EXHIBIT 10.1
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FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of August 15, 2003
among
CORINTHIAN COLLEGES, INC.,
a Delaware corporation,
as the Domestic Borrower,
CORINTHIAN CANADA ACQUISITION INC.,
an Ontario corporation,
as the Canadian Borrower,
BANK OF AMERICA, N.A.,
as Domestic Administrative Agent, Domestic Swing Line Lender
and Domestic L/C Issuer,
BANK OF AMERICA, N.A., ACTING THROUGH ITS CANADIAN BRANCH,
as Canadian Administrative Agent, Canadian Swing Line Lender
and Canadian L/C Issuer,
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent,
U.S. BANK NATIONAL ASSOCIATION
and
JPMORGAN CHASE BANK,
as Co-Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS......................................................... 1
1.01 Defined Terms................................................................................ 1
1.02 Other Interpretive Provisions................................................................ 27
1.03 Accounting Terms............................................................................. 27
1.04 Rounding..................................................................................... 28
1.05 References to Agreements and Laws............................................................ 28
1.06 Times of Day................................................................................. 28
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.................................................... 29
2.01 Committed Loans.............................................................................. 29
2.02 Borrowings, Conversions and Continuations of Committed Loans................................. 30
2.03 Acceptances.................................................................................. 31
2.04 Letters of Credit............................................................................ 36
2.05 Swing Line Loans............................................................................. 44
2.06 Prepayments.................................................................................. 50
2.07 Reduction or Termination of Commitments...................................................... 51
2.08 Repayment of Loans........................................................................... 52
2.09 Interest..................................................................................... 52
2.10 Fees......................................................................................... 53
2.11 Computation of Interest and Fees............................................................. 53
2.12 Evidence of Debt............................................................................. 53
2.13 Payments Generally........................................................................... 54
2.14 Sharing of Payments.......................................................................... 56
2.15 Increase in Aggregate Domestic Commitments................................................... 58
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY................................................... 59
3.01 Taxes........................................................................................ 59
3.02 Illegality................................................................................... 60
3.03 Inability to Determine Rates................................................................. 60
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans....... 61
3.05 Funding Losses............................................................................... 62
3.06 Matters Applicable to all Requests for Compensation.......................................... 62
3.07 Survival..................................................................................... 62
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS................................................ 63
4.01 Conditions of Initial Credit Extension....................................................... 63
4.02 Conditions to all Credit Extensions.......................................................... 65
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TABLE OF CONTENTS
(continued)
PAGE
4.03 Conditions to Acceptances.................................................................... 65
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................... 66
5.01 Existence, Qualification and Power; Compliance with Laws..................................... 66
5.02 Authorization; No Contravention.............................................................. 66
5.03 Governmental Authorization; Other Consents................................................... 66
5.04 Binding Effect............................................................................... 66
5.05 Financial Statements; No Material Adverse Effect............................................. 67
5.06 Litigation................................................................................... 67
5.07 No Default................................................................................... 67
5.08 Ownership of Property; Liens................................................................. 68
5.09 Environmental Compliance..................................................................... 68
5.10 Insurance.................................................................................... 68
5.11 Taxes........................................................................................ 68
5.12 ERISA Compliance............................................................................. 68
5.13 Subsidiaries................................................................................. 69
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act............... 70
5.15 Disclosure................................................................................... 70
5.16 Intellectual Property; Licenses, Etc......................................................... 70
5.17 Tax Shelter Regulations...................................................................... 70
ARTICLE VI AFFIRMATIVE COVENANTS.................................................................... 71
6.01 Financial Statements......................................................................... 71
6.02 Certificates; Other Information.............................................................. 72
6.03 Notices...................................................................................... 73
6.04 Payment of Obligations....................................................................... 74
6.05 Preservation of Existence, Etc............................................................... 74
6.06 Maintenance of Properties.................................................................... 74
6.07 Maintenance of Insurance..................................................................... 75
6.08 Compliance with Laws......................................................................... 75
6.09 Books and Records............................................................................ 75
6.10 Inspection Rights............................................................................ 75
6.11 Use of Proceeds.............................................................................. 75
6.12 Additional Guarantors........................................................................ 75
6.13 Acquisitions................................................................................. 76
ARTICLE VII NEGATIVE COVENANTS....................................................................... 76
7.01 Liens........................................................................................ 76
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TABLE OF CONTENTS
(continued)
PAGE
7.02 Investments.................................................................................. 77
7.03 Indebtedness................................................................................. 77
7.04 Fundamental Changes.......................................................................... 79
7.05 Dispositions................................................................................. 79
7.06 Restricted Payments.......................................................................... 80
7.07 Change in Nature of Business................................................................. 80
7.08 Transactions with Affiliates................................................................. 80
7.09 Burdensome Agreements........................................................................ 80
7.10 Use of Proceeds.............................................................................. 81
7.11 Financial Covenants.......................................................................... 81
7.12 Amendment of Acquisition Agreement........................................................... 82
7.13 Restrictive Agreements, etc.................................................................. 82
7.14 Corinthian Properties........................................................................ 82
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES........................................................... 82
8.01 Events of Default............................................................................ 82
8.02 Remedies Upon Event of Default............................................................... 85
ARTICLE IX ADMINISTRATIVE AGENTS.................................................................... 85
9.01 Appointment and Authorization of Administrative Agents....................................... 85
9.02 Delegation of Duties......................................................................... 86
9.03 Liability of Administrative Agents........................................................... 86
9.04 Reliance by Administrative Agents............................................................ 86
9.05 Notice of Default............................................................................ 87
9.06 Credit Decision; Disclosure of Information by Administrative Agents.......................... 87
9.07 Indemnification of Administrative Agents..................................................... 88
9.08 Administrative Agents in their Individual Capacity........................................... 88
9.09 Successor Administrative Agent............................................................... 89
9.10 Administrative Agents May File Proofs of Claim............................................... 89
9.11 Collateral and Guaranty Matters.............................................................. 90
9.12 Other Agents; Arrangers and Managers......................................................... 90
ARTICLE X MISCELLANEOUS............................................................................ 91
10.01 Amendments, Etc.............................................................................. 91
10.02 Notices and Other Communications; Facsimile Copies........................................... 92
10.03 No Waiver; Cumulative Remedies............................................................... 93
10.04 Attorney Costs, Expenses and Taxes........................................................... 93
10.05 Indemnification by the Borrowers............................................................. 94
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TABLE OF CONTENTS
(continued)
PAGE
10.06 Payments Set Aside........................................................................... 94
10.07 Successors and Assigns....................................................................... 95
10.08 Confidentiality.............................................................................. 98
10.09 Set-off...................................................................................... 99
10.10 Interest Rate Limitation..................................................................... 100
10.11 Counterparts................................................................................. 100
10.12 Integration.................................................................................. 100
10.13 Survival of Representations and Warranties................................................... 100
10.14 Severability................................................................................. 101
10.15 Tax Forms.................................................................................... 101
10.16 Replacement of Lenders....................................................................... 102
10.17 Annual Rates of Interest..................................................................... 103
10.18 Governing Law................................................................................ 103
10.19 Waiver of Right to Trial by Jury............................................................. 103
SCHEDULES
2.01 Commitments and Pro Rata Shares
2.04 Existing Letters of Credit
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D-1 Guaranty
D-2 Guaranty
E Compliance Certificate
F Assignment and Assumption
G Pledge Agreement
H Drawing Notice
I Form of Legal Opinion
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is
entered into as of August 15, 2003, among Corinthian Colleges, Inc., a Delaware
corporation (the "Domestic Borrower"), Corinthian Canada Acquisition Inc., an
Ontario corporation and wholly-owned subsidiary of the Domestic Borrower (the
"Canadian Borrower" and together with the Domestic Borrower, collectively, the
"Borrowers" and individually, a "Borrower"), each lender from time to time party
hereto (collectively, the "Lenders" and individually, a "Lender"), Union Bank of
California, N.A., as Syndication Agent, U.S. Bank National Association and
JPMorgan Chase Bank, as Co-Documentation Agents, Bank of America, N.A., as
Domestic Administrative Agent, Domestic Swing Line Lender and Domestic L/C
Issuer, and Bank of America, N.A., acting through its Canadian Branch, as
Canadian Administrative Agent, Canadian Swing Line Lender and Canadian L/C
Issuer.
The Domestic Borrower, certain of the Lenders, Documentation Agent,
Syndication Agent and Domestic Administrative Agent are parties to that certain
Credit Agreement dated as of June 26, 2002 (the "Existing Credit Agreement").
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree that the Existing Credit
Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acceptance" has the meaning assigned to that term in Section 2.03(a).
"Acceptance Facility" means the bankers' acceptance facility
established under Section 2.03.
"Acceptance Usage" means, as at any date, the sum (without duplication)
of the aggregate Face Amount of all Acceptances accepted by Canadian Lenders
pursuant to Section 2.03 which have not been repaid by the Canadian Borrower,
whether or not due and whether or not held by any Lender. For purposes of this
definition, all Acceptances shall be valued in Dollar Equivalents as of any date
of determination.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any line or segment
of business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity (or
securities convertible into or exchangeable for such capital stock, partnership
interests, membership interests or equity) of any Person, or otherwise causing
any Person to become a Subsidiary, or (c) a merger, amalgamation or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that (i) a Borrower or its Subsidiary is the
surviving entity or (ii) after giving effect to such merger, amalgamation or
consolidation, such other Person has become a Subsidiary of a Borrower;
provided, further, that no acquisition described in clauses (a) or (b) above
shall constitute an Acquisition unless the total consideration (including cash,
assumed Indebtedness and equity) paid in respect thereof exceeds $2,500,000; and
provided further that in no event shall the formation or establishment of a
Subsidiary or the capitalization of or transfer to such Subsidiary of any
existing assets or business of a Borrower or any Subsidiary constitute an
Acquisition.
"Administrative Agents" means Domestic Administrative Agent and
Canadian Administrative Agent.
"Administrative Agent's Office" means, with respect to any
Administrative Agent, such Administrative Agent's address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as such
Administrative Agent may from time to time notify the Borrowers and the Lenders.
1
"Affiliate" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agents, together with
their Affiliates (including the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Aggregate Canadian Commitments" means the Commitments of all the
Canadian Lenders with respect to the Canadian Loans, the Canadian Letters of
Credit and the Acceptances, which shall not exceed $50,000,000 in the aggregate.
"Aggregate Domestic Commitments" means the Commitments of all the
Domestic Lenders with respect to the Domestic Loans and the Domestic Letters of
Credit, which shall not exceed $185,000,000 in the aggregate, subject to Section
2.15.
"Aggregate Pro Rata Share" means at any time, with respect to each
Lender, a fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is such Lender's aggregate Commitments and the
denominator of which is the sum of the Aggregate Domestic Commitments and the
Aggregate Canadian Commitments, in each case immediately prior to any
termination of the Commitments.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Consolidated Leverage Ratio as set forth in the most
recent Compliance Certificate received by the Administrative Agents pursuant to
Section 6.02(b):
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Applicable Rate
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Acceptances
Pricing Consolidated Leverage Eurodollar Rate +
Level Ratio Commitment Fee Letters of Credit Base Rate +
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1 > or = 2.00:1 0.350% 1.500% 0.250%
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2 > or = 1.50:1 BUT <2.00:1 0.300% 1.250% 0.250%
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3 > or = 1.00:1 BUT <1.50:1 0.250% 1.000% 0.000%
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4 > or = 0.50:1 BUT <1.00:1 0.250% 0.875% 0.000%
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5 <0.50:1 0.250% 0.750% 0.000%
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Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective as of the first
Business Day of the month immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b); provided, however, that if
no Compliance Certificate is delivered when due in accordance with such Section,
then Pricing Level 1 shall apply as of the first Business Day after the date on
which such Compliance Certificate was required to have been delivered until the
first Business Day after the delivery of a Compliance Certificate demonstrating
that a different Pricing Level is required. The Applicable Rate in effect from
the Closing Date through September 30, 2003 shall be based on Pricing Level 4.
"Approved Acquisitions" has the meaning specified in Section
4.01(a)(vi).
"Approved Debt Issuance" means an issuance after the Closing Date by a
Borrower of Indebtedness not otherwise permitted under Section 7.03 on terms
reasonably acceptable to the Required Lenders.
2
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit F.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and the reasonable
allocated cost of internal legal services and all reasonable expenses and
disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Domestic Borrower and its Subsidiaries for the fiscal year ended
June 30, 2002, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Domestic
Borrower and its Subsidiaries, including the notes thereto.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.04(b).
"Availability Period" means the period from and including the Closing
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Average Effective Discount Rate" means the lesser of (a) the
applicable CDOR Rate plus seven and one-half one hundredths of one percent
(0.075%) per annum and (b)(i) in respect of any Acceptances to be purchased by a
Schedule I Lender pursuant hereto, the arithmetic average of the discount rates
(calculated on an annual basis and rounded to the nearest one-hundredth of 1%,
with five-thousandths of 1% being rounded up) quoted by each Schedule I
Reference Bank at or about 10:00 a.m. (Toronto time) as the discount rate at
which such Schedule I Reference Bank would purchase, on the relevant Drawing
Date, its own bankers' acceptances having an aggregate Face Amount equal to and
with a term to maturity the same as the Acceptances to be acquired by such
Schedule I Reference Bank on such Drawing Date or (ii) in respect of any
Acceptances to be purchased by any Canadian Lender other than a Schedule I
Lender pursuant hereto, the arithmetic average of the discount rates (calculated
on an annual basis and rounded to the nearest one-hundredth of 1%, with
five-thousandths of 1% being rounded up) quoted by each Other Reference Lender
at or about 10:00 a.m. (Toronto time) as the discount rate at which such Other
Reference Lender would purchase, on the relevant Drawing Date, its own bankers'
acceptances having an aggregate Face Amount equal to and with a term to maturity
the same as the Acceptances to be acquired by such Other Reference Lender on
such Drawing Date. If any Schedule I Reference Bank or Other Reference Lender
fails to provide its quotation to the Canadian Administrative Agent, the Average
Effective Discount Rate shall be determined on the basis of the quotation by the
other Schedule I Reference Bank(s) or Other Reference Lender(s), as applicable.
"Bank of America" means Bank of America, N.A. and its successors.
"Bank of America Canada" means Bank of America, N.A., acting through
its Canadian branch, and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) in the case of Domestic Loans, the Federal Funds Rate plus 1/2 of
1%, and in the case of Canadian Loans, the average rate for 30 day Canadian
Dollar bankers' acceptances that appears on the Reuters Screen CDOR Page at
10:00 a.m. Toronto time on that day, plus 0.75% per annum, and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America (in the case of Domestic Loans) as its "prime rate" for loans in
Dollars or Bank of America Canada (in the case of Canadian Loans) as its "prime
rate" for loans in Canadian Dollars. The
3
"prime rate" is a rate set by Bank of America or Bank of America Canada (as
applicable) based upon various factors including its costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America or Bank of America
Canada (as applicable) shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate.
"Borrowers" has the meaning specified in the introductory paragraph
hereto.
"Borrower Account" has the meaning specified in Section 2.13(h).
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office of the
Domestic Administrative Agent is located and, if such day relates to any
Canadian Loan or Canadian Letter of Credit, means any such day other than a day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, New York City or the province where the Administrative Agent's
Office of the Canadian Administrative Agent is located, and, in either case, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Canadian Administrative Agent" means Bank of America Canada in its
capacity as Canadian administrative agent under any of the Loan Documents, or
any Canadian Lender which is a successor Canadian administrative agent
hereunder.
"Canadian Borrower" has the meaning specified in the introductory
paragraph hereto.
"Canadian Dollar" and "CDN. $" mean lawful money of Canada.
"Canadian L/C Issuer" means Bank of America Canada in its capacity as
issuer of Canadian Letters of Credit hereunder, or any successor issuer of
Canadian Letters of Credit hereunder.
"Canadian Lender" means any Lender identified as a Canadian Lender on
Schedule 2.01 as amended or modified from time to time in accordance with this
Agreement.
"Canadian Letter of Credit" means any Letter of Credit issued by the
Canadian L/C Issuer for the account of the Canadian Borrower.
"Canadian Loan" means any Loan extended by a Canadian Lender to the
Canadian Borrower.
"Canadian Pension Plan" means a "pension plan," "plan" or similar
arrangement which is subject to applicable pension benefits legislation in any
jurisdiction of Canada and is applicable to employees resident in Canada of a
Borrower or a Subsidiary.
"Canadian Subsidiary" means any Subsidiary that is organized under the
laws of Canada or any political subdivision of Canada.
"Canadian Swing Line" means the revolving credit facility made
available by the Canadian Swing Line Lender pursuant to Section 2.05.
4
"Canadian Swing Line Borrowing" means a borrowing of a Canadian Swing
Line Loan pursuant to Section 2.05.
"Canadian Swing Line Lender" means Bank of America Canada in its
capacity as provider of Canadian Swing Line Loans, or any Canadian Lender which
is a successor swing line lender hereunder.
"Canadian Swing Line Loan" has the meaning specified in Section
2.05(a).
"Canadian Swing Line Loan Notice" means a notice of a Canadian Swing
Line Borrowing pursuant to Section 2.05(b), which, if in writing, shall be
substantially in the form of Exhibit B.
"Canadian Swing Line Sublimit" means an amount equal to Five Million
Dollars ($5,000,000). The Canadian Swing Line Sublimit is part of, and not in
addition to, the Aggregate Canadian Commitments.
"Canadian Welfare Plan" means any medical, health, hospitalization,
insurance or other similar employee benefit or welfare plan, agreement or
arrangement applicable to employees resident in Canada of a Borrower or a
Subsidiary.
"Cash Collateralize" means to pledge and deposit with or deliver to the
applicable Administrative Agent, for the benefit of the applicable L/C Issuer
and the applicable Lenders, as collateral for the L/C Obligations and/or the
Obligations respecting the Acceptances, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to such
Administrative Agent and L/C Issuer (which documents are hereby consented to by
such Lenders). Derivatives of such term have corresponding meanings. The
applicable Borrower hereby grants to such Administrative Agent, for the benefit
of such L/C Issuer and Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash
collateral shall be maintained in blocked, non-interest bearing deposit accounts
at Bank of America (in the case of Domestic Letters of Credit) or Bank of
America Canada (in the case of Canadian Letters of Credit and Acceptances).
"CCI Acquisition" means the acquisition of the outstanding capital
stock of Career ▇▇▇▇▇▇▇, ▇▇▇. ("CCI") pursuant to the Stock Purchase and Sale
Agreement dated as of June 9, 2003 among CCI, Lombard North American Partners,
L.P. , ▇▇▇▇▇▇▇ Years, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ File, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Domestic
Borrower.
"CDI Acquisition" means the acquisition of the outstanding capital
stock of CDI Education Corporation/CDI Societe D'Education ("CDI") pursuant to
the Support Agreement dated as of June 23, 2003 among the Domestic Borrower, the
Canadian Borrower and CDI, as the same may be amended from time to time pursuant
to Section 7.12.
"CDOR Rate" means, on any day, (a) for Acceptances which have a term to
maturity of 1, 2, 3 or 6 months, the annual rate of interest determined by the
Canadian Administrative Agent which is equal to the average of the yield rates
per annum applicable to CDN.$ bankers' acceptances with a term to maturity the
same as the Acceptances proposed to be issued by the Canadian Borrower,
displayed and identified as such on the Reuters Screen Page CDOR at
approximately 10:00 a.m. (Toronto time) on such day, or if such day is not a
Business Day, then on the immediately preceding Business Day; and (b) for
Acceptances which do not have a term to maturity of 1, 2, 3 or 6 months, the
discount rate calculated by the Canadian Administrative Agent by a linear
interpolation between the rates determined in (a) above for the closest maturity
dates ending before and after the maturity date of the Acceptances proposed to
be issued by the Canadian Borrower; provided, however if such rates do not
appear on the Reuters Screen Page CDOR, then the "CDOR Rate" shall be the
arithmetic average of the discount rates (calculated on an annual basis and
rounded to the nearest one-hundredth of 1%, with five-thousandths of 1% being
rounded up) quoted by each Schedule I Reference Bank at or about 10:00 a.m.
(Toronto time) as the discount rate at which such Schedule I Reference Bank
would purchase, on such day, its own bankers' acceptances having a Face Amount
equal to and with a term to maturity the same as the Acceptances proposed to be
issued by the Canadian Borrower.
5
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have "beneficial ownership" of all securities
that such person or group has the right to acquire (such right, an "option
right"), whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the equity securities of
such Person entitled to vote for members of the board of directors or equivalent
governing body of such Person on a fully-diluted basis (and taking into account
all such securities that such person or group has the right to acquire pursuant
to any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Domestic Lender with respect to Domestic
Loans and Domestic Letters of Credit, and as to each Canadian Lender with
respect to Canadian Loans, Canadian Letters of Credit and Acceptances, its
obligation to (a) make Committed Loans to a Borrower pursuant to Section 2.01,
(b) purchase participations in L/C Obligations, (c) purchase participations in
Swing Line Loans, and (d) in the case of the Canadian Lenders, purchase and
discount Acceptances, in an aggregate principal amount at any one time
outstanding not to exceed the amount(s) set forth opposite such Lender's name on
Schedule 2.01, as such amount(s) may be adjusted from time to time in accordance
with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Rate Committed
Loans, having the same Interest Period.
"Committed Canadian Loan" has the meaning specified in Section 2.01(b).
"Committed Domestic Loan" has the meaning specified in Section 2.01(a).
"Committed Loan" means a Committed Domestic Loan or a Committed
Canadian Loan.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurodollar Rate Committed Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
6
"Consolidated Adjusted EBITDA" means, for any period, an amount equal
to Consolidated EBITDA for any Person and its Subsidiaries, as the same has been
adjusted to give effect to factually supportable and identifiable cost savings
and expenses which have been approved by the Domestic Administrative Agent and,
in addition and without duplication, such other cost savings and expenses which
would otherwise be accounted for as an adjustment pursuant to Article 11 of
Regulation S-X under the Securities Exchange Act of 1934, as amended, as if such
cost savings or expenses were realized on the first day of the applicable period
(collectively, the "S-X Adjustments"), it being understood that any S-X
Adjustments are not subject to the Domestic Administrative Agent's approval.
"Consolidated EBITDA" means, for any period, for any Person and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income (exclusive of non-operating income), (b) Consolidated
Interest Charges deducted in determining such Consolidated Net Income, (c) the
amount of taxes, based on or measured by income, used or included in the
determination of such Consolidated Net Income, (d) the amount of depreciation
and amortization expense deducted in determining such Consolidated Net Income,
including amortization of deferred debt financing fees and expenses, and (e) all
non-cash charges and extraordinary charges deducted in determining such
Consolidated Net Income, and (f) minus all nonrecurring gains and extraordinary
gains included in such Consolidated Net Income.
"Consolidated EBITDAR" means, for any period, an amount equal to
Consolidated EBITDA of the Domestic Borrower and its Subsidiaries plus, without
duplication, the consolidated rental expense of the Domestic Borrower and its
Subsidiaries (determined in accordance with GAAP and net of related sublease
income) for such period.
