or
the rights or remedies of the Agent, the L/C Issuer, the Collateral Agent or the
Lenders thereunder, and "MATERIAL ADVERSE EFFECT" shall include, without
limitation, the occurrence at any time of a Material Judgment Event.
"MATERIAL JUDGMENT EVENT" means a judgment, award or other order shall
be entered (whether or not such judgment, award or other order is bonded,
stayed, contested or appealable) against any of TLGI, the Borrower or any of
their respective Subsidiaries at any time when the amount of such judgment,
award or order, when added to the aggregate amount of all other judgments,
awards and orders which at such time shall have been entered against any of
TLGI, the Borrower or any of their respective Subsidiaries without having been
finally satisfied in full or vacated, shall be in excess of $100,000,000.
"MEIP CREDIT AGREEMENT" means that certain $121,300,000 1994 MEIP
Credit Agreement, dated as of June 14, 1994, as amended and restated as of May
15, 1996, and as further amended and restated as of September 28, 1997 among
TLGI, the Borrower, LMIC, as agent for TLGI and the Borrower, the lenders party
thereto, and Wachovia Bank of Georgia, N.A., as agent for the lenders, as it has
been and may hereafter be amended, restated, supplemented or otherwise modified
from time to time.
"MINORITY INTERESTS" means any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law or shares
of stock having no right to vote or
16
receive dividends) that are not owned by TLGI and/or one or more of its
Subsidiaries. Minority Interests shall be valued by valuing Minority
Interests constituting preferred stock at the voluntary or involuntary
liquidating value of such preferred stock, whichever is greater, and by
valuing Minority Interests constituting common stock at the book value of
capital and surplus applicable thereto adjusted, if necessary, to reflect any
changes from the book value of such common stock required by the foregoing
method of valuing Minority Interests in preferred stock.
"MIPS" means the 9.45% Cumulative Monthly Income Preferred Securities,
Series A, issued by ▇▇▇▇▇▇ Group Capital, L.P. and the related Series A Junior
Subordinated Debentures issued by the Borrower and purchased by ▇▇▇▇▇▇ Group
Capital, L.P. with the proceeds of the sale of the 9.45% Cumulative Monthly
Income Preferred Securities, Series A.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"NEWEOL" means Neweol Finance B.V., a company incorporated under the
laws of the Netherlands.
"NON-CONSENTING LENDER" has the meaning specified in SECTION 2.18.
"NOTE AGREEMENTS" means the agreements dated for reference October 1,
1991, September 1, 1993 and February 1, 1994, the indentures dated March 20,
1996, October 1, 1996, September 26, 1997 and September 30, 1997, and any and
all other warrant agreements, indentures, and/or note agreements from time to
time entered into by TLGI, the Borrower, or either of them, and the relevant
holders of notes issued and sold thereunder, in each case as amended,
supplemented or otherwise modified from time to time.
"NOTICE OF ASSIGNMENT" has the meaning specified in SECTION 13.3.2.
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid
interest on the Revolving Loans and the Swing Line Loans, all L/C Obligations,
all accrued and unpaid fees and all expenses, reimbursements, indemnities and
other obligations of the Borrower to the Lenders or to any Lender, the Agent or
any indemnified party hereunder arising under the Loan Documents.
"ORIGINAL AMENDED AGREEMENT" has the meaning specified in the Recitals
to this Agreement.
"PARTICIPANT" has the meaning specified in SECTION 13.2.1.
17
"PAYMENT OFFICE" means the principal office of the Agent in Chicago,
Illinois, located on the date hereof at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office of the Agent as the Agent may from time to
time designate by written notice to the Borrower and the Lenders. All payments
to be made to the Agent at the Payment Office shall be made by wire transfer to
▇▇▇▇▇▇ Bank, Chicago, Illinois, ABA No. ▇▇▇▇▇▇▇▇▇ for credit to Account No.
▇▇▇▇▇▇▇ in the name of Bank of Montreal, with references to ▇▇▇▇▇▇ Group
International, Inc. and the type of payment being made, or to such other account
as the Agent may from time to time designate by written notice to the Borrower
and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" means any Acquisition (but only to the extent
such Acquisition does not involve lines of business which are outside of the
TLGI Lines of Business, unless the Acquisition of such lines which are outside
of the TLGI Lines of Business would, at the time of the Acquisition and after
giving effect thereto, be permitted as Investments under SECTION 7.16(o)) made
by TLGI, the Borrower or any other Subsidiary from a willing seller or other
willing transferor where such Acquisition is not contested by such seller or
transferor at any time during the pendency of such Acquisition; PROVIDED, that
(i) either (x) TLGI or the Borrower has in place before it executes any binding
agreement or other binding writing by which it agrees to proceed with the
Acquisition (whether or not subject to conditions) sufficient funds which are
committed and available (which may include the availability of Revolving Loans
under this Agreement (but only to the extent no Default or Unmatured Default
would occur after then giving effect to the borrowing necessary to fund such
Acquisition), and provided that for any third-party commitment such commitment
is otherwise permitted under this Agreement), to fund the full amount of the
cash consideration for such Acquisition, or (y) such agreement or other writing
contains a condition to closing of TLGI or the Borrower based upon the ability
of TLGI or the Borrower to raise funds for the Acquisition, and (ii) all
contractual arrangements evidencing such Acquisition include provisions
subjecting the parties to arbitration except to the extent the Board of
Directors of TLGI or the Borrower (or an authorized subcommittee thereof, a
majority of whose members consist of directors who are not employees of TLGI,
the Borrower or any other Subsidiary) shall either make an express determination
to the contrary or shall approve the Acquisition pursuant to valid action which
expressly contemplates the absence of such an arbitration provision in the
contractual arrangements evidencing such Acquisition.
"PERMITTED CREDIT SUPPORT" means, with respect to any Permitted
Receivables Securitization, representations, warranties, covenants, indemnities,
performance guaranties and related contractual provisions entered into by TLGI,
the Borrower or any of their respective Subsidiaries which are reasonably
customary in accounts receivable securitization transactions; PROVIDED, that
such representations, warranties, covenants, indemnities, performance guaranties
and provisions shall not permit credit recourse against TLGI, the Borrower or
any of their respective Subsidiaries.
"PERMITTED RECEIVABLES SECURITIZATION" means any transaction (or
series of
18
transactions) effected by TLGI or the Borrower or any Subsidiary of
TLGI pursuant to which TLGI, the Borrower or such Subsidiary either (x) sells or
otherwise transfers (including sales or transfers using one or more Unrestricted
Subsidiaries), or (y) grants a security interest in, assets of one or more of
TLGI, the Borrower and the other Subsidiaries consisting of Consumer Finance
Receivables and Receivables Related Assets.
"PERSON" means any natural person, corporation, limited liability
company, firm, joint venture, partnership, association, enterprise, trust or
other entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"PLEDGOR SUBSIDIARIES" means, at any time, but subject to SECTION
7.26, each Subsidiary of TLGI or the Borrower which at such time is party to the
Collateral Trust Agreement as a pledgor of capital stock or other equity
interests or, in the case of the Borrower, certain assets of the Borrower, held
by it on the terms specified in the Collateral Trust Agreement.
"PLEDGOR SUBSIDIARY GUARANTY" means the guaranty of each Pledgor
Subsidiary set forth in the Collateral Trust Agreement.
"PREPAYMENT NOTICE" has the meaning specified in SECTION 2.5.
"PROCESS AGENT" has the meaning specified in SECTION 10.13.
"PROPERTY" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"PURCHASERS" has the meaning specified in SECTION 13.3.1(a).
"RECEIVABLES" means all rights of TLGI, the Borrower or any Subsidiary
to payments from Persons other than TLGI and its Subsidiaries (whether
constituting accounts, chattel paper, instruments, general intangibles or
otherwise, and including the right to payment of any interest or finance
charges).
"RECEIVABLES RELATED ASSETS" means (i) any rights arising under the
documentation governing or relating to Consumer Finance Receivables (including
rights in respect of liens securing such Consumer Finance Receivables and other
credit support in respect of such Consumer Finance Receivables), (ii) any
collections, recoveries and proceeds of such Consumer Finance Receivables and
any lockboxes or accounts in which such proceeds are
19
deposited, (iii) spread accounts and other similar accounts (and any amounts
on deposit therein) established in connection with a Permitted Receivables
Securitization, (iv) any warranty, indemnity, dilution and other intercompany
claim arising out of documents relating to a Permitted Receivables
Securitization and (v) other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable.
"REGIONAL PARTNER" means any Subsidiary, all of the outstanding shares
entitled to receive dividends of which, shall at the time be owned or
controlled, directly or indirectly, by TLGI or a Subsidiary of TLGI.
"REGISTER" has the meaning specified in SECTION 13.3.2.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"REGULATION G", "REGULATION T", "REGULATION U" and "REGULATION X"
mean, respectively, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to the subject matter thereof.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.21.3.
"RELEVANT TAX" has the meaning specified in SECTION 5.7.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more, regardless of whether such lease is characterized as an operating
lease or a Synthetic Lease.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; PROVIDED, HOWEVER, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the
aggregate unpaid principal amount of the
20
outstanding Advances, Swing Line Loans and the L/C Obligations. For purposes
of this definition the aggregate unpaid principal amount of the outstanding
Swing Line Loans held by Lenders at any time shall be determined such that
all Swing Line Loans outstanding at such time shall be allocated among the
Lenders ratably in accordance with their respective Commitments,
notwithstanding that the Swing Line Lender at such time may have fully funded
some or all of the outstanding Swing Line Loans.
"RESERVE REQUIREMENT" means, with respect to a Eurodollar Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurodollar liabilities.
"RESTATEMENT EFFECTIVE DATE" has the meaning specified in
SECTION 16.1.
"REVOLVING LOAN" means a loan by a Lender to the Borrower as part of
an Advance.
"REVOLVING LOAN BORROWING DATE" means a date on which an Advance is
made hereunder.
"REVOLVING LOAN BORROWING NOTICE" has the meaning specified in SECTION
2.6.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SECURED PARTIES" means the Lenders, the Persons specified on SCHEDULE
3 hereto as Secured Parties and, to the extent designated by the Borrower from
time to time in a writing delivered to the Agent and the Collateral Agent, all
other Persons who from time to time hold Senior Obligations which are secured
pursuant to the Collateral Trust Agreement; PROVIDED, HOWEVER, that no Secured
Parties shall be placed within the class to which the Lenders belong from time
to time under the terms of the Collateral Trust Agreement unless the Required
Lenders shall have given their affirmative approval thereof.
"SECURITIZATION OBLIGATIONS" of a Person means the outstanding
purchaser's investment or outstanding capital or other principal equivalent that
purchasers or other investors are entitled to receive in respect of any
securitization or other sale or asset-backed financing of Receivables of such
Person or its Affiliates effected by such Person.
"SENIOR OBLIGATIONS" means (i) the Obligations, (ii) the Indebtedness
described on SCHEDULE 3 hereto, (iii) the obligations of TLGI or the Borrower
under any and all interest rate or currency exchange swaps, caps, collars,
floors or other similar transactions, or options on any of the foregoing,
entered into by TLGI or the Borrower and having a term of at least two years
from the date of entry into, and (iv) the unpaid principal of and accrued and
unpaid interest on (together with all accrued and unpaid fees and expenses
related to) Indebtedness for borrowed
21
money incurred by TLGI, the Borrower or any Subsidiary with a maturity of at
least two years from its date of issuance (or, in the case of revolving
Indebtedness, with a term of at least two years from the date of execution of
the documentation governing such revolving Indebtedness), which in the case
of Indebtedness described in this CLAUSE (iv) is not secured except pursuant
to the Collateral Trust Agreement and by its terms is not subordinated
(except as expressly provided in the Collateral Trust Agreement) to the
Obligations or any other senior indebtedness of TLGI, the Borrower or such
Subsidiary, respectively.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SPECIFIED REMITTANCE TIME" means (a) if the relevant Payment Office
is located in Chicago, 12:30 p.m. (Chicago time) and (b) if the relevant Payment
Office is located elsewhere, such time as the Agent shall specify after
consultation with the Borrower and the Lenders.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"STATED AMOUNT" means, when used with reference to a Letter of Credit,
(x) at the time of issuance, the face amount thereof, and (y) at any time
thereafter, the aggregate amount available to be drawn under such Letter of
Credit at such time.
"SUBSIDIARY" of a Person means (a) any corporation more than 50% of
the outstanding securities having ordinary voting power of which, or more than
50% of the economic benefits associated with all outstanding securities of
which, shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (b) any partnership, association, limited liability
company, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which, or more than 50% of
the economic benefits associated with all outstanding ownership interests of
which, shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of
TLGI.
"SUBSTANTIAL PORTION" means, with respect to the Property of TLGI and
the Borrower and the other Subsidiaries, Property of TLGI, the Borrower and the
other Subsidiaries that has a Fair Value representing more than 5% of
Consolidated Tangible Net Worth of TLGI, the Borrower and the other Subsidiaries
determined as of the end of the fiscal quarter of TLGI most recently ended prior
to the date on which such determination is made.
"SWING LINE ASSIGNMENT" has the meaning specified in SECTION 13.3.1(b)
"SWING LINE COMMITMENT" means the commitment of the Swing Line Lender to
22
make Swing Line Loans hereunder.
"SWING LINE INTEREST" has the meaning specified in SECTION 2.25(a).
"SWING LINE LENDER" means Bank of Montreal.
"SWING LINE LOAN" has the meaning specified in SECTION 2.22.
"SWING LINE LOAN BORROWING DATE" means a date on which a Swing Line
Loan is made hereunder.
"SWING LINE LOAN BORROWING NOTICE" has the meaning specified in
SECTION 2.23.
"SYNTHETIC LEASE" of a Person means any lease of Property by such
Person as lessee which under GAAP would or may be treated as a true operating
lease but which under tax law or commercial law is treated as secured
Indebtedness of such Person and not as a true lease.
"SYNTHETIC LEASE OBLIGATIONS" of a Person means the aggregate funded
amount under all Synthetic Leases to which such Person is party as lessee.
"SYNTHETIC LEASE RENTALS" of a Person means the aggregate fixed
amounts payable by such Person under a Synthetic Lease of Property having an
original term (including any required renewals or any renewals at the option of
the lessor or lessee) of one year or more.
"TAXING JURISDICTION" has the meaning specified in SECTION 5.7.
"TLGI" means The ▇▇▇▇▇▇ Group Inc., a corporation incorporated under
the laws of the Province of British Columbia, Canada.
"TLGI LINES OF BUSINESS" means the lines of business conducted as of
the date of this Agreement by TLGI or the Borrower or any of their Subsidiaries
and shall include the making by TLGI, the Borrower or any of their Subsidiaries,
from time to time, of equity and debt investments in, or to, Persons which are
engaged primarily in any one or more of the funeral, funeral home, cemetery and
funeral-related insurance businesses.
"TOTAL ASSETS" means, at any date, without duplication, the total
consolidated assets of TLGI, the Borrower and their respective Subsidiaries, as
determined in accordance with GAAP.
"TRANSFEREE" has the meaning specified in SECTION 13.4.
"TYPE" means, (a) with respect to any Revolving Loan, its nature as a
Floating Rate Loan or Eurodollar Loan, and (b) with respect to any Advance, its
nature as a Floating Rate
23
Advance or Eurodollar Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the Fair Value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"UNITED STATES" and "U.S." mean the United States of America.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of TLGI or the Borrower
declared by the respective Board of Directors of TLGI or the Borrower to be an
Unrestricted Subsidiary for purposes of this Agreement; PROVIDED, that no such
Subsidiary shall be declared to be an Unrestricted Subsidiary unless (x) none of
its properties or assets were owned by TLGI or the Borrower or any other
Subsidiaries prior to the Restatement Effective Date, other than any such assets
as are transferred to such Unrestricted Subsidiary in accordance with the
covenant contained in SECTION 7.13(d); (y) its properties and assets, to the
extent that they secure Indebtedness, secure only Non-Recourse Indebtedness; and
(z) it has no Indebtedness other than Non-Recourse Indebtedness. As used above,
"Non-Recourse Indebtedness" means Indebtedness as to which (i) neither TLGI, the
Borrower nor any of their other respective Subsidiaries (other than the relevant
Unrestricted Subsidiary or another Unrestricted Subsidiary) (1) provides credit
support (including any undertaking, agreement or instrument which would
constitute Indebtedness), other than Permitted Credit Support, or (2) guarantees
or is otherwise directly or indirectly liable, except to the extent such
guaranty constitutes Permitted Credit Support, and (ii) no default with respect
to such Indebtedness (including any rights which the holders thereof may have to
take enforcement action against the relevant Unrestricted Subsidiary or its
assets) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of TLGI, the Borrower or other Subsidiaries (other than
Unrestricted Subsidiaries) to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity.
"U.S. GAAP" means, at any time, generally accepted accounting
principles in the United States at such time.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
24
ARTICLE II
THE CREDITS
2.1. THE REVOLVING LOANS. From and including the Effective Date
and prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement (including, without limitation,
the terms and conditions of SECTION 2.10 and SECTION 9.1 relating to the
reduction, suspension or termination of the Aggregate Commitment), to make
Revolving Loans in Dollars to the Borrower from time to time in an aggregate
amount, together with such Lender's L/C Interest and Swing Line Interest, not to
exceed (except as otherwise contemplated by the last sentence of SECTION 2.19)
at any one time outstanding the amount of such Lender's Commitment; PROVIDED,
HOWEVER, that the Aggregate Commitment shall be deemed used for purposes of
determining the availability of Revolving Loans (but not for purposes of
determining each Lender's commitment fee pursuant to SECTION 2.10, which
commitment fee shall be determined for each Lender as described in SECTION 2.10)
from time to time to the extent of (x) the aggregate L/C Obligations then
outstanding and (y) the aggregate principal amount of any Swing Line Loans then
outstanding, and such deemed use of the Aggregate Commitment shall be applied to
the Lenders ratably according to their respective Commitments. Subject to the
terms of this Agreement (including, without limitation, the terms and conditions
of SECTION 2.10 and SECTION 9.1 relating to the reduction, suspension or
termination of the Aggregate Commitment), the Borrower may borrow, repay and
reborrow Revolving Loans at any time prior to the Facility Termination Date.
Unless earlier terminated in accordance with the terms and conditions of this
Agreement, the Commitments of the Lenders to lend hereunder shall expire on the
Facility Termination Date.
2.2. REPAYMENT OF THE REVOLVING LOANS. Any outstanding Revolving
Loans shall be paid in full by the Borrower on the Facility Termination Date;
PROVIDED, HOWEVER, that nothing in this SECTION 2.2 shall be construed as
limiting or modifying the obligation of the Borrower to repay any or all of the
outstanding Revolving Loans at any earlier time in accordance with the terms of
this Agreement.
2.3. RATABLE REVOLVING LOANS; TYPES OF ADVANCES. Each Advance
hereunder shall consist of Revolving Loans made from the several Lenders ratably
in proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. Any Advance may be a Floating Rate Advance or a
Eurodollar Advance, as the Borrower shall select in accordance with SECTIONS 2.6
and 2.7.
2.4. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in a
minimum amount not less than $10,000,000 or an integral multiple of $1,000,000
in excess thereof; PROVIDED, HOWEVER, that any Advance may be in the amount of
the unused Aggregate Commitment.
2.5. OPTIONAL PREPAYMENTS OF REVOLVING LOANS. Subject to SECTION
3.4 and the
25
requirements of SECTION 2.4, the Borrower may (a) following notice given to
the Agent by the Borrower, in the form attached hereto as EXHIBIT G (a
"PREPAYMENT NOTICE") by not later than 11:00 a.m. (Chicago time) on the date
of the proposed prepayment, such notice specifying the aggregate principal
amount of and the proposed date of the prepayment (and if such notice is
given the Borrower shall), prepay the outstanding principal amounts of the
Floating Rate Loans comprising part of the same Advance in whole or ratably
in part, together with accrued interest to but excluding the date of such
prepayment on the principal amount prepaid and (b) if the Advance to be
prepaid is a Eurodollar Advance and following a Prepayment Notice given to
the Agent by the Borrower by not later than 11:00 a.m. (Chicago time), on the
third Business Day preceding the date of the proposed prepayment, such notice
specifying the Advance to be prepaid and the proposed date of the prepayment,
and if such notice is given, the Borrower shall prepay the outstanding
principal amounts of the Fixed Rate Loans comprising a Fixed Rate Advance in
whole (and not in part), together with accrued interest to but excluding the
date of such prepayment on the principal amount prepaid. In the case of a
Floating Rate Advance, each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000.
2.6. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES. The Borrower shall select the Type of each Advance and, in the case
of a Fixed Rate Advance, the Interest Period applicable to such Advance from
time to time. The Borrower shall give the Agent irrevocable notice, in the form
attached hereto as EXHIBIT F (a "REVOLVING LOAN BORROWING NOTICE"), not later
than 10:30 a.m. (Chicago time) (i) on the Revolving Loan Borrowing Date for each
Floating Rate Advance and (ii) at least three Business Days before the Revolving
Loan Borrowing Date for each Eurodollar Advance specifying:
(a) the Revolving Loan Borrowing Date, which shall be a Business
Day, of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of such Advance, and
(d) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto.
Not later than the Specified Remittance Time on each Revolving Loan Borrowing
Date, each Lender shall make available its Revolving Loan or Revolving Loans to
the Agent in immediately available funds at the relevant Payment Office. To the
extent that the Agent has received funds from the Lenders as specified in the
preceding sentence, the Agent will make such funds available to the Borrower at
the relevant Payment Office as promptly as reasonably practicable (but in any
event within two hours) following the Specified Remittance Time, it being
understood that if the relevant Payment Office is located in Chicago, the Agent
will make the applicable funds available to the Borrower by depositing such
funds to such account as the Borrower shall from time to time designate in a
notice delivered to the Agent executed by two
26
Authorized Officers.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Fixed Rate Advances or prepaid
pursuant to SECTION 2.5. Each Fixed Rate Advance of any Type shall continue as
a Fixed Rate Advance of such Type until the end of the then applicable Interest
Period therefor, at which time such Fixed Rate Advance shall be automatically
converted into a Floating Rate Advance unless the Borrower shall have given the
Agent a Conversion/Continuation Notice requesting that, at the end of such
Interest Period, such Fixed Rate Advance either continue as a Fixed Rate Advance
of such Type for the same or another Interest Period or be converted into an
Advance of another Type. Subject to the terms of SECTION 2.6, the Borrower may
elect from time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances; provided that any conversion of any
Fixed Rate Advance shall be made on, and only on, the last day of the Interest
Period applicable thereto. The Borrower shall give the Agent irrevocable notice
in the form of EXHIBIT I hereto (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of an Advance or continuation of a Fixed Rate Advance not later than
10:00 a.m. (Chicago time) (i) in the case of a conversion into a Floating Rate
Advance on the date of such conversion and (ii) in the case of a conversion into
or continuation of a Eurodollar Advance, at least three Business Days before the
date of such conversion or continuation specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation;
(b) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion into or
continuation of a Fixed Rate Advance, the duration of the Interest Period
applicable thereto.
2.8. PAYMENT OF INTEREST ON REVOLVING LOANS AND ADVANCES. Interest
accrued on each Floating Rate Advance shall be payable on the last Business Day
of each calendar quarter for the calendar quarter then ending, the Facility
Termination Date, the date of the reduction to zero of the Aggregate Commitment
pursuant to SECTION 2.10, the date of any repayment of such Floating Rate
Advance, and the date of the acceleration of the Obligations pursuant to SECTION
9.1. Interest accrued on each Fixed Rate Advance shall be payable on the last
day of its applicable Interest Period, on any date on which the Fixed Rate
Advance is prepaid, whether by acceleration or otherwise, and at maturity.
Interest accrued on each Fixed Rate Advance having an Interest Period longer
than three months or 90 days, as the case may be, shall also be payable on the
last day of each three-month or 90-day interval during such Interest Period.
Interest on Floating Rate Advances shall be calculated for actual days elapsed
on the basis of a 365/366-day year. Interest on Fixed Rate Advances shall be
calculated for actual days elapsed on the basis of a 360-day
27
year. Interest shall be payable for the day an Advance is made but not for
the day of any payment on the amount paid if payment is received prior to
noon (Chicago time) at the place of payment. If any payment of principal of
or interest on an Advance shall become due on a day which is not a Business
Day, such payment shall be made on the next succeeding Business Day and, in
the case of a principal payment, such extension of time shall be included in
computing interest in connection with such payment.
2.9. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Fixed Rate
Advance into a Floating Rate Advance pursuant to SECTION 2.7 to but excluding
the date it becomes due or is converted into a Fixed Rate Advance pursuant to
SECTION 2.7, at a rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on each Advance maintained as a Floating Rate
Advance will take effect simultaneously with each change in the Alternate Base
Rate. Each Fixed Rate Advance shall bear interest from and including the first
day of the Interest Period applicable thereto to (but not including) the last
day of such Interest Period at the interest rate determined as applicable to
such Fixed Rate Advance. No Interest Period may end after the Facility
Termination Date.
2.10. COMMITMENT FEE; MANDATORY AND VOLUNTARY REDUCTIONS IN AGGREGATE
COMMITMENT. (a) The Borrower agrees to pay to the Agent for the account of each
Lender a commitment fee at a rate per annum equal to the Applicable Commitment
Fee Rate in effect from time to time on the daily unused portion of such
Lender's Commitment from the Effective Date to but excluding the earliest of the
Facility Termination Date, the date of the reduction to zero of the Aggregate
Commitment pursuant to this SECTION 2.10 and the date of the termination of the
Aggregate Commitment pursuant to SECTION 9.1; PROVIDED, HOWEVER, that, solely
for purposes of this SECTION 2.10(a), (x) each Lender's Commitment (except the
commitment of the Swing Line Lender) shall be determined without regard to any
outstanding Swing Line Loans and (y) the Commitment of the Swing Line Lender
shall be determined assuming that all outstanding Swing Line Loans have been
made by the Swing Line Lender. Such commitment fees shall be payable on the
last Business Day of each calendar quarter for the quarter then ending, and on
the earliest of the Facility Termination Date, the date of the reduction to zero
of the Aggregate Commitment pursuant to this SECTION 2.10 and the date of the
termination of the Aggregate Commitment pursuant to SECTION 9.1. Commitment
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
(b) If as of the end of any fiscal year of TLGI, (x) the aggregate Fair
Value of all Property, whether of TLGI, the Borrower or any Subsidiary of TLGI
or the Borrower, sold during such fiscal year pursuant to the exception for
sales of Property provided under SECTION 7.13(c) exceeds (y) the aggregate Fair
Value, as determined by the board of directors of TLGI, of all consideration
actually paid during such fiscal year in respect of Acquisitions, by at least
$5,000,000, then within ten Business Days following the date on which TLGI
delivers to the Agent financial statements in respect of such fiscal year
pursuant to SECTION 7.1(a), the Borrower will, by written notice to the Agent
given on or before the date such financial statements are
28
delivered, reduce the Aggregate Commitment by an amount equal to such excess,
rounded down to the nearest $100,000; PROVIDED, HOWEVER, that any such
reduction shall be made equally and ratably with the repayment of any other
Indebtedness (if any) which by its terms must be repaid using the proceeds of
the sale of such Property. Any such reduction in the Aggregate Commitment
shall be allocated ratably among the Lenders according to their respective
Commitments. To the extent that the amount of any such mandatory reduction
of the Aggregate Commitment exceeds the unused Aggregate Commitment on the
date of such mandatory reduction, the Borrower shall, immediately prior to
making such mandatory reduction of the Aggregate Commitment, prepay (subject
to the proviso to the immediately preceding sentence) the outstanding
Advances (as selected by the Borrower) in an amount at least equal to such
excess; it being understood that the Borrower and each Guarantor shall be
liable pursuant to SECTION 3.4 to indemnify each Lender against any loss or
liability which that Lender incurs as a consequence of any prepayment under
this SECTION 2.10(b). If, following any such prepayment of Advances, the
amount of any such mandatory reduction of the Aggregate Commitment still
exceeds the unused Aggregate Commitment on the date of such mandatory
reduction, the Borrower shall cash collateralize the outstanding L/C
Obligations as contemplated in SECTION 2.21.4 in an amount sufficient,
together with the prepayments of Advances, to eliminate such excess.
