1
EXHIBIT (4)(q)
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
LES, INC.,
▇▇▇▇▇▇▇ ENVIRONMENTAL SERVICES (CANADA) LTD.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
TORONTO DOMINION (TEXAS), INC.,
AS GENERAL ADMINISTRATIVE AGENT,
THE TORONTO-DOMINION BANK,
AS CANADIAN ADMINISTRATIVE AGENT,
TD SECURITIES (USA) INC.,
AS ARRANGER,
THE BANK OF NOVA SCOTIA,
NATIONSBANK, N.A.,
THE FIRST NATIONAL BANK OF CHICAGO,
AND
WACHOVIA BANK, N.A.,
AS MANAGING AGENTS,
THE BANK OF NOVA SCOTIA
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS CO-DOCUMENTATION AGENTS,
AND
NATIONSBANK, N.A.,
AS SYNDICATION AGENT
DATED AS OF APRIL 3, 1998
================================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS......................................................................................... 2
1.1 Defined Terms.................................................................................... 2
1.2 Other Definitional Provisions.................................................................... 33
SECTION 2. AMOUNT AND TERMS OF U.S. COMMITMENTS................................................................ 33
2.1 U.S. Term Loan Commitments....................................................................... 33
2.2 Procedure for U.S. Term Loan Borrowing........................................................... 34
2.3 Repayment of U.S. Term Loans..................................................................... 35
2.4 Revolving Credit Commitments..................................................................... 38
2.5 Procedure for Revolving Credit Borrowing......................................................... 39
2.6 Termination or Reduction of Revolving Credit Commitments......................................... 39
2.7 Evidence of Debt................................................................................. 40
SECTION 3. LETTERS OF CREDIT................................................................................... 40
3.1 L/C Commitment................................................................................... 40
3.2 Procedure for Issuance of Letter of Credit....................................................... 41
3.3 Commissions, Fees and Other Charges.............................................................. 41
3.4 L/C Participations............................................................................... 42
3.5 Reimbursement Obligation of the Company.......................................................... 43
3.6 Obligations Absolute............................................................................. 43
3.7 Letter of Credit Payments........................................................................ 44
3.8 Applications..................................................................................... 44
SECTION 4. AMOUNT AND TERMS OF THE CANADIAN TERM LOAN
COMMITMENTS......................................................................................... 44
4.1 Canadian Term Loan Commitments................................................................... 44
4.2 Procedure for Canadian Term Loan Borrowing....................................................... 45
4.3 Reduction of Canadian Facility; Repayment of Canadian Term Loans................................. 45
4.4 Evidence of Debt................................................................................ 47
SECTION 5. AMOUNT AND TERMS OF THE ACCEPTANCES ................................................................ 48
5.1 Acceptance Commitments........................................................................... 48
5.2 Creation of Acceptances.......................................................................... 48
5.3 Purchase of Acceptances.......................................................................... 49
5.4 Stamping Fees.................................................................................... 50
5.5 Acceptance Reimbursement Obligations............................................................. 50
5.6 Acceptances to be Allocated in order to be Created Ratably....................................... 52
5.7 Special Provisions Relating to Acceptance Notes.................................................. 52
SECTION 6. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT................................................................................... 53
- i -
3
6.1 Commitment Fees, etc. ........................................................................... 53
6.2 Optional Prepayments............................................................................. 53
6.3 Mandatory Prepayments and Commitment Reductions.................................................. 55
6.4 Conversion and Continuation Options.............................................................. 58
6.5 Minimum Amounts of Tranches...................................................................... 59
6.6 Interest Rates and Payment Dates................................................................. 59
6.7 Computation of Interest and Fees................................................................. 60
6.8 Inability to Determine Interest Rate............................................................. 61
6.9 Pro Rata Treatment and Payments.................................................................. 61
6.10 Illegality...................................................................................... 64
6.11 Requirements of Law............................................................................. 64
6.12 Taxes........................................................................................... 65
6.13 Indemnity....................................................................................... 68
6.14 Change of Lending Office........................................................................ 68
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................................................... 68
7.1 Financial Condition.............................................................................. 69
7.2 No Change........................................................................................ 70
7.3 Corporate Existence; Compliance with Law......................................................... 70
7.4 Corporate Power; Authorization; Enforceable Obligations.......................................... 70
7.5 No Legal Bar..................................................................................... 70
7.6 No Material Litigation........................................................................... 71
7.7 No Default....................................................................................... 71
7.8 Ownership of Property; Liens..................................................................... 71
7.9 Intellectual Property............................................................................ 71
7.10 No Burdensome Restrictions...................................................................... 72
7.11 Taxes........................................................................................... 72
7.12 Federal Regulations............................................................................. 72
7.13 ERISA........................................................................................... 72
7.14 Canadian Benefit and Pension Plans.............................................................. 72
7.15 Investment Company Act; Other Regulations....................................................... 73
7.16 Subsidiaries.................................................................................... 73
7.17 Purpose of Loans................................................................................ 73
7.18 Environmental Matters........................................................................... 73
7.19 Accuracy of Information, etc.................................................................... 74
7.20 Security Documents.............................................................................. 75
7.21 Solvency........................................................................................ 76
7.22 Regulation H.................................................................................... 76
7.23 Corsan Trucking, Inc............................................................................ 76
SECTION 8. CONDITIONS PRECEDENT................................................................................ 76
8.1 Conditions to Initial Extensions of Credit....................................................... 76
8.2 Conditions to Extensions of Credit made on the Merger Date....................................... 82
8.3 Conditions to Extension of Credit................................................................ 83
- ii -
4
SECTION 9. AFFIRMATIVE COVENANTS............................................................................... 79
9.1 Financial Statements................................................................ 79
9.2 Certificates; Other Information.................................................................. 80
9.3 Payment of Obligations........................................................................... 81
9.4 Conduct of Business and Maintenance of Existence................................................. 81
9.5 Maintenance of Property; Insurance............................................................... 81
9.6 Inspection of Property; Books and Records; Discussions........................................... 81
9.7 Notices.......................................................................................... 82
9.8 Environmental Laws............................................................................... 82
9.9 Further Assurances............................................................................... 83
9.10 Additional Collateral........................................................................... 84
9.11 Canadian Benefit and Pension Plans.............................................................. 85
9.12 Interest Rate Protection........................................................................ 86
9.13 Consummation of Merger.......................................................................... 86
9.14 Pledge Agreement Supplement..................................................................... 86
SECTION 10. NEGATIVE COVENANTS................................................................................. 86
10.1 Financial Condition Covenants................................................................... 86
10.2 Limitation on Indebtedness...................................................................... 88
10.3 Limitation on Liens............................................................................. 88
10.4 Limitation on Guarantee Obligations............................................................. 90
10.5 Limitation on Fundamental Changes............................................................... 90
10.6 Limitation on Disposition of Assets............................................................. 91
10.7 Limitation on Dividends......................................................................... 91
10.8 Limitation on Investments, Loans and Advances................................................... 92
10.9 Limitation on Optional Payments and Modifications of Debt Instruments........................... 93
10.10 Limitation on Transactions with Affiliates..................................................... 93
10.11 Limitation on Sales and Leasebacks............................................................. 93
10.12 Limitation on Changes in Fiscal Year........................................................... 94
10.13 Limitation on Negative Pledge Clauses.......................................................... 94
10.14 Limitation on Lines of Business................................................................ 94
10.15 Canadian Benefit and Pension Plans............................................................. 94
10.16 Hedging Agreements............................................................................. 94
SECTION 11. EVENTS OF DEFAULT.................................................................................. 95
SECTION 12. THE ADMINISTRATIVE AGENT........................................................................... 98
12.1 Appointment..................................................................................... 98
12.2 Delegation of Duties............................................................................ 99
12.3 Exculpatory Provisions.......................................................................... 99
12.4 Reliance by Administrative Agents............................................................... 99
12.5 Notice of Default...............................................................................100
12.6 Non-Reliance on Administrative Agents and Other Lenders.........................................100
12.7 Indemnification.................................................................................101
12.8 Agent in Its Individual Capacity................................................................101
- iii -
5
12.9 Successor Agent.................................................................................101
12.10 Others.........................................................................................102
SECTION 13. GUARANTEE..........................................................................................102
13.1 Guarantee.......................................................................................102
13.2 No Subrogation, Contribution, Reimbursement or Indemnity........................................103
13.3 Amendments, etc. with respect to the Canadian Borrower Obligations..............................103
13.4 Guarantee Absolute and Unconditional............................................................104
13.5 Reinstatement...................................................................................105
13.6 Payments........................................................................................105
SECTION 14. MISCELLANEOUS......................................................................................105
14.1 Amendments and Waivers..........................................................................105
14.2 Notices.........................................................................................106
14.3 No Waiver; Cumulative Remedies..................................................................107
14.4 Survival of Representations and Warranties......................................................107
14.5 Payment of Expenses and Taxes...................................................................107
14.6 Successors and Assigns; Participations and Assignments..........................................108
14.7 Adjustments; Set-off............................................................................111
14.8 Counterparts....................................................................................112
14.9 Severability....................................................................................112
14.10 Integration....................................................................................112
14.11 GOVERNING LAW..................................................................................112
14.12 Submission To Jurisdiction; Waivers............................................................112
14.13 Acknowledgments................................................................................113
14.14 WAIVERS OF JURY TRIAL..........................................................................113
14.15 Judgment.......................................................................................113
14.16 Confidentiality................................................................................114
- iv -
6
SCHEDULES
1.1A Commitments of U.S. Lenders
1.1B Commitments of Canadian Lenders
1.1C Existing Letters of Credit
1.1D Existing Acceptances
1.1E Specified Acceptance
1.1F Addresses for Notices
2 Properties Covered by Existing Mortgages
3 Mortgage Recording Jurisdictions
4 Initial Canadian Collateral Documents
7.6 Litigation
7.9 Intellectual Property Matters
7.16 Subsidiaries
7.20 Canadian Collateral Perfection Procedures
8.2(g) Safety-Kleen Outstanding Debt
10.2(f) Existing Indebtedness
10.3(f) Existing Liens
10.4 Existing Guarantee Obligations
10.8 Existing Loans to Officers
EXHIBITS
A-1 Form of Draft
A-2 Form of Request for Acceptances
B-1 Form of Guarantee and Collateral Agreement
B-2 Form of Acquisition Corp. Pledge Agreement
C Form of Revolving Credit Note
D Form of U.S. Term Note
E Form of Canadian Term Note
F [Reserved]
G Form of Acceptance Note
H Form of Prepayment Option Notice
I Form of Closing Certificate
J [Reserved]
K [Reserved]
L Form of Assignment and Acceptance
M Form of Mortgage Amendment
N Form of Mortgage
O Form of Intercreditor Agreement
P Form of Exchange Agent Agency Agreement
- v -
7
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 3,
1998, among LES, INC., a Delaware corporation (the "Company"), ▇▇▇▇▇▇▇
ENVIRONMENTAL SERVICES (CANADA) LTD., a Canadian corporation and a wholly owned
Subsidiary of the Company (the "Canadian Borrower"; together with the Company,
the "Borrowers"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), TORONTO DOMINION
(TEXAS), INC., as general administrative agent (as hereinafter defined, the
"General Administrative Agent"), THE TORONTO-DOMINION BANK, as Canadian
administrative agent (as hereinafter defined, the "Canadian Administrative
Agent"), TD SECURITIES (USA) INC., as advisor to the Borrowers and arranger of
the commitments described herein (in such capacities, the "Arranger"), and THE
BANK OF NOVA SCOTIA, NATIONSBANK, N.A., THE FIRST NATIONAL BANK OF CHICAGO and
WACHOVIA BANK, N.A., as managing agents (each, in such capacity, a "Managing
Agent"), THE BANK OF NOVA SCOTIA and THE FIRST NATIONAL BANK OF CHICAGO, as
co-documentation agent (each, in such capacity, a "Co-Documentation Agent"), and
NATIONSBANK, N.A., as syndication agent (in such capacity, the "Syndication
Agent").
W I T N E S S E T H
WHEREAS, the Borrowers are parties to the Credit Agreement,
dated as of May 9, 1997 (as heretofore amended or otherwise modified, the
"Existing Credit Agreement"), with the lenders from time to time parties
thereto, Toronto Dominion (Texas), Inc., as general administrative agent, The
Toronto-Dominion Bank, as Canadian administrative agent, TD Securities (USA)
Inc., as arranger, The Bank of Nova Scotia, NationsBank, N.A. and The First
National Bank of Chicago, as managing agents, and NationsBank, N.A., as
syndication agent;
WHEREAS, pursuant to the Existing Credit Agreement, the
lenders parties thereto have agreed to make and have made certain loans and
other extensions of credit to or for the account of the Borrowers;
WHEREAS, ▇▇▇▇▇▇▇ Environmental Services, Inc., a Delaware
corporation and the parent of the Company ("Holdings"), and LES Acquisition,
Inc., a Delaware corporation and a wholly owned subsidiary of the Company
("Acquisition Corp."), have made an exchange offer (as amended prior to the date
hereof and as hereafter amended in accordance with this Agreement, the "Exchange
Offer") pursuant to the Offer to Exchange, as finally amended on March 18, 1998
(such Offer to Exchange, together with the associated documents filed by
Holdings and Acquisition Corp. with the Securities and Exchange Commission in
connection with the Exchange Offer, as amended prior to the date hereof and as
hereafter amended in accordance with this Agreement, collectively, the "Exchange
Offer Documents");
WHEREAS, pursuant to the Exchange Offer, shareholders of
Safety-Kleen Corp., a Wisconsin corporation ("Safety-Kleen"), are invited to
exchange shares of common
8
2
stock ("Target Shares"), together with associated share purchase rights ("Target
Rights"), for consideration equal to $18.30 in cash plus 2.8 shares of common
stock of Holdings;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated
as of March 16, 1998 (the "Merger Agreement"), among Holdings, Acquisition Corp.
and Safety-Kleen, as promptly as practicable after the consummation of the
Exchange Offer, Acquisition Corp. and Safety-Kleen will merge (the "Merger"),
with Safety-Kleen being the surviving corporation of the Merger (such survivor,
the "Surviving Corporation");
WHEREAS, in order to provide for financing of the Exchange
Offer and the Merger and related costs and expenses, and for the refinancing of
certain existing indebtedness of Safety-Kleen, the Borrowers have requested that
the Existing Credit Agreement be amended and restated as provided herein; and
WHEREAS, the Lenders and the other parties hereto wish to
amend and restate the Existing Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter set forth, the parties hereby agree that on the
Closing Date the Existing Credit Agreement shall be amended and restated in its
entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Acceptance": a Draft drawn by the Canadian Borrower and
accepted by a Canadian Lender which is (a) denominated in Canadian
Dollars, (b) for a term of not less than one month nor more than six
months and which matures prior to the Canadian Facility Termination
Date and (c) issuable and payable only in Canada; provided that to the
extent the context shall require, each Acceptance Note shall be deemed
to be an Acceptance.
"Acceptance Note": as defined in Section 5.7(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and
with one-half cent being rounded up) obtained by dividing the face
amount of such Acceptance by the sum of (a) one and (b) the product of
(i) the Reference Discount Rate for Acceptances of the same maturity
expressed as a decimal and (ii) a fraction, the numerator of which is
the term to maturity of such Acceptance and the denominator of which is
equal to 365.
9
3
"Acceptance Reimbursement Obligations": the obligation of the
Canadian Borrower to the Canadian Lenders (a) to reimburse the Canadian
Lenders for maturing Acceptances pursuant to Section 5.5 and (b) to
make payments in respect of the Acceptance Notes in accordance with the
terms thereof.
"Acceptance Tranches": the collective reference to Acceptances
all of which were created on the same date and have the same maturity
date.
"Acquisition Closing Date": the closing date of the Existing
Credit Agreement and the ▇▇▇▇▇▇▇ Acquisition, which date was May 15,
1997.
"Acquisition Corp.": as defined in the Recitals to this
Agreement.
"Acquisition Corp. Pledge Agreement": the Pledge Agreement to
be executed and delivered by Acquisition Corp., substantially in the
form of Exhibit B-2, as the same may be amended, supplemented or
otherwise modified from time to time.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agents": the collective reference to the
General Administrative Agent and the Canadian Administrative Agent.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Aggregate Canadian Term Loan Outstandings": as at any date of
determination with respect to any Canadian Lender, an amount in
Canadian Dollars equal to the sum of the following, without
duplication: (a) the aggregate unpaid principal amount of such Canadian
Lender's Canadian Term Loans on such date, (b) the aggregate
undiscounted face amount of all outstanding Acceptances (other than
Existing Acceptances) of such Canadian Lender on such date, (c) such
Lender's Canadian Term Loan Commitment Percentage of the aggregate
undiscounted face amount of all outstanding Existing Acceptances on
such date and (d) the aggregate undiscounted face amount of such
Canadian Lender's Acceptance Notes on such date.
"Aggregate Commitment Percentage": as to any Lender, the
percentage which such Lender's Aggregate Exposure constitutes of the
Aggregate Exposure of all Lenders.
10
4
"Aggregate Exposure": as to any Lender, the sum of such
Lender's Revolving Credit Commitment (or, after termination of the
Revolving Credit Commitments, such Lender's Revolving Extensions of
Credit) and U.S. Term Loans and the U.S. Dollar Equivalent of such
Lender's Aggregate Canadian Term Loan Outstandings.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in Section 14.15(b).
"Applicable Margin": (a) on any day, for each Type of
Revolving Credit Loan, Tranche A Term Loan and Canadian Term Loan, the
rate per annum determined pursuant to the Pricing Grid; and
(b) for each Type of Tranche B Term Loan and Tranche C Term
Loan, the rate per annum set forth under the relevant column heading
below:
Base Rate Loans LIBOR Rate Loans
--------------- ----------------
Tranche B Term Loans 1.75% 2.75%
Tranche C Term Loans 2.00% 3.00%
; provided, that in the event that the Consolidated Total Leverage
Ratio (the determination and effectiveness of which shall be made and
established, respectively, on an Adjustment Date in accordance with the
provisions of the Pricing Grid) is reduced to less than 3.00 to 1.00,
the Applicable Margins set forth above for Tranche B Term Loans and
Tranche C Term Loans shall be permanently reduced by 37.50 basis
points; provided further that no such reduction in Applicable Margin
shall occur prior to the Adjustment Date occurring after completion of
the first four full consecutive fiscal quarters of the Company ending
after the Closing Date.
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing
Lender to issue a Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans
and is advised or managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
"Arranger": as defined in the Preamble to this Agreement.
"Asset Sale": any Disposition of assets or series of related
Dispositions of assets, excluding any Disposition of assets permitted
by clause (a), (c), (d), (e), (f) or (g) of Section 10.6; provided,
that asset Dispositions permitted by clauses (e) and (f) of Section
10.6 shall not be excluded from the definition of "Asset Sale" to the
extent that the Net Cash Proceeds therefrom exceed $225,000,000 in the
aggregate.
11
5
"Assignee": as defined in Section 14.6(c).
"Available Revolving Credit Commitment": as to any U.S. Lender
at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment over (b) such Lender's Revolving
Extensions of Credit.
"Bank Act (Canada)": the Bank Act (Canada), as amended from
time to time.
"Base Rate": a rate per annum determined by the General
Administrative Agent on a daily basis, equal to the higher of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus one half of one percent (.50 of 1%) per
annum.
"Base Rate Loan": any Loan the rate of interest applicable to
which is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve
System.
"Borrowers": as defined in the Preamble to this Agreement.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2, 2.5., 4.2 or 5.2 as a date on which a Borrower
requests the Lenders to make Loans, create Acceptances, convert
Acceptances into Canadian Term Loans or convert Canadian Term Loans
into Acceptances, as the case may be.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City or Houston, Texas are
authorized or required by law to close; provided that (a) when such
term is used in respect of a day on which a Loan in Canadian Dollars is
to be made or an Acceptance is to be created, a payment is to be made
in respect of such Loan or Acceptance, an Exchange Rate is to be set in
respect of Canadian Dollars or any other dealing in Canadian Dollars is
to be carried out pursuant to this Agreement, such term shall mean a
day other than a Saturday, Sunday or other day on which commercial
banks in Toronto, Ontario are authorized or required by law to close
and (b) when such term is used with respect to notices and
determinations in connection with, and payments of principal of, and
interest on, LIBOR Loans, any day which is a Business Day in New York
City and which is also a day on which trading by and between banks in
Dollar deposits may be carried out in the London interbank eurodollar
market.
"Canadian Administrative Agent": The Toronto-Dominion Bank,
together with its affiliates, as the Canadian Administrative Agent for
the Canadian Lenders under this Agreement and the other Loan Documents,
and any successor thereto pursuant to Section 12.9.
12
6
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by the Canadian Borrower or a Subsidiary
thereof that are not Canadian Pension Plans including, without
limitation, all profit sharing, savings, supplemental retirement,
retiring allowance, severance, deferred compensation, welfare, bonus,
supplementary unemployment benefit plans or arrangements and all life,
health, dental and disability plans and arrangements in which the
employees or former employees of the Canadian Borrower or a Subsidiary
thereof employed in Canada participate or are eligible to participate.
"Canadian Borrower": as defined in the Preamble to this
Agreement.
"Canadian Borrower Obligations": the unpaid principal of and
interest on (including, without limitation, interest accruing after the
maturity of the Loans and Acceptance Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Canadian Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans and Acceptance Reimbursement Obligations and all other
obligations and liabilities of the Canadian Borrower to the
Administrative Agents or to any Lender (or, in the case of any Hedging
Agreements, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, any Hedging Agreement
entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees, charges and disbursements of counsel to the
Administrative Agents or to any Lender that are required to be paid by
the Canadian Borrower pursuant hereto) or otherwise.
"Canadian Collateral Documents": the collective reference to
the agreements, instruments and documents delivered from time to time
(both before and after the date of this Agreement) to the General
Administrative Agent, the Canadian Administrative Agent or the Lenders
by the Canadian Borrower or any of its Subsidiaries for the purpose of
establishing, perfecting, reserving or protecting the security of the
Lenders in respect hereof and in respect of amounts owing by the
Canadian Borrower hereunder (including, without limitation, guarantees,
debentures, Bank Act (Canada) assignments, general security agreements,
general assignments of receivables and share pledge agreements, each as
amended, restated, supplemented or replaced from time to time). The
Canadian Collateral Documents executed and delivered in connection with
the Acquisition Closing Date are listed on Schedule 4. On the Closing
Date, the parties to the Canadian Collateral Documents shall execute
and deliver one or more Affirmations of Security Agreements in form and
substance satisfactory to the General Administrative Agent and the
Canadian Administrative Agent, which shall affirm the
13
7
continuing existence and validity of the Canadian Collateral Documents
as security for the obligations of the Canadian Borrower hereunder.
"Canadian Dollar Prime Rate": on any day, the higher of (a)
the rate per annum designated by the Canadian Administrative Agent from
time to time (and in effect on such day) as its reference rate for
Canadian Dollar commercial loans made in Canada and (b) the rate per
annum which is .75% above the one month acceptance rate quoted by The
Toronto-Dominion Bank at 10:00 A.M., Toronto time, that appears on the
▇▇▇▇▇▇'▇ Screen CDOR page on such day as its rate for acceptances in
Canada. The Canadian Dollar Prime Rate is not intended to be the lowest
rate of interest charged by The Toronto-Dominion Bank in connection
with extensions of credit in Canadian Dollars to debtors.
"Canadian Dollars" and "C$": dollars in the lawful currency of
Canada.
"Canadian Facility Amortization Date": as defined in Section
4.3.
"Canadian Facility Commitment Period": the period from and
including the Closing Date to the Canadian Facility Termination Date.
"Canadian Facility Maximum Amount": on any date, the maximum
Aggregate Canadian Term Loan Outstandings permitted on such date after
giving effect to payments required to be made pursuant to Section 4.3
or reductions required to be made pursuant to Section 6.3(g), as the
case may be.
"Canadian Facility Termination Date": April 3, 2004.
"Canadian Lenders": each Lender listed on Schedule 1.1B.
"Canadian Operating Facility": the C$35,000,000 credit
facility made available pursuant to the letter agreement, dated as of
the date hereof, between the Canadian Borrower, as borrower, and The
Toronto-Dominion Bank, as lender, as the same may be amended, modified
or otherwise supplemented from time to time.
"Canadian Operating Facility Lender": The Toronto-Dominion
Bank in its capacity as lender under the Canadian Operating Facility.
"Canadian Operating Facility Obligations": all of the
obligations, liabilities and indebtedness of the Canadian Borrower to
the Canadian Operating Facility Lender from time to time, whether
present or future, absolute or contingent, liquidated or unliquidated,
as principal or as surety, alone or with others, of whatsoever nature
or kind, in any currency, under or in respect of agreements or dealings
between the Canadian Borrower and the Canadian Operating Facility
Lender or agreements or dealings between the Canadian Borrower and any
Person by which such lender may be
14
8
or become in any manner whatsoever a creditor of the Canadian Borrower,
including without limitation under the Canadian Operating Facility
(including, without limitation, all fees and disbursements of the
Canadian Operating Facility Lender or its counsel or agents incurred in
the enforcement of the Canadian Operating Facility); the amount of the
Canadian Operating Facility Obligations will be determined without
regard to any right of set-off or counterclaim by the Canadian Borrower
against the Canadian Operating Facility Lender.
"Canadian Pension Plan": any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable
pension benefit or tax laws of Canada or a province or territory
thereof (whether or not registered under any such laws) which is
maintained, administered or contributed to by (or to which there is or
may be an obligation to contribute by) the Canadian Borrower or a
Subsidiary thereof in respect to any person's past, present or future
employment in Canada or a province or territory thereof with the
Canadian Borrower or a Subsidiary thereof, all related funding
arrangements and all related agreements, arrangements and
understandings in respect of, or related to, any benefits to be
provided thereunder or the effect thereof on any other compensation or
remuneration of any employee.
"Canadian Reference Lenders": the collective reference to the
Schedule 1 Canadian Reference Lenders and the Schedule 2 Canadian
Reference Lenders.
"Canadian Term Loan": as defined in Section 4.1.
"Canadian Term Loan Commitment": as to any Canadian Lender,
the obligation of such Lender to make Canadian Term Loans to, and/or
create and discount Acceptances on behalf of (or, in lieu thereof, to
make loans pursuant to the Acceptance Notes to), the Canadian Borrower,
in an amount not to exceed the amount set forth opposite such Canadian
Lender's name on Schedule 1.1B under the heading "Canadian Term Loan
Commitment". The original aggregate amount of the Canadian Term Loan
Commitments is the equivalent in Canadian Dollars (determined in
accordance with Section 4.3(b)) of US$70,000,000.
"Canadian Term Loan Commitment Percentage": as to any Canadian
Lender at any time, the percentage which such Canadian Lender's
Canadian Term Loan Commitment then constitutes of the aggregate
Canadian Term Loan Commitments (or, at any time after the Closing Date,
the percentage which the aggregate amount of such Canadian Lender's
Aggregate Canadian Term Loan Outstandings then outstanding constitutes
of the Total Aggregate Canadian Term Loan Outstandings then
outstanding).
"Canadian Term Loan Note": as defined in Section 4.4(d).