"Consolidated Fixed Charges" means, for any period, for the Domestic
Borrower and its Subsidiaries on a consolidated basis, the sum of, without
duplication, (a) all cash interest expense (excluding fees and expenses payable
in connection with the closing of the Loan Documents), (b) all principal
repayments of Indebtedness made that were scheduled or required to be made
(other than payments made pursuant to Sections 2.07 or 2.08 hereof) and (c) all
rental expense (determined in accordance with GAAP and net of all related
sublease rental income).
"Consolidated Fixed Charges Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDAR for the period of the four
prior fiscal quarters ending on such date minus all capital expenditures made
during such period (net of all cash proceeds received in such period from the
disposition of capital assets) and minus all taxes paid in cash during such
period to (b) Consolidated Fixed Charges for such period.
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Domestic Borrower and its Subsidiaries on a consolidated
basis, the sum of, without duplication, (a) the outstanding principal amount of
all obligations, whether current or long-term, for borrowed money (including the
Loans hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) all purchase money Indebtedness,
(c) all obligations arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, surety bonds and similar
instruments that support Indebtedness in respect of borrowed money or capital
leases that have been funded and not repaid, (d) all obligations in respect of
the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) all Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Domestic Borrower or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness is
expressly made non-recourse to the Domestic Borrower or such Subsidiary, (f)
Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, and (g) without duplication, all Guarantees with respect to
Indebtedness of the types specified in subsections (a) through (f) above of
Persons other than the Domestic Borrower or any Subsidiary.
"Consolidated Interest Charges" means, for any period, for any Person
and its Subsidiaries on a consolidated basis, the sum of (a) all interest
expense of such Person and its Subsidiaries for such period (net of all interest
income), and, without duplication, (b) the portion of rent expense of such
Person and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP, excluding fees and expenses
payable in connection with the closing of the Loan Documents and the
amortization of debt financing fees and expenses.
7
"Consolidated Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated Pro Forma Adjusted EBITDA of the Domestic Borrower and its
Subsidiaries for the period of the four fiscal quarters ending on such date.
"Consolidated Net Income" means, for any period, for any Person and its
Subsidiaries on a consolidated basis, the net income of such Person and its
Subsidiaries from continuing operations (such net income to be exclusive of (a)
non-cash charges comprising (i) for purposes of calculating Consolidated EBITDA
only, impairment of assets, (ii) cumulative effects of changes in accounting
principles (all of which are to be in accordance with GAAP) and (iii) any
non-cash stock compensation; and (b) extraordinary gains or losses); provided,
however, the effect, if any, of FAS 142 Transitional Goodwill Impairment Charges
shall be excluded from this definition and calculation.
"Consolidated Net Worth" means, as of any date of determination, for
the Domestic Borrower and its Subsidiaries on a consolidated basis,
Shareholders' Equity of the Domestic Borrower and its Subsidiaries on that date.
"Consolidated Pro Forma Adjusted EBITDA" means, for any period, an
amount equal to Consolidated Adjusted EBITDA of the Domestic Borrower and its
Subsidiaries, as the same has been adjusted by the Domestic Borrower (such
adjustment to be approved by the Domestic Administrative Agent, it being
understood that any S-X Adjustments by the Domestic Borrower shall not be
subject to the Domestic Administrative Agent's approval) on a pro forma basis to
give effect to the Consolidated Adjusted EBITDA of any Person or assets acquired
during such period (for which, and to the extent, financial statements are
available) pursuant to a Permitted Acquisition (and not subsequently sold or
otherwise disposed of by the Domestic Borrower or any of its Subsidiaries during
such period) as if the Person or assets so acquired were owned by the Domestic
Borrower for such period.
"Consolidated Tangible Assets" means, as of any date, the total assets
of the Domestic Borrower and its Subsidiaries on a consolidated basis minus all
Intangible Assets of the Domestic Borrower and its Subsidiaries on a
consolidated basis.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Corinthian Properties" means Corinthian Property Group, Inc., a
Florida corporation and wholly-owned Subsidiary of the Domestic Borrower.
"Credit Extension" means a Borrowing, an L/C Credit Extension or, in
the case of the Canadian Borrower, the creation of Acceptances by the Canadian
Lenders.
"DBNA" means the Depository Bills and Notes Act (Canada), as amended
from time to time, and any successor statute.
"Debtor Relief Laws" means the Bankruptcy Code of the United States,
the Bankruptcy and Insolvency Act (Canada) and the Companies' Creditors
Arrangement Act (Canada) and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States, Canada or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of
Default or that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate
8
Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder, or has
failed to accept any Acceptance required to be accepted by it hereunder, within
one Business Day of the date required to be funded or accepted by it hereunder,
(b) has otherwise failed to pay over to an Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within one Business
Day of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"Disposition" or "Dispose" means the sale by a Borrower or any of its
Subsidiaries to any Person other than any of its wholly-owned Subsidiaries of
(i) any of the stock of any of Subsidiaries, (ii) substantially all of the
assets of any division or line of business of a Borrower or any of its
Subsidiaries, (iii) any notes or accounts receivable or any rights associated
therewith, or (iv) any assets (whether tangible or intangible) of a Borrower or
any of its Subsidiaries outside of the ordinary course of business (other than
any such other assets to the extent that the aggregate value of such assets sold
in any single transaction or related series of transactions is equal to
$2,000,000 or less).
"DOE" means the United States Department of Education.
"DOE Ratio" means the Domestic Borrower's composite score as of any
fiscal year end, as determined by the Secretary of the DOE pursuant to Section
668.172 of the regulations promulgated by the DOE under Title IV.
"Dollar" and "$" mean lawful money of the United States.
"Dollar Equivalents" means, with respect to any amounts of Canadian
Dollars, an equivalent amount of Dollars determined at the rate of exchange
quoted by the Canadian Administrative Agent on the date of determination for the
spot purchase in the foreign exchange market of Canadian Dollars with Dollars.
"Domestic Administrative Agent" means Bank of America in its capacity
as domestic administrative agent under any of the Loan Documents, or any
successor domestic administrative agent.
"Domestic Borrower" has the meaning specified in the introductory
paragraph hereto.
"Domestic L/C Issuer" means Bank of America in its capacity as issuer
of Domestic Letters of Credit hereunder, or any successor issuer of Domestic
Letters of Credit hereunder.
"Domestic Lender" means any Lender identified as a Domestic Lender on
Schedule 2.01 as amended or modified from time to time in accordance with this
Agreement.
"Domestic Letter of Credit" means any Letter of Credit issued by the
Domestic L/C Issuer for the account of the Domestic Borrower.
"Domestic Loan" means any Loan extended by a Domestic Lender to the
Domestic Borrower.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of any political subdivision of the United States.
"Domestic Swing Line" means the revolving credit facility made
available by the Domestic Swing Line Lender pursuant to Section 2.05.
"Domestic Swing Line Borrowing" means a borrowing of a Domestic Swing
Line Loan pursuant to Section 2.05.
9
"Domestic Swing Line Lender" means Bank of America in its capacity as
provider of Domestic Swing Line Loans, or any successor domestic swing line
lender hereunder.
"Domestic Swing Line Loan" has the meaning specified in Section
2.05(a).
"Domestic Swing Line Loan Notice" means a notice of a Domestic Swing
Line Borrowing pursuant to Section 2.05(b), which, if in writing, shall be
substantially in the form of Exhibit B.
"Domestic Swing Line Sublimit" means an amount equal to Five Million
Dollars ($5,000,000). The Domestic Swing Line Sublimit is part of, and not in
addition to, the Aggregate Domestic Commitments.
"Drafts" means, at any time, either a depository ▇▇▇▇ within the
meaning of the DBNA or a ▇▇▇▇▇ ▇▇▇▇ of exchange, within the meaning of the Bills
of Exchange Act (Canada), drawn by the Canadian Borrower on a Canadian Lender
and bearing such distinguishing letters and numbers as such Canadian Lender may
determine, but which at such time, except as otherwise provided herein, has not
been completed or accepted by such Canadian Lender.
"Drawing" means the acceptance of Acceptances by a Canadian Lender
pursuant to Section 2.03.
"Drawing Date" means any Business Day fixed pursuant to Section 2.03(b)
for a Drawing.
"Drawing Fee" means, with respect to the Drafts drawn by the Canadian
Borrower hereunder and accepted by any Canadian Lender as provided herein on any
Drawing Date, an amount equal to the Applicable Rate per annum on the aggregate
Face Amount of such Drafts calculated on the basis of the term to maturity of
such Draft and a year of 365 days.
"Drawing Notice" has the meaning assigned to that term in Section
2.03(b).
"Drawing Purchase Price" means, in respect of Acceptances to be
purchased by a Canadian Lender, the difference between (i) the result (rounded
to the nearest whole cent, with one-half of one cent being rounded up) obtained
by dividing the aggregate Face Amount of such Acceptances by the sum of one plus
the product of (x) the applicable Average Effective Discount Rate multiplied by
(y) a fraction the numerator of which is the term of such Acceptances and
denominator of which is 365; and (ii) the applicable Drawing Fee.
"ECAT Acquisition" means the acquisition of substantially all the
assets of East Coast Aero Tech, LLC ("ECAT") pursuant to the Asset Purchase
Agreement dated as of June 4, 2003 among Titan Schools Inc. (formerly known as
Wyo-Tech Acquisition Corp.), ECAT, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇.
"Eligible Assignee" has the meaning specified in Section 10.07(g).
"Environmental Laws" means any and all Federal, state, provincial,
local, and foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
or governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated
10
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any Borrower or any
ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Domestic Administrative Agent in the case of Domestic Loans and the Canadian
Administrative Agent in the case of Canadian Loans, to be the offered rate that
appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars in the case of Domestic Loans and Canadian Dollars in the
case of Canadian Loans (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does
not appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the applicable
Administrative Agent to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars or Canadian Dollars as applicable (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and
(b) are not available, the rate per annum determined by the applicable
Administrative Agent as the rate of interest at which deposits in Dollars or
Canadian Dollars as applicable for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate Loan
being made, continued or converted by the applicable Administrative Agent and
with a term equivalent to such Interest Period would be offered by the
applicable Administrative Agent's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan.
"Event of Default" has the meaning specified in Section 8.01.
"Existing Letters of Credit" means the letters of credit issued for the
account of the Borrower by Bank of America and listed on Schedule 2.04 annexed
hereto which will, as of the Closing Date, be deemed outstanding as Domestic
Letters of Credit issued pursuant to Section 2.04.
"Face Amount" means, in respect of a Draft or an Acceptance, as the
case may be, the amount payable to the holder thereof on its maturity.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the
11
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the
Domestic Administrative Agent.
"Fee Letter" means the letter agreement dated July 14, 2003, among the
Domestic Borrower, the Domestic Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 10.15(a).
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of any jurisdiction other than a political subdivision of the United
States, Canada or a political subdivision of Canada.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state,
province or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.
"Guarantors" means, with respect to the Obligations of the Domestic
Borrower, collectively, each Domestic Subsidiary of the Domestic Borrower that
is a Material Subsidiary (other than Corinthian Properties), whether now
existing or hereafter arising, and means, with respect to the Obligations of the
Canadian Borrower, collectively, the Domestic Borrower, each Domestic Subsidiary
thereof that is a Material Subsidiary (other than Corinthian Properties) and
each Canadian Subsidiary (other than the Canadian Borrower) of a Borrower that
is a Material Subsidiary, in both cases whether now existing or hereafter
existing, subject (in the case of a new Material Subsidiary) to the time delays
set forth in the first parenthetical of Section 6.12.
"Guaranties" means the Guaranties made by the respective Guarantors in
favor of an Administrative Agent on behalf of the Lenders, substantially in the
form of Exhibits D-1 and D-2.
"Guarantee" means, as to any Person, any (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
12
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements, bankers' acceptances or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract in an
amount equal to the Swap Termination Value thereof;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) Attributable Indebtedness of such Person in respect of capital
leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Intangible Assets" means assets that are considered to be intangible
assets that are not subject to amortization under GAAP, including goodwill,
trade names, trademarks, patents, franchises and licenses to the extent that
such items are not subject to amortization under GAAP.
"Interbank Reference Rate" means the interest rate expressed as a
percentage per annum which is customarily used by the Canadian Administrative
Agent when calculating interest due by it or owing to it arising from correction
of errors between it and other chartered banks.
"Interest Payment Date" means, (a) as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate Committed Loan) converted to or continued as a Eurodollar
Rate Loan and ending on the date one, two, three or six months thereafter, as
selected by a Borrower in its Committed Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Rate Loan, such
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
13
(ii) any Interest Period pertaining to a Eurodollar Rate
Loan that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person of any of the following: (a) the
purchase or other acquisition of 50% or less of the capital stock, partnership
interests, membership interests or equity (or securities convertible into or
exchangeable for such capital stock, partnership interests, membership interests
or equity) of any Person; (b) a loan, advance or capital contribution to,
Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) the purchase
or other acquisition of assets of another Person that does not constitute an
Acquisition; provided that in no event shall an Acquisition constitute an
Investment. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.16.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state,
provincial and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuers" means, collectively, the Domestic L/C Issuer and the
Canadian L/C Issuer.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuers and the Swing Line
Lenders.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrowers and the Administrative Agents.
"Letter of Credit" means any letter of credit issued hereunder. A
Letter of Credit may be a commercial letter of credit or a standby letter of
credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the applicable L/C Issuer.
14
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means, with respect to the Domestic Letters
of Credit, an amount equal to Twenty-Five Million Dollars ($25,000,000) and,
with respect to the Canadian Letters of Credit, an amount equal to Ten Million
Dollars ($10,000,000). The applicable Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Domestic Commitments and the Aggregate
Canadian Commitments, respectively.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing).
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, the
Security Documents and any Swap Contracts executed with a Lender or any of its
Affiliates.
"Loan Parties" means, collectively, each Borrower and each Guarantor.
"Long Term Student Note Receivables" means, the aggregate outstanding
principal amount of loans to students or former students of any Borrower and its
Subsidiaries which have a remaining repayment term of one year or more.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the business, results of operation, condition
(financial or otherwise) or prospects of the Loan Parties taken as a whole; (b)
a material impairment of the ability of the Loan Parties, taken as a whole, to
perform their obligations under the Loan Documents; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.
"Material Subsidiary" means, at any time, any Subsidiary of a Borrower
that owns more than $1,000,000 of assets or that had more than $1,000,000 of
revenue for the four prior fiscal quarters; provided that the total consolidated
assets of Subsidiaries that are not Material Subsidiaries shall not exceed
$2,000,000 at any time, and provided further that the total consolidated revenue
for the prior four fiscal quarters of all Subsidiaries that are not Material
Subsidiaries shall not exceed $2,000,000.
"Maturity Date" means August 31, 2006.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Nonrenewal Notice Date" has the meaning specified in Section
2.04(b)(iii).
"Note" means a promissory note made by a Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan, Acceptance or Letter of Credit,
whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
15
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Other Reference Lenders" means those Canadian Lenders identified as an
Other Reference Lender on Schedule 2.01.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of Committed
Loans and Swing Line Loans, as the case may be, occurring on such date; (ii)
with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date; and (iii) with respect to Acceptances on any date, the aggregate
Acceptance Usage.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by any Borrower or
any ERISA Affiliate or to which any Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Permitted Acquisitions" means the CDI Acquisition (which Acquisition
shall only be subject to clause (vi) below) and any other Acquisitions by any
Borrower or any of its Subsidiaries of Persons and/or assets that meet each of
the following criteria:
(i) for each such other Acquisition, the prior, effective
written consent or approval to such Acquisition of the board of
directors or equivalent governing body of the other party or parties
has been obtained;
(ii) the Borrowers shall have complied with the
requirements of Section 6.13, if applicable;
(iii) the Persons or assets to be acquired are in (or used
in) the Post-Secondary Education Business or other businesses permitted
under Section 7.07 hereof;
(iv) if the total consideration paid (including assumed
Indebtedness, if any) exceeds Fifteen Million Dollars ($15,000,000),
the Person to be acquired (x) must have positive adjusted earnings
before interest expense and income taxes (it being understood that any
adjustment to earnings that is not an S-X Adjustment must be approved
by the Domestic Administrative Agent) and (y) if such Person is
required to be accredited, must be accredited by any applicable
Governmental Authorities and in full regulatory compliance therewith in
all material respects;
(v) immediately before and after giving effect to the
proposed Acquisition, (x) no Default or Event of Default shall have
occurred and be continuing and each Borrower and each other Loan Party
must be in compliance with the terms of the Loan Documents and with all
material regulatory requirements, and (y) colleges representing 90% of
the operating cash flow of the Domestic Borrower and its Subsidiaries
16
must be in good standing with all applicable accrediting agencies, it
being understood that, for purposes hereof, the failure to be in good
standing means that the Domestic Borrower or a Subsidiary of the
Domestic Borrower shall have received an order, notice or other
decision from a state that has given such college authority to provide
postsecondary education in that state that such college's authority to
provide postsecondary education is or will be withdrawn, revoked or
terminated;
(vi) within thirty (30) days following consummation of
such Acquisition or, in the case of an Acquisition of a publicly-held
Canadian Subsidiary, within four (4) months following the consummation
of such Acquisition, the acquired Person (if any) shall execute the
documents described in Section 6.12 and the Borrowers shall execute or
cause the execution of a Pledge Agreement with respect to the acquired
Person's capital stock, membership interest or partnership interest, if
applicable;
(vii) in the case of any such other individual Acquisition
completed after the date of this Agreement, the total consideration
(cash, assumed Indebtedness and equity) paid shall be less than
$75,000,000;
(viii) the aggregate total cash consideration (including
assumed Indebtedness, if any) paid for any such other Acquisition,
together with all other Acquisitions (excluding the CCI Acquisition,
the CDI Acquisition and the ECAT Acquisition) made during the same
fiscal quarter as such other Acquisition or any of the three (3)
immediately preceding fiscal quarters, shall be less than the
Consolidated EBITDA of Domestic Borrower and its Subsidiaries during
the four (4) immediately preceding fiscal quarters; and
(ix) the aggregate total consideration (including cash,
assumed Indebtedness and equity, if any) paid for any such other
Acquisitions, together with all other Acquisitions (excluding the CCI
Acquisition, the CDI Acquisition and the ECAT Acquisition) made during
the same fiscal quarter as such other Acquisition or any of the three
(3) immediately preceding fiscal quarters, shall be less than the
product of one and one-half times the Consolidated EBITDA of Domestic
Borrower and its Subsidiaries during the four (4) immediately preceding
fiscal quarters.
"Permitted Liens" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges
or claims the payment of which is not, at the time, required by Section
6.04;
(ii) statutory Liens of landlords, statutory Liens of
banks and rights of set-off, statutory Liens of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed
by law, in each case incurred in the ordinary course of business (a)
for amounts not yet overdue or (b) for amounts that are overdue and
that (in the case of any such amounts overdue for a period in excess of
30 days) are being contested in good faith by appropriate proceedings,
so long as such reserves or other appropriate provisions, if any, as
shall be required by GAAP shall have been made for any such contested
amounts;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an
Event of Default under Section 8.01(h);
(v) leases or subleases granted to third parties and not
interfering in any material respect with the ordinary conduct of the
business of a Borrower or any of its Subsidiaries;
17
(vi) easements, rights-of-way, restrictions,
encroachments, and other minor defects or irregularities in title, in
each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of a Borrower or any of its
Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor
under any lease permitted by this Agreement, (b) restriction or
encumbrance that the interest or title of such lessor or sublessor may
be subject to, or (c) subordination of the interest of the lessee or
sublessee under such lease to any restriction or encumbrance referred
to in the preceding clause (b);
(viii) Liens arising from filing UCC or PPSA financing
statements relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(x) any zoning or similar Law or right reserved to or
vested in any governmental office or agency to control or regulate the
use of any real property;
(xi) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business of a Borrower and its Subsidiaries;
(xii) Licenses of patents, trademarks and other
intellectual property rights granted by a Borrower or any of its
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such
Borrower or such Subsidiary; and
(xiii) Liens or reservations contained in the original grant
from the Crown in respect of Canadian real property.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pledge Agreements" means the Pledge Agreements executed and delivered
pursuant to Section 4.01(a)(iv), as such agreements may be amended,
supplemented, restated or otherwise modified from time to time, which will be in
substantially the form of Exhibit G hereto and which will (subject to the time
delays set forth in clause (vi) of the definition of "Permitted Acquisition" in
connection with the Acquisition of a new Subsidiary), with respect to the
Obligations of the Domestic Borrower, cover all equity interests in each
Domestic Subsidiary of the Domestic Borrower and such portion of the equity
interests of each Canadian Subsidiary and Foreign Subsidiary that is a direct
Subsidiary of the Domestic Borrower or a Domestic Subsidiary sufficient to
pledge to the Domestic Administrative Agent an aggregate amount of 65% of the
total equity interests of each such Canadian Subsidiary and Foreign Subsidiary,
and which will (subject to the time delays set forth in clause (vi) of the
definition of "Permitted Acquisitions" in connection with the Acquisition of a
new Subsidiary), with respect to the Obligations of the Canadian Borrower, cover
all equity interests in all Subsidiaries of the Domestic Borrower, provided,
however, that the Pledge Agreements will not cover any equity interests in a
Foreign Subsidiary that is not a direct Subsidiary of the Domestic Borrower or
any of its Domestic Subsidiaries.
"Post-Secondary Education Business" means the business of operating
eligible institutions of higher education in the U.S. as defined in the Higher
Education Act of 1965, as amended, and the business of operating similar
institutions of higher education in Canada.
18
"Pro Rata Share" means at any time, with respect to each Domestic
Lender in regard to the Domestic Loans and the Domestic Letters of Credit, or
with respect to each Canadian Lender in regard to the Canadian Loans, the
Canadian Letters of Credit and the Acceptances, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Commitment of such Lender at such time in regard to the
Domestic Loans and the Domestic Letters of Credit or in regard to the Canadian
Loans, the Canadian Letters of Credit and the Acceptances, and the denominator
of which is the amount of the Aggregate Domestic Commitments or the Aggregate
Canadian Commitments as applicable at such time. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, (c) with
respect to a Domestic Swing Line Loan, a Domestic Swing Line Loan Notice, (d)
with respect to a Canadian Swing Line Loan, a Canadian Swing Line Loan Notice
and (e) with respect to an Acceptance, a Drawing Notice.
"Required Lenders" means, as of any date of determination, Lenders
having more than 50% of the sum of the Aggregate Domestic Commitments and the
Aggregate Canadian Commitments or, if the Commitments have been terminated,
Lenders holding in the aggregate more than 50% of the Total Outstandings (taking
into account funded participations in L/C Obligations and Swing Line Loans);
provided that the Commitment of, and the outstanding principal amount of the
Total Outstandings (taking into account funded participations in L/C Obligations
and Swing Line Loans) held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president,
executive vice president, senior vice president, chief financial officer,
treasurer or assistant treasurer of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock or
other equity interest of the Domestic Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
equity interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest.
"Schedule I Lender" means any Canadian Lender that is a bank referred
to in Schedule I to the Bank Act (Canada), S.C. 1991, c.46, as amended.
"Schedule I Reference Banks" means those Canadian Lenders identified as
a Schedule I Reference Bank on Schedule 2.01.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Documents" means the Guaranties, the Pledge Agreements, and
all other collateral security documents hereafter executed in favor of any
Administrative Agent for the benefit of the Lenders.