(c) The Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples of
$10,000,000, upon at least three Business Days' written notice to the Agent,
which notice shall specify the amount of any such reduction; PROVIDED,
HOWEVER, that the amount of the Aggregate Commitment may not be reduced below
the sum of the aggregate principal amount of the outstanding Advances and
Swing Line Loans and the aggregate outstanding L/C Obligations.
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.6 or 2.7, during the continuance of a Default or
Unmatured Default no Advance may be made as, converted into or continued as a
Fixed Rate Advance. During the continuance of a Default pursuant to SECTION
8.2, (a) each Fixed Rate Advance shall bear interest until paid in full or
converted to a Floating Rate Advance at the Fixed Rate then applicable to such
Advance plus 2% per annum, and (b) each Floating Rate Advance shall bear
interest until paid in full at a rate per annum equal to the Floating Rate plus
2% per annum.
2.12. METHOD OF PAYMENT. Without limiting the operation of the first
sentence of SECTION 2.21.3(b), and without limiting the scope of SECTION
2.17(b), all payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in Dollars in immediately available funds to
the Agent at the Payment Office, by the Specified Remittance Time on the date
when due and shall be remitted by the Agent to the Lenders according to their
respective interests therein. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in
the same type of funds that the Agent received at such Lender's address
specified pursuant to ARTICLE XIV or at any Lending Installation specified in a
notice received by the Agent from such Lender. The Agent is hereby
29
authorized, but is not obligated, to charge the accounts of the Borrower
maintained with Bank of Montreal into which proceeds of Advances are remitted
pursuant to SECTION 2.6 for each payment of interest and fees as it becomes
due hereunder, for each payment of principal, in accordance with the
applicable Prepayment Notice or when otherwise due and payable in accordance
with the terms hereof, and for each payment of Obligations (including
Reimbursement Obligations) when due and payable in accordance with the terms
hereof.
2.13. EVIDENCE OF DEBT; TELEPHONIC NOTICES. (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the Obligations of the Borrower to the appropriate Lending Installation of such
Lender resulting from each Revolving Loan made by such Lending Installation of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lending Installation of such Lender from time to time
under this Agreement.
(b) The Agent shall maintain a Register at the request of the Borrower
pursuant to SECTION 13.3.2, and a subaccount for each relevant Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the amount of
each relevant Revolving Loan made hereunder, whether such Revolving Loan is, as
applicable, a Eurodollar Loan or a Floating Rate Loan, and the Interest Period
applicable to any Eurodollar Loan, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
(c) The entries made in the Register, accounts and subaccounts
maintained pursuant to PARAGRAPHS (a) and (b) of this SECTION 2.13 shall, to
the extent permitted by applicable law, be PRIMA FACIE evidence of the
existence and amounts of the Obligations of the Borrower therein recorded;
PROVIDED, that the failure of any Lender or the Agent to maintain such
account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to
repay the Revolving Loans (and all other amounts owing with respect thereto)
in accordance with the terms of this Agreement.
(d) The Borrower hereby authorizes the Lenders and the Agent to extend,
convert or continue Advances and effect selections of Types of Advances based on
telephonic notices made by any person or persons the Agent in good faith
believes to be acting on behalf of the Borrower, PROVIDED that the proceeds of
such Advances shall only be credited to such account as the Borrower shall from
time to time designate in a notice delivered to the Agent executed by two
Authorized Officers. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent of the relevant telephonic
notice shall govern absent manifest error.
2.14. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT
30
REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Revolving Loan Borrowing Notice, Swing Line Loan Borrowing Notice,
Conversion/Continuation Notice, and prepayment notice received by it hereunder.
The Agent will notify the Borrower and each Lender of the interest rate
applicable to each Fixed Rate Advance promptly upon determination of such
interest rate and will give the Borrower and each Lender prompt notice of each
change in the Alternate Base Rate.
2.15. LENDING INSTALLATIONS. Each Lender may book its Revolving Loans
and its Swing Line Interest and its L/C Interest at any one or more Lending
Installations selected by such Lender and may change any such Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Revolving Loans, the Swing Line Interests and
the L/C Interests shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written or telex notice to the Agent
and the Borrower, designate a Lending Installation through which Revolving Loans
will be made by it and through which L/C Interests and Swing Line Interests will
be held by it and for whose account Revolving Loan and Swing Line Loan payments
and L/C Obligation payments are to be made.
2.16. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Revolving Loan or (b) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the Lenders, that it
does not intend to make such payment, the Agent may assume that such payment has
been made. The Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Agent, the recipient of such payment shall, on demand
by the Agent, repay to the Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to (a) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (b) in the case of payment by
the Borrower, the interest rate applicable to the relevant Revolving Loan.
2.17. WITHHOLDING TAX EXEMPTION; GROSS UP. (a) At least five Business
Days prior to the first date on which interest or fees are payable hereunder for
the account of any Lender, each Lender that is not incorporated under the laws
of the United States of America, or a state thereof, and which has not
previously delivered to the Borrower and the Agent under the terms of the
Original Amended Agreement documentation which complies with this Section 2.17,
agrees that it will deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes. Each Lender which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Borrower and the Agent two additional
copies of such form (or any successor form or related form as may from time to
time be required under applicable law) on or
31
before the date that such form expires (currently, three successive calendar
years for Form 1001 and one calendar year for Form 4224) or becomes obsolete
or after the occurrence of any event requiring a change in the most recent
forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent,
in each case certifying that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes, unless 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 all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
(b) All payments made by the Borrower under or in connection with this
Agreement shall be made in full, without set-off or counterclaim, and free of
and without deduction or withholding for or on account of any present or future
tax, duty, assessment, impost, levy or other similar charge, or any penalties,
fines or interest thereon (a "RELEVANT TAX") imposed upon TLGI, the Borrower,
the Agent, any Lender or the L/C Issuer by the government of Canada (or any
Governmental Authority thereof), the government of the United States of America
(or any Governmental Authority thereof), or by the government of any other
country or jurisdiction (or any Governmental Authority thereof) from or through
which payments hereunder are actually made (each a "TAXING JURISDICTION"). The
Borrower, for the benefit of the Agent, the Lenders and the L/C Issuer, agrees
that in the event any payments made by the Borrower hereunder or in connection
herewith are subject to any deduction or withholding for or on account of any
Relevant Tax, the Borrower will pay to the Agent, such Lender or the L/C Issuer
such additional amounts as may be necessary in order that the net amounts paid
to the Agent, such Lender or the L/C Issuer pursuant to the terms of this
Agreement after imposition of any such Relevant Tax (including deductions or
withholdings applicable to additional amounts paid under this SECTION 2.17(b))
shall be not less than the amounts specified in this Agreement to be then due
and payable, except that no such additional amounts shall be payable hereunder
to the Agent, any Lender or the L/C Issuer that is liable for such Relevant Tax
in respect of the relevant payment solely by reason of such recipient (a) having
a permanent establishment in the Taxing Jurisdiction, (b) being organized under
the laws of the Taxing Jurisdiction or any political subdivision thereof, (c)
being resident in the Taxing Jurisdiction by virtue of its domicile or place of
management being in the Taxing Jurisdiction, or (d) having failed to comply with
the terms and conditions of SECTION 2.17(a) applicable to it. If the Agent, any
Lender or the L/C Issuer pays any amount in respect of a Relevant Tax, the
Borrower shall indemnify the Agent, the Lender or the L/C Issuer, as the case
may be, for such payment within 15 days of demand therefor by the Agent, such
Lender or the L/C Issuer (in the case of such Lender or the L/C Issuer, made
through the Agent).
2.18. EXTENSION OF FACILITY TERMINATION DATE. The Borrower may request
an extension of the Facility Termination Date for a period of one year on each
of March 27, 1999, and, if such first extension shall have become effective in
accordance with the provisions of this SECTION 2.18,
32
March 27, 2000 (each of March 27, 1999 and March 27, 2000, an "EXTENSION
REQUEST DATE"), by delivering a notice of such request in the form attached
hereto as EXHIBIT H (an "EXTENSION REQUEST") to the Agent no more than 90
days and no fewer than 60 days preceding the relevant Extension Request Date.
The Agent shall promptly notify each Lender of a requested extension. On or
before the 30th day (or if such day is not a Business Day, the next
succeeding Business Day) preceding the relevant Extension Request Date (such
30th day, the "EXTENSION NOTIFICATION DATE"), each Lender shall notify the
Agent whether that Lender consents to the requested extension of the Facility
Termination Date, which consent may be given or withheld by each Lender in
its sole and absolute discretion. Any Lender that fails to notify the Agent
of its consent or non-consent by the Extension Notification Date will be
deemed to have withheld consent (each such Lender together with each Lender
that has provided notice of its non-consent to be referred to herein as a
"NON-CONSENTING LENDER"). If as of the close of business on the Extension
Notification Date, any Lender is a Non-Consenting Lender, the Agent shall
immediately so advise the Borrower. During the period beginning on the first
day following the Extension Notification Date and ending on the relevant
Extension Request Date, each Non-Consenting Lender will, but only upon the
written request of the Borrower given in the sole discretion of the Borrower
(which request may be given by the Borrower to some, all or none of the
Non-Consenting Lenders in the Borrower's sole discretion), assign all of its
rights and obligations under this Agreement (i) first, to the Lenders who
have consented to the extension and are willing to accept such assignment,
subject to ratable allocation by the Agent among such Lenders and (ii)
second, to the extent such Non-Consenting Lender's rights and obligations
hereunder have not been assigned to an existing Lender as contemplated in the
foregoing CLAUSE (i), to one or more other financial institutions, nominated
by the Borrower and acceptable to the Agent, that are willing to become
Lenders hereunder through the Facility Termination Date as extended in
accordance with the relevant Extension Request. The obligation of a
Non-Consenting Lender to assign its rights and obligations hereunder as
contemplated by this SECTION 2.18 is subject to the requirements that (x) all
amounts owing to that Non-Consenting Lender under the Loan Documents
(including, without limitation, pursuant to SECTION 3.4) are paid in full
upon the completion of such assignment and (y) any assignment is effected in
accordance with the terms of SECTION 13.3 and on terms otherwise satisfactory
to the Non-Consenting Lender. A requested extension of the Facility
Termination Date shall be effective only with respect to Lenders which have
consented to such Extension Request in accordance with the terms of this
SECTION 2.18, and shall become effective only if Lenders holding not less
than 75% of the Aggregate Commitments shall have consented to such Extension
Request in accordance with the terms of this SECTION 2.18 (such determination
to be made without giving effect to any assignments contemplated by this
SECTION 2.18), and each Non-Consenting Lender which has been requested to do
so has assigned all of its rights and obligations hereunder to one or more
other Lenders or to one or more successor financial institutions. In any
other event, the requested extension will be deemed to have been denied and
the Facility Termination Date and the Lenders' respective Commitments will
remain unchanged without any Non-Consenting Lender incurring any liability.
To the extent an Extension Request has been approved and a Non-Consenting
Lender has not been requested to assign all of its rights and obligations
under this Agreement, or the conditions to such a requested assignment have
not been satisfied as specified in this SECTION 2.18, then (i) such
Non-
33
Consenting Lender's Commitment shall remain unchanged and in effect through
the Facility Termination Date then in effect (determined for such
Non-Consenting Lender without giving effect to the approval of the Extension
Request) (such date, the "SCHEDULED TERMINATION DATE" for such Non-Consenting
Lender), and (ii) on the Scheduled Termination Date for such Non-Consenting
Lender, the Borrower shall pay to such Non-Consenting Lender all amounts
owing to such Non-Consenting Lender under the Loan Documents as of the
Scheduled Termination Date (including, without limitation, pursuant to
SECTION 3.4), and, from and after such Scheduled Termination Date, the
Aggregate Commitment shall be reduced by the amount of the Commitment of such
Non-Consenting Lender.
2.19. MANDATORY PREPAYMENTS. Without limitation to the prepayment
obligations of the Borrower under SECTION 2.10(b), if, at any time, the
aggregate principal amount of the then outstanding Revolving Loans, Swing Line
Loans and L/C Obligations, as determined by the Agent, equals or exceeds the
Aggregate Commitment as of such time, the Borrower shall, following demand by
the Agent setting forth, in reasonable detail, the relevant calculations, prepay
outstanding Revolving Loans and Swing Line Loans in accordance with the
provisions of this Agreement until the aggregate principal amount of all
outstanding Revolving Loans, Swing Line Loans and L/C Obligations does not
exceed the Aggregate Commitment. The Borrower and each Guarantor shall be
liable pursuant to SECTION 3.4 to indemnify each Lender against any loss or
liability which that Lender incurs as a consequence of any prepayment under this
SECTION 2.19. If, following any such prepayment or repayment of Revolving Loans
and Swing Line Loans, the aggregate principal amount of all outstanding
Revolving Loans, Swing Line Loans and L/C Obligations still exceeds the
Aggregate Commitment, the Borrower shall cash collateralize the outstanding L/C
Obligations as contemplated in SECTION 2.21.4 in an amount sufficient, together
with the prepayment and repayment of Revolving Loans and Swing Line Loans, to
eliminate such excess.
2.20. TERMINATION. All unpaid Obligations shall be paid in full by the
Borrower on the Facility Termination Date; PROVIDED, HOWEVER, that nothing in
this SECTION 2.20 shall be construed as limiting or modifying the obligation of
the Borrower to repay any or all of the outstanding Obligations at any earlier
time in accordance with the terms of this Agreement.
2.21. LETTER OF CREDIT FACILITY.
2.21.1 LETTERS OF CREDIT. Upon receipt of duly executed
applications therefor, and such other documents, instruments and
agreements as the L/C Issuer may reasonably require, and subject to the
provisions of ARTICLE IV, the L/C Issuer shall issue standby Letters of
Credit (but not trade letters of credit) for the account of the
Borrower, on terms as are satisfactory to the L/C Issuer; PROVIDED,
HOWEVER, that no Letter of Credit will be issued for the account of the
Borrower by the L/C Issuer if on the date of issuance, before or after
taking such Letter of Credit into account (i) the amount of the
Advances, Swing Line Loans and the L/C Obligations at such time would
exceed the Aggregate Commitment or (ii) the aggregate outstanding amount
of the L/C Obligations would
34
exceed the L/C Commitment Amount; and PROVIDED, FURTHER, that no Letter
of Credit shall be issued unless (A) it is denominated in Dollars and
(B) it has an expiration date that is (1) no more than one year after
the date of issuance of such Letter of Credit (provided that a Letter of
Credit, subject to the immediately following CLAUSE (2), may provide for
an annual renewal if such renewal is consented to by the L/C Issuer at
the time of issuance and the conditions precedent to the issuance of
such Letter of Credit are met at the time of such renewal) and (2) no
later than the date which is five Business Days immediately preceding
the Facility Termination Date.
2.21.2 LETTER OF CREDIT PARTICIPATION. Immediately upon issuance
of each Letter of Credit by the L/C Issuer hereunder, each Lender shall
be deemed to have automatically, irrevocably and unconditionally
purchased and received from the L/C Issuer an undivided interest and
participation in and to such Letter of Credit, the obligations of the
Borrower in respect thereof, and the liability of the L/C Issuer
thereunder (collectively, an "L/C INTEREST") in an amount equal to the
amount available for drawing under such Letters of Credit multiplied by
a fraction having as its numerator, such Lender's Commitment, and as its
denominator, the Aggregate Commitment. The L/C Issuer will notify each
Lender promptly upon presentation to it of an L/C Draft or upon any
other draw under any Letter of Credit. On the Business Day on which the
L/C Issuer makes payment of any L/C Draft or, in the case of any other
draw on the Letter of Credit, on demand of the L/C Issuer (provided that
the Borrower has not prior thereto made payment therefor and no Floating
Rate Advance has been made pursuant to SECTION 2.21.3 with respect
thereto), each Lender shall make payment to the Agent, for credit to the
L/C Issuer, in immediately available funds in an amount equal to such
Lender's ratable share (determined in accordance with the fraction
described above) of the amount of such payment or draw. Provided that
each Letter of Credit is issued by the L/C Issuer in accordance with the
terms of this Agreement, the obligation of each Lender to reimburse the
L/C Issuer under this SECTION 2.21.2 shall be unconditional, continuing,
irrevocable and absolute and shall not be affected or impaired by, among
other things, the occurrence of the Facility Termination Date or the
reduction, suspension or termination (except pursuant to SECTION 2.18)
of the Aggregate Commitment or such Lender's Commitment in accordance
with the terms of this Agreement. In the event that any Lender fails to
make payment to the Agent of any amount due to the L/C Issuer under this
SECTION 2.21.2, the Agent shall be entitled to receive for the benefit
of the L/C Issuer, and the L/C Issuer shall be entitled to receive,
retain and apply against such obligation the principal and interest and
other amounts otherwise payable to such Lender hereunder (whether in
respect of Revolving Loans, Swing Line Loans, Letters of Credit or
otherwise) until the Agent receives such payment from such Lender or
such obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that
nothing contained in this sentence shall relieve such Lender of its
obligation to reimburse the L/C Issuer for such amount in accordance
with this SECTION 2.21.2.
2.21.3 REIMBURSEMENT OBLIGATION. (a) The Borrower agrees
unconditionally, irrevocably and absolutely to pay immediately to the
Agent, for the account of the L/C
35
Issuer and the Lenders, the amount of each L/C Draft or other demand
which may be drawn under or pursuant to a Letter of Credit (such
obligation of the Borrower to pay the Agent (for the account of the L/C
Issuer and the Lenders) being hereinafter referred to as a
"REIMBURSEMENT OBLIGATION" with respect to a Letter of Credit or L/C
Draft). The obligations of the Borrower under this Agreement and
otherwise in respect of Letters of Credit and L/C Drafts shall be
absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit, this Agreement or any Loan Document;
(ii) any amendment or waiver of or any consent to departure from
this Agreement or any other Loan Document;
(iii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against the L/C
Issuer, the Agent, any Lender any beneficiary of any Letter of
Credit (or any Person for whom any such beneficiary may be
acting), or any other Person, whether in connection with this
Agreement, any other Loan Document or any unrelated transactions;
(iv) any statement in any certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any such
statement being untrue or inaccurate in any respect whatsoever;
(v) payment by the L/C Issuer under any Letter of Credit
against presentation of a draft or certificate which does not
comply with the terms of such Letter of Credit (provided that the
L/C Issuer was not grossly negligent in connection therewith); or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
(b) If the Borrower at any time fails to repay a Reimbursement
Obligation pursuant to this SECTION 2.21.3, the Borrower shall be deemed
to have elected to borrow a Floating Rate Advance from the Lenders, as
of the date of the L/C Draft or other demand giving rise to the
Reimbursement Obligation, equal in amount to the amount of the unpaid
Reimbursement Obligation, the proceeds of which Advance shall be used to
repay such Reimbursement Obligation; PROVIDED, HOWEVER, that such
Floating Rate Advance shall be deemed to have been borrowed only to the
extent that (x) both immediately before and after giving effect thereto,
no Default or Unmatured Default under SECTION 8.6 or 8.7 shall have
occurred and be continuing, and (y) the Facility Termination Date (or
the date of any
36
earlier termination of the Aggregate Commitment pursuant to this
Agreement) shall not have occurred prior thereto. For each
Reimbursement Obligation for which a Floating Rate Advance is not deemed
to have been borrowed by the Borrower, each Lender shall be deemed to
have automatically purchased and received from the L/C Issuer an
undivided interest and participation in and to such Reimbursement
Obligation in an amount equal to such Reimbursement Obligation
multiplied by a fraction having as its numerator, such Lender's
Commitment, and as its denominator, the Aggregate Commitment. If, for
any reason, the Borrower fails to repay a Reimbursement Obligation on
the day such Reimbursement Obligation arises, either directly or through
a Floating Rate Advance, then such Reimbursement Obligation shall bear
interest from and after such day, until paid in full, at the interest
rate applicable to Floating Rate Advances (including, during the
continuance of a Default or Unmatured Default, at the rates determined
pursuant to SECTION 2.11).
2.21.4 CASH COLLATERAL. Notwithstanding anything to the contrary
herein or in any application for any Letter of Credit, (a) after the
occurrence and during the continuance of a Default or (b) to the extent
necessary in connection with any mandatory reduction of the Aggregate
Commitment pursuant to SECTION 2.10(b) or any mandatory prepayment or
repayment of Revolving Loans pursuant to SECTION 2.19, the Borrower
shall, upon the demand of the Required Lenders or the Agent at the
request of the Required Lenders, or if earlier, at the time of the
applicable mandatory reduction of the Aggregate Commitment pursuant to
SECTION 2.10(b) or mandatory prepayment or repayment of Revolving Loans
pursuant to SECTION 2.19, as the case may be, deliver to the Agent for
the benefit of the L/C Issuer and the Lenders, cash collateral in an
amount equal to the aggregate outstanding L/C Obligations, or in
connection with a deposit made pursuant to the foregoing CLAUSE (b),
such lesser amount of the outstanding L/C Obligations as shall satisfy
the requirements of SECTION 2.10(b) and SECTION 2.19, as applicable.
Any such collateral shall be held by the Agent in a separate account
appropriately designated as a cash collateral account in relation to
this Agreement and the Letters of Credit and retained by the Agent for
the benefit of the L/C Issuer and the Lenders as collateral security for
the Borrower's obligations in respect of this Agreement and the Letters
of Credit and L/C Drafts. Such amounts shall be applied to reimburse
the L/C Issuer for drawings or payments under or pursuant to the Letters
of Credit or L/C Drafts, or if no such reimbursement is required, such
amounts shall be applied ratably to the payment of any other unpaid
costs, fees, expenses and other Obligations related to the Letters of
Credit, any L/C Drafts and such cash collateral account as the Agent
shall determine. If no Default shall be continuing, amounts remaining
in any cash collateral account established pursuant to CLAUSE (a) of
this SECTION 2.21.4 which are not to be applied to reimburse the L/C
Issuer or the Lenders for amounts actually paid or to be paid by the L/C
Issuer or the Lenders in respect of the Letters of Credit or L/C Drafts,
shall be returned to the Borrower (after deduction of the Agent's
expenses incurred in connection with such cash collateral account)
except to the extent such amounts (or portions thereof) are necessary to
satisfy the cash collateral requirements of CLAUSE (b) of this SECTION
2.21.4. In addition, if the
37
conditions giving rise to a deposit of cash collateral pursuant to
CLAUSE (b) of this SECTION 2.21.4 cease to exist, any amounts remaining
in any cash collateral account established pursuant to such CLAUSE (b)
which are not to be applied to reimburse the L/C Issuer or the Lenders
for amounts actually paid or to be paid by the L/C Issuer or the Lenders
in respect of the Letters of Credit or L/C Drafts, shall be returned to
the Borrower (after deduction of the Agent's expenses incurred in
connection with such cash collateral account) except to the extent such
amounts (or portions thereof) are necessary to satisfy the cash
collateral requirements of CLAUSE (a) of this SECTION 2.21.4.
Investment earnings (net of investment losses and any unpaid costs,
fees, expenses and other Obligations related to the Letters of Credit,
any L/C Drafts and such cash collateral account) on amounts on deposit
in the cash collateral account (which investments shall be limited to
interest bearing deposit accounts with the Agent) shall be for the
account of the Borrower, and, except at such time as a Default shall
have occurred and be continuing, the Agent shall remit any such accrued
earnings to the Borrower no less frequently than quarterly.
2.21.5 LETTER OF CREDIT FEES. The Borrower agrees to pay (a) to
the Agent for the ratable benefit of the Lenders, a letter of credit fee
equal to the Applicable Letter of Credit Fee Rate in effect from time to
time on the daily sum of (x) the aggregate outstanding amount of L/C
Obligations less (y) the aggregate outstanding amount of Reimbursement
Obligations, such fee to be paid in arrears on the last Business Day of
each calendar quarter for the quarter then ending, and on the Facility
Termination Date, and such fee to be calculated for actual days elapsed
on the basis of a 360-day year, and (b) to the Agent for the benefit of
the L/C Issuer, as issuing bank, the fees agreed to by the Borrower and
Bank of Montreal pursuant to that certain letter agreement dated as of
May 15, 1996, as amended, or as otherwise agreed from time to time,
together with all customary fees and other issuance, amendment,
negotiation, presentment and payment expenses and related charges in
connection with the issuance, amendment, negotiation, presentation and
payment of L/C Drafts, and the like customarily charged by the L/C
Issuer with respect to standby letters of credit, payable at the time of
invoice of such amounts by the L/C Issuer.
2.21.6 INDEMNIFICATION; EXONERATION. (a) In addition to amounts
payable as elsewhere provided in this Agreement, Borrower hereby agrees
to protect, indemnify, pay and save harmless the L/C Issuer, each Lender
and the Agent from and against any and all liabilities and costs which
the L/C Issuer, any Lender or the Agent may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of the L/C Issuer, as a result of its
gross negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, or (ii) the failure of
the L/C Issuer to honor a drawing under any Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto governmental authority (all such acts or
omissions herein called "GOVERNMENTAL ACTS").
(b) As among the Borrower, the L/C Issuer, the Lenders and the
Agent, the Borrower assumes all risks of the acts and omissions of, or
misuse of a Letter of Credit by,
38
the beneficiary of any Letter of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the letter of
credit application and any letter of credit reimbursement agreement
submitted or executed by the Borrower in connection with any Letter of
Credit (except to the extent otherwise provided in PARAGRAPH (e) of this
SECTION 2.21.6), the L/C Issuer, the Lenders and the Agent shall not be
responsible (in the absence of gross negligence or willful misconduct in
connection therewith): (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (iii) for failure of
the beneficiary of any Letter of Credit to comply duly with conditions
required in order to draw upon any Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telecopy, telex or other similar
form of teletransmission or otherwise; (v) for errors in interpretation
of technical trade terms; (vi) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under any Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the L/C Issuer,
the Lenders and the Agent including, without limitation, any
Governmental Acts. None of the above shall affect, impair or prevent
the vesting of any rights or powers of the L/C Issuer under this SECTION
2.21.6.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the L/C Issuer under or in connection with a Letter of Credit issued
on behalf of the Borrower or any related certificates shall not, in the
absence of gross negligence or willful misconduct, as determined by the
final judgment of a court of competent jurisdiction, put the L/C Issuer,
any Lender or the Agent under any resulting liability to the Borrower or
relieve the Borrower of any of its obligations hereunder to any such
Person.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 2.21.6 shall survive the payment in full of
principal, interest and all other amounts hereunder, the termination of
the Letters of Credit and the termination of this Agreement.
(e) Notwithstanding anything therein to the contrary, in the
event any of the provisions of any letter of credit application or
letter of credit reimbursement agreement submitted or executed by the
Borrower in connection with any Letter of Credit conflict with the
provisions of this Agreement, the terms of this Agreement shall govern.
39
2.21.7 LETTER OF CREDIT CANCELLATION. For all purposes
hereunder, including (without limitation) SECTION 2.21.5, a Letter of
Credit shall be deemed outstanding until the earlier to occur of (i) the
occurrence of the date expressly designated therein as the expiration
date for such Letter of Credit and (ii) the physical receipt by the L/C
Issuer of such Letter of Credit marked "canceled" accompanied by
evidence from the beneficiary thereof satisfactory to the L/C Issuer to
such effect.