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all
15
9
equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the
United States Government, (d) commercial paper of a domestic issuer
rated at least A-2 by Standard and Poor's Rating Group ("S&P") or P-2
by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), (e) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may
be) are rated at least A by S&P or A by Moody's, (f) securities with
maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition or (g)
shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Change of Control": a Change of Control shall be deemed to
occur (a) if at any time ▇▇▇▇▇▇▇ shall cease to be a primary
shareholder of Holdings, (b) if at any time when the Consolidated Total
Leverage Ratio is greater than 2.50 to 1.00, ▇▇▇▇▇▇▇ shall not own,
directly or indirectly, at least 20% of the outstanding voting stock of
Holdings, (c) if at any time Holdings shall cease to own 100% of the
outstanding voting stock of the Company, (d) if at any time the Company
shall cease to own 100% of the outstanding voting stock of the Canadian
Borrower or (e) if at any time there shall cease to be at least one
member of the Board of Directors of Holdings who is a designee of
▇▇▇▇▇▇▇.
"Closing Date": the date on which the conditions precedent set
forth in Section 8.1 shall be satisfied, which date shall not be later
than April 8, 1998.
"Co-Documentation Agent": as defined in the Preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by
any Security Document.
16
10
"Commitment": as to any Lender, the sum of the Tranche A Term
Loan Commitment, the Tranche B Term Loan Commitment, the Tranche C Term
Loan Commitment, the Revolving Credit Commitment and the Canadian Term
Loan Commitment of such Lender.
"Commitment Fee Rate": on any day, the rate per annum
determined pursuant to the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section 414
of the Code.
"Company": as defined in the Preamble to this Agreement.
"Consolidated Capital Expenditures": for any fiscal period,
the aggregate of all expenditures by Holdings and its Subsidiaries for
the acquisition or leasing (pursuant to a Financing Lease) of fixed or
capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period, but excluding
investments made pursuant to Section 10.8(c)) which should be
capitalized under GAAP on a consolidated balance sheet of Holdings and
its Subsidiaries; provided that for any calculation of Consolidated
Capital Expenditures for any fiscal period ending November 30, 1998,
February 28, 1999 or May 31, 1999, Consolidated Capital Expenditures
shall be deemed to be Consolidated Capital Expenditures from September
1, 1998 to the last day of such period multiplied by 4, 2 and 4/3,
respectively.
"Consolidated Contingent Obligations": at any date (a) all
obligations of Holdings and its Subsidiaries in respect of performance
bonds, letters of credit in the nature of performance bonds and similar
obligations, and (b) all Guarantee Obligations of Holdings and it
Subsidiaries in respect of obligations of the kind referred to in the
foregoing clause (a).
"Consolidated Debt Service": for any fiscal period, the sum,
for Holdings and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP), of (a) all regularly
scheduled payments of principal of Indebtedness during such period,
including all scheduled payments in respect of the Loans, and, without
duplication, all scheduled reductions in the Canadian Facility Maximum
Amount, during such period plus (b) Consolidated Projected Cash
Interest Expense for such period.
"Consolidated Fixed Charges": for any fiscal period, the sum
for such period of (i) Consolidated Debt Service and (ii) Consolidated
Projected Operating Lease Expense.
17
11
"Consolidated Historical Cash Interest Expense": for any
fiscal period, the aggregate amount of interest in respect of
Consolidated Total Funded Debt and in respect of the Seller Note paid
in cash during such period as determined on a consolidated basis in
accordance with GAAP; provided that for any calculation of Consolidated
Historical Cash Interest Expense for any fiscal period ending November
30, 1998, February 28, 1999 or May 31, 1999, Consolidated Historical
Cash Interest Expense shall be deemed to be Consolidated Historical
Cash Interest Expense from September 1, 1998 to the last day of such
period multiplied by 4, 2 and 4/3, respectively.
"Consolidated Historical Operating Lease Expense": for any
fiscal period, the aggregate lease obligations of Holdings and its
Subsidiaries for which Holdings or any of its Subsidiaries is
contractually committed having a remaining term in excess of twelve
months determined on a consolidated basis payable in respect of such
period under leases of real and/or personal property (net of income
from sub-leases thereof and excluding lease payments on operating
leases which carry a termination payment of less than twelve months of
lease payments, but including taxes, insurance, maintenance and similar
expenses which the lessee is obligated to pay under the terms of said
leases), whether or not such obligations are reflected as liabilities
or commitments on a consolidated balance sheet of Holdings and its
Subsidiaries or in the notes thereto, excluding, however, obligations
under Financing Leases; provided that for any calculation of
Consolidated Historical Operating Lease Expense for any fiscal period
ending November 30, 1998, February 28, 1999 or May 31, 1999,
Consolidated Historical Operating Lease Expense shall be deemed to be
Consolidated Historical Operating Lease Expense from September 1, 1998
to the last day of such period multiplied by 4, 2 and 4/3,
respectively.
"Consolidated Net Income": of any Person for any fiscal
period, net income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that for any
calculation of Consolidated Net Income for any fiscal period ending
November 30, 1998, February 28, 1999 or May 31, 1999, Consolidated Net
Income shall be deemed to be Consolidated Net Income from September 1,
1998 to the last day of such period multiplied by 4, 2 and 4/3,
respectively.
"Consolidated Operating Cash Flow": for any fiscal period,
Consolidated Net Income of Holdings and its Subsidiaries (excluding
without duplication, (w) extraordinary gains and losses in accordance
with GAAP, (x) gains and losses in connection with asset dispositions
whether or not constituting extraordinary gains and losses and (y)
gains or losses on discontinued operations and (z) non-cash investment
income) for such period, plus (i) to the extent deducted in determining
such Consolidated Net Income, interest expense and other financing
costs and expenses (cash and non-cash) for such period, plus (ii) to
the extent deducted in computing such Consolidated Net Income, the sum
of income taxes (whether or not deferred), depreciation and
amortization, and all other non-cash expenses; provided that for any
18
12
calculation of Consolidated Operating Cash Flow for any fiscal period
ending November 30, 1998, February 28, 1999 or May 31, 1999,
Consolidated Operating Cash Flow shall be deemed to be Consolidated
Operating Cash Flow from September 1, 1998 to the last day of such
period multiplied by 4, 2 and 4/3, respectively.
"Consolidated Projected Cash Interest Expense": for any fiscal
period, the aggregate amount of interest in respect of Consolidated
Total Funded Debt and in respect of the Seller Note projected to be
payable in cash during such period as determined on a consolidated
basis in accordance with GAAP (such interest expense being calculated
based upon the assumption that interest rates in effect on the date of
calculation will remain in effect for such future fiscal period).
"Consolidated Projected Operating Lease Expense": for any
fiscal period, the aggregate lease obligations of Holdings and its
Subsidiaries for which Holdings or any of its Subsidiaries is
contractually committed having a remaining term in excess of twelve
months determined on a consolidated basis projected to be payable in
respect of such period under leases of real and/or personal property
(net of income from sub-leases thereof and excluding lease payments on
operating leases which carry a termination payment of less than twelve
months of lease payments, but including taxes, insurance, maintenance
and similar expenses which the lessee is obligated to pay under the
terms of said leases), whether or not such obligations would be
reflected as liabilities or commitments on a consolidated balance sheet
of Holdings and its Subsidiaries or in the notes thereto, excluding,
however, obligations under Financing Leases.
"Consolidated Total Funded Debt": at any date, all
Indebtedness of Holdings and its Subsidiaries outstanding on such date
for borrowed money or the deferred purchase price of property and all
Guarantee Obligations of the Company and its Subsidiaries in respect of
Indebtedness for borrowed money or the deferred purchase price of
property, in each case determined on a consolidated basis in accordance
with GAAP, including, without limitation, Indebtedness in respect of
Financing Leases, but excluding Indebtedness in respect of the Seller
Note.
"Consolidated Total Leverage Ratio" as at any date of
determination, the ratio of (i) Consolidated Total Funded Debt as at
such date to (ii) Consolidated Operating Cash Flow for the four fiscal
quarters ended on or most recently prior to such date of determination.
"Consolidated Working Capital": of any Person at any date, the
excess of (a) the sum of all amounts (other than cash and cash
equivalents) that would, in accordance with GAAP, be set forth opposite
the caption "total current assets" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries at such
date over (b) all amounts that would, in accordance with GAAP, be set
forth opposite the caption "total current liabilities" (or any like
caption) on a consolidated balance sheet of such
19
13
Person and its Subsidiaries on such date (excluding, to the extent it
would otherwise be included under current liabilities, the current
portion of any Consolidated Total Funded Debt).
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"CPCFA Debt": the Indebtedness incurred by Holdings pursuant
to a credit agreement, dated as of July 1, 1997, between Holdings and
the California Pollution Control Financing Authority in connection with
the issuance by such Authority of Pollution Control Revenue Bonds, due
July 1, 2007, in the aggregate principal amount of $19,500,000.
"Default": any of the events specified in Section 11, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Disposition": with respect to any asset, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Domestic Subsidiary": any Subsidiary of the Company organized
under the laws of any jurisdiction within the United States.
"Draft": a draft substantially in the form of Exhibit A-1 or
in such other form as the Canadian Administrative Agent may from time
to time reasonably request (or to the extent the context shall require,
an Acceptance Note, delivered in lieu of a draft), as the same may be
amended, supplemented or otherwise modified from time to time.
"Environmental Laws": any and all laws (including, without
limitation, all common and civil law), rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirement of any foreign government, the United States,
Canada, or any state, provincial, local, municipal or other
governmental authority, regulating, relating to or imposing liability
or standards of conduct concerning protection of the environment or of
human health, or employee health and safety, as has been, is now, or
may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
registrations, approvals, notifications, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
20
14
"Eurocurrency Reserve Requirements": for any day as applied to
a LIBOR Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Business Day": any day on which banks are open for
dealings in dollar deposits in the London interbank market.
"Event of Default": any of the events specified in Section 11,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any Person for any fiscal
year, the excess of (a) the sum, without duplication, of (i)
Consolidated Net Income of such Person and its Subsidiaries for such
fiscal year, (ii) the net decrease, if any, in Consolidated Working
Capital of such Person and its Subsidiaries during such fiscal year,
(iii) to the extent deducted in computing such Consolidated Net Income,
non-cash interest expense and other financing costs and expenses,
depreciation and amortization for such fiscal year, (iv) extraordinary
non-cash losses during such fiscal year subtracted in the determination
of such Consolidated Net Income, (v) deferred income tax expense of
such Person and its Subsidiaries for such fiscal year, (vi) non-cash
losses of such Person and its Subsidiaries for such fiscal year in
connection with asset dispositions whether or not constituting
extraordinary losses, and (vii) non-cash ordinary losses of such Person
and its Subsidiaries for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount of permitted cash capital
expenditures made by such Person and its Subsidiaries during such
fiscal year, (ii) the net increase, if any, in Consolidated Working
Capital of such Person and its Subsidiaries during such fiscal year,
(iii) the aggregate amount of (A) scheduled payments of principal in
respect of any Indebtedness of such Person and its Subsidiaries during
such fiscal year, (B) optional prepayments of principal in respect of
any Indebtedness of such Person and its Subsidiaries during such fiscal
year (other than, with respect to Holdings, prepayments in respect of
the Revolving Credit Loan not accompanied by a reduction in Revolving
Credit Commitments), (C) with respect to Holdings for fiscal year 1997
only, repayments of existing Indebtedness required to be repaid in
connection with the Acquisition Closing Date, (iv) deferred income tax
credit of such Person and its Subsidiaries for such fiscal year, (v)
extraordinary non-cash gains during such fiscal year added in the
determination of Consolidated Net Income of such Person and its
Subsidiaries for such fiscal year, (vi) non-cash gains of such Person
and its Subsidiaries during such fiscal year in connection with asset
dispositions whether or not constituting extraordinary gains, (vii)
non-cash ordinary gains of such Person and its Subsidiaries
21
15
during such fiscal year and (viii) cash expenditures of such Person and
its Subsidiaries during such fiscal year on deferred (including the
current portion thereof) long term liabilities (net of related cash
taxes), (ix) to the extent not deducted in determining Consolidated Net
Income of such Person and its Subsidiaries for such fiscal year, cash
expenditures made or committed during such fiscal year in respect of
site closure, related severance costs, financing fees and other costs
incurred in connection with the ▇▇▇▇▇▇▇ Acquisition and the
Safety-Kleen Acquisition (provided that amounts deducted in any fiscal
year for expenditures committed, but not made, during such fiscal year
shall not be deducted in the fiscal year in which such expenditures are
actually made) and (x) non-cash investment income of such Person and
its Subsidiaries during such fiscal year.
"Exchange Agent": IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as
exchange agent under the Exchange Agent Agency Agreement, and any
successor thereto pursuant to the terms of such agreement.
"Exchange Agent Agency Agreement": the Exchange Agent Agency
Agreement to be executed and delivered by the Exchange Agent, the
General Administrative Agent and Acquisition Corp., substantially in
the form of Exhibit P, as the same may be amended, supplemented or
otherwise modified from time to time.
"Exchange Offer": as defined in the Recitals to this
Agreement.
"Exchange Offer Documents": as defined in the Recitals to this
Agreement.
"Exchange Rate": with respect to Canadian Dollars on any date,
the Bank of Canada noon spot rate on such date for the exchange of
Canadian Dollars into U.S. Dollars.
"Existing Acceptances": as defined in Section 5.1(a).
"Existing Acceptance Lenders": as defined in Section 5.1(a).
"Existing Credit Agreement": as defined in the Recitals to
this Agreement.
"Existing Letters of Credit": as defined in Section 3.1(c).
"Existing Mortgages": the collective reference to (i) the Deed
of Trust, Assignment of Rents and Leases and Security Agreement, dated
as of May 15, 1997, from ▇▇▇▇▇▇▇ Environmental, Inc., as Grantor, to
First American Title Insurance Company, as trustee for the use and
benefit of Toronto Dominion (Texas), Inc., as beneficiary, and (ii) the
Mortgage, dated as of May 15, 1997, from ▇▇▇▇▇▇▇ Environmental, Inc.,
as mortgagor, to Toronto Dominion (Texas), Inc., as general
22
16
administrative agent, in each case encumbering the properties described
in Schedule 2 and recorded in the recording office described in
Schedule 3.
"Extension of Credit": as to any Lender, the making of a Loan
by such Lender, the issuance (or acquisition of a participating
interest in) any Letter of Credit or the creation of an Acceptance or
Acceptance Note by such Lender. It is expressly understood and agreed
that the following do not constitute Extensions of Credit for purposes
of this Agreement: (a) the conversions and continuations of U.S. Loans
as or to LIBOR Loans or Base Rate Loans pursuant to Section 6.4, (b)
the substitution of maturing Acceptances with new Acceptances, (c) the
conversion of Acceptances to Canadian Term Loans and (d) the conversion
of Canadian Term Loans to Acceptances.
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A Term Loan
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B
Term Loans made thereunder (the "Tranche B Term Loan Facility"), (c)
the Tranche C Term Loan Commitments and the Tranche C Term Loans made
thereunder (the "Tranche C Term Loan Facility"), (d) the Revolving
Credit Commitments and the Revolving Extensions of Credit (the
"Revolving Credit Facility") and (e) the Canadian Term Loan Commitments
and the Canadian Term Loans made, and the Acceptances issued,
thereunder (the "Canadian Term Loan Facility").
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers
as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the General Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Charge Coverage Ratio": as at the last day of any
fiscal quarter, the ratio of (i) the sum of Consolidated Operating Cash
Flow and Consolidated Historical Operating Lease Expense for the four
consecutive fiscal quarters ended on such last day to (ii) Consolidated
Fixed Charges for the next succeeding four consecutive fiscal quarters.
23
17
"Foreign Currency Protection Agreements": as to any Person,
all foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements entered into by such Person to
protect such Person against fluctuations in currency values.
"Foreign Subsidiary": any Subsidiary of the Company organized
under the laws of any jurisdiction outside the United States of
America.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Administrative Agent": Toronto Dominion (Texas) Inc.,
together with its affiliates, as arranger of the Commitments and as
administrative agent for the U.S. Lenders under this Agreement and the
other Loan Documents, and any successor thereto pursuant to Section
12.9.
"Governmental Authority": any nation or government, any state,
provincial or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the
Company and each Guarantor, substantially in the form of Exhibit B-1,
as the same may be amended, supplemented or otherwise modified from
time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which obligation the guaranteeing
person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent,
(i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in
the ordinary course of business. The amount of any Guarantee Obligation
of any guaranteeing person shall be
24
18
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Company in good faith. For avoidance of doubt,
Guarantee Obligations will not include obligations of Holdings and its
Subsidiaries incurred in the ordinary course of business to indemnify
customers in connection with business services provided by Holdings or
its Subsidiaries.
"Guarantor": each party to the Guarantee and Collateral
Agreement other than the Company, which shall include Holdings and all
wholly owned Domestic Subsidiaries of the Company.
"Hedging Agreement": any Foreign Currency Protection Agreement
or Interest Rate Protection Agreement.
"High Yield Notes": up to $400,000,000 of subordinated notes
of the Company maturing no earlier than the Revolving Credit
Termination Date and having subordination and other terms reasonably
acceptable to the Company and the General Administrative Agent.
"High Yield Offering": the contemplated offering by the
Company of the High Yield Notes.
"Holdings": as defined in the Recitals to this Agreement.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities
(other than obligations in respect of performance bonds and letters of
credit in the nature of performance bonds), (e) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or
otherwise acquire for value any Capital Stock (other than common stock)
of such Person, (f) all Guarantee Obligations of such Person in respect
of obligations of the kind referred to in clauses (a) through (e)
above, (g) all obligations of the kind referred to in clauses (a)
through (f) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation,
accounts and contract
25
19
rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation and (h) for the
purposes of Section 11(e) only, all obligations of such Person in
respect of Hedging Agreements.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Amended and Restated
Intercreditor Agreement, substantially in the form of Exhibit O, to be
entered into by the Administrative Agents and The Toronto-Dominion
Bank, as Canadian Operating Facility Agent (as defined therein), and
NationsBank, N.A., in its capacity as a lender providing the
NationsBank Line of Credit.
"Interest Coverage Ratio": for any period, the ratio of (i)
Consolidated Operating Cash Flow less Consolidated Capital Expenditures
for such period to (ii) Consolidated Historical Cash Interest Expense
for such period.
"Interest Determination Date": with respect to any Interest
Period for LIBOR Loans, the date which is two Eurodollar Business Days
prior to the first day of such LIBOR Interest Period.
"Interest Payment Date": (a) as to any Base Rate Loan and any
Canadian Term Loan, the last Business Day of each February, May, August
and November, and, in the case of any Canadian Term Loan converted to
an Acceptance pursuant to Section 5.1(b), the Borrowing Date on which
such conversion occurs, (b) as to any LIBOR Loan having an Interest
Period of three months or less, the last day of such Interest Period,
and (c) as to any LIBOR Loan having an Interest Period longer than
three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day
of such Interest Period.
"Interest Period": with respect to any LIBOR Loan:
(a) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such LIBOR Loan and ending one, two, three or six
months or (if available to all Lenders under the relevant
Facility) nine or twelve months thereafter, as selected by the
Company in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such LIBOR Loan and ending one, two, three or six months or
(if available to all Lenders under the relevant Facility)
26
20
nine or twelve months thereafter, as selected by the Company
by irrevocable notice to the General Administrative Agent not
less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period in respect of Revolving
Credit Loans, Tranche A Term Loans, Tranche B Term Loans or
Tranche C Term Loans, as the case may be, that would otherwise
extend beyond the Revolving Credit Termination Date or beyond
the date final payment is due on the Tranche A Term Loans, the
Tranche B Term Loans or the Tranche C Term Loans, as the case
may be, shall end on the Revolving Credit Termination Date or
such due date, as applicable;
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(4) the Company shall select Interest Periods so as
not to require a payment or prepayment of any LIBOR Loan
during an Interest Period for such Loan.
"Interest Rate Protection Agreements": as to any Person, all
interest rate swaps, caps or collar agreements or similar arrangements
entered into by such Person providing for protection against
fluctuations in interest rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Issuance Date": any Business Day specified in a notice
pursuant to Section 3.2 as a date on which an Issuing Lender is
requested to issue a Letter of Credit hereunder.
"Issuing Lender": any of The Toronto-Dominion Bank or any
Managing Agent or any Affiliates thereof, as selected by the Company.
"ITA": the Income Tax Act (Canada) and the regulations
promulgated thereunder, as amended or re-enacted from time to time.
"▇▇▇▇▇▇▇": ▇▇▇▇▇▇▇ Inc., a Canadian corporation.
27
21
"L/C Commitment": at any time, the lesser of (a) $200,000,000
and (b) the aggregate Revolving Credit Commitments then in effect.
"L/C Fee Payment Date": the last day of each February, May,
August and November and the last day of the Revolving Credit Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
relevant Issuing Lender.
"Letters of Credit": as defined in Section 3.1(a).
"LIBOR Loan": any Loan the rate of interest applicable to
which is based upon the LIBOR Rate.
"LIBOR Rate": with respect to a LIBOR Loan for the relevant
Interest Period, the rate per annum determined by the General
Administrative Agent as follows:
(a) on the Interest Determination Date relating to
such Interest Period, the General Administrative Agent shall
obtain the offered quotation(s) for U.S. Dollar deposits for a
period comparable to such Interest Period that appear on the
▇▇▇▇▇▇'▇ Screen as of 11:00 a.m., London time. If at least two
such offered quotations appear on the ▇▇▇▇▇▇'▇ Screen, the
LIBOR Rate shall be the arithmetic average (rounded up to the
nearest 1/16th of 1%) of such offered quotations, as
determined by the General Administrative Agent;
(b) if the ▇▇▇▇▇▇'▇ Screen is not available or has
been discontinued, the LIBOR Rate shall be the rate per annum
that the General Administrative Agent determines to be the
arithmetic average (rounded as aforesaid) of the per annum
rates of interest reported to the General Administrative Agent
by each LIBOR Reference Bank (or, if any LIBOR Reference Bank
fails to provide such quotation, on the basis of the rates
reported to the General Administrative Agent by the remaining
LIBOR Reference Banks) as the rate at which deposits in U.S.
Dollars are offered to such Reference Banks in the London
interbank market at 11:00 a.m., London time, on the Interest
Determination Date in the approximate amount of such LIBOR
Reference Bank's relevant LIBOR Loan and having a maturity
approximately equal to the relevant LIBOR Interest Period; and
28
22
(c) if the General Administrative Agent is not able
to obtain quotations for the determination of the LIBOR Rate
pursuant to subsection (a) or (b) above, the LIBOR Rate shall
be the rate per annum which the General Administrative Agent
in good faith determines to be the arithmetic average (rounded
as aforesaid) of the offered quotations for U.S. Dollar
deposits in an amount comparable to the General Administrative
Agent's share of the relevant amount in respect of which the
LIBOR Rate is being determined for a period comparable to the
relevant LIBOR Interest Period that leading banks in New York
City selected by the General Administrative Agent are quoting
at 11:00 a.m., New York City time, on the Interest
Determination Date in the New York interbank market to major
international banks.
"LIBOR Reference Banks": The Toronto-Dominion Bank, The Bank
of Nova Scotia, NationsBank, N.A. and The First National Bank of
Chicago.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": the collective reference to this Agreement,
any Notes, the Applications, the Syndication Letter Agreement, the
Drafts, the Acceptances, the Acceptance Notes and the Security
Documents.
"Loan Parties": the collective reference to Holdings, the
Borrowers and each Subsidiary of the Company which is a party to a Loan
Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 66-2/3% of the aggregate unpaid principal amount
of the U.S. Term Loans (and related undrawn U.S. Term Loan
Commitments), the Total Revolving Extensions of Credit or the Aggregate
Canadian Term Loan Outstandings, as the case may be, outstanding under
such Facility (or, in the case of the Revolving Credit Facility, prior
to any termination of the Revolving Credit Commitments, the holders of
more than 66- 2/3% of the aggregate Revolving Credit Commitments).
"Material Adverse Effect": a material adverse effect on (a)
the Safety-Kleen Acquisition, (b) the business, operations, property,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole or (c) the validity or enforceability of
this or any of the other Loan Documents or the rights or remedies of
the Administrative Agents or the Lenders hereunder or thereunder.
29
23
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutants, contaminants, radioactivity, and any other
substances or forces of any kind, whether or not any such substance or
force is defined as hazardous or toxic under any Environmental Law,
that is regulated pursuant to or could give rise to liability under any
Environmental Law.
"Merger": as defined in the Recitals to this Agreement.
"Merger Agreement: as defined in the Recitals to this
Agreement.
"Merger Date": the date on which the Merger is consummated.
"Mortgage Amendment": each Mortgage Amendment, substantially
in the form of Exhibit M, to be entered into on the Closing Date to
amend each Existing Mortgage.
"Mortgages": the collective reference to the Existing
Mortgages, as amended by the Mortgage Amendments, and the Mortgages,
substantially in the form of Exhibit N, to be executed and delivered in
respect of the properties to be mortgaged pursuant to Section 9.10(d),
as the same may be amended, supplemented or otherwise modified from
time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank Line of Credit": the working capital credit
facility in an amount not exceeding $25,000,000 made available pursuant
to a letter agreement, dated March 31, 1998 between NationsBank of
Texas, N.A., as lender, and the Company, as borrower, as the same may
be amended, modified or otherwise supplemented from time to time.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and cash
equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to
be payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements) and (b) in
connection with any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans,
30
24
the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 6.12.
"Notes": the collective reference to the Revolving Credit
Notes, the U.S. Term Notes and the Canadian Term Notes.
"Participant": as defined in Section 14.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Employee Stock Issuances": the issuance by Holdings
of its common stock to employees or directors of Holdings and its
Subsidiaries for aggregate proceeds not exceeding $5,000,000 per fiscal
year during fiscal year 1997, 1998 and 1999 and $10,000,000 per fiscal
year thereafter.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prepayment Option Notice": as defined in Section 6.3(i).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": the prime commercial lending rate of The
Toronto-Dominion Bank as in effect from time to time in New York City
for loans in U.S. Dollars, such rate to be adjusted on and as of the
effective date of any change in the Prime Rate. The Prime Rate is only
one of the bases for computing interest on loans made by the Lenders,
and by basing interest on the unpaid principal amount of the Loans on
the Prime Rate, the Lenders have not committed to charge, and the
Company has not in any way bargained for, interest based on a lower or
the lowest rate at which the Lenders may now or in the future make
loans to other borrowers.
"Pro Forma Balance Sheet": as defined in Section 7.1(a).
"Proposed Prepayment Date": as defined in Section 6.3(i).
31
25
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Company or any of its Subsidiaries.
"Reference Discount Rate": on any date with respect to each
Draft requested to be accepted by a Canadian Lender, (a) if such
Canadian Lender is a Schedule 1 Canadian Lender, the arithmetic average
of the discount rates (expressed as a percentage calculated on the
basis of a year of 365 days) quoted by the Toronto offices of each of
the Schedule 1 Canadian Reference Lenders, at 10:00 a.m. (Toronto time)
on the Borrowing Date on which such Draft is to be accepted as the
discount rate at which each such Schedule 1 Canadian Reference Lender
would, in the normal course of its business, purchase on such date
Acceptances having an aggregate face amount and term to maturity as
designated by the Canadian Borrower pursuant to Section 5.2 and (b) if
such Canadian Lender is a Schedule 2 Canadian Lender, the arithmetic
average of the discount rates (expressed as a percentage calculated on
the basis of a year of 365 days) quoted by the Toronto offices of each
of the Schedule 2 Canadian Reference Lenders, at 10:00 a.m. (Toronto
time) on the Borrowing Date on which such Draft is to be accepted as
the discount rate at which each such Schedule 2 Canadian Reference
Lender would, in the normal course of its business, purchase on such
date Acceptances having an aggregate face amount and term to maturity
as designated by the Canadian Borrower pursuant to Section 5.2. The
Canadian Administrative Agent shall advise the Canadian Borrower and
the Canadian Lenders, either in writing or verbally, by 11:00 a.m.