"Shareholders' Equity" means, as of any date of determination,
consolidated shareholders' equity of the Domestic Borrower and its Subsidiaries
as of that date determined in accordance with GAAP.
19
"Solvent" means, as to any Person at any time, that (i) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (whether subordinated, contingent, unmatured, unliquidated or
otherwise); (ii) the present fair saleable value of the property of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (iii) such
Person is able to pay its debts and other liabilities as they mature in the
normal course of business; (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Domestic Subsidiary, Canadian
Subsidiary or Foreign Subsidiary or Subsidiaries of a Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"Swing Line Borrowing" means a Domestic Swing Line Borrowing or a
Canadian Swing Line Borrowing.
"Swing Line Lenders" means the Domestic Swing Line Lender and the
Canadian Swing Line Lender.
"Swing Line Loan" means a Domestic Swing Line Loan or a Canadian Swing
Line Loan.
"Swing Line Loan Notice" means a Domestic Swing Line Loan Notice or
Canadian Swing Line Loan Notice.
"Syndication Agent" means UBOC, in its sole capacity as syndication
agent hereunder.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
20
"S-X Adjustment" has the meaning set forth in the definition of the
term "Consolidated Adjusted EBITDA".
"Title IV" means Title IV of the Higher Education Action of 1965, as
amended.
"Total Outstandings" means the aggregate Outstanding Amount of all
Loans, all L/C Obligations and Acceptances.
"Type" means with respect to a Committed Loan to a particular Borrower,
its character as a Base Rate Loan or a Eurodollar Rate Loan.
"UBOC" means Union Bank of California, N.A.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.04(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and
"hereunder" and words of similar import when used in any Loan Document shall
refer to such Loan Document as a whole and not to any particular provision
thereof.
(ii) Article, Section, Exhibit and Schedule references are
to the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all
instruments, documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced, whether in
physical or electronic form.
(c) In the computation of periods of time from a specified date to
a later specified date, the word "from" means "from and including;" the words
"to" and "until" each mean "to but excluding;" and the word "through" means "to
and including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
(e) Any limitations herein expressed in terms of Dollars shall, to
the extent such limitations apply to the sums of Canadian Loans, Canadian
Letters of Credit or Acceptances available hereunder (as denominated in Canadian
Dollars), be calculated upon the Dollar Equivalents of such sums.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
21
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements.
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Borrowers or the Required Lenders shall so request, the Administrative
Agents, the Lenders and the Borrowers shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrowers shall provide to the Administrative Agents and the Lenders financial
statements and other documents required under this Agreement or as reasonably
requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP.
(c) If at any time any regulatory change in the DOE Ratio would
affect the computation of the DOE Ratio or Section 7.11(d), and either the
Borrowers or the Required Lenders shall so request, the Administrative Agents,
the Lenders and the Borrowers shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in the DOE Ratio; provided that, until so amended, such ratio or requirement
shall continue to be computed in accordance with regulations referred to in the
definition of the DOE Ratio prior to such change therein.
1.04 ROUNDING. Any financial ratios required to be maintained by
the Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 TIMES OF DAY. Unless otherwise specified, all references to
times of day herein shall be references to Pacific time (daylight or standard,
as applicable), except where such references pertain to Canadian Loans, Canadian
Letters of Credit or Acceptances, in which case such references shall be to
Eastern time (daylight or standard, as applicable).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 COMMITTED LOANS.
(a) Subject to the terms and conditions set forth herein, each
Domestic Lender severally agrees to make loans (each such loan, a "Committed
Domestic Loan") to the Domestic Borrower from time to time, on any Business Day
during the Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Domestic Lender's Commitment with respect to
Domestic Loans and Domestic Letters of Credit; provided, however, that after
giving effect to any Committed Borrowing, (i) the Total Outstandings with
respect to Domestic Loans and Domestic Letters of Credit shall not exceed the
Aggregate Domestic Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Domestic Loans of any Domestic Lender, plus such Domestic Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations with respect to
Domestic Letters of Credit, plus such Domestic Lender's Pro Rata Share of the
Outstanding Amount of all Domestic Swing Line Loans shall not exceed such
Lender's Commitment with respect to Domestic Loans and Domestic Letters of
Credit. Within the limits of each Domestic Lender's Commitment, and subject to
the other terms and conditions hereof, the
22
Domestic Borrower may borrow under this Section 2.01(a), prepay under Section
2.06, and reborrow under this Section 2.01(a). Committed Domestic Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein. Committed
Domestic Loans shall be funded and repaid in Dollars.
(b) Subject to the terms and conditions set forth herein, each
Canadian Lender severally agrees to make loans in Canadian Dollars (each such
loan, a "Committed Canadian Loan") to the Canadian Borrower from time to time,
on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Canadian Lender's
Commitment with respect to Canadian Loans and Canadian Letters of Credit;
provided, however, that after giving effect to any Committed Borrowing, (i) the
sum of (A) Total Outstandings with respect to Canadian Loans and Canadian
Letters of Credit and (B) the aggregate Acceptance Usage shall not exceed the
Aggregate Canadian Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Canadian Loans of any Canadian Lender, plus such Canadian Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations with respect to
Canadian Letters of Credit, plus such Canadian Lender's Pro Rata Share of the
Outstanding Amount of all Canadian Swing Line Loans, plus such Canadian Lender's
Pro Rata Share of the aggregate Acceptance Usage shall not exceed such Lender's
Commitment with respect to Canadian Loans, Canadian Letters of Credit and
Acceptances. Within the limits of each Canadian Lender's Commitment, and subject
to the other terms and conditions hereof, the Canadian Borrower may borrow under
this Section 2.01(b), prepay Committed Canadian Loans under Section 2.06,
reborrow Committed Canadian Loans under this Section 2.01(b) and request the
Canadian Lenders to create Acceptances pursuant to Section 2.03. Committed
Canadian Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein. Committed Canadian Loans shall be funded and repaid in Canadian
Dollars, and the aggregate sum of Committed Canadian Loans available hereunder
shall be determined upon their Dollar Equivalents.
(c) If the Dollar Equivalent of the sum of Outstanding Amounts of
Canadian Loans, L/C Obligations in respect of Canadian Letters of Credit and the
aggregate Acceptance Usage for any reason shall exceed 100% of the Aggregate
Canadian Commitments, the Canadian Borrower shall within 10 Business Days after
notice from the Canadian Administrative Agent of such excess repay Canadian
Loans by the amount of such excess. Amounts repaid in accordance with this
Section 2.01(c) may be reborrowed in accordance with the terms and conditions of
this Agreement.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) The Domestic Borrower may request Committed Domestic Loans by
notice to the Domestic Administrative Agent, and the Canadian Borrower may
request Committed Canadian Loans by notice to the Canadian Administrative Agent,
all as provided below. Each Committed Borrowing, each conversion of Committed
Loans from one Type to the other, and each continuation of Committed Loans as
the same Type shall be made upon the applicable Borrower's irrevocable notice to
the applicable Administrative Agent, which may be given by telephone. Each such
notice must be received by the applicable Administrative Agent not later than
9:30 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Committed Loans or of any
conversion of Eurodollar Rate Committed Loans to Base Rate Committed Loans, and
(ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
such telephonic notice must be confirmed promptly by delivery to the applicable
Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of the applicable Borrower. Each Committed
Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof. Each Committed Borrowing of or conversion to Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple
of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or
written) shall specify (i) whether the applicable Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other,
or a continuation of Eurodollar Rate Committed Loans, (ii) the requested date of
the Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Committed Loans to be borrowed,
converted or continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the applicable Borrower
fails to specify a Type of Committed Loan in a Committed Loan Notice or if such
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Committed Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be
23
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Committed Loans. If the applicable Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Committed Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Committed Loan Notice, the applicable
Administrative Agent shall promptly notify each applicable Lender of its Pro
Rata Share of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the applicable Borrower, such
Administrative Agent shall notify each such Lender of the details of any
automatic conversion to Base Rate Loans described in the preceding subsection.
In the case of a Committed Borrowing, each applicable Lender shall make the
amount of its Committed Loan available to the applicable Administrative Agent in
immediately available funds at the applicable Administrative Agent's Office not
later than 11:00 a.m. on the Business Day specified in the applicable Committed
Loan Notice. Upon satisfaction of the applicable conditions set forth in Section
4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
applicable Administrative Agent shall make all funds so received available to
the applicable Borrower in like funds as received by such Administrative Agent
by crediting the account of such Borrower on the books of Bank of America or
Bank of America Canada (as applicable) with the amount of such funds or
otherwise disbursing such funds in accordance with the applicable Borrower's
written instructions; provided, however, that if, on the date of a Committed
Borrowing there are L/C Borrowings by such Borrower outstanding, then the
proceeds of such Borrowing shall be applied, first, to the payment in full of
any such L/C Borrowings, and second, to such Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Committed Loan may be continued or converted only on the last day of an Interest
Period for such Eurodollar Rate Committed Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Committed Loans without the consent of the Required Lenders.
(d) The applicable Administrative Agent shall promptly notify the
applicable Borrower and the applicable Lenders of the interest rate applicable
to any Interest Period for Eurodollar Rate Committed Loans upon determination of
such interest rate. The determination of the Eurodollar Rate by such
Administrative Agent shall be conclusive in the absence of manifest error. The
applicable Administrative Agent shall notify the applicable Borrower and the
applicable Lenders of any change in the prime rate of Bank of America or Bank of
America Canada (as applicable) used in determining the Base Rate promptly
following the public announcement of such change if any Base Rate Loans are then
outstanding.
(e) After giving effect to all Committed Borrowings, all
conversions of Committed Loans from one Type to the other, and all continuations
of Committed Loans as the same Type, there shall not be more than eight (8)
Interest Periods in effect with respect to Domestic Loans and not more than five
(5) Interest Periods in effect with respect to Canadian Loans.
2.03 ACCEPTANCES.
(a) In addition to requesting Committed Canadian Loans pursuant to
Section 2.01(b), the Canadian Borrower may request pursuant to this Section
2.03(a), from time to time during the Availability Period, that the Canadian
Lenders create bankers' acceptances (each, an "Acceptance") by accepting Drafts
from the Canadian Borrower in an aggregate amount not exceeding each of the
Canadian Lender's Commitments; provided that the Canadian Borrower shall not
request the creation and purchase of any Acceptance if, after giving effect
thereto, the sum of (i) Total Outstandings with respect to Canadian Loans,
Letters of Credit and Acceptance Usage would exceed the Aggregate Canadian
Commitments then in effect, and no Canadian Lender shall have any obligation to
create and purchase any Acceptance if, after giving effect thereto, the sum of
(i) Total Outstandings with respect to Canadian Loans and Letters of Credit of
such Canadian Lender plus (ii) such Canadian Lender's Pro Rata Share of all
Canadian Swing Line Loans, plus (iii) the aggregate Acceptance Usage of such
Canadian Lender would exceed its Commitment with respect to Canadian Loans,
Canadian Letters of Credit and Acceptances.
Each Drawing shall be in an aggregate Face Amount of not less than
Cdn.$3,000,000 and in integral multiples of Cdn.$100,000 and shall consist of
the creation and purchase of Acceptances by Canadian Lenders on
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the same day in accordance with Section 2.03, ratably in accordance with their
respective Pro Rata Shares; provided that if apportionment of Acceptances among
the Canadian Lenders cannot be made on a pro rata basis in even multiples of
Cdn.$100,000, the Canadian Administrative Agent shall round the allocations
among Canadian Lenders consistent with the Canadian Administrative Agent's money
market practices. There shall not be more than eight (8) Drawings in effect with
respect to Acceptances.
Whenever the Canadian Borrower requests the Canadian Lenders to create
Acceptances, each Canadian Lender that is not permitted by applicable law or by
customary market practice to accept an Acceptance (a "Non BA Lender") shall, in
lieu of accepting its pro rata amount of such Acceptances, make available to the
Canadian Borrower on the Drawing Date a loan (a "BA Equivalent Loan") in
Canadian Dollars and in an amount equal to the Drawing Purchase Price of the
Acceptances that the Non BA Lender would have been required to accept on the
Drawing Date if it were able to accept Acceptances. To the extent not otherwise
deducted in the calculation of the amount of the BA Equivalent Loan, each Non BA
Lender shall also be entitled to deduct from the BA Equivalent Loan an amount
equal to the Drawing Fee that would have been applicable had it been able to
accept Acceptances. The BA Equivalent Loan shall have a term equal to the term
of the Acceptances that the Non BA Lender would otherwise have accepted and the
Canadian Borrower shall, at the end of that term, be obligated to pay the Non BA
Lender an amount equal to the aggregate face amount of the Acceptances that it
would otherwise have accepted. All provisions of this Agreement applicable to
Acceptances and Canadian Lenders that accept Acceptances shall apply mutatis
mutandis to BA Equivalent Loans and Non BA Lenders.
(b) Each Drawing shall be made on two Business Days prior written
notice, given not later than 12:00 noon (Toronto time), by the Canadian Borrower
to the Canadian Administrative Agent, which shall give each Canadian Lender
prompt notice thereof and of such Canadian Lender's ratable portion of aggregate
Face Amount of the Drafts to be accepted under the Drawing. Each such notice of
a Drawing (a "Drawing Notice") shall be given in substantially the form of
Exhibit H hereto or by telephone confirmed promptly in writing in substantially
the form of Exhibit H, and shall specify therein (i) the Drawing Date; (ii) the
aggregate Face Amount of Drafts to be accepted; and (iii) the maturity date for
such Drafts (it being agreed and understood that the Canadian Borrower shall not
request a maturity date for Drafts that would be subsequent to the Maturity
Date).
Neither the Canadian Administrative Agent nor any Canadian Lender shall
incur any liability to the Canadian Borrower in acting on the telephonic notice
referred to above which the Canadian Administrative Agent or such Canadian
Lender believes in good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of the Canadian Borrower or for
otherwise acting in good faith under this Section 2.03, and upon the creation
and purchase or delivery of Acceptances pursuant to any such telephonic notice,
the Canadian Borrower shall be liable with respect thereto as provided herein.
Each Drawing Notice shall be irrevocable and binding on the Canadian
Borrower. The Canadian Borrower shall indemnify each Canadian Lender against any
loss or expense incurred by such Canadian Lender as a result of any failure by
the Canadian Borrower to fulfill or honor before the date specified for any
Drawing, the applicable conditions set forth in this Section 2.03 if the
Drawing, as a result of such failure, is not made on such date.
(c) Each Draft presented by the Canadian Borrower shall (i) be in
an integral multiple of Cdn.$100,000; (ii) be dated the date of the Drawing;
(iii) mature and be payable by the Canadian Borrower (in common with all other
Drafts presented in connection with such Drawing) on a Business Day which occurs
approximately 30, 60, 90 or 180 days after the date thereof or such shorter
period than 180 days as agreed by the Canadian Borrower and the Canadian
Administrative Agent; and (iv) be otherwise consistent with the provisions of
this Agreement relating to the amounts and maturity dates thereof.
The Canadian Borrower hereby renounces, and shall not claim, any days
of grace for the payment of any Acceptances.
(d) Not later than 11:00 a.m. (Toronto time) on an applicable
Drawing Date, each Canadian Lender shall complete one or more Drafts dated the
date of such Drawing, with the maturity date specified in the applicable Drawing
Notice, accept such Drafts, and following fulfillment of any applicable
conditions and as specified in the applicable Drawing Notice, purchase the
Acceptances thereby created for the Drawing Purchase Price.
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The failure of any Canadian Lender to create and purchase or deliver
Acceptances as part of any Drawing shall not relieve any other Canadian Lender
of its obligation, if any, to create and purchase or deliver Acceptances
hereunder, but a Canadian Lender shall not be responsible for the failure of any
other Canadian Lender to create and purchase or deliver Acceptances on the
Drawing Date for any Drawing.
(e) Subject to Section 2.03(b) and satisfaction of the conditions
set forth in Section 4.03, each Canadian Lender shall, before 12:00 noon
(Toronto time) on the applicable Drawing Date, pay or cause to be paid the
Drawing Purchase Price in respect of any Acceptances to be purchased by such
Canadian Lender by depositing or causing to be deposited such amount to such
account maintained by the Canadian Administrative Agent at its Administrative
Agent's Office as shall have been notified to such Canadian Lender by the
Canadian Administrative Agent, in Canadian Dollars in same day funds. Promptly
upon receipt of such funds, the Canadian Administrative Agent shall make such
funds available to the Canadian Borrower by debiting such account (or causing
such account to be debited), and (a) by crediting the Canadian Borrower's
account, as specified by the Canadian Borrower in writing to the Canadian
Administrative Agent prior thereto, maintained by the Canadian Administrative
Agent at its Administrative Agent's Office (or causing such account to be
credited) with like funds in the aggregate amount of such funds or (b) by wiring
such funds in such amount to the account of the Canadian Borrower with another
financial institution specified prior thereto by the Canadian Borrower in
writing to the Canadian Administrative Agent.
Acceptances purchased by a Canadian Lender hereunder may be held by it
for its own account until maturity or sold by it at any time prior thereto in
any relevant market therefor in Canada, in such Canadian Lender's sole
discretion.
(f) Each Schedule I Reference Bank or Other Reference Lender, as
the case may be, agrees to furnish to the Canadian Administrative Agent timely
information for the purpose of determining each Average Effective Discount Rate.
If any one or more of the Schedule I Reference Banks or Other Reference Lenders
shall not furnish such information to the Canadian Administrative Agent, the
Canadian Administrative Agent shall determine such Average Effective Discount
Rate on the basis of timely information furnished by the remaining Schedule I
Reference Bank or Other Reference Lender, as applicable.
The Canadian Administrative Agent shall give prompt notice to the
Canadian Borrower and the Canadian Lenders of each Average Effective Discount
Rate determined by the Canadian Administrative Agent for an applicable Drawing
Date and the applicable discount rates, if any, furnished by each Schedule I
Reference Bank and Other Reference Lender for determining any applicable Average
Effective Discount Rate.
(g) The Canadian Borrower unconditionally hereby agrees to pay to
the Canadian Administrative Agent for the account of each Canadian Lender, on
the maturity date for each Acceptance an amount in Canadian Dollars in same day
funds equal to the Face Amount of such then-maturing Acceptance.
The obligation of the Canadian Borrower set forth above to pay to the
Canadian Administrative Agent the Face Amount of any then-maturing Acceptance
may be satisfied by paying to the Canadian Administrative Agent at or before
12:00 noon (Toronto time) on the maturity date for such Acceptance an amount in
Canadian Dollars in same day funds equal to the Face Amount of such Acceptance;
provided that the Canadian Borrower shall have given not less than one Business
Day's prior notice to the Canadian Administrative Agent (which shall promptly
notify each Canadian Lender thereof) of its intent to pay the Canadian
Administrative Agent in the manner contemplated by this sentence. The Canadian
Borrower shall make each payment hereunder in respect of Acceptances by deposit
of the required funds to the Canadian Administrative Agent at its Administrative
Agent's Office. Upon receipt of such payment, the Canadian Administrative Agent
will promptly thereafter cause such payment to be distributed in like funds in
payment of Acceptances ratably (based on the proportion that the aggregate Face
Amount of Acceptances accepted by any Canadian Lender maturing on the relevant
date bears to the aggregate Face Amount of Acceptances accepted by all Canadian
Lenders maturing on such date) to Canadian Lenders for their account. Such
payment to the Canadian Administrative Agent shall satisfy the Canadian
Borrower's obligations under any Acceptances to which it relates and each
Canadian Lender that has accepted such Acceptances shall thereafter be solely
responsible for the payment of such Acceptances.
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The obligation of the Canadian Borrower set forth in the first
paragraph of this Section 2.03(g) to pay to the Canadian Administrative Agent
the Face Amount of any then-maturing Acceptance may be satisfied by the Canadian
Borrower requesting that new Drafts in an amount sufficient to repay any
then-maturing Acceptances be accepted and discounted by the Canadian Lenders in
the manner contemplated by Section 2.03 in substitution for any then-maturing
Acceptance (to the extent that such amount is otherwise available hereunder);
provided that no Default or Event of Default shall have occurred and be
continuing and the Canadian Borrower shall have delivered to the Canadian
Administrative Agent (which shall promptly provide a copy thereof to each
Canadian Lender) a duly completed Drawing Notice not later than 12:00 noon
(Toronto time) one Business Day prior to such maturity date, together with any
other documents, instruments, certificates and other information contemplated by
Section 2.03.
In the event the Canadian Borrower does not or cannot for any reason
comply with the provisions of the two previous paragraphs with respect to the
obligation of the Canadian Borrower to pay to the Canadian Administrative Agent
the Face Amount of any then-maturing Acceptance, the unpaid amount due and
payable in respect thereof shall be converted as of such date, and without any
necessity for the Canadian Borrower to request a Committed Borrowing in
accordance with Section 2.02, to, and thereafter be outstanding as, a Base Rate
Committed Loan made by Canadian Lenders in accordance with their Pro Rata
Shares, and shall bear interest calculated and payable as provided in Section
2.09.
(h) The Canadian Borrower hereby appoints each Canadian Lender,
acting by any authorized signatory of such Canadian Lender, the attorney of the
Canadian Borrower:
(i) to execute, for and on behalf and in the same name of
the Canadian Borrower as drawer, and to endorse on its behalf, drafts
in a form in accordance with Section 2.03(c) and which constitute
depository bills for the purpose of the DBNA;
(ii) to complete the amount, date and maturity of such
Acceptances; and
(iii) to deposit such Acceptances that have been accepted
by such Canadian Lender with a clearing house (as defined in the DBNA);
provided that such acts in each case are to undertaken by such Canadian Lender
in accordance with instructions given to such Canadian Lender by the Canadian
Borrower as provided in this Section 2.03(h). For certainty, signatures of any
authorized signatory of such Canadian Lender may be mechanically reproduced in
facsimile on Acceptances issued in accordance with this Section 2.03(h) and such
facsimile signatures will be binding and effective as if they had been manually
executed by such authorized signatory of such Canadian Lender. Instructions from
the Canadian Borrower to such Canadian Lender relating to the execution,
completion, endorsement and/or discount by such Canadian Lender on behalf of the
Canadian Borrower of Acceptances will be communicated by delivery of a Drawing
Notice to the Canadian Administrative Agent.
(i) If the Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon the Canadian
Borrower, and notifies the Canadian Borrower and each Canadian Lender that, by
reason of circumstances affecting the money market (i) there is no market for
Acceptances; or (ii) the demand for Acceptances is insufficient to allow the
sale or trading of the Acceptances created and purchased hereunder; then:
(i) the right of the Canadian Borrower to request a
Drawing shall be suspended until the Canadian Administrative Agent
determines that the circumstances causing such suspension no longer
exist and the Canadian Administrative Agent so notifies the Canadian
Borrower and each Canadian Lender; and
(ii) any Drawing Notice which is outstanding shall be
cancelled and the Drawing requested therein shall not be made.
27
The Canadian Administrative Agent shall promptly notify the Canadian
Borrower and each Canadian Lender of the suspension of its right to request a
Drawing and of the termination of any such suspension.