2.22. SWING LINE COMMITMENT. Subject to the terms and conditions of
this Agreement, the Swing Line Lender agrees to make loans to the Borrower on
a revolving basis (each such loan, a "SWING LINE LOAN") from time to time on
any Business Day during the period from and including the date of this
Agreement to the Facility Termination Date in an aggregate principal amount
at any one time outstanding not to exceed $10,000,000; PROVIDED, HOWEVER,
that (x) the sum of the aggregate principal amount of all outstanding Swing
Line Loans plus the aggregate principal amount of all outstanding Revolving
Loans plus the aggregate outstanding L/C Obligations shall not at any time
exceed the Aggregate Commitment, and (y) the Swing Line Lender shall have no
obligation to make a Swing Line Loan if the principal amount of such Swing
Line Loan, when added to the aggregate principal amount of all Swing Line
Loans then outstanding, the L/C Obligations owing to the Swing Line Lender in
its capacity as a Lender and the aggregate principal amount of all Revolving
Loans made by the Swing Line Lender in its capacity as a Lender shall exceed
the Commitment applicable to the Swing Line Lender in its capacity as a
Lender. All Swing Line Loans shall be made in Dollars and maintained as
Floating Rate Loans with interest thereon payable under the terms of SECTIONS
2.8 and 2.11, and repayments to be made thereof under the terms of SECTIONS
2.5 (except for the last sentence thereof), 2.12, 2.14, and 2.20, in each
case as if such Swing Line Loan were a Floating Rate Advance.
2.23. BORROWING PROCEDURES FOR SWING LINE LOANS. The Borrower shall
give the Agent and the Swing Line Lender irrevocable notice, in the form
attached hereto as EXHIBIT L (a "SWING LINE LOAN BORROWING NOTICE"), of each
proposed borrowing pursuant to this SECTION 2.23 not later than 10:30 a.m.
(Chicago time) on the proposed date of borrowing. Each such notice shall be
effective upon receipt by the Agent and the Swing Line Lender and shall
specify the date and amount of borrowing. Unless the Swing Line Lender has
received written notice prior to 8:00 a.m. (Chicago time) on the proposed
Swing Line Loan Borrowing Date (or at any time prior to the Swing Line Loan
Borrowing Date) from the Agent or any Lender that one or more of the
conditions precedent set forth in ARTICLE IV with respect to such borrowing
is not then satisfied, the Swing Line Lender shall pay over the requested
amount to the Borrower on the requested Borrowing Date. Each Swing Line Loan
shall be made on a Business Day and shall be in the amount of at least
$500,000 and an integral multiple of $250,000. The Swing Line Lender will
promptly notify the Agent, and the Agent shall promptly notify each Lender,
of the making and amount of each Swing Line Loan and of the maturity date
thereof if it is later than the fourteenth (14th) day following the Swing
Line Loan Borrowing Date therefor.
2.24. REFUNDING OF SWING LINE LOANS. The Borrower shall repay each
Swing Line Loan
40
on or before the earlier to occur of (x) the fourteenth (14th) day following
the Swing Line Loan Borrowing Date for such Swing Line Loan (or such later
date as the Borrower and the Swing Line Lender shall from time to time agree)
or (y) the Facility Termination Date. If the Borrower fails to repay any
Swing Line Loan when due, the Swing Line Lender may, at any time thereafter
in its sole and absolute discretion, on behalf of the Borrower (which hereby
irrevocably directs the Swing Line Lender to act on its behalf), request each
Lender to make a Revolving Loan, ratably in proportion to the ratio that such
Lender's respective Commitment bears to the Aggregate Commitment, of the
principal amount of the Swing Line Loans outstanding on the date such notice
is given. Unless any of the events described in SECTION 8.6 or 8.7 shall
have occurred (in which event the procedures of SECTION 2.25 shall apply),
and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are then satisfied or the
aggregate amount of such Revolving Loans is not in the minimum or integral
amount otherwise required hereunder, each Lender shall make the proceeds of
its Revolving Loan available to the Agent for the account of the Swing Line
Lender at the Payment Office in immediately available funds prior to 11:00
a.m. (Chicago time) on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Loans shall be immediately applied
to repay the outstanding Swing Line Loans. All Revolving Loans made pursuant
to this SECTION 2.24 shall be Floating Rate Loans.
2.25. PARTICIPATIONS IN SWING LINE LOANS. (a) If an event described
in SECTION 8.6 or 8.7 occurs (or for any reason the Lenders are prohibited
from making, or otherwise may not make, Revolving Loans pursuant to SECTION
2.24), each Lender shall, upon notice from the Agent given at the request of
the Swing Line Lender, purchase from the Swing Line Lender (and the Swing
Line Lender shall sell to each such Lender) an undivided participation
interest in all Swing Line Loans then outstanding, ratably in proportion to
the ratio that such Lender's respective Commitment bears to the Aggregate
Commitment (and each Lender shall immediately transfer to the Agent, for the
account of the Swing Line Lender, in immediately available funds, the
principal amount reflecting its participation). The participation interest
of each Lender in the Swing Line Loans is referred to herein as such Lender's
"SWING LINE INTEREST".
(b) Whenever, at any time after the Swing Line Lender has received
payment for any Lender's Swing Line Interest pursuant to SUBSECTION 2.25(a),
the Swing Line Lender receives any payment on account thereof, the Swing Line
Lender will distribute promptly to the Agent for the account of such Lender
its Swing Line Interest in such amount (in the case of interest payments,
appropriately adjusted to reflect the period of time during which such
Lender's Swing Line Interest was outstanding and funded) in like funds as
received; PROVIDED, HOWEVER, that in the event that such payment received by
the Swing Line Lender is required to be returned, such Lender will return to
the Agent for the account of the Swing Line Lender any portion thereof
previously distributed by the Swing Line Lender to it in like funds as such
payment is required to be returned by the Swing Line Lender.
2.26. SWING LINE PARTICIPATION OBLIGATIONS UNCONDITIONAL. Provided
that each Swing Line Loan is made by the Swing Line Lender in accordance with
the terms of this Agreement,
41
each Lender's obligation to make Revolving Loans pursuant to SECTION 2.24
and/or to purchase participation interests in Swing Line Loans pursuant to
SECTION 2.25 shall be absolute and unconditional and shall not be affected by
any circumstance whatsoever, including (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Swing Line Lender, TLGI, the Borrower or any of their Affiliates, or any
other Person for any reason whatsoever; (b) the occurrence or continuance of
a Default or Unmatured Default; (c) the occurrence of a Material Adverse
Effect or any adverse change in the condition (financial or otherwise) of any
other Person; (d) any breach of this Agreement by any party; (e) any
inability of the conditions precedent to borrowing set forth in this
Agreement to be satisfied on the date upon which any Swing Line Loan is to be
refunded or any participation interest therein is to be purchased; or (f) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
2.27. EVIDENCE OF SWING LINE LOANS; TELEPHONIC NOTICES. (a) The Swing
Line Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the Obligations of the Borrower to the appropriate
Lending Installation of such Swing Line Lender resulting from each Swing Line
Loan made by it from time to time, including the amounts of principal thereof
and interest thereon payable and paid to such Lending Installation of the
Swing Line Lender from time to time under this Agreement.
(b) The Agent shall maintain a Register pursuant to SECTION 13.3.2,
and a subaccount for the Swing Line Lender, in which Register and subaccount
(taken together) shall be recorded (i) the amount of each Swing Line Loan
made hereunder, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to the Swing Line Lender in
respect of such Swing Line Loans, and (iii) the amount of any sum received by
the Agent hereunder from the Borrower in respect of such Swing Line Loans.
(c) The entries made in the Register, account and subaccount
maintained pursuant to PARAGRAPHS (a) and (b) of this SECTION 2.27 shall, to
the extent permitted by applicable law, be PRIMA FACIE evidence of the
existence and amounts of the Obligations of the Borrower therein recorded in
respect of Swing Line Loans; PROVIDED, that the failure of the Swing Line
Lender or the Agent to maintain such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay the Swing Line Loans (and all
other amounts owing with respect thereto) in accordance with the terms of
this Agreement.
(d) The Borrower hereby authorizes the Swing Line Lender and the Agent
to extend Swing Line Loans based on telephonic notices made by any person or
persons the Agent in good faith believes to be acting on behalf of the
Borrower, PROVIDED that the proceeds of such Swing Line Loans shall only be
credited to such account as the Borrower shall from time to time designate in
a notice delivered to the Agent and the Swing Line Lender executed by two
Authorized Officers. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or the
Swing Line Lender, of each
42
telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the
Agent and the Swing Line Lender, the records of the Agent of the relevant
telephonic notice shall govern absent manifest error.
2.28. CONDITIONS TO SWING LINE LOANS. Notwithstanding any other
provision of this Agreement, the Swing Line Lender shall not be obligated to
make any Swing Line Loan (i) unless all of the conditions set forth in
ARTICLE IV applicable thereto shall have been satisfied and (ii) if a Default
or Unmatured Default would result therefrom.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. YIELD PROTECTION. If any change in law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether
or not having the force of law), or any interpretation thereof, or the
compliance of any Lender or the L/C Issuer therewith,
(a) subjects any Lender or the L/C Issuer or any applicable Lending
Installation to any tax, duty, charge or withholding on or from payments due
from the Borrower or TLGI or any other Person obligated hereunder to any
Lender or the L/C Issuer (excluding taxation of the overall net income of any
Lender or the L/C Issuer or any applicable Lending Installation or other
taxes in lieu of such taxes imposed by the United States or any jurisdiction
in which such Lender or the L/C Issuer has its principal office or applicable
Lending Installation or is engaged in business), or changes the basis of
taxation of payments to any Lender or the L/C Issuer in respect of its
Revolving Loans, Swing Line Loans, Swing Line Interests, L/C Interests, L/C
Obligations or other amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with, or for the account of, or credit extended by, any Lender or
the L/C Issuer or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Fixed Rate Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or the L/C Issuer or any applicable Lending
Installation of making, funding or maintaining loans or issuing or
participating in letters of credit or reduces any amount receivable by any
Lender or the L/C Issuer or any applicable Lending Installation in connection
with loans or letters of credit, or requires any Lender or the L/C Issuer or
any applicable Lending Installation to make any payment calculated by
reference to the amount of loans or letters of credit held, or interest
received by it, by an amount deemed material by such Lender or the L/C
Issuer, as the case may be,
then, within 15 days of demand by such Lender or the L/C Issuer, the Borrower
shall pay such
43
Lender or the L/C Issuer that portion of such increased expense incurred or
reduction in an amount received which such Lender or the L/C Issuer
determines is attributable to making, funding and maintaining its Revolving
Loans, Swing Line Loans, Swing Line Interests, L/C Interests, the Letters of
Credit, the L/C Obligations and its Commitment (and in the case of the Swing
Line Lender, its Swing Line Commitment, and in the case of the L/C Issuer,
its commitment to issue Letters of Credit).
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the L/C
Issuer determines that the amount of capital required or expected to be
maintained by such Lender or the L/C Issuer, any Lending Installation of such
Lender or any corporation controlling such Lender or the L/C Issuer is
increased as a result of a Change (as defined below in this SECTION 3.2),
then, within 15 days of demand by such Lender or the L/C Issuer, the Borrower
shall pay such Lender or the L/C Issuer the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased
capital which such Lender or the L/C Issuer determines is attributable to
this Agreement, its Revolving Loans, Swing Line Loans, Swing Line Interests,
L/C Interests, the Letters of Credit, the L/C Obligations or its obligation
to make Revolving Loans (or in the case of the Swing Line Lender, its
obligations to make Swing Line Loans, or in the case of the L/C Issuer, its
commitment to issue Letters of Credit) or participate in Swing Line Loans or
Letters of Credit hereunder or to issue Letters of Credit (after taking into
account such Lender's or the L/C Issuer's or such controlling corporation's
policies as to capital adequacy). "CHANGE" means (a) any change after the
date of this Agreement in the Risk-Based Capital Guidelines (as defined below
in this SECTION 3.2) or (b) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation or directive (whether or not having the force of law) after
the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or the L/C Issuer or any Lending
Installation or any corporation controlling any Lender or the L/C Issuer.
"RISK-BASED CAPITAL GUIDELINES" means (a) the risk-based capital guidelines
in effect in the United States on the date of this Agreement, including
transition rules, and (b) the corresponding capital regulations promulgated
by regulatory authorities outside the United States implementing the July
1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or if the Required Lenders determine that (a)
deposits of a type and maturity appropriate to match fund Fixed Rate Advances
are not available or (b) the interest rate applicable to a Type of Advance
does not accurately reflect the cost of making or maintaining such Advance,
then the Agent shall suspend the availability of the affected Type of Advance
and require any Fixed Rate Advances of the affected Type to be prepaid or
converted into a Floating Rate Advance.
44
3.4. FUNDING INDEMNIFICATION. If (i) any payment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise (including,
without limitation, as a result of a mandatory prepayment of a Fixed Rate
Advance pursuant to SECTION 2.10(b) or 2.19), or (ii) as a result of an
assignment of a Lender's Commitment and its outstanding Revolving Loans, Swing
Line Interest and L/C Interest by operation of SECTION 2.18 or SECTION 3.5, a
Fixed Rate Advance made by the assigning Lender is assigned on a date which is
not the last day of the applicable Interest Period, or (iii) a Fixed Rate
Advance is not made, continued or converted on the date specified by the
Borrower for any reason other than default by the Lenders, or (iv) an optional
prepayment, notice of which has been given in accordance with SECTION 2.5, is
not made on the date specified therefor in such notice, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance, or in liquidating
or terminating prior to scheduled maturity any foreign exchange contracts,
currency swaps or other similar hedging arrangements entered into in connection
with the Fixed Rate Advance.
3.5. MITIGATION; LENDER STATEMENTS; SURVIVAL OF INDEMNITY. (a) To the
extent reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability of the
Borrower to such Lender under SECTIONS 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under SECTION 3.3, so long as such
designation is not disadvantageous to such Lender. If the obligation of the
Lenders to make Eurodollar Advances has been suspended pursuant to SECTION 3.3,
as a consequence of a determination by any Lender that maintenance of its
Eurodollar Loans at a suitable Lending Installation would violate any applicable
law or any Lender has demanded compensation under SECTION 3.1 or 3.2, the
Borrower may elect (i) subject to SECTION 3.4, to prepay any outstanding
Advances to the extent necessary to mitigate its liability under SECTION 3.1 or
3.2, (ii) to terminate the applicable Lender's Commitment hereunder or (iii) to
require the applicable Lender to assign its outstanding Revolving Loans, Swing
Line Interests, L/C Interests and Commitment hereunder to another financial
institution designated by the Borrower and reasonably acceptable to the Agent;
PROVIDED, HOWEVER, that the Borrower may make the elections described in the
foregoing CLAUSES (i) and (ii) only at such times as no Default or Unmatured
Default shall have occurred and be continuing. The obligation of a Lender to
assign its rights and obligations hereunder or terminate its Commitment
hereunder as contemplated by this SECTION 3.5(a) is subject to the requirements
that (x) all amounts owing to that Lender under the Loan Documents (including,
without limitation, pursuant to SECTION 3.4) are paid in full upon the
completion of such assignment or prior to such termination and (y) any
assignment is effected in accordance with the terms of SECTION 13.3 and on terms
otherwise satisfactory to that Lender.
(b) Each Lender or the L/C Issuer, as the case may be, shall deliver a
written statement of such Person as to the amount due, if any, under SECTION
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail
the calculations upon which such Person determined such amount and shall be
final, conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
45
Fixed Rate Loan shall be calculated as though each Lender funded such Fixed
Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the interest
rate applicable to such Fixed Rate Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the Borrower of the
written statement. The obligations of the Borrower under SECTIONS 3.1, 3.2
and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4 CONDITIONS PRECEDENT TO AMENDMENT AND RESTATEMENT. The
effectiveness of this Agreement and the consummation of the actions and deemed
actions contemplated by ARTICLE XVI hereof are subject to the satisfaction of
the conditions precedent set forth below in SECTION 4.1.
4.1. INITIAL ADVANCE, SWING LINE LOAN AND LETTER OF CREDIT. The
Lenders shall be obligated (subject to SECTION 4.2) to make the initial Advance
and purchase participations in Swing Line Loans and the Letters of Credit
hereunder, the L/C Issuer shall be obligated (subject to SECTION 4.2) to issue
the initial Letter of Credit hereunder, and the Swing Line Lender shall be
obligated (subject to SECTION 4.2) to make the initial Swing Line Loan
hereunder, only after (x) the Effective Date shall have occurred, (y) the Agent
shall have been paid in full for all fees, costs and expenses payable by TLGI or
the Borrower under this Agreement and the other Loan Documents (including,
without limitation, the fees and expenses of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for
the Agent) to the extent then invoiced, and (z) the Agent shall have received
from the Borrower, with sufficient copies for the Agent and each of the Lenders,
each of the following items in form and substance satisfactory to the Agent:
(a) copies of the articles of incorporation or comparable constitutive
documents of each of TLGI and the Borrower, together with all amendments, and,
to the extent applicable, a certificate of good standing, in each case certified
by the appropriate governmental officer in the relevant jurisdiction of
organization, or in lieu of such articles of incorporation or comparable
constitutive documents, a certificate, signed by the Secretary, Assistant
Secretary or other appropriate officer or director of each of TLGI and the
Borrower stating that on the date hereof, no amendments to, or other changes in,
the articles of incorporation or other comparable constitutive documents of TLGI
and the Borrower has occurred since September 27, 1997;
(b) copies of the by-laws (or any comparable constitutive laws, rules or
regulations) of each of TLGI and the Borrower as in effect on the Effective Date
certified by the Secretary, Assistant Secretary or other appropriate officer or
director of it;
(c) copies, certified by the Secretary, Assistant Secretary or other
appropriate
46
officer or director of each of TLGI and the Borrower of its board of
directors' resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution and performance
of the relevant Loan Documents;
(d) incumbency certificates, executed by the Secretary or Assistant
Secretary or other appropriate officer or director of each of TLGI and the
Borrower, which shall identify by name and title and bear the signature of the
officers of TLGI and the Borrower authorized to sign the relevant Loan Documents
and to make borrowings and apply for Letters of Credit hereunder, as applicable,
upon which certificate the Agent, the Lenders and the L/C Issuer shall be
entitled to rely until informed of any change in writing by TLGI or the
Borrower, as applicable;
(e) a certificate, signed by the Chief Financial Officer, stating
that on the date hereof no Default or Unmatured Default has occurred and is
continuing;
(f) the following opinions of counsel to the Borrower, TLGI, the other
Guarantors and the Pledgor Subsidiaries regarding the matters set forth on
EXHIBIT B and such other matters as the Agent shall request:
(i) an opinion of Thelen, Marrin, ▇▇▇▇▇▇▇ & Bridges, United States
counsel to TLGI and the Borrower; and
(ii) an opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Canadian counsel to TLGI;
(g) the Collateral Trust Agreement;
(h) evidence satisfactory to the Agent that the Borrower's
Obligations in respect of Revolving Loans will qualify as Class A Secured
Indebtedness under the Collateral Trust Agreement, which evidence shall
include an opinion of Thelen, Marrin, ▇▇▇▇▇▇▇ & Bridges confirming that
Revolving Loans will each qualify as Class A Secured Indebtedness under the
Collateral Trust Agreement; and
(i) such other documents as the Agent or any Lender or its counsel may
reasonably request.
4.2. EACH ADVANCE, SWING LINE LOAN AND LETTER OF CREDIT. The Lenders
shall not be required to make any Advance or purchase participations in any
Swing Line Loan or Letter of Credit, the Swing Line Lender shall not be required
to make any Swing Line Loan, and the L/C Issuer shall not be required to issue
any Letter of Credit hereunder, unless on the applicable Revolving Loan
Borrowing Date, Swing Line Loan Borrowing Date or date for issuance of such
Letter of Credit (as applicable):
(a) there exists no Default or Unmatured Default;
47
(b) the representations and warranties contained in ARTICLE VI, the
Guaranties and the Collateral Trust Agreement are true and correct as of such
Revolving Loan Borrowing Date, Swing Line Loan Borrowing Date or date for
issuance of such Letter of Credit (as applicable) except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date, and except that from and after the Collateral Release
Date, this SECTION 4.2(b) shall not apply to the representations and warranties
set forth in the Pledgor Subsidiary Guaranties or in the Collateral Trust
Agreement; and
(c) after giving effect to such Advance, the making of such Swing Line
Loan or the issuance of such Letter of Credit, the aggregate outstanding
principal amount of all Advances and Swing Line Loans and the outstanding L/C
Obligations does not exceed the Aggregate Commitment (and, (i) in the case of
Swing Line Loans, (x) the aggregate outstanding principal amount of all such
Swing Line Loans does not exceed $10,000,000, and (y) the aggregate outstanding
principal amount of all such Swing Line Loans, together with the outstanding
principal amount of all Revolving Loans made by the Swing Line Lender in its
capacity as a Lender and the L/C Interest of the Swing Line Lender in its
capacity as the L/C Issuer, does not exceed the Commitment applicable to the
Swing Line Lender in its capacity as a Lender, and (ii) in the case of Letters
of Credit, the aggregate outstanding L/C Obligations do not exceed
$300,000,000).
Each Revolving Loan Borrowing Notice with respect to an Advance, Swing Line Loan
Borrowing Notice with respect to a Swing Line Loan, and application with respect
to a Letter of Credit shall constitute a representation and warranty by the
Borrower that the conditions contained in SECTIONS 4.2(a), (b) and (c) have been
satisfied.
ARTICLE V
TLGI GUARANTY
5.1. THE GUARANTY. TLGI hereby unconditionally and irrevocably
guarantees the due and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Revolving
Loan and Swing Line Loan made to, and of each Reimbursement Obligation owing by,
the Borrower pursuant to this Agreement, and the due and punctual payment and
performance of all other Obligations (including, without limitation, interest
accruing following the filing of a bankruptcy petition by or against the
Borrower, at the applicable rate or rates specified herein, whether or not such
interest is allowed as a claim in bankruptcy). Upon failure by the Borrower to
pay or perform any Obligation, TLGI shall forthwith on demand pay or perform
such Obligation, at the place, in the manner and with the effect otherwise
specified in this Agreement. TLGI hereby agrees that its guaranty of the
Obligations pursuant to this ARTICLE V is an absolute guaranty of payment and is
not a guaranty of collection.
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5.2. GUARANTY UNCONDITIONAL. The obligations of TLGI hereunder shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrower under this Agreement or any
Letter of Credit or the exchange, release or non-perfection of any collateral
security therefor (including, without limitation, the collateral pledged
under the Collateral Trust Agreement);
(b) any modification or amendment of or supplement to this Agreement,
any Letter of Credit, the Collateral Trust Agreement, or any other Loan
Document, or the termination of the Collateral Trust Agreement or the release
of any collateral pledged thereunder;
(c) any change in the corporate existence, structure or ownership of
the Borrower or any other Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower, any other
Subsidiary or their respective assets;
(d) the existence of any claim, set-off or other rights which TLGI
may have at any time against the Borrower, any other Guarantor, the Agent,
any Lender, the L/C Issuer or any other Person, whether in connection
herewith or with any unrelated transactions, PROVIDED that nothing herein
shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(e) any invalidity or unenforceability relating to or against the
Borrower or any Pledgor Subsidiary for any reason of any provision or all of
this Agreement, the Collateral Trust Agreement, or any other Loan Document,
or any provision of applicable law or regulation purporting to prohibit the
payment by the Borrower of the principal of or interest on any Revolving Loan
or Swing Line Loan or Reimbursement Obligation or the payment or performance
by the Borrower of any other Obligation hereunder or under any of the other
Loan Documents or the payment or performance by any Guarantor of any of its
obligations under any Guaranty; or
(f) any other act or omission to act or delay of any kind by the
Borrower, any other Guarantor, the Agent, any Lender, the L/C Issuer or any
other Person or any other circumstance whatsoever which might, but for the
provisions of this SECTION 5.2, constitute a legal or equitable discharge of
TLGI's obligations hereunder.
5.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. TLGI's obligations hereunder shall remain in full force and
effect until the principal of and interest on the Revolving Loans and the
Swing Line Loans and all other Obligations shall have been paid or performed
in full and the Letters of Credit shall have expired or otherwise been
terminated and TLGI's obligations hereunder shall survive the Facility
Termination Date. If at any time any payment of the principal of or interest
on any Revolving
49
Loan or Swing Line Loan or Reimbursement Obligation or any payment of any
other Obligation hereunder is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of the Borrower or
any other Person or otherwise, TLGI's obligations hereunder with respect to
such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
5.4. WAIVER BY TLGI. TLGI irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well
as any requirement that at any time any right be exhausted or any action be
taken by the Agent, any Lender, the L/C Issuer or any other Person against
the Borrower, any Guarantor or any other Person or any collateral security
(including, without limitation, the collateral pledged under the Collateral
Trust Agreement). In addition, the Lenders and the L/C Issuer, either
themselves or acting through the Agent, are hereby authorized, without notice
or demand and without affecting the liability of TLGI hereunder, from time to
time, (a) to renew, extend, accelerate or otherwise change the time for
payment of, or other terms relating to, all or any part of the Obligations,
or to otherwise modify, amend or change the terms of any of the Loan
Documents; (b) to accept partial payments on all or any part of the
Obligations; (c) to take and hold security or collateral (including, without
limitation, the collateral pledged under the Collateral Trust Agreement) for
the payment of all or any part of the Obligations, TLGI's obligations
hereunder or any other guaranties of all or any part of the Obligations or
other liabilities of the Borrower; (d) to exchange, enforce, waive and
release any such security or collateral; (e) to apply such security or
collateral and direct the order or manner of sale thereof as in their
discretion they may determine; and (f) to settle, release, exchange, enforce,
waive, compromise or collect or otherwise liquidate all or any part of the
Obligations, TLGI's obligations hereunder, any other guaranty of all or any
part of the Obligations and any security or collateral for the Obligations or
for any such guaranty. Any of the foregoing may be done in any manner,
without affecting or impairing the obligations of TLGI hereunder.
5.5. WAIVER OF SUBROGATION RIGHTS. Until all Obligations shall have
been indefeasibly paid in full, the Commitments shall have terminated and all
of the Letters of Credit shall have expired or otherwise been terminated,
TLGI hereby waives all rights of subrogation (whether contractual, under
Section 509 of the United States Bankruptcy Code, as amended, or otherwise)
to the claims of the Lenders, the L/C Issuer and the Agent against the
Borrower and all contractual, statutory or common law rights of
reimbursement, contribution or indemnification from the Borrower and all
"claims" (as such term is defined in the United States Bankruptcy Code, as
amended) against the Borrower, which, in any such case, may otherwise have
arisen in connection with this Agreement and the other Loan Documents.
5.6. STAY OF ACCELERATION. In the event that acceleration of the time
for payment of any of the Obligations hereunder is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person, all such
Obligations otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by TLGI hereunder forthwith on demand by the Agent
for the account of the Lenders, the L/C Issuer and the Agent.
50
5.7. GROSS-UP. All payments made by TLGI under this ARTICLE V shall
be made in full, without set-off or counterclaim, and free of and without
deduction or withholding for or on account of any present or future tax, duty,
assessment, impost, levy or other similar charge, or any penalties, fines or
interest thereon (a "RELEVANT TAX") imposed upon TLGI, the Borrower, the Agent,
any Lender or the L/C Issuer by the government of Canada (or any Governmental
Authority thereof), the government of the United States of America (or any
Governmental Authority thereof) or by the government of any other country or
jurisdiction (or any Governmental Authority thereof) from or through which
payments hereunder are actually made (each a "TAXING JURISDICTION"). TLGI, for
the benefit of the Agent, the Lenders and the L/C Issuer, agrees that in the
event any payments made by TLGI hereunder are subject to any deduction or
withholding for or on account of any Relevant Tax, TLGI will pay to the Agent,
such Lender or the L/C Issuer such additional amounts as may be necessary in
order that the net amounts paid to the Agent, such Lender or the L/C Issuer
pursuant to the terms of this ARTICLE V after imposition of any such Relevant
Tax (including deductions or withholdings applicable to additional amounts paid
under this SECTION 5.7) shall be not less than the amounts specified in this
ARTICLE V to be then due and payable, except that no such additional amounts
shall be payable hereunder to the Agent, any Lender or the L/C Issuer that is
liable for such Relevant Tax in respect of the relevant payment solely by reason
of such recipient (a) having a permanent establishment in the Taxing
Jurisdiction, (b) being organized under the laws of the Taxing Jurisdiction or
any political subdivision thereof, (c) being resident in the Taxing Jurisdiction
by virtue of its domicile or place of management being in the Taxing
Jurisdiction, or (d) having failed to comply with the terms and conditions of
SECTION 2.17(a) applicable to it. If the Agent, any Lender or the L/C Issuer
pays any amount in respect of Relevant Tax, TLGI shall indemnify the Agent, the
Lender or the L/C Issuer, as the case may be, for such payment within 15 days of
demand therefor by the Agent, such Lender or the L/C Issuer (in the case of such
Lender or the L/C Issuer, made through the Agent).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6 REPRESENTATIONS AND WARRANTIES. Each of TLGI and, with respect
to itself and its Subsidiaries, the Borrower represents and warrants to the
Lenders and the L/C Issuer that:
6.1. CORPORATE EXISTENCE AND STANDING. Each of TLGI, the Borrower and
the other Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction wherein such
qualification is required, except to the extent that, in the case of any
Subsidiary other than the Borrower or any Pledgor Subsidiary, the failure to be
in good standing or authorized to conduct business in any jurisdiction could
not, when taken together with all similar failures by such Subsidiary and each
other Subsidiary, reasonably be expected to have a Material Adverse Effect.