(Toronto time) on each Borrowing Date in respect of Acceptances as to
the applicable Reference Discount Rate and corresponding Acceptance
Purchase Price in respect of Acceptances having the maturities selected
by the Canadian Borrower for such Borrowing Date.
"Register": as defined in Section 14.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Company to
reimburse the Issuing Lenders pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by a
Borrower or any of its Subsidiaries in connection therewith which are
not applied to prepayments or reductions pursuant to Section 6.3(c) as
a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Recovery Event or Asset Sale in
respect of which the relevant Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer to the General Administrative Agent within 30 days
of the Reinvestment Event to which it
32
26
relates stating that no Event of Default has occurred and is continuing
and that the relevant Borrower (directly or indirectly through a
Subsidiary), in good faith, intends and expects to use all or a
specified portion of the Net Cash Proceeds of a Recovery Event or an
Asset Sale to restore or replace the assets in respect of which such
Recovery Event or Asset Sale occurred or to purchase other assets used
in the existing business of the Company and its Subsidiaries within
twelve months from the date of receipt of such Net Cash Proceeds
(provided that if the affected assets constituted Collateral, such
restored, replacement or other purchased assets shall also constitute
Collateral).
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount which, prior to the relevant Reinvestment Prepayment
Date, the relevant Borrower or the relevant Subsidiary has spent or has
agreed, pursuant to a binding written contract (under which performance
is in progress) to spend, to restore or replace the assets in respect
of which a Recovery Event or an Asset Sale has occurred or to purchase
other assets used in the existing business of such Borrower or such
Subsidiary.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earliest of (a) the first date occurring after
such Reinvestment Event on which an Event of Default shall have
occurred, (b) the date occurring twelve months after such Reinvestment
Event and (c) the date on which the relevant Borrower shall have
determined not to, or shall have otherwise ceased to, restore or
replace the assets in respect of which a Recovery Event or an Asset
Sale has occurred or to purchase other assets used in the existing
business of such Borrower or such Subsidiary.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. ss. 4043.
"Request for Acceptances": as defined in Section 5.2(a).
"Required Lenders": the holders of more than 66-2/3% of (a)
until the Closing Date, the Tranche A Term Loan Commitments, the
Tranche B Term Loan Commitments, the Tranche C Term Loan Commitments,
the Revolving Credit Commitments and the U.S. Dollar Equivalent of the
Canadian Term Loan Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the U.S. Term Loans and the
aggregate undrawn amount of the U.S. Term Loan Commitments, (ii) the
U.S. Dollar Equivalent of the Aggregate Canadian Facility Term Loan
Outstandings of all Lenders and (iii) the aggregate Revolving Credit
33
27
Commitments of all Lenders or, if the Revolving Credit Commitments have
been terminated, the Total Revolving Extensions of Credit.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer and the
president of the Company or Holdings, as the case may be, or, with
respect to financial matters, the chief financial officer of the
Company or Holdings, as the case may be.
"▇▇▇▇▇▇'▇ Screen": the display designated at page "LIBO" on
the ▇▇▇▇▇▇ Monitor System or such other display on the ▇▇▇▇▇▇ Monitor
System as may replace such page displaying the London interbank bid or
offered rates.
"Revolving Credit Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Letters of Credit, in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading "Revolving
Credit Commitment" opposite such Lender's name on Schedule 1.1A, as the
same may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Revolving Credit Commitments is
$450,000,000; provided that at no time shall the aggregate principal
amount of all Revolving Credit Loans exceed $300,000,000.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each U.S. Lender which has a
Revolving Credit Commitment or which has made Revolving Extensions of
Credit.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.7.
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the aggregate Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes of the Total Revolving Extensions of Credit
then outstanding).
34
28
"Revolving Credit Termination Date": the earlier of (a) April
3, 2004 and (b) the date on which the Revolving Credit Commitments are
terminated pursuant to Section 11.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding and (b) such Lender's Revolving Credit Percentage of the
L/C Obligations then outstanding.
"▇▇▇▇▇▇▇ Acquisition": the acquisition by Holdings of the
common stock of the Company, which was financed, in part, with proceeds
of loans under the Existing Credit Agreement.
"Safety-Kleen": as defined in the Recitals to this Agreement.
"Safety-Kleen Acquisition": the acquisition by Acquisition
Corp. of the common stock of Safety-Kleen pursuant to the Exchange
Offer and the Merger, financed, in part, with proceeds of Loans made
hereunder.
"Schedule 1 Canadian Lender": each Canadian Lender listed on
Schedule 1 to the Bank Act (Canada).
"Schedule 1 Canadian Reference Lenders": initially, The
Toronto-Dominion Bank; and after completion of syndication of the
Facilities, The Toronto-Dominion Bank and one other Schedule 1 Canadian
Lender selected by the Canadian Administrative Agent and the Canadian
Borrower.
"Schedule 2 Canadian Lender": each Canadian Lender which is
not a Schedule 1 Canadian Lender.
"Schedule 2 Canadian Reference Lenders": two Schedule 2
Canadian Lenders to be selected by the Canadian Administrative Agent
and the Canadian Borrower after completion of syndication of the
Facilities.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Acquisition Corp. Pledge
Agreement, the Mortgages, the Canadian Collateral Documents and all
other security documents hereafter delivered to the General
Administrative Agent or the Canadian Administrative Agent granting a
Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
Seller Note": the 5% Convertible Subordinated Debenture due
2009 in a principal amount of $350,000,000 issued by Holdings to
▇▇▇▇▇▇▇ Transportation, Inc.
35
29
on the Acquisition Closing Date as a portion of the consideration for
the ▇▇▇▇▇▇▇ Acquisition.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the liability of
such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, and (d) such
Person will be able to pay its debts as they mature. For purposes of
this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
"Specified Acceptances": as defined in Section 5.1(a).
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Surviving Corporation": as defined in the Recitals to this
Agreement.
"Syndication Agent": as defined in the Preamble to this
Agreement.
"Syndication Letter Agreement": the Letter Agreement dated as
of April 3, 1998 among Holdings, the Borrowers and the Arranger
pertaining to the completion of the syndication of the Facilities after
the Closing Date.
36
30
"Target Rights": as defined in the Recitals to this Agreement.
"Target Shares": as defined in the Recitals to this Agreement.
"Tax Act": the Income Tax Act (Canada), as amended from time
to time.
"Term Loans": the collective references to the Canadian Term
Loans and the U.S. Term Loans.
"Tooele County Debt": the Indebtedness incurred by Holdings
pursuant to a credit agreement, dated as of July 1, 1997, between
Holdings and Tooele County, Utah, in connection with the issuance by
Tooele County, Utah, of Hazardous Waste Treatment Revenue Bonds, due
July 1, 2027, in the aggregate principal amount of $45,700,000.
"Total Aggregate Canadian Term Loan Outstandings": at any
time, the aggregate amount of the Aggregate Canadian Term Loan
Outstandings of the Canadian Lenders at such time.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Credit Lenders at such time.
"Tranche": the collective reference to LIBOR Loans under the
same Facility the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to the
Company hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule 1.1A. The original aggregate amount of the
Tranche A Term Loan Commitments is $480,000,000.
"Tranche A Term Loan Lender": each U.S. Lender which has a
Tranche A Term Loan Commitment or which has made a Tranche A Term Loan.
"Tranche A Term Loan Maturity Date": April 3, 2004.
"Tranche A Term Loan Percentage": as to any Tranche A Term
Loan Lender at any time, the percentage which such Lender's Tranche A
Term Loan Commitment then constitutes of the aggregate Tranche A Term
Loan Commitments (or, at any time
37
31
after the Closing Date, the percentage which the aggregate principal
amount of such Lender's Tranche A Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche A Term
Loans then outstanding).
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche B Term Loan to the
Company hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche B Term Loan Commitment" opposite such
Lender's name on Schedule 1.1A. The original aggregate amount of the
Tranche B Term Loan Commitments is $550,000,000. The Tranche B-1 Term
Loan Commitments are a subset of the Tranche B Term Loan Commitments.
"Tranche B Term Loan Lender": each U.S. Lender which has a
Tranche B Term Loan Commitment or which has made a Tranche B Term Loan.
"Tranche B Term Loan Maturity Date": April 3, 2005.
"Tranche B Term Loan Percentage": as to any Tranche B Term
Loan Lender at any time, the percentage which such Lender's Tranche B
Term Loan Commitment then constitutes of the aggregate Tranche B Term
Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's
Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding).
"Tranche B-1 Term Loan Commitments": as defined in Section
2.1(b).
"Tranche B-1 Term Loans": as defined in Section 2.1(b).
"Tranche C Term Loan": as defined in Section 2.1.
"Tranche C Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche C Term Loan to the
Company hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche C Term Loan Commitment" opposite such
Lender's name on Schedule 1.1A. The original aggregate amount of the
Tranche C Term Loan Commitments is $550,000,000. The Tranche C-1 Term
Loan Commitments are a subset of the Tranche C Term Loan Commitments.
"Tranche C Term Loan Lender": each U.S. Lender which has a
Tranche C Term Loan Commitment or which has made a Tranche C Term Loan.
"Tranche C Term Loan Maturity Date": April 3, 2006.
38
32
"Tranche C Term Loan Percentage": as to any Tranche C Term
Loan Lender at any time, the percentage which such Lender's Tranche C
Term Loan Commitment then constitutes of the aggregate Tranche C Term
Loan Commitments (or, at any time after the Closing Date, the
percentage which the aggregate principal amount of such Lender's
Tranche C Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche C Term Loans then outstanding).
"Tranche C-1 Term Loan Commitments": as defined in Section
2.1(b).
"Tranche C-1 Term Loans": as defined in Section 2.1(b).
"Transferee": as defined in Section 14.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
LIBOR Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"U.S. Dollar Equivalent": with respect to an amount
denominated in Canadian Dollars, the equivalent in U.S. Dollars of such
amount determined at the Exchange Rate on the Business Day immediately
preceding the date of determination of such equivalent.
"U.S Dollars" and "$": dollars in the lawful currency of the
United States of America.
"U.S. Lenders": the collective reference to the U.S. Term Loan
Lenders and the Revolving Credit Lenders.
"U.S. Loans": the collective reference to the U.S. Term Loans
and the Revolving Credit Loans.
"U.S. Term Loan Commitments": the collective reference to the
Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments
and the Tranche C Term Loans Commitments.
"U.S. Term Loan Commitment Period": the period from the
Closing Date to the Merger Date.
"U.S. Term Loan Lenders": the collective reference to the
Tranche A Term Loan Lenders, the Tranche B Term Loan Lenders and the
Tranche C Term Loan Lenders.
39
33
"U.S. Term Loans": the collective reference to the Tranche A
Term Loans, Tranche B Term Loans and Tranche C Term Loans.
"U.S. Term Notes": as defined in Section 2.7.
"Westinghouse Debt": unsecured subordinated indebtedness of
Holdings in the initial principal amount of $60,000,000 evidenced by a
promissory note of Holdings, dated May 15, 1997, initially payable to
Westinghouse Electric Corporation and its assignees, and guaranteed by
▇▇▇▇▇▇▇.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Company and its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP; provided that, if the Company
notifies the General Administrative Agent that the Company requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the General Administrative Agent notifies the Company that the
Required Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then, pending execution and delivery of such
an amendment, such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. COMMITMENTS
2.1 U.S. Term Loan Commitments. (a) Subject to the terms and
conditions hereof, (i) each Tranche A Term Loan Lender severally agrees to make
term loans (each, a "Tranche A Term Loan") denominated in U.S. Dollars to the
Company during the U.S. Term Loan Commitment Period in an aggregate principal
amount not to exceed the amount of the
40
34
Tranche A Term Loan Commitment of such Lender, (ii) each Tranche B Term Loan
Lender severally agrees to make term loans (each, a "Tranche B Term Loan")
denominated in U.S. Dollars to the Company during the U.S. Term Loan Commitment
Period in an aggregate principal amount not to exceed the amount of the Tranche
B Term Loan Commitment of such Lender and (iii) each Tranche C Term Loan Lender
severally agrees to make term loans (each, a "Tranche C Term Loan") denominated
in U.S. Dollars to the Company during the U.S. Term Loan Commitment Period in an
aggregate principal amount not to exceed the amount of the Tranche C Term Loan
Commitment of such Lender. The U.S. Term Loans may from time to time be LIBOR
Loans or Base Rate Loans, as determined by the Company and notified to the
General Administrative Agent in accordance with Sections 2.2 and 6.4; provided
that the U.S. Term Loans made on the Closing Date shall initially be made as
Base Rate Loans.
(b) $150,000,000 of the Tranche B Term Loan Commitments shall
be designated as the "Tranche B-1 Term Loan Commitments", and $150,000,000 of
the Tranche C Term Loan Commitments shall be designated as the "Tranche C-1 Term
Loan Commitments". Schedule 1.1A sets forth the amount of the Tranche B-1 Term
Loan Commitments and the Tranche C-1 Term Loan Commitments held by each of the
U.S. Term Loan Lenders. Each borrowing of Tranche B Term Loans and Tranche C
Term Loans shall be deemed to utilize first the portions of the U.S. Term Loan
Commitments other than the Tranche B-1 Term Loan Commitments or the Tranche C-1
Term Loan Commitments, as the case may be, before utilizing the Tranche B-1 Term
Loan Commitment and the Tranche C-1 Term Loan Commitments. The portions of the
U.S. Term Loans attributable to the Tranche B-1 Term Loan Commitments and the
Tranche C-1 Term Loan Commitments shall be designated as the "Tranche B-1 Term
Loans" and the "Tranche C-1 Term Loans", respectively.
2.2 Procedure for U.S. Term Loan Borrowing. The Company may
borrow under the U.S. Term Loan Commitments during the U.S. Term Loan Commitment
Period on any Business Day in accordance with this Section 2.2, provided that
the Company shall give the General Administrative Agent irrevocable written
notice (which notice must be received by the General Administrative Agent prior
to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of LIBOR Loans, or (b) one Business Day
prior to the requested Borrowing Date, in the case of Base Rate Loans),
specifying (i) the amount and Type of U.S. Term Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of LIBOR Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. The U.S. Term Loans made on the Closing Date shall be
in an aggregate principal amount not exceeding the sum of (i) the cash amount
payable in connection with the Exchange Offer on the Closing Date, (ii) the
aggregate principal amount of the U.S. Term Loans and Revolving Credit Loans
outstanding under (and as defined in) the Existing Credit Agreement and (iii)
costs and expenses relating to the Exchange Offer and the financing thereof.
After the Closing Date and prior to the Merger Date, the Company may make one
additional borrowing of U.S. Term Loans in an aggregate principal amount not
exceeding the cash portion of the consideration payable in connection with
delayed delivery of Target Shares pursuant to the Exchange Offer
41
35
or in connection with Target Shares for which payment cannot be made on the
Closing Date because of inability of the Exchange Agent to complete the
verification process in respect of such Target Shares. On the Merger Date, the
Company may make an additional borrowing of U.S. Term Loans in an aggregate
principal amount not exceeding the cash portion of the consideration payable in
connection with the Merger, and costs and expenses related thereto, less the
amount, if any, of Net Cash Proceeds received by the Company from the High Yield
Offering, if it has been consummated, to the extent such Net Cash Proceeds have
not been applied to prepay the Term Loans or reduce the Term Loan Commitments
pursuant to Section 6.3(b) and (e). In addition, on the Merger Date the Company
may borrow U.S. Term Loans in an amount sufficient to repay existing
indebtedness of Safety-Kleen required to be repaid in connection with the
Merger. Each borrowing under the U.S. Term Loan Commitments shall be in an
amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a multiple of
$500,000 in excess thereof and (y) in the case of LIBOR Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Company, the General Administrative Agent shall promptly notify each
U.S. Term Loan Lender thereof. Each U.S. Term Loan Lender will make the amount
of its pro rata share of each borrowing available to the General Administrative
Agent for the account of the Company at the office of the General Administrative
Agent specified in Section 14.2 prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Company in funds immediately available to the
General Administrative Agent. Such borrowing will then be made available to the
Company by the General Administrative Agent crediting the account of the Company
at the office of The Toronto-Dominion Bank at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ with the aggregate of the amounts made available to the
General Administrative Agent by the U.S. Term Loan Lenders and in like funds as
received by the General Administrative Agent.
2.3 Repayment of U.S. Term Loans. (a) The Tranche A Term Loan
of each Tranche A Lender shall mature, and the Company unconditionally promises
to pay such Tranche A Term Loan to the General Administrative Agent for the
account of such Tranche A Lender, in 24 consecutive quarterly installments,
commencing on August 31, 1998, each of which shall be in an amount equal to such
Lender's Tranche A Term Loan Percentage multiplied by the amount set forth below
opposite such installment:
Installment Principal Amount
----------------
August 31, 1998 US$16,000,000
November 30, 1998 16,000,000
February 28, 1999 16,000,000
May 31, 1999 16,000,000
August 31, 1999 16,000,000
November 30, 1999 16,000,000
February 28, 2000 16,000,000
May 31, 2000 16,000,000
August 31, 2000 22,000,000
November 30, 2000 22,000,000
February 28, 2001 22,000,000
42
36
Installment Principal Amount
----------- ----------------
May 31, 2001 22,000,000
August 31, 2001 22,000,000
November 30, 2001 22,000,000
February 28, 2002 22,000,000
May 31, 2002 22,000,000
August 31, 2002 22,000,000
November 30, 2002 22,000,000
February 28, 2003 22,000,000
May 31, 2003 22,000,000
August 31, 2003 22,000,000
November 30, 2003 22,000,000
February 28, 2004 22,000,000
Tranche A Term
Loan Maturity Date 22,000,000
(b) The Tranche B Term Loan of each Tranche B Lender shall
mature, and the Company unconditionally promises to pay such Tranche B Term Loan
to the General Administrative Agent for the account of such Tranche B Lender, in
28 consecutive quarterly installments, commencing on August 31, 1998, each of
which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
August 31, 1998 US$1,375,000
November 30, 1998 1,375,000
February 28, 1999 1,375,000
May 31, 1999 1,375,000
August 31, 1999 1,375,000
November 30, 1999 1,375,000
February 28, 2000 1,375,000
May 31, 2000 1,375,000
August 31, 2000 1,375,000
November 30, 2000 1,375,000
February 28, 2001 1,375,000
May 31, 2001 1,375,000
August 31, 2001 1,375,000
November 30, 2001 1,375,000
February 28, 2002 1,375,000
May 31, 2002 1,375,000
August 31, 2002 1,375,000
November 30, 2002 1,375,000
February 28, 2003 1,375,000
May 31, 2003 1,375,000
43
37
Installment Principal Amount
----------- ----------------
August 31, 2003 1,375,000
November 30, 2003 1,375,000
February 28, 2004 1,375,000
May 31, 2004 1,375,000
August 31, 2004 129,250,000
November 30, 2004 129,250,000
February 28, 2005 129,250,000
Tranche B Term Loan Maturity Date 129,250,000
(c) The Tranche C Term Loan of each Tranche C Lender shall
mature, and the Company unconditionally promises to pay such Tranche C Term Loan
to the General Administrative Agent for the account of such Tranche C Lender, in
32 consecutive quarterly installments, commencing on August 31, 1998, each of
which shall be in an amount equal to such Lender's Tranche C Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
44
38
Installment Principal Amount
----------- ----------------
August 31, 1998 US$1,375,000
November 30, 1998 1,375,000
February 28, 1999 1,375,000
May 31, 1999 1,375,000
August 31, 1999 1,375,000
November 30, 1999 1,375,000
February 28, 2000 1,375,000
May 31, 2000 1,375,000
August 31, 2000 1,375,000
November 30, 2000 1,375,000
February 28, 2001 1,375,000
May 31, 2001 1,375,000
August 31, 2001 1,375,000
November 30, 2001 1,375,000
February 28, 2002 1,375,000
May 31, 2002 1,375,000
August 31, 2002 1,375,000
November 30, 2002 1,375,000
February 28, 2003 1,375,000
May 31, 2003 1,375,000
August 31, 2003 1,375,000
November 30, 2003 1,375,000
February 28, 2004 1,375,000
May 31, 2004 1,375,000
August 31, 2004 1,375,000
November 30, 2004 1,375,000
February 28, 2005 1,375,000
May 31, 2005 1,375,000
August 31, 2005 127,875,000
November 30, 2005 127,875,000
February 28, 2006 127,875,000
Tranche C Term
Loan Maturity Date 127,875,000
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Company from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount such that, after giving effect thereto, the aggregate outstanding
principal amount of such Lender's Revolving Credit Loans will not exceed the
lesser of (i) such Lender's Revolving Credit Commitment less such Lender's
Revolving Credit Percentage of the L/C Obligations then outstanding, and (ii)
such Lender's Revolving Credit Percentage of $300,000,000. During the Revolving
Credit Commitment Period the Company may use the Revolving Credit Commitments by
borrowing, prepaying the
45
39
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Credit Loans may from time
to time be LIBOR Loans or Base Rate Loans, as determined by the Company and
notified to the General Administrative Agent in accordance with Sections 2.5 and
6.4, provided that no Revolving Credit Loan shall be made as a LIBOR Loan after
the day that is one month prior to the Revolving Credit Termination Date.
(b) The Company unconditionally promises to pay to the General
Administrative Agent for the account of the Revolving Credit Lenders all
outstanding Revolving Credit Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Company may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Company shall give the
General Administrative Agent irrevocable written notice (which notice must be
received by the General Administrative Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the requested Borrowing Date, in the case
of LIBOR Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of Base Rate Loans), specifying (i) the amount and Type of Revolving
Credit Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of LIBOR Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Revolving Credit Commitments shall be in an amount equal to (x) in the
case of Base Rate Loans, $1,000,000 or a multiple of $500,000 in excess thereof
(or, if the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of LIBOR Loans, $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such
notice from the Company, the General Administrative Agent shall promptly notify
each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the General
Administrative Agent for the account of the Company at the office of the General
Administrative Agent specified in Section 14.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Company in funds immediately
available to the General Administrative Agent. Such borrowing will then be made
available to the Company by the General Administrative Agent crediting the
account of the Company at the office of The Toronto-Dominion Bank at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ with the aggregate of the amounts made
available to the General Administrative Agent by the Revolving Credit Lenders
and in like funds as received by the General Administrative Agent.
2.6 Termination or Reduction of Revolving Credit Commitments.
The Company shall have the right, upon not less than three Business Days'
irrevocable written notice to the General Administrative Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments without premium or penalty; provided that no such
termination or reduction of Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit Loans
made on the effective date thereof, the Total Revolving Extensions of
46
40
Credit would exceed the Revolving Credit Commitments then in effect. Any such
reduction shall be in an amount equal to $5,000,000, or a whole multiple of
$1,000,000 in excess thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
2.7 Evidence of Debt. (a) Each U.S. Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Company to such Lender resulting from each U.S. Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The General Administrative Agent shall maintain the
Register pursuant to Section 14.6(d), and a subaccount therein for each U.S.
Lender, in which shall be recorded (i) the amount of each Revolving Credit Loan
and U.S. Term Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Company to each U.S. Lender hereunder and
(iii) both the amount of any sum received by the General Administrative Agent
hereunder from the Company and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
U.S. Lender maintained pursuant to Section 2.7(a) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the General Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Company to repay (with applicable interest) the U.S. Loans
made to the Company by such U.S. Lender in accordance with the terms of this
Agreement.
(d) The Company agrees that, upon the request to the General
Administrative Agent by any U.S. Lender, the Company will execute and deliver to
such Lender (i) a promissory note of the Company evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit C with appropriate
insertions as to date and principal amount (a "Revolving Credit Note"), and/or
(ii) a promissory note of the Company evidencing the Tranche A Term Loans,
Tranche B Term Loan or Tranche C Term Loan, as the case may be, of such Lender,
substantially in the form of Exhibit D with appropriate insertions as to date
and principal amount (a "U.S. Term Note").
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Pursuant to the Existing Credit
Agreement, the Issuing Lenders specified on Schedule 1.1C have issued the
letters of credit described on Schedule 1.1C (the "Existing Letters of Credit"),
which from and after the Closing Date shall continue to be "Letters of Credit"
hereunder. Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Revolving Credit Lenders set forth in
Section 3.4(a), agrees to issue letters of credit (together with the Existing
Letters of Credit,
47
41
the "Letters of Credit") for the account of the Company on any Business Day
during the Revolving Credit Commitment Period in such form as may be approved
from time to time by such Issuing Lender; provided that (i) no Issuing Lender
shall issue any Letter of Credit if, after giving effect to such issuance, the
L/C Obligations would exceed the L/C Commitment or the Total Revolving
Extensions of Credit would exceed the Revolving Credit Commitments of all
Lenders and (ii) no Issuing Lender shall issue any Letter of Credit unless it
shall have received notice from the General Administrative Agent that the
issuance of such Letter of Credit will not violate the foregoing clause (i) of
this proviso. Each Letter of Credit shall (i) be denominated in U.S. Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date, provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which shall
in no event extend beyond the date referred to in the foregoing clause (y) of
this proviso).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
3.2 Procedure for Issuance of Letter of Credit. The Company
may from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, each Issuing Lender
agrees to process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall such Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the Company. Each Issuing Lender shall furnish a copy of each
Letter of Credit by it hereunder to the Company promptly following the issuance
thereof. Each Issuing Lender shall promptly furnish to the General
Administrative Agent, which shall in turn promptly furnish to the Revolving
Credit Lenders, notice of the issuance of each Letter of Credit (including the
amount thereof).
3.3 Commissions, Fees and Other Charges. (a) The Company shall
pay to the General Administrative Agent, for the account of the Revolving Credit
Lenders, a letter of credit commission with respect to each Letter of Credit
outstanding under this Agreement for the period from the Issuance Date of such
Letter of Credit (or, in the case of the Existing Letters of Credit, from the
Closing Date) to the expiration or termination of such Letter of Credit,
computed at a per annum rate equal to (i) the Applicable Margin then in effect
with respect to LIBOR Loans under the Revolving Credit Facility less (ii) 1/4 of
1% (the fronting fee referred to in paragraph (b) below) on the average
aggregate amount available to be drawn under such Letter of Credit during the
period for which such fee is calculated. Such
48
42
commission shall be shared ratably among the Revolving Credit Lenders and
payable quarterly in arrears on each L/C Fee Payment Date to occur after the
respective Issuance Date (or the Closing Date, as the case may be) and on the
Revolving Credit Termination Date and shall be nonrefundable.
(b) The Company shall pay to the relevant Issuing Lender with
respect to each Letter of Credit issued by such Issuing Lender under this
Agreement, for its own account, a fronting fee with respect to the period from
the Issuance Date of such Letter of Credit to the expiration or termination date
of such Letter of Credit, computed at a rate of 1/4 of 1% per annum on the
average aggregate amount available to be drawn under such Letter of Credit
during the period for which such fee is calculated. Such fronting fee shall be
payable in arrears on each L/C Fee Payment Date to occur after the Issuance Date
(or the Closing Date, as the case may be) and on the Revolving Credit
Termination Date and shall be nonrefundable.