(j) No repayment of an Acceptance shall be made by the Canadian
Borrower to a Canadian Lender prior to the maturity date thereof except that the
Canadian Borrower may prepay the Canadian Administrative Agent an amount in
Canadian Dollars in same day funds equal to the aggregate Face Amount of all
outstanding Acceptances. The Canadian Administrative Agent shall pay each
Canadian Lender its Pro Rata Share of the amount received. Any scheduled
repayment shall be made (unless such repayment has been rescinded or otherwise
is required to be returned by such Canadian Lender to the Canadian Borrower for
any reason) in accordance with the provisions of the second paragraph of Section
2.03(g). Any such payment or prepayment by the Canadian Borrower to the Canadian
Administrative Agent shall satisfy the Canadian Borrower's obligations under the
Acceptance to which it relates and any such Canadian Lender which has accepted
such Acceptance shall thereafter be solely responsible for the payment of such
Acceptance and shall indemnify and hold the Canadian Borrower harmless against
any liabilities, costs or expenses incurred by the Canadian Borrower as a result
of any failure by such Canadian Lender to pay such Acceptance in accordance with
its terms. Following the maturity and indefeasible payment of all Acceptances,
each Canadian Lender shall pay to the Canadian Borrower an amount equal to the
interest that would have accrued had the amount paid to that Canadian Lender
been held in an account bearing interest at the rate customarily paid by that
Canadian Lender on deposits of similar size and term pending payment of the
Acceptances as they matured.
(k) The proceeds of any Acceptance created under this Section 2.03
shall be used in the manner and for the purposes set forth in Section 6.11 with
respect to the use of proceeds of Loans.
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) The Domestic Borrower may request Domestic Letters of
Credit by notice to the Domestic L/C Issuer and the Domestic
Administrative Agent, and the Canadian Borrower may request Canadian
Letters of Credit upon notice to the Canadian L/C Issuer and the
Canadian Administrative Agent, all as provided below. Subject to the
terms and conditions set forth herein, (A) the applicable L/C Issuer
agrees, in reliance upon the agreements of the other applicable Lenders
set forth in this Section 2.04, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit for the account of the
applicable Borrower, and to amend Letters of Credit previously issued
by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit as required under applicable law; and (B)
such Lenders severally agree to participate in Letters of Credit issued
for the account of such Borrower; provided that the Domestic L/C Issuer
shall not be obligated to make any L/C Credit Extension with respect to
any Domestic Letter of Credit, and no Domestic Lender shall be
obligated to participate in, any Domestic Letter of Credit if as of the
date of such L/C Credit Extension, (x) the Total Outstandings with
respect to Domestic Loans and Domestic Letters of Credit would exceed
the Aggregate Domestic Commitments, (y) the aggregate Outstanding
Amount of the Committed Domestic Loans of any Domestic Lender, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Domestic
L/C Obligations, plus such Domestic Lender's Pro Rata Share of the
Outstanding Amount of all Domestic Swing Line Loans would exceed such
Lender's Commitment with respect to Domestic Loans and Domestic Letters
of Credit, or (z) the Outstanding Amount of the Domestic L/C
Obligations would exceed the Letter of Credit Sublimit; provided,
further, the Canadian L/C Issuer shall not be obligated to make any L/C
Credit Extension with respect to any Canadian Letter of Credit, and no
Canadian Lender shall be obligated to participate in any Canadian
Letter of Credit if as of the date of such L/C Credit Extension (x) the
Total Outstandings with respect to Canadian Loans, Canadian Letters of
Credit and Acceptances would exceed the Aggregate Canadian Commitments,
(y) the aggregate Outstanding Amount of the Committed Canadian Loans of
any Canadian Lender, plus such Canadian Lender's Pro Rata Share of the
Outstanding Amount of all Canadian L/C Obligations, plus such Canadian
Lender's Pro Rata Share of all Acceptance Usage plus such Canadian
Lender's Pro Rata Share of the Outstanding Amount of all Canadian Swing
Line Loans would exceed such Lender's Commitment with respect to
Canadian Loans, Canadian Letters of Credit and Acceptances or (z) the
Outstanding Amount of
28
Canadian L/C Obligations would exceed the Letter of Credit Sublimit.
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrowers' ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrowers may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed.
(ii) An L/C Issuer shall be under no obligation to issue
any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain such L/C Issuer from issuing
such Letter of Credit, or any Law applicable to such L/C
Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over such L/C Issuer shall prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or
shall impose upon such L/C Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement (for
which such L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon such
L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which such L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) the expiry date of such requested Letter of
Credit would occur more than twelve months after the date of
issuance, unless the Required Lenders have approved such
expiry date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of such L/C Issuer; or
(E) such Letter of Credit is in a face amount
less than $50,000, in the case of a commercial Letter of
Credit, or $25,000, in the case of a standby Letter of Credit,
or is to be denominated in a currency other than Dollars in
the case of Domestic Letters of Credit and Canadian Dollars in
the case of Canadian Letters of Credit.
(iii) An L/C Issuer shall be under no obligation to amend
any Letter of Credit if (A) such L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as
the case may be, upon the request of the applicable Borrower delivered
to the applicable L/C Issuer (with a copy to the applicable
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of such
Borrower. Such L/C Application must be received by the applicable L/C
Issuer and the applicable Administrative Agent not later than 8:00 a.m.
at least two Business Days (or such later date and time as such L/C
Issuer may agree in a particular instance in its sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be.
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
satisfactory to the applicable L/C Issuer: (A) the proposed issuance
date of the requested Letter of Credit (which shall be a Business Day);
(B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of
any drawing thereunder; and (G) such other matters as such L/C Issuer
may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the applicable L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed
29
date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as such
L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the applicable L/C Issuer will confirm with the applicable
Administrative Agent (by telephone or in writing) that such
Administrative Agent has received a copy of such Letter of Credit
Application from the applicable Borrower and, if not, such L/C Issuer
will provide such Administrative Agent with a copy thereof. Upon
receipt by such L/C Issuer of confirmation from such Administrative
Agent that the requested issuance or amendment is permitted in
accordance with the terms hereof, then, subject to the terms and
conditions hereof, such L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the applicable Borrower or enter
into the applicable amendment, as the case may be, in each case in
accordance with such L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Domestic Letter of
Credit, each Domestic Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Domestic L/C Issuer a
risk participation in such Domestic Letter of Credit in an amount equal
to the product of such Domestic Lender's Pro Rata Share times the
amount of such Domestic Letter of Credit. Immediately upon the issuance
of each Canadian Letter of Credit, each Canadian Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from
the Canadian L/C Issuer a risk participation in such Canadian Letter of
Credit in an amount equal to the product of such Canadian Lender's Pro
Rata Share times the amount of such Canadian Letter of Credit.
(iii) If the applicable Borrower so requests in any Letter
of Credit Application, the applicable L/C Issuer may, in it sole and
absolute discretion, agree to issue a Letter of Credit that has
automatic renewal provisions (each, an "Auto-Renewal Letter of
Credit"); provided that any such Auto-Renewal Letter of Credit must
permit such L/C Issuer to prevent any such renewal at least once in
each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Nonrenewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit
is issued. Unless otherwise directed by the applicable L/C Issuer, the
applicable Borrower shall not be required to make a specific request to
such L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the applicable L/C Issuer to permit the renewal
of such Letter of Credit at any time to a date not later than the
Letter of Credit Expiration Date; provided, however, that such L/C
Issuer shall not permit any such renewal if (A) such L/C Issuer would
have no obligation at such time to issue such Letter of Credit in its
renewed form under the terms hereof, or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is
five Business Days before the Nonrenewal Notice Date from the
applicable Administrative Agent, any applicable Lender or the
applicable Borrower that one or more of the applicable conditions
specified in Section 4.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit
or any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the applicable L/C Issuer will
also deliver to the applicable Borrower and the applicable
Administrative Agent a true and complete copy of such Letter of Credit
or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the
applicable L/C Issuer shall notify the applicable Borrower and the
applicable Administrative Agent thereof. Not later than 11:00 a.m. on
the date of any payment by the applicable L/C Issuer under a Letter of
Credit (each such date, an "Honor Date"), the applicable Borrower shall
reimburse the applicable L/C Issuer through the applicable
Administrative Agent in an amount equal to the amount of such drawing.
If such Borrower fails to so reimburse such L/C Issuer by such time,
such Administrative Agent shall promptly notify each applicable Lender
of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and such Lender's Pro Rata Share thereof. In
such event, such Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of
Base Rate
30
Loans, but subject to the amount of the unutilized portion of the
Aggregate Domestic Commitments or Aggregate Canadian Commitments as
applicable and the conditions set forth in Section 4.02 (other than the
delivery of a Committed Loan Notice). Any notice given by an L/C Issuer
or Administrative Agent pursuant to this Section 2.04(c)(i) may be
given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender (including any Lender acting as an L/C
Issuer) shall upon any notice pursuant to Section 2.04(c)(i) make funds
available to the applicable Administrative Agent for the account of the
applicable L/C Issuer at the applicable Administrative Agent's Office
in an amount equal to its Pro Rata Share of the Unreimbursed Amount not
later than 1:00 p.m. on the Business Day specified in such notice by
such Administrative Agent, whereupon, subject to the provisions of
Section 2.04(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Committed Base Rate Loan to the applicable
Borrower in such amount. The applicable Administrative Agent shall
remit the funds so received to the applicable L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Committed Borrowing of Base Rate Loans because
the conditions set forth in Section 4.02 cannot be satisfied or for any
other reason, the applicable Borrower shall be deemed to have incurred
from the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Lender's payment
to the applicable Administrative Agent for the account of such L/C
Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C
Advance pursuant to this Section 2.04(c) to reimburse the applicable
L/C Issuer for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Pro Rata Share of such amount shall be solely
for the account of such L/C Issuer.
(v) Each Lender's obligation to make Committed Loans or
L/C Advances to reimburse the applicable L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.04(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against such L/C
Issuer, the Borrowers or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02. Any such reimbursement shall not
relieve or otherwise impair the obligation of the applicable Borrower
to reimburse the applicable L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the
applicable Administrative Agent for the account of the applicable L/C
Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(ii), such L/C Issuer shall be entitled to recover from
such Lender (acting through such Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to such L/C Issuer at a rate per annum equal to the Federal Funds Rate
(in the case of the Domestic L/C Issuer) or the Interbank Reference
Rate (in the case of the Canadian L/C Issuer) from time to time in
effect. A certificate of an L/C Issuer submitted to any Lender (through
the applicable Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
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(d) Repayment of Participations
(i) At any time after an L/C Issuer has made a payment
under any Letter of Credit and has received from any Lender such
Lender's L/C Advance in respect of such payment in accordance with
Section 2.04(c), if the applicable Administrative Agent receives for
the account of such L/C Issuer any payment related to such Letter of
Credit (whether directly from the applicable Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by such
Administrative Agent), or any payment of interest thereon, such
Administrative Agent will distribute to such Lender its Pro Rata Share
thereof in the same funds as those received by such Administrative
Agent.
(ii) If any payment received by an Administrative Agent
for the account of an L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned, each applicable Lender shall pay to such
Administrative Agent for the account of such L/C Issuer its Pro Rata
Share thereof on demand of such Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds
Rate (in the case of the Domestic L/C Issuer) or the Interbank
Reference Rate (in the case of the Canadian L/C Issuer) from time to
time in effect.
(e) Obligations Absolute. The obligation of each Borrower to
reimburse the applicable L/C Issuer for each drawing under a Letter of Credit,
and to repay each L/C Borrowing and each drawing under a Letter of Credit that
is refinanced by a Borrowing of Committed Loans, shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter
of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that such Borrower may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be
acting), such L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by such L/C Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by such L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, such Borrower;
provided, that if the payment by such L/C Issuer under the applicable Letter of
Credit shall have constituted gross negligence or willful misconduct of such L/C
Issuer under the circumstances in question, such Borrower shall retain its right
to bring a separate action against such L/C Issuer after such Borrower has made
such reimbursement.
The applicable Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with such Borrower's instructions or other
irregularity, such Borrower will immediately notify the applicable L/C Issuer.
Such Borrower shall be
32
conclusively deemed to have waived any such claim against such L/C Issuer and
its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuers. Each Lender and the Borrowers agree that,
in paying any drawing under a Letter of Credit, the L/C Issuers shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No
Agent-Related Person nor any of the respective correspondents, participants or
assignees of the L/C Issuers shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. Each
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude such Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related Person, nor any
of the respective correspondents, participants or assignees of the L/C Issuers,
shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.04(e); provided, however, that anything in such clauses
to the contrary notwithstanding, a Borrower may have a claim against an L/C
Issuer, and an L/C Issuer may be liable to a Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by such L/C
Issuer's willful misconduct or gross negligence or such L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuers may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuers shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a 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.
(g) Cash Collateral. Upon the request of the applicable
Administrative Agent, (i) if an L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, (A) any
Letter of Credit issued by such L/C Issuer may for any reason remain outstanding
and partially or wholly undrawn, or (B) any amount remains available to be drawn
under any Letter of Credit by reason of the operation of Section 3.14 of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance), the applicable Borrower shall immediately Cash
Collateralize the then Outstanding Amount of all such L/C Borrowings or Letters
of Credit, as the case may be (in an amount equal to such Outstanding Amount of
such Letter of Credit Borrowings or Letters of Credit, as applicable, determined
as of the date of such L/C Borrowing or the Letter of Credit Expiration Date, as
the case may be).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the applicable L/C Issuer and Borrower when a Letter of Credit is
issued, (i) the rules of the "International Standby Practices 1998" published by
the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. Each Borrower shall pay to the
applicable Administrative Agent for the account of each applicable Lender in
accordance with its Pro Rata Share a Letter of Credit fee for each Letter of
Credit issued for such Borrower's account equal to the Applicable Rate times the
average daily maximum amount available to be drawn under each such Letter of
Credit (whether or not such maximum amount is then in effect under such Letter
of Credit). Such letter of credit fees shall be computed on a quarterly basis in
arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, and on the Letter
33
of Credit Expiration Date. If there is any change in the Applicable Rate during
any quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
L/C Issuers. Each Borrower shall pay directly to the applicable L/C Issuer for
its own account a fronting fee with respect to each Letter of Credit issued for
such Borrower's account in the amounts and at the times specified in the Fee
Letter. In addition, each Borrower shall pay directly to the applicable L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such fees and
charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of
any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
(l) Existing Letters of Credit. Notwithstanding anything to the
contrary herein, as of the Closing Date, all of the Existing Letters of Credit
shall be deemed to be Domestic Letters of Credit issued hereunder and shall be
subject to all of the terms and provisions of this Agreement, including all
terms and provisions applicable to Domestic Letters of Credit under this
Agreement. Each Domestic Lender agrees that its obligations with respect to
Domestic Letters of Credit pursuant to this Section 2.04 shall include the
Existing Letters of Credit as of the Closing Date. With respect to each Existing
Letter of Credit, for the period commencing on the Closing Date to and including
the expiration date of any such Existing Letter of Credit, the Domestic Borrower
shall pay all fees and commissions set forth in Section 2.04(i) at the times and
in the manner set forth therein.
2.05 SWING LINE LOANS.
(a) (i) The Domestic Swing Line. Subject to the
terms and conditions set forth herein, the Domestic Swing Line Lender
agrees to make loans (each such loan, a "Domestic Swing Line Loan") to
the Domestic Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Domestic Swing Line Sublimit,
notwithstanding the fact that such Domestic Swing Line Loans, when
aggregated with the Outstanding Amount of Committed Loans of the
Domestic Swing Line Lender in its capacity as a Domestic Lender of
Committed Domestic Loans, may exceed the amount of such Lender's
Commitment regarding Committed Domestic Loans; provided, however, that
after giving effect to any Domestic Swing Line Loan, (i) the aggregate
Outstanding Amount of all Domestic Loans and L/C Obligations regarding
Domestic Letters of Credit shall not exceed the Aggregate Domestic
Commitments, and (ii) the aggregate Outstanding Amount of the Committed
Domestic Loans of any Domestic Lender, plus such Domestic Lender's Pro
Rata Share of the Outstanding Amount of all L/C Obligations regarding
Domestic Letters of Credit, plus such Lender's Pro Rata Share of the
Outstanding Amount of all Domestic Swing Line Loans shall not exceed
such Domestic Lender's Commitment regarding Domestic Loans and Domestic
Letters of Credit. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Domestic Borrower may borrow
under this Section 2.05, prepay under Section 2.06, and reborrow under
this Section 2.05. Each Domestic Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Domestic Swing Line Loan, each
Domestic Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Domestic Swing Line Lender
a risk participation in such Domestic Swing Line Loan in an amount
equal to the product of such Lender's Pro Rata Share times the amount
of such Domestic Swing Line Loan.
(ii) The Canadian Swing Line. Subject to the terms and
conditions set forth herein, the Canadian Swing Line Lender agrees to
make loans (each such loan, a "Canadian Swing Line Loan") to the
Canadian Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Canadian Swing Line Sublimit,
notwithstanding the fact that such Canadian Swing Line Loans, when
aggregated with the Outstanding Amount of Committed Loans of the
Canadian Swing Line Lender in its capacity as a Canadian Lender of
Committed Canadian Loans, may exceed the amount of such Lender's
Commitment regarding Committed Canadian Loans; provided, however, that
after giving effect to any Canadian Swing Line Loan, (i) the
34
aggregate Outstanding Amount of all Canadian Loans, L/C Obligations
regarding Canadian Letters of Credit and aggregate Acceptance Usage
shall not exceed the Aggregate Canadian Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Canadian Loans of any
Canadian Lender, plus such Canadian Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations regarding Canadian Letters of
Credit, plus such Lender's Pro Rata Share of the Outstanding Amount of
all Canadian Swing Line Loans plus such Lender's Pro Rata Share of
aggregate Acceptance Usage shall not exceed such Canadian Lender's
Commitment regarding Canadian Loans, Acceptances and Canadian Letters
of Credit. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Canadian Borrower may borrow under this
Section 2.05, prepay under Section 2.06, and reborrow under this
Section 2.05. Each Canadian Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Canadian Swing Line Loan, each
Canadian Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Canadian Swing Line Lender
a risk participation in such Canadian Swing Line Loan in an amount
equal to the product of such Lender's Pro Rata Share times the amount
of such Canadian Swing Line Loan.
(b) (i) Domestic Borrowing Procedures. Each Domestic
Swing Line Borrowing shall be made upon the Domestic Borrower's
irrevocable notice to the Domestic Swing Line Lender and the Domestic
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Domestic Swing Line Lender and the Domestic
Administrative Agent not later than 11:00 a.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $500,000 and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Domestic Swing Line Lender and
the Domestic Administrative Agent of a written Domestic Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of
the Domestic Borrower. Promptly after receipt by the Domestic Swing
Line Lender of any telephonic Domestic Swing Line Loan Notice, the
Domestic Swing Line Lender will confirm with the Domestic
Administrative Agent (by telephone or in writing) that the Domestic
Administrative Agent has also received such Domestic Swing Line Loan
Notice and, if not, the Domestic Swing Line Lender will notify the
Domestic Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Domestic Swing Line Lender has received
notice (by telephone or in writing) from the Domestic Administrative
Agent (including at the request of any Domestic Lender) prior to 11:00
a.m. on the date of the proposed Domestic Swing Line Borrowing (A)
directing the Domestic Swing Line Lender not to make such Domestic
Swing Line Loan as a result of the limitations set forth in the proviso
to the first sentence of Section 2.05(a)(i), or (B) that one or more of
the applicable conditions specified in Section 4.02 is not then
satisfied, then, subject to the terms and conditions hereof, the
Domestic Swing Line Lender will, not later than 12:00 noon on the
borrowing date specified in such Domestic Swing Line Loan Notice, make
the amount of its Domestic Swing Line Loan available to the Domestic
Borrower at its office by crediting the account of the Domestic
Borrower on the books of the Domestic Swing Line Lender in immediately
available funds.
(ii) Canadian Borrowing Procedures. Each Canadian Swing
Line Borrowing shall be made upon the Canadian Borrower's irrevocable
notice to the Canadian Swing Line Lender and the Canadian
Administrative Agent, which may be given by telephone. Each such notice
must be received by the Canadian Swing Line Lender and the Canadian
Administrative Agent not later than 11:00 a.m. on the requested
borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $500,000 and (ii) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be
confirmed promptly by delivery to the Canadian Swing Line Lender and
the Canadian Administrative Agent of a written Canadian Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of
the Canadian Borrower. Promptly after receipt by the Canadian Swing
Line Lender of any telephonic Canadian Swing Line Loan Notice, the
Canadian Swing Line Lender will confirm with the Canadian
Administrative Agent (by telephone or in writing) that the Canadian
Administrative Agent has also received such Canadian Swing Line Loan
Notice and, if not, the Canadian Swing Line Lender will notify the
Canadian Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Canadian Swing Line Lender has received
notice (by telephone or in writing) from the Canadian Administrative
Agent (including at the request of any Canadian Lender) prior to 11:00
a.m. on the date of the proposed Canadian Swing Line Borrowing (A)
directing the Canadian Swing Line Lender not to make
35
such Canadian Swing Line Loan as a result of the limitations set forth
in the proviso to the first sentence of Section 2.05(a)(ii), or (B)
that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, then, subject to the terms and conditions
hereof, the Canadian Swing Line Lender will, not later than 12:00 noon
on the borrowing date specified in such Canadian Swing Line Loan
Notice, make the amount of its Canadian Swing Line Loan available to
the Canadian Borrower at its office by crediting the account of the
Canadian Borrower on the books of the Canadian Swing Line Lender in
immediately available funds.
(c) (i) Refinancing of Domestic Swing Line Loans.
(A) The Domestic Swing Line Lender at any time
in its sole and absolute discretion may request, on behalf of
the Domestic Borrower (which hereby irrevocably requests the
Domestic Swing Line Lender to so request on its behalf), that
each Domestic Lender make a Committed Base Rate Loan in an
amount equal to such Lender's Pro Rata Share of the amount of
Domestic Swing Line Loans then outstanding. Such request shall
be made in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Domestic Commitments
and the conditions set forth in Section 4.02. The Domestic
Swing Line Lender shall furnish the Domestic Borrower with a
copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Domestic Administrative Agent.
Each Domestic Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Committed Loan
Notice available to the Domestic Administrative Agent in
immediately available funds for the account of the Domestic
Swing Line Lender at the Administrative Agent's Office of the
Domestic Administrative Agent not later than 11:00 a.m. on the
day specified in such Committed Loan Notice, whereupon,
subject to Section 2.05(c)(i)(B), each Domestic Lender that so
makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Domestic Borrower in such amount. The
Domestic Administrative Agent shall remit the funds so
received to the Domestic Swing Line Lender.
(B) If for any reason any Committed Borrowing
cannot be requested in accordance with Section 2.05(c)(i)(A)
or any Domestic Swing Line Loan cannot be refinanced by such a
Committed Borrowing, the Committed Loan Notice submitted by
the Domestic Swing Line Lender shall be deemed to be a request
by the Domestic Swing Line Lender that each of the Domestic
Lenders fund its risk participation in the relevant Domestic
Swing Line Loan and each Domestic Lender's payment to the
Domestic Administrative Agent for the account of the Domestic
Swing Line Lender pursuant to Section 2.05(c)(i)(A) shall be
deemed payment in respect of such participation.