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6.2. AUTHORIZATION AND VALIDITY. Each of TLGI, the Borrower and each
other Guarantor has the corporate power and authority and legal right to
execute and deliver the Loan Documents to which it is party and to perform
its obligations thereunder. The execution and delivery by each of TLGI, the
Borrower and each other Guarantor of the Loan Documents to which it is party
and the performance of its obligations thereunder have been duly authorized
by proper corporate proceedings, and each Loan Document to which TLGI, the
Borrower or any other Guarantor is party constitutes the legal, valid and
binding obligation of TLGI, the Borrower or such other Guarantor, as
applicable, enforceable against TLGI, the Borrower or such other Guarantor,
as applicable, in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and general principles of equity, regardless
of whether the application of such principles is considered in a proceeding
in equity or at law.
6.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by each of TLGI, the Borrower and each other Guarantor of the Loan
Documents to which it is party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof, will
violate any law, rule, regulation, order, writ, judgment, injunction, decree
or award binding on TLGI, the Borrower or any Subsidiary or TLGI's, the
Borrower's or any Subsidiary's articles of incorporation or by-laws or
comparable constitutive documents or the provisions of any indenture,
instrument or agreement to which TLGI, the Borrower or any Subsidiary is a
party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of TLGI, the Borrower or any
Subsidiary pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with the execution,
delivery and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents, except for consents, approvals,
authorizations and filings which have already been duly obtained and made and
which remain valid and in full force and effect.
6.4. FINANCIAL STATEMENTS. Each of (a) the December 31, 1997,
consolidated financial statements of TLGI and its Subsidiaries and (b) the
December 31, 1997, consolidated financial statements of the Borrower and its
Subsidiaries, heretofore delivered to the Lenders, were prepared in
accordance with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of TLGI
and its Subsidiaries and of the Borrower and its Subsidiaries, respectively,
at the date thereof and the consolidated results of their respective
operations for the period then ended.
6.5. MATERIAL ADVERSE CHANGE. Since December 31, 1997, there has been
no change in the business, Property, prospects, financial condition or results
of operations of TLGI and its Subsidiaries (taken as a whole) or of the Borrower
and its Subsidiaries (taken as a whole)
52
which could reasonably be expected to have a Material Adverse Effect.
6.6. TAXES. All income tax returns required to be filed by TLGI, the
Borrower or any Subsidiary in any jurisdiction have, in fact, been filed, all
such tax returns have been prepared in accordance with applicable laws and
all taxes, assessments, fees and other governmental charges upon TLGI, the
Borrower or any Subsidiary or upon any of their respective properties, income
or franchises which are shown on such returns have been paid. For all
taxable years ending on or before December 31, 1989, the United States
Federal income tax liability of TLGI, the Borrower and the other Subsidiaries
has been satisfied and either the period of limitations on assessment of
additional United States Federal income tax has expired or TLGI, the Borrower
or the applicable other Subsidiary has entered into an agreement with the
United States Internal Revenue Service closing conclusively the total tax
liability for the taxable year. None of TLGI, the Borrower and the other
Subsidiaries knows of any proposed additional tax assessment against it or
any of them for which adequate provision has not been made on its or their
accounts, and no material controversy in respect of additional income or
other taxes due or claimed to be due to any Governmental Authority is pending
or to the knowledge of TLGI, the Borrower or the other Subsidiaries
threatened. The charges, accruals and reserves on the books of TLGI, the
Borrower and the other Subsidiaries in respect of any taxes or other
governmental charges are adequate.
6.7. LITIGATION AND CONTINGENT LIABILITIES. Except as set forth on
SCHEDULE 1 hereto (but only to the extent described thereon), there is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting TLGI, the Borrower or any other Subsidiary which could have a
Material Adverse Effect, or for which there is a reasonable likelihood that
TLGI, the Borrower or any other Subsidiary would make a payment, whether in
settlement or otherwise, in excess of $50,000,000. Other than any liability
incident to such litigation, arbitration or proceedings, none of TLGI, the
Borrower or any other Subsidiary has any material contingent liabilities not
provided for or disclosed in the financial statements referred to in SECTION
6.4.
6.8. SUBSIDIARIES; PLEDGE OF STOCK. SCHEDULE 1 hereto, together with
the most recent update, if any, delivered pursuant to SECTION 7.1(k), contains
an accurate list of all of the Subsidiaries (except for inactive Subsidiaries
with immaterial assets and liabilities) of each of TLGI and the Borrower,
setting forth their respective jurisdictions of incorporation and the percentage
of their respective capital stock owned by TLGI, the Borrower or other
Subsidiaries; PROVIDED, HOWEVER, that as of the Restatement Effective Date
SCHEDULE 1 reflects such Subsidiaries only to the extent acquired on or before
March 15, 1998. All of the issued and outstanding shares of capital stock of
the Subsidiaries of TLGI and the Borrower listed on SCHEDULE 1 hereto, together
with the most recent update, if any, delivered pursuant to SECTION 7.1(k), have
been duly authorized and issued and are fully paid and non-assessable and have
been duly and validly pledged under the Collateral Trust Agreement and delivered
to the Collateral Agent pursuant to the terms of the Collateral Trust Agreement.
53
6.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither TLGI, the Borrower nor any
other member of the Controlled Group has incurred, or is reasonably expected
to incur, any withdrawal liability to Multiemployer Plans in excess of
$5,000,000 in the aggregate. Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable Event
has occurred with respect to any Plan, none of TLGI, the Borrower or any
other member of the Controlled Group has withdrawn from any Plan or initiated
steps to do so, and no steps have been taken to reorganize or terminate any
Plan. No contribution failure has occurred with respect to any Single
Employer Plan sufficient to give rise to a lien under section 302(f) of
ERISA. Each Canadian Plan is registered under, and is in compliance with,
the Income Tax Act (Canada), applicable provincial pensions legislation and
all other applicable requirements of law and regulations and all reports,
returns and filings required to be made thereunder have been made. The
Canadian Plans have been at all times administered in accordance with their
terms and the provisions of all applicable requirements of law and
regulations. There are no unfunded liabilities under the Canadian Plans and,
without limiting the generality of the foregoing, there is no going concern
unfunded actuarial liability, past service unfunded actuarial liability or
solvency deficiency. Neither TLGI nor any Subsidiary has received any
payment of surplus from any of the Canadian Plans, other than payments
received after January 1, 1988 with the approval of all necessary pension
regulatory and taxation authorities.
6.10. ACCURACY OF INFORMATION. No written information, exhibit or
report prepared and furnished by TLGI, the Borrower or any other Subsidiary
to the Agent, any Lender or the L/C Issuer in connection with the negotiation
of, or compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not misleading.
6.11. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of TLGI and the Borrower and other
Subsidiaries which are subject to any limitation on sale, pledge or other
restriction hereunder or under any other Loan Document. None of the
execution, delivery and performance of this Agreement and the other Loan
Documents by TLGI, the Borrowers, the other Guarantors and the Pledgor
Subsidiaries will violate Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System.
6.12. MATERIAL AGREEMENTS. None of TLGI, the Borrower or any
Subsidiary is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default could have a Material Adverse Effect.
6.13. COMPLIANCE WITH LAWS. TLGI, the Borrower and the other
Subsidiaries have complied in all material respects with all applicable
statutes, rules, regulations, orders and restrictions of any Governmental
Authority having jurisdiction over the conduct of their respective businesses
or the ownership of their respective Property the failure with which to
comply could have a Material Adverse Effect. None of TLGI, the Borrower or
any Subsidiary
54
has received any notice to the effect that, or is otherwise aware that, its
operations are not in material compliance with any of the requirements of
applicable environmental, health and safety statutes and regulations of any
Governmental Authority or the subject of any investigation by any
Governmental Authority evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could have a Material
Adverse Effect.
6.14. OWNERSHIP OF PROPERTIES. Except as set forth on SCHEDULE 1
hereto, on the date of this Agreement, each of TLGI, the Borrower and each
other Subsidiary has good title, free of all Liens other than those permitted
by SECTION 7.18, to all of the Property and assets reflected as owned by it
in the financial statements delivered from time to time pursuant hereto.
6.15. INVESTMENT COMPANY ACT. None of TLGI, the Borrower or any other
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
6.16. PUBLIC UTILITY HOLDING COMPANY ACT. None of TLGI, the Borrower
or any other Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.17. POST-RETIREMENT BENEFITS. The present value of the expected cost
of post-retirement medical and insurance benefits payable by TLGI, the
Borrower and the other Subsidiaries to their employees and former employees,
as estimated by TLGI in accordance with procedures and assumptions specified
by the Required Lenders, or in the absence of such specification, deemed
prudent and reasonable by TLGI, does not exceed $1,000,000.
6.18. NEGATIVE PLEDGE. None of TLGI, the Borrower nor any Subsidiary
of TLGI or the Borrower is party to any contract or other arrangement under
the terms of which TLGI, the Borrower or any such Subsidiary is restricted
from (i) performing its respective obligations under the Collateral Trust
Agreement or any other Loan Document to which it is a party or (ii) providing
a guaranty to the Agent, the Collateral Agent, the Lenders or the L/C Issuer.
6.19. SOLVENCY. On the date of this Agreement, on the Effective Date,
and immediately prior to and after giving effect to the issuance of each
Letter of Credit and the making of each Advance and Swing Line Loan hereunder
and the application of the proceeds of each Advance and Swing Line Loan, each
of TLGI, the Borrower and each Pledgor Subsidiary is solvent, is able to pay
its debts as they mature, owns property with fair saleable value greater than
the amount required to pay its debts and has capital sufficient to carry on
its business as then constituted.
6.20. EXISTING LETTERS OF CREDIT. The Letters of Credit identified on
SCHEDULE 4
55
hereto were issued pursuant to the terms of the Original Agreement or the
Original Amended Agreement and, as of the date of this Agreement, remain
outstanding in the maximum amounts available to be drawn and with the expiry
dates specified thereon, and no other Letters of Credit issued under the
Original Agreement or the Original Amended Agreement remain outstanding as of
the date of this Agreement.
6.21. NO DEFAULT. No Default or Unmatured Default (each term used as
defined in the Original Amended Agreement) has occurred and is continuing as
of the date of this Agreement which has not been duly waived by the Lenders
(as defined in the Original Amended Agreement) under the terms of the
Original Amended Agreement.
ARTICLE VII
COVENANTS
7 COVENANTS. During the term of this Agreement, unless the
Required Lenders shall otherwise consent in writing, TLGI and the Borrower
shall perform, and cause to be performed, the following:
7.1. FINANCIAL REPORTING. TLGI will maintain, and cause the Borrower
and each other Subsidiary to maintain, a system of accounting established and
administered in accordance with GAAP, and will furnish or cause to be
furnished to the Lenders:
(a) (i) within 120 days after the close of each of TLGI's fiscal
years, (x) together with an unqualified (except for qualifications relating
to changes in accounting principles or practices reflecting changes in GAAP
and required or approved by TLGI's independent chartered accountants or
independent public accountants) audit report certified by independent
chartered accountants or independent public accountants, acceptable to the
Lenders, consolidated financial statements of TLGI prepared in accordance
with Agreement Accounting Principles on a consolidated basis for itself and
its Subsidiaries, including balance sheets as of the end of such period,
related statements of profit and loss, retained earnings and changes in
financial position, accompanied by a review engagement report of said
accountants in accordance with the standards of Section 8600 of the CICA
Handbook stating that, in connection with the foregoing, they have obtained
no knowledge of any failure of TLGI or its Subsidiaries to comply with the
requirements specified in each of SECTIONS 7.10 through 7.25, or if, in the
opinion of such accountants, TLGI or any of its Subsidiaries has failed to
comply with the requirements specified in any such Section, stating the
nature and status of such failure, and (y) consolidating financial statements
of TLGI certified by the Chief Financial Officer that separately present
TLGI's Canadian operations, United States operations and other material
financial operations prepared in accordance with Agreement Accounting
Principles, including balance sheets as of the end of such period, and
related statements of profit and loss, retained earnings and changes in
financial position; and (ii) within 180 days after the close of each of
TLGI's fiscal years, the management letter prepared by the applicable
accountants in connection with the financial
56
statements for such fiscal year delivered pursuant to the foregoing CLAUSE
(i)(x);
(b) (i) within 120 days after the close of each of the Borrower's
fiscal years, together with an unqualified (except for qualifications
relating to changes in accounting principles or practices reflecting changes
in GAAP and required or approved by the Borrower's independent chartered
accountants or independent public accountants) audit report certified by
independent chartered accountants or independent public accountants,
acceptable to the Lenders, consolidated financial statements of the Borrower
prepared in accordance with Agreement Accounting Principles on a consolidated
basis for itself and its Subsidiaries, including balance sheets as of the end
of such period, and related statements of profit and loss, retained earnings
and changes in financial position;
(c) within 60 days after the close of each of the first three
quarterly periods of each of TLGI's fiscal years, for TLGI and its
Subsidiaries, consolidated unaudited balance sheets as at the close of such
period and consolidated statements of profit and loss, retained earnings and
changes in financial position for the period from the beginning of such
fiscal year to the end of such period, all certified by the Chief Financial
Officer;
(d) within 60 days after the close of each of the first three
quarterly periods of each of the Borrower's fiscal years, for the Borrower
and its Subsidiaries, consolidated unaudited balance sheets as at the close
of such period and consolidated statements of profit and loss, retained
earnings and changes in financial position for the period from the beginning
of such fiscal year to the end of such period, all certified by the Chief
Financial Officer;
(e) together with the financial statements required pursuant to the
foregoing CLAUSES (a), (b), (c) and (d), a compliance certificate in
substantially the form of EXHIBIT C hereto signed by the Chief Financial
Officer showing in reasonable detail the calculations necessary to determine
compliance with this Agreement, stating that no Default or Unmatured Default
exists or if any Default or Unmatured Default exists, stating the nature and
status thereof, and otherwise providing the information required thereby;
(f) within 270 days after the close of each fiscal year of TLGI, a
statement of the Unfunded Liabilities of each Single Employer Plan, certified
as correct by an actuary enrolled under ERISA;
(g) as soon as possible and in any event within ten days after TLGI
or the Borrower knows that any Reportable Event has occurred with respect to
any Plan or that a withdrawal has occurred from any Multiemployer Plan, the
occurrence of either of which may reasonably be expected to give rise to a
Material Adverse Effect, or that a contribution failure has occurred with
respect to any Single Employer Plan sufficient to give rise to a lien under
section 302(f) of ERISA, a statement, signed by the Chief Financial Officer,
describing said Reportable Event or contribution failure and the action which
TLGI and the Borrower propose to take with respect thereto;
57
(h) as soon as possible and in any event within 30 days after receipt
by TLGI or any of its Subsidiaries, a copy of (i) any notice or claim to the
effect that TLGI or any of its Subsidiaries is or may reasonably be expected
to be liable for $2,000,000 or more of potential liability (when aggregated
with other similar potential liability) to any Person as a result of the
release by TLGI, any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment and (ii) any notice
alleging any violation of any federal, state or local environmental, health
or safety law or regulation by TLGI or any of its Subsidiaries, which
violation could reasonably be expected to give rise to a Material Adverse
Effect;
(i) promptly upon the furnishing thereof to the shareholders of TLGI,
copies of all financial statements, reports and proxy statements so furnished;
(j) promptly upon their becoming available, one copy of each
financial statement, report, notice or proxy statement sent by TLGI or the
Borrower to stockholders generally (excluding those statements, reports and
notices sent by the Borrower to TLGI which are not sent to TLGI solely in its
capacity as a stockholder) and of each regular report and any registration
statement or prospectus filed by TLGI, the Borrower or any other Subsidiary
with the Ontario Securities Commission, the Toronto Stock Exchange, the
British Columbia Securities Commission, the United States Securities and
Exchange Commission or any successor agency to any of the foregoing or any
other Canadian or United States federal or state or provincial securities
exchange or securities trading system or with any United States or Canadian
national stock exchange and one copy of each periodic report filed by TLGI
with any Canadian regulatory authority, in all cases without duplication;
PROVIDED, HOWEVER, that neither TLGI nor the Borrower shall be obligated to
provide to the Lenders routine reports which are required to be provided to
any of the above-listed entities concerning the management of employee
benefit plans, including, without limitation, stock purchases or the exercise
of stock options made under any such employee benefit plan;
(k) together with the financial statements delivered pursuant to
SECTION 7.1(a), a current list of all of the Subsidiaries of each of TLGI and
the Borrower, setting forth their respective jurisdictions of incorporation,
the percentage of their respective capital stock owned by TLGI, the Borrower
and the other Subsidiaries, and the net worth (after adjustments for
intercompany balances) determined by TLGI on a consistent basis of each such
Subsidiary as of a date reasonably proximate to the date of such list (which
list shall note with respect to each Subsidiary any changes of greater than
$5,000,000 in such net worth of such Subsidiary since the date of the last
list of Subsidiaries delivered pursuant to this SECTION 7.1(k));
(l) [Intentionally omitted];
(m) together with the financial statements delivered pursuant to
SECTIONS 7.1(a), (b), (c) and (d), a summary prepared by an Authorized
Officer of TLGI setting forth the status of all Acquisitions by TLGI, the
Borrower or any of their respective Subsidiaries for which (i) a letter of
intent (or other documentation evidencing the intent of the parties to
proceed with
58
such Acquisition, including, without limitation, a definitive purchase
agreement) has been executed by the parties during the period covered by such
financial statements and continuing through the date of such summary, or (ii)
such Acquisition has closed or otherwise been consummated during the period
covered by such financial statements and continuing through the date of such
summary, which summary shall include (x) a statement of the aggregate
consideration paid to date and expected to be paid at any time thereafter in
connection with such Acquisitions, calculated separately for the matters
described in the foregoing CLAUSES (i) and (ii), and (y) a list of all
Acquisitions for which a provision subjecting the parties to arbitration was
not contained in the documentation governing the Acquisition;
(n) together with the financial statements delivered pursuant to
SECTIONS 7.1(a), (b), (c) and (d), a detailed summary prepared by an
Authorized Officer of TLGI (x) specifying all committed lines of credit to
which any of TLGI, the Borrower or any Subsidiary of TLGI or the Borrower is
party as of the date of such summary, identifying the total commitment and
total outstandings under each such line of credit and the purpose thereof,
and stating whether such lines of credit are purportedly secured under the
terms of the Collateral Trust Agreement or otherwise, and (y) identifying
each Finance Subsidiary which has been formed since the date of the last
summary delivered pursuant to this SECTION 7.1(n), and describing any
material changes in the capitalization, assets, or business and activities of
each Finance Subsidiary since the date of the last summary delivered pursuant
to this SECTION 7.1(n); and
(o) promptly, such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
7.2. USE OF PROCEEDS. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances and the Swing Line Loans to
repay all Indebtedness identified on Annex 1 of SCHEDULE 1 hereto under the
heading "Indebtedness to be Paid", to repay Advances and Swing Line Loans, to
make Permitted Acquisitions or for general corporate and working capital
purposes. The Borrower will not, nor will it permit any of its Subsidiaries
to, use any of the proceeds of the Advances or the Swing Line Loans to
purchase or carry any "margin stock" (as defined in Regulation U). TLGI will
not, nor will it permit any Subsidiary, to use proceeds of the Advances or
the Swing Line Loans other than as contemplated in this SECTION 7.2.
7.3. NOTICES OF DEFAULT, LITIGATION, ETC. TLGI and the Borrower will
give notice in writing to the Lenders of the occurrence of (a) any Default or
Unmatured Default, (b) any payment, or any group of payments (whether or not
related), whether in settlement or otherwise, in excess of $50,000,000, which
at any time are expected to be made at or after such time by TLGI, the
Borrower or any Subsidiary in connection with any litigation, arbitrations,
governmental investigations, proceedings or inquiries, whether individually
or in the aggregate (it being understood that TLGI and the Borrower, in lieu
of separately identifying each such expected payment, may group such payments
to the extent deemed necessary to protect confidentiality), (c) any
development, financial or otherwise, which could reasonably be expected
59
to have a Material Adverse Effect, and (d) any change in the practices and
procedures of TLGI and the Borrower in effect on the date of this Agreement
regarding acquisitions and litigation (which practices and procedures have
been described prior to the date of this Agreement by representatives of TLGI
and the Borrower to the Agent and the Lenders) which notice, in each of the
foregoing cases, shall be given promptly and in any event within five
Business Days after TLGI, the Borrower or the relevant Subsidiary becomes
aware of the Default, Unmatured Default, payment, development, determination
or change. Together with the financial statements delivered pursuant to
SECTIONS 7.1(a), (b), (c) and (d), TLGI and the Borrower shall provide to the
Agent (with sufficient copies for each Lender) a report, prepared as of the
last day of each calendar quarter, (x) for all litigation, arbitrations,
governmental investigations and proceedings pending or, to the knowledge of
any Authorized Officer, threatened against or affecting TLGI, the Borrower or
any other Subsidiary for which the claim or matter involves an amount in
excess of $10,000,000, briefly summarizing the matter (including whether
resolution of the matter could come before a jury), identifying the relief
sought and the amount of the claim, and specifying whether the claim is
covered by insurance and (y) identifying in reasonable detail each payment in
excess of $1,000,000 made during such calendar quarter, or expected to be
made thereafter, in settlement of, or otherwise in satisfaction of, any
litigation, arbitrations, governmental investigations, proceedings or
inquiries. TLGI and the Borrower agree to discuss with the Agent and the
Lenders, upon the request of the Agent or any Lender, the status of any
litigation, arbitrations, governmental investigations, proceedings and
inquiries and any settlements thereof.
7.4. CONDUCT OF BUSINESS. TLGI and the Borrower will, and will cause
each respective Subsidiary of it to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of
enterprise as it is conducted on the date of this Agreement and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction
in which its business requires it to be so authorized. Nothing in this
SECTION 7.4 shall prohibit any merger, amalgamation, or consolidation which
is permitted by SECTION 7.12.
7.5. TAXES. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside
in accordance with GAAP.
7.6. INSURANCE. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and
covering such risks as is customary in the industries in which TLGI, the
Borrower and such Subsidiaries are engaged and which is consistent with sound
business practice; PROVIDED, HOWEVER, that, in any event, TLGI and the
Borrower will maintain, and cause each respective Subsidiary of it to
maintain, at all times insurance which, in the aggregate, is not materially
less comprehensive in scope and policy amount than the insurance
60
maintained by them collectively as of the date hereof. TLGI and the Borrower
will furnish to any Lender upon request from time to time full information as
to the insurance carried.
7.7. COMPLIANCE WITH LAWS. TLGI and the Borrower will, and will cause
each respective Subsidiary of it to, comply in all material respects with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its Properties may be subject.
7.8. MAINTENANCE OF PROPERTIES. TLGI and the Borrower will, and will
cause each respective Subsidiary of it to, do all things necessary to
maintain, preserve, protect and keep its Property in good repair, working
order and condition, ordinary wear and tear excepted, and make all necessary
and proper repairs, renewals and replacements so that its business carried on
in connection therewith may be properly conducted at all times.
7.9. INSPECTION. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, permit the Agent and any or each Lender, by
its respective representatives and agents, to inspect any of the Property,
corporate books and financial records of TLGI, the Borrower and each such
Subsidiary, to examine and make copies of the books of accounts and other
financial records of TLGI, the Borrower and each such Subsidiary, and to
discuss the affairs, finances and accounts of TLGI, the Borrower and each
such Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Agent or such Lender
may designate.
7.10. DISTRIBUTIONS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, declare or make or incur any liability to
make any Distribution, except:
(a) dividends payable in the capital stock of TLGI, the Borrower or
such Subsidiary;
(b) Distributions to TLGI, a Regional Partner or a Wholly-Owned
Subsidiary of TLGI or a Regional Partner;
(c) Distributions made by an Unrestricted Subsidiary to TLGI, the
Borrower or a Subsidiary; and
(d) other Distributions (in addition to those described in the
foregoing CLAUSES (a) and (b)) so long as, immediately after giving effect to
the declaration thereof in the case of dividends or the making thereof in the
case of other proposed Distributions (the date of such event being referred
to hereinafter as the "DISTRIBUTION DATE"), (i) the aggregate amount of
Distributions declared in the case of dividends or made in the case of other
Distributions pursuant to this CLAUSE (d), during the period from and after
January 1, 1998, to and including the Distribution Date, would not exceed the
Consolidated Distributable Amount as of the Distribution Date, and (ii) no
Default or Unmatured Default shall have occurred and be continuing.
61
For the purposes of making the foregoing computations, the amount of any
Distribution declared, paid or distributed in property or assets of TLGI or
the Borrower or any other Subsidiary shall be deemed to be the greater of the
book value or Fair Value (as determined in good faith by the board of
directors of TLGI) of such property or assets as of the date of declaration
in the case of a dividend and the date of payment in the case of any other
Distribution.
7.11. INDEBTEDNESS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, create, incur or suffer to exist any
Indebtedness, except:
(a) the Revolving Loans, the Swing Line Loans and the L/C Obligations;
(b) Indebtedness (i) existing as of the close of business on December
31, 1997, and described on SCHEDULE 1 hereto or (ii) incurred on or after
January 1, 1998, but only to the extent expressly described on SCHEDULE 1
hereto;
(c) Rentals other than Capitalized Lease Obligations and Synthetic
Lease Obligations;
(d) Indebtedness of TLGI, the Borrower or any Subsidiary of TLGI
owing to TLGI, the Borrower or any Subsidiary of TLGI;
(e) subject to the final paragraph of this SECTION 7.11, Indebtedness
of TLGI, the Borrower or any Subsidiary in connection with a Permitted
Receivables Securitization;
(f) subject to the final paragraph of this SECTION 7.11, additional
Indebtedness of any Subsidiaries of TLGI (other than the Borrower), provided
that such Indebtedness, when added to the aggregate outstanding Indebtedness
of all such Subsidiaries which is described on SCHEDULE 1 hereto, does not at
any time exceed 15.0% of Consolidated Net Worth at such time; and
(g) subject to the final paragraph of this SECTION 7.11, additional
Indebtedness issued or incurred by TLGI or the Borrower, provided that after
giving effect thereto and to the application of the proceeds thereof,
Consolidated Indebtedness would not exceed 60% of Consolidated Capitalization.