(c) In addition to the foregoing fees and commissions, the
Company shall pay or reimburse each Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Effective on the Closing Date, in
respect of each Existing Letter of Credit, and effective on the Issuance Date,
in respect of each Letter of Credit issued after the Closing Date, each Issuing
Lender irrevocably agrees to grant and hereby grants to each L/C Participant
(other than such Issuing Lender), and, to induce such Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in such Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
each Issuing Lender that, if a draft is paid under any Letter of Credit for
which such Issuing Lender is not reimbursed in full by the Company in accordance
with the terms of this Agreement, such L/C Participant shall pay to such Issuing
Lender upon demand at such Issuing Lender's address for notices specified herein
an amount equal to such L/C Participant's Revolving Credit Percentage of the
amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to any Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit
issued by such Issuing Lender is not paid when due but is paid within three
Business Days after the date such payment is due, such L/C Participant shall pay
to such Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate during the
period from and including the date such payment is required to the date on which
such payment is immediately available to such Issuing Lender, times (iii) a
fraction the numerator of which is
49
43
the number of days that elapse during such period and the denominator of which
is 360. If any such amount required to be paid by any L/C Participant pursuant
to Section 3.4(a) is not made available to any Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to Base Rate Loans under the Revolving Credit
Facility. A certificate of any Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit issued by such Issuing Lender and has
received from any L/C Participant its pro rata share of such payment in
accordance with Section 3.4(a), such Issuing Lender receives any payment related
to such Letter of Credit (whether directly from the Company or otherwise,
including proceeds of collateral applied thereto by such Issuing Lender, but
excluding payments from L/C Participants), or any payment of interest on account
thereof, such Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by such Issuing Lender shall be required to be returned by such Issuing
Lender, such L/C Participant shall return to such Issuing Lender the portion
thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Company. If any draft
shall be presented for payment under any Letter of Credit issued by any Issuing
Lender, such Issuing Lender shall promptly notify the Company of the date and
amount thereof. If any Issuing Lender notifies the Company prior to 10:00 a.m.,
New York City time, on any Business Day, of any drawing under any Letter of
Credit issued by it, the Company shall reimburse such Issuing Lender with
respect to such drawing on the next succeeding Business Day. If any Issuing
Lender notifies the Company after 10:00 a.m., New York City time, on any
Business Day of any drawing under any Letter of Credit issued by it, the Company
shall reimburse such Issuing Lender with respect to such drawing on the second
succeeding Business Day. Interest shall be payable on any and all amounts drawn
under Letters of Credit from the date of such drawing until the date on which
reimbursement of such amount is due pursuant to the two immediately preceding
sentences at the interest rate then applicable to Base Rate Loans made under the
Revolving Credit Facility. In addition, the Company agrees to reimburse each
Issuing Lender for any taxes, fees, charges or other costs or expenses incurred
by such Issuing Lender in connection with any payment under any Letter of Credit
issued by such Issuing Lender. Each payment by the Company pursuant to this
Section 3.5 shall be made to the relevant Issuing Lender at its address for
notices specified herein in U.S. Dollars and in immediately available funds.
3.6 Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Company may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Company also agrees with each Issuing
Lender that such Issuing Lender shall not be responsible for, and
50
44
the Company's Reimbursement Obligations under Section 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Company and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Company agrees that any action taken or omitted by any Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, shall be binding on the Company and shall not result
in any liability of such Issuing Lender to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit issued by any Issuing Lender, such
Issuing Lender shall promptly notify the Company of the date and amount thereof.
The responsibility of each Issuing Lender to the Company in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3 or any other provision of this Agreement, the provisions of
this Section 3 or such other provisions of this Agreement shall apply.
SECTION 4. AMOUNT AND TERMS OF THE CANADIAN TERM LOAN
COMMITMENTS
4.1 Canadian Term Loan Commitments. (a) Subject to the terms
and conditions hereof, each Canadian Lender severally agrees to make term loans
(each, a "Canadian Term Loan") in Canadian Dollars to the Canadian Borrower on
the Closing Date in an aggregate principal amount not exceeding the Canadian
Term Loan Commitment of such Canadian Lender; provided, that after giving effect
to such Canadian Term Loans, the Total Aggregate Canadian Term Loan Outstandings
shall not exceed the Canadian Facility Maximum Amount.
51
45
(b) Subject to the terms and conditions hereof, each Canadian
Lender severally agrees from time to time during the Canadian Facility
Commitment Period to convert maturing Acceptances created by it into Canadian
Term Loans in a principal amount not to exceed the face amount of such maturing
Acceptances; provided, that no such conversion shall occur if, after giving
effect thereto, the Total Aggregate Canadian Term Loan Outstandings would exceed
the Canadian Facility Maximum Amount at such time.
4.2 Procedure for Canadian Term Loan Borrowing. The Canadian
Borrower shall give the Canadian Administrative Agent irrevocable written notice
(which notice must be received by the Canadian Administrative Agent prior to
10:00 a.m., Toronto time, at least two Business Days prior to the requested
Borrowing Date) requesting that the Canadian Term Loan Lenders make Canadian
Term Loans (or convert Acceptances into Canadian Term Loans) on a specified
Borrowing Date and specifying the amount to be borrowed or converted. Upon
receipt of such notice, the Canadian Administrative Agent shall promptly notify
each Canadian Lender thereof. In the case of any Canadian Term Loans other than
Canadian Term Loans resulting from the conversion of Acceptances pursuant to
Section 4.1(b), not later than 11:00 a.m., Toronto time, on the Borrowing Date
therefor, each Canadian Term Loan Lender shall make available to the Canadian
Administrative Agent at its office specified in Section 14.2 an amount in
Canadian Dollars in immediately available funds equal to the Canadian Term Loan
to be made by such Canadian Lender on such Borrowing Date. The Canadian
Administrative Agent shall on such date credit the account of the Canadian
Borrower at the office of The Toronto-Dominion Bank at Toronto Dominion Centre
Branch, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ with the
aggregate of the amounts made available to the Canadian Administrative Agent by
the Canadian Lenders in like funds as received by the Canadian Administrative
Agent. In the case of any Canadian Term Loans resulting from the conversion of
Acceptances pursuant to Section 4.1(b), the proceeds of such Canadian Term Loans
made by each Canadian Lender, together with such additional funds of the
Canadian Borrower as may be necessary, shall be applied by it to repay the
maturing Acceptance being converted into such Canadian Term Loans.
4.3 Reduction of Canadian Facility; Repayment of Canadian Term
Loans. (a) The amount available under the Canadian Term Loans and the
Acceptances and Acceptance Notes shall be permanently reduced in 24 consecutive
quarterly installments, commencing on August 31, 1998, each of which shall be in
an amount equal to the equivalent in Canadian Dollars (determined in accordance
with Section 4.3(b)) of the amount set forth below opposite such installment
date (each, a "Canadian Facility Amortization Date"):
52
46
Installment Principal Amount
----------- ----------------
August 31, 1998 US$2,750,000
November 30, 1998 2,750,000
February 28, 1999 2,750,000
May 31, 1999 2,750,000
August 31, 1999 2,750,000
November 30, 1999 2,750,000
February 28, 2000 2,750,000
May 31, 2000 2,750,000
August 31, 2000 3,000,000
November 30, 2000 3,000,000
February 28, 2001 3,000,000
May 31, 2001 3,000,000
August 31, 2001 3,000,000
November 30, 2001 3,000,000
February 28, 2002 3,000,000
May 31, 2002 3,000,000
August 31, 2002 3,000,000
November 30, 2002 3,000,000
February 28, 2003 3,000,000
May 31, 2003 3,000,000
August 31, 2003 3,000,000
November 30, 2003 3,000,000
February 28, 2004 3,000,000
Canadian Facility
Termination Date 3,000,000
Accordingly, on each Canadian Facility Amortization Date, the
Canadian Borrower unconditionally agrees to pay to the Canadian Administrative
Agent, for the account of each Canadian Lender, a principal amount of the
Canadian Term Loans of such Canadian Lender, which, together with the face
amount of Acceptances created by such Canadian Lender that mature and are being
repaid on such date (and not replaced with other Acceptances or converted into
Canadian Term Loans), is equal to such Canadian Lender's Canadian Term Loan
Commitment Percentage of the amount set forth opposite such Canadian Facility
Amortization Date above.
53
47
(b) Not later than three Business Days prior to the Closing
Date, the Canadian Administrative Agent and the Canadian Borrower will
determine, based on then-prevailing market conditions, the exchange rate for
conversion into Canadian Dollars of the U.S. Dollar amount of the Canadian Term
Loan Commitments and the U.S. Dollar amount of each installment set forth in
Section 4.3(a), which determination shall be conclusive and binding on all
parties hereto. The Canadian Administrative Agent will advise the Canadian
Lenders of the results of such determination, and specify the amount in Canadian
Dollars of each Canadian Lender's Canadian Term Loan Commitment, prior to or
concurrently with the notice of borrowing given to the Canadian Lenders pursuant
to Section 4.2.
4.4 Evidence of Debt. (a) Each Canadian Lender shall maintain
in accordance with its usual practice an account or accounts evidencing
indebtedness of the Canadian Borrower to such Canadian Lender resulting from the
Canadian Term Loans of such Canadian Lender, including the amounts of principal
and interest payable thereon and paid to such Canadian Lender from time to time
under this Agreement.
(b) The Canadian Administrative Agent (and the General
Administrative Agent) shall maintain the Register pursuant to Section 14.6(d),
and a subaccount therein for each Canadian Lender, in which shall be recorded
(i) the amount of each Canadian Term Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Canadian Borrower to each Canadian Lender hereunder in respect of the Canadian
Term Loans and (iii) both the amount of any sum received by the Canadian
Administrative Agent hereunder from the Canadian Borrower in respect of the
Canadian Term Loans and each Canadian Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Canadian Lender maintained pursuant to Section 4.4(a) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Canadian Borrower therein recorded; provided,
however, that the failure of any Canadian Lender or the Canadian Administrative
Agent to maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of the Canadian Borrower to repay (with
applicable interest) the Canadian Term Loans made to the Canadian Borrower by
such Canadian Lender in accordance with the terms of this Agreement.
(d) The Canadian Borrower agrees that, upon request to the
Canadian Administrative Agent by any Canadian Lender, it will execute and
deliver to such Canadian Lender a promissory note of the Canadian Borrower
evidencing the Canadian Term Loans of such Canadian Lender, substantially in the
form of Exhibit E with appropriate insertions as to date and principal amount
(each, a "Canadian Term Loan Note").
54
48
SECTION 5. AMOUNT AND TERMS OF THE ACCEPTANCES
5.1 Acceptance Commitments. (a) Pursuant to the Existing
Credit Agreement, the Canadian Lenders (as defined under the Existing Credit
Agreement, the "Existing Acceptance Lenders") have created (i) the Acceptances
described on Schedule 1.1D (the "Existing Acceptances"), which from and after
the Closing Date shall continue to be "Acceptances" hereunder and (ii) the
Acceptances described on Schedule 1.1E (the "Specified Acceptances"), which will
be repaid in full on the Closing Date . As of the Closing Date, The
Toronto-Dominion Bank, as a Canadian Lender, shall have entered into an
indemnity agreement with the Existing Acceptance Lenders with respect to amounts
to be paid to the Existing Acceptance Lenders in respect of the Existing
Acceptances and, as of the Closing Date, The Toronto-Dominion Bank shall be
deemed to have created all of the Existing Acceptances. In the event that any
Acceptances are outstanding on the date on which any Canadian Lender other than
The Toronto-Dominion Bank becomes a party to this Agreement, such Canadian
Lender shall enter into an indemnity agreement with The Toronto-Dominion Bank
with respect to such Existing Acceptances, in form and substance satisfactory to
such Canadian Lender and The Toronto-Dominion Bank.
(b) Subject to the terms and conditions hereof, each Canadian
Lender severally agrees during the Canadian Facility Commitment Period to
convert Canadian Term Loans made by such Canadian Lender to Acceptances in an
aggregate face amount not to exceed the aggregate principal amount of such
Canadian Term Loans; provided, that no such conversion shall occur if, (i) after
giving effect to such conversion and to the repayment of any portion of maturing
Acceptances not being so converted, the Total Aggregate Canadian Term Loan
Outstandings would exceed the Canadian Facility Maximum Amount at such time or
(ii) prior to the maturity of such Acceptances a Canadian Facility Amortization
Date will occur and, after giving effect to the reduction in the Canadian
Facility Maximum Amount on such date, the Total Aggregate Canadian Term Loan
Outstandings will exceed the Canadian Facility Maximum Amount. Notwithstanding
the foregoing, during the period prior to completion of the Syndication of the
Facilities, the Canadian Borrower will consult with the Canadian Administrative
Agent with respect to any request for Acceptances, and during such period no
Acceptance will be created having a maturity later than the date on which the
syndication of the Facilities is expected to be completed.
5.2 Creation of Acceptances. (a) The Canadian Borrower may
request the creation of Acceptances hereunder by submitting to the Canadian
Administrative Agent at its office in Canada specified in Section 14.2 prior to
11:00 a.m., Toronto time, two Business Days prior to the requested Borrowing
Date, (i) a request for acceptances, substantially in the form of Exhibit A-2
(each, a "Request for Acceptances") completed in a manner and in form and
substance reasonably satisfactory to the Canadian Administrative Agent and
specifying, among other things, the Borrowing Date, term in months and amount of
the Drafts to be accepted and discounted, and (ii) such other certificates,
documents and other papers and information as the Canadian Administrative Agent
may reasonably request. Upon receipt of any such Request for Acceptances, the
Canadian Administrative Agent shall promptly notify
55
49
each Canadian Lender of details thereof, including each Canadian Lender's share
of the amount of Drafts to be accepted and discounted.
(b) The Canadian Borrower hereby irrevocably authorizes each
Canadian Lender to draw Drafts on such Canadian Lender, in the name of and on
behalf of the Canadian Borrower, and to complete such Drafts in accordance with
the Requests for Acceptances submitted from time to time pursuant to Section
5.2(a). Drafts so completed and signed on behalf of the Canadian Borrower by any
Canadian Lender shall bind the Canadian Borrower as fully and effectively as if
so performed by an authorized officer of the Canadian Borrower. Any executed
Drafts which are held by any Canadian Lender need only be held in safekeeping
with the same degree of care as if they were such Canadian Lender's own property
and such Canadian Lender was keeping them at the place at which they are to be
held. The Canadian Borrower shall, by written notice to the Canadian
Administrative Agent, designate the persons authorized to sign Requests for
Acceptance. Neither the Canadian Administrative Agent nor any Canadian Lender
nor any of their respective directors, officers, employees or representatives
shall be liable for any action taken or omitted to be taken by any of them under
this Section 5 except for its own gross negligence or willful misconduct.
(c) Each Request for Acceptances made by or on behalf of the
Canadian Borrower hereunder shall contain a request for Acceptances denominated
in Canadian Dollars and having an aggregate undiscounted face amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business Day
which is not less than one month and not more than six months after the date
thereof; provided, that no Acceptance shall mature after the Canadian Facility
Termination Date.
(d) Not later than 12:00 noon, Toronto time, on the Borrowing
Date specified in the relevant Request for Acceptances, each Canadian Lender
will, in accordance with such Request for Acceptances, (i) sign each Draft on
behalf of the Canadian Borrower pursuant to Section 5.3(b), (ii) complete the
date, amount and maturity of each Draft to be accepted, (iii) accept such Drafts
and give notice to the Canadian Administrative Agent of such acceptance and (iv)
upon such acceptance, purchase such Acceptances to the extent contemplated by
Section 5.3.
5.3 Purchase of Acceptances. (a) Each Canadian Lender hereby
agrees, on the terms and subject to the conditions set forth in this Agreement,
to purchase Acceptances created by it on the Borrowing Date with respect thereto
for the applicable Acceptance Purchase Price and to notify the Canadian
Administrative Agent that such Draft has been accepted and purchased by such
accepting Canadian Lender.
(b) In the event that the Canadian Administrative Agent
receives a Request for Acceptances to be created upon conversion of Canadian
Term Loans pursuant to Section 5.1, then the Canadian Borrower shall pay on the
requested Borrowing Date to the Canadian
56
50
Administrative Agent, for the account of the Canadian Lenders, the principal
amount of the then outstanding Canadian Term Loans being so converted, and each
Canadian Lender shall accept and purchase the Canadian Borrower's Drafts having
an aggregate face amount not greater than the principal amount of the Canadian
Term Loans of such Canadian Lender which are then being converted (it being
understood and agreed that for the purposes of this Section 5.3(b), such payment
by the Canadian Borrower of such outstanding Canadian Term Loans may be in part
from the Acceptance Purchase Price of such Drafts); provided that, following the
occurrence and during the continuance of a Default or an Event of Default, no
Acceptances may be created.
(c) Acceptances purchased by any Canadian Lender may be held
by it for its own account until maturity or sold by it at any time prior thereto
in the relevant market therefor in Canada in such Canadian Lender's sole
discretion.
5.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee on the
undiscounted face amount of such Acceptance, computed at the rate per annum in
effect on such Borrowing Date (determined in accordance with the Pricing Grid)
for the period from and including the Borrowing Date with respect to such
Acceptance to but not including the maturity of such Acceptance. On the Closing
Date, in consideration of the obligations undertaken by The Toronto-Dominion
Bank pursuant to the indemnity agreement entered into pursuant to the second
sentence of Section 5.1(a), the Canadian Borrower agrees to pay to The
Toronto-Dominion Bank an amount in respect of each Existing Acceptance equal to
(i) the amount of stamping fee that would have been payable under this Section
in respect of such Existing Acceptance if such Existing Acceptance had been
created on the Closing Date with the maturity date set forth in such Existing
Acceptance less (ii) the amount received or to be received by The
Toronto-Dominion Bank from the relevant Existing Acceptance Lender in respect of
such Existing Acceptance pursuant to the provisions of such indemnity agreement.
5.5 Acceptance Reimbursement Obligations. (a) The Canadian
Borrower hereby unconditionally agrees to pay to the Canadian Administrative
Agent for the account of each Canadian Lender, on the maturity date (whether at
stated maturity, by acceleration or otherwise) for each Acceptance created by
such Canadian Lender, the aggregate undiscounted face amount of each such
then-maturing Acceptance. Without limiting the generality of the foregoing, the
Canadian Borrower hereby unconditionally agrees to pay to the Canadian
Administrative Agent for the account of The Toronto-Dominion Bank (and each
other Canadian Lender which has an interest therein pursuant to an indemnity
agreement entered into pursuant to the last sentence of Section 5.1(a)) on the
maturity date (whether at stated maturity, by acceleration or otherwise) for
each Existing Acceptance, the aggregate undiscounted face amount of each such
then-maturing Existing Acceptance.
(b) The obligation of the Canadian Borrower to reimburse the
Canadian Lenders for then-maturing Acceptances may be satisfied by the Canadian
Borrower by:
57
51
(i) paying to the Canadian Administrative Agent, for the
account of the Canadian Lenders, an amount in Canadian Dollars and in
immediately available funds equal to the aggregate undiscounted face
amount of all Acceptances which are then maturing by 12:00 noon,
Toronto time, on such maturity date; provided that the Canadian
Borrower shall have given not less than two Business Days' prior notice
to the Canadian Administrative Agent (which shall promptly notify each
Canadian Lender thereof) of its intent to reimburse the Canadian
Lenders in the manner contemplated by this clause (i); or
(ii) having new Drafts accepted and purchased by the
Canadian Lenders in the manner contemplated by Sections 5.2 and 5.3 in
substitution for the then-maturing Acceptances; provided that (A) the
Canadian Borrower shall have delivered to the Canadian Administrative
Agent (which shall promptly provide a copy thereof to each Canadian
Lender) a duly completed Request for Acceptances not later than 11:00
a.m., Toronto time, two Business Days prior to such maturity date,
together with the documents, instruments, certificates and other papers
and information contemplated by Sections 5.2(a)(ii) and 5.2(a)(iii),
(B) each Canadian Lender shall retain the Acceptance Purchase Price for
the Acceptance created by it and apply such Acceptance Purchase Price
to the Acceptance Reimbursement Obligations of the Canadian Borrower in
respect of the maturing Acceptance created by such Canadian Lender, (C)
when the Acceptance Purchase Price so retained by such Canadian Lender
is less than the undiscounted face amount of the then-maturing
Acceptance, the Canadian Borrower shall have made arrangements
reasonably satisfactory to such Canadian Lender for payment of such
deficiency, (D) if any Default or Event of Default has occurred and is
then continuing, the Request for Acceptances shall be deemed to be a
request to convert such then-maturing Acceptances into Canadian Term
Loans in an aggregate amount equal to the undiscounted face amount of
the Acceptances requested, (E) no such Acceptance shall be created if,
after giving effect thereto, the Aggregate Canadian Term Loan
Outstandings would exceed the Canadian Facility Maximum Amount and (F)
the Canadian Borrower shall request Acceptances in amounts and with
maturity dates such that the Aggregate Canadian Term Loan Outstandings
can be reduced to an amount not greater than the Canadian Facility
Maximum Amount on each Canadian Facility Amortization Date; or
(iii) to the extent that the Canadian Borrower has not
given to the Canadian Administrative Agent a notice contemplated by
clause (i) or (ii) above, then the Canadian Borrower shall be deemed to
have requested a conversion pursuant to Section 4.1(b) of such
then-maturing Acceptances into Canadian Term Loans in an aggregate
principal amount equal to the undiscounted face amount of such
then-maturing Acceptances. The Borrowing Date with respect to such
conversion shall be the maturity date for such Acceptances. Except to
the extent that any of the events contemplated by clause (i) or (ii) of
paragraph (f) of Section 11 with respect to the Canadian Borrower has
occurred and is then continuing (in which case the Canadian Borrower
shall be obligated to pay to each Canadian Lender the undiscounted face
58
52
amount of the Acceptances created by such Canadian Lender which are
then maturing), each Canadian Lender shall convert the then-maturing
Acceptances into Canadian Term Loans as contemplated by this Section
5.5(b)(iii) regardless of whether the conditions precedent to borrowing
set forth in this Agreement are then satisfied. The proceeds of any
Canadian Term Loans made pursuant to this Section 5.5(b)(iii) shall be
retained by the Canadian Lenders and applied by them to the Acceptance
Reimbursement Obligations of the Canadian Borrower in respect of the
then-maturing Acceptances.
(c) In no event shall the Canadian Borrower claim from any
Canadian Lender any grace period with respect to the payment at maturity of any
Acceptances created by such Canadian Lender pursuant to this Agreement.
5.6 Acceptances to be Allocated in order to be Created
Ratably. The Canadian Borrower hereby agrees that each Request for Acceptances,
reimbursement of Acceptances and conversion of Canadian Term Loans to
Acceptances shall be made in a manner so that any such Request for Acceptances,
reimbursement or conversion shall apply ratably to all Canadian Lenders in
accordance with their respective Canadian Term Loan Commitment Percentages. In
the event that the aggregate undiscounted face amount of Acceptances requested
by the Canadian Borrower to be created by all Canadian Lenders hereunder
pursuant to any Request for Acceptances is an amount which, if divided ratably
among the Canadian Lenders in accordance with their respective Canadian Term
Loan Commitment Percentages, would not result in each Canadian Lender accepting
a Draft which has an undiscounted face amount equal to C$100,000 or a whole
multiple of C$100,000 in excess thereof, then the Canadian Administrative Agent
is authorized by the Canadian Borrower and the Canadian Lenders to allocate
among the Canadian Lenders the Acceptances to be issued in such manner and
amounts as the Canadian Administrative Agent may, in its sole discretion, acting
reasonably, consider necessary, rounding up or down, so as to ensure that no
Canadian Lender is required to accept a Draft for a fraction of $100,000 and, in
such event, the Canadian Lenders' ratable share with respect to such Acceptances
shall be adjusted accordingly.
5.7 Special Provisions Relating to Acceptance Notes. (a) The
Canadian Borrower and each Canadian Lender hereby acknowledge and agree that
from time to time certain Canadian Lenders may not be authorized to or may, as a
matter of market availability, elect not to accept Drafts, and the Canadian
Borrower and each Canadian Lender agree that any such Canadian Lender may
purchase Acceptance Notes of the Canadian Borrower in accordance with the
provisions of Section 5.7(b) in lieu of creating Acceptances for its account.
(b) In the event that any Canadian Lender described in Section
5.7(a) above is unable to, or elects as a matter of market availability not to,
create Acceptances hereunder, such Canadian Lender shall not create Acceptances
hereunder, but rather, if the Canadian Borrower requests the creation of such
Acceptances, the Canadian Borrower shall deliver to such Canadian Lender
non-interest bearing promissory notes (each, an "Acceptance Note") of the
Canadian Borrower, substantially in the form of Exhibit G, having the same
maturity as
59
53
the Acceptances to be created and in an aggregate principal amount equal to the
undiscounted face amount of such Acceptances. Each such Canadian Lender hereby
agrees to purchase Acceptance Notes from the Canadian Borrower at a purchase
price equal to the Acceptance Purchase Price which would have been applicable if
a Draft in the same aggregate face amount as the principal amount of its
Acceptance Notes had been accepted by it (less any stamping fee which would have
been paid pursuant to Section 5.4 if such Lender had created an Acceptance) and
such Acceptance Notes shall be governed by the provisions of this Section 5 as
if they were Acceptances.
SECTION 6. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT
6.1 Commitment Fees, etc. (a) The Company agrees to pay to the
General Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each February, May, August and November and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Company agrees to pay to the General Administrative
Agent for the account of each of the U.S. Term Loan Lenders a commitment fee for
the period from and including the Closing Date to the last day of U.S. Term Loan
Commitment Period, computed at the Commitment Fee Rate on the average daily
amount of the unutilized U.S. Term Loan Commitments of such Lender during such
period, payable quarterly in arrears on the last day of each February, May,
August and November and on the last day of the U.S. Term Loan Commitment Period,
commencing on the first of such dates to occur after the date hereof.
(c) The Company agrees to pay to the General Administrative
Agent and the Arranger the fees in the amounts and on the dates previously
agreed to in writing by the Company and the General Administrative Agent and the
Arranger.
6.2 Optional Prepayments. (a) Subject to the provisions of
Section 6.3(i), the Company may at any time and from time to time prepay the
U.S. Loans, in whole or in part, without premium or penalty, upon at least three
Business Days' irrevocable notice to the General Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
LIBOR Loans or Base Rate Loans, provided, that if a LIBOR Loan is prepaid on any
day other than the last day of the Interest Period applicable thereto, the
Company shall also pay any amounts owing pursuant to Section 6.13. Upon receipt
of any such notice, the General Administrative Agent shall promptly notify each
relevant U.S. Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein, together
with any amounts payable pursuant to Section 6.13 and, except in
60
54
the case of Revolving Credit Loans that are Base Rate Loans, accrued interest to
such date on the amount prepaid. Amounts prepaid on account of the U.S. Term
Loans may not be reborrowed. Partial prepayments of U.S. Loans shall be in an
aggregate principal amount of not less than $5,000,000 and whole multiples of
$1,000,000 in excess thereof.