(C) If any Domestic Lender fails to make
available to the Domestic Administrative Agent for the account
of the Domestic Swing Line Lender any amount required to be
paid by such Domestic Lender pursuant to the foregoing
provisions of this Section 2.05(c)(i) by the time specified in
Section 2.05(c)(i)(A), the Domestic Swing Line Lender shall be
entitled to recover from such Domestic Lender (acting through
the Domestic Administrative Agent), on demand, such amount
with interest thereon for the period from the date such
payment is required to the date on which such payment is
immediately available to the Domestic Swing Line Lender at a
rate per annum equal to the Federal Funds Rate from time to
time in effect. A certificate of the Domestic Swing Line
Lender submitted to any Domestic Lender (through the Domestic
Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(D) Each Domestic Lender's obligation to make
Committed Loans or to purchase and fund risk participations in
Domestic Swing Line Loans pursuant to this Section 2.05(c)(i)
shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Domestic Lender
may have against the Domestic Swing Line Lender, the Domestic
Borrower or any other Person for any
36
reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided,
however, that each Domestic Lender's obligation to make
Committed Domestic Loans pursuant to this Section 2.05(c)(i)
is subject to the conditions set forth in Section 4.02. Any
such purchase of participations shall not relieve or otherwise
impair the obligation of the Domestic Borrower to repay
Domestic Swing Line Loans, together with interest as provided
herein.
(ii) Refinancing of Canadian Swing Line Loans.
(A) The Canadian Swing Line Lender at any time
in its sole and absolute discretion may request, on behalf of
the Canadian Borrower (which hereby irrevocably requests the
Canadian Swing Line Lender to so request on its behalf), that
each Canadian Lender make a Committed Base Rate Loan in an
amount equal to such Lender's Pro Rata Share of the amount of
Canadian Swing Line Loans then outstanding. Such request shall
be made in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to
the unutilized portion of the Aggregate Canadian Commitments
and the conditions set forth in Section 4.02. The Canadian
Swing Line Lender shall furnish the Canadian Borrower with a
copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Canadian Administrative Agent.
Each Canadian Lender shall make an amount equal to its Pro
Rata Share of the amount specified in such Committed Loan
Notice available to the Canadian Administrative Agent in
immediately available funds for the account of the Canadian
Swing Line Lender at the Administrative Agent's Office of the
Canadian Administrative Agent not later than 11:00 a.m. on the
day specified in such Committed Loan Notice, whereupon,
subject to Section 2.05(c)(ii)(B), each Canadian Lender that
so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Canadian Borrower in such amount.
The Canadian Administrative Agent shall remit the funds so
received to the Canadian Swing Line Lender.
(B) If for any reason any Committed Borrowing
cannot be requested in accordance with Section 2.05(c)(ii)(A)
or any Canadian Swing Line Loan cannot be refinanced by such a
Committed Borrowing, the Committed Loan Notice submitted by
the Canadian Swing Line Lender shall be deemed to be a request
by the Canadian Swing Line Lender that each of the Canadian
Lenders fund its risk participation in the relevant Canadian
Swing Line Loan and each Canadian Lender's payment to the
Canadian Administrative Agent for the account of the Canadian
Swing Line Lender pursuant to Section 2.05(c)(ii) shall be
deemed payment in respect of such participation.
(C) If any Canadian Lender fails to make
available to the Canadian Administrative Agent for the account
of the Canadian Swing Line Lender any amount required to be
paid by such Canadian Lender pursuant to the foregoing
provisions of this Section 2.05(c)(ii) by the time specified
in Section 2.05(c)(ii)(A), the Canadian Swing Line Lender
shall be entitled to recover from such Canadian Lender (acting
through the Canadian Administrative Agent), on demand, such
amount with interest thereon for the period from the date such
payment is required to the date on which such payment is
immediately available to the Canadian Swing Line Lender at a
rate per annum equal to the Interbank Reference Rate from time
to time in effect. A certificate of the Canadian Swing Line
Lender submitted to any Canadian Lender (through the Canadian
Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.
(D) Each Canadian Lender's obligation to make
Committed Loans or to purchase and fund risk participations in
Canadian Swing Line Loans pursuant to this Section 2.05(c)(ii)
shall be absolute and unconditional and shall not be affected
by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Canadian Lender
may have against the Canadian Swing Line Lender, the Canadian
Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other
occurrence,
37
event or condition, whether or not similar to any of the
foregoing; provided, however, that each Canadian Lender's
obligation to make Committed Canadian Loans pursuant to this
Section 2.05(c)(ii) is subject to the conditions set forth in
Section 4.02. Any such purchase of participations shall not
relieve or otherwise impair the obligation of the Canadian
Borrower to repay Canadian Swing Line Loans, together with
interest as provided herein.
(d) (i) Repayment of Domestic Participations.
(A) At any time after any Domestic Lender has
purchased and funded a participation in a Domestic Swing Line
Loan, if the Domestic Swing Line Lender receives any payment
on account of such Domestic Swing Line Loan, the Domestic
Swing Line Lender will distribute to such Domestic Lender its
Pro Rata Share of such payment (appropriately adjusted, in the
case of interest payments, to reflect the period of time
during which such Domestic Lender's participation was
outstanding and funded) in the same funds as those received by
the Domestic Swing Line Lender.
(B) If any payment received by the Domestic
Swing Line Lender in respect of principal or interest on any
Domestic Swing Line Loan is required to be returned by the
Domestic Swing Line Lender, each Domestic Lender shall pay to
the Domestic Swing Line Lender its Pro Rata Share thereof on
demand of the Domestic Administrative Agent, plus interest
thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds
Rate. The Domestic Administrative Agent will make such demand
upon the request of the Domestic Swing Line Lender.
(ii) Repayment of Canadian Participations.
(A) At any time after any Canadian Lender has
purchased and funded a participation in a Canadian Swing Line
Loan, if the Canadian Swing Line Lender receives any payment
on account of such Canadian Swing Line Loan, the Canadian
Swing Line Lender will distribute to such Canadian Lender its
Pro Rata Share of such payment (appropriately adjusted, in the
case of interest payments, to reflect the period of time
during which such Canadian Lender's participation was
outstanding and funded) in the same funds as those received by
the Canadian Swing Line Lender.
(B) If any payment received by the Canadian
Swing Line Lender in respect of principal or interest on any
Canadian Swing Line Loan is required to be returned by the
Canadian Swing Line Lender, each Canadian Lender shall pay to
the Canadian Swing Line Lender its Pro Rata Share thereof on
demand of the Canadian Administrative Agent, plus interest
thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Interbank
Reference Rate. The Canadian Administrative Agent will make
such demand upon the request of the Canadian Swing Line
Lender.
(e) (i) Interest for Account of Domestic Swing Line
Lender. The Domestic Swing Line Lender shall be responsible for
invoicing the Domestic Borrower for interest on the Domestic Swing Line
Loans. Until each Domestic Lender funds its Committed Base Rate Loan or
participation pursuant to this Section 2.05 to refinance such Lender's
Pro Rata Share of any Domestic Swing Line Loan, interest in respect of
such Pro Rata Share shall be solely for the account of the Domestic
Swing Line Lender.
(ii) Interest for Account of Canadian Swing Line Lender.
The Canadian Swing Line Lender shall be responsible for invoicing the
Canadian Borrower for interest on the Canadian Swing Line Loans. Until
each Canadian Lender funds its Committed Base Rate Loan or
participation pursuant to this Section 2.05 to refinance such Lender's
Pro Rata Share of any Canadian Swing Line Loan, interest in respect of
such Pro Rata Share shall be solely for the account of the Canadian
Swing Line Lender.
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(f) (i) Payments Directly to Domestic Swing Line
Lender. The Domestic Borrower shall make all payments of principal and
interest in respect of the Domestic Swing Line Loans directly to the
Domestic Swing Line Lender.
(ii) Payments Directly to Canadian Swing Line Lender. The
Canadian Borrower shall make all payments of principal and interest in
respect of the Canadian Swing Line Loans directly to the Canadian Swing
Line Lender.
2.06 PREPAYMENTS.
(a) Each Borrower may, upon notice to the applicable
Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by such Administrative Agent not later than
9:30 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar
Rate Committed Loans, and (B) on the date of prepayment of Base Rate Committed
Loans; (ii) any prepayment of Eurodollar Rate Committed Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Committed Loans to be prepaid. Such Administrative Agent will
promptly notify each applicable Lender of its receipt of each such notice, and
of such Lender's Pro Rata Share of such prepayment. If such notice is given by a
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the applicable Committed
Loans of the applicable Lenders in accordance with their respective Pro Rata
Shares.
(b) Each Borrower may, upon notice to the applicable Swing Line
Lender (with a copy to the applicable Administrative Agent), at any time or from
time to time, voluntarily prepay its Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the applicable Swing Line Lender and the applicable Administrative Agent not
later than 10:00 a.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given,
the applicable Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Outstanding Amount of all Domestic Loans
and Domestic L/C Obligations at any time exceeds the Aggregate Domestic
Commitments then in effect, the Domestic Borrower shall immediately prepay
Domestic Loans and/or Cash Collateralize the Domestic L/C Obligations in an
aggregate amount equal to such excess. If for any reason the Outstanding Amount
of all Canadian Loans, Canadian L/C Obligations and Acceptances at any time
exceeds the Aggregate Canadian Commitments then in effect, the Canadian Borrower
shall immediately prepay Canadian Loans and/or Cash Collateralize the Canadian
L/C Obligations and/or Acceptances in an aggregate amount equal to such excess.
2.07 REDUCTION OR TERMINATION OF COMMITMENTS.
(a) Each Borrower may, upon notice to the applicable
Administrative Agent, terminate the Aggregate Domestic Commitments or Aggregate
Canadian Commitments as applicable, or permanently reduce the sum thereof to an
amount not less than the then Outstanding Amount of all Loans to, and L/C
Obligations and Acceptance Usage of, such Borrower; provided that (i) any such
notice shall be received by such Administrative Agent not later than 9:30 a.m.
two Business Days prior to the date of termination or reduction, and (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof;
(b) There shall be a mandatory reduction by a Borrower of the
Aggregate Domestic Commitments or Aggregate Canadian Commitments as applicable,
by the following amounts:
39
(i) not later than nine months following a Disposition by
such Borrower permitted under Section 7.05(f), by 100% of the net cash
proceeds (net of all sale expenses and taxes actually paid) realized
therefrom and not reinvested in property or assets in the
Post-Secondary Education Business or other businesses permitted under
Section 7.07 hereof of such Borrower and its Subsidiaries; and
(ii) not later than three Business Days following an
Approved Debt Issuance, by 100% of the net cash proceeds received by
such Borrower and any Subsidiary from the issuance thereof to the
extent such proceeds exceed any available basket in Section 7.03.
(c) The applicable Administrative Agent shall promptly notify the
applicable Lenders of any such notice of reduction or termination of the
Aggregate Domestic Commitments or Aggregate Canadian Commitments. Once reduced
in accordance with this Section, the Aggregate Domestic Commitments or Aggregate
Canadian Commitments as applicable, may not be increased. Any such reduction
shall be applied to the Commitment of each applicable Lender according to its
Pro Rata Share. All fees accrued on the Aggregate Domestic Commitments or
Aggregate Canadian Commitments that are terminated, until the effective date of
any termination, shall be paid on the effective date of such termination.
2.08 REPAYMENT OF LOANS.
(a) Each Borrower shall repay to the applicable Lenders on the
Maturity Date the aggregate principal amount of Committed Loans outstanding on
such date to such Borrower.
(b) The Domestic Borrower shall repay each Domestic Swing Line
Loan on or before the Maturity Date.
(c) The Canadian Borrower shall repay each Canadian Swing Line
Loan on or before the Maturity Date.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Committed Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the
applicable Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the applicable Base Rate.
(b) If any amount payable by any Borrower under any Loan Document
is not paid when due (without regard to any applicable grace periods), such
amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by
applicable Law. Furthermore, while any Event of Default exists or after
acceleration, the Borrowers shall pay interest on the principal amount of all of
their outstanding Obligations at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Law. Accrued and unpaid interest on past due amounts (including interest on past
due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
40
2.10 FEES.
In addition to certain fees described in subsections (i) and (j) of
Section 2.04:
(a) Commitment Fee. Each Borrower shall pay to the applicable
Administrative Agent for the account of each applicable Lender in accordance
with its Pro Rata Share, a commitment fee equal to the Applicable Rate times the
actual daily amount by which the Aggregate Domestic Commitments or Aggregate
Canadian Commitments as applicable, exceed the sum of (i) the Outstanding Amount
of Committed Loans to such Borrower (excluding for the avoidance of doubt any
Swing Line Loans), (ii) the Outstanding Amount of L/C Obligations of such
Borrower and (iii), in the case of the Canadian Borrower, the Outstanding Amount
of Acceptance Usage. The commitment fee shall be due and payable quarterly in
arrears on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the Closing
Date, and on the Maturity Date. The commitment fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met.
(b) Other Fees. Each Borrower shall pay to the Arranger, the
Administrative Agents and the Syndication Agent fees in the amounts and at the
times specified in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever. The Borrowers shall pay to
the Lenders such fees as shall have been separately agreed upon in writing in
the amounts and at the times so specified. Such fees shall be fully earned when
paid and shall not be refundable.
2.11 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans
shall be calculated on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to the payee
thereof than a method based on a year of 365 or 366 days. Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day. Each rate of interest which is calculated with
reference to a period (the "deemed interest period") that is less than the
actual number of days in the calendar year of calculation is, for the purposes
of the Interest Act (Canada), equivalent to a rate based on a calendar year
calculated by multiplying such rate of interest by the actual number of days in
the calendar year of calculation and dividing by the number of days in the
deemed interest period.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
applicable Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agents and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrowers and the interest and payments thereon. Any failure
to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Loans, L/C Obligations or Acceptances. In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agents in respect of such matters,
the accounts and records of the Administrative Agents shall control in the
absence of manifest error. Upon the request of any Lender made through the
applicable Administrative Agent, such Lender's Loans may be evidenced by a Note
in addition to such accounts or records. Each Lender may attach schedules to its
Note and endorse thereon the date, Type (if applicable), amount and maturity of
the applicable Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agents shall maintain in
accordance with their usual practice accounts or records evidencing the
purchases and sales by such Lender of participations in Letters of Credit and
Swing Line Loans. In the event of any
41
conflict between the accounts and records maintained by the Administrative
Agents and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agents shall control.
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder shall be made to the applicable Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative
Agent's Office of such Administrative Agent in Dollars or, in the case of
payments regarding Canadian Loans or Canadian Letters of Credit, in Canadian
Dollars, and, in all cases, in immediately available funds not later than 12:00
noon on the date specified herein. Such Administrative Agent will promptly
distribute to each applicable Lender its Pro Rata Share (or other applicable
share as provided herein) of such payment in like funds as received by wire
transfer to such Lender's Lending Office. All payments received by the
Administrative Agents after 12:00 noon shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the definition of "Interest Period," if any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and
available to the Administrative Agents to pay fully all amounts of principal,
L/C Borrowings, Acceptance Usage, interest and fees then due hereunder, such
funds shall be applied (i) first, toward costs and expenses (including Attorney
Costs and amounts payable under Article III) incurred by the Administrative
Agents and each Lender that are subject to reimbursement by the Borrowers
pursuant to the terms of the Loan Documents, (ii) second, toward repayment of
interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties,
and (iii) third, toward repayment of principal, L/C Borrowings and Acceptance
Usage then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal, L/C Borrowings and Acceptance Usage
then due to such parties.
(d) Unless a Borrower or any Lender has notified the applicable
Administrative Agent prior to the date any payment is required to be made by it
to such Administrative Agent hereunder, that such Borrower or Lender, as the
case may be, will not make such payment, such Administrative Agent may assume
that such Borrower or Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to such Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each
applicable Lender shall forthwith on demand repay to such
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date
such amount was made available by such Administrative Agent to such
Lender to the date such amount is repaid to such Administrative Agent
in immediately available funds, at the Federal Funds Rate in the case
of the Domestic Administrative Agent and the Interbank Reference Rate
in the case of the Canadian Administrative Agent, from time to time in
effect; and
(ii) if any Lender failed to make such payment, such
Lender shall forthwith on demand pay to such Administrative Agent the
amount thereof in immediately available funds, together with interest
thereon for the period from the date such amount was made available by
such Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate in the case of the
Domestic Administrative Agent and the Interbank Reference Rate in the
case of the Canadian Administrative Agent, from time to time in effect.
If such Lender pays such amount to the applicable Administrative Agent,
then such amount shall constitute such Lender's Committed Loan,
included in the applicable Borrowing. If such Lender does not pay such
amount forthwith upon the applicable Administrative Agent's demand
therefor, such Administrative Agent
42
may make a demand therefor upon the applicable Borrower, and such
Borrower shall pay such amount to such Administrative Agent, together
with interest thereon for the Compensation Period at a rate per annum
equal to the rate of interest applicable to the applicable Borrowing.
Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which
the applicable Administrative Agent or Borrower may have against any
Lender as a result of any default by such Lender hereunder.
A notice of any Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to an Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the applicable Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed
Loans and to fund participations in Letters of Credit and Swing Line Loans and
to accept Acceptances are several and not joint. The failure of any Lender to
make any Committed Loan or to fund any such participation on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
(h) On each date when the payment of any principal, interest or
fees are due under any Loan Document, the applicable Borrower agrees to maintain
on deposit in an ordinary checking account maintained by such Borrower with the
applicable Administrative Agent (as such account shall be designated by such
Borrower in a written notice to such Administrative Agent from time to time, the
"Borrower Account") an amount sufficient to pay such principal, interest or fees
in full. Each Borrower hereby authorizes the applicable Administrative Agent (i)
to deduct automatically all principal, interest or fees when due under any Loan
Document from its Borrower Account, and (ii) if and to the extent any payment
under any Loan Document is not made when due, to deduct automatically any such
amount from any or all of the accounts of such Borrower maintained with such
Administrative Agent. The Administrative Agent agrees to provide timely notice
to the applicable Borrower of any automatic deduction made pursuant to this
Section 2.13(h).
2.14 SHARING OF PAYMENTS.
(a) If, other than as expressly provided elsewhere herein, any
Domestic Lender shall obtain on account of the Committed Domestic Loans made by
it, its participations in L/C Obligations regarding Domestic Letters of Credit
or in Domestic Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Domestic Lender shall immediately (a) notify the Domestic Administrative
Agent of such fact, and (b) purchase from the other Domestic Lenders such
participations in the Committed Domestic Loans made by them and/or such
subparticipations in the participations in L/C Obligations regarding Domestic
Letters of Credit or Domestic Swing Line Loans held by them, as the case may be,
as shall be necessary to cause such purchasing Domestic Lender to share the
excess payment in respect of such Committed Domestic Loans or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Domestic Lender, such purchase shall to that
extent be rescinded and each such other Domestic Lender shall repay to the
purchasing Domestic Lender the purchase price paid therefor, together with an
amount equal to such paying Domestic Lender's ratable share (according to the
proportion of (i) the amount of such paying Domestic Lender's required repayment
to (ii) the total amount so recovered from the purchasing Domestic Lender) of
any interest or other amount paid or payable by the purchasing Domestic Lender
in respect of the total amount so recovered. The Domestic Borrower agrees that
any Domestic Lender so purchasing a
43
participation from another Domestic Lender may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off, but
subject to Section 10.09) with respect to such participation as fully as if such
Domestic Lender were the direct creditor of the Domestic Borrower in the amount
of such participation. The Domestic Administrative Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Domestic Lenders following any such purchases or repayments. Each Domestic
Lender that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Domestic Lender were the original owner of the Obligations purchased.
(b) If, other than as expressly provided elsewhere herein, any
Canadian Lender shall obtain on account of the Committed Canadian Loans made by
it, Acceptances accepted by it or its participations in L/C Obligations
regarding Canadian Letters of Credit or in Canadian Swing Line Loans held by it,
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Canadian Lender shall immediately (a)
notify the Canadian Administrative Agent of such fact, and (b) purchase from the
other Canadian Lenders such participations in the Committed Canadian Loans made
by them or the Acceptances accepted by them and/or such subparticipations in the
participations in L/C Obligations or Canadian Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Canadian Lender
to share the excess payment in respect of such Committed Canadian Loans or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Canadian Lender, such purchase shall to that
extent be rescinded and each such other Canadian Lender shall repay to the
purchasing Canadian Lender the purchase price paid therefor, together with an
amount equal to such paying Canadian Lender's ratable share (according to the
proportion of (i) the amount of such paying Canadian Lender's required repayment
to (ii) the total amount so recovered from the purchasing Canadian Lender) of
any interest or other amount paid or payable by the purchasing Canadian Lender
in respect of the total amount so recovered. The Canadian Borrower agrees that
any Canadian Lender so purchasing a participation from another Canadian Lender
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Canadian Lender were the direct creditor
of the Canadian Borrower in the amount of such participation. The Canadian
Administrative Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased under this Section
and will in each case notify the Canadian Lenders following any such purchases
or repayments. Each Canadian Lender that purchases a participation pursuant to
this Section shall from and after such purchase have the right to give all
notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Canadian Lender were the original owner of the
Obligations purchased.
(c) From and after the earlier of (i) the occurrence of an Event
of Default under Section 8.01(f) or (g) or (ii) the occurrence of any Event of
Default and the acceleration of the Obligations hereunder (each such occurrence,
a "Sharing Event"), each Lender (x) agrees to purchase from each other Lender,
and each such other Lender agrees to sell, a risk participation in such other
Lender's outstanding Loans such that, after giving effect to such purchase and
sale, each Lender holds a risk participation in each outstanding Loan in an
amount equal to such Lender's Aggregate Pro Rata Share and (y) agrees that its
risk participation in each Swing Line Loan, L/C Obligation and Acceptance shall
be adjusted (through purchase and sale or otherwise) to an amount equal to such
Lender's Aggregate Pro Rata Share thereof. It is the intention of the Lenders
that after giving effect to the foregoing, each Lender shall hold an interest in
each outstanding Loan, L/C Obligation, Swing Line Loan and Acceptance equal to
such Lender's Aggregate Pro Rata Share, and each Lender agrees to take such
actions as may be reasonably requested by the Administrative Agent to effect the
foregoing. Notwithstanding anything to the contrary in Section 2.14(a) or (b),
if, from and after a Sharing Event, any Lender shall obtain on account of the
Committed Loans made by it, the Acceptances accepted by it, or its
participations in L/C Borrowings regarding Letters of Credit or in Swing Line
Loans, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Aggregate Pro Rata Share
thereof, such Lender shall immediately (a) notify the Administrative Agents of
such fact, and (b) purchase from the other Lenders such participations in the
Committed Loans made by them, the Acceptances accepted by them and/or such
subparticipations in the participations in L/C Borrowings regarding Letters of
Credit or Swing Line Loans, as the case may be, as shall be
44
necessary to cause such purchasing Lender to share the excess payment in respect
of such Committed Loans, Acceptances or such participations, as the case may be,
with each of them according to each such Lender's Aggregate Pro Rata Share;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each such other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such
paying Lender's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
applicable Borrower in the amount of such participation. The Administrative
Agents will keep records (which shall be conclusive and binding in the absence
of manifest error) of participations purchased under this Section and will in
each case notify the Lenders following any such purchases or repayments. Each
Lender that purchases a participation pursuant to this Section shall from and
after such purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased.