Notwithstanding the foregoing, but subject to the last two sentences of
this paragraph, any Indebtedness otherwise permitted under any of the
foregoing SECTIONS 7.11(e), (f) and (g) shall not be permitted unless at the
time of the incurrence of such Indebtedness, and after giving PRO FORMA
effect thereto, the Borrower and TLGI will be in compliance with Section 4.07
of the Indenture dated as of March 20, 1996, among the Borrower, TLGI and
Fleet National Bank of Connecticut, as Trustee, relating to the Borrower's
$500,000,000 Senior Guaranteed Notes, as such Indenture may be amended,
modified, supplemented or waived from time to time. (The
62
acquisition by TLGI or any of its Subsidiaries of a new Subsidiary which is
obligated in respect of any Indebtedness shall be deemed for purposes of this
Section to be the incurrence of such Indebtedness by such new Subsidiary on
the date it becomes a Subsidiary of TLGI.) During any period of time that
(i) the ratings assigned to the senior unsecured and unenhanced (other than,
if applicable, pursuant to the Collateral Trust Agreement) long-term
Indebtedness of TLGI by each of Standard & Poor's and ▇▇▇▇▇'▇ (collectively,
the "RATING AGENCIES") are no less than BBB- and Baa3, respectively (the
"INVESTMENT GRADE RATINGS"), and (ii) no Default or Unmatured Default has
occurred and is continuing, the restriction contained in the first sentence
of this paragraph shall not be applicable. If one or both Rating Agencies
withdraws its rating or downgrades its Investment Grade Rating, then
thereafter the restriction contained in the first sentence of this paragraph
shall be applicable on a prospective basis until both of the Rating Agencies
thereafter assign Investment Grade Ratings to the senior unsecured and
unenhanced (other than, if applicable, pursuant to the Collateral Trust
Agreement) long-term Indebtedness of TLGI.
7.12. MERGER. TLGI and the Borrower will not, nor will either permit
any Subsidiary of it to, merge, amalgamate or consolidate with or into any
other Person, except that: (a) a Subsidiary (other than the Borrower or any
Unrestricted Subsidiary) may merge with TLGI, the Borrower, a Regional
Partner or a Wholly-Owned Subsidiary of TLGI (other than an Unrestricted
Subsidiary) or a Regional Partner, subject to the further condition that if
TLGI or the Borrower is a party to any such permitted merger, TLGI or the
Borrower, as applicable, shall be the surviving corporation; (b) a Regional
Partner or a Wholly-Owned Subsidiary of TLGI (other than an Unrestricted
Subsidiary) or a Regional Partner incorporated under the laws of Canada or
any Province thereof may amalgamate with another Regional Partner or
Wholly-Owned Subsidiary of TLGI (other than an Unrestricted Subsidiary) or a
Regional Partner incorporated under the laws of Canada or any Province
thereof, it being understood that neither TLGI nor the Borrower may so
amalgamate; and (c) an Unrestricted Subsidiary may merge, amalgamate or
consolidate with another Unrestricted Subsidiary.
7.13. SALE OF ASSETS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, lease, sell or otherwise dispose of its
Property to any other Person except for (a) sales of inventory in the
ordinary course of business, (b) leases, sales or other dispositions of its
Property to a Regional Partner or a Wholly-Owned Subsidiary of TLGI or a
Regional Partner (provided that if any such Property is subject to the
Collateral Trust Agreement, then such lease, sale or other disposition shall
be permissible hereunder only to the extent that the lessee or transferee
thereof shall have executed documentation satisfactory to the Agent
maintaining the security interest in the Property in favor of the Collateral
Agent for the benefit of the Secured Parties), (c) subject to the
requirements of SECTION 2.10(b) hereof, other sales or other dispositions of
its Property subject to the requirement that the net proceeds of each such
sale or other disposition of Property are reinvested, within 180 days
following consummation of such sale or other disposition, in the business of
TLGI, the Borrower and the Subsidiaries of either as conducted in accordance
with the requirements of SECTION 7.4, and that immediately before and after
giving effect to such sale, no Default or Unmatured Default shall have
occurred and be
63
continuing, (d) Permitted Receivables Securitizations, and (e) sales of
cemetery properties (provided that such sales (i) are on commercially
reasonable terms, (ii) occur within 30 days of the acquisition by TLGI, the
Borrower or a Subsidiary of such cemetery property, (iii) give rise to an
Investment of the type described in, and permitted by, SECTION 7.16(m), and
(iv) do not involve cemetery properties with an aggregate Fair Value in
excess of $50,000,000 for all such cemetery properties sold in any calendar
year).
7.14. PREPAYMENTS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, either directly or indirectly, voluntarily
redeem, retire or otherwise pay prior to its scheduled maturity, or
accelerate the maturity of, Indebtedness of TLGI or the Borrower or any such
Subsidiary, other than (a) Indebtedness arising hereunder or under other
credit facilities or Permitted Receivables Securitizations of a revolving
nature, (b) Indebtedness between or among TLGI, the Borrower or any
Subsidiary, (c) Indebtedness arising under the MEIP Credit Agreement (but
only to the extent prepayments or redemptions thereof are made in accordance
with the requirements of the MEIP Credit Agreement which are contained in the
MEIP Credit Agreement as in effect on the date hereof), (d) Indebtedness
which ranks PARI PASSU with the Obligations, and (e) other Indebtedness so
long as such Indebtedness either (i) (A) was incurred in connection with an
Acquisition and (B) is prepaid within 180 days of the closing of such
Acquisition or (ii) (A) is prepaid in full and (B) does not exceed
$10,000,000 (such limitation to apply to each individual prepayment pursuant
to this clause (ii) and not in the aggregate).
7.15. AFFILIATES. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, enter into any transaction (including,
without limitation, the purchase or sale of any Property or service) with, or
make any payment or transfer to, any Affiliate except in the ordinary course
of business and pursuant to the reasonable requirements of TLGI's, the
Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to TLGI, the Borrower or such Subsidiary than TLGI, the
Borrower or such Subsidiary would obtain in a comparable arm's-length
transaction; PROVIDED, HOWEVER, that the foregoing terms of this SECTION 7.15
shall not apply to (i) transactions between or among TLGI, any Wholly-Owned
Subsidiary of TLGI and any Regional Partner and (ii) transactions with an
Unrestricted Subsidiary which are related to a Permitted Receivables
Securitization.
7.16. INVESTMENTS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, make or suffer to exist any Investments, or
commitments therefor, except:
(a) Investments (i) in existence as of the close of business on
December 31, 1997, and described on SCHEDULE 1 hereto or (ii) arising on or
after January 1, 1998, but only to the extent expressly described on SCHEDULE
1 hereto;
(b) Investments by TLGI or the Borrower or any Subsidiary in and
to (i) any Subsidiary (other than LMIC or any other Subsidiary not engaged in
one or more of the TLGI Lines of Business), including any Investment in a
corporation which, after giving effect to such Investment, will become a
Subsidiary (other than as specified in the foregoing parenthetical), (ii)
64
LMIC, but only to the extent of the aggregate initial par value of the
capital stock thereof issued to the Borrower upon the incorporation of LMIC,
and (iii) any other Person provided that such Person is engaged primarily in
one or more of the TLGI Lines of Business;
(c) Investments in property or assets to be used in the ordinary
course of business of TLGI and the Borrower and the other Subsidiaries
conducted as described in SECTION 7.4 of this Agreement;
(d) Investments in commercial paper maturing in 270 days or less from
the date of issuance which, at the time of acquisition by TLGI or the
Borrower or any other Subsidiary, is accorded one of the two highest
commercial paper ratings by Standard & Poor's or ▇▇▇▇▇'▇ or any other United
States nationally recognized credit rating agency of similar standing;
(e) Investments in direct obligations of the United States, any
agency or instrumentality of the United States, the federal government of
Canada or any agency or instrumentality of the federal government of Canada,
the payment or guarantee of which constitutes a full faith and credit
obligation of the United States or Canada, as the case may be, in either case
maturing in three years or less from the date of acquisition thereof;
(f) Investments in direct obligations of any Province of Canada or
any municipality within a Province of Canada or any State or municipality
within the United States maturing in three years or less from the date of
acquisition thereof which, in any such case, at the time of acquisition by
TLGI or the Borrower or any other Subsidiary, is accorded one of the two
highest long-term debt ratings by Standard & Poor's or ▇▇▇▇▇'▇ or any other
United States nationally recognized credit rating agency of similar standing;
(g) Investments in certificates of deposit or bankers' acceptances
with a maturity of under one year issued by a bank or trust company organized
under the laws of the United States or any State thereof, Canada or any
Province thereof, Japan or any member of the European Union, having capital,
surplus and undivided profits aggregating at least $100,000,000 and having a
short-term unsecured debt rating of at least "P-1" by ▇▇▇▇▇'▇ or "A-1" by
Standard & Poor's;
(h) Investments in money market and auction rate preferred stock
issued by Persons organized under the laws of the United States of America or
any State thereof or of Canada or any Province thereof rated "A" or better by
Standard & Poor's or "A" or better by ▇▇▇▇▇'▇, or an equivalent rating by any
other United States nationally recognized credit rating agency of similar
standing;
(i) Investments in mutual funds investing in assets described in
CLAUSE (d), (e), (f) or (g) above which in any such case would be classified as
a current asset in accordance with U.S. GAAP and which are managed by a fund
manager of recognized United States or Canadian national standing and having
share capital of at least $100,000,000 or having at least
65
$250,000,000 under management;
(j) Investments of funds received by TLGI or the Borrower or any
other Subsidiary in the ordinary course of business, which funds are required
to be held in trust for the benefit of others by TLGI, the Borrower or such
Subsidiary, as the case may be, and which funds do not constitute assets or
liabilities of TLGI or the Borrower or any other Subsidiary;
(k) Investments of funds by any Subsidiary which is engaged in the
insurance business which are invested and managed by such Subsidiary in the
ordinary course of its regulated insurance business and insurance operations;
(l) Investments constituting Permitted Acquisitions;
(m) Investments in promissory notes issued and options granted by
purchasers of cemetery properties sold by the Borrower or any of its
Affiliates (but only to the extent permitted by SECTION 7.13(e)); PROVIDED,
HOWEVER, that such promissory notes are issued and such options are granted
on commercially reasonable terms and the aggregate outstanding principal
amount of such promissory notes at any time shall not exceed $100,000,000,
and PROVIDED, FURTHER, that for each such Investment, the related sale and
such Investment have not been challenged, or threatened to be challenged, by
any Governmental Authority;
(n) [Intentionally omitted];
(o) Investments in Unrestricted Subsidiaries so long as immediately
after giving effect to the making of any such Investment the aggregate amount
of all outstanding Investments made pursuant to this SECTION 7.16(o) would
not exceed 15% of Total Assets. For purposes of this SECTION 7.16(o),
Investments (i) shall include any contribution, assignment, transfer or other
conveyance of assets (including, without limitation, accounts receivable) to
an Unrestricted Subsidiary, (ii) shall, at any time, be measured against
Total Assets as of the last day of the fiscal quarter then most recently
ended, (iii) shall be valued based upon the book value of such Investment, as
reflected in the books and records of TLGI, the Borrower or another
Subsidiary (as appropriate) prepared and maintained in accordance with GAAP,
(iv) shall be valued net of any returns of or withdrawals from a previously
consummated Investment, and (v) shall be valued excluding an amount equal to
any cash or cash equivalent proceeds received by the Person making such
Investments in consideration for such Investments.
(p) other Investments (in addition to those permitted by CLAUSES (a)
through (o) above) so long as immediately after giving effect to the making
of any such Investment the aggregate amount of all outstanding Investments
made pursuant to this SECTION 7.16(p) would not exceed 5% of Consolidated Net
Worth;
PROVIDED, HOWEVER, that notwithstanding any provision to the contrary herein,
none of TLGI, the Borrower or any Subsidiary of either shall make any
Investment in any Person effectively located
66
outside of the United States or Canada if after giving effect to such
Investment, the aggregate amount of Investments of TLGI, the Borrower or any
Subsidiary of either in any Persons effectively located outside of the United
States or Canada, excluding Investments in Finance Subsidiaries which are
Wholly-Owned Subsidiaries, would exceed an amount equal to 15% of
Consolidated Revenues for the period of four consecutive fiscal quarters
ended immediately prior to the date of such Investment; PROVIDED FURTHER,
HOWEVER, that the immediately preceding proviso shall not apply from and
after the Collateral Release Date. For the purpose of any computation
required to be made pursuant to this Agreement, Investments shall be valued
at lower of the cost or Fair Value thereof as of the date of computation.
7.17. NEGATIVE PLEDGE. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it (other than an Unrestricted Subsidiary in
connection with a Permitted Receivables Securitization) to, enter into any
agreement or other arrangement under the terms of which TLGI, the Borrower or
any Subsidiary of TLGI or the Borrower (other than any such Unrestricted
Subsidiary) would be restricted from (i) performing its respective
obligations under the Collateral Trust Agreement or any other Loan Document
to which it is a party or (ii) providing a guaranty to the Agent, the
Collateral Agent, the Lenders or the L/C Issuer.
7.18. LIENS. TLGI and the Borrower will not, nor will either permit
any Subsidiary of either to, create, incur or suffer to exist any Lien in, of
or on the Property of TLGI, the Borrower or such Subsidiary, as applicable,
except:
(a) Liens granted to the Agent or the Collateral Agent for the
benefit of the Lenders, the L/C Issuer and the other Secured Parties pursuant
to the Loan Documents;
(b) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(c) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due
or which are being contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books;
(d) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions or other social
security or retirement benefits, or similar legislation (except ERISA);
(e) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not
in any material way affect the same or interfere with the use thereof in the
business of TLGI, the Borrower or any other Subsidiary;
67
(f) Liens existing as of the close of business on December 31, 1997,
and described on SCHEDULE 1 hereto or (ii) created or incurred on or after
January 1, 1998, but only to the extent expressly described on SCHEDULE 1
hereto;
(g) Liens created or incurred after December 31, 1997, given to
secure Indebtedness incurred or assumed by TLGI or any Subsidiary of TLGI in
connection with the acquisition or construction of property or assets useful
and intended to be used in carrying on the business of TLGI or such
Subsidiary, including Liens existing on such property or assets at the time
of acquisition or construction thereof or at the time of acquisition by TLGI
or such Subsidiary of an interest in any business entity then owning such
property or assets, whether or not such existing Liens were given to secure
the consideration for the property or assets to which they attach, subject to
the requirements that (i) the Lien shall attach solely to the fixed assets
acquired or purchased by TLGI or such Subsidiary, (ii) the Lien shall have
been created or incurred within 180 days after the date of acquisition or
completion of construction of such property or assets, and (iii) all such
Indebtedness shall have been incurred or assumed within the limitations
provided in SECTION 7.11, and provided that Liens shall be permitted under
this SECTION 7.18(g) only to the extent that the aggregate amount of
Indebtedness of TLGI and its Subsidiaries outstanding at any time which is
secured by Liens described in either SECTION 7.18(f) or this SECTION 7.18(g)
shall not exceed 10.0% of Consolidated Net Worth at such time;
(h) Liens on Receivables and Receivables Related Assets arising in
connection with any Permitted Receivables Securitization;
(i) Liens granted to TLGI, a Regional Partner or a Wholly-Owned
Subsidiary of TLGI or a Regional Partner by any Subsidiary (other than the
Borrower);
(j) Liens on certain intercompany Indebtedness of the Borrower
granted under the terms of the MEIP Credit Agreement as in effect on the date
of this Agreement;
(k) in addition to Liens permitted by the preceding CLAUSE (g), Liens
given to secure Indebtedness of TLGI, the Borrower or any Subsidiary of TLGI,
PROVIDED that the aggregate amount of Indebtedness outstanding at any time
which is secured thereby shall not exceed $5,000,000; and
(l) any extension, renewal or replacement of any Lien permitted by
the preceding CLAUSES (f) and (g) hereof in respect of the same property or
assets theretofore subject to such Lien in connection with the extension,
renewal or refunding of the Indebtedness secured thereby; PROVIDED that (i)
such Lien shall attach solely to the same property or assets and (ii) such
extension, renewal or refunding of such Indebtedness shall be without
increase in the principal remaining unpaid as of the date of such extension,
renewal or refunding.
7.19. MINIMUM CONSOLIDATED NET WORTH. TLGI will maintain at all times
a Consolidated Net Worth (excluding the cumulative effect of currency
translation adjustments) of
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at least the sum of
(a) 80% of Consolidated Net Worth (excluding the cumulative effect of
currency translation adjustments) as of December 31, 1997, plus
(b) the sum of 50% of Consolidated Net Income for each fiscal quarter
ended after January 1, 1998 (but only to the extent that, in the case of any
such fiscal quarter, Consolidated Net Income for such fiscal quarter is at least
$1.00), plus
(c) 66-2/3% of the aggregate amount of the net cash proceeds received
by TLGI and the Borrower and the other Subsidiaries from the issuance or sale on
and after the Restatement Effective Date (other than sales or issuances to TLGI
or the Borrower or any other Subsidiary) of capital stock of TLGI or
Indebtedness of TLGI, the Borrower or any other Subsidiary which has been
converted into capital stock of TLGI.
7.20. MINIMUM CONSOLIDATED TANGIBLE NET WORTH. TLGI will maintain
at all times a Consolidated Tangible Net Worth (excluding the cumulative effect
of currency translation adjustments) of at least $500,000,000.
7.21. MAXIMUM CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED CAPITALIZATION.
TLGI will not permit the ratio of Consolidated Indebtedness to Consolidated
Capitalization at any time to exceed 0.65 to 1.00.
7.22. INTEREST CHARGES COVERAGE. TLGI will at all times maintain (i) a
ratio of EBITDAR for the most recently ended period of four consecutive
fiscal quarters of TLGI to Consolidated Interest Charges for such period of
four consecutive fiscal quarters of not less than 2.350 to 1.00 and (ii) a
ratio of EBITDAR for the most recently ended fiscal quarter to Consolidated
Interest Charges for such fiscal quarter of not less than 1.50 to 1.00.
7.23. MAXIMUM CONSOLIDATED INDEBTEDNESS TO ADJUSTED EBITDAR. TLGI will
not permit the ratio of Consolidated Indebtedness determined at such time to
Adjusted EBITDAR determined for the period of four consecutive fiscal
quarters then most recently ended (x) to be greater than 6.00 to 1.00 at any
time through and including September 30, 1999 or (y) to be greater than 5.50
to 1.00 at any time after September 30, 1999.
7.24. OWNERSHIP OF THE BORROWER. TLGI will at all times maintain the
Borrower as a Wholly-Owned Subsidiary of TLGI.
7.25. ACQUISITIONS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of either to, make any Acquisition of any Person other
than a Permitted Acquisition.
7.26. PLEDGE OF STOCK AND GRANT OF SECURITY INTEREST IN CERTAIN
ASSETS. TLGI and the Borrower will, and will cause each respective Pledgor
Subsidiary of it to, pledge (or, for
69
any shares or other equity interests pledged prior to the date hereof
pursuant to the terms of the Collateral Trust Agreement, TLGI and the
Borrower will, and will cause each respective Pledgor Subsidiary of it to,
maintain such pledge in) all outstanding shares of capital stock and other
equity interests of any Subsidiary of TLGI or the Borrower (other than any
Unrestricted Subsidiary) held by it or held by any Subsidiary of it (other
than any Unrestricted Subsidiary) from time to time (including, in the case
of TLGI, the Borrower), and the Borrower will grant a security interest (or,
for any security interest granted prior to the date hereof pursuant to the
Collateral Trust Agreement, the Borrower will maintain such security
interest) in all of its financial assets (including, without limitation,
accounts receivable and bank accounts), in each case pursuant to the terms of
the Collateral Trust Agreement; PROVIDED, HOWEVER, that:
(a) TLGI and the Borrower will not be required, and will not be
required to cause each non-U.S. Subsidiary and non-Canadian Subsidiary of
TLGI, to pledge any outstanding shares of capital stock of or other equity
interests in any such Subsidiaries pursuant to the terms of the Collateral
Trust Agreement, unless the aggregate amount of Investments in such
Subsidiaries is greater than $50,000,000, in which case TLGI and the
Borrower will be required, and will be required to cause each non-U.S.
Subsidiary and non-Canadian Subsidiary of TLGI, to pledge any outstanding
shares of capital stock of or other equity interests in all such
Subsidiaries; PROVIDED, HOWEVER, that, notwithstanding the foregoing,
shares of capital stock of or other equity interests in one or more non-
U.S. Subsidiaries and non-Canadian Subsidiaries shall not be required to be
pledged hereunder to the extent that the aggregate cash consideration paid
for such shares or interests in the aggregate for all such subsidiaries
does not exceed $5,000,000 at any time.
(b) TLGI and the Borrower will not be required, and will not be
required to cause any respective Pledgor Subsidiary, to pledge any
outstanding shares of capital stock of or other equity interests in any DSP
Entity or in any DCT Entity pursuant to the Collateral Trust Agreement,
unless and only to the extent that, the aggregate amount of Investments in
such DSP Entities and DCT Entities (taken collectively) is greater than
$40,000,000; and
(c) TLGI and the Borrower will not be required, and will not be
required to cause any respective Pledgor Subsidiary, to pledge any
outstanding shares of capital stock of or other equity interests in any
Insurance Company, but only to the extent (i) the stock of ▇▇▇▇▇▇ Life
Insurance Group, Inc. is pledged pursuant to the Collateral Trust
Agreement; and (ii) none of TLGI, the Borrower or any of their respective
Subsidiaries is or will become party to any agreement under the terms of
which TLGI, the Borrower or any of their respective Subsidiaries is
restricted from pledging any outstanding shares of capital stock or other
equity interests of any Insurance Company pursuant to the Collateral Trust
Agreement;
PROVIDED FURTHER, HOWEVER, that notwithstanding any provision to the contrary
herein, in the event that TLGI or the Borrower fails to cause the Collateral
Trust Agreement to be amended on or
70
before May 31, 1998 to bring the Collateral Trust Agreement into compliance
with the provisions set forth in the foregoing SECTIONS 7.26(a) and 7.26(b),
the provisions set forth in the foregoing SECTIONS 7.26(a) and 7.26(b) shall
cease immediately to be of any force or effect, without any further action
being required by the Lenders or the Agent.
All such shares of capital stock and other equity interests will be
pledged, and all such security interests will be granted, solely to secure
the Obligations and any other Senior Obligations outstanding from time to
time; PROVIDED, HOWEVER, that such pledges of capital stock and other equity
interests, and such grants of security interests, will secure the Senior
Obligations (other than the Obligations and the other Senior Obligations
identified on SCHEDULE 3 hereto) only to the extent that the Borrower will
have so elected and given notice thereof to the Collateral Agent and the
Agent. Within 60 days of the date of closing for each Major Acquisition of a
Person, TLGI and the Borrower will deliver to the Agent an opinion of counsel
addressed to the Agent and the Lender to the effect that all ownership
interests in such Person acquired in such Major Acquisition have been duly
and validly subjected to the lien granted to the Collateral Agent under the
terms of the Collateral Trust Agreement and that all actions to perfect such
lien have been duly and validly taken, such opinions to be satisfactory to
the Agent in form and substance.
TLGI and the Borrower shall, and shall cause their respective Subsidiary
Pledgors to, complete all actions necessary to comply with the requirements
of the first paragraph of this SECTION 7.26 and the Collateral Trust
Agreement with respect to pledges of shares of capital stock and other equity
interests of their Subsidiaries (including without limitation delivery of the
applicable shares and other instruments to the Collateral Agent), whether now
owned or hereafter acquired, within ninety days from the date of acquisition
thereof by TLGI, the Borrower or any of their respective Subsidiaries.
Notwithstanding the foregoing terms of this SECTION 7.26, on such first
date (the "COLLATERAL RELEASE DATE") on which (a) the Borrower shall have
provided written evidence to the Agent that (x) the rating assigned to the
senior unsecured and unenhanced long-term Indebtedness of TLGI by Standard &
Poor's is BBB- (or higher) and such rating assigned by ▇▇▇▇▇'▇ is Baa3 (or
higher), (y) all other Indebtedness secured pursuant to the Collateral Trust
Agreement has ceased (or on the Collateral Release Date shall cease) to be
secured pursuant to the Collateral Trust Agreement, and (z) after giving
effect to this paragraph, the Obligations shall be senior to, or PARI PASSU
with, all other Indebtedness which was secured pursuant to the Collateral
Trust Agreement immediately prior to the Collateral Release Date, (b) no
Default or Unmatured Default shall exist and be continuing, and (c) the Agent
shall have provided written notice to each of the Lenders that the conditions
set forth in the foregoing CLAUSES (a) and (b) have been satisfied, THEN (i)
the pledge and security interest described in this SECTION 7.26 and granted
pursuant to the Collateral Trust Agreement shall automatically terminate, and
TLGI, the Borrower and the Pledgor Subsidiaries shall have no further
obligations in respect of such pledge and security interest, and (ii) the
Pledgor Subsidiary Guaranty of each Pledgor Subsidiary shall automatically
terminate and the Pledgor Subsidiaries shall have no further obligations in
respect
71
of such Pledgor Subsidiary Guaranties, in each case without any further
action or requirement. In connection with the foregoing, the Agent agrees to
take, and to cause the Collateral Agent to take, in each case at the
Borrower's expense, all such actions as may be reasonably requested by the
Borrower to give effect to this paragraph.
7.27. SUBSIDIARIES. TLGI and the Borrower will not permit any of their
respective Subsidiaries (other than the Borrower in the case of TLGI's
Subsidiaries) at any time to (i) issue any preferred stock of any type or
nature (provided that such limitation shall not apply to any Subsidiary which
has no operations and exists solely as a special purpose finance entity, and
provided further that such limitation shall not prohibit the issuance of
preferred stock to TLGI or any Wholly-Owned Subsidiary of TLGI), or (ii)
except in the case of an Unrestricted Subsidiary which engages in a Permitted
Receivables Securitization, agree by contract or otherwise to any restriction
on the right and ability of such Subsidiary to declare and pay dividends and
make other distributions to its shareholders (other than the restrictions set
forth in this Agreement and the other Loan Documents). TLGI and the Borrower
will not permit any Indebtedness owed by them to any Subsidiaries to be
secured pursuant to the Collateral Trust Agreement unless (a) the Subsidiary
to which such Indebtedness is owed is a Finance Subsidiary which is a
Wholly-Owned Subsidiary, (b) the security interest securing such Indebtedness
is subordinated in accordance with the terms and conditions of the Collateral
Trust Agreement, (c) all shares of capital stock or other equity interests of
such Subsidiary are pledged under the terms of the Collateral Trust
Agreement, (d) such Subsidiary has no obligations other than Indebtedness
owed to TLGI or the Borrower or an Affiliate of TLGI, and other than
obligations to purchase accounts receivable or other financial assets of an
Affiliate of TLGI, (e) such Subsidiary has no material assets other than (i)
Indebtedness owed to it by TLGI or the Borrower or an Affiliate of TLGI, (ii)
Investments in other Finance Subsidiaries which are Wholly-Owned Subsidiaries
and (iii) the accounts receivable and other financial assets described in the
foregoing CLAUSE (d), and (f) such Subsidiary has no activities or operations
other than the issuance of its capital stock or other equity interests and
the purchase and administration of the accounts receivable and other
financial assets described in the foregoing CLAUSE (d), and other than the
holding by it of Indebtedness, accounts receivable and other financial assets
described in the foregoing CLAUSE (e).
7.28. SUBSIDIARIES' STOCK. TLGI and the Borrower will cause:
(a) each Canadian Subsidiary incorporated under the laws of British
Columbia, the shares of which are Pledged Shares under the Collateral Trust
Agreement, to ensure that its constating documents do not contain any
restrictions on a transfer of such Pledged Shares pursuant to the due
exercise of the Trustee's powers under the Collateral Trust Agreement;
(b) the board of directors of each Canadian Subsidiary incorporated
under the laws of Nova Scotia or ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island, the shares of which
are Pledged Shares under the Collateral Trust Agreement, to pass a resolution
consenting to a transfer of such Pledged Shares pursuant to the due exercise
of the Trustee's powers under the Collateral Trust Agreement; and
72
(c) the directors and shareholders of each Canadian Subsidiary
incorporated under the federal laws of Canada, or the laws of Quebec,
Ontario, Manitoba, Saskatchewan or Alberta, the share of which are Pledged
Shares under the Collateral Trust Agreement, to execute and deliver an
unanimous shareholders agreement to the Trustee providing for the consent of
the shareholders to a transfer of such Pledged Shares pursuant to the due
exercise of the Trustee's powers under the Collateral Trust Agreement.