(b) Subject to Section 6.3(i), the amount of each optional
prepayment of the U.S. Term Loans under any Facility shall be applied to reduce
the then remaining installments of the U.S. Term Loans under such Facility, pro
rata based upon the then remaining number of installments thereof, after giving
effect to all prior reductions thereto (i.e., each then remaining installment of
the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the
case may be, shall be reduced by an amount equal to the aggregate amount to be
applied to the Tranche A Term Loans, Tranche B Term Loans or Tranche C Term
Loans, as the case may be, divided by the number of the then remaining
installments for such Tranche A Term Loans, Tranche B Term Loans or Tranche C
Term Loans); provided, that if the amount to be so applied to any installment
would exceed the then remaining amount of such installment, then an amount equal
to such excess shall be applied to the next succeeding installment after giving
effect to all prior reductions thereto (including the amount of prepayments
theretofore allocated pursuant to the preceding portion of this sentence).
(c) The Canadian Borrower may at any time and from time to
time prepay the Canadian Term Loans, in whole or in part, without premium or
penalty, upon at least four Business Days' irrevocable notice to the Canadian
Administrative Agent, specifying the date and amount of prepayment. Upon receipt
of any such notice, the Canadian Administrative Agent shall promptly notify the
General Administrative Agent and each Canadian Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid. Amounts prepaid on account of the Canadian Term Loans may not be
reborrowed except as provided in Section 5. Partial prepayments of Canadian Term
Loans shall be in an aggregate principal amount of not less than C$5,000,000 and
whole multiples of C$1,000,000 in excess thereof.
(d) The amount of each optional prepayment of the Canadian
Term Loans shall be applied to reduce the then remaining installments of the
Canadian Term Loans pro rata based upon the then remaining number of
installments thereof, after giving effect to all prior reductions thereto (i.e.,
each then remaining installment of the Canadian Term Loans shall be reduced by
an amount equal to the aggregate amount to be applied to the Canadian Term Loans
divided by the number of the then remaining installments for such Canadian Term
Loans); provided, that if the amount to be so applied to any installment would
exceed the then remaining amount of such installment, then an amount equal to
such excess shall be applied to the next succeeding installment after giving
effect to all prior reductions thereto (including the amount of prepayments
theretofore allocated pursuant to the preceding portion of this sentence).
61
55
6.3 Mandatory Prepayments and Commitment Reductions. (a) If
after the Closing Date any Capital Stock shall be sold or issued by Holdings,
the Company or any of its Subsidiaries (including, without limitation, any sales
pursuant to the exercise of warrants, but excluding (i) any issuance of common
stock in payment of interest under the Seller Note, (ii) any Permitted Employee
Stock Issuances, to the extent the proceeds of such Permitted Employee Stock
Issuances are contributed by Holdings to the Company and (iii) the issuance of
common stock of Holdings as a part of the consideration for the Exchange Offer
and the Merger), an amount equal to 50% of the Net Cash Proceeds thereof shall
be applied within three Business Days after the date of receipt of such Net Cash
Proceeds toward the prepayment of the Term Loans and Acceptances and the
reduction of the Revolving Credit Commitments as set forth in Section 6.3(e).
(b) If after the Closing Date any Indebtedness shall be issued
or incurred by Holdings, the Company or any of its Subsidiaries (excluding any
Indebtedness (other than Indebtedness evidenced by High Yield Notes) incurred in
accordance with Section 10.2 as in effect on the date of this Agreement), an
amount equal to 100% of the Net Cash Proceeds thereof shall be applied within
three Business Days after the date of such issuance or incurrence toward the
prepayment of the Term Loans and the Acceptances and the reduction of the
Revolving Credit Commitments (or, if required by Section 6.3(e), reduction of
the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments)
as set forth in Section 6.3(e).
(c) If after the Closing Date the Company or any of its
Subsidiaries (other than the Canadian Borrower or any of its Subsidiaries) shall
receive Net Cash Proceeds from any Asset Sale (including, without limitation,
any Net Cash Proceeds from any Dispositions permitted by clauses (e) and (f) of
Section 10.6 to the extent such proceeds exceed $225,000,000 in the aggregate)
or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be
applied on such date toward the prepayment of the U.S. Term Loans and the
reduction of the Revolving Credit Commitments as set forth in Section 6.3(f). If
after the Closing Date the Canadian Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event, an amount equal
to 100% of such Net Cash Proceeds shall be applied on such date toward the
prepayment of the Total Aggregate Canadian Term Loan Outstandings and the
permanent reduction of the Canadian Facility Maximum Amount as set forth in
Section 6.3(g). Notwithstanding the foregoing, (i) no such prepayment or
reduction shall be required in respect of Asset Sales for which the Net Cash
Proceeds in any fiscal year aggregate up to (but do not exceed) $5,000,000 (in
the aggregate for the Company and its Subsidiaries, including the Canadian
Borrower and its Subsidiaries) and (ii) no such prepayment or reduction shall be
required in respect of any Asset Sales or any Recovery Event if the Company
delivers a Reinvestment Notice in respect of each such Asset Sale and Recovery
Event; provided, that, on each Reinvestment Prepayment Date, an amount equal to
the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied toward the prepayments and reductions required by Section
6.3(f) or 6.3(g), as applicable; and provided, further, that no Reinvestment
Notice shall be required in respect of
62
56
Asset Sales for which no prepayment is required pursuant to the foregoing clause
(i) of this sentence.
(d) If, for any fiscal year of Holdings commencing with the
fiscal year ending August 31, 1999, Holdings shall have Excess Cash Flow
(calculated without taking into account the Canadian Borrower and its
Subsidiaries), the Company shall, on the relevant Excess Cash Flow Application
Date, apply 75% of such Excess Cash Flow toward the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth in Section
6.3(f). If, for any fiscal year of the Canadian Borrower commencing with the
fiscal year ending August 31, 1999, the Canadian Borrower shall have Excess Cash
Flow, the Canadian Borrower shall, on the relevant Excess Cash Flow Application
Date, apply 75% of such Excess Cash Flow toward the prepayment of the Total
Aggregate Canadian Term Loan Outstandings and the permanent reduction of the
Canadian Facility Maximum Amount as set forth in Section 6.3(g). Each such
prepayment and reduction shall be made on a date (an "Excess Cash Flow
Application Date") no later than five days after the earlier of (i) the date on
which the financial statements of Holdings referred to in Section 9.1(a), for
the fiscal year with respect to which such prepayment is made, are required to
be delivered to the Lenders and (ii) the date such financial statements are
actually delivered. Notwithstanding the foregoing, if for any fiscal year the
Excess Cash Flow of one of the Canadian Borrower or Holdings (calculated without
taking into account the Canadian Borrower and its Subsidiaries), as the case may
be, is a negative number, and the Excess Cash Flow of the other such Person is a
positive number, the amount of the prepayment and reduction required by this
Section 6.3(d) in respect of the Company (if Holdings is the Person having
positive Excess Cash Flow) or the Canadian Borrower (if the Canadian Borrower is
the Person having positive Excess Cash Flow) for such fiscal year shall be
reduced by the amount of the negative Excess Cash Flow of the other such Person
for such fiscal year.
(e) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 6.3(a) or 6.3(b) shall be
applied, first, to the prepayment of the U.S. Term Loans and Total Aggregate
Canadian Term Loan Outstandings, ratably in accordance with the outstanding
amount of each Facility and, second, to reduce permanently the Revolving Credit
Commitments. Notwithstanding the preceding sentence, any prepayment made
pursuant to Section 6.3(b) with the Net Cash Proceeds of the High Yield Offering
shall be applied, first, to prepay the Tranche B-1 Term Loans and the Tranche
C-1 Term Loans, ratably in accordance with the outstanding amounts thereof (or,
if the High Yield Offering is consummated prior to the Merger Date, such amount
shall be applied to permanently reduce the Tranche B-1 Term Loan Commitments and
the Tranche C-1 Term Loan Commitments) and, second, in accordance with the
preceding sentence. Any such reduction of the Revolving Credit Commitments shall
be accompanied by prepayment of the Revolving Credit Loans to the extent, if
any, that the Total Revolving Extensions of Credit exceed the amount of the
aggregate Revolving Credit Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Credit Loans then outstanding is less
than the amount of such excess (because L/C Obligations constitute a portion
thereof), the Company shall not be required to reduce any outstanding Letters of
Credit. The application of any such prepayment
63
57
of U.S. Term Loans shall be made first to Base Rate Loans and second to LIBOR
Loans. The application of any such prepayment to Total Aggregate Canadian Term
Loan Outstandings shall be made first to Canadian Term Loans and second (but
only on the maturity date thereof) to Acceptances. Each such prepayment of the
Loans (except in the case of Revolving Credit Loans that are Base Rate Loans)
shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(f) Amounts to be applied in connection with prepayments and
reductions made pursuant to Section 6.2(c), the first sentence of Section 6.3(c)
or the first sentence of Section 6.3(d) shall be applied, first, to the
prepayment of the U.S. Term Loans, ratably in accordance with the respective
outstanding amounts of the Facilities, and, second, to reduce permanently the
Revolving Credit Commitments. Any such reduction of the Revolving Credit
Commitments shall be accompanied by prepayment of the Revolving Credit Loans to
the extent, if any, that the Total Revolving Extensions of Credit exceed the
amount of the aggregate Revolving Credit Commitments as so reduced, provided
that if the aggregate principal amount of Revolving Credit Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Company shall not be required to reduce any
outstanding Letters of Credit. The application of any such prepayment of U.S.
Term Loans shall be made first to Base Rate Loans and second to LIBOR Loans.
Each such prepayment of the Loans (except in the case of Revolving Credit Loans
that are Base Rate Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid.
(g) Amounts to be applied in connection with prepayments and
reductions made pursuant to Section 6.2(c), the second sentence of Section
6.3(c) or the second sentence of Section 6.3(d) shall be applied to the
reduction of the Total Aggregate Canadian Term Loan Outstandings and the
simultaneous and automatic reduction in an equal amount of the Canadian Facility
Maximum Amount. The application of any such prepayment to Total Aggregate
Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and
second (but only on the maturity date thereof) to Acceptances. Each such
prepayment of the Canadian Term Loans shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
(h) The amount of each prepayment of the Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans or Canadian Term Loans, as the case
may be, required pursuant to this Section 6.3 shall be applied to reduce the
then remaining installments of the Term Loans under the relevant Facility, pro
rata based upon the then remaining outstanding principal amount of such
installments.
(i) Notwithstanding anything in Section 6.2(a), Section 6.3(e)
or Section 6.3(f) to the contrary and provided that there are Tranche A Term
Loans and/or Total Aggregate Canadian Term Loan Outstandings then outstanding,
with respect to the amount of any optional prepayment described in Section
6.2(a) or mandatory prepayment described in Section 6.3 that is allocated to the
Tranche B Term Loans or Tranche C Term Loans (such amounts,
64
58
the "Tranche B Prepayment Amount" and the "Tranche C Prepayment Amount",
respectively), the Company will, in lieu of applying such amount to the
prepayment of Tranche B Term Loans and Tranche C Term Loans, respectively, as
provided in Section 6.2(a) or Section 6.3(e) or (f), as the case may be, on the
date specified in Section 6.2(a) or Section 6.3, as the case may be, for such
prepayment, give the General Administrative Agent telephonic notice (promptly
confirmed in writing) requesting that the General Administrative Agent prepare
and provide to each Tranche B Lender and Tranche C Lender a notice (each, a
"Prepayment Option Notice") as described below. As promptly as practicable after
receiving such notice from the Company, the General Administrative Agent will
send to each Tranche B Lender and Tranche C Lender a notice (a "Prepayment
Option Notice"), which shall be in the form of Exhibit H, and shall include an
offer by the Company to prepay on the date (each a "Proposed Prepayment Date")
that is 15 days after the date of the Prepayment Option Notice, the Tranche B
Term Loans or Tranche C Term Loans, as the case may be, of such Lender by an
amount equal to the portion of the Tranche B Prepayment Amount or Tranche C
Prepayment Amount indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans or Tranche C Term Loans, as the
case may be. On the Proposed Prepayment Date, (A) the Company shall pay to the
General Administrative Agent the aggregate amount necessary to prepay that
portion of the outstanding Tranche B Term Loans or Tranche C Term Loans, as the
case may be, in respect of which Tranche B Lenders and Tranche C Lenders have
accepted prepayment as described above (such Lenders, the "Accepting Lenders"),
and such amount shall be applied to reduce the Tranche B Prepayment Amount and
Tranche C Prepayment Amount, as applicable, with respect to each Accepting
Lender and (B) the Company shall pay to the General Administrative Agent an
amount equal to 100% of the portion of the Tranche B Prepayment Amount and
Tranche C Prepayment Amount not accepted by the Accepting Lenders, and such
amount shall be applied (i) in the case of optional prepayments pursuant to
Section 6.2, to prepay the Tranche A Term Loans and (ii) in the case of
mandatory prepayments, to the other Facilities required to be prepaid pursuant
to Section 6.3(e) or Section 6.3(f), as the case may be, ratably in accordance
with the outstanding amounts thereof.
6.4 Conversion and Continuation Options. (a) The Company may
elect from time to time to convert LIBOR Loans to Base Rate Loans, by giving the
General Administrative Agent at least two Business Days' prior irrevocable
notice of such election; provided that any such conversion of LIBOR Loans may
only be made on the last day of an Interest Period with respect thereto. The
Company may elect from time to time to convert Base Rate Loans to LIBOR Loans by
giving the General Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to LIBOR
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the General Administrative
Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding LIBOR Loans and Base Rate Loans may be converted as provided herein,
provided that (i) no Base Rate Loan under a particular Facility may be converted
into a LIBOR Loan when any Event of Default has occurred and is continuing and
the General Administrative Agent has or the Majority Facility Lenders in respect
of such Facility have determined in its or their sole discretion that such a
conversion is
65
59
not appropriate and (ii) no Loan may be converted into a LIBOR Loan after the
date that is one month prior to the final maturity date of such Facility.
(b) Any LIBOR Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving notice to the General Administrative Agent, in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no LIBOR Loan under a particular Facility may be continued as such
(i) when any Event of Default has occurred and is continuing and the General
Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion that such a
continuation is not appropriate or (ii) after the date that is one month prior
to the final maturity date of such Facility and provided, further, that if the
Company shall fail to give such notice or if such continuation is not permitted
such Loans shall be automatically converted to Base Rate Loans on the last day
of such then expiring Interest Period. Upon receipt of any such notice the
General Administrative Agent shall promptly notify each relevant Lender thereof.
6.5 Minimum Amounts of Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
LIBOR Loans hereunder and all selections of Interest Periods hereunder shall be
in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the LIBOR Loans comprising
each Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
6.6 Interest Rates and Payment Dates. (a) Each LIBOR Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the LIBOR Rate determined for such day plus
the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) Each Canadian Term Loan shall bear interest at a rate per
annum equal to the Canadian Dollar Prime Rate plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any Reimbursement
Obligation or Acceptance Reimbursement Obligation or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans, the Reimbursement
Obligations or Acceptance Reimbursement Obligation and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (w) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or, if higher, (x) in the case of Reimbursement Obligations, the rate
applicable to Base Rate Loans under the Revolving Credit Facility plus 2%, (y)
in the case of Acceptance Reimbursement Obligations, the rate applicable to
66
60
Revolving Credit Loans that are LIBOR Loans plus 2% or (z) in the case of any
such overdue interest, commitment fee or other amount, the rate described in
paragraph (b) of this subsection (paragraph (c) in the case of interest on
Canadian Term Loans) plus 2%, in each case from the date of such non-payment
until such overdue principal, interest, commitment fee or other amount is paid
in full (as well after as before judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
Section 6.6 shall be payable from time to time on demand.
6.7 Computation of Interest and Fees. (a) Commitment fees,
Acceptance stamping fees and, whenever it is calculated on the basis of the
Prime Rate or the Canadian Dollar Prime Rate, interest shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and letter of credit commissions and fronting
fees shall be calculated on the basis of a 360-day year for the actual days
elapsed. The General Administrative Agent shall as soon as practicable notify
the Company and the U.S. Lenders of each determination of a LIBOR Rate. Any
change in the interest rate on a Loan resulting from a change in the Base Rate,
the Canadian Dollar Prime Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The General Administrative Agent shall as soon as practicable
notify the Company and the U.S. Lenders of the effective date and the amount of
each such change in the Base Rate. For purposes of the Interest Act (Canada),
whenever any interest under this Agreement is calculated using an annual rate
based on a period which is less than the actual number of days in a year (the
"Lesser Period"), such rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (i) the applicable rate based on
such Lesser Period, (ii) multiplied by the actual number of days in the calendar
year in which the period for which such interest is payable ends, and (iii)
divided by the number of days in such Lesser Period. The rates of interest
specified in this Agreement are nominal rates and all interest payments and
computations are to be made without allowance or deduction for deemed
reinvestment of interest.
(b) Each determination of an interest rate by the General
Administrative Agent or the Canadian Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and
the Lenders in the absence of manifest error.
(c) If any Canadian Reference Lender shall for any reason no
longer have a Canadian Loan Commitment or any Canadian Term Loans, such Canadian
Reference Lender shall thereupon cease to be a Canadian Reference Lender, and
if, as a result, there shall only be one Schedule 1 Canadian Reference Lender or
Schedule 2 Canadian Reference Lender (as the case may be) remaining, the
Canadian Administrative Agent (after consultation with the Canadian Borrower and
the Schedule 1 Canadian Lender or the Schedule 2 Canadian Lender, as applicable)
shall, by notice to the Canadian Borrower and the Canadian Lenders, designate
another Schedule 1 Canadian Lender or Schedule 2 Canadian Lender, as applicable,
as a Schedule 1 Canadian Reference Lender or a Schedule 2 Canadian Reference
Lender, as
67
61
applicable, so that there shall at all times be at least two Schedule 1 Canadian
Reference Lenders and two Schedule 2 Canadian Reference Lenders.
(d) Each Canadian Reference Lender shall use its best efforts
to furnish quotations of rates to the Canadian Administrative Agent as
contemplated hereby. If any of the Canadian Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the Canadian Administrative Agent
upon its request, the rate of interest shall, subject to the provisions of
Section 6.8, be determined on the basis of the quotations of the remaining
Canadian Reference Lenders or Reference Lender.
6.8 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the General Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Company)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the LIBOR
Rate for such Interest Period, or
(b) the General Administrative Agent shall have received
notice from the Majority Facility Lenders in respect of the relevant
Facility that the LIBOR Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the Company and the relevant U.S. Lenders as soon as practicable
thereafter. If such notice is given (x) any LIBOR Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to LIBOR Loans
shall be continued as Base Rate Loans and (z) any outstanding LIBOR Loans under
the relevant Facility shall be converted, on the first day of such Interest
Period, to Base Rate Loans. Until such notice has been withdrawn by the General
Administrative Agent, no further LIBOR Loans under the relevant Facility shall
be made or continued as such, nor shall the Company have the right to convert
Loans under the relevant Facility to LIBOR Loans.
6.9 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Lenders hereunder shall be made pro rata according to the
respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages,
Tranche C Term Loan Percentages, Canadian Term Loan Commitment Percentages or
Revolving Credit Percentages, as the case may be, of the relevant Lenders;
provided, that, pursuant to the second sentence of Section 5.6, Acceptances may
be created in non-pro rata amounts if required to permit rounding to whole
multiples of C$100,000. Each borrowing of the U.S. Term Loans shall be made
first under the Tranche B Term Loan Commitments and the Tranche C Term Loan
Commitments, pro rata in accordance with the aggregate amounts of the Tranche B
Term Loan
68
62
Commitments and Tranche C Term Loan Commitments of the respective Lenders
(provided, that until all Tranche B Term Loan Commitments and Tranche C Term
Loan Commitments other than the Tranche B-1 Term Loan Commitments and the
Tranche C-1 Term Loan Commitments have been fully drawn, such pro rata
calculations shall be made without regard to the Tranche B-1 Term Loan
Commitments and Tranche C-1 Term Loan Commitments of the Lenders) and, second,
after the Tranche B Term Loan Commitments and the Tranche C Term Loan Commitment
have been utilized in full, under the Tranche A Term Loan Commitments pro rata
in accordance with the amounts of the Tranche A Term Loan Commitments of the
respective Lenders. Each payment by the Company on account of any commitment fee
and letter of credit commission and any reduction of the Revolving Credit
Commitments shall be made pro rata according to the respective Revolving Credit
Percentages of the Lenders. Each payment (other than any prepayment pursuant to
Section 6.2 or 6.3) shall be applied to the Facilities ratably in accordance
with the respective amounts due and owing under the Facilities.
(b) Each payment (including each prepayment) by the Company on
account of principal of and interest on the U.S. Term Loans under any Facility
shall be made pro rata according to the respective outstanding principal amounts
of the U.S. Term Loans under such Facility then held by the U.S. Term Loan
Lenders.
(c) Each payment (including each prepayment) by the Canadian
Borrower on account of principal of and interest on the Canadian Term Loans
shall be made pro rata according to the respective outstanding principal amounts
of the Canadian Term Loans then held by the Canadian Lenders. Each payment in
respect of Acceptance Reimbursement Obligations shall be made pro rata according
to the respective amounts of Acceptance Reimbursement Obligations then due and
owing to the Canadian Lenders.
(d) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(e) All payments (including prepayments) to be made by the
Company hereunder, whether on account of principal, interest, fees or otherwise
(other than payments under Section 13 in respect of the Canadian Borrower
Obligations and the Canadian Operating Facility Obligations), shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the General Administrative Agent, for the
account of the Lenders, at the General Administrative Agent's office specified
in Section 14.2, in Dollars and in immediately available funds. The General
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment by the Company hereunder
(other than payments on the LIBOR Loans) becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a LIBOR Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the
69
63
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension.
(f) All payments (including prepayments) to be made by the
Canadian Borrower hereunder (or by the Company under Section 13 in respect of
the Canadian Borrower Obligations and the Canadian Operating Facility
Obligations), whether on account of principal, interest, fees or otherwise,
shall be made without setoff or counterclaim and shall be made prior to 12:00
Noon, Toronto time, on the due date thereof to the Canadian Administrative
Agent, for the account of the Lenders, at the Canadian Administrative Agent's
office specified in Section 14.2, in Canadian Dollars and in immediately
available funds. The Canadian Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment by the Canadian Borrower hereunder becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day. In the case of any extension of any payment of principal pursuant
to the preceding sentence, interest thereon shall be payable at the then
applicable rate during such extension.
(g) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make available to such Administrative Agent the amount that would
constitute its share of the Loans or Acceptance Purchase Price to be disbursed
to a Borrower on such Borrowing Date, such Administrative Agent may assume that
such Lender is making such amount available to such Administrative Agent, and
such Administrative Agent may, in reliance upon such assumption, make available
to the applicable Borrower a corresponding amount. If such amount is not made
available to such Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to such Administrative Agent, on demand,
such amount with interest thereon at a rate equal to (i) in the case of amounts
to be made available in U.S. Dollars, the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the General Administrative Agent and (ii) in the case of amounts to be made
available in Canadian Dollars, the Canadian Administrative Agent's reasonable
estimate of its average daily cost of funds. A certificate of the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
submitted to any Lender with respect to any amounts owing under this Section
6.9(g) shall be conclusive in the absence of manifest error. If such Lender's
share of such amount is not made available to such Administrative Agent by such
Lender within three Business Days of such Borrowing Date, such Administrative
Agent shall also be entitled to recover such amount from the relevant Borrower
on demand with interest thereon at the rate per annum applicable to Base Rate
Loans under the relevant Facility (in the case of amounts to be made available
in U.S. Dollars), or Canadian Term Loans (in the case of amounts to be made
available in Canadian Dollars).
70
64
6.10 Illegality. (a) Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Loans as contemplated by this Agreement, (i) the
commitment of such U.S. Lender hereunder to make LIBOR Loans, continue LIBOR
Loans as such and convert Base Rate Loans to LIBOR Loans shall forthwith be
cancelled and (ii) such U.S. Lender's Loans then outstanding as LIBOR Loans, if
any, shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a LIBOR Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Company shall pay to such Lender such amounts, if any,
as may be required pursuant to Section 6.13.
(b) Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Canadian Lender to create or
maintain Acceptances as contemplated by this Agreement, (i) the commitment of
such Canadian Lender hereunder to accept Drafts, purchase Acceptances, continue
Acceptances as such and convert Canadian Term Loans to Acceptances shall
forthwith be cancelled until such time as it shall no longer be unlawful for
such Canadian Lender to create or maintain Acceptances and (ii) such Canadian
Lender's then outstanding Acceptances, if any, shall be converted automatically
to Canadian Term Loans on the respective maturities thereof or within such
earlier period as may be required by law.
6.11 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law, but with which similarly-situated entities generally comply)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit or any
LIBOR Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered
by Section 6.12 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBOR Rate; or
(iii) shall impose on such Lender any other condition,
the cost of which is not otherwise included in the determination of the
LIBOR Rate;
71
65
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or Acceptances or issuing or participating
in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the applicable Borrower shall promptly pay such
Lender such additional amount or amounts as will compensate such Lender on an
after-tax basis for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law, but with which
similarly-situated entities generally comply) from any Governmental Authority
made subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, the applicable Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender on an
after-tax basis for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the applicable
Borrower (with a copy to the General Administrative Agent and, if applicable,
the Canadian Administrative Agent) of the event by reason of which it has become
so entitled. A certificate as to any additional amounts payable pursuant to this
Section submitted by such Lender to such Borrower (with a copy to the General
Administrative Agent and, if applicable, the Canadian Administrative Agent)
shall be conclusive in the absence of manifest error. The agreements in this
Section shall survive the termination of this Agreement and the payment of the
Loans, the Acceptance Reimbursement Obligations, the Acceptance Notes and all
other amounts payable hereunder.
6.12 Taxes. (a) All payments made by the Borrowers under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on either Administrative Agent or any
Lender as a result of a present or former connection between such Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
72
66
amounts payable to such Administrative Agent, or any Lender hereunder or under
any Note, the amounts so payable to such Administrative Agent or such Lender
shall be increased to the extent necessary to yield to such Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Company shall not be required to increase
any such amounts payable to any U.S. Lender if such U.S. Lender fails to comply
with the requirements of paragraph (b) of this Section. Whenever any
Non-Excluded Taxes are payable by a Borrower, as promptly as possible thereafter
such Borrower shall send to the applicable Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify such Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by either
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans, the Acceptance Reimbursement Obligations, the
Acceptance Notes and all other amounts payable hereunder.
(b) Each U.S. Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) in the case of a Lender other than a Lender described in
subsection 6.12(b)(ii);
(A) deliver to the Company and the General
Administrative Agent (A) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(B) deliver to the Company and the General
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company; and
(C) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Company or the General Administrative Agent;
and
(D) file amendments to such forms as and when required;
and
73
67
(ii) in the case of a Lender that is not a "bank" under
Section 881(c)(3)(A) of the Code and that is legally unable to comply
with the requirements of subsection 6.11(b)(i);
(A) at least five Business Days before the date of
the initial payment to be made by the Company under this
Agreement to such Lender, deliver to the Company and the
General Administrative Agent (I) a statement that such Lender
(x) is not a "bank" under Section 881(c)(3)(A) of the Code, is
not subject to regulatory or other legal requirements as a
bank in any jurisdiction, and has not been treated as a bank
for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application
made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements, (y) is
not a 10-percent shareholder within the meaning of Section
881(c)(3)(B) of the Code and (z) is not a controlled foreign
corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(C) of the Code and (II) a
properly completed and duly executed Internal Revenue Service
Form W-8 or applicable successor form; and
(B) deliver to the Company and the General
Administrative Agent two further properly completed and duly
executed copies of said Form W-8, or any successor applicable
form at least five Business Days on or before the date that
any such Form W-8 expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company or upon the
request of the Company or the General Administrative Agent;
and
(C) obtain such extensions of time for filing and
completing such forms or certifications as may be reasonably
requested by the Company and the General Administrative Agent;
and
(D) file amendments to such forms as and when
required;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Company and the General
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 14.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such
74
68
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
6.13 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion into or continuation of LIBOR Loans after such Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment after such
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of LIBOR Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such U.S. Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
6.14 Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under Section 6.11 or 6.12(a), or if any adoption
or change of the type described in Section 6.10 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrowers to make payments under Section 6.11 or
6.12(a), or would eliminate or reduce the effect of any adoption or change
described in Section 6.10; provided, that such designation is made on terms
that, in the sole judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory disadvantage, and provided,
further, that nothing in this Section 6.14 shall affect or postpone any of the
obligations of any Borrower or the rights of any Lender pursuant to Section 6.11
or 6.12(a).