2.15 INCREASE IN AGGREGATE DOMESTIC COMMITMENTS.
(a) Provided there exists no Default, upon notice to the Domestic
Administrative Agent (which shall promptly notify the Domestic Lenders), the
Domestic Borrower may from time to time but no more than twice, request an
increase in the Aggregate Domestic Commitments by an amount (for all such
requests) not exceeding $50,000,000. At the time of sending such notice, the
Domestic Borrower (in consultation with the Domestic Administrative Agent) shall
specify the time period within which each Domestic Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Domestic Lenders). Each Domestic Lender shall
notify the Domestic Administrative Agent within such time period whether or not
it agrees to increase its Commitment with respect to Domestic Loans and Domestic
Letters of Credit and, if so, whether by an amount equal to, greater than, or
less than its Pro Rata Share of such requested increase. Any Domestic Lender not
responding within such time period shall be deemed to have declined to increase
such Commitment. The Domestic Administrative Agent shall notify the Domestic
Borrower and each Domestic Lender of the Domestic Lenders' responses to each
request made hereunder. To achieve the full amount of a requested increase, the
Domestic Borrower may also invite additional Eligible Assignees to become
Domestic Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Domestic Administrative Agent and its counsel.
(b) If the Aggregate Domestic Commitments are increased in
accordance with this Section, the Domestic Administrative Agent and the Domestic
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Domestic Administrative Agent shall
promptly notify the Domestic Borrower and the Domestic Lenders of the final
allocation of such increase and the Increase Effective Date. As a condition
precedent to such increase, the Domestic Borrower shall deliver to the Domestic
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions adopted
by such Loan Party approving or consenting to such increase, and (ii) in the
case of the Domestic Borrower, certifying that, before and after giving effect
to such increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct in all material respects on
and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier date,
and except that for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to subsections (a) and
(b), respectively, of Section 6.01, and (B) no Default exists. The Domestic
Borrower shall prepay any Committed Domestic Loans outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section
3.05) to the extent necessary to keep the outstanding Committed Domestic Loans
ratable with any revised Pro Rata Shares arising from any nonratable increase in
the Commitments under this Section.
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(c) This Section shall supersede any provisions in Sections 2.14
or 10.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrowers to or for the account of
the Administrative Agents or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto as provided herein, excluding,
in the case of an Administrative Agent and each Lender, taxes imposed on or
measured by its overall net income, franchise taxes imposed on it (in lieu of
net income taxes), and any branch profits or similar tax imposed by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office or is deemed to be doing business on all or part of
its net income, profits or gains (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If any Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
by such Borrower under any Loan Document to any Administrative Agent or any
Lender, (i) subject to Section 10.15, the sum payable by such Borrower shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), each of
such Administrative Agent and Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions, (iii) such Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, such Borrower
shall furnish to such Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof; provided that no amount shall be required to be paid to any Lender or
any Administrative Agent under this Section 3.01(a) except to the extent that
any change after the date hereof (in the case of each Lender listed on the
signature pages hereof) or after the date of the Assignment and Assumption
pursuant to which such Lender became a Lender (in the case of each other Lender)
in any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect at the date of this Agreement or at the date of
such Assignment and Assumption, as the case may be, in respect of payments to
such Lender, and except in the case of a new Canadian Lender as set forth in the
proviso in the third sentence of the fourth paragraph of Section 10.15(a).
(b) In addition, each Borrower agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made by it under
any Loan Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If any Borrower shall be required to deduct or pay any Taxes
or Other Taxes from or in respect of any sum payable under any Loan Document to
an Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount if any that the Administrative Agent or such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed, it being understood that this Section 3.01(c) shall
only apply to the extent that the relevant Borrower is required to pay
additional amounts to the applicable Administrative Agent or Lender under
Section 3.01(a) or Section 3.01(b).
(d) Each Borrower agrees to indemnify the applicable
Administrative Agent and each Lender for (i) the full amount of Taxes and Other
Taxes that are payable by such Borrower pursuant to Section 3.01(a) or Section
3.01(b) (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable by such Borrower under this Section) and are
paid by the Administrative Agent and such Lender, and (ii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant
46
Governmental Authority; provided that the Domestic Borrower shall not be
obligated under this Section 3.01(d) to any Domestic Lender to the extent that
the Domestic Borrower is not required to pay additional amounts with respect to
such Taxes under the third paragraph of Section 10.15(a) or Section 10.15(b) and
the Canadian Borrower shall not be obligated under this Section 3.01(d) to any
Canadian Lender to the extent that the Canadian Borrower is not required to pay
additional amounts with respect to such Taxes under the fourth paragraph of
Section 10.15(a). Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Administrative Agent makes a demand therefor.
(e) If a Borrower determines in good faith that a reasonable basis
exists for contesting a Tax or Other Tax with respect to which the Borrower has
paid an additional amount under this Section 3.01, the relevant Lender or
Administrative Agent, as applicable, shall cooperate with the Borrower (but
shall have no obligation to disclose any confidential information, unless
arrangements satisfactory to the relevant Lender have been made to preserve the
confidential nature of such information) in challenging such Tax or Other Tax at
the Borrower's expense if requested by the Borrower (it being understood and
agreed that none of the Administrative Agents or any Lender shall have any
obligation to contest, or any responsibility for contesting, any Tax).
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the applicable
Borrower through the applicable Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans or to convert Base Rate
Committed Loans to Eurodollar Rate Committed Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist. Upon receipt of such notice,
the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period thereof, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,
the Borrower shall also pay accrued interest on the amount so prepaid or
converted. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Required Lenders
determine that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Committed Loan, or that the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate
Committed Loan does not adequately and fairly reflect the cost to such Lenders
of funding such Loan, the Administrative Agents will promptly so notify the
Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative
Agents (upon the instruction of the Required Lenders) revoke such notice. Upon
receipt of such notice, the Borrowers may revoke any pending request for a
Borrowing, conversion or continuation of Eurodollar Rate Committed Loans or,
failing that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES
ON EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction
of or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as
the case may be) issuing or participating in Letters of Credit, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by Section 3.04(c), then from time to time upon demand
of such
47
Lender (with a copy of such demand to the applicable Administrative Agent), the
applicable Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the applicable
Administrative Agent), the applicable Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such reduction.
(c) Each Borrower shall pay to each applicable Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each Eurodollar Rate Loan equal to the actual costs of such
reserves allocated to such Loan by such Lender (as determined by such Lender in
good faith, which determination shall be conclusive), which shall be due and
payable on each date on which interest is payable on such Loan, provided the
Borrower shall have received at least 15 days' prior notice (with a copy to the
applicable Administrative Agent) of such additional interest from such Lender.
If a Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
applicable Administrative Agent) from time to time, the applicable Borrower
shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise);
(b) any failure by such Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower;
(c) any failure by such Borrower (for a reason other than the
failure of such Lender to create or purchase an Acceptance) to repay or draw any
Acceptance on any relevant date or in any relevant amount; or
(d) any assignment of a Eurodollar Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Such Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by a Borrower to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each Eurodollar
Rate Committed Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Committed Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of an Administrative Agent or any Lender
claiming compensation under this Article III and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of
48
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under
Section 3.01 or 3.04, the applicable Borrower may replace such Lender in
accordance with Section 10.16.
3.07 SURVIVAL. All of the Borrowers' obligations under this Article
III shall survive termination of the Commitments and repayment of all other
Obligations.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) Unless waived by all the Lenders, the Administrative Agents'
receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agents and their legal counsel:
(i) executed counterparts of this Agreement, sufficient
in number for distribution to the Administrative Agents, each Lender
and the Borrowers;
(ii) a Note executed by the applicable Borrower in favor
of each Lender (whereupon each Lender under the Existing Credit
Agreement shall, within a reasonable time, return any note executed by
the Domestic Borrower thereunder in favor of such Lender, to the
Domestic Borrower for cancellation);
(iii) executed counterparts of the Guaranties, sufficient
in number for distribution to the Administrative Agents and each
Lender;
(iv) executed counterparts of the Pledge Agreements,
sufficient in number for distribution to the Administrative Agents and
each Lender, together with stock powers duly executed in blank for each
stock certificate pledged thereunder;
(v) a certificate signed by a Responsible Officer of the
Domestic Borrower, dated as of the Closing Date, stating that: (a) the
existing agreement for the CDI Acquisition has not been amended in any
material respect; and (b) attached thereto are true and complete copies
of such agreement with all exhibits and schedules thereto;
(vi) evidence reasonably satisfactory to the
Administrative Agents that the total aggregate considerations payable
by the Borrowers under the CCI Acquisition, the ECAT Acquisition and
the CDI Acquisition (collectively, the "Approved Acquisitions")
(including assumed indebtedness and all fees and expenses to be
incurred in connection therewith (excluding fees and expenses of the
Administrative Agents, the Syndication Agent and the Lenders)) shall
not exceed $110,000,000, plus or minus certain working capital
adjustments provided thereunder;
(vii) there shall not exist any order, decree, judgment,
ruling or injunction which restrains the consummation of any
transaction contemplated hereby or by the Approved Acquisitions, or any
pending or threatened action, suit, investigation or proceeding, which,
if adversely determined, could reasonably be expected to materially and
adversely affect any Borrower and its subsidiaries, any transaction
contemplated hereby or by the Approved Acquisitions, or the ability of
any Borrower, any of its Subsidiaries or any
49
Guarantor to perform its obligations under the Loan Documents or the
ability of the Lenders to exercise their rights thereunder;
(viii) there shall have not occurred a material adverse
change since June 30, 2002 in the business, results of operations,
condition (financial or otherwise) or prospects of the Borrowers and
their Subsidiaries (both before and after giving effect to the Approved
Acquisitions) taken as a whole, or in the facts and information
regarding such entities as represented to date;
(ix) evidence reasonably satisfactory to the
Administrative Agents that there shall not have occurred any adverse
change since June 30, 2002 to the corporate and ownership structure
(including articles of incorporation and bylaws, shareholder agreements
and management of the Borrowers and their Subsidiaries (both before and
after giving effect to the Approved Acquisitions));
(x) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agents may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with the Loan Documents to which such Loan Party is a party;
(xi) such documents and certifications as the
Administrative Agents may reasonably require to evidence that each Loan
Party is duly organized or formed, and that each Borrower and each
Guarantor is validly existing, in good standing and qualified to engage
in business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent permitted under Section 6.05
hereof;
(xii) a favorable opinion of O'Melveny & ▇▇▇▇▇, L.L.P. and
▇▇▇▇▇ ▇▇▇▇▇▇ & Harcourt LLP, counsel to the Loan Parties, addressed to
the Administrative Agents and each Lender, as to the matters set forth
in Exhibit I and such other matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;
(xiii) a certificate of a Responsible Officer of each
Borrower either (A) attaching copies of all consents, licenses and
approvals required in connection with the execution, delivery and
performance by the respective Loan Parties and the validity against
such Persons of the Loan Documents, and such consents, licenses and
approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;
(xiv) a certificate signed by a Responsible Officer of each
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and (B) that there has been no
event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;
(xv) a certificate from the Domestic Borrower's chief
financial officer certifying that the Domestic Borrower and each of its
Subsidiaries are Solvent; and
(xvi) such other assurances, certificates, documents,
consents or opinions as the Administrative Agents, the L/C Issuers, the
Swing Line Lenders or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) The Borrowers shall have paid all Attorney Costs of the
Administrative Agents to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute its
reasonable estimate of Attorney Costs incurred or to be incurred by it through
the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between the Borrowers, the Administrative
Agents and the Administrative Agents' counsel).
50
(d) The Closing Date shall have occurred on or before August 31,
2003.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurodollar Rate Committed Loans) is subject to the following
conditions precedent:
(a) The representations and warranties of any Borrower contained
in Article V or any other Loan Document, or which are contained in any document
furnished by any Borrower at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the
date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date, and except
that for purposes of this Section 4.02, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to
the most recent statements furnished pursuant to subsection (a) and (b),
respectively, of Section 6.01.
(b) No Default shall exist, or would result from such proposed
Credit Extension.
(c) The Administrative Agents and, if applicable, the L/C Issuers
or the Swing Line Lenders shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurodollar Rate Committed Loans) submitted by any Borrower shall
be deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
4.03 CONDITIONS TO ACCEPTANCES. The creation of any Acceptance
hereunder is subject to the following conditions precedent:
(a) On or before the date of the creation of any Acceptance, the
Canadian Administrative Agent shall have received, in accordance with the
provisions of Section 2.03(b), an originally executed Drawing Notice, in each
case signed by a Responsible Officer of the Canadian Borrower.
(b) On the date of the creation of any Acceptance, all conditions
precedent described in Section 4.02 shall be satisfied to the same extent as if
the creation of such Acceptance were the making of a Loan and the Drawing Date
were a Borrowing date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agents and
the Lenders that (which representations and warranties in the case of the
Canadian Borrower shall be limited to the Canadian Borrower and its Subsidiaries
and shall exclude the representations and warranties set forth in subsections
5.12(a), (b) and (c)):
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each
Loan Party (a) is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite
corporate or other organizational power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws and all orders, writs, injunctions and decrees
applicable to it or its properties; except in each case referred to in clause
(b)(i), (c) or (d), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
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5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority or arbitral award to which such Person or
its property is subject; or (c) violate any Law, except for such approvals or
consents which will be obtained on or before the Closing Date.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement, any other Loan Document, except for
filings in connection with the Liens granted pursuant hereto or thereto.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; and (iii) show all material
indebtedness and other liabilities, direct or contingent, of the Domestic
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the
Domestic Borrower and its Subsidiaries dated March 31, 2003, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present in all material
respects the financial condition of the Domestic Borrower and its Subsidiaries
as of the date thereof and their results of operations for the period covered
thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments. Schedule 5.05 sets forth all
material indebtedness and other liabilities, direct or contingent, of the
Domestic Borrower and its consolidated Subsidiaries as of the date of such
financial statements, including liabilities for taxes, material commitments and
Indebtedness that are not identified on such financial statements.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate, that has
had or could reasonably be expected to have a Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings, claims
or disputes pending or, to the knowledge of any Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against any Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. Neither any Borrower nor any Subsidiary is in
default under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
52
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrowers and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of each Borrower and its Subsidiaries is subject to
no Liens, other than Liens permitted by Section 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. Each Borrower and its Subsidiaries
conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrowers have reasonably concluded
that, except as specifically disclosed in Schedule 5.09, such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
5.10 INSURANCE. The properties of each Borrower and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of a Borrower, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where each
Borrower or the applicable Subsidiary operates.
5.11 TAXES. Each Borrower and its Subsidiaries have filed all
Federal, state, provincial and other material tax returns and reports required
to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which
are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with
GAAP. There is no proposed tax assessment against any Borrower or any Subsidiary
that would, if made, have a Material Adverse Effect.
5.12 ERISA AND CANADIAN PENSION PLAN COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Domestic Borrower, nothing has occurred which would prevent, or
cause the loss of, such qualification, in each case that has not resulted in an
Event of Default under Section 8.01(i) and that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
The Borrowers and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the
Borrowers, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
any Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither any Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither any Borrower nor any ERISA Affiliate has engaged in a transaction that
could
53
be subject to Sections 4069 or 4212(c) of ERISA, in each case that has not
resulted in an Event of Default under Section 8.01(i) and that, individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(d) During the twelve-consecutive-month period before the date of
the execution and delivery of this Agreement and before the date of any Credit
Extension hereunder, (i) no steps have been taken to terminate any Canadian
Pension Plan (wholly or in part), which could result in a Borrower or a
Subsidiary being required to make an additional contribution to a Canadian
Pension Plan in excess of $5,000,000; (ii) no contribution failure has occurred
with respect to any Canadian Pension Plan under any applicable pension benefits
laws of any jurisdiction that, individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect; (iii) no condition exists and no
event or transaction has occurred with respect to any Canadian Pension Plan
which might result in the incurrence by a Borrower or a Subsidiary of any fine
or statutory penalty in excess of $5,000,000; (iv) except as disclosed in the
financial statements required to be provided pursuant to this Agreement or as
otherwise disclosed in writing from time to time to the Administrative Agents,
no Borrower or Subsidiary has any liability, including without limitation a
contingent liability, with respect to any benefit under a Canadian Welfare Plan
that, individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; and (v) except as disclosed in the financial statements
required to be provided pursuant to this Agreement or as otherwise disclosed in
writing from time to time to the Administrative Agents, no Borrower or
Subsidiary has any liability in relation to a Canadian Pension Plan as disclosed
in an actuarial valuation filed with applicable regulatory authorities that,
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
(e) (i) Each Canadian Pension Plan is in compliance in all
material respects with all applicable pension benefits and tax laws; (ii) all
contributions (including employee contributions made by authorized payroll
deductions or other withholdings) required to be made to the appropriate funding
agency in accordance with all applicable Laws and the terms of each Canadian
Pension Plan have been made in accordance with all applicable Laws and the terms
of each Canadian Pension Plan; (iii) to the knowledge of the Canadian Borrower
after due inquiry, all liabilities under each Canadian Pension Plan are fully
funded, on a going concern and solvency basis, in accordance with the terms of
the respective Canadian Pension Plan, the requirements of applicable pension
benefits laws and of applicable regulatory authorities and the most recent
actuarial report filed with respect to such Canadian Pension Plan; and (iv) no
event has occurred and no conditions exist with respect to any Canadian Pension
Plan that has resulted or could reasonably be expected to result in any Canadian
Pension Plan having its registration revoked or refused for the purposes of any
applicable pension benefits or tax laws or being placed under the administration
of any relevant pension benefits regulatory authority or being required to pay
any taxes or statutory penalties under any applicable pension benefits or tax
laws, except for any exceptions to clauses (ii) through (iv) above that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.13 SUBSIDIARIES. As of the date hereof, the Borrowers have no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13 and have no equity investments in any other corporation or entity other
than those specifically disclosed in Part(b) of Schedule 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
(a) Each Borrower is not engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the FRB), or
extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrowers, any Person Controlling a Borrower, or
any Subsidiary (i) 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, or (ii) is or is required to be registered as an
"investment company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. Each Borrower has disclosed to the Administrative
Agents and the Lenders all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all
54
other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report,
financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to any Administrative Agent
or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact (known to any Borrower
in the case of any document not furnished by it) necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, each Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time, it
being recognized by the Lenders that such projections as to future events are
not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ significantly from the projected
results.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrowers and their
Subsidiaries own, or possess the right to use, all of the material trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises,
licenses and other intellectual property rights (collectively, "IP Rights") that
are reasonably necessary for the operation of their respective businesses, taken
as a whole, without conflict with the rights of any other Person in any material
respect. To the best knowledge of the Borrowers, no slogan or other advertising
device, product, process, method, substance, part or other material that is
material to the business of the Borrowers and their Subsidiaries, taken as a
whole, now employed, or now contemplated to be employed, by any Borrower or any
Subsidiary infringes upon any rights held by any other Person in any material
respect. No claim or litigation regarding any of the foregoing is pending or, to
the best knowledge of the Borrowers, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.17 TAX SHELTER REGULATIONS. The Domestic Borrower does not intend
to treat the Domestic Loans and/or Domestic Letters of Credit as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Domestic Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Domestic
Administrative Agent thereof. If the Domestic Borrower so notifies the Domestic
Administrative Agent, the Domestic Borrower acknowledges that one or more of the
Domestic Lenders may treat its Committed Domestic Loans and/or its interest in
Domestic Swing Line Loans and/or Domestic Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Domestic Lender or Domestic Lenders, as applicable, will maintain the lists and
other records required by such Treasury Regulation.
5.18 APPROVED ACQUISITIONS. The CCI Acquisition and the ECAT
Acquisition were, and the CDI Acquisition will be (at the closing thereof),
conducted in accordance with applicable Laws, and all necessary approvals,
consents, exemptions, authorizations or other actions by, or notices to, or
filings with, any Governmental Authority have been (or in the case of the CDI
Acquisition will have been at the closing thereof) obtained, given or made in
connection therewith, except in each case where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, each Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to (which covenants and agreements in the case of the Canadian
Borrower shall be limited to those covenants and agreements that are within the
control and discretion of the Canadian Borrower and its Subsidiaries):
6.01 FINANCIAL STATEMENTS. Deliver to each Administrative Agent and
each Lender, in form and detail satisfactory to the Administrative Agents and
the Required Lenders:
(a) as soon as available, but in any event within 95 days after
the end of each fiscal year of the Domestic Borrower, a consolidated balance
sheet of the Domestic Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations,
shareholders' equity and cash
55
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of Ernst & Young LLP or an independent
certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared
in accordance with GAAP and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit, together with an internally prepared consolidated balance sheet of
the Canadian Borrower and its Subsidiaries as at the end of such fiscal year and
the related consolidated statements of income or operations for such fiscal year
setting forth in each case (other than the consolidated statements of the
Canadian Borrower and its Subsidiaries for fiscal year ending June 30, 2004) in
comparative form the figures for the corresponding fiscal year, all in
reasonable detail and certified by a Responsible Officer of the Domestic
Borrower as fairly presenting in all material respects the financial condition
and results of operations of the Canadian Borrower and its Subsidiaries in
accordance with GAAP;
(b) as soon as available, but in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Domestic Borrower, a consolidated balance sheet of the Domestic Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
fiscal quarter and for the portion of the Domestic Borrower's fiscal year then
ended, together with a consolidated balance sheet of the Canadian Borrower and
its Subsidiaries as at the end of such fiscal quarter and the related
consolidated statements of income or operations for such fiscal quarter and for
the portion of the fiscal year then ended (if such fiscal quarter ends after the
earlier of the date on which CDI becomes a wholly-owned Subsidiary of, or is
amalgamated with, the Canadian Borrower, and four (4) months after the
consummation of the CDI Acquisition), setting forth in each case (other than the
consolidated statements of the Canadian Borrower and its Subsidiaries for fiscal
quarters ending before the first anniversary of the earlier of such dates) in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Domestic
Borrower as fairly presenting in all material respects the financial condition,
results of operations, shareholders' equity and cash flows of the Domestic
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes; and
(c) as soon as available, but in any event within 65 days after
the end of each fiscal year of the Domestic Borrower, and within thirty (30)
days after consummation of any Permitted Acquisition (excluding the CCI
Acquisition, the ECAT Acquisition and the CDI Acquisition) for which the total
consideration (including assumed indebtedness) given by the Borrowers exceeded
Fifteen Million Dollars ($15,000,000), three years projected financial
statements for the Domestic Borrower and its Subsidiaries (the first year of
which shall be presented on a quarterly basis) showing projections for income,
shareholders' equity and cash flows for such future three year period.