Except as set out in clauses (d) and (e) below or as otherwise consented to
by the Agent in its sole discretion, TLGI and the Borrower will, and will
cause each Subsidiary (other than a Canadian Subsidiary), the shares or other
equity interests of which are Pledged Shares under the Collateral Trust
Agreement, to take any and all actions necessary to ensure that there are no
restrictions on a transfer of such Pledged Shares pursuant to the due
exercise of the Trustee's powers under the Collateral Trust Agreement, except
with respect to any and all restrictions under applicable law. The
foregoing sentence does not apply to:
(d) the interests of TLGI, the Borrower or any Pledgor Subsidiary in
any limited partnership or limited liability company where the restriction is
required to preserve the tax status of the entity; and
(e) the shares listed on SCHEDULE 6 hereto.
The actions described in this SECTION 7.28 must be completed with
respect to any Subsidiary no later than 90 days after any of such
Subsidiary's shares become Pledged Shares under the Collateral Trust
Agreement.
The terms "Pledged Shares", "Trustee" and "Applicable Law", as used in
this SECTION 7.28, have the meanings specified in the Collateral Trust
Agreement.
7.29. SYNTHETIC LEASES. TLGI and the Borrower will not, nor will
either permit any Subsidiary of it to, be an obligor in respect of any
Synthetic Lease except for Synthetic Leases as to which the aggregate
Synthetic Lease Obligations of TLGI, the Borrower and such Subsidiaries at
any time shall not exceed $100,000,000.
7.30. DELIVERIES REGARDING PLEDGOR SUBSIDIARIES. TLGI and the
Borrower shall deliver to the Agent a copy (each document identified below to be
dated and/or certified as of a date reasonably acceptable to the Agent not more
than 30 days prior to the date of delivery thereof to the Agent), with respect
to each Pledgor Subsidiary, of such Pledgor Subsidiary's (i) articles of
incorporation or comparable constitutive documents, together with all material
amendments, and, to the extent applicable, a certificate of good standing, in
each case certified by the appropriate governmental officer in the relevant
jurisdiction of organization, (ii) by-laws or comparable constitutive laws,
rules or regulations certified by the Secretary, Assistant Secretary or other
appropriate officer or director of it, (iii) board of directors' resolutions,
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certified by the Secretary, Assistant Secretary or other appropriate officer
or director of such Pledgor Subsidiary (and resolutions of other bodies, if
any are deemed necessary by counsel for the Agent) authorizing the execution
and performance by such Pledgor Subsidiary of the Collateral Trust Agreement,
and (iv) incumbency certificates, executed by the Secretary or Assistant
Secretary or other appropriate officer or director of such Pledgor
Subsidiary, which shall identify by name and title and bear the signature of
the officers of such Pledgor Subsidiary authorized to sign the certificates
set forth in CLAUSES (ii) and (iii) and authorized to execute the Joinder
Agreement (as defined in the Collateral Trust Agreement) to be delivered by
such Pledgor Subsidiary pursuant to the Collateral Trust Agreement, upon
which certificate the Agent shall be entitled to rely until informed of any
change in writing by such Pledgor Subsidiary; in each case (of CLAUSES (i),
(ii), (iii), and (iv)) to the extent such documents have not previously been
delivered to the Agent or the Collateral Agent under the Original Agreement,
the Original Amended Agreement, this Agreement or the Collateral Trust
Agreement.
The actions described in this SECTION 7.30 must be completed with
respect to any Pledgor Subsidiary no later than 90 days after any such
Pledgor Subsidiary becomes a Pledgor Subsidiary under the Collateral Trust
Agreement or this Agreement; PROVIDED, HOWEVER, that with regard to ▇▇▇▇▇▇
Luxembourg (No. 1) S.A., the actions described in this SECTION 7.30 must be
completed no later than May 1, 1998.
7.31. UNRESTRICTED SUBSIDIARIES. TLGI and the Borrower will not permit
any Unrestricted Subsidiary to own any material assets or other material
properties other than (a) Consumer Finance Receivables, (b) cash or cash
equivalent investments held by a national bank or money market fund with
assets of not less than $500,000,000, (c) assets incidental to the business
of the Unrestricted Subsidiary, and (d) any proceeds of the foregoing.
ARTICLE VIII
DEFAULTS
8 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a Default:
8.1. Any representation or warranty made or deemed made by or on
behalf of TLGI, the Borrower or any Pledgor Subsidiary to the Lenders or the
Agent under or in connection with this Agreement, any Revolving Loan, any Swing
Line Loan, any Letter of Credit, any Guaranty, the Collateral Trust Agreement,
any other Loan Document or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made or deemed made.
8.2. Nonpayment of principal of any Revolving Loan or Swing Line Loan
when due, or nonpayment of interest upon any Revolving Loan or Swing Line Loan
or of any commitment fee or other obligations (including, without limitation,
Reimbursement Obligations)
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under any of the Loan Documents within three Business Days after the same
becomes due.
8.3. The breach by TLGI, the Borrower or any Subsidiary of either of
any of the terms or provisions of SECTION 7.2, SECTION 7.3(a), SECTIONS 7.10
through 7.14, or SECTIONS 7.16 through 7.27; PROVIDED, HOWEVER, any failure
to provide notice of any Unmatured Default pursuant to SECTION 7.3(a) shall
not give rise to a Default under this SECTION 8.3 if such Unmatured Default
may be cured pursuant to the terms of this Agreement and is in fact cured
prior to maturing into a Default.
8.4. The breach by TLGI, the Borrower or any Subsidiary of either
(other than a breach which constitutes a Default under SECTION 8.1, 8.2 or
8.3) of any of the terms or provisions of this Agreement or any other Loan
Document which is not remedied within the earlier to occur of (x) 30 days
after written notice from the Agent or any Lender or (y) 30 days after any
Executive Officer first has knowledge thereof.
8.5. Failure of TLGI, the Borrower or any Subsidiaries of either to
pay any Indebtedness equal to or exceeding $5,000,000 in the aggregate for
TLGI, the Borrower and such Subsidiaries when due; or the default by TLGI,
the Borrower or any Subsidiaries of either in the performance of any term,
provision or condition contained in any agreement under which any
Indebtedness equal to or exceeding $5,000,000 in the aggregate for TLGI, the
Borrower and such Subsidiaries was created or is governed, or any other event
shall occur or condition exist the effect of which is to cause, or to permit
the holder or holders of such Indebtedness to cause, such Indebtedness to
become due prior to its stated maturity; or any Indebtedness of TLGI, the
Borrower or any Subsidiaries of either equal to or exceeding $5,000,000 in
the aggregate for all such Persons shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof; or TLGI, the Borrower or any Subsidiary of
either shall not pay, or shall admit in writing its inability to pay, its
debts generally as they become due.
8.6. TLGI, the Borrower or any Subsidiary of either shall (a) have an
order for relief entered with respect to it under the United States
bankruptcy laws as now or hereafter in effect or cause or allow any similar
event to occur under any bankruptcy or similar law or laws for the relief of
debtors as now or hereafter in effect in any other jurisdiction, (b) make an
assignment for the benefit of creditors, (c) apply for, seek, consent to or
acquiesce in the appointment of a receiver, custodian, trustee, examiner,
liquidator, monitor or similar official for it or any of its Property, (d)
institute any proceeding seeking an order for relief under the United States
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or any of its
Property or its debts under any law relating to bankruptcy, insolvency or
reorganization or compromise of debt or relief of debtors as now or hereafter
in effect in any jurisdiction including, without limitation, any application
under The Bankruptcy and Insolvency Act (Canada) or The Companies' Creditors
Arrangement Act (Canada), the filing of a proposal or notice under The
Bankruptcy and Insolvency Act (Canada)
75
or any organization, arrangement or compromise of debt under the laws of its
jurisdiction of incorporation or fail to promptly file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (e) take any corporate action to authorize or effect any of the
foregoing actions set forth in this SECTION 8.6, or (f) fail to contest in
good faith any appointment or proceeding described in SECTION 8.7.
8.7. Without the application, approval or consent of TLGI, the
Borrower or any Subsidiary of either, a receiver, custodian, trustee,
examiner, liquidator or similar official shall be appointed (either privately
or by a court) for TLGI, the Borrower or any Subsidiary or any of its
Property, or a proceeding described in SECTION 8.6(d) shall be instituted
against TLGI, the Borrower or any Subsidiary and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a
period of 30 consecutive days.
8.8. Any court, government or Governmental Authority shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"CONDEMNATION"), all or any portion of the Property of TLGI, the Borrower or
any of the Subsidiaries of either which, when taken together with all other
Property of TLGI, the Borrower and such Subsidiaries so condemned, seized,
appropriated or taken custody or control of, during the twelve-month period
ending with the month in which any such Condemnation occurs, constitutes a
Substantial Portion.
8.9. TLGI, the Borrower or any Subsidiary of either shall fail within
30 days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $5,000,000, unless such judgment or order has
been stayed on appeal or otherwise is being appropriately contested in good
faith and against which appropriate reserves have been established in
accordance with GAAP (provided that, in any event, execution of such judgment
or order has been effectively stayed and no execution thereof has commenced
and is continuing).
8.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $5,000,000 or any Reportable Event, the occurrence of
which may reasonably be expected to give rise to a Material Adverse Effect,
shall occur in connection with any Plan, or a contribution failure sufficient
to give rise to a lien under section 302(f) of ERISA shall occur with respect
to any Single Employer Plan.
8.11. TLGI or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans
by TLGI or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $5,000,000 or
requires payments exceeding $1,000,000 per annum.
8.12. TLGI or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in
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reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of TLGI and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years
of each such Multiemployer Plan immediately preceding the plan year in which
the reorganization or termination occurs by an amount exceeding $1,000,000.
8.13. TLGI, the Borrower or any Subsidiary of either shall be the
subject of any proceeding or investigation pertaining to the release by TLGI,
the Borrower or any such Subsidiary or any other Person of any toxic or
hazardous waste or substance into the environment, or any violation of any
environmental, health or safety law or regulation of any Governmental
Authority, which, in either case, could reasonably be expected to have a
Material Adverse Effect.
8.14. Any Change of Control shall occur.
8.15. Any Guaranty shall fail to remain in full force or effect, or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to perform its
obligations under or otherwise comply with any of the terms or provisions of
any Guaranty to which it is a party, or any Guarantor shall deny that it has
any further liability under any Guaranty to which it is a party, or shall
give notice to such effect.
8.16. Except as contemplated by the last paragraph of SECTION 7.26, the
Collateral Trust Agreement shall fail to remain in full force or effect, or
any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Collateral Trust Agreement, or any pledgor thereunder
shall fail to perform its obligations under or otherwise comply with any of
the terms or provisions of the Collateral Trust Agreement, or any pledgor
thereunder shall deny that it has any further liability under the Collateral
Trust Agreement, or shall give notice to such effect, or any portion of the
shares of stock pledged, or security interests granted, pursuant to the
Collateral Trust Agreement shall cease to be validly perfected in favor of
the Collateral Agent for the benefit of the Secured Parties, or (except as
otherwise provided in the Collateral Trust Agreement and except to the extent
such pledged shares represent Minority Interests) such pledged shares shall
fail to represent 100% of the outstanding shares of stock of the Subsidiaries
whose shares of stock are subject to the Collateral Trust Agreement.
8.17. A Material Judgment Event shall have occurred and 90 days shall
have passed without one or more of the judgments, awards or other orders
giving rise to such Material Judgment Event having been vacated such that on
such 90th day the aggregate amount of all judgments, awards and orders
entered against any of TLGI, the Borrower or any of their respective
Subsidiaries which shall have been outstanding for at least 90 days without
having been finally satisfied in full or vacated shall be in excess of
$100,000,000.
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ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. ACCELERATION. If any Default described in SECTION 8.6 or 8.7
occurs with respect to TLGI or the Borrower (but not with respect to any
other Subsidiary), the obligations of the Lenders to make Revolving Loans or
purchase participations in Swing Line Loans and Letters of Credit hereunder
and the obligation of the Swing Line Lender to make Swing Line Loans and the
obligation of the L/C Issuer to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent, the L/C
Issuer, the Swing Line Lender or any Lender. If any other Default occurs,
the Required Lenders may (a) terminate or suspend the obligations of the
Lenders to make Revolving Loans and purchase participations in Swing Line
Loans and Letters of Credit hereunder, whereupon the obligation of the Swing
Line Lender to make Swing Line Loans and the obligation of the L/C Issuer to
issue Letters of Credit hereunder shall also terminate or be suspended, or
(b) declare the Obligations to be due and payable, whereupon the Obligations
shall become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which TLGI and the Borrower hereby
expressly waive, or (c) take the action described in both the preceding
CLAUSE (a) and the preceding CLAUSE (b).
If, within 30 days after acceleration of the maturity of the Obligations
or termination of the obligations of the Lenders to make Revolving Loans
hereunder as a result of any Default (other than any Default as described in
SECTION 8.6 or 8.7 with respect to TLGI, the Borrower or any other
Subsidiary) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice to TLGI
and the Borrower, rescind and annul such acceleration and/or termination.
9.2. AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders), TLGI and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents
or changing in any manner the rights of the Lenders, TLGI or the Borrower
hereunder or waiving any Default hereunder; PROVIDED, HOWEVER, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
(a) extend the Commitment of any Lender, extend the maturity of any
Revolving Loan, extend the final maturity beyond the Facility Termination
Date of any Swing Line Loan or Reimbursement Obligation, extend the expiry
date of any Letter of Credit beyond the date which is five Business Days
immediately preceding the Facility Termination Date, or forgive all or any
portion of the principal amount of any Revolving Loan, Swing Line Loan or
Reimbursement Obligation or any interest or fees, or reduce the rate or
extend the time of payment of interest or fees on any Revolving Loan, Swing
Line Loan, Reimbursement Obligation, Commitment or Letter of Credit;
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(b) reduce the percentage specified in the definition of Required
Lenders;
(c) reduce the amount or extend the payment date for the mandatory
payments required under SECTION 2.2, 2.19 or 2.20, reduce the amount of or
extend the reduction date for any mandatory reduction of the Aggregate
Commitment required by SECTION 2.10(b), or increase the amount of the
Commitment of any Lender hereunder, or permit TLGI or the Borrower to assign
its rights under this Agreement;
(d) amend this SECTION 9.2 or SECTION 13.1(a);
(e) release any Guarantor other than in connection with an Approved
Sale or other than as contemplated by the last paragraph of SECTION 7.26 or
as set forth in the Collateral Trust Agreement; or
(f) prior to the appointment of Enforcement Representatives under
(and as defined in) the Collateral Trust Agreement, release any collateral
pledged pursuant to the Collateral Trust Agreement other than in connection
with an Approved Sale or as contemplated by the last paragraph of SECTION
7.26.
Following the appointment of any Enforcement Representatives under (and as
defined in) the Collateral Trust Agreement, the Lenders and the Agent agree
that any instructions or directions to be given by the Lenders to the
Enforcement Representatives appointed by the Lender shall be valid if given
by action of the Required Lenders and any action to be taken by them with
respect to enforcement or other remedies shall be taken solely in accordance
with the terms of the Collateral Trust Agreement. The Lenders and the Agent
agree (unless otherwise approved by all of the Lenders) that any vote to be
taken by the Lenders under the terms of the Collateral Trust Agreement
(whether involving the release of collateral pledged thereunder, enforcement
actions, amendments, waivers or otherwise) shall be taken solely by the Agent
casting votes on behalf of each Lender, such votes to be cast identically by
the Agent on behalf of each Lender and to be based upon the actions (if any)
of the Lenders taken pursuant to, and in accordance with, the terms of this
Agreement. No amendment of any provision of this Agreement relating in any
way to the Agent shall be effective without the written consent of the Agent.
No amendment of any provision of this Agreement relating in any way to the
L/C Issuer or any or all of the Letters of Credit shall be effective without
the written consent of the L/C Issuer and the Agent. No amendment of any
provision of this Agreement relating in any way to the Swing Line Lender, the
Swing Line Commitment or any or all of the Swing Line Loans shall be
effective without the written consent of the Swing Line Lender and the Agent.
No amendment of any provision of this Agreement relating in any way to the
Documentation Agent shall be effective without the written consent of the
Documentation Agent. The Agent may waive payment of the fee required under
SECTION 13.3.2 without obtaining the consent of any other party to this
Agreement.
9.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or
any of
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them or the Agent, the Documentation Agent, the L/C Issuer or the Collateral
Agent to exercise any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or an acquiescence therein, and
the making of a Revolving Loan or a Swing Line Loan or the issuance of a
Letter of Credit notwithstanding the existence of a Default or the inability
of the Borrower to satisfy the conditions precedent to such Revolving Loan or
Swing Line Loan or Letter of Credit shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions
or provisions of the Loan Documents whatsoever shall be valid unless in
writing signed by (or with the consent of) the Lenders required pursuant to
SECTION 9.2, and then only to the extent specifically set forth in such
writing. All remedies contained in the Loan Documents or afforded by law
shall be cumulative and all shall be available to the Agent, the Lenders, the
L/C Issuer and the Collateral Agent (and to the extent expressly set forth,
the Documentation Agent) until the Obligations have been paid in full.
ARTICLE X
GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties
of TLGI and the Borrower contained in this Agreement shall survive the
occurrence of the effectiveness of this Agreement and the making of the
Revolving Loans and the Swing Line Loans and the issuance of the Letters of
Credit herein contemplated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower and the L/C Issuer shall not be obligated to issue any Letter
of Credit in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. STAMP DUTIES. The Borrower shall pay and forthwith on demand
indemnify each of the Agent, each Lender and the L/C Issuer against any
liability it incurs in respect of any stamp, registration and similar tax
which is or becomes payable in connection with the entry into, performance or
enforcement of any Loan Document.
10.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT; INDEPENDENCE OF COVENANTS. The Loan Documents
(together with the fee letter agreement described herein) embody the entire
agreement and understanding among TLGI, the Borrower, the Agent, the Lenders,
the L/C Issuer and the Collateral Agent and supersede all prior agreements
and understandings among TLGI, the Borrower, the Agent, the Lenders, the L/C
Issuer and the Collateral Agent relating to the subject
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matter thereof. Except as otherwise expressly provided herein, no provision
of this Agreement shall be construed as waiving, negating or otherwise
qualifying any restriction, limitation or other condition imposed by any
other provision of this Agreement.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any
of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
10.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Agent and the Documentation Agent for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges
of attorneys for the Agent) paid or incurred by the Agent or the
Documentation Agent in connection with the preparation, negotiation,
execution, delivery, review, amendment, modification and administration of
the Loan Documents. Such costs, charges and out-of-pocket expenses shall
include, without limitation, those arising in connection with the litigation
audit conducted by the Agent and its counsel, and all such costs, charges and
out-of-pocket expenses shall be payable regardless of whether the
transactions contemplated by this Agreement and the other Loan Documents
shall ever be consummated. TLGI and the Borrower also agree to reimburse the
Agent, the L/C Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges
of attorneys for the Agent, the L/C Issuer and the Lenders, which attorneys
may be employees of the Lenders) paid or incurred by the Agent, the L/C
Issuer or any Lender in connection with the collection and enforcement of the
Loan Documents. TLGI and the Borrower further agree to indemnify the Agent,
the Documentation Agent, the L/C Issuer and each Lender, and their respective
directors, officers, partners and employees, against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent, the Documentation Agent, the L/C Issuer or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to
this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Revolving Loan, Swing Line Loan or Letter of Credit
hereunder. Without limiting the generality of the foregoing, in the event
that any of the Agent, the Documentation Agent, the L/C Issuer or any Lender
(each an "INDEMNIFIED PARTY") becomes involved in any capacity in any action,
proceeding or investigation brought by or against any Person, including
stockholders of TLGI, in connection with or as a result of either the
arrangements evidenced by this Agreement and the other Loan Documents or any
matter referred to herein or therein, TLGI and the Borrower, jointly and
severally, periodically will reimburse such Indemnified Party for its
reasonable legal and other expenses (including the cost of any investigation
and preparation) incurred in connection therewith. TLGI and the Borrower,
jointly and severally, also will indemnify and hold such Indemnified Party
harmless against any and all losses, claims, damages
81
or liabilities to any such Person in connection with or as a result of either
the arrangements evidenced by this Agreement and the other Loan Documents or
any matter referred to herein or therein, except to the extent that any such
loss, claim, damage or liability results from the gross negligence or bad
faith of such Indemnified Party in performing the services that are the
subject hereof. If for any reason the foregoing indemnification is
unavailable to an Indemnified Party or insufficient to hold it harmless, then
TLGI and the Borrower, jointly and severally, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the
relative economic interests of TLGI, the Borrower and their stockholders on
the one hand and such Indemnified Party on the other hand in the matters
contemplated herein as well as the relative fault of TLGI, the Borrower and
such Indemnified Party with respect to such loss, claim, damage or liability
and any other relevant equitable considerations. The reimbursement,
indemnity and contribution obligations of TLGI and the Borrower hereunder
shall be in addition to any liability which TLGI and the Borrower may
otherwise have, shall extend upon the same terms and conditions to any
Affiliate of any Indemnified Party and the partners, directors, agents,
employees and controlling Persons (if any), as the case may be, of such
Indemnified Party and any such Affiliate, and shall be binding upon and inure
to the benefit of any successors, assigns, heirs and personal representatives
of TLGI, the Borrower, the Indemnified Parties, any such Affiliate and any
such Person. TLGI and the Borrower also agree that neither any Indemnified
Party nor any of such Affiliates, partners, directors, agents, employees or
controlling Persons shall have any liability to TLGI, the Borrower, any
Person asserting claims on behalf of or in right of TLGI or the Borrower or
any other Person in connection with or as a result of either the arrangements
evidenced by this Agreement and the other Loan Documents or any matter
referred to herein or therein except to the extent that any losses, claims,
damages, liabilities or expenses incurred by TLGI or the Borrower result from
the gross negligence or bad faith of such Indemnified Party in performing the
services that are the subject hereof. The obligations of TLGI and the
Borrower under this SECTION 10.7 shall survive the termination of this
Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing documents
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may retain one and furnish one to each of the
Lenders.
10.9. ACCOUNTING; CURRENCY CONVERSIONS. Except as provided to the
contrary herein, all accounting terms used herein shall be interpreted and
all accounting determinations hereunder shall be made in accordance with
Agreement Accounting Principles; PROVIDED, HOWEVER, that (a) to the extent
that any change in GAAP shall alter the result of any financial covenant or
test or any other accounting determination to be computed or made hereunder,
TLGI and the Borrower agree that such covenant, test or other determination
shall continue to be computed or made on the basis of Agreement Accounting
Principles as in effect prior to such change in GAAP, unless the Required
Lenders shall otherwise consent and (b) the MIPS shall be deemed to
constitute capital stock of TLGI for purposes of this Agreement. To the
extent that for purposes of computing any financial covenant or test or
making any other accounting determination hereunder, any amount denominated
in one currency must be converted into
82
another currency, such conversion shall be made in a manner that accords with
the currency conversion policies and procedures used in preparing the
financial statements of TLGI, the Borrower and the other Subsidiaries on the
basis of which the relevant computations or determinations are or will be
made, unless the Required Lenders shall have specified an alternative basis
for making such conversions.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
10.11. NONLIABILITY OF LENDERS. The relationship between the Borrower,
on the one hand, and the Lenders, the L/C Issuer and the Agent, on the other
hand, shall be solely that of borrower and lender and the relationship
between TLGI and the Subsidiaries (other than the Borrower), on the one hand,
and the Lenders, the L/C Issuer and the Agent, on the other hand, shall be
construed accordingly. None of the Agent, the L/C Issuer or any Lender shall
have any fiduciary responsibilities to TLGI, the Borrower or any other
Subsidiary. None of the Agent, the L/C Issuer or any Lender undertakes any
responsibility to TLGI, the Borrower or any other Subsidiary to review or
inform TLGI, the Borrower or any other Subsidiary of any matter in connection
with any phase of the business or operations of TLGI, the Borrower or any
other Subsidiary.
10.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL
LAWS APPLICABLE TO NATIONAL BANKS.
10.13. CONSENT TO JURISDICTION. EACH OF TLGI AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH OF TLGI
AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT, THE L/C ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST TLGI OR THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
TLGI OR THE BORROWER AGAINST THE AGENT, THE L/C ISSUER OR ANY LENDER OR ANY
AFFILIATE OF
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THE AGENT, THE L/C ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT SITTING IN NEW
YORK CITY.
EACH OF THE BORROWER AND TLGI HEREBY IRREVOCABLY APPOINTS THELEN,
MARRIN, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE
HEREOF AT ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
ATTENTION: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ESQ., AS ITS AGENT TO RECEIVE ON BEHALF OF THE
BORROWER OR TLGI, AS APPLICABLE, AND ITS PROPERTY SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A
COPY OF SUCH PROCESS TO THE BORROWER OR TLGI, AS APPLICABLE, IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS WITH A COPY TO THE
BORROWER OR TLGI, AS APPLICABLE, AT ITS ADDRESS FOR NOTICES HEREUNDER, AND
THE BORROWER OR TLGI, AS APPLICABLE, HEREBY IRREVOCABLY AUTHORIZES AND
DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, EACH OF TLGI AND THE BORROWER ALSO IRREVOCABLY
CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO ITS ADDRESS FOR
NOTICES HEREUNDER. EACH OF TLGI AND THE BORROWER AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
10.14. WAIVER OF JURY TRIAL. TLGI, THE BORROWER, THE AGENT, THE L/C
ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
10.15. CONFIDENTIALITY. Each of the Agent, each Lender and the L/C
Issuer agrees to hold any confidential information identified in writing as
such which it may receive from TLGI, the Borrower or any other Subsidiary
pursuant to this Agreement in confidence, except for disclosure (a) to other
Lenders, the L/C Issuer and the Agent and their respective Affiliates, (b) to
legal counsel, accountants and other professional advisors to the Agent, the
L/C Issuer or that Lender or to a Transferee, (c) to regulatory officials and
examiners, (d) to any Person as requested pursuant to or as required by law,
regulation or legal process, (e) to any Person in connection with any legal
proceeding to which the Agent, the L/C Issuer or that Lender is a party, and
(f) permitted by SECTION 13.4.
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10.16. JUDGMENT CURRENCY. If the Agent, the L/C Issuer or any Lender
receives an amount in respect of the Borrower's or TLGI's liability under the
Loan Documents or if that liability is converted into a claim, proof,
judgment or order in a currency other than the currency (the "contractual
currency") in which the amount is expressed to be payable under the relevant
Loan Document, (a) TLGI and the Borrower, as applicable, shall indemnify the
Agent, the L/C Issuer or such Lender, as applicable, as an independent
obligation against any loss, cost, expense or liability arising out of or as
a result of the conversion; (b) if the amount received by the Agent, the L/C
Issuer or such Lender, as applicable, when converted into the contractual
currency at a market rate on the date of receipt by the Agent, the L/C Issuer
or such Lender in the usual course of its business, is less than the amount
owed in the contractual currency, the Borrower or TLGI, as applicable, shall
forthwith on demand pay to the Agent, the L/C Issuer or such Lender, as
applicable, an amount in the contractual currency equal to the deficit; and
(c) TLGI or the Borrower, as applicable, shall pay to the Agent, the L/C
Issuer or such Lender, as applicable, on demand any exchange costs and taxes
payable in connection with any such conversion. Each of the Borrower and
TLGI waives any right it may have in any jurisdiction to the extent permitted
by law to pay any amount under the Loan Documents in a currency other than
that in which it is expressed to be payable.
10.17. CANADIAN INTEREST ANTIDOTES. (a) Notwithstanding any other
provision of this Agreement, if and to the extent that the laws of Canada are
applicable to interest payable under this Agreement, no interest on the
credit advanced will be payable in excess of that permitted by the laws of
Canada. If the effective annual rate of interest, calculated in accordance
with generally accepted actuarial practices and principles, would exceed 60%
(or such other rate as the Parliament of Canada may determine from time to
time as the criminal rate) on the credit advanced, then: (i) the amount of
any charges for the use of money, expenses, fees, bonuses, commissions or
other charges payable in connection therewith will be reduced to the extent
necessary to eliminate such excess; (ii) any remaining excess that has been
paid will be credited towards repayment of the principal amount; and (iii)
any overpayment that may remain after such crediting will be returned
forthwith on demand. In this paragraph the terms "interest," "criminal rate"
and "credit advanced" have the meaning ascribed to them in Section 347 of the
Criminal Code (Canada).
(b) If and to the extent that the laws of Canada are applicable to
interest payable under this Agreement, for the purpose of the Interest Act
(Canada) the yearly rate of interest to which interest calculated on the
basis of a 360- or 365-day year is equivalent is the rate of interest
determined as herein provided multiplied by the number of days in such year
and divided by 360 or 365, as the case may be.
10.18. COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement shall become effective on the
Effective Date.
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ARTICLE XI
THE AGENT AND THE DOCUMENTATION AGENT
11.1. APPOINTMENT. Bank of Montreal is hereby appointed Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the agent of such Lender. The
Agent agrees to act as such upon the express conditions contained in this
ARTICLE XI. The Agent shall not have a fiduciary relationship in respect of
TLGI, the Borrower, any other Subsidiary or any Lender by reason of this
Agreement.
11.2. POWERS. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to
the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent.
11.3. GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any or all of TLGI, the
Borrower, any other Subsidiary, the Lenders or the L/C Issuer for any action
taken or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith except for its or their own
gross negligence or willful misconduct.
11.4. NO RESPONSIBILITY FOR REVOLVING LOANS, SWING LINE LOANS,
RECITALS, ETC. Neither the Agent nor any of its 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 extension of credit hereunder; (b)
the performance or observance of any of the covenants or agreements of any
obligor under any Loan Document, including, without limitation, any agreement
by an obligor to furnish information directly to each Lender; (c) the
satisfaction of any condition specified in ARTICLE IV, except receipt of
items required to be delivered to the Agent; or (d) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Agent shall have no duty to
disclose to the Lenders or the L/C Issuer information that is not required to
be furnished by TLGI or the Borrower to the Agent at such time, but is
voluntarily furnished by TLGI or the Borrower to the Agent (either in its
capacity as Agent or in its individual capacity).
11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent 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 or, in the case of any act or failure to act calculated to give
rise to any of the events or circumstances described in CLAUSES (a) through (f)
of SECTION 9.2, each affected Lender, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders of Revolving Loans and participations in Swing Line Loans,
Reimbursement Obligations and
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Letters of Credit. The Agent 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.
11.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of
its duties as 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 or the L/C Issuer, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder and under any other Loan Document.
11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to
rely upon any record, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons and,
with respect to legal matters, upon the opinion of counsel selected by the
Agent, which counsel may be employees of the Agent.
11.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (a) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(b) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents to the extent not otherwise reimbursed by
the Borrower 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 the Agent 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, or the enforcement of any of the terms thereof or of
any such other documents, PROVIDED that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this SECTION
11.8 shall survive payment of the Obligations and termination of this
Agreement.
11.9. RIGHTS AS A LENDER. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other
Loan Document as any Lender and may exercise the same as though it were not
the Agent, and the term "Lender" or "Lenders" shall, at any time when the
Agent is a Lender, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent 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 TLGI, the Borrower or any other Subsidiary in which TLGI,
the Borrower or any such other Subsidiary is not restricted
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hereby from engaging with any other Person.
11.10. LENDERS' CREDIT DECISIONS. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and
based on the financial statements prepared by TLGI and the Borrower 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 Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
11.11. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders, the L/C Issuer and the Borrower, such
resignation to be effective upon the appointment of a successor Agent or, if
no successor Agent has been appointed, 45 days after the resigning Agent
gives notice of its intention to resign. The Agent shall so resign if at any
time it ceases to be a Lender. Upon any such resignation the Required
Lenders shall have the right to appoint, on behalf of the Lenders, a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders within 30 days after the resigning Agent's giving notice of
its intention to resign, then the resigning Agent may appoint, on behalf of
the Lenders, a successor Agent. If the Agent has resigned and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender (except for payments required to be made
directly to the L/C Issuer) and for all other purposes shall deal directly
with the Lenders and the L/C Issuer. 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 $500,000,000. 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 the 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
XI 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 the Agent
hereunder and under the other Loan Documents.
11.12. AGENT'S FEE. The Borrower agrees to pay to the Agent, for its
own account, the fees agreed to by the Borrower and the Agent pursuant to
that certain letter agreement dated as of March 13, 1998, or as otherwise
agreed from time to time.
11.13. DOCUMENTATION AGENT. The Documentation Agent shall have no
rights, duties, liabilities or obligations under or in connection with this
Agreement except for such rights as are expressly granted to it in this
Agreement, including in SECTION 10.7, and the Documentation Agent shall not
have any fiduciary relationship in respect of TLGI, the Borrower,
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any other Subsidiary or any Lender by reason of this Agreement.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders and the L/C Issuer under applicable law, if TLGI or the Borrower
becomes insolvent, however evidenced, or any Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or the L/C Issuer to or for the credit or account
of TLGI or the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender or the L/C Issuer, whether or not the
Obligations, or any part hereof, shall then be due.
12.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Revolving Loans or its participation in Swing
Line Loans, Reimbursement Obligations or Letters of Credit (other than
payments received pursuant to SECTION 3.1, 3.2 or 3.4) in a greater
proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Revolving Loans and the
participations in Swing Line Loans, Reimbursement Obligations and Letters of
Credit held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Revolving Loans and its ratable participation
in Swing Line Loans, Reimbursement Obligations and Letters of Credit. If any
Lender, whether in connection with setoff or amounts which might be subject
to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary such that all
Lenders share in the benefits of such collateral ratably in proportion to
their Revolving Loans, L/C Interest and Swing Line Interest. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of TLGI, the Borrower,
the Agent, the Documentation Agent, the Collateral Agent, the L/C Issuer and the
Lenders and their respective successors and assigns, except that (a) neither
TLGI nor the Borrower shall have the right to assign its rights or obligations
under the Loan Documents and (b) any assignment by any Lender (including the
Swing Line Lender) must be made in compliance with SECTION 13.3.
Notwithstanding CLAUSE (b) of the preceding sentence, any Lender may at any
time, without the consent of TLGI, the Borrower, the Agent, the Collateral Agent
or the L/C Issuer, assign all or any portion of its rights under this Agreement
to a Federal Reserve Bank; PROVIDED, HOWEVER,
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that no such assignment to a Federal Reserve Bank shall release the
transferor Lender from its obligations hereunder. In order to facilitate
such assignment, the Borrower hereby agrees that, upon request of any Lender
at any time and from time to time after the Borrower has made its initial
borrowing hereunder, the Borrower shall provide to such Lender, at the
Borrower's own expense, a promissory note, substantially in the form of
EXHIBIT A hereto, evidencing the Revolving Loans owing to such Lender. The
Agent may treat the payee of any Revolving Loan as the owner thereof for all
purposes hereof unless and until such payee complies with SECTION 13.3 in the
case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Agent. Any assignee or
transferee of a Revolving Loan, a Swing Line Loan, a participation in a Swing
Line Loan, a participation in a Letter of Credit or a participation in a
Reimbursement Obligation agrees by acceptance thereof to be bound by all the
terms and provisions of the Loan Documents, and any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Revolving Loan, Swing Line Loan,
participation in a Swing Line Loan, participation in a Letter of Credit or
participation in a Reimbursement Obligation, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Revolving Loan,
Swing Line Loan, participation in a Swing Line Loan, participation in a
Letter of Credit or participation in a Reimbursement Obligation.
13.2. PARTICIPATIONS.
13.2.1 PERMITTED PARTICIPATIONS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities (each such bank or
other entity being referred to herein as a "PARTICIPANT") participating
interests in any Revolving Loan owing to such Lender, any Swing Line
Interest or L/C Interest held by such Lender, the Commitment of such Lender
or any other interest of such Lender under the Loan Documents; PROVIDED,
HOWEVER, that no Lender shall grant a participating interest to any entity
which is engaged in any business which is competitive in any material
respect with the business of TLGI, the Borrower or any of the Subsidiaries
of TLGI. 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 holder of any such Revolving
Loan, Swing Line Interest or L/C Interest for all purposes under the Loan
Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests
and TLGI, the Borrower, the L/C Issuer and the Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents. The participation
agreement effecting the sale of any participating interest shall contain a
representation by the Participant to the effect that none of the
consideration used to make the purchase of the participating interest in
the
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Commitment, Revolving Loans, the Swing Line Loans, the Swing Line
Interests and the L/C Interests under such participation agreement are
"plan assets" as defined under ERISA and that the rights and interests of
the Participant in and under the Loan Documents will not be "plan assets"
under ERISA.
13.2.2 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 Revolving Loan,
Swing Line Loan, Swing Line Interest, L/C Interest or Commitment in which
such Participant has an interest which forgives principal, interest or fees
or reduces the interest rate or fees payable with respect to any such
Revolving Loan, Swing Line Loan, Swing Line Interest, L/C Interest or
Commitment, or postpones any date fixed for any regularly scheduled payment
of principal of, or interest or fees on, any such Revolving Loan, Swing
Line Loan, Swing Line Interest, L/C Interest or Commitment.
13.2.3 SETOFF. Each Lender's right to exercise its right of setoff
provided in SECTION 12.1 shall not be reduced or impaired by any grant by
such Lender of a participating interest to a Participant.
13.3. ASSIGNMENTS.
13.3.1 PERMITTED ASSIGNMENTS. (a) Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("PURCHASERS") all or any
part of its Commitment and outstanding Revolving Loans, Swing Line
Interests and L/C Interests, together with its rights and obligations under
the Loan Documents with respect thereto; PROVIDED, HOWEVER, that (i) each
such assignment shall be of a constant, and not a varying, percentage of
all of the assigning Lender's rights and obligations so assigned; (ii) the
amount of the Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of such assignment) may be
in the amount of such Lender's entire Commitment but otherwise shall not be
less than $5,000,000 or an integral multiple of $1,000,000 in excess of
that amount; and (iii) notwithstanding the foregoing CLAUSE (ii), (x) if
the assignment is made to a Lender or an Affiliate of the assigning Lender,
the amount of the Commitment assigned shall not be less than $1,000,000 and
(y) if the assignment is made pursuant to SECTION 2.18(a)(ii), the
Commitment assigned may be in the amount of the relevant Non-Consenting
Lender's entire remaining Commitment after giving effect to all assignments
pursuant to SECTION 2.18(a)(i). Such assignment shall be substantially in
the form of EXHIBIT D hereto or in such other form as may be agreed to by
the parties thereto. The consent of TLGI, the Borrower, the L/C Issuer and
the Agent shall be required prior to an assignment becoming effective with
respect to a Purchaser
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which is not a Lender; PROVIDED, HOWEVER, that if a Default has occurred
and is continuing, the consent of neither TLGI nor the Borrower shall
be required. Such consents shall not be unreasonably withheld.
(b) The Swing Line Lender may, in accordance with applicable law,
at any time assign to a single Purchaser all (but not less than all) of the
Swing Line Commitment and the outstanding Swing Line Loans, together with
the rights and obligations of the Swing Line Lender under the Loan
Documents with respect thereto; PROVIDED, HOWEVER, that the consent of the
Agent, the Required Lenders and the Borrower shall be required prior to
such assignment becoming effective. Such assignment shall be in such form
as the Agent, the Borrower and the Swing Line Lender shall agree. Such
assignment shall become effective on the date agreed to by the Agent and
the Swing Line Lender. Any such assignment pursuant to this
SECTION 13.3.1(b) shall be a "SWING LINE ASSIGNMENT". All provisions of
SECTION 13.3.2 shall be applicable to any Swing Line Assignment, except for
the first two sentences thereof, and except that each reference therein to
"assignment", "Lender", "Commitment" and "Revolving Loans" shall be deemed
to be references to the Swing Line Assignment, Swing Line Lender, Swing
Line Commitment and Swing Line Loans, respectively.
13.3.2 EFFECT; EFFECTIVE DATE OF ASSIGNMENTS. Solely with respect
to assignments under SECTION 13.3.1(a), upon (a) delivery to the Agent of a
notice of assignment, substantially in the form attached to EXHIBIT D
hereto (a "NOTICE OF ASSIGNMENT"), together with any consents required by
SECTION 13.1, and (b) payment of a $3,500 fee to the Agent for processing
such assignment, such assignment shall become effective on the date for
effectiveness specified in such Notice of Assignment. If any such
assignment is made as contemplated by the terms of SECTION 2.18 or SECTION
3.5 at the request of the Borrower, or is otherwise made at the request of
the Borrower, the $3,500 fee shall be paid by the Borrower. The Notice of
Assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment,
Revolving Loans, Swing Line Interest and L/C Interest under the applicable
assignment agreement are "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 date such assignment
becomes effective, 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
hereto and thereto, and the transferor Lender shall be released with
respect to the percentage of the Aggregate Commitment, Revolving Loans,
Swing Line Interest and L/C Interest assigned to such Purchaser without any
further consent or action by TLGI, the Borrower, the Lenders, the L/C
Issuer or the Agent being required. Upon the
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consummation of any assignment to a Purchaser pursuant to this SECTION
13.3.2, the transferor Lender, the Agent and the Borrower shall make
appropriate notations in their respective records to reflect the
principal amounts of the Commitments of the transferor Lender and the
Purchaser, as adjusted pursuant to such assignment. In connection with
the foregoing, the Agent shall maintain at its address referred to in
SECTION 14.1 a copy of each Notice of Assignment delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses
of the Lenders, the Commitments of such Lenders, the principal amount of
each Type of Revolving Loan owing to each such Lender from time to time
and the principal amount of each Swing Line Loan owing to the Swing Line
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of clearly demonstrable error, and TLGI, the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Revolving Loans and the
Swing Line Loans recorded therein for all purposes of this Agreement.
The Register shall be available for inspection by TLGI, the Borrower, or
any Lender at any reasonable time and from time to time upon reasonable
prior notice. The Agent shall give prompt written notice to the
Borrower of the making of any entry in the Register or any change in any
such entry.
13.4. DISSEMINATION OF INFORMATION. Each of TLGI and the Borrower
authorizes each Lender to disclose to any Participant or Purchaser or any
other Person acquiring an interest in the Loan Documents by operation of law
(each a "TRANSFEREE") and any prospective Transferee any and all information
in such Lender's possession concerning the creditworthiness of TLGI and the
Borrower and the other Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by SECTION 10.15.
13.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.17.
ARTICLE XIV
NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.13(d)
with respect to Revolving Loans and SECTION 2.27(d) with respect to Swing Line
Loans, all notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing or by telex or by
facsimile and addressed or delivered to such party at its address set forth
below its signature hereto or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or
93
facsimile, shall be deemed given when transmitted (answerback confirmed in
the case of telexes).
14.2. CHANGE OF ADDRESS. The Borrower, TLGI, the Agent, the L/C Issuer
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XV
COLLATERAL TRUST AGREEMENT
15.1. APPOINTMENT OF SECURED PARTY REPRESENTATIVE. Each Lender hereby
irrevocably appoints the Agent as its Secured Party Representative under (and as
defined in) the Collateral Trust Agreement to serve for so long as the Agent
shall be the Agent hereunder.
15.2. APPOINTMENT OF ENFORCEMENT REPRESENTATIVES. Whenever the Lenders
shall be entitled to vote on the selection of one or more Enforcement
Representatives under (and as defined in) the Collateral Trust Agreement, the
Agent shall cast on behalf of all of the Lenders all of the votes to which
the Lenders are entitled for (x) such natural person as the Agent shall
select (who may be, but need not be, an employee or officer of the Agent),
and (y) such other natural persons, if any, as shall have been selected by a
vote of the Required Lenders; provided that by a vote of the Required Lenders
any such Enforcement Representative (including the Enforcement Representative
selected by the Agent) may be replaced.
15.3. ACTIONS OF LENDERS. Any actions, including votes, to be taken by
the Lenders under the terms of the Collateral Trust Agreement (whether in
respect of releases of collateral, enforcement actions, amendments, waivers
or otherwise) shall in all respects be subject to the terms of this Agreement
(including, without limitation, SECTION 9.2).
ARTICLE XVI
AMENDMENT AND RESTATEMENT
16.1. AMENDMENT AND RESTATEMENT. On the date that all of the
conditions precedent to the effectiveness of this Agreement have been
satisfied (the "RESTATEMENT EFFECTIVE DATE") (i) the full principal balance
of all of the Revolving Loans (as defined in the Original Amended Agreement)
outstanding under the Original Amended Agreement on such date (the "PRIOR
LOANS") shall be converted into and continued as Revolving Loans hereunder;
(ii) all Letters of Credit (as defined in the Original Amended Agreement)
issued and outstanding under the Original Amended Agreement shall remain
issued and outstanding in accordance with their respective terms and all L/C
Obligations (as defined in the Original Amended Agreement) whenever arising
in connection therewith (the "PRIOR L/C OBLIGATIONS") shall become L/C
Obligations hereunder and all L/C Interests (as defined in the Original
Amended Agreement) outstanding on such date in connection therewith shall be
converted into and continued as L/C Interests hereunder; (iii) the full
principal balance of all Swing Line Loans (as defined in the
94
Original Amended Agreement) outstanding under the Original Amended Agreement
on such date (the "PRIOR SWING LINE LOANS") shall be converted into and
continued as Swing Line Loans hereunder and all Swing Line Interests (as
defined in the Original Amended Agreement) outstanding on such date in
connection therewith shall be converted into and continued as Swing Line
Interests hereunder; (iv) except to the extent described in CLAUSE (v) below,
all fees and other obligations of the Borrower which shall have accrued but
which shall remain unpaid on the Restatement Effective Date (the "ACCRUED
FEES") shall be converted into and continued as obligations of the Borrower
hereunder; and (v) all Lenders (other than Bank of Montreal) under the
Original Amended Agreement (the "Prior Lenders") shall sell to Bank of
Montreal, as the sole Lender hereunder as of the Restatement Effective Date,
their respective Revolving Loans, L/C Interests and/or Swing Line Interests,
and shall otherwise be paid all amounts owed to such Prior Lenders under the
Original Amended Agreement, including, without limitation, such Prior
Lenders' share of the Accrued Fees. The Prior Loans, Prior L/C Obligations,
Prior Swing Line Loans and Accrued Fees outstanding on the Restatement
Effective Date shall not be deemed to have been repaid as a result of this
amendment and restatement or the operation of this ARTICLE XVI. The parties
hereto agree that this Agreement shall not be deemed to be a novation of the
Obligations (as defined in the Original Amended Agreement) or any other
obligations of the Borrower, TLGI or any other Guarantor arising under the
Original Amended Agreement or the other Loan Documents (as defined in the
Original Amended Agreement). Each Prior Lender which has received a note or
notes evidencing the Prior Loans made by such Prior Lender agrees to return
to the Borrower such note or notes marked "replaced and superseded". On the
Restatement Effective Date, to the extent necessary to properly reflect the
Commitments of the Lenders and the interest rates, fees and other charges
applicable to the Advances and the other Obligations, the Agent shall cause
Bank of Montreal, as the sole Lender hereunder as of the Restatement
Effective Date, to purchase Revolving Loans, L/C Interests and/or Swing Line
Interests from each of the Prior Lenders (which purchases shall be deemed to
have occurred concurrently with the execution and delivery of this Agreement,
without any further action or evidence thereof), and the Agent shall reset
interest rates and assess charges against the Borrower for the costs and
expenses of the type described in ARTICLE III to the extent necessary to
permit such purchases of Revolving Loans, L/C Interests and/or Swing Line
Interests (which changes shall be paid to the Prior Lender to the extent
applicable), and the Agent shall assess whatever other amounts may be due
from the Borrower in connection with the foregoing (which resets of rates and
assessments shall become effective upon the giving by the Agent of notice
thereof, without any further action or evidence thereof).
16.2. DEPARTING LENDERS. Upon the Restatement Effective Date, each
of the Prior Lenders shall cease to be a "Lender" under and for all purposes
of the Original Amended Agreement as amended and restated by this Agreement
and shall have no further rights or obligations thereunder, except for (i)
the right to receive on the Restatement Effective Date the payments and other
amounts described as being payable to the Prior Lender under the terms of
SECTION 16.1, and (ii) rights which by the terms of the Original Amended
Agreement expressly survive the termination thereof.
95
IN WITNESS WHEREOF, the Borrower, TLGI, the Lenders, the L/C Issuer and
the Agent have executed this Agreement as of the date first above written.
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _______________________________________
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance
Address:
▇▇▇▇▇▇ Group International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attention: Senior Vice President, Finance
and Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The ▇▇▇▇▇▇ Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Vice President, Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE ▇▇▇▇▇▇ GROUP INC.
By: _______________________________________
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Finance
Address:
The ▇▇▇▇▇▇ Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: Senior Vice President, Finance
and Chief Financial Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
BANK OF MONTREAL, as L/C Issuer, Swing Line
Lender and Administrative and
Syndication Agent
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
LENDER
BANK OF MONTREAL, as initial Lender
By: _______________________________________
Print Name: _______________________________
Title: ____________________________________
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
SCHEDULE 1
DISCLOSURE SCHEDULE
--------------------------------------------------------------------------------------------
Section 6.7 Litigation
(a) Litigation of the type described in the first sentence of Attached
Section 6.7
(b) Material Contingent Liabilities not provided for or None
disclosed in the financial statements for the year ended
December 31, 1997
--------------------------------------------------------------------------------------------
Section 6.8 List of Subsidiaries Attached
--------------------------------------------------------------------------------------------
Section 6.14 List of all Properties to which TLGI, the Borrower, or None
any subsidiary listed in 6.8 above does not have good
title, free of all Liens other than those permitted by
Section 7.18, to all of the property and assets reflected as
owned by it in their financial statements
--------------------------------------------------------------------------------------------
Section 7.2 Indebtedness to be Paid None
--------------------------------------------------------------------------------------------
Section 7.11 Debt of Subsidiaries Attached
--------------------------------------------------------------------------------------------
Section 7.16 Investments
(a) List of investments of TLGI at December 31, 1997 Attached
(b) The only investment on the list described in item (a)
above which concerns matters outside of TLGI's defined
line of business is the Bayview Acquisition Inc. notes
with a balance of $89,416 at December 31, 1997
--------------------------------------------------------------------------------------------
Section 7.18(f) Schedule of Existing Liens Attached
--------------------------------------------------------------------------------------------
SCHEDULE 2
APPLICABLE MARGINS AND APPLICABLE COMMITMENT FEE
AND LETTER OF CREDIT FEE RATES
-----------------------------------------------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
-----------------------------------------------------------------------------------------------------------------------------------
Indebtedness/ LESS THAN 4.0 LESS THAN 4.5 and LESS THAN 5.0 and LESS THAN 5.5 and GREATER THAN OR
Adjusted EBITDAR GREATER THAN OR GREATER THAN OR GREATER THAN OR EQUAL TO 5.5
EQUAL TO 4.0 EQUAL TO 4.5 EQUAL TO 5.0
-----------------------------------------------------------------------------------------------------------------------------------
Applicable 25.0 basis points ("bps") 30.0 bps 35.0 bps 40.0 bps 50.0 bps
Commitment Fee Rate
-----------------------------------------------------------------------------------------------------------------------------------
LIBOR Margin and L/C Fee Rate 75.0 bps 100.0 bps 125.0 bps 150.0 bps 200.0 bps
-----------------------------------------------------------------------------------------------------------------------------------
ABR Margin 0.0 0.0 0.0 50.0 bps 75.0 bps
-----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 3
SENIOR OBLIGATIONS
MEIP CREDIT AGREEMENT - aggregate principal amount outstanding of U.S.
$105,596,307 of ▇▇▇▇▇▇ Management Investment Corporation as agent for Borrower
on September 15, 1997, guaranteed by TLGI.
ROYAL BANK OF CANADA CREDIT AGREEMENT - aggregate principal committed amount of
Cdn. $50,000,000 of TLGI of which Cdn. $47,550,000 was outstanding on September
15, 1997, guaranteed by Borrower.
SERIES D NOTES - the Senior Guaranteed Notes, Series D dated September 10, 1993
in the original aggregate principal amount of U.S. $60,000,000 issued by TLGI
pursuant to the Note Agreements dated for reference September 1, 1993 of TLGI
and Borrower with the purchasers thereof, from time to time outstanding, and
having an aggregate principal amount outstanding of U.S. $51,428,571.43 on
September 15, 1997.
SERIES E NOTES - the Senior Guaranteed Notes, Series E dated February 24, 1994
in the original aggregate principal amount of U.S. $50,000,000 issued by
Borrower pursuant to the Note Agreements dated for reference February 1, 1994 of
Borrower and TLGI with the Purchasers thereof, from time to time outstanding,
and having an aggregate principal amount outstanding of U.S. $50,000,000 on
September 15, 1997.
BORROWER SERIES D NOTE GUARANTEE - the Guaranty Agreement dated for reference
April 1, 1993 pursuant to which Borrower guarantees the due and punctual payment
of the indebtedness and the performance of the obligations of TLGI as issuer of
the Series D Notes described above under the terms of such Notes and under the
related Note Agreements.
TLGI SERIES E NOTE GUARANTEE - the Guaranty Agreement dated for reference
February 1, 1994 pursuant to which TLGI guarantees the due and punctual payment
of the indebtedness and the performance of the obligations of Borrower as issuer
of the Series E Notes described above under the terms of such Notes and under
the related Note Agreements.
SERIES 1 NOTES - the Series 1 Senior Guaranteed Notes dated March 20, 1996 in
the original aggregate principal amount of U.S. $225,000,000 issued by Borrower
pursuant to the Indenture dated as of March 20, 1996 among Borrower, TLGI and
Fleet National Bank of Connecticut, as trustee, and guaranteed by Borrower
pursuant to such Indenture, from time to time outstanding, and having an
aggregate principal amount outstanding of U.S. $225,000,000 on September 15,
1997.
SERIES 2 NOTES - the Series 2 Senior Guaranteed Notes dated March 20, 1996 in
the original aggregate principal amount of U.S. $125,000,000 issued by Borrower
pursuant to the Indenture dated as of March 20, 1996 among Borrower, TLGI and
Fleet National Bank of Connecticut, as
trustee, and guaranteed by Borrower pursuant to such Indenture, from time to
time outstanding, and having an aggregate principal amount outstanding of
U.S. $125,000,000 on September 15, 1997.
SERIES 3 NOTES - the Series 3 Senior Guaranteed Notes dated October 7, 1996
in the original aggregate principal amount of U.S. $125,000,000 issued by
Borrower pursuant to the Indenture dated as of March 20, 1996 among Borrower,
TLGI and Fleet National Bank of Connecticut, as trustee, and guaranteed by
Borrower pursuant to such Indenture, from time to time outstanding, and
having an aggregate principal amount outstanding of U.S. $125,000,000 on
September 15, 1997.
SERIES 4 NOTES - the Series 4 Senior Guaranteed Notes dated October 7, 1996 in
the original aggregate principal amount of U.S. $225,000,000 issued by Borrower
pursuant to the Indenture dated as of March 20, 1996 among Borrower, TLGI and
Fleet National Bank of Connecticut, as trustee, and guaranteed by Borrower
pursuant to such Indenture, from time to time outstanding, and having an
aggregate principal amount outstanding of U.S. $225,000,000 on September 15,
1997.
SERIES 5 NOTES - the Series 5 Senior Guaranteed Notes dated September 26, 1997
in the original aggregate principal amount of Cdn. $200,000,000 issued by
Borrower pursuant to the Indenture dated as of March 20, 1996 among Borrower,
TLGI and Fleet National Bank of Connecticut, as trustee, and guaranteed by
Borrower pursuant to such Indenture, from time to time outstanding, and having
an aggregate principal amount outstanding of Cdn. $200,000,000 on September 26,
1997.
PASS-THROUGH ASSET TRUST SENIOR GUARANTEED NOTES - dated September 30th, 1997 in
the original aggregate principal amount of US$ 300,000,000 issued by the
Borrower, as Issuer, TLGI as Guarantor and State Street Bank & Trust Company as
Trustee, and guaranteed by the Borrower pursuant to such Indenture. The
aggregate principal amount outstanding of $300,000,000 as at March 15, 1998.