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agents and the Lenders to enter
into this Agreement and to make the Loans and the other extensions of credit
hereunder, each of the Company and the Canadian Borrower (to the extent
applicable to the Canadian Borrower) hereby represents and warrants to each
Administrative Agent and each Lender that:
75
69
7.1 Financial Condition. (a) The unaudited pro forma combined
balance sheet of Holdings and its consolidated Subsidiaries as at November 30,
1997 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the consummation of
the Exchange Offer and the Merger, (ii) the Loans to be made on or prior to the
Merger Date and the use of proceeds thereof and (iii) the payment of fees and
expenses in connection with the Exchange Offer and Merger. The Pro Forma Balance
Sheet has been prepared based on the best information available to the Company
as of the date of delivery thereof, and presents fairly on a pro forma basis the
estimated combined financial position of Holdings and its consolidated
Subsidiaries as at the Closing Date, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) To the best of the Company's knowledge, the audited
consolidated balance sheet of Safety-Kleen as of December 31, 1996 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by and accompanied by an unqualified report from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, present fairly the consolidated financial condition of
Safety-Kleen as at such date, and the consolidated results of its operations and
its consolidated cash flows for the fiscal year then ended. To the best of the
Company's knowledge, all such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the relevant
firm of accountants and disclosed therein). To the best of the Company's
knowledge, the balance sheet referred to above reflects any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, and any long-term
leases and unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, in each case as of the date of
such balance sheets. During the period from December 31, 1996 to and including
the date hereof there has been no Disposition by Safety-Kleen or any of its
Subsidiaries of any material part of its business or property.
(c) The audited consolidated balance sheet of Holdings as at
August 31, 1997, and the related consolidated statements of income and of cash
flows for the fiscal year ended on such date, reported on by and accompanied by
an unqualified report from Coopers & ▇▇▇▇▇▇▇, present fairly the consolidated
financial condition of Holdings as at such date, and the consolidated results of
its operations and its consolidated cash flows for the respective fiscal year
then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the relevant firm of
accountants and disclosed therein). The balance sheet referred to above reflects
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, and any long-term leases and unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, in each case
as of the date of such balance sheets. During the period from August 31, 1997 to
and including the date hereof there has been no Disposition by Holdings or any
of its Subsidiaries of any
76
70
material part of its business or property other than the sale by the Company of
ECDC Environmental, L.C.
7.2 No Change. Since August 31, 1997 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect. Without limiting the representation in the preceding
sentence, since December 31, 1996 there has been no development or event which,
to the best knowledge of the Company, has had or could reasonably be expected to
have a material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of Safety-Kleen and its Subsidiaries taken
as a whole.
7.3 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of each Borrower, to borrow hereunder and has taken all necessary corporate
action to authorize the borrowings on the terms and conditions of this Agreement
and any Notes and to authorize the execution, delivery and performance of the
Loan Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with (i) the borrowings hereunder or
with the execution, delivery, performance, validity or enforceability of the
Loan Documents or (ii) the consummation of the Exchange Offer or the Merger,
except approval of the Merger by the Safety-Kleen shareholders. This Agreement
has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of each Loan Party which is a party thereto.
This Agreement constitutes, and each other Loan Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of the Loan Party which is a party thereto enforceable against such
Loan Party in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
7.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents, the issuance of Letters of Credit, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the
77
71
Company or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation
(other than the Liens created by the Security Documents).
7.6 No Material Litigation. (a) No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Company, threatened by or against the Company or any
of its Subsidiaries or against any of its or their respective properties or
revenues (i) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby (other than as set forth on Schedule
7.6 relating to the Exchange Offer, none of which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect), or
(ii) which could reasonably be expected to have a Material Adverse Effect.
(b) Without limiting the representation made in paragraph (a)
of this Section 7.6, to the best knowledge of the Company, except as described
in the Exchange Offer Documents, no litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or threatened
against Safety-Kleen or any of its Subsidiaries or against any of its or their
respective properties or revenues which could reasonably be expected to have a
material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of Safety-Kleen and its Subsidiaries taken
as a whole.
7.7 No Default. Neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
7.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 10.3.
7.9 Intellectual Property. Each of the Company and its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property"). Except as set
forth in Schedule 7.9, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Company know of any valid basis for any such claim. The use of such Intellectual
Property by the Company and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. An adverse
determination of any or all of the matters set forth on Schedule 7.9 could not
reasonably be expected to have a Material Adverse Effect.
78
72
7.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
7.11 Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Company,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any taxes, fees or other charges, the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Company,
no claim is being asserted, with respect to any such tax, fee or other charge.
7.12 Federal Regulations. No part of the proceeds of any Loans
will be used in violation of Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect.
7.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither Borrower nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and neither of
the Borrowers nor any Commonly Controlled Entity would become subject to any
liability under ERISA if the Borrowers or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent. The
present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the liability of the Borrowers and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits by an amount in excess of $2,000,000.
7.14 Canadian Benefit and Pension Plans. The Canadian Pension
Plans are duly registered under the provisions of the ITA and any other
Requirements of Law and no
79
73
event has occurred which is reasonably likely to cause the loss of such
registered status. The Canadian Pension Plans and the Canadian Benefits Plans
have been administered in accordance with the ITA and all other Requirements of
Law. All material obligations of each of the Canadian Borrower or any Subsidiary
thereof (including fiduciary and funding obligations) required to be performed
in connection with the Canadian Pension Plans have been performed. No promises
of benefit improvements under the Canadian Pension Plans or the Canadian Benefit
Plans have been made except where such improvement could not have a Material
Adverse Effect. There have been no improper withdrawals or applications of the
assets of the Canadian Pension Plans or the Canadian Benefit Plans. As of the
most current evaluation date, each of the Canadian Pension Plans and the
Canadian Benefit Plans is fully funded and there exist no going concern unfunded
actuarial liabilities or solvency deficiencies in respect of such plans.
7.15 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
7.16 Subsidiaries. Schedule 7.16 sets forth a complete list of
all the Subsidiaries of the Company on the Closing Date after giving effect to
the consummation of the Exchange Offer.
7.17 Purpose of Loans. The proceeds of the Loans and
Acceptances shall be used (i) to finance a portion of the Safety-Kleen
Acquisition and the fees and expenses associated therewith, (ii) to purchase
stock appreciation rights from employees and directors of Safety-Kleen pursuant
to Safety-Kleen's existing stock option/purchase plans in an amount not to
exceed $46,000,000, (iii) to repay certain Indebtedness of the Borrowers
outstanding on the Closing Date, including all amounts outstanding under the
Existing Credit Agreement and (iv) on the Merger Date, to repay certain
Indebtedness of Safety-Kleen required to be repaid in connection with the
Merger. The proceeds of the Loans and Acceptances also shall be used to finance
the ongoing working capital needs of the Borrowers and their Subsidiaries in the
ordinary course of business, capital expenditures and acquisitions permitted by
Section 10.8.
7.18 Environmental Matters.
Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to give rise to a
Material Adverse Effect:
(a) The Company and each of its Subsidiaries: (i) are, and
within the period of all applicable statutes of limitation have been,
in compliance with all applicable Environmental Laws; (ii) hold all
Environmental Permits (each of which is in full force and effect)
required for any of their current or intended operations or for any
property
80
74
owned, leased, or otherwise operated by any of them; (iii) are, and
within the period of all applicable statutes of limitation have been,
in compliance with all of their Environmental Permits; and (iv)
reasonably believe that: each of their Environmental Permits will be
timely renewed and complied with, without material expense; any
additional Environmental Permits that may be required of any of them
will be timely obtained and complied with, without material expense;
and compliance with any Environmental Law that is or is expected to
become applicable to it will be timely attained and maintained, without
material expense.
(b) Materials of Environmental Concern have not been
transported, disposed of, emitted, discharged, or otherwise released or
threatened to be released, to or at any real property now or formerly
owned, leased or operated by the Company or any of its Subsidiaries or
at any other location, which could reasonably be expected to (i) give
rise to liability of the Company or any of its Subsidiaries under any
applicable Environmental Law, (ii) interfere with the continued
operations of the Company or any of its Subsidiaries, or (iii) impair
the fair saleable value of any real property owned or leased by the
Company or any of its Subsidiaries.
(c) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation)
under or relating to any Environmental Law to which the Company or any
of its Subsidiaries is, or to the knowledge of the Company or any of
its Subsidiaries will be, named as a party that is pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened.
(d) Neither the Company nor any of its Subsidiaries has
received any written request for information, or been notified that it
is a potentially responsible party under or relating to the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. ▇▇.▇▇. 9601 et seq., or any similar Environmental Law, or
with respect to any Materials of Environmental Concern.
(e) Neither the Company nor any of its Subsidiaries has
entered into or agreed to any consent decree, order, or settlement or
other agreement, nor is subject to any judgment, decree, or order or
other agreement, in any judicial, administrative, arbitral, or other
forum, relating to compliance with or liability under any Environmental
Law.
(f) Neither the Company nor any of its Subsidiaries has
assumed or retained, by contract or operation of law, any liabilities
of any kind, fixed or contingent, known or unknown, under any
Environmental Law or with respect to any Materials of Environmental
Concern.
7.19 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Administrative Agents or the Lenders
or any of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the
81
75
other Loan Documents, contained as of the date such statement, information,
document or certificate was so furnished, any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of such
Loan Party to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. The Company has provided to the General
Administrative Agent a true and complete copy of the Exchange Offer Documents
and the Merger Agreement (including all exhibits and schedules thereto and
financial statements referred to therein). As of the date hereof, the
representations and warranties contained in the Merger Agreement are true and
correct in all material respects. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents or in any other
documents, certificates and statements furnished to the Administrative Agents
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
7.20 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the General Administrative Agent,
for the benefit of the Lenders, a legal, valid and enforceable security interest
in the Collateral described therein and proceeds thereof. In the case of the
Pledged Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the General
Administrative Agent, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 3 to the Guarantee and
Collateral Agreement, the Guarantee and Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person other than as permitted by
the Guarantee and Collateral Agreement.
(b) The Acquisition Corp. Pledge Agreement is effective to
create in favor of the General Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. When the actions described in Section
3(a) or 3(b), as the case may be, of the Acquisition Corp. Pledge Agreement have
been taken, the Acquisition Corp. Pledge Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Acquisition Corp. Pledge Agreement), in each
case prior and superior in right to any other Person other than as permitted by
the Acquisition Corp. Pledge Agreement.
82
76
(c) Each of the Canadian Collateral Documents is effective to
create in favor of the Canadian Administrative Agent, for the benefit of the
Canadian Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. Upon completion of the
actions set forth on Schedule 7.20, the Canadian Collateral Documents shall
constitute fully perfected Liens on, and security interests in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Canadian Borrower Obligations, in each case prior and superior
in right to any other Person other than as permitted by the Canadian Collateral
Documents.
(d) Each of the Mortgages is effective to create in favor of
the General Administrative Agent, for the benefit of the Lenders, a legal, valid
and enforceable Lien on the mortgaged properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
3, each such Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such mortgaged
properties and the proceeds thereof, as security for the Obligations (as defined
in the relevant Mortgage), in each case prior and superior in right to any other
Person.
7.21 Solvency. Each Loan Party is, and after giving effect to
the Safety-Kleen Acquisition and the incurrence of all Indebtedness and
obligations being incurred in connection herewith and therewith will be and will
continue to be, Solvent.
7.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
7.23 Corsan Trucking, Inc.. As of the date hereof, Corsan
Trucking, Inc., a wholly owned Subsidiary of the Company, does not have any
assets and does not conduct any operations.
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Extensions of Credit. The agreement
of each Lender to make the initial Extension of Credit requested to be made by
it is subject to the satisfaction, immediately prior to or concurrently with the
making of such Extension of Credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The General Administrative Agent shall
have received (i) this Agreement, executed and delivered by a duly
authorized officer of each Borrower, with a counterpart for each
Lender, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the parties thereto, with a
counterpart or a conformed copy for each Lender, (iii) the Acquisition
Corp. Pledge Agreement and the Exchange Agent Agency Agreement, each
executed and
83
77
delivered by a duly authorized officer of the parties thereto, with a
counterpart or a conformed copy for each Lender, (iv) each of the
Mortgage Amendments, each executed and delivered by a duly authorized
officer of the party thereto, with a counterpart or a conformed copy
for each Lender, (v) each Canadian Collateral Document listed on
Schedule 4, executed and delivered by a duly authorized officer of the
parties thereto, with a counterpart or a conformed copy for each Lender
and (vi) the Intercreditor Agreement, executed and delivered by a duly
authorized officer of the parties thereto.
(b) Payment of Indebtedness under Existing Credit Agreement
and Termination of Commitments. The Commitments (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement shall
have been terminated and all Indebtedness of the Borrowers thereunder,
including all principal, interest and fees accrued to the Closing Date
(including, but not limited to, any prepayment premium payable in
connection with the prepayment of the Tranche B Term Loans and Tranche
C Term Loans (each as defined in the Existing Credit Agreement)), but
excluding reimbursement obligations in respect of the Existing
Acceptances and the Existing Letter of Credit, shall have been repaid
in full. The indemnity agreement described in the second sentence of
Section 5.1(a) shall have been executed and delivered by The
Toronto-Dominion Bank and the Existing Acceptance Lenders. All
reimbursement obligations in respect of the Specified Acceptances shall
have been paid in full and the Specified Acceptances shall have been
cancelled.
(c) Exchange Offer, Merger, etc. The following transactions
shall have been consummated (and the General Administrative Agent shall
have received a certificate of the Company to such effect, accompanied
by copies of any documentary evidence thereof reasonably requested by
the General Administrative Agent):
(i) all conditions precedent to the consummation of
the Exchange Offer set forth in the Exchange Offer Documents
shall have been satisfied or waived with the Required Lenders'
consent and the number of Target Shares being validly tendered
for exchange in the Exchange Offer and not properly withdrawn
prior to the expiration of the Exchange Offer, together with
the Target Shares owned by Holdings and its Subsidiaries,
shall represent no less than the minimum number of Target
Shares (the "Minimum Number of Shares"), determined on a fully
diluted basis after giving effect to the exercise of any
uncancelled warrants, rights, options, conversion privileges
or similar rights (other than the Target Rights), necessary
under Wisconsin law and the articles of incorporation and
bylaws of Safety-Kleen to have sufficient voting power in
Safety-Kleen to approve the Merger independently of the votes
of any other Safety-Kleen shareholders;
(ii) since the date of this Agreement, the terms of
the Exchange Offer shall not have been amended, waived or
modified as to price, consideration,
84
78
conditions, termination or expiration or in any other material
respect without the prior approval of the General
Administrative Agent;
(iii) there shall be no legal impediments to the
Merger that are not within the control of Holdings to
overcome;
(iv) all actions shall have been taken so that the
provisions of Section 180.1141 of the Wisconsin Business
Corporation Law shall be inapplicable to the Exchange Offer
and the Merger, and no other "fair price", "moratorium",
"business combination", "control share acquisition" or other
form of anti-takeover statute, regulation, charter or by-law
provision, is or shall become applicable which would cause or
could reasonably be expected to cause any material adverse
consequences to Acquisition Corp., Holdings, the Borrowers,
Safety-Kleen or the Exchange Offer or Merger;
(v) Safety-Kleen and its Board of Directors shall
have taken all necessary action to amend the Rights Agreement,
dated as of November 9, 1988 (as amended, the "Rights
Agreement") to provide for the redemption or annulment or
inapplicability (without any substantial cost) of all
interests outstanding under or issued pursuant to the Rights
Agreement and to otherwise avoid the occurrence of any
material adverse consequences to Acquisition Corp. or
Safety-Kleen as a consequence of the Exchange Offer or the
Merger;
(vi) Holdings, Acquisition Corp. and Safety-Kleen
shall have entered into a definitive Merger Agreement and
related documentation providing for the Merger in form and
substance satisfactory to the General Administrative Agent;
(vii) all regulatory approvals (including, without
limitation, all such approvals with respect to antitrust
matters) necessary to consummate the Exchange Offer shall have
been obtained, all applicable waiting periods shall have
expired and the General Administrative Agent shall be
satisfied that all material regulatory approvals necessary to
consummate the Merger have been obtained or can be timely
obtained;
(viii) there shall be no order, injunction or
restraining order in effect or known by the Company to be
threatened which would prevent or delay the consummation of,
or impose material adverse conditions on, the Exchange Offer
or the Merger. There shall not exist any pending or threatened
litigation which, in the good faith judgment of the General
Administrative Agent, could reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the
ability of Holdings or Acquisition Corp. to consummate the
Exchange Offer or on the ability of Holdings or Acquisition
Corp. to consummate the Merger or to perform any material
obligation contemplated
85
79
hereby or thereby or on the General Administrative Agent's and
Lenders' rights and remedies;
(ix) neither Safety-Kleen nor any of its subsidiaries
shall have taken, or be taking, any action (including any
reorganization, recapitalization, asset sale, stock purchase
or distribution to its stockholders) that, in the good faith
judgment of the General Administrative Agent, could reasonably
be expected to have a material adverse effect on the condition
(financial or otherwise), business, operations, assets or
prospects of Safety-Kleen or its subsidiaries or on the
consummation of the Exchange Offer or the Merger. In the good
faith judgment of the General Administrative Agent, no
material adverse change shall have otherwise occurred in the
condition (financial or otherwise), business, operations,
assets or prospects of (A) Holdings and its Subsidiaries since
the date of the audited financial statements of Holdings dated
August 31, 1997 or (B) Safety-Kleen and its Subsidiaries since
the date of the audited financial statements of Safety-Kleen
dated December 31, 1996; and
(x) the capital and legal structure of each Loan
Party after the Safety-Kleen Acquisition as proposed to be
consummated pursuant to the Exchange Offer Documentation and
the Merger Agreement shall be satisfactory in all respects;
and
(xi) all actions required under Safety-Kleen's
existing credit facility shall have been taken such that the
consummation of the Exchange Offer does not constitute a
default, or an event of mandatory prepayment, thereunder.
(d) Regulations of Board; Forms G-3 and U-1. The Lenders shall
be satisfied that the Exchange Offer and the financing thereof comply
with Regulation T, U and X of the Board. Each Lender shall have
received a duly completed and executed Form FR G-3 or Form FR U-1, as
applicable, of the Board, demonstrating such compliance.
(e) Pledged Stock; Stock Powers. The General Administrative
Agent or the Exchange Agent shall have received the certificates
representing the Target Shares pledged pursuant to the Acquisition
Corp. Pledge Agreement (other than such Shares constituting Book-Entry
Shares (as defined in the Acquisition Corp. Pledge Agreement)),
together with an undated stock power for each such certificate executed
in blank by a duly authorized officer of Acquisition Corp., and with
respect to Target Shares consisting of Book-Entry Shares, evidence that
all actions described in Section 3(b) of the Acquisition Corp. Pledge
Agreement which are necessary to create and perfect the security
interests pursuant to the Acquisition Corp. Pledge Agreement in
accordance with Article 8 of the Uniform Commercial Code of the State
of New York have been taken. The shares pledged on the Closing Date
pursuant to the Acquisition
86
80
Corp. Pledge Agreement shall constitute all Shares owned by Acquisition
Corp. or any of its affiliates, whether acquired in the Exchange Offer
or otherwise.
(f) Exchange Offer Documents; Merger Agreement. The General
Administrative Agent shall have received certified true copies of the
Exchange Offer Documents and the Merger Agreement, in each case as in
effect on the Closing Date.
(g) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet, (ii) the audited
consolidated financial statements described in Section 7.1 and (iii)
unaudited interim consolidated financial statements of Holdings for the
most recent fiscal quarterly period ended subsequent to the date of the
latest applicable financial statement delivered pursuant to clause (ii)
of this paragraph as to which such financial statements have been made
publicly available.
(h) Business Plan. The Lenders shall have received a business
plan for the Company and its Subsidiaries (including Safety-Kleen) for
the 1998 fiscal year and a written analysis of the business and
prospects of the Company and its Subsidiaries for the period from the
Closing Date through the final maturity of the Term Loans, in each case
as set forth in the Confidential Information Memorandum dated February
1998.
(i) Environmental Reports. The General Administrative Agent
shall have received reports prepared by Dames & ▇▇▇▇▇ with respect to
environmental matters relating to Safety-Kleen, in form and substance
satisfactory to the Lenders.
(j) Closing Certificate. The Administrative Agents shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Closing Date, substantially in the form of
Exhibit I, with appropriate insertions and attachments, satisfactory in
form and substance to the Administrative Agents, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of such party.
(k) Fees. The Administrative Agents and the Arranger shall
have received the fees to be received on the Closing Date referred to
in Sections 3.3 and 6.1.
(l) Legal Opinions. The Administrative Agents shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of Katten,
Muchin & Zavis, U.S. counsel to the Company and the other Loan
Parties, in form and substance reasonably satisfactory to the
General Administrative Agent;
(ii) the executed legal opinion of ▇▇▇▇ ▇.
▇▇▇▇▇▇, general counsel to ▇▇▇▇▇▇▇, the Canadian Borrower and
its Subsidiaries, in form and substance reasonably
satisfactory to the General Administrative Agent;
87
81
(iii) the executed legal opinion of Tory ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Canadian counsel to the Lenders, in
form and substance reasonably satisfactory to the General
Administrative Agent; and
(iv) the executed legal opinion of South Carolina
counsel to the Company and the other Loan Parties, in form and
substance reasonably satisfactory to the General
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative
Agents may reasonably require.
(m) Validity of Liens. The Security Documents shall be
effective to create in favor of the General Administrative Agent or
Canadian Administrative Agent, as the case may be, a legal, valid and
enforceable first (except for prior Liens not prohibited by Section
10.3) security interest in and lien upon the Collateral. The General
Administrative Agent shall have received evidence in form and substance
satisfactory to it that all filings, recordings, registrations and
other actions, including, without limitation, the filing of duly
executed financing statements on form UCC-1, necessary or, in the
opinion of the General Administrative Agent, desirable to perfect the
Liens created by the Security Documents shall have been completed.
(n) Title Insurance Policy. The General Administrative Agent
shall have received in respect of each parcel covered by each Existing
Mortgage a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated the Closing Date. Each
such policy shall (i) be in an amount satisfactory to the General
Administrative Agent; (ii) be issued at ordinary rates; (iii) insure
that the Mortgage insured thereby creates a valid first Lien on such
parcel free and clear of all defects and encumbrances, except such as
may be approved by the General Administrative Agent; (iv) name the
General Administrative Agent for the benefit of the Lenders as the
insured thereunder; (v) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70); (vi) contain such endorsements and affirmative
coverage as the General Administrative Agent may request and (vii) be
issued by title companies satisfactory to the General Administrative
Agent (including any such title companies acting as co-insurers or
reinsurers, at the option of the General Administrative Agent). The
General Administrative Agent shall have received evidence satisfactory
to it that all premiums in respect of each such policy, and all charges
for mortgage recording tax, if any, have been paid.
(o) Copies of Documents. The General Administrative Agent
shall have received a copy of all recorded documents referred to, or
listed as exceptions to title in, the title policy or policies referred
to in Section 8.1(n) and a copy, certified by such parties as the
General Administrative Agent may deem appropriate, of all other
documents affecting the property covered by each Mortgage.
88
82
(p) Lien Searches. The General Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
General Administrative Agent, of the Uniform Commercial Code, judgement
and tax lien filings which may have been filed with respect to personal
property of the Loan Parties, and the results of such search shall be
satisfactory to the General Administrative Agent.
(q) Insurance. The General Administrative Agent shall have
received evidence in form and substance satisfactory to it that all of
the requirements of Section 9.5 of this Agreement and Section 5.3 of
the Guarantee and Collateral Agreement shall have been satisfied.
8.2 Conditions to Extensions of Credit made on the Merger
Date. The agreement of each Lender to make Extensions of Credit on the Merger
Date requested to be made by it is subject to the satisfaction, immediately
prior to or concurrently with the making of such Extension of Credit on the
Merger Date, of the following conditions precedent:
(a) Merger Agreement. (i) The terms and conditions of
the Merger Agreement shall not have been amended, waived or
modified as to price, consideration, conditions, termination
or expiration or in any other material respect without the
prior approval of the General Administrative Agent and the
Required Lenders;
(ii) the Merger shall have been consummated in
accordance with the Merger Agreement and applicable law; and
(iii) all conditions precedent to the
consummation of the Merger shall have been satisfied or waived
with the Required Lenders' consent.
(b) Solvency Certificate. The General Administrative
Agent shall have received a solvency certificate of the
Company, in form, scope and substance satisfactory to the
General Administrative Agent and its legal counsel.
(c) Collateral. All actions required by Section 9.10
in respect of all Subsidiaries and assets acquired on the
Merger Date (including delivery of legal opinions with respect
thereto as provided in Section 9.10) shall have been taken so
that on the Merger Date the General Administrative Agent shall
have a duly perfected first priority security interest in all
such assets.
(d) Legal Opinions. The Administrative Agents shall
have received, with a counterpart for each Lender, the
executed legal opinion of Katten, Muchin & Zavis, U.S. counsel
to the Company and the other Loan Parties, in form and
substance reasonably satisfactory to the General
Administrative Agent. Such legal opinion shall cover such
other matters incident to the transactions
89
83
contemplated by this Agreement as the Administrative Agents
may reasonably require.
(e) Lien Searches. The General Administrative Agent
shall have received the results of a recent search by a Person
satisfactory to the General Administrative Agent, of the
Uniform Commercial Code, judgement and tax lien filings which
may have been filed with respect to personal property of
Safety-Kleen and its Subsidiaries, and the results of such
search shall be satisfactory to the General Administrative
Agent.
(f) Insurance. The General Administrative Agent shall
have received evidence in form and substance satisfactory to
it that all of the requirements of Section 9.5 of this
Agreement and Section 5.3 of the Guarantee and Collateral
Agreement shall have been satisfied with respect to the
Surviving Corporation and its Subsidiaries.
(g) all outstanding indebtedness of Safety-Kleen and
its subsidiaries (other than the indebtedness set forth on
Schedule 8.2(g) hereto) shall have been repaid in full.
8.3 Conditions to Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement, the other Loan
Documents and the Merger Agreement shall be satisfactory in form and
substance to the General Administrative Agent, and the General
Administrative Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each request by a Borrower for an Extension of Credit hereunder shall constitute
a representation and warranty by each Borrower as of the date thereof that the
conditions contained in this subsection have been satisfied.