As to any information contained in materials furnished pursuant to Section 6.02,
the Borrowers shall not be separately required to furnish such information under
subsection (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrowers to furnish the information and materials described
in subsections (a) and (b) above at the times specified therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to each
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agents and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Domestic Borrower;
(c) promptly after any request by any Administrative Agent or any
Lender (unless restricted by applicable Law), copies of any detailed audit
reports, management letters or recommendations submitted to the
56
board of directors (or the audit committee of the board of directors) of any
Borrower by independent accountants in connection with the accounts or books of
any Borrower or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of any Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which the Borrower may file or
be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agents pursuant hereto;
(e) promptly after the Domestic Borrower has notified the Domestic
Administrative Agent of any intention by the Domestic Borrower to treat the
Domestic Loans and/or Domestic Letters of Credit as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4), a
duly completed copy of IRS Form 8886 or any successor form; and
(f) promptly, such additional information regarding the business,
financial or corporate affairs of any Borrower or any Subsidiary as any
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)
or Section 6.02(d) (to the extent any such financial statements, reports or
proxy statements are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which a Borrower posts such documents, or provides
a link thereto on a Borrower's website on the Internet at the website address
listed on Schedule 10.02; or (ii) on which such documents are posted on a
Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if any,
to which each Lender and each Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by an Administrative
Agent); provided that: (i) the Borrowers shall deliver paper copies of such
documents to the Administrative Agents or any Lender who requests the Borrowers
to deliver such paper copies until written request to cease delivering paper
copies is given by the Administrative Agents or such Lender and (ii) the
Borrowers shall notify (which may be by facsimile or electronic mail) the
Administrative Agents and each Lender of the posting of any such documents and
provide to the Administrative Agents by email electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Borrowers shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(c) to the Administrative Agents
and each of the Lenders. Except for such Compliance Certificates, the
Administrative Agents shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrowers with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
6.03 NOTICES. Promptly notify the Administrative Agents and each
Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including any of the following
such matters (i) breach or non-performance of, or any default under, a
Contractual Obligation of any Borrower or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between any Borrower or any
Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting any Borrower or
any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by any Borrower or any Subsidiary;
57
(e) of any Permitted Acquisition where the consideration paid (in
cash, equity or assumed Indebtedness) exceeds Five Million Dollars ($5,000,000);
and
(f) of (i) the institution of any steps by a Borrower, a
Subsidiary or any applicable regulatory authority to terminate any Canadian
Pension Plan (wholly or in part) which could result in the Borrower or
Subsidiary being required to make an additional contribution to the Canadian
Pension Plan in excess of $1,000,000; (ii) the failure to make a required
contribution to any Canadian Pension Plan that, individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect; (iii) the taking
of any action with respect to a Canadian Pension Plan which could reasonably be
expected to result in the requirement that a Borrower or a Subsidiary furnish a
bond or other security to such Canadian Pension Plan or any applicable
regulatory authority that, individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, or (iv) the occurrence of any event
with respect to any Canadian Pension Plan which could reasonably be expected to
result in the incurrence by a Borrower or Subsidiary of any fine or statutory
penalty in excess of $1,000,000 with respect to any Canadian Pension Plan or
Canadian Welfare Plan benefit.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Domestic Borrower setting forth
details of the occurrence referred to therein and stating what action the
Borrowers have taken and propose to take with respect thereto. Each notice
pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement and any other Loan Document that have been
breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall
become due and payable, all its obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by such Borrower or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien (other than a
Permitted Lien) upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by such Borrower or such
Subsidiary.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05 and except that a Borrower shall not be
required to maintain the existence or good standing of any Subsidiary that is
not a Material Subsidiary to the extent the preservation thereof is no longer
desirable in the conduct of business of such Borrower and its Subsidiaries; (b)
take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
and (b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of a Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws applicable to it or to its business or property, except
in such instances in which (i) such requirement of Law is being contested in
good faith by appropriate proceedings diligently conducted or a bona fide
dispute exists with respect thereto; or (ii) the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.
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6.09 BOOKS AND RECORDS. Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of such Borrower or such Subsidiary, as the
case may be, in all material respects; and maintain such books of record and
account in material conformity with all applicable requirements of any
Governmental Authority having regulatory jurisdiction over such Borrower or such
Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of each Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants (provided that such Borrower may, if it so chooses, be
present and participate in any such discussions), all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to such Borrower; provided, however, that when an
Event of Default exists any Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrowers at any time during normal business
hours and without advance notice.
6.11 USE OF PROCEEDS. Use the proceeds of the Credit Extensions for
Permitted Acquisitions, working capital and other general corporate purposes not
in contravention of any Law or of any Loan Document.
6.12 ADDITIONAL GUARANTORS. Notify the Administrative Agents at the
time that any Person that is a Material Subsidiary becomes a Domestic Subsidiary
or a Canadian Subsidiary, and promptly thereafter (and in any event within 30
days or in the case of an Acquisition of a publicly-held Canadian Subsidiary,
within four (4) months), cause such Person to (a) become a Guarantor by
executing and delivering to the Administrative Agents a counterpart of the
Guaranty or such other document as the Administrative Agents shall deem
appropriate for such purpose, and (b) deliver to the Administrative Agents
documents of the types referred to in clause (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a), all in form, content and scope
reasonably satisfactory to the Administrative Agents.
6.13 ACQUISITIONS. Prior to consummating any Acquisition with a
value in excess of $15,000,000 (other than any Approved Acquisition), the
Borrowers shall have delivered to the Administrative Agents (in form and detail
reasonably satisfactory to each Lender and in sufficient copies for each Lender)
the following:
(i) Simultaneously with, or as soon as practicable after,
the first public announcement of a Borrower's intention to consummate
an Acquisition, a brief summary of the substantive terms thereof, or if
available, a copy of the executed purchase or merger agreement,
together with a copy of such announcement;
(ii) At least 10 days prior to the consummation of such
Acquisition (unless the first public announcement thereof or the
execution of the relevant purchase or merger agreement occurs later, in
which case upon such later date), a copy, certified by a Responsible
Officer of the applicable Borrower, of the executed purchase contract
or merger agreement relating to such Acquisition; and
(iii) An officer's certificate, executed by a Responsible
Officer of each Borrower, dated the date of consummation of such
Acquisition, certifying that immediately before and after giving effect
to such Acquisition (A) no Default has occurred and is continuing or
will exist, (B) that the Borrowers will be in compliance on a pro forma
basis with each of the financial ratios specified in Section 7.11 as of
the end of the fiscal quarter immediately preceding such Acquisition
for which financial statements have been delivered pursuant to Section
6.01 for the twelve-month period preceding such fiscal quarter end,
together with, in the case of all Acquisitions, a reasonably detailed
worksheet setting forth the calculation of such ratios and (C) that the
Acquisition is a Permitted Acquisition.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, each Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly (which covenants and agreements in the
case of the Canadian Borrower shall be limited to those covenants and agreements
that are within the control and discretion of the Canadian Borrower and its
Subsidiaries):
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:
(a) Liens pursuant to any Security Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any renewals or extensions or refinancings thereof, provided that the
property covered thereby is not increased and any renewal or extension or
refinancing of the obligations secured or benefited thereby is permitted by
Section 7.03(b);
(c) Liens existing on the date hereof against CDI or its
Subsidiaries and listed on Schedule 7.01, provided that such Liens are
terminated and released within four (4) months following the consummation of the
CDI Acquisition, except for such Liens securing Indebtedness in an aggregate
amount not to exceed $2,000,000 through June 30, 2004 and $1,000,000 thereafter;
(d) Permitted Liens; and
(e) Liens securing Indebtedness permitted under Section 7.03(h);
provided that (i) such Liens do not at any time encumber any property other than
the property financed or refinanced by such Indebtedness and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by such Borrower or such Subsidiary in the
form of cash equivalents or short-term marketable securities;
(b) advances to officers, directors and employees of the Borrowers
and Subsidiaries in an aggregate amount not to exceed $750,000 at any time
outstanding, for travel, entertainment, relocation and other customary purposes;
(c) Subject to Section 7.15, Investments of such Borrower in
another Borrower or any Guarantor (including any new publicly-held Canadian
Subsidiary or any of its Subsidiaries that is required to become a Guarantor
within four (4) months of the Acquisition thereof pursuant to Section 6.12) and
Investments of any Guarantor in a Borrower or in another Guarantor (including
any new publicly-held Canadian Subsidiary or any of its Subsidiaries that is
required to become a Guarantor within four (4) months of the Acquisition thereof
pursuant to Section 6.12).
(d) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Investments that constitute consolidated capital expenditures;
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(f) Investments consisting of Long Term Student Note Receivables
and other receivables and notes received from students in the ordinary course of
business;
(g) Guarantees permitted by Section 7.03; and
(h) Other Investments in any period of four consecutive fiscal
quarters in an amount which does not exceed the greater of (x) $10,000,000 or
(y) ten percent (10%) of the Consolidated Net Income of the Domestic Borrower
and its Subsidiaries for the most recently ended period of four consecutive
fiscal quarters.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on
Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that the amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Indebtedness of CDI or its Subsidiaries outstanding on the
date hereof and listed on Schedule 7.03, provided, that such Indebtedness is
satisfied in full within four (4) months following the consummation of the CDI
Acquisition, except for such Indebtedness in an aggregate principal amount not
to exceed $2,000,000 through June 30, 2004 and $1,000,000 thereafter;
(d) Subject to Section 7.15, Guarantees of such Borrower or any
Guarantor in respect of Indebtedness otherwise permitted hereunder of a Borrower
or a Guarantor (including any new publicly-held Canadian Subsidiary or any of
its Subsidiaries that is required to become a Guarantor within four (4) months
of the Acquisition thereof pursuant to Section 6.12);
(e) Subject to Section 7.15, such Borrower may become and remain
liable with respect to Indebtedness to the other Borrower or any Guarantor, and
any Guarantor (including any new publicly-held Canadian Subsidiary or any of its
Subsidiaries that is required to become a Guarantor within four (4) months of
the Acquisition thereof pursuant to Section 6.12) may become and remain liable
with respect to Indebtedness to a Borrower or any other Guarantor;
(f) obligations (contingent or otherwise) of such Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(g) Indebtedness in an aggregate principal amount not to exceed
$20,000,000 at any time outstanding in respect to surety bonds and similar
instruments issued in the ordinary course of business;
(h) Indebtedness of Corinthian Properties to Bank One Capital
Partners VI, Ltd. outstanding as of the Closing Date and Indebtedness in respect
of capital leases, Synthetic Lease Obligations and purchase money obligations
for fixed or capital assets within the limitations set forth in Section 7.01(e);
provided, however, that the aggregate amount of all such Indebtedness at any one
time outstanding shall not exceed $25,000,000;
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(i) unsecured Indebtedness in an aggregate principal amount not to
exceed $30,000,000 at any time outstanding on terms no more restrictive than
those provided in this Agreement or otherwise satisfactory to the Administrative
Agents; and
(j) Indebtedness in an aggregate principal amount not to exceed
$50,000,000 at any time outstanding incurred pursuant to a private placement on
terms no more restrictive than those provided in this Agreement (which
Indebtedness may share pari passu under the Security Documents) or otherwise
satisfactory to the Administrative Agents.
Notwithstanding anything contained in this Section 7.03 to the contrary, the
aggregate amount of Indebtedness at any time outstanding under clauses (i) and
(j) hereof shall not exceed $50,000,000.
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person or
make any Acquisition, except that, so long as no Default exists or would result
therefrom:
(a) any Subsidiary (other than the Canadian Borrower) may merge
with (i) such Borrower, provided that such Borrower shall be the continuing or
surviving Person, or (ii) any one or more Subsidiaries, provided that when any
Guarantor is merging with another Subsidiary, the Guarantor shall be the
continuing or surviving Person, and provided, further, that no Guarantor that is
a Domestic Subsidiary may merge with a Canadian Subsidiary or Foreign Subsidiary
where such Canadian Subsidiary or Foreign Subsidiary is the continuing or
surviving Person;
(b) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise) to a Borrower or to another
Subsidiary; provided that if the seller in such a transaction is a wholly-owned
Subsidiary, then the purchaser must also be a wholly-owned Subsidiary, and
provided, further, that no Guarantor that is a Domestic Subsidiary may sell all
or substantially all of its assets (upon voluntary liquidations or otherwise) to
a Canadian Subsidiary or Foreign Subsidiary;
(c) subject to Section 7.15, such Borrower or any Subsidiary may
make a Permitted Acquisition; and
(d) such Borrower or any Subsidiary may make a Disposition
permitted by Section 7.05.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that
(i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of equipment, real property or leasehold
improvements;
(d) Dispositions of property by any Subsidiary to a Borrower or to
a wholly-owned Subsidiary; provided that if the transferor of such property is a
Guarantor, the transferee thereof shall also be a Guarantor;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Long Term Student Notes Receivables and other
notes and receivables in the ordinary course of business; and
62
(g) other Dispositions by such Borrower and its Subsidiaries, so
long as (i) no Default or Event of Default then exists or would result
therefrom, (ii) each such Disposition is in an arm's-length transaction and such
Borrower or the respective Subsidiary receives at least fair market value (as
determined in good faith by such Borrower or such Subsidiary, as the case may
be), (iii) the total consideration received by such Borrower or such Subsidiary
is at least 85% cash and is paid at the time of the closing of such Disposition,
(iv) the net cash proceeds therefrom are applied and/or reinvested as (and to
the extent) required by Section 2.07(b) and (v) the aggregate amount of the
proceeds received from all assets so Disposed of in any fiscal year shall not
exceed the greater of (x) $10,000,000 and (y) five percent (5%) of Consolidated
Tangible Assets as of the end of the preceding fiscal year;
provided, however, that any Disposition pursuant to clauses (a), (b), (c), (f)
and (g) shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except that:
(a) each Subsidiary may make Restricted Payments to a Borrower and
to wholly-owned Subsidiaries (and, in the case of a Restricted Payment by a
non-wholly-owned Subsidiary, to a Borrower and any Subsidiary and to each other
owner of capital stock or other equity interests of such Subsidiary on a pro
rata basis based on their relative ownership interests);
(b) such Borrower and each Subsidiary may declare and make
dividend payments or other distributions payable solely in the common stock or
other common equity interests of such Person;
(c) such Borrower and each Subsidiary may purchase, redeem or
otherwise acquire shares of its common stock or other common equity interests or
warrants or options to acquire any such shares with the proceeds received from
the substantially concurrent issue of new shares of its common stock or other
common equity interests; and
(d) the Domestic Borrower may make Restricted Payments not
otherwise permitted under clauses (a) through (c) above so long as (i) both
before and after giving effect thereto, there shall not exist a Default, (ii)
after giving effect thereto, the Domestic Borrower shall be in pro forma
compliance with the financial covenants in Section 7.11 and (iii) the aggregate
amount of such Restricted Payments in any period of four consecutive fiscal
quarters shall not exceed the greater of (x) 10% of the Consolidated Net Income
of the Domestic Borrower and its Subsidiaries for the most recently ended period
of four consecutive fiscal quarters or (y) $5,000,000.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from Post-Secondary Education Business,
educational or vocational book publishing, educational or vocational training or
any business substantially related or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of a Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to such Borrower or any Subsidiary as would be obtainable by such Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
Person other than an Affiliate.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to any Borrower or any
Guarantor or to otherwise transfer property to any Borrower or any Guarantor;
provided, however, that this clause (i) shall not prohibit customary
restrictions in connection with an agreement to make a Disposition permitted
hereunder, (ii) of any Subsidiary (other than a Foreign Subsidiary or, with
respect to the Indebtedness of the Domestic Borrower, a Canadian Subsidiary) to
Guarantee the Indebtedness of any Borrower or (iii) of any Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, that this clause (iii) shall not prohibit any
negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Sections 7.03(b), 7.03(c), 7.03(f) or 7.03(h) solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness, any negative pledge incurred or provided in favor
of any holder of Indebtedness permitted under Section 7.03(i) or 7.03(j) that is
no more restrictive
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than those provided in this Agreement and that does not restrict the
creation of Liens to secure the Obligations, any customary restrictions in
connection with an agreement to make a Disposition permitted hereunder or any
agreement prohibiting the incurrence of Liens securing subordinated
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of
such Person if a Lien is granted to secure another obligation of such Person.
This Section shall not apply to the existing Contractual Obligations of CDI that
shall be satisfied within four (4) months of the CDI Acquisition.
7.10 USE OF PROCEEDS. Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any manner that might cause the Borrowing or the application of
such proceeds to violate Regulation U of the FRB.
7.11 FINANCIAL COVENANTS.
(a) Consolidated Net Worth. Permit the Consolidated Net Worth of
the Domestic Borrower and its Subsidiaries as of the end of any fiscal quarter
to be less than the sum of (a) $190,000,000, (b) an amount equal to 50% of the
Consolidated Net Income earned in each full fiscal quarter ending after March
31, 2003 (with no deduction for a net loss in any such fiscal quarter) and (c)
an amount equal to 100% of the aggregate increases in Shareholders' Equity of
the Domestic Borrower and its Subsidiaries after the date hereof by reason of
the issuance and sale of capital stock or other equity interests of the Domestic
Borrower or any Subsidiary (other than issuances to the Domestic Borrower or a
wholly-owned Subsidiary and other than issuances of stock to officers, employees
or directors or equity in connection with the exercise thereof), including upon
any conversion of debt securities of the Domestic Borrower or a Subsidiary into
such capital stock or other equity interests.
(b) Consolidated Fixed Charges Coverage Ratio. Permit the
Consolidated Fixed Charges Coverage Ratio of the Domestic Borrower and its
Subsidiaries as of the end of any fiscal quarter of the Domestic Borrower to be
less than 1.50:1.00.
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio of the Domestic Borrower and its Subsidiaries as of the end of any fiscal
quarter ending during any period set forth below to be greater than the ratio
set forth below opposite such period:
MAXIMUM CONSOLIDATED LEVERAGE
PERIODS RATIO
-----------------------------------------------------------------------------
Through September 30, 2004 2.25:1.00
December 31, 2004 through September 30, 2005 2.00:1.00
On and after December 31, 2005 1.75:1.00
(d) DOE Financial Responsibility Composite Ratio. Permit the DOE
Ratio as of the last day of any fiscal year to be less than 1.50:1.00.
(e) Long Term Note Receivables. Permit the amounts owing under
Long Term Student Note Receivables net of allowances for uncollectible amounts
at any time to be greater than ten percent (10%) of Consolidated Net Worth.
7.12 AMENDMENT OF ACQUISITION AGREEMENT. Amend or waive any
material conditions, terms or undertakings in the existing agreements regarding
the CDI Acquisition without the prior written consent of the Administrative
Agents (which consent shall not be unreasonably withheld).
7.13 RESTRICTIVE AGREEMENTS, ETC. Enter into any agreement
(excluding this Agreement, any other Loan Document and any agreement governing
any Indebtedness permitted by Section 7.01(b) as in effect on the Closing Date)
restricting the ability of any Borrower or any other Loan Party to amend or
otherwise modify this Agreement or any other Loan Document.
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7.14 CORINTHIAN PROPERTIES. Notwithstanding anything to the
contrary herein, unless and until Corinthian Properties becomes a Loan Party and
enters into a Guaranty and Pledge Agreement, each Borrower will not, and will
not permit any of its Subsidiaries to, make any further Investments in
Corinthian Properties or permit Corinthian Properties to engage in any business
other than the ownership, operation and leasing of the properties it owns as of
the Closing Date.
7.15 LIMITATIONS ON CERTAIN INVESTMENTS AND ACQUISITIONS.
Notwithstanding the provisions of Sections 7.02(c) and (h), 7.03(d) and (e), and
7.04(c), the sum of the following amounts shall not exceed $50,000,000 at any
time: (a) the aggregate amount outstanding at such time of all Investments made
after the date hereof by the Domestic Borrower or any Domestic Subsidiary in any
Canadian Subsidiary or Foreign Subsidiary (net of any returns or repayments);
and (b) the aggregate amount of the total consideration (excluding equity) paid
for all Acquisitions made after the date hereof by the Domestic Borrower or any
Domestic Subsidiary of any Canadian Subsidiary or Foreign Subsidiary, less any
distributions received by the Domestic Borrower or any Domestic Subsidiary on
account of such Canadian Subsidiary or Foreign Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any Loan,
any Acceptance or any L/C Obligation, or (ii) within three days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder, or (iii) within five days after the same becomes due, any other
amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. Any Borrower fails to perform or observe
any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.10 or 6.12 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) knowledge by an executive
officer of such Loan Party or (ii) notice thereof has been received by the
Borrowers from any Administrative Agent or any Lender; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of any
Borrower or any other Loan Party herein or in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) Any Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $5,000,000, or (B) fails to observe or perform
any other agreement or condition relating to any such Indebtedness or Guarantee
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which any Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or
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(B) any Termination Event (as so defined) under such Swap Contract as to which
any Borrower or any Subsidiary is an Affected Party (as so defined) and, in
either event, the Swap Termination Value owed by any Borrower or Subsidiary as a
result thereof is greater than $5,000,000; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Material Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Borrower or any
Material Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated or fully bonded within 30 days after its issue or levy; or
(h) Judgments. There is entered against any Borrower or any
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding $10,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA; Canadian Pension Plans. (i) An ERISA Event occurs with
respect to a Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of any Borrower under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $10,000,000, or (ii) any Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$10,000,000, or (iii) the institution of any steps by a Borrower, a Subsidiary
or any applicable regulatory authority to terminate any Canadian Pension Plan
(wholly or in part) which could result in the Borrower or Subsidiary being
required to make an additional contribution to the Canadian Pension Plan in
excess of $10,000,000, or (iv) the failure to make a required contribution to
any Canadian Pension Plan that, individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect, or (v) the taking of
any action with respect to a Canadian Pension Plan which could reasonably be
expected to result in the requirement that a Borrower or a Subsidiary furnish a
bond or other security to such Canadian Pension Plan or any applicable
regulatory authority that, individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect, or (vi) the occurrence of any event
with respect to any Canadian Pension Plan which could reasonably be expected to
result in the incurrence by the Borrower or Subsidiary of any fine or statutory
penalty in excess of $10,000,000 with respect to any Canadian Pension Plan or
Canadian Welfare Plan benefit.
(j) Invalidity of Loan Document. Any Loan Document, at any time
after its execution and delivery and for any reason other than as expressly
permitted hereunder or satisfaction in full of all the Obligations, ceases to be
in full force and effect; or any Loan Party or any other Person contests in any
manner the validity or enforceability of any Loan Document; or any Loan Party
denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or
(k) Regulatory Noncompliance. Any Borrower or any Material
Subsidiary fails to comply in any material respect with any of the terms and
provisions of any material license, permit or regulation issued by the DOE or of
any Governmental Authority; or
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(l) Change of Control. There occurs any Change of Control with
respect to any Borrower.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs
and is continuing, the Administrative Agents shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the following
actions:
(a) declare the commitment of each Lender to make Loans, the
obligation of each Canadian Lender to create or purchase any Acceptance and any
obligation of each L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;
(c) require that each Borrower Cash Collateralize the L/C
Obligations of such Borrower (in an amount equal to the then Outstanding Amount
thereof);
(d) require that the Canadian Borrower Cash Collateralize the Face
Amount of all unmatured Acceptances; and
(e) exercise on behalf of themselves and the Lenders all rights
and remedies available to them and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to any Borrower under any Debtor Relief Laws, the
obligation of each Lender to make Loans, the obligation of each Canadian Lender
to create or purchase any Acceptance and any obligation of the L/C Issuers to
make L/C Credit Extensions shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Borrowers
to Cash Collateralize the L/C Obligations and the Face Amount of all unmatured
Acceptances as aforesaid shall automatically become effective, in each case
without further act of any Administrative Agent or any Lender.
ARTICLE IX
ADMINISTRATIVE AGENTS
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENTS.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the applicable Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agents shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agents have or be
deemed to have any fiduciary relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agents. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to the Administrative Agents is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
(b) Each L/C Issuer shall act on behalf of the applicable Lenders
with respect to any Letters of Credit issued by it and the documents associated
therewith, and each L/C Issuer shall have all of the benefits and immunities (i)
provided to the applicable Administrative Agent in this Article IX with respect
to any acts taken or
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omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the application and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term "Administrative Agent" as used in this Article IX included such L/C Issuer
with respect to such acts or omissions, and (ii) as additionally provided herein
with respect to such L/C Issuer.