2
SCHEDULE 4
EXISTING LETTERS OF CREDIT
-------------------------------------------------------------------------------
L/C Number L/C $ Amount Issue Date Expiration Date
-------------------------------------------------------------------------------
911910 $1,200,109.59 June 14, 1996 June 13, 1998
-------------------------------------------------------------------------------
911915 $1,200,109.59 June 14, 1996 June 13, 1998
-------------------------------------------------------------------------------
911979 $615,820.00 October 15, 1996 October 14, 1998
-------------------------------------------------------------------------------
911980 $4,743,222.00 October 15, 1996 October 14, 1998
-------------------------------------------------------------------------------
911964 $500,000.00 September 10, 1997 October 15, 1998
-------------------------------------------------------------------------------
912345 $70,500.00 November 3, 1997 October 6, 1998
-------------------------------------------------------------------------------
912369 $7,933,369.00 November 10, 1997 November 9, 1998
-------------------------------------------------------------------------------
912370 $4,250,820.00 November 10, 1997 November 9, 1998
-------------------------------------------------------------------------------
912371 $2,025,000.00 November 10, 1997 November 9, 1998
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
OUTSTANDING $22,538,950.18
--------------
--------------
-------------------------------------------------------------------------------
SCHEDULE 5
COMMITMENTS OF THE LENDERS
Commitment Syndication/Administrative Agent
---------- --------------------------------
$600,000,000 Bank of Montreal
SCHEDULE 6
CERTAIN PLEDGED SHARES SUBJECT TO TRANSFER RESTRICTIONS
Shares of the following Subsidiaries:
(a) ▇▇▇▇▇-▇▇▇▇▇ Funeral Home, Inc.
(b) New Orleans Limousine Service, Inc.
SCHEDULE 7
INSURANCE COMPANIES
Mayflower National Life Insurance Company
Security Industrial Insurance Company
Security Industrial Fire Insurance Company
▇▇▇▇▇ Holding Company
First Capital Life Insurance Company of Louisiana
Administrative Resources Company, Inc.
Planned Funeral Services, Inc.
Funeral Services, Inc.
National Capital Life Insurance Company
Acadian Life Insurance Company
2
EXHIBIT A
FORM OF REVOLVING NOTE
[Date]
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC., a Delaware corporation (the "BORROWER"),
promises to pay to the order of ____________________ (the "LENDER") the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to
the Borrower pursuant to ARTICLE II of the Second Amended and Restated Credit
Agreement hereinafter referred to (as the same may be further amended or
modified, the "Agreement"; capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement),
in immediately available funds in Dollars on the dates and at the offices of
Bank of Montreal, as Administrative and Syndication Agent, specified in the
Agreement, together with interest on the unpaid principal amount hereof at the
rates determined in accordance with the Agreement. The Borrower shall pay the
principal of and accrued and unpaid interest on the Revolving Loans in full on
the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Revolving Loan and the date and amount of each
principal payment hereunder.
This Revolving Note is one of the Revolving Notes issued pursuant to
SECTION 13.1 of, and is entitled to the benefits of, the Second Amended and
Restated Credit Agreement, dated as of March 27, 1998, among the Borrower, TLGI,
Bank of Montreal, as L/C Issuer, Swing Line Lender and Administrative and
Syndication Agent, and the lenders parties thereto, including the Lender, to
which Agreement, as it may be amended from time to time, reference is hereby
made for a statement of the terms and conditions governing this Revolving Note,
including the terms and conditions under which this Revolving Note may be
prepaid or its maturity date accelerated. The Agreement, among other things,
provides for the making of "Revolving Loans" by the Lender to the Borrower from
time to time in an aggregate amount not to exceed at any time outstanding the
Lender's Commitment.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Revolving Note shall be governed by, and construed in accordance with,
the laws of the State of New York, United States.
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Finance
Schedule of Revolving Loans and Payments of Principal
to
Revolving Note of ▇▇▇▇▇▇ Group International, Inc.,
Dated __________, ____
Principal Amount Maturity of Principal
Date of Revolving Loan Interest Period Amount Paid Unpaid Balance
---- ----------------- --------------- ----------- --------------
EXHIBIT B
REQUIRED OPINIONS
Forms of opinions of Thelen, Marrin, ▇▇▇▇▇▇▇ & Bridges (U.S. Federal, New York
and Delaware corporate counsel) and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Canada Federal and
British Columbia counsel) are attached hereto as Attachments 1 and 2,
respectively.
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders Party To The
Second Amended and Restated Credit Agreement
Described Below
This Compliance Certificate is furnished pursuant to that certain Second
Amended and Restated Credit Agreement dated as of March 27, 1998 (as further
amended, modified, renewed or extended from time to time, the "AGREEMENT") among
the Borrower, TLGI, the Lenders party thereto and Bank of Montreal, as L/C
Issuer, Swing Line Lender and Administrative and Syndication Agent for the
Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____ of [TLGI] [the Borrower] and the Chief
Financial Officer;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of TLGI and its Subsidiaries and of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below;
4. Schedule I attached hereto sets forth financial data and computations
evidencing TLGI's compliance with certain covenants of the Agreement, all of
which data and computations are true, complete and correct; and
5. Schedule II attached hereto sets forth a description of all matters
described in Section 7.3 of the Agreement (including, without limitation,
CLAUSES (a), (b), (c) and (d) thereof) which have been disclosed, or which
should have been disclosed, pursuant to the terms of Section 7.3 of the
Agreement during the period from the date of the last Compliance Certificate
delivered to the Lenders through the date hereof (which description may consist
of copies of notices previously given to the Lenders to the extent applicable).
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the
nature of the condition or event, the period during which it has existed and
the action which TLGI or the Borrower, as applicable, has taken, is taking,
or proposes to take with respect to each such condition or event:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth on
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this _________ day of __________, __.
By:___________________________________
Name:_________________________________
Title:________________________________
2
SAMPLE SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of _________________ with
Provisions of _____ and _____ of
the Agreement
SAMPLE SCHEDULE II TO COMPLIANCE CERTIFICATE
Description of Matters Disclosable Pursuant
to the Provisions of Section 7.3 of
the Agreement
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between __________
(the "ASSIGNOR") and ___________ (the "ASSIGNEE") is dated as of _____________,
____. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Second Amended
and Restated Credit Agreement (which, as it may be further amended, modified,
renewed or extended from time to time is herein called the "CREDIT AGREEMENT")
described in Item 1 of Schedule I attached hereto ("SCHEDULE I"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule I of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule I and the other Loan Documents. The Commitment (or, if the applicable
Commitment has been terminated, the aggregate Revolving Loans, Swing Line
Interest and L/C Interest) purchased by the Assignee hereunder is set forth in
Items 3 and 4 of Schedule I.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"ASSIGNMENT EFFECTIVE DATE") shall be the later of the date specified in Item 5
of Schedule I or two Business Days (or such shorter period agreed to by the
Agent) after a Notice of Assignment substantially in the form of Exhibit I
attached hereto has been delivered to the Agent. Such Notice of Assignment must
include any consents required to be delivered to the Agent by Section 13.3.1 of
the Credit Agreement. In no event will the Assignment Effective Date occur if
the payments required to be made by the Assignee to the Assignor on the
Assignment Effective Date under SECTIONS 4 and 5 hereof are not made on the
proposed Assignment Effective Date. The Assignor will notify the Assignee of
the proposed Assignment Effective Date no later than the Business Day prior to
the proposed Assignment Effective Date. As of the Assignment Effective Date,
(a) the Assignee shall have the rights and obligations of a Lender under the
Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (b) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Assignment Effective Date, the
Assignee shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee
shall advance funds directly
to the Agent with respect to all Revolving Loans and, to the extent
applicable, the Swing Line Interest and L/C Interest, made on or after the
Assignment Effective Date with respect to the interest assigned hereby.
[In consideration for the sale and assignment of Revolving Loans and, to the
extent applicable, the Swing Line Interest and L/C Interest hereunder,
(a) the Assignee shall pay the Assignor, on the Assignment Effective Date,
an amount equal to the principal amount of the portion of all Floating Rate
Loans assigned to the Assignee hereunder plus, if applicable (and without
duplication), the amount which corresponds to the principal amount of Swing
Line Loans represented by the Swing Line Interest assigned to the Assignee
hereunder and the amount which corresponds to the liability of the L/C Issuer
in respect of outstanding Letters of Credit represented by the L/C Interest
assigned to the Assignee hereunder and (b) with respect to each Fixed Rate Loan
made by the Assignor and assigned to the Assignee hereunder which is outstanding
on the Assignment Effective Date, on the earliest of (i) the last day of the
Interest Period therefor, (ii) such earlier date agreed to by the Assignor and
the Assignee and (iii) the date on which any such Fixed Rate Loan either becomes
due (by acceleration or otherwise) or is prepaid (such earliest date being
hereinafter referred to as the "PAYMENT DATE"), the Assignee shall pay the
Assignor an amount equal to the principal amount of the portion of such Fixed
Rate Loan assigned to the Assignee which is outstanding on the Payment Date. If
the Assignor and the Assignee agree that the Payment Date for such Fixed Rate
Loan shall be the Assignment Effective Date, they shall agree to the interest
rate applicable to the portion of such Revolving Loan assigned hereunder for the
period from the Assignment Effective Date to the end of the existing Interest
Period applicable to such Fixed Rate Loan (the "AGREED INTEREST RATE") and any
interest received by the Assignee in excess of the Agreed Interest Rate shall be
remitted to the Assignor. In the event interest for the period from the
Assignment Effective Date to but not including the Payment Date is not paid by
the Borrower with respect to any Fixed Rate Loan sold by the Assignor to the
Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Fixed Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement. In
the event a prepayment of any Fixed Rate Loan which is existing on the Payment
Date and assigned by the Assignor to the Assignee hereunder occurs after the
Payment Date but before the end of the Interest Period applicable to such Fixed
Rate Loan, the Assignee shall remit to the Assignor the excess of the prepayment
penalty paid with respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty were calculated based on the Agreed Interest Rate. The Assignee will
also promptly remit to the Assignor (a) any principal payments received from the
Agent with respect to Fixed Rate Loans prior to the Payment Date and (b) any
amounts of interest on Revolving Loans, Swing Line Loans, Reimbursement
Obligations and fees received from the Agent which relate to the portion of the
Revolving Loans, and, to the extent applicable, the Swing Line Interest and L/C
Interest assigned to the Assignee hereunder for periods prior to the Assignment
Effective Date, in the case of Floating Rate Loans, Swing Line Loans and
Reimbursement Obligations, or the Payment Date, in the case of Fixed Rate Loans,
and not previously paid by the Assignee to the Assignor.](*)
---------
(*) Each Assignor may insert its standard payment provisions in lieu
of the foregoing payment terms.
2
In the event that either party hereto receives any payment to which the other
party hereto is entitled under this Assignment Agreement, then the party
receiving such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee agrees to pay __% of the
recordation fee required to be paid to the Agent in connection with this
Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It
is understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (a) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (b) any
representation, warranty or statement made in or in connection with any of
the Loan Documents, (c) the financial condition or creditworthiness of the
Borrower or any guarantor, (d) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (e) inspecting any of
the Property, books or records of the Borrower, (f) the validity,
enforceability, perfection, priority, condition, value or sufficiency of any
collateral securing or purporting to secure the Obligations or (g) any
mistake, error of judgment or action taken or omitted to be taken in
connection with the Revolving Loans, Swing Line Loans, Letters of Credit or
the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (a) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (b) agrees that it will,
independently and without reliance upon the Agent, the L/C Issuer, the Assignor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (c) appoints and authorizes each of
the Agent and the Collateral Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Agent and the Collateral Agent, respectively, by the terms thereof, together
with such powers as are reasonably incidental thereto, (d) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender, (e) agrees
that its payment instructions and notice instructions are as set forth in the
attachment to Schedule I [,] [and] (e) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and
3
interests in and under the Loan Documents will not be "plan assets" under
ERISA [and (f) attaches the forms prescribed by the Internal Revenue Service of
the United States certifying that the Assignee is entitled to receive payments
under the Loan Documents without deduction or withholding of any United States
federal income taxes].(**)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Assignment Effective Date, the
Assignee shall have the right pursuant to Section 13.3.1 of the Credit Agreement
to assign the rights which are assigned to the Assignee hereunder to any Person,
provided that (a) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (b) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under SECTIONS 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Assignment Effective Date, the percentage interest specified in Item 3 of
Schedule I shall remain the same, but the dollar amount purchased shall be
recalculated based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law of the State of New York.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the addresses set forth in the attachment to Schedule I.
---------
(**) To be inserted if the Assignee is not incorporated under the
laws of the United States, or a state thereof.
4
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:___________________________________
Name:_________________________________
Title:________________________________
[Address]_____________________________
_____________________________________
[NAME OF ASSIGNEE]
By:___________________________________
Name:_________________________________
Title:________________________________
[Address]_____________________________
_____________________________________
5
SCHEDULE I
to Assignment Agreement
1. Description and Date of Second Amended and Restated Credit Agreement:
Second Amended and Restated Credit Agreement, dated as of March 27,
1998, among ▇▇▇▇▇▇ International Group, Inc., The ▇▇▇▇▇▇ Group Inc.,
the various lenders parties thereto as Lenders and Bank of Montreal,
as L/C Issuer, Swing Line Lender and Administrative and Syndication
Agent for the Lenders
2. Date of Assignment Agreement: _________, __
3. Assignee's Percentage
of Aggregate
Commitment (As of Date
of Item 2 above)(*): ________ %(**)
4. Assignee's Commitment
Amount Purchased
Hereunder:
a. Assignee's
Revolving Loan
Amount(*) $____________
b. Amount of
Assigned Share of
Swing Line Loans
$____________
c. Amount of
Assigned Share of
L/C Obligations
$____________
5. Proposed Assignment Effective Date: _____________, ____
----------
(*) If the Commitment has been terminated, insert outstanding
Revolving Loans in 4(a) below in place of Commitment.:
(**) Percentage taken to 10 decimal places.
1
Accepted and Agreed:
[NAME OF ASSIGNOR]
By: __________________________________
Name: ________________________________
Title: _______________________________
[NAME OF ASSIGNEE]
By: __________________________________
Name: ________________________________
Title: _______________________________
2
Attachment to SCHEDULE I to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
EXHIBIT I
to Assignment Agreement
FORM OF NOTICE OF ASSIGNMENT
___________________, __
To: ▇▇▇▇▇▇ Group International, Inc.
________________________________
________________________________
Bank of Montreal, as Administrative and Syndication Agent
________________________________
________________________________
From: [NAME OF ASSIGNOR] (the "ASSIGNOR")
[NAME OF ASSIGNEE] (the "ASSIGNEE")
1. We refer to the Second Amended and Restated Credit Agreement (as it
may be further amended, modified, renewed or extended from time to time, the
"CREDIT AGREEMENT") described in Item 1 of Schedule I attached hereto
("SCHEDULE I"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "NOTICE") is given and delivered to
the Borrower and the Agent pursuant to Section 13.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ________________, __ (the "ASSIGNMENT"), pursuant to
which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor, the percentage interest specified in Item 3 of
Schedule I of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 4 of Schedule I. The
"ASSIGNMENT EFFECTIVE DATE" of the Assignment shall be the later of the date
specified in Item 5 of Schedule I or two Business Days (or such shorter period
as agreed to by the Agent) after this Notice of Assignment and any consents and
fees required by Sections 13.3.1 and 13.3.2 of the Credit Agreement have been
delivered to the Agent, provided that the Assignment Effective Date shall not
occur if any condition precedent agreed to by the Assignor and the Assignee has
not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrower and the
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Agent before the date specified in Item 5 of Schedule I to
determine if the Assignment
Agreement will become effective on such date pursuant to SECTION 3 hereof,
and will confer with the Agent to determine the Assignment Effective Date
pursuant to SECTION 3 hereof if it occurs thereafter. The Assignor shall
notify the Agent if the Assignment Agreement does not become effective on any
proposed Assignment Effective Date as a result of the failure to satisfy the
conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation
of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Assignment Effective Date the processing fee of $3,500 required by Section
13.3.2 of the Credit Agreement (except to the extent otherwise provided in
SECTION 13.3.2).
6. If Revolving Loans or Swing Line Loans are outstanding on the
Assignment Effective Date, the Assignor and the Assignee request and direct that
the Agent make appropriate notations in the Register or its other records
reflecting the Assignment of such Revolving Loans and participations in such
Swing Line Loans and, if applicable, the related Commitment.
7. The Assignee advises the Agent that its notice and payment
instructions are set forth in the attachment to Schedule I.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits and interests in and under the Loan Documents will not be "plan assets"
under ERISA.
2
9. The Assignee authorizes the Agent to act as its agent under the Loan
Documents in accordance with the terms thereof. The Assignee acknowledges that
the Agent has no duty to supply information with respect to the Borrower, any
guarantor or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.(*)
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: __________________________________ By: _______________________________
Name: ________________________________ Name: _____________________________
Title: _______________________________ Title: ____________________________
ACKNOWLEDGED [AND CONSENTED [ACKNOWLEDGED AND CONSENTED
TO](**) BY BANK OF MONTREAL, TO BE THE ▇▇▇▇▇▇ GROUP
AS AGENT INTERNATIONAL, INC.
By: __________________________________ By: _______________________________
Name: ________________________________ Name: _____________________________
Title: _______________________________ Title: ____________________________]
(Attach photocopy of Schedule I to Assignment as Schedule I hereto)
----------
(*) This paragraph may be eliminated if the Assignee is a party to the Credit
Agreement prior to the Assignment Effective Date.
(**) Omit if consents are not required.
3
SCHEDULE I
to Notice of Assignment
1. Description and Date of Second Amended and Restated Credit Agreement:
Second Amended and Restated Credit Agreement, dated as of March 27,
1998, among ▇▇▇▇▇▇ International Group, Inc., The ▇▇▇▇▇▇ Group Inc.,
the various lenders parties thereto as Lenders and Bank of Montreal,
as L/C Issuer, Swing Line Lender and Administrative and Syndication
Agent for the Lenders
2. Date of Assignment Agreement: _________, __
3. Assignee's Percentage
of Aggregate
Commitment (As of Date
of Item 2 above)(*): %(**)
4. Assignee's Commitment
Amount Purchased
Hereunder:
a. Assignee's
Revolving Loan
Amount(*)
$____________
b. Amount of
Assigned Share of
Swing Line Loans
$____________
----------
(*) If the Commitment has been terminated, insert outstanding
Revolving Loans in 4(a) below in place of Commitment.
(**) Percentage taken to 10 decimal places.
2
c. Amount of
Assigned Share
of L/C
Obligations $____________
3
5. Proposed
Assignment
Effective Date: _____________, ____
Accepted and Agreed:
[NAME OF ASSIGNOR]
By: __________________________________
Name: ________________________________
Title: _______________________________
[NAME OF ASSIGNEE]
By: __________________________________
Name: ________________________________
Title: _______________________________
4
Attachment to SCHEDULE I to NOTICE OF ASSIGNMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
EXHIBIT E
FORM OF REVOLVING LOAN/SWING LINE LOAN/
CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank of Montreal,
as Administrative and Syndication Agent (the "Agent")
under the Second Amended and Restated Credit Agreement Described Below.
Re: Second Amended and Restated Credit Agreement, dated as of March 27, 1998
(as the same may be further amended or modified, the "CREDIT AGREEMENT"),
among ▇▇▇▇▇▇ Group International, Inc., The ▇▇▇▇▇▇ Group Inc., the
financial institutions party thereto as Lenders and Bank of Montreal, as
L/C Issuer, Swing Line Lender and Administrative and Syndication Agent for
the Lenders. Terms used herein and not otherwise defined shall have the
meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or Swing Line Loans or other extensions of credit from time to time
until receipt by the Agent of a specific written revocation of such instructions
by the Borrower signed by two Authorized Officers; PROVIDED, HOWEVER, that the
Agent may otherwise transfer funds as hereafter directed in writing by an
Authorized Officer of the Borrower, it being understood that any change in
standing wire transfer instructions for the transfer of funds shall only be made
upon the written direction of two Authorized Officers of the Borrower.
Facility Identification Number(s) ____________________________________________
Customer/Account Name ________________________________________________________
Transfer Funds To ____________________________________________________________
____________________________________________________________
____________________________________________________________
For Account No. ______________________________________________________________
Reference/Attention To _______________________________________________________
Authorized Officer (Customer Representative)
____________________________________ _____________________________________
(Please Print) (Signature)
Lender Officer Name
____________________________________ _____________________________________
(Please Print) (Signature)
Date ______________________________
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
2
EXHIBIT F
FORM OF REVOLVING LOAN BORROWING NOTICE
[Date]
Bank of Montreal, as
Administrative and Syndication Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ Group International, Inc., refers to the Second
Amended and Restated Credit Agreement, dated as of March 27, 1998 (as amended or
modified, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, The ▇▇▇▇▇▇ Group Inc., certain Lenders
party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for said Lenders (in such capacity as
Administrative and Syndication Agent, the "AGENT"). The undersigned hereby
gives you notice, irrevocably, pursuant to SECTION 2.6 of the Credit Agreement
that the undersigned hereby requests an Advance under the Credit Agreement, and
in that connection sets forth below the information relating to such Advance
(the "PROPOSED ADVANCE") as required by SECTION 2.6 of the Credit Agreement:
(a) The Revolving Loan Borrowing Date for the Proposed Advance is
____________________.
(b) The aggregate amount of the Proposed Advance is
$___________________.
(c) The Proposed Advance is to be [a Floating Rate Advance]
[Eurodollar Advance].
[(d)] [The Interest Period for the Proposed Advance is __ months.](*)
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Advance:
(A) The representations and warranties contained in ARTICLE VI
of the Credit Agreement are correct in all material respects, before
and after giving effect to the Proposed Advance and to the application
of the proceeds therefrom, as
----------
(*) To be included if the Proposed Advance is to be a Fixed Rate Advance.
though made on and as of such date; and
(B) No Default or Unmatured Default has occurred and is
continuing or would result from the Proposed Advance or from the
application of the proceeds therefrom.
Very truly yours,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
3
EXHIBIT G
FORM OF PREPAYMENT NOTICE
[Date]
Bank of Montreal, as
Administrative and Syndication Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ Group International, Inc., refers to the Second
Amended and Restated Credit Agreement, dated as of March 27, 1998 (as amended or
modified, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, The ▇▇▇▇▇▇ Group Inc., certain Lenders
party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for said Lenders (in such capacity as
Administrative and Syndication Agent, the "AGENT"). The undersigned hereby
gives you notice, irrevocably, pursuant to SECTION 2.5 of the Credit Agreement,
that the undersigned hereby elects to(*):
prepay a Floating Rate Advance in aggregate principal amount of
$_________________________ on _________________________, __[.][; and]
prepay a Eurodollar Advance in aggregate principal amount of [specify
amount] and with a current Interest Period ending on _______________, __ on
_______________, __.
----------
(*) Include one or more of the following, as applicable.
1
Very truly yours,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
EXHIBIT H
FORM OF EXTENSION REQUEST
[Date]
Bank of Montreal, as
Administrative and Syndication Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Account Management
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ Group International, Inc., refers to the Second
Amended and Restated Credit Agreement, dated as of March 27, 1998 (as amended or
modified, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, The ▇▇▇▇▇▇ Group Inc., certain Lenders
party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for said Lenders (in such capacity as
Administrative and Syndication Agent, the "AGENT"). The undersigned hereby
requests, pursuant to SECTION 2.18 of the Credit Agreement, that the Facility
Termination Date be extended from [March 27, 2001 to March 27, 2002] [March 27,
2002 to March 27, 2003](*).
Very truly yours,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
----------
(*) Include as applicable.
EXHIBIT I
FORM OF CONVERSION/CONTINUATION NOTICE
[Date]
Bank of Montreal, as
Administrative and Syndication Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ Group International, Inc., refers to the Second
Amended and Restated Credit Agreement, dated as of March 27, 1998 (as amended or
modified, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, The ▇▇▇▇▇▇ Group Inc., certain Lenders
party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for said Lenders (in such capacity as
Administrative and Syndication Agent, the "AGENT"). The undersigned hereby
gives you notice, irrevocably, pursuant to SECTION 2.7 of the Credit Agreement,
that the undersigned hereby elects to:(*)
convert a Floating Rate Advance in aggregate principal amount of
$________ to a Eurodollar Advance on ________ ,__. The initial Interest
Period for such Eurodollar Advance is requested to be ________
month[s][.][; and]
convert a Eurodollar Advance in aggregate principal amount of
$________ and with a current Interest Period ending ________, __, to a
Floating Rate Advance on ________, __[.][; and] continue a Eurodollar
Advance in aggregate principal amount of $________ and with a current
Interest Period ending ________, __, as a Eurodollar Advance. The
succeeding Interest Period is requested to be ________ month[s].
----------
(*) Include one or more of the following, as applicable.
1
Very truly yours,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
2
EXHIBIT J
COLLATERAL TRUST AGREEMENT
[PREVIOUSLY DELIVERED]
EXHIBIT K
FORM OF APPROVED SALE CERTIFICATE
To: The Lenders Party To The
Second Amended and Restated Credit Agreement
Described Below
This Approved Sale Certificate is furnished pursuant to that certain Second
Amended and Restated Credit Agreement dated as of March 27, 1998 (as amended,
modified, renewed or extended from time to time, the "AGREEMENT") among the
Borrower, TLGI, the Lenders party thereto and Bank of Montreal, as L/C Issuer,
Swing Line Lender and Administrative and Syndication Agent for the Lenders.
Unless otherwise defined herein, capitalized terms used in this Approved Sale
Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____ of [TLGI] [Borrower];
2. I have reviewed the terms of the Agreement and I am familiar with the
proposed sale of Property described on Schedule I attached hereto (the "PROPOSED
SALE");
3. The Proposed Sale is expressly permitted by the terms of the
Agreement; and
4. I have no knowledge of the existence of any condition or event which
constitutes a Default or Unmatured Default as of the date hereof, and
consummation of the Proposed Sale will not give rise to a Default or Unmatured
Default.
The foregoing certifications are made and delivered this _________ day of
__________, __.
By: _____________________________
Name: ___________________________
Title: __________________________
SAMPLE SCHEDULE I TO APPROVED SALE CERTIFICATE
DESCRIPTION OF PROPERTY AND PROPOSED SALE
EXHIBIT L
FORM OF SWING LINE LOAN BORROWING NOTICE
[Date]
Bank of Montreal, as
Administrative and Syndication Agent and as Swing Line Lender
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Services
Ladies and Gentlemen:
The undersigned, ▇▇▇▇▇▇ Group International, Inc., refers to the Second
Amended and Restated Credit Agreement, dated as of March 27, 1998 (as amended or
modified, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, The ▇▇▇▇▇▇ Group Inc., certain Lenders
party thereto and Bank of Montreal, as L/C Issuer, Swing Line Lender and
Administrative and Syndication Agent for said Lenders (in such capacity as
Administrative and Syndication Agent, the "AGENT"). The undersigned hereby
gives you notice, irrevocably, pursuant to SECTION 2.23 of the Credit Agreement
that the undersigned hereby requests a Swing Line Loan under the Credit
Agreement, and in that connection sets forth below the information relating to
such Swing Line Loan (the "PROPOSED LOAN") as required by SECTION 2.23 of the
Credit Agreement:
(a) The Swing Line Loan Borrowing Date for the Proposed Loan is
____________________.
(b) The amount of the Proposed Loan is $________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Loan:
(A) The representations and warranties contained in ARTICLE VI
of the Credit Agreement are correct in all material respects, before
and after giving effect to the Proposed Loan and to the application of
the proceeds therefrom, as though made on and as of such date; and
(B) No Default or Unmatured Default has occurred and is
continuing or would result from the Proposed Loan or from the
application of the proceeds therefrom.
Very truly yours,
▇▇▇▇▇▇ GROUP INTERNATIONAL, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
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