90
84
SECTION 9. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Loan, Reimbursement Obligation, Acceptance Reimbursement
Obligation, Acceptance Note or Letter of Credit remains outstanding or any
amount is owing to any Lender, the General Administrative Agent or the Canadian
Administrative Agent hereunder or under any other Loan Document, the Company
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
9.1 Financial Statements. Furnish to the General
Administrative Agent, the Canadian Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of Holdings, a copy of the
consolidated and consolidating balance sheets of Holdings and its
consolidated Subsidiaries as at the end of such year and the related
consolidated and consolidating statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on (in the
case of such consolidated statements and balance sheet) without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Coopers & ▇▇▇▇▇▇▇ or other
independent certified public accountants of nationally recognized
standing, and certified (in the case of such consolidating statements
and balance sheet) by a Responsible Officer as being fairly stated in
all material respects; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of Holdings, the unaudited consolidated and consolidating
balance sheets of Holdings and its consolidated Subsidiaries as at the
end of such quarter and the related unaudited consolidated and
consolidating statements of income and retained earnings and of cash
flows of Holdings and its consolidated Subsidiaries for such quarter
and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
9.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 9.1(a), a certificate of the independent
certified public accountants reporting on
91
85
such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 9.1(a) and (b), (i) a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, during such period the Company has observed or
performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Loan
Documents to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (ii) a
compliance certificate of a Responsible Officer containing all
information necessary, or reasonably requested by the General
Administrative Agent, for determining compliance by the Company and its
Subsidiaries with the provisions of Section 10 of this Agreement as of
the last day of the fiscal quarter or fiscal year of the Company, as
the case may be;
(c) prior to the end of each fiscal year of the Company, a
copy of the projections by the Company of the operating budget and cash
flow budget of the Company and its Subsidiaries for the succeeding
fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been
prepared on the basis of sound financial planning practice and that
such Responsible Officer has no reason to believe they are incorrect or
misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Company or Holdings sends to
its stockholders, and within five days after the same are filed, copies
of all financial statements and reports which the Company or Holdings
may make to, or file with, the Securities and Exchange Commission or
any successor or analogous Governmental Authority (including, but not
limited to, each Exchange Offer Document); and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
9.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
9.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights,
92
86
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to Section 10.5; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, have a Material Adverse
Effect.
9.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies engaged in the
same or a similar business (including, but not limited to, general liability
insurance in an amount of at least $100,000,000 and a deductible of not more
than $5,000,000 per occurrence).
9.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of the Administrative Agents (or, with the coordination of the
Administrative Agents, the Lenders) to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Company and its Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants.
9.7 Notices. Promptly give notice to the Administrative Agents
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or
93
87
Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the
Company or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Plan;
(e) the occurrence or expected occurrence of any event that is
reasonably likely to result in the Company or any of its Subsidiaries
being unable to obtain, renew, or comply with any Environmental Permit
the absence of which could have a Material Adverse Effect, or being
unable to comply with any Environmental Law in a manner that could have
a Material Adverse Effect; and
(f) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
9.8 Environmental Laws. (a) (i) Comply with all Environmental
Laws applicable to it, and obtain, comply with and maintain any and all
Environmental Permits necessary for its operations as conducted and as planned;
and (ii) take all reasonable efforts to ensure that all of its tenants,
subtenants, contractors, subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and maintain any and all
Environmental Permits, applicable to any of them insofar as any failure to so
comply, obtain or maintain reasonably could adversely affect the Company or any
Subsidiary. For purposes of this Section 9.8(a), noncompliance by the Company
and any of its Subsidiaries with any applicable Environmental Law or
Environmental Permit shall be deemed not to constitute a breach of this
covenant; provided that, upon learning of any actual or suspected noncompliance,
the Company and its Subsidiaries shall promptly undertake all reasonable efforts
to achieve compliance; and provided further that, in any case, such
non-compliance, and any other noncompliance with any Environmental Law,
individually or in the aggregate, could not reasonably be expected to give rise
to a Material Adverse Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders
and directives as to which an appeal has been timely and properly taken in good
faith and provided that the pendency of any and all such appeals does not give
rise to a Material Adverse Effect.
(c) Prior to acquiring any ownership or leasehold interest in
real property for which a permit would be required for operation as a hazardous
waste facility, or any other real property or other interest in any real
property that could reasonably be expected to give rise to the Company or any of
its Subsidiaries being found to be subject to potential liability under any
Environmental Law: (i) obtain a written report by a reputable environmental
consultant of
94
88
the environmental consultant's assessment of the presence or potential presence
of significant levels of any Materials of Environmental Concern on, under, in,
or about the property, or of other conditions or operations that could give rise
to potentially significant liability under or violations of Environmental Law
relating to such acquisition; and (ii) inform the General Administrative Agent
of its plans to acquire such interest in real property and, upon the General
Administrative Agent's request, afford the General Administrative Agent a
reasonable opportunity to review and discuss the contents of such report with
the environmental consultant who prepared it and a knowledgeable representative
of the Company.
(d) Promptly upon the General Administrative Agent's request
if there has been an Event of Default which has not been fully and timely cured,
permit an environmental consultant whom the General Administrative Agent in its
discretion designates to perform an environmental assessment (including, without
limitation: reviewing documents; interviewing knowledgeable persons; and
sampling and analyzing soil, air, surface water, groundwater, building
materials, and/or other media or substances) in or about property owned or
leased by the Company or any of its Subsidiaries, or on which operations of the
Company or any of its Subsidiaries otherwise take place. Such environmental
assessment shall be in form, scope, and substance satisfactory to the General
Administrative Agent. The Company and its Subsidiaries shall cooperate fully in
the conduct of such environmental assessment, and shall pay the costs of such
environmental assessment immediately upon written demand by the General
Administrative Agent. Pursuant to this Section 9.8(d), the General
Administrative Agent shall have the right, but shall not have any duty, to
request and/or obtain any such environmental assessment.
9.9 Further Assurances. Upon the request of the General
Administrative Agent, promptly perform or cause to be performed any and all acts
and execute or cause to be executed any and all documents (including, without
limitation, financing statements and continuation statements) for filing under
the provisions of the Uniform Commercial Code or any other Requirement of Law
which are necessary or advisable to maintain in favor of the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
for the benefit of the Lenders, Liens on the Collateral that are duly perfected
in accordance with all applicable Requirements of Law.
9.10 Additional Collateral. (a) With respect to any assets
acquired after the Closing Date by the Company or any of its Subsidiaries (other
than each of ECDC East, L.C., ECDC Services, L.C., Osco Treatment Systems of
Mississippi, Inc., USPCI of Mississippi, Inc., so long as such entity is not,
directly or indirectly, a wholly-owned subsidiary of the Company) that are
intended to be subject to the Lien created by any of the Security Documents but
which are not so subject (other than any assets described in paragraph (b) or
(c) of this Section), promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the General Administrative
Agent or the Canadian Administrative Agent, as the case may be, such amendments
to the relevant Security Documents or such other documents as the General
Administrative Agent shall deem necessary or advisable to grant to the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
for the
95
89
benefit of the Lenders, a Lien on such assets, (ii) take all actions necessary
or advisable to cause such Lien to be duly perfected in accordance with all
applicable Requirements of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be requested by the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
and (iii) if requested by the General Administrative Agent, deliver to the
General Administrative Agent legal opinions relating to the matters described in
clauses (i) and (ii) immediately preceding, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the General
Administrative Agent.
(b) With respect to any Person (other than a Subsidiary of the
Canadian Borrower) that, subsequent to the Closing Date, becomes a Subsidiary,
including, without limitation on the Merger Date, Safety-Kleen and its
Subsidiaries, promptly upon the request of the General Administrative Agent: (i)
execute and deliver to the General Administrative Agent, for the benefit of the
Lenders, a new pledge agreement or such amendments to the Guarantee and
Collateral Agreement as the General Administrative Agent shall deem necessary or
advisable to grant to the General Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the
Company or any of its Subsidiaries, (ii) deliver to the General Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers executed and delivered in blank by a duly authorized officer of the
Company or such Subsidiary, as the case may be, (iii) cause such new Subsidiary
(A) to become a party to the Guarantee and Collateral Agreement, and (B) to take
all actions necessary or advisable to cause the Lien created by the Guarantee
and Collateral Agreement to be duly perfected in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be requested by the General
Administrative Agent and (iv) if requested by the General Administrative Agent,
deliver to the General Administrative Agent legal opinions relating to the
matters described in clauses (i), (ii) and (iii) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the General Administrative Agent.
(c) With respect to any Person that, subsequent to the Closing
Date, becomes a Subsidiary of the Canadian Borrower, promptly upon the request
of the General Administrative Agent: (i) execute and deliver to the Canadian
Administrative Agent a new pledge agreement or such amendments to the Canadian
Collateral Documents as the General Administrative Agent shall deem necessary or
advisable to grant to the Canadian Administrative Agent, for the benefit of the
Canadian Lenders, a Lien on the Capital Stock of such Subsidiary which is owned
by the Canadian Borrower or any of its Subsidiaries, (ii) deliver to the
Canadian Administrative Agent any certificates representing such Capital Stock,
together with undated stock powers executed and delivered in blank by a duly
authorized officer of the Canadian Borrower or such Subsidiary, as the case may
be, and take or cause to be taken all such other actions under the law of the
jurisdiction of organization of such Subsidiary as may be necessary or advisable
to perfect such Lien on such Capital Stock, (iii) cause such Subsidiary to
become a guarantor under the Canadian Collateral Documents and to grant security
interests in its personal property assets and (iv) if requested by the General
Administrative Agent,
96
90
deliver to the General Administrative Agent legal opinions relating to the
matters described in clauses (i), (ii) and (iii) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the General Administrative Agent.
(d) With respect to any parcel of real property having a book
value in excess of $1,000,000 acquired by the Company or any of its Subsidiaries
after the Closing Date (including any such real property owned by any Person
when it becomes a Subsidiary), if requested by the General Administrative Agent,
promptly provide to the General Administrative Agent a mortgage on such
property, together with such title insurance policies, surveys and legal
opinions related thereto as shall be reasonably requested by the General
Administrative Agent.
9.11 Canadian Benefit and Pension Plans. (a) For each existing
Canadian Pension Plan and Canadian Benefit Plan and for any Canadian Pension
Plan or Canadian Benefit Plan hereafter adopted, the Canadian Borrower and its
Subsidiaries shall in a timely fashion perform all obligations (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with such plan and the funding media therefor in
accordance with the terms of such plan and all Requirements of Law.
(b) Each of the Canadian Borrower and its Subsidiaries shall
deliver to the General Administrative Agent (A) if requested by the Canadian
Administrative Agent, acting reasonably, promptly after the filing thereof by
the Canadian Borrower or such Subsidiary with any applicable Governmental
Authority, copies of each annual and other return, report or valuation with
respect to each Canadian Pension Plan, copies of any actuarial report with
respect to each Canadian Pension Plan (whether or not required by any
Governmental Authority) and (B) promptly after receipt thereof, a copy of any
direction, notice or other communication (i) in respect of any breach of
Applicable Law, (ii) which would have the effect of increasing the funding
obligation in respect of each such plan, or (iii) which could result in the
imposition of any Lien on any of the properties or assets of the Canadian
Borrower or such Subsidiary, and any order or ruling that the Canadian Borrower
or such Subsidiary may receive from any applicable Governmental Authority with
respect to any Canadian Pension Plan.
9.12 Interest Rate Protection. Within 90 days after the
Closing Date, obtain interest rate protection for a period through March 31,
2000 for a notional amount at least equal to 40% of Consolidated Total Funded
Debt that bears interest at a floating rate on terms and conditions satisfactory
to the General Administrative Agent.
9.13 Consummation of Merger. As promptly as practicable, but
in any event within 60 days after the Closing Date, consummate the Merger in
accordance with the terms of the Merger Agreement.
9.14 Pledge Agreement Supplement. The Company shall cause
Acquisition Corp. to deliver to the General Administrative Agent on the date of
purchase an executed
97
91
Pledge Agreement Supplement, substantially in the form of Exhibit A to the
Acquisition Corp. Pledge Agreement (a "Pledge Agreement Supplement"), covering
any Additional Pledged Stock (as defined in the Acquisition Corp. Pledge
Agreement) purchased by Acquisition Corp., together with the stock certificates
representing such Additional Pledged Stock and appropriate undated stock powers
duly executed in blank for each such stock certificate.
SECTION 10. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Loan, Reimbursement Obligation, Acceptance Reimbursement
Obligation, Acceptance Note or Letter of Credit remains outstanding or any
amount is owing to any Lender or either Administrative Agent hereunder or under
any other Loan Document, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
10.1 Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated
Total Leverage Ratio as at the last day of any fiscal quarter of the Company
ending during any fiscal year set forth below, commencing with the fiscal
quarter ending November 30, 1998, to exceed the ratio set forth below opposite
such fiscal year:
Consolidated Total
Fiscal Year Leverage Ratio
----------- --------------
1999 4.50:1.00
2000 3.75:1.00
2001 3.25:1.00
2002 2.75:1.00
2003 2.50:1.00
2004 and thereafter 2.00:1.00
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as at the last day of any fiscal quarter ending during any fiscal
year set forth below, commencing with the fiscal quarter ending November 30,
1998, to be less than the ratio set forth below opposite such fiscal year:
Fixed
Fiscal Year Charge Coverage Ratio
----------- ---------------------
1999 1.25:1.00
2000 1.25:1.00
2001 and thereafter 1.50:1.00
(c) Interest Coverage Ratio. Permit the Interest Coverage
Ratio for any period of four consecutive fiscal quarters of the Company (or, if
less, the number of full fiscal
98
92
quarters ending subsequent to the Closing Date) ending with any fiscal quarter
ending during any fiscal year set forth below, commencing with the fiscal
quarter ending November 30, 1998, to be less than the ratio set forth below
opposite such fiscal year:
Interest
Fiscal Year Coverage Ratio
----------- --------------
1999 2.00:1.00
2000 2.25:1.00
2001 2.50:1.00
2002 2.75:1.00
2003 and thereafter 3.00:1.00
(d) Maximum Ratio of Contingent Obligations to Operating Cash
Flow. Permit the ratio of (i) Consolidated Contingent Obligations on the last
day of any fiscal quarter ending during any fiscal year, commencing with the
fiscal quarter ending November 30, 1998, to (ii) Consolidated Operating Cash
Flow for the period of four consecutive fiscal quarters ending on such last day
to be greater than 1.00 to 1.00.
For purposes of calculating the foregoing covenants of this Section 10.1 for any
period of four full fiscal quarters, the applicable income statement items for
any Person acquired by the Company or its Subsidiaries during such period shall
be included on a pro forma basis for such period of four full fiscal quarters
(assuming the consummation of each such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period of four full fiscal quarters and assuming only such cost
reductions as are related to such acquisition and are immediately realizable as
of the date of such acquisition) if (i) the consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries as at the end of the period
preceding the acquisition of such Person and the related consolidated statements
of income and stockholders' equity and of cash flows for such period have been
reported on without a qualification arising out of the scope of the audit (other
than a "going concern" or like qualification or exception) by independent
certified public accountants of nationally recognized standing and (ii) such
audited consolidated financial statements have been previously provided to the
General Administrative Agent and the Lenders.
10.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrowers under this Agreement;
(b) Indebtedness of the Company to any Subsidiary and, to the
extent permitted by Section 10.8, of any Subsidiary to the Company or
any other Subsidiary;
(c) Indebtedness of the Company and any of its Subsidiaries
incurred to finance the acquisition of fixed or capital assets (whether
pursuant to a loan, a Financing Lease
99
93
or otherwise) in an aggregate principal amount not exceeding as to the
Company and its Subsidiaries $40,000,000 at any one time outstanding;
(d) Indebtedness of the Canadian Borrower under the Canadian
Operating Facility incurred for working capital purposes in an
aggregate principal amount not exceeding C$35,000,000 at any one time
outstanding;
(e) Indebtedness of the Company under the NationsBank Line of
Credit incurred for working capital purposes in an aggregate principal
amount not exceeding $25,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof and listed on
Schedule 10.2(f) and any refinancings, refundings, renewals or
extensions thereof (excluding any Indebtedness required to be repaid
pursuant to Section 8.2(g));
(g) Indebtedness of a corporation which becomes a Subsidiary
after the date hereof, provided that (i) such indebtedness existed at
the time such corporation became a Subsidiary and was not created in
anticipation thereof and (ii) immediately after giving effect to the
acquisition of such corporation by the Company no Default or Event of
Default shall have occurred and be continuing;
(h) Indebtedness of the Company of up to $400,000,000 under
the High Yield Notes, provided that the Borrowers and the General
Administrative Agent shall have entered into a written supplement to
this Agreement whereby the Company agrees to maintain a senior leverage
ratio of not greater than certain levels to be agreed by the Company
and the General Administrative Agent;
(i) Indebtedness in the form of Guarantee Obligations
permitted by Section 10.4; and
(j) additional Indebtedness of the Company not exceeding
$50,000,000 in aggregate principal amount at any one time outstanding.
10.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a
100
94
period of more than 60 days or which are being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
10.3(f), securing Indebtedness permitted by Section 10.2(f), provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(g) Liens securing Indebtedness of the Company and its
Subsidiaries permitted by Section 10.2(c) incurred to finance the
acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 90% of the original purchase price of
such property at the time it was acquired;
(h) Liens on assets of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary permitted by Section 10.2(f);
(i) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by Section 10.2(g), provided that (i) such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such corporation after the time such corporation
becomes a Subsidiary, and (iii) the amount of Indebtedness secured
thereby is not increased;
(j) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Subsidiaries)
$5,000,000 in aggregate amount at any time outstanding; and
101
95
(k) Liens created pursuant to the Security Documents.
10.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and
listed on Schedule 10.4;
(b) Guarantee Obligations of the Company or any of its
Subsidiaries in respect of Indebtedness and other obligations of
Subsidiaries which are permitted to be incurred by such Subsidiaries
hereunder, provided that such Guarantee Obligations shall be deemed
"investments" and must be permitted under Section 10.8;
(c) Guarantee Obligations in respect of, or in the nature of,
performance bonds or performance letters of credit or similar
obligations incurred in the ordinary course of business;
(d) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed (i) $75,000,000 at any one time
outstanding for the Company and its Domestic Subsidiaries and (ii)
$25,000,000 at any one time outstanding for the Company's Foreign
Subsidiaries;
(e) the Guarantee Obligations of Subsidiaries in respect of
the High Yield Notes, provided that such Guarantee Obligations are
subordinated to the obligations of the Subsidiaries under the Loan
Documents to the same extent as the Company's obligations under the
High Yield Notes are subordinated to the Company's obligations under
the Loan Documents; and
(f) the Guarantee Obligations under this Agreement or any
Security Document.
10.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Company (other than the Canadian
Borrower) may be merged or consolidated with or into the Company
(provided that the Company shall be the continuing or surviving
corporation) or with or into any one or more wholly owned Subsidiaries
of the Company (provided that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation);
(b) any wholly owned Subsidiary (other than the Canadian
Borrower) may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary
102
96
liquidation or otherwise) to the Company or any other wholly owned
Subsidiary of the Company;
(c) the Merger may be consummated in accordance with the terms
of the Merger Agreement; and
(d) the dissolution of Corsan Trucking, Inc.
10.6 Limitation on Disposition of Assets. Dispose of any of
its property, business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the case
of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock
to any Person other than the Company or any wholly owned Subsidiary, except:
(a) the sale or other Disposition of obsolete or worn out
property in the ordinary course of business;
(b) the sale or other Disposition of any property (other than
inventory), provided that the aggregate book value of all assets so
sold or disposed of in any period of twelve consecutive months shall
not exceed 5% of consolidated total assets of the Company and its
Subsidiaries as at the beginning of such twelve-month period;
(c) the sale of inventory in the ordinary course of business;
(d) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof;
(e) after the consummation of the Merger, the sale of
Safety-Kleen's European operations for fair market value;
(f) after the consummation of the Merger, the sale of
Safety-Kleen's oil recovery services business for fair market value;
and
(g) as permitted by Section 10.5(b).
10.7 Limitation on Dividends. Declare or pay any dividend
(other than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Company or any of its Subsidiaries or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called
103
97
"Restricted Payments"), except that any Subsidiary may make Restricted Payments
to the Company or any wholly owned Subsidiary of the Company and so long as, on
the date of such Restricted Payment, both before and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing
(a) the Company may make Restricted Payments to Holdings to service the Seller
Note, the Westinghouse Debt, the CPCFA Debt and the Tooele County Debt, provided
that (i) each such Restricted Payment shall be made on the date on which a cash
payment of interest under the Seller Note or of principal or interest under the
Westinghouse Debt, the CPCFA Debt or the Tooele County Debt, as the case may be,
is due and shall be in an amount not greater than the amount of such cash
payment, and such cash payment in respect of such Indebtedness shall be made by
Holdings on such date and (b) the Company may make Restricted Payments to
Holdings to provide for payment in the ordinary course of business of taxes,
directors' fees, stock exchange fees, and other costs and expenses of its
operations as a public company permitted by the Guarantee and Collateral
Agreement.
10.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except :
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) acquisitions of interests in any Persons (other than
Safety-Kleen) engaged in the hazardous and industrial waste management
services industry, provided that (i) the aggregate amount of cash
expended and Indebtedness assumed in connection with all such
investments does not exceed $100,000,000 in the aggregate during the
twelve month period following the Closing Date or $200,000,000 in the
aggregate during the term of this Agreement and (ii) after giving pro
forma effect to any such investment, no Default or Event of Default
shall have occurred and be continuing (including, without limitation,
pursuant to Section 10.1, with compliance with Section 10.1 being
determined on a pro forma basis as determined in the manner described
in the last paragraph of Section 10.1);
(d) loans to officers of the Company listed on Schedule 10.8
in aggregate principal amounts outstanding not to exceed the respective
amounts set forth for such officers on said Schedule;
(e) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Company and
its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
104
97
(f) investments by the Company and its Subsidiaries in the
Subsidiaries of the Company that are parties to the Guarantee and
Collateral Agreement;
(g) investments by the Company and its Domestic Subsidiaries
in the Canadian Borrower, the proceeds of which are used solely to
repay the Canadian Borrower Obligations, and additional investments by
the Company and its Domestic Subsidiaries in the Canadian Borrower in
an amount not exceeding $15,000,000 in the aggregate during the term of
this Agreement;
(h) investments by the Canadian Borrower in any of its
Subsidiaries that have guaranteed the Canadian Borrower Obligations;
(i) loans by the Company to its employees in connection with
management incentive plans in an aggregate amount not to exceed
$1,000,000;
(j) acquisitions of interests in Safety-Kleen pursuant to the
Exchange Offer and the Merger; and
(k) the loan made by the Company on the date hereof to
Safety-Kleen in the principal amount of $46,000,000.
10.9 Limitation on Optional Payments and Modifications of
Debt Instruments and other Instruments. (a) Make any optional payment or
prepayment on or redemption or purchase of any Indebtedness (other than
Indebtedness under this Agreement), (b) amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms relating to
the payment or prepayment or principal of or interest on any such Indebtedness
(other than any such amendment, modification or change which would extend the
maturity or reduce the amount of any payment of principal thereof or which would
reduce the rate or extend the date for payment of interest thereon), (c) amend
the subordination provisions of the Seller Note or the High Yield Notes, if any,
or (d) amend, modify or change in any material respect the terms of the Exchange
Offer or the Merger Agreement.
10.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Company's or such Subsidiary's business and (c) upon fair
and reasonable terms no less favorable to the Company or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate.
10.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such
105
99
Person on the security of such property or rental obligations of the Company or
such Subsidiary, except for any such arrangements with respect to real or
personal property with respect to which the aggregate sales price shall not
exceed $25,000,000.
10.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Company to end on a day other than August 31, unless the Company
shall have provided to the General Administrative Agent evidence satisfactory to
it that such change will have no effect on the calculation of, or compliance by
the Company with, the covenants set forth in Section 10.1; or permit the fiscal
years of the Company and Holdings to end on different days.
10.13 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
10.14 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for those businesses
in which the Company and its Subsidiaries, and Safety-Kleen and its
Subsidiaries, are engaged on the date of this Agreement or which are directly
related thereto.
10.15 Canadian Benefit and Pension Plans. Permit the Canadian
Borrower or any of its Subsidiaries to directly, or indirectly, (a) terminate or
cause to terminate, in whole or in part, or initiate the termination of, in
whole or in part, any Canadian Pension Plan so as to result in any liability to
any of them which could have a Material Adverse Effect, (b) permit to exist any
event or condition in respect of any Canadian Pension Plan which presents the
risk of liability of the Canadian Borrower or any of its Subsidiaries which
could have a Material Adverse Effect, (c) enter into any new Canadian Pension
Plan or Canadian Benefit Plan or modify any such existing plans so as to
increase its obligations thereunder which could result in any liability to any
of them and which could have a Material Adverse Effect; (d) permit the greater
of the going concern unfunded liability or the solvency deficiency under
Canadian Pension Plans, but only to the extent they are permitted to remain
unfunded under Requirements of Law, to exceed (in the aggregate, taking into
account all Canadian Pension Plans of the Canadian Borrower and its
Subsidiaries) C$5,000,000, (e) fail to make minimum required contributions to
amortize any funding deficiencies under a Canadian Pension Plan within the time
period set out in any Requirements of Law, (f) fail to make a required
contribution under any Canadian Pension Plan or Canadian Benefit Plan which
could result in the imposition of a Lien upon the assets of any of the Canadian
Borrower or any of its Subsidiaries within 30 days after the date such payment
becomes due, unless such payment is being contested pursuant to Section 9.3; (g)
make any improper withdrawals or applications of assets of a Canadian Pension
Plan or Canadian Benefit Plan or (h) accept payment of any amount from any
Canadian Pension Plan.
106
100
10.16 Hedging Agreements. Enter into any Hedging Agreement
outside the ordinary course of business or for speculative purposes.
SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms thereof or hereof; or either
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by
either Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall
prove to have been incorrect in any material respect on or as of the
date made or deemed made; or
(c) The Company or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 10 of
this Agreement or Section 5 of the Guarantee and Collateral Agreement,
or Acquisition Corp. shall default in the observance or performance of
any agreement contained in the Acquisition Corp. Pledge Agreement; or
(d) The Company or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) Holdings, the Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
beyond the period of grace (not to exceed 30 days), if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (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 become due prior to its
107
101
stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall exist
under this paragraph unless the aggregate amount of Indebtedness and/or
Guarantee Obligations in respect of which any default or other event or
condition referred to in this paragraph shall have occurred shall be
equal to at least $15,000,000; or
(f) (i) Holdings, the Company or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part of its
assets, or Holdings, the Company or any of its Subsidiaries shall make
a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against Holdings, the Company or any of its
Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against Holdings, the Company or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) Holdings, the Company or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) Holdings, the Company or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from,
108
102
or the Insolvency or Reorganization of, a Multiemployer Plan or (vi)
any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any,
could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $15,000,000 or
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or either Borrower or any other
Loan Party which is a party to any of the Security Documents shall so
assert or (ii) the Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported
to be created thereby; or
(j) The Guarantee and Collateral Agreement shall cease, for
any reason, to be in full force and effect or any Guarantor shall so
assert; or
(k) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Company or the Canadian Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement (including, without limitation,
all Acceptance Reimbursement Obligations, regardless of whether or not such
Acceptance Reimbursement Obligations are then due and payable) and the other
Loan Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Facility Lenders under the Revolving Credit Facility, the General Administrative
Agent may, or upon the request of the Majority Facility Lenders under the
Revolving Credit Facility, the General Administrative Agent shall, by notice to
the Company declare the Revolving Credit Commitments to be terminated forthwith,
whereupon such commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the General Administrative Agent may, or upon
the request of the Required Lenders, the General Administrative Agent shall, by
notice to the Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder, and all Acceptance Reimbursement Obligations, regardless of
whether or not such Acceptance
109
103
Reimbursement Obligations are then due and payable) and the other Loan Documents
to be due and payable forthwith, whereupon the same shall immediately become due
and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Company shall at such time deposit in a
cash collateral account opened by the General Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied by the
General Administrative Agent to the payment of drafts drawn under such Letters
of Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Company hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Company hereunder and under the other Loan Documents shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the Company (or such other Person as may be lawfully entitled thereto).