9.02 DELEGATION OF DUTIES. Each Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties. Without limitation of the foregoing, the Canadian Administrative
Agent may execute any of its duties under this Agreement or any other Loan
Document through Bank of America, N.A. Each Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENTS. No Agent-Related Person
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENTS.
(a) Each Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by an Administrative
Agent. Each Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if required hereunder, all
directly-affected Lenders) as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders or all the Lenders, if required hereunder, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and participants.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agents shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
9.05 NOTICE OF DEFAULT. Each Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to such Administrative Agent for the account of the Lenders, unless such
Administrative Agent shall have received written notice from a Lender or a
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." Each Administrative Agent will notify the
Lenders of its receipt
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of any such notice. Each Administrative Agent shall take such action with
respect to such Default as may be directed by the Required Lenders in accordance
with Article VIII; provided, however, that unless and until such Administrative
Agent has received any such direction, such Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENTS. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by any Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agents that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrowers hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agents herein, the Administrative Agents shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENTS. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders (or such other group of Lenders as may be required under
Section 10.01) shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse each Administrative Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by such Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that such Administrative Agent is not reimbursed for such expenses by or
on behalf of a Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all Obligations
hereunder and the resignation of any Administrative Agent.
9.08 ADMINISTRATIVE AGENTS IN THEIR INDIVIDUAL CAPACITY. Bank of
America, Bank of America Canada and their Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America and Bank of America Canada were
not the Administrative Agents, the L/C Issuers or the Swing Line Lenders
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America, Bank of America
Canada or their Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge that
the Administrative Agents shall be under no obligation to provide such
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information to them. With respect to its Loans, Bank of America and Bank of
America Canada shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though they were not the
Administrative Agents or the L/C Issuers or the Swing Line Lenders, and the
terms "Lender" and "Lenders" include Bank of America and Bank of America Canada
in their individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. Any Administrative Agent may
resign as an Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of America or Bank of America Canada shall
also constitute its resignation as an L/C Issuer and as a Swing Line Lender. If
an Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Canadian Lenders (in respect of appointing a replacement
Canadian Administrative Agent) or the Domestic Lenders (in respect of appointing
a replacement Domestic Administrative Agent) a successor administrative agent
for the Lenders which successor administrative agent shall be consented to by
the Borrowers at all times other than during the existence of an Event of
Default (which consent of the Borrowers shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of any Administrative Agent, such
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Canadian Lenders (in
respect of appointing a replacement Canadian Administrative Agent) or the
Domestic Lenders (in respect of appointing a replacement Domestic Administrative
Agent). Upon the acceptance of its appointment as successor administrative agent
hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent, L/C Issuer and Swing Line Lender and the respective terms "Administrative
Agent," "L/C Issuer" and "Swing Line Lender" shall mean such successor
administrative agent, Letter of Credit issuer and swing line lender, and the
retiring Administrative Agent's appointment, powers and duties as an
Administrative Agent shall be terminated and the retiring L/C Issuer's and Swing
Line Lender's rights, powers and duties as such shall be terminated, without any
other or further act or deed on the part of such retiring L/C Issuer or Swing
Line Lender or any other Lender, other than the obligation of the successor L/C
Issuer to issue letters of credit in substitution for (and against cancellation
of) the Letters of Credit, if any, outstanding at the time of such succession or
to make other arrangements satisfactory to the retiring L/C Issuer to
effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as an Administrative Agent, the provisions of this Article IX and
Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as an
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of such Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
9.10 ADMINISTRATIVE AGENTS MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agents (irrespective
of whether the principal of any Loan, Acceptance or L/C Obligation shall then be
due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agents shall have made any demand on
the Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, Acceptances,
L/C Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agents (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and
the Administrative Agents and their respective agents and counsel and all other
amounts due the Lenders and the Administrative Agents under Sections 2.04(i) and
(j), 2.10 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agents and, in the
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event that any Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to such Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of such
Administrative Agent and its agents and counsel, and any other amounts due such
Administrative Agent under Sections 2.10 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agents to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agents to vote in respect of the claim of any Lender in any such
proceeding.
9.11 COLLATERAL AND GUARANTY MATTERS. The Lenders irrevocably
authorize each Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by such
Administrative Agent under any Security Document (i) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, or (iii) subject to
Section 10.01, if approved, authorized or ratified in writing by the Required
Lenders;
(b) to subordinate any Lien on any property granted to or held by
such Administrative Agent under any Security Document to the holder of any Lien
on such property that is permitted by Sections 7.01(b) or 7.01(d); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by any Administrative Agent at any time, the Required
Lenders will confirm in writing such Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section 9.11.
9.12 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent," "documentation agent," "book manager" or "lead
arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than, in the case of such Lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
any Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrowers or the applicable Loan
Party, as the case may be, and acknowledged by the applicable Administrative
Agent, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall, unless in writing and signed by each
of the Lenders directly affected thereby and by the Borrowers, and acknowledged
by the Administrative Agents, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02);
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(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment or mandatory prepayment (other than a Mandatory
Prepayment under Section 2.07) of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, Acceptance or L/C Borrowing, or (subject to clause (iv) of
the second proviso to this Section 10.01) any fees or other amounts payable
hereunder or under any other Loan Document, provided, however, that only the
consent of the Required Lenders shall be necessary to amend any financial
covenant hereunder even if the effect of such amendment would be to reduce the
rate of interest on any Loan, Acceptance or L/C Borrowing or to reduce any fee
payable hereunder;
(d) change the percentage of the Aggregate Domestic Commitments or
the Aggregate Canadian Commitments or of the aggregate unpaid principal amount
of the Loans, Acceptances and L/C Obligations which is required for the Lenders
or any of them to take any action hereunder;
(e) amend this Section, or Section 2.14, or any provision herein
providing for consent or other action by all the Lenders;
(f) release any Guarantor from the Guaranty except as provided in
Section 9.11 hereof; or;
(g) release all or a material part of the Collateral;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Required
Lenders or each directly-affected Lender, as the case may be, affect the rights
or duties of an L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (ii)
no amendment, waiver or consent shall, unless in writing and signed by the
applicable Swing Line Lender in addition to the Required Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of
such Swing Line Lender under this Agreement; (iii) no amendment, waiver or
consent shall, unless in writing and signed by the applicable Administrative
Agent in addition to the Required Lenders or each directly-affected Lender, as
the case may be, affect the rights or duties of such Administrative Agent under
this Agreement or any other Loan Document; (iv) Section 10.07(h) may not be
amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (v) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not
be increased or extended without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be mailed,
faxed or delivered to the address, facsimile number or (subject to subsection
(c) below) electronic mail address specified for notices on Schedule 10.02 and
all notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the telephone number specified for notices on
Schedule 10.02; or, in the case of the Borrowers, the Administrative Agents, the
L/C Issuers or the Swing Line Lenders, to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such party
in a notice to the other parties, and in the case of any other party, to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrowers, the
Administrative Agents, the L/C Issuers and the Swing Line Lenders. All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A)
if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other
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communications to the Administrative Agents, the L/C Issuers and the Swing Line
Lenders pursuant to Article II shall not be effective until actually received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agents and the Lenders. The Administrative
Agents may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Administrative Agents and Lenders. The
Administrative Agents and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices, Drawing Notices and Swing
Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i)
such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of any Borrower.
All telephonic notices to and other communications with any Administrative Agent
may be recorded by such Administrative Agent, and each of the parties hereto
hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. Each Borrower agrees
jointly and severally (a) to pay or reimburse the Administrative Agents for all
reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of this Agreement and the other Loan
Documents and any amendment, waiver, consent or other modification of the
provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) to pay or reimburse the Administrative Agents and each Lender for all
costs and expenses incurred in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
the other Loan Documents (including all such costs and expenses incurred during
any "workout" or restructuring in respect of the Obligations and during any
legal proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall include all
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by the
Administrative Agents and the cost of independent public accountants and other
outside experts retained by the Administrative Agents or any Lender. The
agreements in this Section shall survive the termination of the Commitments and
repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWERS. Whether or not the
transactions contemplated hereby are consummated, each Borrower shall jointly
and severally indemnify and hold harmless each Agent-Related Person, each Lender
and their respective Affiliates, directors, officers, employees, counsel, agents
and attorneys-in-fact (collectively the "Indemnitees") from and against any and
all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such
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Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan, Acceptance or
Letter of Credit or the use or proposed use of the proceeds therefrom (including
any refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), or (c) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). The agreements in this Section shall survive the resignation of
any Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations. All amounts due under this Section 10.05 shall be payable within
ten Business Days after demand therefor.
10.06 PAYMENTS SET ASIDE. To the extent that any payment by or on
behalf of any Borrower is made to any Administrative Agent or any Lender, or any
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to such Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by such Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate in the case of the Domestic Administrative Agent and the Interbank
Reference Rate in the case of the Canadian Administrative Agent from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrowers may not assign or otherwise
transfer any of their rights or obligations hereunder without the prior written
consent of each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section, (iii) by way of pledge or assignment of a security interest subject to
the restrictions of subsection (f) of this Section, or (iv) to an SPC in
accordance with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this subsection (b), Acceptances and participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
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assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund (as defined in subsection (g) of this Section) with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered
to the applicable Administrative Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of such Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the applicable Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of Swing Line Loans; (iii) any assignment
of a Commitment must be approved by such Borrower (which approval shall not be
unreasonably withheld and shall not be required during the continuance of any
Default), such Administrative Agent, the applicable L/C Issuer and the
applicable Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to such Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by such Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 10.04 and 10.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, the
applicable Borrower (at its expense) shall execute and deliver a new Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this subsection shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this Section.
(c) Each Administrative Agent, acting solely for this purpose as
an agent of the applicable Borrower, shall maintain at the Administrative
Agent's Office of such Administrative Agent a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the applicable Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each such Lender pursuant to
the terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrowers, the Administrative Agents and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by any Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, any Borrower or Administrative Agent, sell participations to any Person
(other than a natural person or the Borrowers or any of the Borrowers'
Affiliates or Subsidiaries (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans and Acceptances (including such
Lender's participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers,
the Administrative Agents and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 10.01 that directly affects such
Participant. Subject to subsection (e) of this Section, each Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits
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of Section 10.09 as though it were a Lender, provided such Participant agrees to
be subject to Section 2.14 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrowers' prior written consent. A Participant that would be a Foreign Lender
or a Canadian Lender to which clause (c) in the third sentence of the fourth
paragraph of Section 10.15(a) applies (if it were a Lender) shall not be
entitled to the benefits of Section 3.01 unless each Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 10.15 as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agents, the L/C
Issuers and the Swing Line Lender, and (ii) unless an Event of Default
has occurred and is continuing, the Borrowers (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, "Eligible Assignee" shall not include a Borrower or any
of its Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agents and the Borrowers (an "SPC") the option to provide all or
any part of any Committed Loan that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to fund any Committed Loan, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Committed Loan, the Granting Lender shall be obligated to make such
Committed Loan pursuant to the terms hereof. Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such option
shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrowers under this Agreement (including their obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would be liable, and
(iii) the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Committed Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Committed Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior debt of any SPC, it will not institute against, or join
any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrowers and the Administrative Agents and with the payment of a
processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Committed Loan to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating
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to its funding of Committed Loans to any rating agency, commercial paper dealer
or provider of any surety or Guarantee or credit or liquidity enhancement to
such SPC.
(i) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America or Bank of America Canada assigns all of its
Commitment and Loans pursuant to subsection (b) above, it may, (i) upon 30 days'
notice to the Borrowers and the Lenders, resign as an L/C Issuer and/or (ii)
upon five Business Days' notice to the Borrowers, terminate the applicable Swing
Line Loans. In the event of any such resignation as an L/C Issuer or termination
of such Swing Line Loans, the Borrowers shall be entitled to appoint from among
the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrowers to appoint any such successor shall
affect the resignation of Bank of America or Bank of America Canada as L/C
Issuer or the termination of any Swing Line Loan, as the case may be. Bank of
America and Bank of America Canada shall retain all the rights and obligations
of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as
of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base
Rate Committed Loans or fund participations in Unreimbursed Amounts pursuant to
Section 2.04(c)). If Bank of America or Bank of America Canada terminates its
Swing Line Loans, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such termination, including the right to
require the Lenders to make Base Rate Committed Loans or fund participations in
outstanding Swing Line Loans pursuant to Section 2.05(a).
10.08 CONFIDENTIALITY. Each of the Administrative Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee of
or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Loan
Parties; (g) with the consent of the Borrowers; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to any Administrative Agent or any Lender
on a nonconfidential basis from a source other than a Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates. In
addition, the Administrative Agents and the Lenders may disclose the existence
of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to any Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Credit Extensions. For the purposes of this Section,
"Information" means all information received from the Loan Parties relating to
the Loan Parties or their businesses, other than any such information that is
available to any Administrative Agent or any Lender on a nonconfidential basis
prior to disclosure by any Loan Party; provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified in writing at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and each Administrative Agent and each Lender
may disclose without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to such Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
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sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Acceptances, Letters
of Credit and transactions contemplated hereby.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrowers (on their own behalf and on behalf of each Loan Party)
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all
Obligations owing to such Lender, now or hereafter existing, irrespective of
whether or not the Administrative Agents or such Lender shall have made demand
under this Agreement or any other Loan Document and although such Obligations
may be contingent or unmatured or denominated in a currency different from that
of the applicable deposit or indebtedness. Each Lender agrees promptly to notify
the Borrowers and the Administrative Agents after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If any Administrative
Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to the Borrower. In determining
whether the interest contracted for, charged, or received by an Administrative
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agents or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agents or any Lender or on their behalf and notwithstanding
that any Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation shall remain unpaid
or unsatisfied or any Letter of Credit shall remain outstanding.
10.14 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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10.15 TAX FORMS. (a) Each Domestic Lender that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code (a "Foreign
Lender") shall deliver to the Domestic Administrative Agent, prior to receipt of
any payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of either
IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Foreign Lender by the Domestic Borrower pursuant to
this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Foreign Lender by the Domestic Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Domestic Borrower and
the Domestic Administrative Agent that such Foreign Lender is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Foreign Lender shall (i) promptly submit to the Domestic
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Domestic Borrower and the Domestic Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Domestic
Borrower pursuant to this Agreement, (ii) promptly notify the Domestic
Administrative Agent and the Domestic Borrower of any change in circumstances
which would modify or render invalid any claimed exemption or reduction, and
(iii) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any requirement of
applicable Laws that the Domestic Borrower make any deduction or withholding for
taxes from amounts payable to such Foreign Lender.
Each Foreign Lender, to the extent it does not act or ceases to act for
its own account with respect to any portion of any sums paid or payable to such
Lender under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to the Domestic Administrative
Agent on the date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and at such other
times as may be necessary in the determination of the Domestic Administrative
Agent (in the reasonable exercise of its discretion), (i) two duly signed
completed copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own account that is not
subject to U.S. withholding tax, and (ii) two duly signed completed copies of
IRS Form W-8IMY (or any successor forms), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such sums
payable to such Lender.
The Domestic Borrower shall not be required to pay any additional or
other amount to any Foreign Lender under Section 3.01 (i) with respect to any
Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption or reduction such Lender transmits with
any IRS Form required to be provided pursuant to this Section 10.15(a) or (ii)
if such Foreign Lender shall have failed to satisfy the requirements of this
Section 10.15(a); provided that if such Lender shall have satisfied the
requirement of this Section 10.15(a) on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 10.15(a) shall relieve the Domestic
Borrower of its obligation to pay any amounts pursuant to Section 3.01 in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, (y) such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate as
described in Section 3.01 or (z) the rate of any such deduction or withholding
is increased. The Domestic Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Domestic Borrower is not required to
pay additional amounts under this Section 10.15(a).
Upon request of the Canadian Administrative Agent or the Canadian
Borrower from time to time, each Canadian Lender shall deliver to the Canadian
Administrative Agent and the Canadian Borrower a certificate, executed by a
senior officer of such Canadian Lender, certifying that (a) such Canadian Lender
is not a "non-resident" within the meaning of the Income Tax Act (Canada); or
(b) such Canadian Lender is an "authorized foreign bank" within the meaning of
the Bank Act (Canada) for purposes of the Income Tax Act (Canada) and is
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entering into this Agreement (or an Assignment and Assumption) in the ordinary
course of its trade and business that is its "Canadian banking business" for
purposes of the Income Tax Act (Canada), and each amount paid or credited by or
to it in respect of the transactions contemplated hereunder is, and will be
brought into account and recorded and reported in computing its income for
Canadian tax purposes as having been made or received as the case may be, in
respect of its "Canadian banking business" as so defined; or (c) neither (a) nor
(b) above apply. A Canadian Lender delivering such certificate shall also
deliver such documents or other evidence as may be reasonably required from time
to time to confirm the truth and accuracy of foregoing certificate. If the
certificate delivered by a Canadian Lender pursuant to this paragraph indicates
that (c) above applies, or if a Canadian Lender fails to deliver such
certificate or such documents or other evidence reasonably required, then (x)
the Canadian Borrower (in compliance with Section 3.01(a)) or Canadian
Administrative Agent may withhold from any interest payment to such Canadian
Lender an amount equivalent to the applicable Canadian withholding tax imposed
by applicable Canadian Laws, without reduction, and (y) the Canadian Borrower
shall not be required to pay any additional or other amount to such Canadian
Lender under Section 3.01 to the extent such additional or other amount would
not be assessable if (a) or (b) above were to apply; provided that if an Event
of Default shall occur and continue to exist for not less than six (6) months
then clause (y) of this sentence shall not apply with respect to a Canadian
Lender which is not a signatory to this Agreement on the date hereof and to
which an assignment has been made during the continuance of such Event of
Default and following the expiration of such six (6) months. From time to time,
each Canadian Lender shall (i) promptly submit to the Canadian Administrative
Agent and the Canadian Borrower such certificates, documents or other evidence
as aforesaid, (ii) promptly notify the Canadian Administrative Agent and the
Canadian Borrower of any change in circumstances which would result in a
certificate delivered as required above no longer continuing to be true and
accurate, and (iii) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Canadian Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Canadian Borrower make any
deduction or withholding for taxes from amounts payable to such Canadian Lender.
(b) Upon the request of the Domestic Administrative Agent, each
Domestic Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to the Domestic Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to deliver
such forms, then the Domestic Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction, and the Borrowers shall
not be responsible for any of those Taxes or other sums payable on account of
such Lender's failure to deliver such forms.
(c) If any Governmental Authority asserts that any Administrative
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Lender, such
Lender shall indemnify such Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to such Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of such Administrative Agent. If any Governmental
Authority asserts that any Borrower or any Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, and such improper failure to
withhold or backup withhold occurred as a result of such Lender's failure to
comply with the applicable provisions of this Section 10.15, such Lender shall
indemnify such Borrower therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable, and costs and expenses
(including Attorney Costs) of such Borrower. The obligation of the Lenders under
this Section shall survive the termination of the Commitments, repayment of all
Obligations and the resignation of such Administrative Agent.
10.16 REPLACEMENT OF LENDERS. Under any circumstances set forth
herein providing that the Borrowers shall have the right to replace a Lender as
a party to this Agreement, the Borrowers may, upon notice to such Lender and the
Administrative Agents, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by the Borrowers in such
instance) pursuant to Section 10.07(b) to one or more other Lenders or Eligible
Assignees procured by the Borrowers; provided, however, that if any Borrower
elects to exercise such right with respect to any Lender pursuant to Section
3.06(b), it shall be obligated to replace all Lenders that have made similar
requests for compensation pursuant to Section 3.01 or 3.04. The applicable
Borrower shall (x) pay in full all principal, interest, fees and other amounts
owing to such Lender through the date of replacement (including any amounts
payable pursuant to Section 3.05), (y) provide appropriate assurances and
indemnities (which may include letters of credit) to the applicable L/C Issuer
and (as applicable) the Domestic Swing Line
80
Lender as each may reasonably require with respect to any continuing obligation
to purchase participation interests in any L/C Obligations or any Domestic Swing
Line Loans then outstanding, and (z) release such Lender from its obligations
under the Loan Documents. Any Lender being replaced shall execute and deliver an
Assignment and Assumption with respect to such Lender's Commitment and
outstanding Credit Extensions.
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE STATE OF CALIFORNIA applicable to agreements
made and to be performed entirely within such State; PROVIDED THAT EACH
ADMINISTRATIVE Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA SITTING IN LOS ANGELES OR OF THE UNITED STATES FOR THE CENTRAL
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER, EACH ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER, EACH ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH BORROWER, EACH ADMINISTRATIVE
Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CORINTHIAN COLLEGES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and CFO
S-1
CORINTHIAN CANADA ACQUISITION INC.,
an Ontario corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and CFO
S-2
BANK OF AMERICA, N.A.,
as Domestic Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
S-3
BANK OF AMERICA, N.A., ACTING THROUGH ITS
CANADIAN BRANCH,
as Canadian Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
S-4
BANK OF AMERICA, N.A.,
as a Domestic Lender, Domestic L/C Issuer and
Domestic Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
S-5
BANK OF AMERICA, N.A., ACTING THROUGH ITS
CANADIAN BRANCH,
as a Canadian Lender, Canadian L/C Issuer and
Canadian Swing Line Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
S-6
UNION BANK OF CALIFORNIA, N.A.,
as Syndication Agent and a Domestic Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-7
SUNTRUST BANK,
as a Domestic Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
S-8
US BANK NATIONAL ASSOCIATION,
as Co-Documentation Agent and a Domestic Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
S-9
▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES INC.,
as a Domestic Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
S-10
JPMORGAN CHASE BANK,
as a Co-Documentation Agent and a Domestic Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: VP / Group Manager
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ BRANCH,
as a Canadian Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as a Canadian Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Sr. Mgr., Credit & Deputy Manager
S-13
THE NORTHERN TRUST COMPANY
as a Domestic Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇ BRANCH, as a Canadian Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
S-15
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
AGGREGATE PRO RATA SHARE AS
DOMESTIC LENDER COMMITMENT PRO RATA SHARE OF CLOSING DATE
---------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $ 30,000,000 16.2162162162% 12.765957447%
Union Bank of California, N.A. $ 30,000,000 16.2162162162% 12.765957447%
JPMorgan Chase Bank $ 30,000,000 16.2162162162% 12.765957447%
US Bank National Association $ 40,000,000 21.6216216216% 17.021276596%
Suntrust Bank $ 25,000,000 13.5135135135% 10.638297872%
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc. $ 20,000,000 10.8108108108% 8.510638298%
The Northern Trust Company $ 10,000,000 5.4054054054% 4.255319149%
Total $185,000,000 100.000000000%
AGGREGATE PRO RATA SHARE AS
CANADIAN LENDER COMMITMENT PRO RATA SHARE OF CLOSING DATE
------------------------------------------------------------------------------------------------------------------------
**Bank of America, N.A., acting through its $10,000,000 20.000% 4.255319149%
Canadian branch
*The Bank of Nova Scotia $20,000,000 40.000% 8.510638298%
**Union Bank of California, N.A., Canada Branch $10,000,000 20.000% 4.255319149%
**JPMorgan ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Branch $10,000,000 20.000% 4.255319149%
Total $50,000,000 100.000000000%
* Schedule I Reference Bank
** Other Reference Lender
1