With respect to all outstanding Acceptance Reimbursement
Obligations in respect of Acceptances which have not matured at the time of an
acceleration pursuant to the paragraph above, the Canadian Borrower shall at
such time deposit in a cash collateral account opened by and maintained by the
Canadian Administrative Agent an amount equal to the aggregate undiscounted face
amount of all such unmatured Acceptances. Amounts held in such cash collateral
account shall be applied by the Canadian Administrative Agent to the payment of
maturing Acceptances, and any balance in such account shall be applied to repay
other obligations of the Canadian Borrower hereunder and under any Notes. After
all Acceptance Reimbursement Obligations shall have been satisfied and all other
obligations of the Canadian Borrower hereunder and under any Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Canadian Borrower.
Except as otherwise expressly provided above in this Section
11, the Borrowers waive presentment, demand, protest or other notice of any
kind.
SECTION 12. THE ADMINISTRATIVE AGENTS; OTHERS
12.1 Appointment. Each Lender hereby irrevocably designates
and appoints Toronto Dominion (Texas), Inc. as the General Administrative Agent
and The Toronto-Dominion Bank as the Canadian Administrative Agent of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the General Administrative Agent and the Canadian
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the General Administrative
Agent and the Canadian Administrative Agent, respectively, by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental
110
104
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agents shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
Each Issuing Lender shall act on behalf of the Lenders with
respect to Letters of Credit issued by it under this Agreement and the documents
associated therewith. It is understood and agreed that each Issuing Lender (a)
shall have all of the benefits and immunities (i) provided to an Administrative
Agent in this Section 12 with respect to acts taken or omissions suffered by
such Issuing Lender in connection with Letters of Credit issued by it under this
Agreement and the documents associated therewith as fully as if the term
"General Administrative Agent", "Canadian Administrative Agent" or
"Administrative Agent", as used in this Section 12, included such Issuing Lender
with respect to such acts or omissions and (ii) as additionally provided in this
Agreement and (b) shall have all of the benefits of the provisions of Section
12.7 as fully as if the term "General Administrative Agent", "Canadian
Administrative Agent" or "Administrative Agent", as used in Section 12.7,
included such Issuing Lender.
Each Lender authorizes and directs the Administrative Agents
to execute and deliver the Intercreditor Agreement.
12.2 Delegation of Duties. Each Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Neither Administrative
Agent shall be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither Administrative Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrowers or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by such Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Company to perform its obligations hereunder
or thereunder. Neither Administrative Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of either Borrower.
111
105
12.4 Reliance by Administrative Agents. Each Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers),
independent accountants and other experts selected by such Administrative Agent.
Each Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Administrative Agent. Each
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or Majority Facility
Lenders, as applicable, as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Each Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, in any case
where this Agreement specifically requires the consent of the Majority Facility
Lenders under any Facility, such Majority Facility Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
12.5 Notice of Default. Neither Administrative Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Administrative Agent has received notice from a
Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that an Administrative Agent receives such a notice, such Administrative
Agent shall give notice thereof to the Lenders. Each Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders or Majority Facility Lenders, as
applicable; provided that unless and until the Administrative Agents shall have
received such directions, the Administrative Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
12.6 Non-Reliance on Administrative Agents and Other Lenders.
(a) Each Lender expressly acknowledges that neither Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
either Administrative Agent hereinafter taken, including any review of the
affairs of the Company or the Canadian Borrower, shall be deemed to constitute
any representation or warranty by such Administrative Agent to any Lender. Each
Lender represents to each Administrative Agent that it has, independently and
without reliance upon such Administrative Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and
112
106
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon either Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Company. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by such
Administrative Agent hereunder, each Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Company or the Canadian
Borrower which may come into the possession of such Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
(b) For purposes of determining compliance with the conditions
specified in Section 8.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by either Administrative Agent or the
Company to such Lender prior to the Closing Date, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
12.7 Indemnification. The Lenders agree to indemnify each
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Aggregate Commitment Percentages in effect
on the date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from such
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
12.8 Agent in Its Individual Capacity. Each Administrative
Agent and its respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrowers as though such
Administrative Agent were not an Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it and with respect to
any Letter of Credit issued or participated in by it, each
113
107
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and "Lenders" shall
include such Administrative Agent in its individual capacity.
12.9 Successor Agent. Either Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders. If either
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Company), shall succeed to the rights,
powers and duties of such Administrative Agent hereunder. Effective upon such
appointment and approval, the term "General Administrative Agent" or "Canadian
Administrative Agent", as the case may be, shall mean such successor agent, and
such former Administrative Agent's rights, powers and duties as General
Administrative Agent or Canadian Administrative Agent, as the case may be, shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
an Administrative Agent, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
12.10 Others. Neither the Arranger, the Syndication Agent nor
any Managing Agent, in such respective capacities, shall have any duties or
responsibilities, or incur any liabilities, under this Agreement or the other
Loan Documents.
SECTION 13. GUARANTEE
13.1 Guarantee. In order to induce the Administrative Agents
and the Lenders to execute and deliver this Agreement and to make or maintain
Extensions of Credit to the Canadian Borrower hereunder, and to induce the
Canadian Operating Facility Lender to enter into the Canadian Operating Facility
and to make loans to the Canadian Borrower thereunder, and in consideration
thereof, the Company hereby unconditionally and irrevocably guarantees to the
Administrative Agents, for the ratable benefit of the Lenders to which Canadian
Borrower Obligations are owed and to the Canadian Operating Facility Lender, the
prompt and complete payment and performance by the Canadian Borrower when due
(whether at stated maturity, by acceleration or otherwise) of the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations,
respectively, and the Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by either Administrative Agent, the
Lenders or the Canadian Operating Facility Lender in enforcing, or obtaining
advice of counsel in respect of, any of their rights under the guarantee
contained in this Section 13. The guarantee contained in this Section 13,
subject to Section 13.5, shall remain in full force and effect until the
Canadian Borrower Obligations and the Canadian Operating Facility
114
108
Obligations are paid in full, the Commitments are terminated, no Extensions of
Credit are outstanding and the Canadian Operating Facility is terminated,
notwithstanding that from time to time prior thereto the Canadian Borrower may
be free from any obligations or liabilities under this Agreement or the Canadian
Operating Facility.
The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agents, any Lender or the
Canadian Operating Facility Lender on account of its liability under this
Section 13, it will notify the Administrative Agents and such lender in writing
that such payment is made under the guarantee contained in this Section 13 for
such purpose. No payment or payments made by the Canadian Borrower or any other
Person or received or collected by either Administrative Agent, any Lender or
the Canadian Operating Facility Lender from the Canadian Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Canadian Borrower Obligations or the Canadian Operating Facility Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Company under this Section 13 which, notwithstanding any such payment or
payments, shall remain liable for the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations, as the case may be, until, subject to
Section 13.5, the Canadian Borrower Obligations are paid in full, the Canadian
Term Loan Commitments are terminated and no Letters of Credit are outstanding,
the Canadian Operating Facility Obligations are paid in full and the Canadian
Operating Facility is terminated.
13.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Section 13, the Company hereby
irrevocably waives all rights which may have arisen in connection with the
guarantee contained in this Section 13 to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code (or similar action
under any successor law or under any comparable law), including Section 509
thereof, under common law or otherwise) of the Administrative Agents, any Lender
or the Canadian Operating Facility Lender against the Canadian Borrower or
against either Administrative Agent or any such lender for the payment of the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations,
until all the Canadian Borrower Obligations and Canadian Operating Facility
Obligations shall have been paid in full and each of the Canadian Term Loan
Commitments and the Canadian Operating Facility shall have been terminated. The
Company hereby further irrevocably waives all contractual, common law, statutory
and other rights of reimbursement, contribution, exoneration or indemnity (or
any similar right) from or against the Canadian Borrower or any other Person
which may have arisen in connection with the guarantee contained in this Section
13, until the Canadian Borrower Obligations and the Canadian Operating Facility
Obligations shall have been paid in full and the Canadian Term Loan Commitments
and the Canadian Operating Facility shall have been terminated. So long as the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations
remain outstanding, if any amount shall be paid by or on behalf of the Canadian
Borrower to the Company on account of any of the rights waived in this Section
13.2, such amount shall be held by the Company in trust, segregated from other
115
109
funds of the Company, and shall, forthwith upon receipt by the Company, be
turned over to the Canadian Administrative Agent in the exact form received by
the Company (duly indorsed by the Company to the Canadian Administrative Agent,
if required), to be applied against the Canadian Borrower Obligations and the
Canadian Operating Facility Obligations, whether matured or unmatured, in such
order as the Canadian Administrative Agent may determine. The provisions of this
Section 13.2 shall survive the term of the guarantee contained in this Section
13 and the payment in full of the Canadian Borrower Obligations and the Canadian
Operating Facility Obligations and the termination of the Canadian Term Loan
Commitments and the Canadian Operating Facility.
13.3 Amendments, etc. with respect to the Canadian Borrower
Obligations. The Company shall remain obligated under this Section 13
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of or
reduction in the principal amount of any of the Canadian Borrower Obligations or
the Canadian Operating Facility Obligations made by either Administrative Agent,
any Lender or the Canadian Operating Facility Lender may be rescinded by such
Administrative Agent or such lender, and any of the Canadian Borrower
Obligations or the Canadian Operating Facility Obligations, as the case may be,
continued, and the Canadian Borrower Obligations or the Canadian Operating
Facility Obligations, as the case may be, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by such Administrative Agent, any Lender or the Canadian
Operating Facility Lender, and this Agreement, any other Loan Document, and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Lenders (or
the Required Lenders, as the case may be) may deem advisable (or in the case of
the Canadian Operating Facility Obligations, as the Canadian Operating Facility
Lender may deem advisable) from time to time, and any collateral security,
guarantee or right of offset at any time held by either Administrative Agent,
any Lender or the Canadian Operating Facility for the payment of the Canadian
Borrower Obligations or the Canadian Operating Facility may be sold, exchanged,
waived, surrendered or released. Neither Administrative Agents nor any Lender or
the Canadian Operating Facility Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Canadian Borrower Obligations, the Canadian Operating Facility Obligations or
for the guarantee contained in this Section 13 or any property subject thereto.
13.4 Guarantee Absolute and Unconditional. The Company waives
any and all notice of the creation, renewal, extension or accrual of any of the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations and
notice of or proof of reliance by either Administrative Agent, any Lender or the
Canadian Operating Facility Lender upon the guarantee contained in this Section
13 or acceptance of the guarantee contained in this Section 13; the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations, and any of
them, shall conclusively be deemed to have been created, contracted
116
110
or incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 13; and all dealings between the Canadian
Borrower or the Company, on the one hand, and either Administrative Agent, the
Lenders and/or the Canadian Operating Facility Lender, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Section 13. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Canadian Borrower or the Company with respect to the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations. The
guarantee contained in this Section 13 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of this Agreement or any other Loan Document or the
Canadian Operating Facility, any of the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by either Administrative Agent, any Lender or the Canadian Operating
Facility Lender, (b) any defense, setoff or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be asserted
by the Borrowers against either Administrative Agent, any Lender or the Canadian
Operating Facility Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Canadian Borrower or the Company) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Canadian Borrower for the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations, or of the Company under the guarantee
contained in this Section 13, in bankruptcy or in any other instance. When
either Administrative Agent, any Lender or the Canadian Operating Facility
Lender is pursuing its rights and remedies under this Section 13 against the
Company, such Administrative Agent or any such lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Canadian Borrower or any other Person or against any collateral security or
guarantee for the Canadian Borrower Obligations or the Canadian Operating
Facility Obligations or any right of offset with respect thereto, and any
failure by such Administrative Agent or any such lender to pursue such other
rights or remedies or to collect any payments from the Canadian Borrower or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the Canadian Borrower
or any such other Person or of any such collateral security, guarantee or right
of offset, shall not relieve the Company of any liability under this Section 13,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agents, the Lenders and
the Canadian Operating Facility Lender against the Company.
13.5 Reinstatement. The guarantee contained in this Section 13
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Canadian Borrower Obligations
or the Canadian Operating Facility Obligations is rescinded or must otherwise be
restored or returned by either Administrative Agent, any Lender or the Canadian
Operating Facility Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Canadian Borrower or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar
117
111
officer for, the Canadian Borrower or any substantial part of its property, or
otherwise, all as though such payments had not been made.
13.6 Payments. The Company hereby agrees that any payments in
respect of the Canadian Borrower Obligations and the Canadian Operating Facility
Obligations pursuant to this Section 13 will be paid to the Canadian
Administrative Agent without setoff or counterclaim in Canadian Dollars, at the
office of the Canadian Administrative Agent specified in Section 14.2.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. Neither this Agreement, the
Intercreditor Agreement nor any other Loan Document, nor any terms hereof or
thereof may be amended, supplemented or modified except as set forth in Section
10.2(h) or in accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agents may, from time to time, (a) enter into with the Borrowers
written amendments, supplements or modifications hereto and to the other Loan
Documents or the Intercreditor Agreement for the purpose of adding any
provisions to this Agreement, the other Loan Documents or the Intercreditor
Agreement or changing in any manner the rights of the Lenders or of the
Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agents, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or the Intercreditor Agreement or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend the
scheduled date of maturity of any Loan or of any installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the amount or extend the expiration date
of any Lender's Commitments or extend the expiry date of any Letter of Credit
beyond the date referred to in Section 3.1(a), or modify the provisions of
Section 6.9, in each case without the consent of each Lender affected thereby,
or (ii) amend, modify or waive any provision of this Section or reduce the
percentage specified in the definition of Required Lenders or Majority Facility
Lenders, or consent to the assignment or transfer by either Borrower of any of
its rights and obligations under this Agreement and the other Loan Documents or
release all or substantially all of the Collateral or release all or
substantially all of the Guarantors from their obligations under the Guarantee
and Collateral Agreement, in each case without the written consent of all the
Lenders, (iii) amend, modify or waive any provision of Section 4 or 5 without
the consent of the Majority Facility Lenders under the Canadian Term Loan
Facility, (iv) amend, modify or waive any provision of Section 12 without the
written consent of the Administrative Agents, (v) amend, modify or waive any
provision of Section 3 without the written consent of each Issuing Lender, (vi)
amend, modify or waive any provision of Section 13 without the consent of all
the Canadian Lenders or (vii) amend, modify or waive any provision of Section
6.3 without the consent of the Majority Facility Lenders under each Facility.
Any such waiver and any such amendment, supplement
118
112
or modification shall apply equally to each of the Lenders and shall be binding
upon the Borrowers, the Lenders, the Agents and all future holders of the Loans.
In the case of any waiver, the Borrowers, the Lenders and the Agents shall be
restored to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
14.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrowers, the General Administrative Agent and the
Canadian Administrative Agent, and as set forth in Schedule 1.1F in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto:
The Company: LES, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Canadian Borrower: ▇▇▇▇▇▇▇ Environmental (Canada) Ltd.
c/o LES, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The General Administrative Agent: Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Canadian Administrative Agent: The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Dominion Centre
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Manager Agency
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
119
113
provided that any notice, request or demand to or upon the General
Administrative Agent, the Canadian Administrative Agent or the Lenders pursuant
to Section 2.2, 2.4, 2.6, 4.2, 5.2, 5.5, 6.2, 6.3 and 6.4 shall not be effective
until received.
14.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
14.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
14.5 Payment of Expenses and Taxes. The Company agrees (a) to
pay or reimburse each Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to such Administrative Agent (b) to pay or
reimburse each Lender, the General Administrative Agent and the Canadian
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and disbursements of counsel to each Lender and of counsel to such
Administrative Agent, (c) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and each Administrative Agent harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Company or any of its
Subsidiaries or any of the facilities or properties owned, leased or operated by
the Company or any of its Subsidiaries (all the foregoing in this clause (d),
120
114
collectively, the "indemnified liabilities"), provided that the Borrowers shall
have no obligation hereunder to any person seeking indemnification with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of such person. Without limiting the foregoing, and to the extent
permitted by applicable law, the Company agrees, and shall cause each of its
Subsidiaries to agree, not to assert, and hereby waives and agrees to cause each
of its Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
whatever kind or nature whatsoever, under or related to Environmental Laws, that
any of them might have by statute or otherwise against each Lender and each
Administrative Agent. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
14.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agents, all future holders of the
Loans, the Reimbursement Obligations and the Acceptance Reimbursement
Obligations and their respective successors and assigns, except that no Borrower
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking or institutional financial business and in accordance with applicable
law, at any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents; provided that, in the case of participations in any Canadian Term
Loan granted by a Canadian Lender, such Participant must be a resident of Canada
for purposes of the Tax Act unless such participation is granted pursuant to
Section 14.7. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan or other interest for all purposes under this Agreement
and the other Loan Documents, and the Borrowers and the Administrative Agents
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to Section 14.1. Each
of the Borrowers agrees that if amounts outstanding under this Agreement are due
or unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof
121
115
as provided in Section 14.7(a) as fully as if it were a Lender hereunder. Each
of the Borrowers also agrees that each Participant shall be entitled to the
benefits of Sections 6.11, 6.12 and 6.13 with respect to its participation in
the Commitments and the Loans and other amounts outstanding from time to time as
if it was a Lender; provided that, in the case of Section 6.12, such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking or institutional financial business and in accordance with applicable
law, at any time and from time to time assign to any Lender, an Approved Fund of
any Lender, or any affiliate thereof or, with the consent of the Company and the
General Administrative Agent (which in each case shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or fund (an
"Assignee") all or any part of its rights and obligations under this Agreement
and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit L, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender, an
Approved Fund of any Lender, or an affiliate thereof, by the Company and the
General Administrative Agent) and delivered to the appropriate Administrative
Agent for its acceptance and recording in the Register, provided that no such
assignment to an Assignee (other than any Lender, any Approved Fund of any
Lender, or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the Company
and the General Administrative Agent. Any such assignment need not be ratable as
among the Facilities. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this Section, the consent
of the Company shall not be required, and, unless requested by the Assignee
and/or the assigning Lender, new Notes shall not be required to be executed and
delivered by any Borrower, for any assignment which occurs at any time when any
Event of Default shall have occurred and be continuing.
(d) The General Administrative Agent, on behalf of the
Borrowers, shall maintain at the address of the General Administrative Agent
referred to in Section 14.2 a copy of each Assignment and Acceptance delivered
to it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amounts of the
Loans owing to, each Lender from time to time. The entries in the Register
122
116
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agents and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender, an Approved Fund of any Lender, or an affiliate thereof, by
the Company and the General Administrative Agent) together with payment to the
General Administrative Agent (or, in the case of an Assignment of a portion of
the Canadian Term Loans only, to the Canadian Administrative Agent) of a
registration and processing fee of $3,500, the General Administrative Agent (or
the Canadian Administrative Agent, as appropriate) shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the relevant
Borrower.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 14.16, any and all financial information in
such Lender's possession concerning the Borrowers and their Affiliates which has
been delivered to such Lender by or on behalf of the Borrowers pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrowers in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
14.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") (i) shall at any time prior to any date on which the Commitments are
terminated and the Loans become due and payable pursuant to Section 11 (an
"Acceleration") receive any payment of all or part of its Extensions of Credit
made by it to any Borrower, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender's Extensions of Credit
made by it to such Borrower, or interest thereon (in each case except to the
extent that this Agreement provides for payments to be allocated to the Lenders
under a particular Facility) or (ii) shall at any time after an Acceleration
receive any payment of all or part of the aggregate amount of the Extensions of
Credit made by such benefitted Lender to all Borrowers, or interest thereon, or
receive any
123
117
collateral in respect thereof (whether voluntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 11(f), or otherwise),
in a greater proportion than any such payment or collateral received by any
other Lender, if any, in respect by the aggregate amount of the Extensions of
Credit made by such Lender to all Borrowers, or interest thereon, then, in each
case described in the foregoing clauses (i) and (ii), such benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Extensions of Credit, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders (to the extent required by the foregoing clause (i) or (ii), as
applicable); provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrowers, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable by a
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch, agency or
Affiliate thereof to or for the credit or the account of the Borrower. Each
Lender agrees promptly to notify the Borrowers and the Administrative Agents
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
(c) Notwithstanding the foregoing, no Lender shall institute
or commence any proceeding to collect any amounts owed to it hereunder or shall
otherwise exercise any remedies (including setoff) with respect to the amounts
owed to it unless such Lender shall provide at least five Business Days' (or
such shorter period as may be consented to by the General Administrative Agent)
prior written notice thereof to the General Administrative Agent.
14.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Company and each Administrative Agent.
14.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and
124
118
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
14.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents, and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agents or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
14.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.12 Submission To Jurisdiction; Waivers. (a) Each Borrower
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgement in respect thereof, to the non-exclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Borrower at its address set forth in
Section 14.2 or at such other address of which each Administrative
Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to ▇▇▇ in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
125
119
(b) The Canadian Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
Section 14.2(a) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of the Company at its
address for notice set forth in Section 14.2(a).
14.13 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agents and Lenders, on one
hand, and such Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among such Borrower and the
Lenders.
14.14 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.15 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender
126
120
against such loss, and if the amount of the Agreement Currency so purchased
exceeds the sum originally due to any Lender, such Lender agrees to remit to
such Borrower such excess.
14.16 Confidentiality. Each Lender agrees to keep confidential
all non-public information provided to it by the Company pursuant to this
Agreement that is designated by the Company in writing as confidential; provided
that nothing herein shall prevent any Lender from disclosing any such
information (i) to its affiliates, the Administrative Agents or any other
Lender, (ii) to any Transferee which agrees to comply with the provisions of
this subsection, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, or to direct or indirect
contractual counterparts in swap agreements relating to swaps with a Borrower or
such contractual counterparties' professional advisors provided that any such
contractual counterparty or its professional advisors shall agree to keep such
confidential information confidential, (iv) upon the request or demand of any
Governmental Authority having jurisdiction over such Lender, (v) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (vi) which has been publicly
disclosed other than in breach of this Agreement, or is currently publicly
available or is in the possession of a Lender on a nonconfidential basis or is
disclosed to a Lender on a nonconfidential basis by a person who in so doing has
not violated a duty of confidentiality owing to the Company (vii) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (viii) in connection with the exercise of any remedy
hereunder.
14.17 Effect of Amendment and Restatement. On the Closing
Date, the Existing Credit Agreement and the Guarantee and Collateral Agreement
(as defined in the Existing Credit Agreement) shall be amended, restated and
superseded in their entirety, and the Mortgages and Canadian Collateral
Documents (as such terms are defined in the Existing Credit Agreement) are being
amended and/or affirmed as provided herein. The parties hereto acknowledge and
agree that (a) this Agreement and the other Loan Documents, whether executed and
delivered in connection herewith or otherwise, do not constitute a novation or
termination of the obligations of the Loan Parties (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement as in effect prior to the
Closing Date; (b) such obligations are in all respects continuing (as amended
and restated hereby) with only the terms thereof being modified as provided in
this Agreement; (c) the Liens, guarantees and security interests as granted
under the Security Documents (as defined in this Agreement) securing payment of
such obligations are in all respects continuing and in full force and effect and
secure the payment of the obligations of the Loan Parties under (and as defined)
in this Agreement; and (d) upon the effectiveness of this Agreement, all loans
outstanding under the Existing Credit Agreement immediately before the
effectiveness of this Agreement will be continued as Loans hereunder or will be
repaid in accordance with the Existing Credit Agreement on the Closing Date and
reborrowed hereunder as provided herein, and, except as provided herein with
respect to the Specified Acceptances, all outstanding letters of credit and
bankers' acceptances under the Existing Credit Agreement will be continued as
Letters of
127
121
Credit and Acceptances, respectively, hereunder, in each case on the terms and
conditions set forth in this Agreement.
128
122
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LES, INC.
By:
-----------------------------------------
Title:
▇▇▇▇▇▇▇ ENVIRONMENTAL SERVICES
(CANADA) LTD.
By:
-----------------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent and Lender
By:
-----------------------------------------
Title:
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent
By:
-----------------------------------------
Title:
TD SECURITIES (USA) INC.,
as Arranger
By:
-----------------------------------------
Title:
129
123
THE TORONTO-DOMINION BANK,
as a Lender
By:
-----------------------------------------
Title:
By:
-----------------------------------------
Title:
THE BANK OF NOVA SCOTIA,
as Managing Agent, Co-Documentation Agent
and Lender
By:
-----------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Managing Agent, Co-Documentation Agent
and Lender
By:
-----------------------------------------
Title:
NATIONSBANK, N.A.,
as Syndication Agent, Managing Agent and
Lender
By:
-----------------------------------------
Title:
WACHOVIA BANK, N.A.,
as Managing Agent and Lender
By:
-----------------------------------------
Title:
130
▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AMERICAN
CAPITAL PRIME RATE INCOME TRUST
By:
-----------------------------------------
Title:
OAK HILL SECURITIES FUND, L.P.
BY: OAK HILL SECURITIES GENPAR, L.P., its
General Partner
BY: OAK HILL SECURITIES MGP, INC., its
General Partner
By:
----------------------------------
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST
By:
-----------------------------------------
Title:
KZH HOLDING CORPORATION III
By:
-----------------------------------------
Title:
131
125
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
COMPANY
BY: PPM AMERICA, INC., as attorney in fact,
on behalf of ▇▇▇▇▇▇▇ National Life
Insurance Company
By:
-------------------------------------
Title:
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
By:
-----------------------------------------
Title:
METROPOLITAN LIFE INSURANCE
COMPANY
By:
-----------------------------------------
Title:
KZH-CRESCENT CORPORATION
By:
-----------------------------------------
Title:
KZH-CRESCENT 2 CORPORATION
By:
-----------------------------------------
Title:
132
126
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT COMPANY,
as its Investment Manager
By:
------------------------------------
Title:
ARCHIMEDES FUNDING LLC
BY: ING CAPITAL ADVISORS, INC., as
Collateral Manager
By:
------------------------------------
Title:
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
AS: Attorney-in-Fact and on behalf of FIRST
ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY as Portfolio
By:
------------------------------------
Title:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By:
------------------------------------
Title: Vice President &
Portfolio Manager
133
127
KZH-ING-1-CORPORATION
By:
-----------------------------------------
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: INDOSUEZ CAPITAL LUXEMBOURG, as
Collateral Manager
By:
------------------------------------
Title:
KZH-ING-2-CORPORATION
By:
-----------------------------------------
Title:
KZH SOLEIL CORPORATION
By:
-----------------------------------------
Title:
DELANO COMPANY
BY: PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor
By:
------------------------------------
Title:
134
128
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
BY: TCW ASSET MANAGEMENT COMPANY,
as Attorney-in-Fact
By:
------------------------------------
Title:
ROYALTON COMPANY
BY: PACIFIC INVESTMENT MANAGMENT
COMPANY, as its Investment Advisor
By:
------------------------------------
Title:
DEEPROCK & COMPANY
BY: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT, as
Investment Advisor
By:
------------------------------------
Title: