EXHIBIT 10.10
EXECUTION COPY
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IRON MOUNTAIN INCORPORATED
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 15, 2002
---------------------------------
$650,000,000
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FLEET NATIONAL BANK
as Documentation Agent
JPMORGAN CHASE BANK,
as Administrative Agent
▇.▇. ▇▇▇▇▇▇ BANK CANADA,
as Canadian Administrative Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Arranger and Book Manager
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TABLE OF CONTENTS
PAGE
Section 1 Definitions and Accounting Matters...................................... 2
1.01. Certain Defined Terms................................................ 2
1.02. Accounting Terms and Determinations..................................29
1.03. Types of Loans.......................................................30
Section 2 Loans, Etc..............................................................30
2.01. US$ Loans; US$-Canadian Loans; Multi-Currency Loans; C$ Loans;
Swingline Loans; Term Loans..........................................30
2.02. Reductions of Commitments............................................31
2.03. Fees.................................................................32
2.04. Lending Offices......................................................32
2.05. Several Obligations: Remedies Independent............................32
2.06. Notes................................................................32
2.07. Use of Proceeds......................................................33
2.08. Letters of Credit....................................................33
2.09. Currency Fluctuations, etc...........................................38
Section 3 Borrowings, Conversions and Prepayments.................................39
3.01. Procedure for US$ Loan Borrowing, US$-Canadian Loan Borrowing,
Term Loan Borrowing and Multi-Currency Borrowing.....................39
3.02. Prepayments and Conversions..........................................39
3.03. Procedure for Swingline Borrowing; Refunding of Swingline Loans......41
Section 4 Payments of Principal and Interest......................................42
4.01. Repayment of Loans...................................................42
4.02. Interest.............................................................43
Section 5 Payments; Pro Rata Treatment; Computations; Etc.........................45
5.01. Payments.............................................................45
5.02. Pro Rata Treatment...................................................46
5.03. Computations.........................................................47
5.04. Minimum and Maximum Amounts; Types...................................48
5.05. Certain Notices......................................................48
5.06. Non-Receipt of Funds by the Administrative Agent.....................51
5.07. Sharing of Payments; Waiver of Enforcement Without Consent. Etc......51
5.08. Withholding Tax Exemption............................................52
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5.09. Judgment Currency....................................................54
Section 6 Yield Protection and Illegality.........................................54
6.01. Additional Costs.....................................................54
6.02. Limitation on Types of Loans.........................................56
6.03. Illegality...........................................................56
6.04. Substitute ABR Loans.................................................57
6.05. Compensation.........................................................57
6.06. Capital Adequacy.....................................................57
6.07. Substitution of Lender...............................................58
6.08. Additional Costs in Respect of Letters of Credit.....................58
6.09. Foreign Borrower Costs...............................................59
Section 7 Conditions Precedent....................................................59
7.01. Effective Date.......................................................59
7.02. Initial and Subsequent Loans.........................................61
7.03. First Loan to a Subsidiary Borrower..................................61
Section 8 Representations and Warranties..........................................62
8.01. Corporate Existence..................................................62
8.02. Information..........................................................62
8.03. Litigation...........................................................63
8.04. No Breach............................................................63
8.05. Corporate Action.....................................................63
8.06. Approvals............................................................64
8.07. Regulations U and X..................................................64
8.08. ERISA and the Canadian Pension Plans.................................64
8.09. Taxes................................................................64
8.10. Subsidiaries; Agreements; Etc........................................64
8.11. Investment Company Act...............................................65
8.12. Public Utility Holding Company Act...................................65
8.13. Ownership and Use of Properties......................................65
8.14. Environmental Compliance.............................................65
8.15. Solvency.............................................................65
8.16. Senior Debt..........................................................66
Section 9 Covenants...............................................................66
9.01. Financial Statements and Other Information...........................66
9.02. Taxes and Claims.....................................................68
9.03. Insurance............................................................68
9.04. Maintenance of Existence; Conduct of Business........................69
9.05. Maintenance of and Access to Properties..............................69
9.06. Compliance with Applicable Laws......................................70
9.07. Litigation...........................................................70
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9.08. Indebtedness.........................................................70
9.09. Leverage Ratios......................................................71
9.10. Interest Coverage Ratio..............................................72
9.11. Fixed Charges Coverage Ratio.........................................73
9.12. Mergers, Asset Dispositions. Etc.....................................73
9.13. Liens................................................................74
9.14. Investments..........................................................75
9.15. Restricted Payments..................................................77
9.16. Transactions with Affiliates.........................................77
9.17. Subordinated Indebtedness............................................78
9.18. Lines of Businesses..................................................78
9.19. Modification of Other Agreements.....................................79
9.20. Interest Rate and Currency Exchange Protection.......................79
9.21. Certain Obligations Respecting Subsidiaries..........................79
9.22. Environmental Matters................................................80
9.23. Residual Assurances..................................................80
9.24. Investments in Excluded Subsidiaries.................................81
9.25. Hedging Agreements...................................................81
9.26. Perfection of Security Interests in Stock of Foreign
Subsidiaries.......................................................81
Section 10 Defaults................................................................81
10.01. Events of Default....................................................81
10.02. Ratable Treatment of Lenders.........................................84
Section 11 The Administrative Agent................................................85
11.01. Appointment Powers and Immunities....................................85
11.02. Reliance by Administrative Agent.....................................85
11.03. Defaults.............................................................86
11.04. Rights as a Lender...................................................86
11.05. Indemnification......................................................86
11.06. Non-Reliance on Administrative Agent and Other Lenders...............87
11.07. Failure to Act.......................................................87
11.08. Resignation or Removal of Administrative Agent.......................87
11.09. Consents under Basic Documents.......................................88
11.10. Collateral Sub-Agents................................................88
11.11. Multi-Currency Payment Agent and Canadian Administrative Agent.......88
11.12. Additional Ministerial Powers of the Agents..........................88
Section 12 Miscellaneous...........................................................88
12.01. Waiver...............................................................88
12.02. Notices..............................................................88
12.03. Expenses Etc.........................................................89
12.04. Indemnification......................................................89
12.05. Amendments. Etc......................................................89
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12.06. Successors and Assigns...............................................90
12.07. Confidentiality......................................................91
12.08. Survival.............................................................92
12.09. Captions.............................................................92
12.10. Counterparts; Integration............................................92
12.11. [intentionally omitted]..............................................92
12.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL......92
12.13. Canadian Borrower's Agent; Subsidiary Borrowers' Agent...............93
12.14. Designation of Indebtedness..........................................93
12.15. Amendments to Security Documents, Etc................................93
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SCHEDULES
SCHEDULE I - Commitments
SCHEDULE II - Subsidiaries; Investments in Joint Ventures and Other Persons
SCHEDULE III -
Credit Agreements, Indentures, Leases
SCHEDULE IV - Existing Letters of Credit
SCHEDULE V - Subsidiary Borrowers
EXHIBITS
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B - Subsidiary Guaranty
EXHIBIT C - Company Guaranty
EXHIBIT D - Company Pledge Agreement
EXHIBIT E - Subsidiary Pledge Agreement
EXHIBIT F - Canadian Borrower Pledge Agreement
EXHIBIT G-1 - Form of Opinion of Special
New York Counsel to the
Company
EXHIBIT G-2 - Form of Opinion of Special Pennsylvania Counsel to the
Company
EXHIBIT H - Form of Opinion of Special
New York Counsel to the
Administrative Agent
EXHIBIT I - Election to Participate
EXHIBIT J - Election to Terminate
EXHIBIT K - Exemption Certificate
EXHIBIT L - Form of Acknowledgment and Confirmation of Guarantee or
Security Document
EXHIBIT M - Form of Second Amended and Restated Pledge and
Intercreditor Agreement
ANNEXES
ANNEX A - Canadian Borrower Provisions
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FIFTH AMENDED AND RESTATED
CREDIT AGREEMENT dated as of
March 15, 2002, among: IRON MOUNTAIN INCORPORATED, a corporation duly
organized and validly existing under the laws of the Commonwealth of
Pennsylvania (together with its successors and as more fully defined below,
the "COMPANY"); IRON MOUNTAIN CANADA CORPORATION, a company organized and
existing under the laws of the Province of Nova Scotia (formerly known as
▇▇▇▇▇▇ ▇▇▇▇▇ Canada Company) (the "CANADIAN BORROWER"); each of the lenders
that is listed under the caption "US$ LENDERS" on the signature pages
hereto and each lender or financial institution that becomes a "US$ LENDER"
after the date hereof pursuant to Section 12.06 hereof (individually,
together with its successors, a "US$ LENDER" and, collectively, together
with their respective successors, the "US$ LENDERS"); each of the lenders
that is listed under the caption "US$-CANADIAN LENDERS" on the signature
pages hereto and each lender or financial institution that becomes a
"US$-CANADIAN LENDER" after the date hereof pursuant to Section 12.06
hereof (individually, together with its successors, a "US$-CANADIAN LENDER"
and, collectively, together with their respective successors, the
"US$-CANADIAN LENDERS"); each of the lenders that is listed under the
caption "MULTI-CURRENCY LENDERS" on the signature pages hereto and each
lender or financial institution that becomes a "MULTI-CURRENCY LENDER"
after the date hereof pursuant to Section 12.06 hereof (individually,
together with its successors, a "MULTI-CURRENCY LENDER" and, collectively,
together with their respective successors, the "MULTI-CURRENCY LENDERS");
each of the lenders that is listed under the caption "CANADIAN LENDERS" on
the signature pages hereto and each lender or financial institution that
becomes a "CANADIAN LENDER" after the date hereof pursuant to Section 12.06
hereof (individually, together with its successors, a "CANADIAN LENDER"
and, collectively, together with their respective successors, the "CANADIAN
LENDERS"); each of the lenders that is listed under the caption "TERM
LENDERS" on the signature pages hereto and each lender or financial
institution that becomes a "TERM LENDER" after the date hereof pursuant to
Section 12.06 hereof (individually, together with its successors, a "TERM
LENDER" and, collectively, together with their respective successors, the
"TERM LENDERS"); FLEET NATIONAL BANK, as Documentation Agent, ▇.▇. ▇▇▇▇▇▇
SECURITIES INC. (formerly known as Chase Securities Inc.), as arranger and
book manager, ▇.▇. ▇▇▇▇▇▇ BANK CANADA (formerly known as The Chase
Manhattan Bank of Canada), as Canadian Administrative Agent (in such
capacity, together with its successors in such capacity, the "CANADIAN
ADMINISTRATIVE AGENT") and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as agent for the Lenders (in such capacity, together with
its successors in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, certain of the Lenders and the Administrative
Agent are parties to the Fourth Amended and Restated
Credit Agreement, dated as
of August 14, 2000 (the "EXISTING
CREDIT AGREEMENT"), providing, subject to the
terms thereof, for extensions of credit to be made by said Lenders to the
Company;
WHEREAS, the Company has requested that the Existing
Credit Agreement
be amended to (a) provide for a new term loan facility in the aggregate
principal amount of
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$250,000,000, the proceeds of which (together with other funds available to the
Company) will be used to prepay in full the Tranche A Term Loans and Tranche B
Term Loans outstanding under the Existing
Credit Agreement, (b) to continue and
make adjustments in the existing revolving credit facility and (c) to provide
for certain other modifications as more fully set forth herein; and the Lenders
and the Administrative Agent are willing, upon and subject to the terms and
conditions hereof, so to amend the Existing
Credit Agreement;
WHEREAS, in order to carry out such amendment and the subsequent
review and interpretation of the Existing
Credit Agreement as so amended, the
parties hereto desire to amend and restate the Existing
Credit Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the parties hereto hereby agree that on the Effective Date (as
hereinafter defined) the Existing Credit Agreement shall be amended and restated
to read in its entirety as follows:
Section 1 DEFINITIONS AND ACCOUNTING MATTERS.
1.01. CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the following meanings and the terms defined in Annex A hereto shall have
the meanings given to them therein (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"ABR LOANS" shall mean Loans which bear interest at a rate based upon
the Alternate Base Rate.
"ACCOUNTS RECEIVABLE FINANCING" shall mean any accounts receivable
sale arrangement, credit facility or conditional purchase contract or
similar arrangement providing financing secured directly or indirectly by
the accounts receivable and related records, collateral and rights of the
Company or its Subsidiaries; PROVIDED that any such transaction shall be
consummated pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent, as evidenced by its written
approval thereof (such approval not to be unreasonably withheld).
"ACKNOWLEDGMENT AND CONFIRMATION OF GUARANTEE OR SECURITY DOCUMENT"
shall mean an Acknowledgment and Confirmation of Guarantee or Security
Document, in substantially the form of Exhibit L hereto, as said
acknowledgment and confirmation shall be modified and supplemented and in
effect from time to time.
"ACQUIRED DEBT" shall mean, with respect to the Company or any
Subsidiary, Indebtedness of any other Person, existing at the time such
other Person merged with or into or became a Subsidiary of the Company or
any Subsidiary thereof in connection with a Permitted Acquisition occurring
after the Effective Date, provided that (i) such Indebtedness was not
created by such other Person in contemplation of such acquisition and (ii)
the aggregate outstanding principal amount of such Indebtedness shall not
at any time exceed $15,000,000.
3
"ACQUISITION" shall mean an acquisition of assets of, or all or
substantially all of the Capital Stock of, another business by the Company
and/or one or more of its Subsidiaries.
"ACQUISITION CONSIDERATION" shall mean, with respect to any
Acquisition, the aggregate amount of consideration paid by the Company and
its Subsidiaries in connection therewith, inclusive of (a) Stock
Consideration and (b) other consideration on account of (i) any expenses
incurred in connection with such Acquisition, (ii) liabilities under
agreements not to compete incurred in connection with such Acquisition,
(iii) the principal amount of Indebtedness assumed in connection with such
Acquisition and (iv) Additional Expenditures related to such Acquisition.
"ADDITIONAL EXPENDITURES" shall mean, with respect to any Acquisition,
amounts expended or to be expended by the Company and its Subsidiaries
within twelve months after the date of such Acquisition to acquire or
construct facilities and equipment that are not part of the assets acquired
pursuant to such Acquisition but which are deemed by the Company to be
essential for the integration or restructuring of the assets so acquired.
"ADJUSTED EBITDA" shall mean, for any period, EBITDA for such period,
minus the tax provision for such period currently payable.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member
of the immediate family (including parents, siblings, spouse, children,
stepchildren, nephews, nieces and grandchildren) of such individual and any
trust whose principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any such
member or trust. As used in this definition, "CONTROL" (including, with
correlative meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH")
shall mean possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), PROVIDED that, in any event, any Person which owns directly or
indirectly more than 5% of the securities having ordinary voting power for
the election of directors or other governing body of a corporation or more
than 5% of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
control such corporation or other Person. Notwithstanding the foregoing,
(a) no individual shall be deemed to be an Affiliate of a corporation
solely by reason of his or her being an officer or director of such
corporation and (b) Subsidiaries shall be deemed not to be Affiliates of
the Company or any of the other Subsidiaries.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a
4
change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE COMMITMENT FEE RATE" shall mean, at any time, the
percentage per annum set forth in the schedule below opposite the Pricing
Level in effect at such time:
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PRICING LEVEL APPLICABLE COMMITMENT FEE RATE
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LEVEL 6 0.500%
Greater than or equal to 5.50 to 1.00
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▇▇▇▇▇ ▇ 0.500%
Less than 5.50 to 1.00 and greater than or
equal to 5.25 to 1.00
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▇▇▇▇▇ ▇ 0.500%
Less than 5.25 to 1.00 and greater than or
equal to 4.50 to 1.00
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▇▇▇▇▇ ▇ 0.375%
Less than 4.50 to 1.00 and greater than or
equal to 3.75 to 1.00
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 0.375%
Less than 3.75 to 1.00 and greater than or
equal to 3.25 to 1.00
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▇▇▇▇▇ ▇ 0.375%
Less than 3.25 to 1.00
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For purposes of this definition, the "Pricing Level" in effect at any
time shall be the level (either ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5
or Level 6) indicated in the schedule set forth in the definition of
"Applicable Margin" in this Section 1.01 corresponding to the Applicable
Leverage Ratio in effect at such time.
"APPLICABLE L/C PERCENTAGE" shall mean, at any time, the Applicable
Margin in effect at such time with respect to Eurocurrency Loans that are
Revolving Loans (irrespective of whether at the time any Eurocurrency Loan
is outstanding).
"APPLICABLE LENDING OFFICE" for each Lender and for each Type of Loan,
the lending office of such Lender (or of an affiliate of such Lender)
designated for such Type of Loan in the Administrative Questionnaire of
such Lender or such other lending office
5
of such Lender (or of an affiliate of such Lender) as such Lender may from
time to time specify to the Administrative Agent and the Company as the
office by which its Loans of such Type are to be made and maintained.
"APPLICABLE LEVERAGE RATIO" shall mean, at any time, the Leverage
Ratio as at the end of the most recent fiscal quarter of the Company in
respect of which financial statements have been delivered by the Company
pursuant to either Section 9.01(a) or 9.01(b) hereof; PROVIDED, that no
change in the Applicable Leverage Ratio will take effect until the date
five Business Days following receipt by the Administrative Agent of the
applicable financial statements.
"APPLICABLE MARGIN" shall mean (a) with respect to the Term Loans, (i)
1.25% in the case of ABR Loans and (ii) 2.25% in the case of Eurocurrency
Loans and (b) with respect to Loans other than Term Loans, the rate for the
respective Type of Loan set forth below opposite the level (either ▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5 or Level 6) indicated in the schedule
set forth below corresponding to the Applicable Leverage Ratio in effect at
such time:
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RANGE OF APPLICABLE APPLICABLE MARGIN
LEVERAGE RATIO
--------------------------------------------------------------------------------
ABR EUROCURRENCY
LOANS LOANS
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ 1.50% 2.50%
Greater than or equal to 5.50 to 1.00
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LEVEL 5
Less than 5.50 to 1.00 and 1.25% 2.25%
greater than or equal to 5.25 to 1.00
--------------------------------------------------------------------------------
LEVEL 4
Less than 5.25 to 1.00 and 1.00% 2.00%
greater than or equal to 4.50 to 1.00
--------------------------------------------------------------------------------
LEVEL 3
Less than 4.50 to 1.00 and 0.75% 1.75%
greater than or equal to 3.75 to 1.00
--------------------------------------------------------------------------------
LEVEL 2
Less than 3.75 to 1.00 and 0.50% 1.50%
greater than or equal to 3.25 to 1.00
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6
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RANGE OF APPLICABLE APPLICABLE MARGIN
LEVERAGE RATIO
--------------------------------------------------------------------------------
LEVEL 1
Less than 3.25 to 1.00 0.25% 1.25%
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"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code, as now
or hereafter in effect, or any successor statute.
"BASIC DOCUMENTS" shall mean this Agreement, the Notes, the Letter of
Credit Documents, the Company Guaranty, the Subsidiary Guaranty, the
Security Documents and the Acknowledgment and Confirmation of Guarantee or
Security Document entered into pursuant to the terms hereof.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWER" shall mean the Company or any Subsidiary Borrower (other
than the Canadian Borrower), as the context may require, and their
respective successors, and "Borrowers" means all of the foregoing. As the
context may require, the terms "Borrower" and "Borrowers" include the
Company in its capacity as guarantor of the obligations of the other
Borrowers hereunder. When used with reference to a Loan, references to the
"Borrower" are to the particular Borrower to which such Loan is made or
proposed to be made.
"BORROWING DATE" shall mean any Business Day specified by any Borrower
as a date on which such Borrower requests the relevant Lenders to make
Loans hereunder.
"BUSINESS DAY" shall mean any day other than a day on which commercial
banks are authorized or required to close in
New York City or Boston,
Massachusetts and, where such term is used in the definition of "Quarterly
Date" in this Section 1.01 or if such day relates to a borrowing of, a
payment or prepayment of principal of or interest on, a conversion of or
into, or an Interest Period for, a Eurocurrency Loan or a notice with
respect to any such borrowing, payment, prepayment, conversion or Interest
Period, which is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.
"CALCULATION DATE" shall mean any Business Day as the Administrative
Agent shall elect, but in any event, at least once each calendar month. So
long as no Event of Default has occurred and is continuing, the
Administrative Agent shall, to the extent practicable, select the FIRST day
of each Interest Period applicable to Multi-Currency Loans as Calculation
Dates.
"CANADIAN BORROWER PLEDGE AGREEMENT" shall mean the pledge agreement,
dated as of February 1, 2000, between the Canadian Borrower and the
Canadian Administrative
7
Agent, as the same shall be modified and supplemented and in effect from
time to time. The Canadian Borrower Pledge Agreement as in effect on the
Effective Date is attached as Exhibit F hereto.
"CANADIAN COMMITMENTS" shall have the meaning assigned to such term in
Annex A hereto.
"CANADIAN DOLLARS" shall have the meaning assigned to such term in
Annex A hereto.
"CANADIAN LENDERS" shall have the meaning assigned to such term in the
Preamble hereto.
"CANADIAN PENSION PLAN" shall mean any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada (whether or not registered under any
such laws) which is maintained or contributed to by (or to which there is
or may be an obligation to contribute of), any Company or any Subsidiary of
the Company in respect of any person's employment in Canada or a province
or territory thereof with the Company or any Subsidiary of the Company and
all related agreements, arrangements and understandings in respect of, or
related to, any benefits to be provided thereunder or the effect thereof on
any other compensation or remuneration of any employee.
"CANADIAN SECURITY DOCUMENTS" shall mean the Canadian Borrower Pledge
Agreement and all other security documents hereafter delivered to the
Canadian Administrative Agent granting a Lien on the stock of the Canadian
Borrower or any other Canadian Subsidiary to secure the obligations and
liabilities of the Canadian Borrower hereunder and under any of the other
Loan Documents or to secure any guarantee by any Canadian Subsidiary of any
such obligations and liabilities.
"CANADIAN SUBSIDIARY" shall mean a Subsidiary incorporated under the
laws of Canada or any province or territory thereof.
"CAPITAL EXPENDITURES" shall mean capital expenditures by the Company
or any of its Subsidiaries during the relevant period determined in
accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of
(or other agreement conveying the right to use) real and/or personal
property which obligations are required to be classified and accounted for
as a capital lease on a balance sheet of such Person under GAAP (including
Statement of Financial Accounting Standards No. 13 of the Financial
Accounting Standards Board) and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP (including such Statement No. 13).
"CAPITAL STOCK" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or
8
non-voting) of such Person's capital stock or other ownership interests,
including, without limitation, all common stock and all preferred stock.
"CASUALTY EVENT" shall mean, with respect to any property of any
Person, any loss of or damage to, or any condemnation or other taking of,
such property for which such Person or any of its Subsidiaries receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CHANGE OF CONTROL" shall mean that:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than the Principal Stockholders (or
any of them), is or becomes the "beneficial owner" (as defined in Rules
1 3d-3 and 1 3d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the voting power of all classes of Voting Stock of the Company,
or
(b) in any consecutive 25-month period, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election to such Board of Directors,
or whose nomination for election by the stockholders of the Company, was
approved by a vote of at least 66-2/3% of the directors still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors then in office; or
(c) the Company shall be required pursuant to the provisions of the
Senior Subordinated Debt Documents (or any other agreement or instrument
relating to or providing for any other Subordinated Indebtedness) to redeem
or repurchase, or make an offer to redeem or repurchase, all or any portion
of the Senior Subordinated Debt (or such Subordinated Indebtedness, as the
case may be) as a result of a change of control (however defined).
"CODE" shall mean the Internal Revenue Code of 1986, as amended, or
any successor statute.
"COLLATERAL ACCOUNT" shall mean a cash collateral account in the name
and under the control of the Administrative Agent (and the Multi-Currency
Payment Agent) maintained in accordance with the terms of the Security
Documents.
"COMMITMENT PERIOD" shall mean the period from and including the
Effective Date to but not including the Commitment Termination Date.
"COMMITMENTS" shall mean the US$ Commitments, the US$-Canadian
Commitments, the Multi-Currency Commitments, the Canadian Commitments (for
all purposes other than Sections 2, 3, 4, 5 and 6 hereof) and the Term
Commitments.
9
"COMMITMENT TERMINATION DATE" shall mean January 31, 2005 (or, if such
day is not a Business Day, the next preceding Business Day) or, in the case
of the Term Loans (and for the purposes of Sections 9.08 and 12.05), the
Facility Termination Date.
"COMPANY" shall mean Iron Mountain Incorporated, a Pennsylvania
Corporation.
"COMPANY GUARANTY" shall mean the guaranty, dated as of February 1,
2000, as said agreement shall be modified and supplemented and in effect
from time to time, pursuant to which the Company guarantees the obligations
of the Canadian Borrower and all other Borrowers under the Basic Documents.
The Company Guaranty as in effect on the Effective Date is attached hereto
as Exhibit C.
"COMPANY PLEDGE AGREEMENT" shall mean the pledge agreement, dated as
of February 1, 2000, between the Company and the Administrative Agent, as
the same shall be modified and supplemented and in effect from time to
time. The Company Pledge Agreement as in effect on the Effective Date is
attached hereto as Exhibit D.
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean at any date the assets
of the Company and its Subsidiaries determined on such date on a
consolidated basis, LESS goodwill and other intangible assets.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Company, are treated as a
single employer under Section 414 of the Code.
"CURRENCY EXCHANGE AGREEMENT" shall mean a currency exchange agreement
or similar arrangement between the Company and one or more of the Lenders.
"C$ LOAN" shall have the meaning assigned to such term in Annex A
hereto.
"DEFAULT" shall mean an Event of Default or an event which with notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"DE MINIMUS EXCLUDED SUBSIDIARY" shall mean an Excluded Subsidiary
designated as such by the Company, PROVIDED, that after giving effect to
such designation, the aggregate net tangible assets of the Excluded
Subsidiaries so designated does not exceed 1% of Consolidated Net Tangible
Assets.
"DOLLAR EQUIVALENT" shall mean, on any date of determination, with
respect to any amount in any Multi-Currency, the equivalent in Dollars of
such amount, determined by the Administrative Agent or the Canadian
Administration Agent using the Exchange Rate with respect to such
Multi-Currency then in effect, in the case of any such Multi-Currency as
determined pursuant to Section 2.09.
"DOLLARS", "US$" and "$" shall mean lawful money of the United States
of America.
10
"EBITDA" shall mean, for any period, the sum (without duplication),
determined on a consolidated basis for the Company and its Subsidiaries, of
(a) net income for such period PLUS (b) to the extent deducted in
determining net income for such period, the sum of (i) depreciation and
amortization (including deferred financing costs, organization costs,
goodwill and non-compete amortization) for such period, (ii) other non-cash
expenses for such period, (iii) Interest Expense for such period, (iv)
provision for income taxes for such period, (v) extraordinary, unusual or
non-recurring charges or other items (including without limitation losses
arising from any natural disasters) for such period determined in
accordance with GAAP, (vi) non-compete expenses for such period to the
extent not capitalized in accordance with GAAP and (vii) losses on sales of
fixed assets not in the ordinary course of business for such period after
giving effect to any related charges for, reductions of or provisions for
taxes thereon MINUS (c) to the extent included in the calculation of net
income for such period, the sum of (i) other income (including interest
income) for such period, (ii) extraordinary, unusual or non-recurring gains
or other items for such period determined in accordance with GAAP and (iii)
gains on sales of fixed assets not in the ordinary course of business for
such period after giving effect to any related charges for, reductions of
or provisions for taxes thereon.
For the purposes of calculating the ratios set forth in Sections 9.09,
9.10 and 9.11 there may, at the Company's option (such option to be
consistently applied with respect to each transaction), be included in
EBITDA for any relevant period, on a PRO FORMA basis (adjusted to give
effect to expenses that will not be ongoing), the net income (and the
additions and subtractions thereto referred to above) for such period of
any Person (or assets) acquired after the commencement of such period in
connection with any Permitted Acquisition or any acquisition pursuant to
Section 9.14(viii)(b) hereof having Acquisition Consideration, in the case
of any such Permitted Acquisition, or an aggregate amount of consideration
paid, in the case of such acquisition pursuant to Section 9.14(viii)(b)
hereof, of more than $500,000. The net income (and the related additions
and subtractions) of the Person or assets acquired pursuant to such
acquisition for such period shall be calculated by reference to the most
recent available quarterly financial statements of the acquired business,
annualized.
"EFFECTIVE DATE" shall have the meaning assigned to such term in
Section 7.01 hereof.
"ELECTION TO PARTICIPATE" shall mean an election to participate
substantially in the form of Exhibit I hereto.
"ELECTION TO TERMINATE" shall mean an election to terminate
substantially in the form of Exhibit J hereto.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, codes, plans, injunctions, permits, concessions, grants,
franchises, licenses or other governmental restrictions, contracts,
indemnities, assumptions of liability or agreements relating to the
environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances
11
or wastes into the environment including, without limitation, ambient air,
surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"ENVIRONMENTAL LIABILITIES" shall mean all liabilities of the Company
and each Subsidiary, whether vested or unvested, contingent or fixed,
actual or potential which arise under or relate to Environmental Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EUROCURRENCY BASE RATE" shall mean, (a) with respect to any
Eurocurrency Loans denominated in Dollars, Canadian Dollars or euros the
rate per annum determined on the basis of the rate for deposits in the
relevant currency for a period equal to such Interest Period commencing on
the first day of such Interest Period appearing on Page 3750 of the
Telerate screen or, with respect to Canadian Dollars only, Page 3740 of the
Telerate screen as of 11:00 a.m., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 or Page 3740, as applicable, of the Telerate screen (or
otherwise on such screen), the "EUROCURRENCY BASE RATE" shall be determined
by reference to such other comparable publicly available service for
displaying eurocurrency rates as may be selected by the Administrative
Agent or, in the absence of such availability, by reference to the rate at
which the Administrative Agent is offered currency deposits in the relevant
currency at or about 11:00 a.m.,
New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank
eurocurrency market where its eurocurrency and foreign currency and
exchange operations are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein and (b)
with respect to Eurocurrency Loans denominated in Pounds Sterling, the rate
per annum determined by the Administrative Agent to be the average of the
rates quoted by the Reference Lenders at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) on the day two Business Days
prior to the first day of the Interest Period for such Loans for the
offering by the Reference Lenders to leading banks in the Paris interbank
market of deposits in Pounds Sterling having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the
respective Eurocurrency Loans of the Reference Lenders to which such
Interest Period relates. If any Reference Lender is not participating in
any Eurocurrency Loans during the Interest Period therefor (pursuant to
Section 6.04 hereof or for any other reason), the Eurocurrency Base Rate
for such Loans for such Interest Period shall be determined by reference to
the amount of the Loan which such Reference Lender would have made had it
been participating in such Loans. If any Reference Lender does not furnish
a timely quotation, the Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Lender or Lenders or, if none of such quotations is
available on a timely basis, the provisions of Section 6.02 shall apply.
12
"EUROCURRENCY LOANS" shall mean Loans the interest on which is
determined on the basis of rates referred to in the definition of
"Eurocurrency Base Rate" in this Section 1.01.
"EUROCURRENCY RATE" shall mean, for any Eurocurrency Loans, a rate per
annum (rounded upwards, if necessary, to the nearest 1/32 of 1%) determined
by the Administrative Agent to be equal to (i) the Eurocurrency Base Rate
for such Loans for the Interest Period for such Loans divided by (ii) 1
minus the Reserve Requirement for such Loans.
"EUROS" shall mean the single currency of the European Union as
constituted by the Treaty on the European Union.
"EVENTS OF DEFAULT" shall have the meaning assigned to such term in
Section 10.01 hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE RATE" shall mean with respect to any Multi-Currency on a
particular date, the rate at which such Multi-Currency may be exchanged
into Dollars in London on a spot basis, as set forth on the display page of
the Reuters System applicable to such Multi-Currency as reasonably
determined by the Administrative Agent. In the event that such rate does
not appear on any Reuters display page, the Exchange Rate with respect to
such Multi-Currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by
the Administrative Agent and the Company or, in the absence of such
agreement, such Exchange Rate shall instead be determined by reference to
the Administrative Agent's spot rate of exchange quoted to prime banks in
London in the London interbank market where its foreign currency exchange
operations in respect of such Multi-Currency are then being conducted, at
or about noon, local time, at such date for the purchase of Dollars with
such Multi-Currency, for delivery on a spot basis; PROVIDED, HOWEVER, that
if at the time of any such determination, for any reason, no such spot rate
is being quoted and no other methods for determining the Exchange Rate can
be determined as set forth above, the Administrative Agent may use any
reasonable method it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error.
"EXCLUDED SUBSIDIARY" shall mean any Subsidiary of the Company
principally engaged in the records and information management business or
related activities organized outside of the United States of America.
"EXCLUDED SUBSIDIARY MATERIAL ADVERSE CHANGE" shall mean the
occurrence of a material adverse change in the business, assets, property,
condition (financial or otherwise) or prospects of the Excluded
Subsidiaries, taken as a whole.
"EXISTING CREDIT AGREEMENT" shall have the meaning assigned to such
term in the Recitals.
13
"EXISTING FACILITY" shall mean any Facility owned by the Company or
any of its Subsidiaries on the Effective Date.
"EXISTING LETTERS OF CREDIT" shall mean, collectively, all letters of
credit identified on Schedule IV hereto and outstanding on the Effective
Date.
"EXISTING LOANS" shall have the meaning assigned to such term in
Section 2.01(b) hereof.
"FACILITY" shall mean any facility, or part of a facility (including,
without limitation, related office buildings, parking lots or other related
real property), now or hereafter owned by the Company or any of its
Subsidiaries, in each case including, without limitation, the land on which
such facility is located, all buildings and other improvements thereon,
including leasehold improvements, all fixtures, furniture, equipment,
inventory and other tangible personal property located in or used in
connection with such facility and all accounts receivable and other
intangible personal property (other than motor vehicles) related to the
ownership, lease or operation of such facility, all whether now existing or
hereafter acquired.
"FACILITY TERMINATION DATE" shall mean April 15, 2007 or February 15,
2008, as provided in Section 4.01(b) (or, if such day is not a Business
Day, the next preceding Business Day).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FIXED CHARGES" shall mean for any period the sum of (i) Scheduled
Amortization for such period PLUS (ii) Interest Expense for such period
PLUS (iii) 50% of the total Capital Expenditures (total Capital
Expenditures being calculated for this purpose to exclude replacement
Capital Expenditures made with the proceeds of insurance) for such period
PLUS (iv) the aggregate amount of non-compete expenses for such period to
the extent not capitalized in accordance with GAAP.
"FOREIGN SUBSIDIARY BORROWER" shall mean the Canadian Borrower and any
other Subsidiary Borrower which is organized and existing under the laws of
any jurisdiction outside the United States of America.
"FUNDED INDEBTEDNESS" shall mean, without duplication, (a)
Indebtedness (other than in respect of Synthetic Lease Obligations) that
matures or otherwise becomes due more than one year after the incurrence
thereof or is extendible, renewable or refundable, at the option of the
obligor, to a date more than one year after the incurrence thereof
14
(including the current portion thereof), (b) Indebtedness outstanding
hereunder and (c) Synthetic Lease Obligations and any Guarantees by the
Company thereof.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States of America consistently
applied.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"GUARANTY" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise, other than agreements to purchase goods
at an arm's length price in the ordinary course of business) or (ii)
entered into for the purpose of assuring in any other manner the holder of
such Indebtedness of the payment thereof or to protect such holder against
loss in respect thereof (in whole or in part), PROVIDED that the term
Guaranty shall not include endorsements for collection or deposit in the
ordinary course of business. The term "GUARANTEE" used as a verb has a
corresponding meaning.
"HAZARDOUS SUBSTANCES" shall mean any toxic, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydrocarbons, including any substance regulated under Environmental
Laws.
"HEDGING AGREEMENT" shall mean any Interest Rate Agreement, Currency
Exchange Agreement or security agreement between the Company and one or
more of the Lenders or between the Company and one or more financial
institutions other than a Lender as approved by the Administrative Agent.
"INDEBTEDNESS" shall mean, as to any Person (determined without
duplication):
(i) indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase or acquisition price of property or services (including
amounts payable under agreements not to compete and other similar
arrangements), other than accounts payable (other than for borrowed
money) incurred in the ordinary course of business and accrued
expenses incurred in the ordinary course of business;
(ii) obligations of such Person in respect of letters of credit
or similar instruments issued or accepted by banks and other financial
institutions for the account of such Person;
(iii) Capital Lease Obligations and Synthetic Lease Obligations
of such Person;
15
(iv) obligations of such Person to redeem or otherwise retire
shares of Capital Stock of such Person;
(v) for purposes of Section 10.01(b) only, indebtedness of such
Person under any Hedging Agreement;
(vi) indebtedness of others of the type described in clauses (i)
through (v) above secured by a Lien on the property of such Person,
whether or not the respective obligation so secured has been assumed
by such Person;
(vii) indebtedness of others of the type described in clauses (i)
through (v) above Guaranteed by such Person; and
(viii) Accounts Receivable Financings and Permitted Mortgage
Financings of such Person.
Notwithstanding anything to the contrary contained in clause (i) of
the preceding sentence, indebtedness of any Person in respect of amounts
payable under an agreement not to compete shall be the amount carried on
the balance sheet of such Person in respect of such agreement in accordance
with GAAP.
"INTEREST EXPENSE" shall mean, for any period, the sum (determined
without duplication) of the aggregate amount of interest accruing during
such period on Indebtedness of the Company and its Subsidiaries (on a
consolidated basis), including the interest portion of rental or similar
payments under Capital Lease Obligations and Synthetic Leases and any
capitalized interest, and excluding amortization of debt discount and
expense and interest paid in kind.
"INTEREST PERIOD" shall mean, with respect to any Eurocurrency Loans,
the period commencing on the date such Loans are made or converted from ABR
Loans or the last day of the next preceding Interest Period with respect to
such Loans and ending on the numerically corresponding day in the first,
second, third, sixth or (if acceptable to all Lenders) twelfth calendar
month thereafter, as the Company may select as provided in Section 5.05
hereof, except that each such Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing:
(i) if any Interest Period would otherwise end after the
Commitment Termination Date, such Interest Period shall end on the
Commitment Termination Date;
(ii) each Interest Period that would otherwise end on a day that
is not a Business Day shall end on the next succeeding Business Day
(or, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day);
16
(iii) notwithstanding clause (i) above, no Interest Period shall
have a duration of less than one month and, if the Interest Period for
any Eurocurrency Loan would otherwise be a shorter period, such Loans
shall not be available hereunder for such period; and
(iv) each Interest Period with respect to Revolving Loans in
effect under the Existing Credit Agreement on the Effective Date shall
continue in effect hereunder.
"INTEREST RATE AGREEMENT" shall mean (i) an interest rate swap
agreement, interest rate cap agreement or similar arrangement between the
Company and one or more of the Lenders or (ii) an interest rate swap
agreement, interest rate cap agreement or similar arrangement between the
Company and one or more financial institutions (other than a Lender)
approved by the Administrative Agent (which approval shall not be
unreasonably withheld) pursuant to which the Company is not required in the
absence of default to make any payments other than initial fees.
"INVESTMENTS" shall have the meaning assigned to such term in Section
9.14 hereof.
"ISSUING BANK" shall mean JPMorgan Chase Bank or any Affiliate thereof
or, with respect to any Existing Letter of Credit, any other Lender so
designated with the consent of such other Lender, JPMorgan Chase Bank and
the Company.
"JPMORGAN CHASE BANK" shall mean JPMorgan Chase Bank and its
successors.
"LENDERS" shall mean the US$ Lenders, the US$-Canadian Lenders, the
Multi-Currency Lenders, the Canadian Lenders (for all purposes other than
Sections 3, 4, 5 (other than 5.08(b), 5.08(c) and 5.09) and 6 hereof) and
the Term Lenders.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect
to such Letter of Credit or (b) any collateral security for any of such
obligations, each as the same may be modified and supplemented and in
effect from time to time.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn
stated amount of such Letter of Credit PLUS (b) the aggregate unpaid
principal amount of all Reimbursement Obligations at such time due and
payable in respect of all drawings made under such Letter of Credit. For
purposes of this Agreement, a Lender (other than the Issuing Bank) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.08
hereof or Annex A hereto, as the case may be, and the Issuing Bank shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
retained interest in the related Letter of Credit after giving effect to
17
the acquisition by the Lenders other than the Issuing Bank of their
participation interests under said Section 2.08.
"LETTERS OF CREDIT" shall have the meaning assigned to such term in
Section 2.08 hereof and, unless the content otherwise requires, refers to
Canadian Letters of Credit as defined in Annex A hereto.
"LEVERAGE RATIO" shall have the meaning assigned to such term in
Section 9.09 hereof.
"LIEN" shall mean, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Company and each of its
Subsidiaries shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LIQUID INVESTMENTS" shall mean:
(i) certificates of deposit maturing within 90 days of the
acquisition thereof denominated in Dollars and issued by (X) a Lender
or (Y) a bank or trust company having combined capital and surplus of
at least $500,000,000 and which has (or which is a Subsidiary of a
bank holding company which has) publicly traded debt securities rated
A or higher by Standard & Poor's Ratings Services or A-2 or higher by
▇▇▇▇▇'▇ Investors Service, Inc.;
(ii) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (i)
above entered into with (x) any Lender or (y) any bank or trust
company meeting the qualifications specified in clause (i)(Y) above;
(iii) obligations issued or guaranteed by the United States of
America, with maturities not more than one year after the date of
issue;
(iv) commercial paper with maturities of not more than 90 days
and a published rating of not less than A-2 and P-2 (or the equivalent
rating); and
(v) investments in money market funds substantially all of whose
assets are comprised of securities and other obligations of the types
described in clauses (i) through (iv) above.
"LOANS" shall mean the US$ Loans, the US$-Canadian Loans, the
Multi-Currency Loans, the Swingline Loans, the C$ Loans (for all purposes
other than Sections 3,4,5 and 6 hereof) and the Term Loans.
"MAJORITY LENDERS" shall mean Lenders having at least 51% of (a) the
aggregate amount of (i) the Revolving Commitments and (ii) the Term Loan
Commitments (or, if the Term Loans have been made, the aggregate unpaid
principal amount of the Term
18
Loans) or (b) if the Revolving Commitments shall have terminated, the
aggregate unpaid principal amount of the Loans and Letter of Credit
Liabilities.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the business, assets, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, (b) the
validity or enforceability of any of the Basic Documents, (c) the rights
and remedies of the Lenders and the Administrative Agent or the
Multi-Currency Payment Agent under any of the Basic Documents or the Senior
Subordinated Debt Documents or (d) the timely payment of the principal of
or interest on the Loans or the Reimbursement Obligations or other amounts
payable in connection therewith.
"MERGING SUBSIDIARY" shall have the meaning assigned to such term in
Section 9.04 hereof.
"MULTI-CURRENCY" shall mean each of Pounds Sterling, euros, Dollars or
Canadian Dollars.
"MULTI-CURRENCY COMMITMENT" shall mean, as to each Multi-Currency
Lender, the obligation of such Multi-Currency Lender to make Multi-Currency
Loans, and to issue or participate in Letters of Credit pursuant to Section
2.08 hereof, in an aggregate principal or stated amount at any one time
outstanding up to but not exceeding the amount set forth opposite such
Multi-Currency Lender's name on Schedule I hereto under the caption
"Multi-Currency Commitment"(expressed in Dollars) or, in the case of a
Person that is party to an assignment permitted under Section 12.06 hereof
after the Effective Date, as specified in the respective instrument of
assignment pursuant to which such assignment is effected (as the same may
be reduced at any time or from time to time pursuant to Section 2.02 or
3.02 hereof). The original aggregate amount of the Multi-Currency
Commitments is $150,000,000.
"MULTI-CURRENCY LOAN" shall have the meaning assigned to such term in
Section 2.01.
"MULTI-CURRENCY LOANS (DOLLAR EQUIVALENT)" shall mean the Dollar
Equivalent of the relevant Multi-Currency Loans.
"MULTI-CURRENCY PAYMENT AGENT" shall mean the London branch office of
JPMorgan Chase Bank.
"MULTI-CURRENCY PERCENTAGE" shall mean, with respect to any
Multi-Currency Lender at any time, the ratio (expressed as a percentage) of
(a) the amount of the Multi-Currency Commitment of such Multi-Currency
Lender at such time to (b) the aggregate amount of the Multi-Currency
Commitments of all of the Multi-Currency Lenders at such time.
"MULTIEMPLOYER PLAN" shall mean at any time an employee pension
benefit plan within the meaning of Section 4001 (a)(3) of ERISA to which
the Company or any member of the Controlled Group is then making or
accruing an obligation to make
19
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the Controlled Group during such five year period.
"NET CASH PROCEEDS" shall mean, in each case as set forth in a
statement in reasonable detail delivered to the Administrative Agent:
(a) with respect to the disposition of any asset by the Company
or any of its Subsidiaries, the excess, if any, of (i) the cash
received in connection with such disposition over (ii) the sum of (A)
the principal amount of any Indebtedness which is secured by such
asset and which is required to be repaid in connection with the
disposition thereof, PLUS (B) the reasonable out-of-pocket expenses
incurred by the Company or such Subsidiary, as the case may be, in
connection with such disposition, PLUS (C) provision for taxes,
including income taxes, attributable to the disposition of such asset;
(b) with respect to the issuance of any Indebtedness of the
Company or any its Subsidiaries (including, without limitation (x) any
Accounts Receivable Financing permitted under the terms of Section
9.08 hereof and (y) any Permitted Mortgage Financing of Existing
Facilities but excluding any Permitted Mortgage Financing of
Facilities acquired after the Effective Date), the gross proceeds
received by the Company or such Subsidiary from such issuance less all
reasonable legal expenses, discounts and commissions and other fees
and expenses incurred or to be incurred and all federal, state, local
and foreign taxes assessed or to be assessed in connection therewith;
and
(c) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation
received by the Company and its Subsidiaries in respect of such
Casualty Event net of (i) reasonable expenses incurred by the Company
and its Subsidiaries in connection therewith and (ii) contractually
required repayments of Indebtedness to the extent secured by a Lien on
such property and any income and transfer taxes payable by the Company
or any of its Subsidiaries in respect of such Casualty Event.
In the case of any Accounts Receivable Financing, the gross proceeds
therefrom shall be determined on the basis of the gross proceeds received
in cash from unrelated financing parties at the time of the first
transaction under such Accounts Receivable Financing or any new tranche
thereof.
"1997 SENIOR SUBORDINATED DEBT" shall mean Indebtedness of the Company
in respect of the 8-3/4% Senior Subordinated Notes of the Company due
September 30, 2009 issued pursuant to the 1997 Senior Subordinated Debt
Indenture.
"1999 SENIOR SUBORDINATED DEBT" shall mean Indebtedness of the Company
in respect of the 8-1/4% Senior Subordinated Notes of the Company due
July 1, 2011 issued pursuant to the 1999 Senior Subordinated Debt
Indenture.
20
"1997 SENIOR SUBORDINATED DEBT INDENTURE" shall mean the indenture
dated as of October 24, 1997 among the Company, certain of its Subsidiaries
and The Bank of
New York, as Trustee, as the same may be amended or
modified, without prejudice to the provisions of Section 9.19 hereof.
"1999 SENIOR SUBORDINATED DEBT INDENTURE" shall mean the indenture
dated as of April 26, 1999 among the Company, certain of its Subsidiaries
and The Bank of
New York, as Trustee, as the same may be amended or
modified, without prejudice to the provisions of Section 9.19 hereof.
"NOTES" shall mean the promissory notes provided for by Section 2.06
hereof and all promissory notes delivered in substitution or exchange
therefor, in each case as the same shall be modified and supplemented and
in effect from time to time.
"OBLIGOR" shall mean, collectively, the Company, the Canadian
Borrower, each other Borrower and each of the Subsidiary Guarantors.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" has the meaning set forth in Section 9.12.
"PERMITTED INDEBTEDNESS" shall mean, without duplication:
(i) Seller Indebtedness;
(ii) Indebtedness secured by Permitted Mortgages;
(iii) Indebtedness in respect of agreements not to compete;
(iv) Capitalized Lease Obligations;
(v) Indebtedness consisting of reimbursement obligations in
respect of letters of credit issued by any bank for the account of the
Company or any of its Subsidiaries, the aggregate amount available to
be drawn under which may not exceed $5,000,000 at any time;
(vi) Indebtedness in respect of any Hedging Agreement permitted
under Section 9.25 hereof;
(vii) Indebtedness of the Company in an aggregate outstanding
principal amount not at any time exceeding $20,000,000;
(viii) any Guaranty by the Company of Indebtedness of Excluded
Subsidiaries in an aggregate outstanding principal amount not at any
time exceeding $10,000,000;
21
(ix) any guaranty by the Company of Indebtedness incurred
pursuant to the foregoing clauses (ii), (iii), (iv) or (v) by a
Subsidiary of the Company;
(x) Acquired Debt of the Company or any Subsidiary;
(xi) Indebtedness of the Company to any Subsidiary or of any
Subsidiary to any other Subsidiary; and
(xii) Indebtedness of any Excluded Subsidiary to any minority
shareholder or partner in such Excluded Subsidiary, PROVIDED, that
such Indebtedness is not Funded Indebtedness and the principal amount
of such Indebtedness is no more than proportional to the Indebtedness
of such Excluded Subsidiary to the Company and its other Subsidiaries
(based upon the respective ownership interests in such Excluded
Subsidiary);
PROVIDED, that Permitted Indebtedness incurred pursuant to the foregoing
clauses (i) and (iii) may be incurred only in connection with Permitted
Acquisitions.
"PERMITTED MORTGAGE" means any mortgage subjecting property of any
Subsidiary of the Company to a Lien where (i) the outstanding Capital Stock
of such Subsidiary has been pledged to the Administrative Agent for the
benefit of the Lenders pursuant to the Company Pledge Agreement, the
Canadian Borrower Pledge Agreement, the Subsidiary Pledge Agreement or
another pledge agreement that is in form and substance reasonably
acceptable to the Administrative Agent, (ii) the Company shall agree, for
the benefit of the Administrative Agent and the Lenders, not to permit any
Subsidiary owning any interest in such property to create, incur or suffer
to exist any Indebtedness other than Indebtedness permitted hereunder
(determined without giving effect to clause (ii) of the definition of
"Permitted Indebtedness" in this Section 1.01) and other Indebtedness
secured by such mortgage, (iii) such mortgage (and the other documentation,
if any, relating thereto) does not contain any cross-default provisions
referring to any other indebtedness of the Company or its Subsidiaries
(except in the case of Permitted Mortgage Financings of Existing
Facilities) and (iv) such mortgage (and the other documentation, if any,
relating thereto) does not contain any covenants subjecting the Company or
its Subsidiaries to financial tests of any nature (except in the case of
Permitted Mortgage Financings of Existing Facilities).
"PERMITTED MORTGAGE FINANCING" shall mean any financing (or series of
related financings) by the Company or any of its Subsidiaries after the
Effective Date that is secured by a mortgage on one or more Facilities,
PROVIDED that (a) the proceeds of such financing (except to the extent that
Permitted Mortgage Financings of Facilities acquired after the Effective
Date are excluded by the definition of "Net Cash Proceeds" herein) are
applied to the prepayment of Loans as provided in Section 3.02(b) hereof,
(b) such financings are otherwise permitted by the terms of Section 9.08
hereof and (c) in the case of each such mortgage financing by a Subsidiary
of the Company, each such mortgage created thereby is a Permitted Mortgage.
22
"PERSON" shall mean an individual, a corporation, a company, a
voluntary association, a partnership, a limited liability company, a trust,
an unincorporated organization or a government or any agency,
instrumentality or political subdivision thereof.
"▇▇▇▇▇▇ MERGER" shall mean the merger on February 1, 2000 of Iron
Mountain Incorporated, a Delaware corporation ("OLD IMI") with and into the
Company, with the Company as the surviving corporation.
"▇▇▇▇▇▇ 1997 SENIOR SUBORDINATED NOTES" shall mean the 9-1/8% Senior
Subordinated Notes due 2007 of the Company in an aggregate original
principal amount of US$120,000,000 issued pursuant to the ▇▇▇▇▇▇ 1997
Senior Subordinated Notes Indenture, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 9.19 hereof.
"▇▇▇▇▇▇ 1998 SENIOR NOTES" shall mean the 8-1/8% Senior Notes due 2008
of Iron Mountain Canada Corporation in an aggregate original principal
amount of US$135,000,000 issued pursuant to the ▇▇▇▇▇▇ 1998 Senior Notes
Indenture, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 9.19 hereof.
"▇▇▇▇▇▇ 1997 SENIOR SUBORDINATED NOTES INDENTURE": the Senior
Subordinated Notes Indenture, dated as of July 7, 1997 between the Company
and The Bank of
New York, as trustee, as amended, supplemented or otherwise
modified from time to time in accordance with Section 9.19 hereof.
"▇▇▇▇▇▇ 1998 SENIOR NOTES INDENTURE": the Senior Notes Indenture,
dated as of April 7, 1998 between the Canadian Borrower, the Company and
The Bank of
New York, as trustee, as amended, supplemented or otherwise
modified from time to time in accordance with Section 9.19 hereof.
"PLAN" shall mean an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (a) maintained by the Company or any
member of the Controlled Group for employees of the Company or any member
of the Controlled Group or (b)maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one
employer makes contributions and to which the Company or any member of the
Controlled Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions.
"POST-DEFAULT RATE" shall mean a rate equal to the sum of 2% PLUS the
higher of (i) the rate of interest applicable to ABR Loans and (ii) in the
case of any Loan, the rate of interest (if any) otherwise applicable to
such Loan.
"POUNDS STERLING" shall mean the lawful currency of the United Kingdom
"PRIME RATE" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in
effect at its principal office in
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"PRINCIPAL STOCKHOLDERS" shall mean each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Schooner
Capital Corporation, C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, J. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., B. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and their respective
Affiliates.
"QUARTERLY DATES" shall mean the last Business Day of each March,
June, September and December.
"RCRA" means the Resource Conservation and Recovery Act, as amended.
"RECOVERY EVENT" shall mean 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 LENDERS" shall mean each of JPMorgan Chase Bank and such
two other Lenders as the Administrative Agent may from time to time
designate with the consent of the Company, such consent not to be
unreasonably withheld.
"REFUNDED SWINGLINE LOANS" shall have the meaning given thereto in
Section 3.03(b).
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented from
time to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
on or after the date of this Agreement in United States federal, state or
foreign laws or regulations, including Regulation D, or the adoption or
making on or after such date of any interpretations, directives or requests
applying to a class of lenders including such Lender of or under any United
States federal or state, or any foreign, laws or regulations (whether or
not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the obligations
of the Company or the Canadian Borrower, as the case may be, then
outstanding to reimburse amounts paid by the Issuing Bank or the Canadian
Issuing Bank, as the case may be, in respect of any drawings under a Letter
of Credit.
"REINVESTMENT DEFERRED AMOUNT" shall mean with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Company
or any of its Subsidiaries in connection therewith that are not applied to
prepay or reduce the Commitments pursuant to Section 3.02(c).
"REINVESTMENT EVENT" shall mean any disposition of assets or Recovery
Event in respect of which, so long as no Event of Default has occurred and
is continuing, the Company has determined that it (directly or indirectly
through a Subsidiary) intends and
24
expects to use all or a specified portion of the Net Cash Proceeds of such
disposition of assets or Recovery Event to acquire or construct assets
useful in its business.
"REINVESTMENT PREPAYMENT AMOUNT" shall mean with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less
any amount expended prior to the relevant Reinvestment Prepayment Date to
acquire or construct assets useful in the Company's business.
"REINVESTMENT PREPAYMENT DATE" shall mean with respect to any
Reinvestment Event, the earlier of (a) the date occurring 365 days after
such Reinvestment Event and (b) the date on which the Company shall have
determined not to, or shall have otherwise ceased to, acquire or construct
assets useful in the Company's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"RELEASE" shall have the meaning set forth in 42 U.S.C. Section
9601(22), but shall not include any "federally permitted release" as
defined in 42 U.S.C. Section 9601(10). The term "Released" shall have a
corresponding meaning.
"RESERVE REQUIREMENT" shall mean, for any Eurocurrency Loans, the
average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained under
Regulation D by member banks of the Federal Reserve System in
New York City
with deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the
effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by such member banks by reason of any
Regulatory Change against (i) any category of liabilities which includes
deposits by reference to which the Eurocurrency Rate is to be determined as
provided in the definition of "Eurocurrency Base Rate" in this Section 1.01
or (ii) any category of extensions of credit or other assets which include
Eurocurrency Loans.
"RESIDUAL ASSURANCES" shall mean any commitment or undertaking by the
Company required as a condition to any financing made available by any
Person to an Affiliate of the Company to finance the costs of construction
or acquisition by such Affiliate of records management facilities
(including the acquisition of real estate for development purposes), where
such facility is intended to be leased to the Company or a Subsidiary of
the Company, which commitment or undertaking is intended to provide such
Person with an additional assurance that it will receive a minimum return
under such financing (and which does not constitute a Guaranty of the
principal amount of such financing); provided that no payment under any
such commitment or undertaking may be made prior to February 1, 2002, and
that such commitment or undertaking shall be entered into on terms and
pursuant to documentation in all respects reasonably satisfactory to the
Administrative Agent.
"RESTRICTED PAYMENT" shall mean dividends (in cash, property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for the
purchase, redemption, retirement or other acquisition of, any shares of any
class of Capital Stock of the Company, or any payment
25
in respect of any option or warrant to purchase any shares of any class of
Capital Stock of the Company or the exchange or conversion of any shares of
any class of Capital Stock of the Company for or into any obligations of or
shares of any other class of Capital Stock of the Company or any other
property, but excluding dividends payable solely in, or exchanges or
conversions for or into, shares of common stock of the Company.
"REVOLVING COMMITMENTS" shall mean the US$ Commitments, the
US$-Canadian Commitments, the Multi-Currency Commitments, the Swingline
Commitment and, for all purposes other than Sections 2, 3, 4, 5 and 6, the
Canadian Commitments.
"REVOLVING LENDERS" shall mean the US$ Lenders, the US$-Canadian
Lenders, the Multi-Currency Lenders, the Swingline Lender and, for all
purposes other than Sections 3, 4, 5 (other than 5.08(b), 5.08(c) and 5.09)
and 6 hereof, the Canadian Lenders.
"REVOLVING LOANS" shall mean the US$ Loans, the US$-Canadian Loans,
the Multi-Currency Loans, the Swingline Loans and, for all purposes other
than Sections 3, 4, 5 and 6 hereof, the C$ Loans.
"SCHEDULED AMORTIZATION" shall mean, for any period, the sum
(calculated without duplication) of all payments of principal of
Indebtedness of the Company (other than Indebtedness hereunder) scheduled
to be made during such period.
"SECURITY DOCUMENTS" shall mean, collectively, the Company Pledge
Agreement, the Canadian Borrower Pledge Agreement, the Subsidiary Pledge
Agreement and all Uniform Commercial Code financing statements and similar
items required by said agreements to be filed with respect to the security
interests in personal property created pursuant thereto.
"SELLER INDEBTEDNESS" shall mean Indebtedness incurred after the date
hereof and payable to sellers in connection with Permitted Acquisitions
that by its terms is subordinated to the payment of the principal of and
interest on the Loans and Reimbursement Obligations.
"SENIOR DEBT" shall mean at any time, the aggregate principal amount
of Funded Indebtedness outstanding MINUS the aggregate principal amount of
Subordinated Indebtedness outstanding.
"SENIOR SUBORDINATED DEBT" shall mean, collectively, the 1997 Senior
Subordinated Debt, the 1999 Senior Subordinated Debt, the 2001 Senior
Subordinated Notes, the ▇▇▇▇▇▇ 1997 Senior Subordinated Notes, the ▇▇▇▇▇▇
1998 Senior Notes and any other subordinated Indebtedness permitted under
Section 9.08(iii) hereof.
"SENIOR SUBORDINATED DEBT DOCUMENTS" shall mean all documents and
agreements executed and delivered in connection with the original issuance
of the Senior Subordinated Debt, including the Senior Subordinated Debt
Indentures and the promissory notes evidencing Indebtedness thereunder, in
each case as the same may be amended or modified, without prejudice to the
provisions of Section 9.19 hereof.
26
"SENIOR SUBORDINATED DEBT INDENTURES" shall mean, collectively, the
1997 Senior Subordinated Debt Indenture, the 1999 Senior Subordinated
Indenture, the 2001 Senior Subordinated Notes Indenture, the ▇▇▇▇▇▇ 1997
Senior Subordinated Notes Indenture and the ▇▇▇▇▇▇ 1998 Senior Notes
Indenture and documentation for subordinated indebtedness permitted under
9.08(iii) hereof.
"SPE" shall mean any special purpose entity formed by the Company for
the purposes of engaging in an Accounts Receivable Financing permitted
under the terms of this Agreement.
"STATUTORY RESERVE RATE" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which JPMorgan
Chase Bank is subject for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three
months. The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in any reserve percentage.
"STOCK CONSIDERATION" shall mean, with respect to any Acquisition, the
aggregate amount of consideration paid by the Company and its Subsidiaries
in connection therewith consisting of the Company's common stock or with
proceeds of the issuance of the Company's common stock within twelve months
prior to the date of such Acquisition. For purposes hereof, the amount of
Stock Consideration paid by the Company in respect of any Acquisition where
the Stock Consideration consists of the Company's common stock shall be
deemed to be equal to the fair market value of the Company's common stock
so paid, determined in good faith by the Company at the time of such
Acquisition.
"STOCK REPURCHASES" shall have the meaning assigned to such term in
Section 9.15(ii).
"SUBORDINATED INDEBTEDNESS" shall mean, collectively, (a) Senior
Subordinated Debt and (b) Seller Indebtedness.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of
whether or not at the time securities or other ownership interests of any
other class or classes of such corporation, partnership, limited liability
company or other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly
owned or controlled by such Person or one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such Person.
27
"SUBSIDIARY BORROWER" shall mean any wholly-owned Subsidiary of the
Company listed on Schedule V hereto or hereafter named as such, in either
case, as to which an Election to Participate shall have been delivered to
the Administrative Agent and as to which an Election to Terminate shall not
have been delivered to the Administrative Agent. Each such Election to
Participate and Election to Terminate shall be duly executed on behalf of
such Subsidiary and the Company in such number of copies as the
Administrative Agent may request. The delivery of an Election to Terminate
shall not affect any obligation of a Subsidiary Borrower theretofore
incurred. The Administrative Agent shall promptly give notice to the
Lenders of the receipt of any Election to Participate or Election to
Terminate.
"SUBSIDIARY GUARANTOR" shall mean (i) each of the Subsidiaries of the
Company listed in Part 1 of Schedule II hereto other than those
Subsidiaries identified in Part 1 of Schedule II as not being a Subsidiary
Guarantor and (ii) each other Subsidiary of the Company that from time to
time becomes a party to the Subsidiary Guaranty or otherwise guarantees the
obligations of the Company hereunder pursuant to Section 9.21.
"SUBSIDIARY GUARANTY" shall mean the subsidiary guaranty, dated as of
February 1, 2000, between the Subsidiary Guarantors and the Administrative
Agent, as said agreement shall be modified and supplemented and in effect
from time to time and pursuant to which the Subsidiary Guarantors guarantee
the obligations of the Company under the Basic Documents and any Hedging
Agreements with any Lender or any Affiliate thereof. The Subsidiary
Guaranty as in effect on the Effective Date is attached as Exhibit B
hereto.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean the pledge agreement, dated
as of February 1, 2000, between the Subsidiary Guarantors and the
Administrative Agent, as the same shall be modified and supplemented and in
effect from time to time. The Subsidiary Pledge Agreement as in effect on
the Effective Date is attached as Exhibit E hereto.
"SWINGLINE COMMITMENT" shall mean the obligation of the Swingline
Lender to make Swingline Loans pursuant to Section 2.01(c) in an aggregate
principal at any one time not to exceed $20,000,000.
"SWINGLINE LENDER" shall mean a single US$ lender within the
syndicate, in its capacity as the lender of Swingline Loans. The Swingline
Lender shall be designated by the Company from time to time with the
consent of the Administrative Agent.
"SWINGLINE LOANS" shall have the meaning given thereto in Section
2.01(c).
"SWINGLINE PARTICIPATION AMOUNT" shall have the meaning given thereto
in Section 3.03(c).
"SYNTHETIC LEASE" shall mean a lease of property or assets designed to
permit the lessee (i) to claim depreciation on such property or assets
under U.S. tax law and (ii) to treat such lease as an operating lease or
not to reflect the leased property or assets on the lessee's balance sheet
under GAAP.
28
"SYNTHETIC LEASE OBLIGATIONS" shall mean, with respect to any
Synthetic Lease, at any time, an amount equal to the higher of (x) the
aggregate termination value or purchase price or similar payments in the
nature of principal payable thereunder and (y) the then aggregate
outstanding principal amount of the notes or other instruments issued by,
and the amount of the equity investment, if any, in, the lessor under such
Synthetic Lease.
"TERM LENDERS" shall have the meaning assigned to such term in the
Preamble.
"TERM LOANS" shall have the meaning assigned to such term in Section
2.01.
"TERM COMMITMENT" shall mean, as to each Term Lender, the obligation
of such Term Lender to make Term Loans, in an aggregate principal or stated
amount at any one time outstanding up to but not exceeding the amount set
forth opposite such Term Lender's name on Schedule I hereto under the
caption "Term Commitment" or, in the case of a Person that is party to an
assignment permitted under Section 12.06 hereof after the Effective Date,
as specified in the respective instrument of assignment pursuant to which
such assignment is effected (as the same may be reduced at any time or from
time to time pursuant to Section 3.02 hereof). The original aggregate
amount of the Term Commitments is $250,000,000.
"2001 SENIOR SUBORDINATED DEBT" shall mean the Indebtedness of the
Company in respect of the 8-5/8% Senior Subordinated Notes of the Company
due April 1, 2013 issued pursuant to the 2001 Senior Subordinated Debt
Indenture.
"2001 SENIOR SUBORDINATED DEBT INDENTURE" shall mean the Indenture
dated as of April 3, 2001, as supplemented by a First Supplemental
Indenture dated as of April 3, 2001, among the Company and The Bank of New
York, as Trustee, as the same may be amended or modified, without prejudice
to the provisions of Section 9.19 hereof.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"UNFUNDED LIABILITIES" shall mean, with respect to any Plan, at any
time, the amount (if any) by which (a) the present value of all benefits
under such Plan exceeds (b) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess
represents a potential liability of the Company or any member of the
Controlled Group to the PBGC or such Plan under Title IV of ERISA.
"US$ COMMITMENT" shall mean, as to each US$ Lender, the obligation of
such US$ Lender to make US$ Loans, and to issue or participate in Letters
of Credit and Swingline Loans pursuant to Section 2.08 hereof, in an
aggregate principal or stated amount at any one time outstanding up to but
not exceeding the amount set forth opposite such US$ Lender's name on
Schedule I hereto under the caption "US$ Commitment" or, in the case of a
Person that is party to an assignment permitted under Section 12.06 hereof
after the Effective Date, as specified in the respective instrument of
assignment pursuant to which such assignment is effected (as the same may
be reduced at any time or
29
from time to time pursuant to Section 2.02 or 3.02 hereof). The original
aggregate amount of the US$ Commitments is $200,000,000.
"US$ COMMITMENT PERCENTAGE" shall mean, with respect to any US$ Lender
at any time, the ratio (expressed as a percentage) of (a) the amount of the
US$ Commitment of such US$ Lender at such time to (b) the aggregate amount
of the US$ Commitments of all of the US$ Lenders at such time.
"US$ LOANS" shall have the meaning assigned to such term in Section
2.01.
"US$-CANADIAN COMMITMENT" shall mean, as to each US$-Canadian Lender,
the obligation of such US$-Canadian Lender to make US$-Canadian Loans in an
aggregate principal or stated amount at any one time outstanding up to but
not exceeding the amount set forth opposite such US$-Canadian Lender's name
on Schedule I hereto under the caption "US$-Canadian Commitment" or, in the
case of a Person that is party to an assignment permitted under Section
12.06 hereof after the Effective Date, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as
the same may be reduced at any time or from time to time pursuant to
Section 2.02 or 3.02 hereof). The original aggregate amount of the
US$-Canadian Commitments is $50,000,000 minus the original aggregate amount
of the Canadian Commitments.
"US$-CANADIAN COMMITMENT PERCENTAGE" shall mean, with respect to any
US$-Canadian Lender at any time, the ratio (expressed as a percentage) of
(a) the amount of the US$-Canadian Commitment of such US$-Canadian Lender
at such time to (b) the aggregate amount of the US$-Canadian Commitments of
all of the US$-Canadian Lenders at such time.
"US$-CANADIAN LOANS" shall have the meaning assigned to such term in
Section 2.01.
"US SUBSIDIARY" means any Subsidiary Borrower which is organized and
existing under the laws of any jurisdiction inside the United States of
America.
"VOTING STOCK" shall mean, with respect to any Person, any class or
classes of Capital Stock pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not, at the time, stock of any other class or
classes has, or might have, voting power by reason of the happening of any
contingency).
"WHOLLY-OWNED SUBSIDIARY" shall mean as to any Person, a Subsidiary of
such Person all of whose outstanding shares of Capital Stock (except
directors' qualifying shares) are directly or indirectly owned by such
Person.
1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance
30
with GAAP; provided that if any change in GAAP proposed after the Effective Date
in itself materially affects the calculation of any financial covenant in
Section 9, the Company may by notice to the Administrative Agent, or the
Administrative Agent (at the request of the Majority Lenders) may by notice to
the Company, require that such covenant thereafter be calculated in accordance
with GAAP as in effect, and applied by the Company, immediately before such
change in GAAP occurs. If such notice is given, the compliance certificates
delivered pursuant to Section 9.01 after such change occurs shall be accompanied
by reconciliations of the difference between the calculation set forth therein
and a calculation made in accordance with GAAP as in effect from time to time
after such change occurs. To enable the ready determination of compliance with
the covenants set forth in Section 9 hereof, the Company will not change from
December 3 l in each year the date on which its fiscal year ends, nor from March
31, June 30 and September 30 the dates on which the first three fiscal quarters
in each fiscal year end.
1.03. TYPES OF LOANS. Loans hereunder are distinguished by "Type". The
"Type" of a Loan refers to the determination of whether such Loan is a
Eurocurrency Loan or an ABR Loan.
Section 2 LOANS, ETC.
2.01. US$ LOANS; US$-CANADIAN LOANS; MULTI-CURRENCY LOANS; C$ LOANS;
SWINGLINE LOANS; TERM LOANS.
(a) Subject to the terms and conditions of this Agreement, (i) each
US$ Lender severally agrees to continue and make loans to the Borrowers in
Dollars ("US$ LOANS") during the Commitment Period in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount of the US$
Commitment of such US$ Lender as in effect from time to time, PROVIDED that in
no event shall the aggregate outstanding principal amount of all US$ Loans and
Swingline Loans, together with the aggregate amount of all Letter of Credit
Liabilities under the US$ Commitments outstanding, exceed the aggregate amount
of the US$ Commitments as in effect from time to time, (ii) each US$-Canadian
Lender severally agrees to continue and make loans to the Borrowers in Dollars
or Canadian Dollars ("US$-CANADIAN LOANS") during the Commitment Period in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the US$-Canadian Commitment of such US$-Canadian Lender as in
effect from time to time, PROVIDED that in no event shall the aggregate
outstanding principal amount of all US$-Canadian Loans, together with the
aggregate outstanding principal amount of all C$ Loans and the aggregate amount
of all Letter of Credit Liabilities under the Canadian Commitments, exceed the
aggregate amount of the US$-Canadian Commitments as in effect from time to time,
(iii) each Multi-Currency Lender severally agrees to continue and make loans to
the Borrowers in any Multi-Currency ("MULTI-CURRENCY LOANS") during the
Commitment Period in an aggregate principal amount at any one time outstanding
up to but not exceeding the amount of the Multi-Currency Commitment of such
Multi-Currency Lender as in effect from time to time, PROVIDED that in no event
shall the aggregate outstanding principal amount of all Multi-Currency Loans,
together with the aggregate amount of all Letter of Credit Liabilities under the
Multi-Currency Commitments outstanding, exceed the aggregate amount of the
Multi-Currency Commitments as in effect from time to time, (iv) each Canadian
Lender severally agrees to continue and make C$ Loans to the Canadian Borrower
in Canadian Dollars during the Commitment Period and the Canadian Issuing Bank
agrees to make available
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Canadian Letters of Credit in accordance with the terms and provisions of Annex
A hereto, and (v) each Term Lender severally agrees to make a term loan to the
Company in Dollars ("TERM LOANS") on the Effective Date in an amount not to
exceed the amount of the Term Commitment of such Term Lender. Subject to the
terms and conditions of this Agreement, during the Commitment Period, the
Borrowers may (x) borrow, repay and reborrow the US$ Loans, the
Dollar-denominated US$-Canadian Loans and the Dollar-denominated Multi-Currency
Loans by means of ABR Loans and Eurocurrency Loans and (y) convert the US$
Loans, the Dollar-denominated US$-Canadian Loans, the Dollar-denominated
Multi-Currency Loans or the Term Loans of one Type into Loans of the other Type
(as provided in Section 3.02(a) hereof) or continue Eurocurrency Loans for
subsequent Interest Periods. Unless otherwise provided herein, all
Multi-Currency Loans and all US$-Canadian Loans, other than Dollar-denominated
Multi-Currency Loans and Dollar-denominated US$-Canadian Loans, shall be made,
maintained and continued as Eurocurrency Loans.
(b) The Loans outstanding under the Existing Credit Agreement on the
Effective Date other than the Tranche A Term Loans and the Tranche B Term Loans
thereunder (which shall be prepaid in full on the Effective Date) shall continue
to be outstanding and shall be continued under this Agreement (such Loans to be
continuing, the "EXISTING LOANS").
(c) The Swingline Lender agrees to make a portion of the credit
otherwise available to the Company under the US$ Commitments from time to time
during the Commitment Period by making swing line loans ("SWINGLINE LOANS") to
the Company in an aggregate principal amount at any one time outstanding up to
but not exceeding the amount of the Swingline Commitment (notwithstanding that
the Swingline Loans outstanding at any time, when aggregated with the Swingline
Lender's other outstanding Revolving Loans, may exceed the Swingline Commitment
then in effect), PROVIDED that in no event shall the aggregate outstanding
principal amount of all US$ Loans and Swingline Loans, together with the
aggregate amount of all Letter of Credit Liabilities under the US$ Commitments
outstanding, exceed the aggregate amount of the US$ Commitments as in effect
from time to time. During the Commitment Period, the Company may use the
Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be ABR Loans only.
For purposes of calculating the commitment fee payable in respect of the US$
Commitments under Section 2.03, the Swingline Loans shall not be treated as
usage of the US$ Commitments. Swingline Loans shall be Dollar-denominated Loans
only.
2.02. REDUCTIONS OF COMMITMENTS.
(a) MANDATORY. The US$ Commitments, the US$-Canadian Commitments and
Multi-Currency Commitments shall terminate on the Commitment Termination Date.
In addition, the US$ Commitments, the US$-Canadian Commitments and
Multi-Currency Commitments shall be reduced as provided in Section 3.02(c).
(b) OPTIONAL. The Company shall have the right to terminate or reduce
the unused US$ Commitments, US$-Canadian Commitments and Multi-Currency
Commitments (for which purpose use of the US$ Commitments and Multi-Currency
Commitments shall be deemed to include the aggregate amount of Letter of Credit
Liabilities under the US$ Commitment or the Multi-Currency Commitment, as the
case may be) at any time or from time to time, provided that
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(i) the Company shall give notice of each such termination or reduction to the
Administrative Agent as provided in Section 5.05 hereof and (ii) each partial
reduction shall be in an aggregate amount at least equal to $1,000,000.
(c) NO REINSTATEMENT. US$ Commitments, US$-Canadian Commitments and
Multi-Currency Commitments once terminated or reduced may not be reinstated.
2.03. FEES. The Company shall pay to the Administrative Agent for the
account of each US$ Lender, US$-Canadian Lender or Multi-Currency Lender
commitment fees in Dollars on the daily average unused amount of such Lender's
US$ Commitment, US$-Canadian Commitment or Multi-Currency Commitment, as the
case may be, (for which purpose, (i) the aggregate amount of any Letter of
Credit Liabilities under the US$ Commitments or the Multi-Currency Commitments
shall be deemed to be a PRO RATA (based on the US$ Commitments or the
Multi-Currency Commitments, as the case may be) use of each Lender's US$
Commitment or Multi-Currency Commitment, as the case may be, and (ii) the daily
average amount of each US$-Canadian Lender's US$-Canadian Commitment shall be
determined after giving effect to the allocation of the Canadian Commitments and
the US$-Canadian Commitments pursuant to subsection 2.6 of Annex A hereto) for
the period from the Effective Date to and including the earlier of the date the
Revolving Commitments are terminated and the Commitment Termination Date, at a
rate per annum equal to the Applicable Commitment Fee Rate in effect from time
to time. Accrued commitment fees under this Section 2.03 shall be payable on the
Quarterly Dates and on the earlier of the date the Revolving Commitments are
terminated and the Commitment Termination Date. The Company shall pay to
JPMorgan Chase Bank on the Effective Date syndication, agency and additional
commitment fees in the amounts heretofore mutually agreed in writing. The
Company shall pay to the Administrative Agent on the Effective Date and on each
anniversary thereof, so long as any of the Commitments are in effect and until
payment in full of all Loans hereunder, all interest thereon and all other
amounts payable hereunder, an annual agency fee in the amount heretofore
mutually agreed in writing.
2.04. LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.05. SEVERAL OBLIGATIONS: REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither the Administrative Agent nor any Lender shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender. The
amounts payable by the Borrowers at any time hereunder and under the Notes to
each Lender shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its rights arising out of this Agreement and the
Notes, and it shall not be necessary for any other Lender or the Administrative
Agent to consent to, or be joined as an additional party in, any proceedings for
such purposes.
2.06. NOTES. The Loans made by each Lender under its US$ Commitment,
US$-Canadian Commitment, Multi-Currency Commitment or Term Commitment shall be
evidenced by a single promissory note of the relevant Borrower (each, a "NOTE")
in substantially the form of Exhibit A-1 (in the case of Revolving Loans) or
Exhibit A-2 (in the case of Term Loans) hereto, dated the Effective Date,
payable to such Lender in a principal amount equal to
33
such Commitment as in effect on the Effective Date and otherwise duly completed.
Each Lender is hereby authorized by the Company to endorse on the schedule (or a
continuation thereof) attached to each Note of such Lender, to the extent
applicable, the date, amount and Type of and the Interest Period (if any) for
each Loan made by such Lender to any Borrower under the relevant Commitment, and
the date and amount of each payment or prepayment of principal of such Loan
received by such Lender, provided that any failure by such Lender to make any
such endorsement shall not affect the obligations of the relevant Borrower under
such Note or hereunder in respect of such Loan.
2.07. USE OF PROCEEDS. The proceeds of the Loans shall be used in part
to prepay existing term loans and for the general corporate purposes of the
Company and its Subsidiaries, including, without limitation, the making of
Permitted Acquisitions and capital expenditures and the refinancing of existing
Indebtedness of the Company and its Subsidiaries. The proceeds of the Term Loans
shall be used on the Effective Date to prepay existing term loans. Neither the
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of the proceeds of any of the Loans or Letters of Credit.
2.08. LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, the US$ Commitments and the Multi-Currency Commitments may be
utilized, upon the request of any Borrower, in addition to the Loans provided
for by Section 2.01 hereof or in Annex A hereto, as the case may be, for the
issuance by the Issuing Bank of standby letters of credit (collectively with the
Existing Letters of Credit, "LETTERS OF CREDIT") for the account of the relevant
Borrower or, in the event that the Borrower is the Company, for the account of
such of its Subsidiaries as the Company may specify, PROVIDED that in no event
shall (i) the aggregate amount of all Letter of Credit Liabilities under the US$
Commitments or the Multi-Currency Commitments, together with the aggregate
outstanding principal amount of the US$ Loans or the Multi-Currency Loans, as
the case may be, exceed the aggregate amount of the US$ Commitments or the
Multi-Currency Commitments, as the case may be, as in effect from time to time,
(ii) the aggregate outstanding amount of all Letter of Credit Liabilities under
the US$ Commitments and the Multi-Currency Commitments exceed $75,000,000 and
(iii) the expiration date of any Letter of Credit extend beyond the earlier of
the Commitment Termination Date and the date one year following the issuance of
such Letter of Credit (provided that any Letter of Credit with a one-year tenor
may provide for the renewal thereof for additional one-year periods, which
periods shall in any event not extend beyond the Commitment Termination Date).
On the Effective Date, all Existing Letters of Credit shall automatically,
without any action on the part of any Person, be deemed to be Letters of Credit
issued and outstanding hereunder (with the Existing Letters of Credit
denominated in Dollars being deemed to be issued under the US$ Commitments and
the Existing Letters of Credit denominated in other currencies being deemed to
be issued under the Multi-Currency Commitments).
The following additional provisions shall apply to Letters of Credit:
(a) Each Borrower shall give the Administrative Agent (or if the
Letter of Credit is to be issued under the Multi-Currency Commitments, the
Multi-Currency Payment Agent) at least three Business Days' irrevocable
prior notice (effective upon receipt) specifying the Business Day (which
shall be no later than 5 days preceding the Commitment Termination Date) on
which each Letter of Credit is to be issued and the
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account party or parties therefor and describing in reasonable detail the
proposed terms of such Letter of Credit (including the beneficiary thereof)
and the nature of the transactions or obligations proposed to be supported
thereby. Any Letter of Credit to be issued in a currency other than Dollars
shall be issued under the Multi-Currency Commitments. Upon receipt of any
such notice, the Administrative Agent or the Multi-Currency Payment Agent,
as the case may be, shall advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Bank of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the US$ Commitment or Multi-Currency
Commitment of each Lender shall be deemed to be utilized for all purposes
of this Agreement in an amount equal to such Lender's US$ Commitment
Percentage or Multi-Currency Commitment Percentage, as the case may be, of
the then undrawn stated amount of such Letter of Credit. Each Lender (other
than the Issuing Bank) agrees that, upon the issuance of any Letter of
Credit hereunder, it shall automatically acquire a participation in the
Issuing Bank's rights and obligations under such Letter of Credit in an
amount equal to such Lender's US$ Commitment Percentage or Multi-Currency
Commitment Percentage, as the case may be, of such rights and obligations,
and each Lender (other than the Issuing Bank) thereby shall automatically
absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and be unconditionally obligated to the Issuing Bank to pay
and discharge when due, its US$ Commitment Percentage or Multi-Currency
Commitment Percentage of the Issuing Bank's obligation to pay drawings
under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Bank shall
promptly notify the relevant Borrower (through the Administrative Agent or
the Multi-Currency Payment Agent, as the case may be) of the amount to be
paid by the Issuing Bank as a result of such demand and the date on which
payment is to be made by the Issuing Bank to such beneficiary in respect of
such demand. Notwithstanding the identity of the account party of any
Letter of Credit, the relevant Borrower hereby unconditionally agrees to
pay and reimburse the Administrative Agent or the Multi-Currency Payment
Agent, as the case may be, for account of the Issuing Bank for the amount
of each demand for payment under such Letter of Credit that is in
substantial compliance with the provisions of such Letter of Credit at or
prior to the date on which payment is to be made by the Issuing Bank to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.08, the relevant Borrower shall advise the
Administrative Agent or the Multi-Currency Payment Agent, as the case may
be, whether or not such Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Bank for the amount of the related
demand for payment and, if it does, submit a notice of such borrowing as
provided in Section 5.05 hereof.
(e) Each Lender (other than the Issuing Bank) shall pay to the
Administrative Agent or the Multi-Currency Payment Agent, as the case may
be, for account of the
35
Issuing Bank at an account in New York, New York specified by the
Administrative Agent (or the Multi-Currency Payment Agent, as the case may
be) in Dollars and in immediately available funds the amount of such
Lender's US$ Commitment Percentage or Multi-Currency Commitment Percentage,
as the case may be, of any payment under a Letter of Credit issued under
the US$ Commitments or the Multi-Currency Commitments, as the case may be,
upon notice by the Issuing Bank (through the Administrative Agent) to such
Lender requesting such payment and specifying such amount. Each such
Lender's obligation to make such payment to the Administrative Agent or the
Multi-Currency Payment Agent, as the case may be, for account of the
Issuing Bank under this paragraph (e), and the Issuing Bank's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever (other than gross negligence or
wilful misconduct of the Issuing Bank), including, without limitation, the
failure of any other Lender to make its payment under this paragraph (e),
the financial condition of the Company or the Borrowers (or any other
account party), any failure to satisfy any condition precedent to any Loan,
the existence of any Default or the termination of the Commitments. Each
such payment to the Issuing Bank shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender shall default
in its obligation to make any such payment to the Administrative Agent or
the Multi-Currency Payment Agent, as the case may be, for account of the
Issuing Bank, for so long as such default shall continue the Administrative
Agent or the Multi-Currency Payment Agent, as the case may be, may at the
request of the Issuing Bank withhold from any payments received by the
Administrative Agent or the Multi-Currency Payment Agent, as the case may
be, under this Agreement or any Note for account of such Lender the amount
so in default and, to the extent so withheld, pay the same to the Issuing
Bank in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Lender to the Issuing Bank
pursuant to paragraph (e) above in respect of any Letter of Credit, such
Lender shall, automatically and without any further action on the part of
the Administrative Agent (or the Multi-Currency Payment Agent, as the case
may be), the Issuing Bank or such Lender, acquire (i) a participation in an
amount equal to such payment in the Reimbursement Obligation owing to the
Issuing Bank hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (ii) a participation in a percentage equal to
such Lender's US$ Commitment Percentage or Multi-Currency Percentage, as
the case may be, in any interest or other amounts payable by the relevant
Borrower hereunder and under such Letter of Credit Documents in respect of
such Reimbursement Obligation (other than the commissions, charges, costs
and expenses payable to the Issuing Bank pursuant to paragraph (g) of this
Section 2.08). Upon receipt by the Issuing Bank from or for account of the
relevant Borrower of any payment in respect of any Reimbursement Obligation
or any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the Issuing Bank shall
promptly pay to the Administrative Agent (or the Multi-Currency Payment
Agent, as the case may be) for account of each Lender entitled thereto such
Lender's US$ Commitment Percentage or Multi-Currency Percentage, as the
case may be, of such payment, each such payment by the Issuing Bank to be
made in the same money and funds in which received by the Issuing Bank. In
the event any payment received by the Issuing Bank and so paid to the
Lenders hereunder is rescinded or must otherwise be returned by the
36
Issuing Bank, each Lender shall, upon the request of the Issuing Bank
(through the Administrative Agent or the Multi-Currency Payment Agent, as
the case may be), repay to the Issuing Bank (through the Administrative
Agent or the Multi-Currency Payment Agent, as the case may be) the amount
of such payment paid to such Lender, with interest at the rate specified in
paragraph (j) of this Section 2.08.
(g) The Company shall pay to the Administrative Agent or the
Multi-Currency Payment Agent, as the case may be, for account of the
Lenders (ratably in accordance with their respective US$ Commitment
Percentages or Multi-Currency Percentages, as the case may be) a letter of
credit fee in Dollars in respect of each Letter of Credit in an amount
equal to the Applicable L/C Percentage of the daily average undrawn stated
amount of such Letter of Credit for the period from and including the date
of issuance of such Letter of Credit (i) in the case of a Letter of Credit
that expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Commitment Termination Date and
on the date of expiry or termination or full utilization of such Letter of
Credit and to be calculated for any day after giving effect to any payments
made under such Letter of Credit on such day). In addition, the Company
shall pay to the Administrative Agent or the Multi-Currency Payment Agent,
as the case may be, for account of the Issuing Bank a fronting fee in
Dollars in respect of each Letter of Credit in an amount equal to 0.25% per
annum of the daily average undrawn stated amount of such Letter of Credit
for the period from and including the date of issuance of such Letter of
Credit (i) in the case of a Letter of Credit that expires in accordance
with its terms, to and including such expiration date and (ii) in the case
of a Letter of Credit that is drawn in full or is otherwise terminated
other than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Commitment Termination Date and to be calculated for any
day after giving effect to any payments made under such Letter of Credit on
such day) plus all commissions, charges, costs and expenses in the amounts
customarily charged by the Issuing Bank from time to time in like
circumstances with respect to the issuance of each Letter of Credit and
drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the Issuing
Bank shall deliver (through the Administrative Agent or the Multi-Currency
Payment Agent, as the case may be) to each Lender and each Borrower a
notice describing the aggregate amount of all Letters of Credit outstanding
at the end of such month. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver any other information reasonably requested
by such Lender with respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 7 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall be
in such form, contain such terms and
37
support such transactions as shall be satisfactory to the Issuing Bank
consistent with its then current practices and procedures with respect to
letters of credit of the same type, (ii) such Letter of Credit shall be
denominated in Dollars or a Multi-Currency and (iii) the relevant Borrower
shall have executed and delivered such applications, agreements and other
instruments relating to such Letter of Credit as the Issuing Bank shall
have reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type, provided
that in the event of any conflict between any such application, agreement
or other instrument and the provisions of this Agreement or any Security
Document, the provisions of this Agreement and the Security Documents shall
control.
(j) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (e) or (f) of this Section 2.08
on the due date therefor, such Lender shall pay interest to the Issuing
Bank (through the Administrative Agent or the Multi-Currency Payment Agent,
as the case may be) on such amount from and including such due date to but
excluding the date such payment is made at a rate per annum equal to the
Federal Funds Effective Rate or, in the case of any amount payable in a
currency other than Dollars, the rate determined by the Administrative
Agent or the Multi-Currency Payment Agent (in the case of Letters of Credit
issued under the Multi-Currency Commitments) in its discretion as the
appropriate rate for interbank settlements, PROVIDED that if such Lender
shall fail to make such payment to the Issuing Bank within three Business
Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the rate then payable
by the relevant Borrower on such amount.
(k) The issuance by the Issuing Bank of any modification or supplement
to any Letter of Credit hereunder shall be subject to the same conditions
as are applicable under this Section 2.08 to the issuance of new Letters of
Credit, and no such modification or supplement shall be issued hereunder
unless either (i) the respective Letter of Credit affected thereby would
have complied with such conditions had it originally been issued hereunder
in such modified or supplemented form or (ii) each Lender shall have
consented thereto.
The Company hereby indemnifies and holds harmless each Lender (including the
Issuing Bank, the Administrative Agent and the Multi-Currency Payment Agent)
from and against any and all claims and damages, losses, liabilities, costs or
expenses that such Lender, the Administrative Agent or the Multi-Currency
Payment Agent may incur (or that may be claimed against such Lender, the
Administrative Agent or the Multi-Currency Payment Agent by any Person
whatsoever) by reason of or in connection with the execution and delivery or
transfer of or payment or refusal to pay by the Issuing Bank under any Letter of
Credit; PROVIDED that the Company shall not be required to indemnify any Lender,
the Administrative Agent or the Multi-Currency Payment Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the Issuing
Bank in determining whether a request presented under any Letter of Credit
complied with the terms of such Letter of Credit or (y) in the case of the
Issuing Bank, its failure to pay under any Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Letter of Credit. Nothing in this Section 2.08 is intended to limit the
38
other obligations of any Borrower, any Lender, the Administrative Agent or the
Multi-Currency Payment Agent under this Agreement.
2.09. CURRENCY FLUCTUATIONS, ETC.
(a) Not later than 1:00 p.m., New York City time, on each Calculation
Date, the Multi-Currency Payment Agent shall (i) determine the Exchange Rate as
of such Calculation Date with respect to (x) each Multi-Currency for which there
are at such time outstanding Multi-Currency Loans or Letters of Credit issued
under the Multi-Currency Commitments and (y) the Canadian Dollar if there are at
such time outstanding non-Dollar-denominated US$-Canadian Loans, and (ii) give
notice thereof to the Multi-Currency Lenders which have committed to make
Multi-Currency Loans in each such Multi-Currency, to the US$-Canadian Lenders
which have committed to make US$-Canadian Loans in Canadian Dollars and to the
Company. The Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a "Reset
Date") and shall remain effective until the next succeeding Reset Date.
(b) Not later than 5:00 p.m., New York City time, on each Reset Date,
the Multi-Currency Payment Agent shall (i) determine (x) the Dollar Equivalent
of the Multi-Currency Loans or Letter of Credit Liabilities under the
Multi-Currency Commitments in each Multi-Currency then outstanding (after giving
effect to any Multi-Currency Loans to be made or repaid on such date) and (y)
the Dollar Equivalent of the non-Dollar-denominated US$-Canadian Loans or Letter
of Credit Liabilities under the US$-Canadian Commitments and denominated in
Canadian Dollars then outstanding (after giving effect to any
non-Dollar-denominated US$-Canadian Loans to be made or repaid on such date)and
(ii) notify the Multi-Currency Lenders or the US$-Canadian Lenders, as the case
may be, and the Company of the results of such determination.
(c) If on any Reset Date, the Dollar Equivalent of the aggregate
principal amount of Multi-Currency Loans and Letters of Credit issued under the
Multi-Currency Commitments outstanding exceeds 105% of the aggregate principal
amount of the Multi-Currency Commitments, then the Company shall, within three
Business Days after notice thereof from the Multi-Currency Payment Agent, prepay
(in any Multi-Currency as selected by the Company) Multi-Currency Loans in an
aggregate amount such that, after giving effect thereto, the Dollar Equivalent
of all such Multi-Currency Loans, together with Letters of Credit issued under
the Multi-Currency Commitments, shall be equal to or less than such aggregate
amount of Multi-Currency Commitments (and in the event that after such
prepayment, the Dollar Equivalent of the outstanding stated amount of the
Letters of Credit issued under the Multi-Currency Commitments is more than such
aggregate amount of the Multi-Currency Commitments, the Company shall provide
cash cover for the difference by paying to the Multi-Currency Payment Agent
immediately available funds in an amount equal to such difference, which funds
shall be retained by the Multi-Currency Payment Agent in the Collateral Account
as such collateral security for such Letter of Credit Liabilities). If any such
prepayment occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Company shall pay to the
Multi-Currency Lenders such amounts, if any, as may be required pursuant to
Section 6.05.
39
(d) If on any Reset Date, the Dollars Equivalent of the aggregate
principal amount outstanding ("Outstanding Amount") of Dollar-denominated,
non-Dollar-denominated US$-Canadian Loans and Canadian Letters of Credit exceeds
105% of the aggregate principal amount of the US$-Canadian Commitments, then the
Company shall, within three Business Days after notice thereof from the
Multi-Currency Payment Agent, prepay (in Dollars or Canadian Dollars as selected
by the Company) US$-Canadian Loans or Canadian Letters of Credit in an aggregate
amount such that, after giving effect thereto, the Dollar Equivalent of all such
US$-Canadian Loans and Canadian Letters of Credit shall be equal to or less than
such aggregate amount of US$-Canadian Commitment. If any such prepayment occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Company shall pay to the US$-Canadian Lenders such amounts,
if any, as may be required pursuant to Section 6.05.
Section 3 BORROWINGS, CONVERSIONS AND PREPAYMENTS.
3.01. PROCEDURE FOR US$ LOAN BORROWING, US$-CANADIAN LOAN BORROWING,
TERM LOAN BORROWING AND MULTI-CURRENCY BORROWING.
(a) Each Borrower shall give the Administrative Agent or the
Multi-Currency Payment Agent notice of each US$ Loan, US$-Canadian Loan,
Multi-Currency Loan and Term Loan to be made hereunder as provided in
Section 5.05 hereof.
(b) Not later than 12:00 p.m. New York time on the date specified for
each borrowing in Dollars hereunder, each US$ Lender, US$-Canadian Lender,
Multi-Currency Lender or Term Lender shall make available the amount of the US$
Loan, US$-Canadian Loan or Term Loan to be made by it on such date to the
Administrative Agent, at an account in New York, New York specified by the
Administrative Agent, in immediately available funds, for account of such
Borrower. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Borrower by
depositing the same, in immediately available funds, in an account of the
Borrower designated by the Borrower and maintained with JPMorgan Chase Bank in
New York, New York.
(c) Not later than 11:00 a.m. London time on the date specified for
each such borrowing hereunder, each Multi-Currency Lender or, if a US$-Canadian
Loan is being made in Canadian Dollars, each US$-Canadian Lender, shall make
available the amount of the Multi-Currency Loan or US$-Canadian Loan, as the
case may be, to be made by it on such date to the Multi-Currency Payment Agent,
at an account in London specified by the Multi-Currency Payment Agent, in
immediately available funds, for account of such Borrower. The amount so
received by the Multi-Currency Payment Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower by depositing
the same, in immediately available funds, in an account of the Borrower
designated by the Borrower.
3.02. PREPAYMENTS AND CONVERSIONS.
(a) OPTIONAL PREPAYMENTS AND CONVERSIONS. Each Borrower shall have the
right to prepay Loans and to convert Loans in Dollars of one Type into Loans of
the other Type, at any time or from time to time, provided, that the relevant
Borrower shall give the Administrative Agent or the Multi-Currency Payment
Agent, notice of each such prepayment as
40
provided in Section 5.05 hereof. Any prepayment of Term Loans hereunder may not
be reborrowed.
(b) MANDATORY PREPAYMENTS. (i) If on any date, the Company or any
Subsidiary of the Company shall receive Net Cash Proceeds from any issuance
subsequent to the Effective Date of Indebtedness, other than Indebtedness
incurred pursuant to Section 9.08 hereof (except Section 9.08(vii)), or any
Accounts Receivable Financing (it being understood that this Section 3.02(b)
shall not constitute a waiver of any provision of Section 9.08), then the
Borrowers shall prepay the Loans (and/or provide cover for Letter of Credit
Liabilities as specified in paragraph (d) below) in an amount equal to such Net
Cash Proceeds (less any prepayments of the C$ Loans under Section 3.4(b) of
Annex A hereto), but, the Revolving Commitments shall not be subject to
automatic reduction.
(ii) Amounts to be applied in connection with prepayments made
pursuant to this Section 3.02(b) shall be applied, FIRST, to the prepayment of
the Term Loans (which may not be reborrowed) and, SECOND, to the prepayment of
the Revolving Loans. Each prepayment of the Loans under this Section 3.02(b)
shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(c) COMMITMENT REDUCTIONS; TERM LOAN PREPAYMENTS. (i) If on any date,
the Company or any Subsidiary of the Company shall receive Net Cash Proceeds
from any disposition of assets or any Recovery Event, then, unless such
disposition of assets or Recovery Event shall be a Reinvestment Event, the
Revolving Commitments shall be reduced or the Term Loans prepaid, as the case
may be, by an amount equal to such Net Cash Proceeds to the extent such Net Cash
Proceeds, together with all other such Net Cash Proceeds from dispositions of
assets or Recovery Events that are not Reinvestment Events, exceeds $15,000,000
in the then-current fiscal year of the Company; PROVIDED, that notwithstanding
the foregoing, (i) the aggregate Net Cash Proceeds from dispositions of assets
and Recovery Events that may be excluded from the foregoing requirement for a
Reinvestment Event shall not exceed 10% of the Consolidated Net Tangible Assets
of the Company as at the end of the immediately preceding fiscal year and (ii)
on each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied toward the reduction of the Revolving Commitments or the prepayment of
the Term Loans, as the case may be.
(ii) Amounts to be applied in connection with prepayments and
Revolving Commitment reductions made pursuant to this Section 3.02(c) shall be
applied, FIRST, to the prepayment of the Term Loans (which may not be
reborrowed) and, SECOND, to reduce permanently the Revolving Commitments. Each
prepayment of the Loans under this Section 3.02(c) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid. To the
extent that, after giving effect to any such reduction of the Revolving
Commitments, the aggregate principal amount of the US$ Loans, the US$-Canadian
Loans or the Multi-Currency Loans and the aggregate amount of Letter of Credit
Liabilities under the US$ Commitments, US$-Canadian Commitments or the
Multi-Currency Commitments, as the case may be, would exceed such Commitments,
the Borrowers shall, first, prepay Loans thereunder and, second, provide cover
for Letter of Credit Liabilities thereunder as specified in paragraph (d) below,
in an aggregate amount equal to such excess. The Company shall notify the
41
Administrative Agent promptly upon the occurrence of any event giving rise to a
prepayment or Commitment reduction under this Section 3.02(c).
(d) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that the US$
Loans or the Multi-Currency Loans have been repaid in full, amounts payable
under Section 3.02(b) or 3.02(c) shall be applied to provide cash cover for
outstanding Letters of Credit under the US$ Commitments or the Multi-Currency
Commitments, as the case may be, in which event the Company shall effect the
same by paying to the Administrative Agent or the Multi-Currency Payment Agent,
as the case may be, immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent or
the Multi-Currency Payment Agent in the Collateral Account on behalf of the
Lenders as collateral security for such Letter of Credit Liabilities until such
time as the Letters of Credit under such Commitments shall have been terminated
and all of the Letter of Credit Liabilities paid in full.
3.03. PROCEDURE FOR SWINGLINE BORROWING; REFUNDING OF SWINGLINE LOANS.
(a) NOTICE AND BORROWING OF SWINGLINE LOANS. Whenever the Company
desires that the Swingline Lender make Swingline Loans it shall give the
Swingline Lender irrevocable telephonic notice confirmed promptly in writing
(which telephonic notice must be received by the Swingline Lender not later than
11:00 a.m., New York City time, on the proposed Borrowing Date), specifying (i)
the amount to be borrowed and (ii) the requested Borrowing Date (which shall be
a Business Day during the Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof. Not later than 3:00 p.m., New York City time, on the
Borrowing Date specified in a notice in respect of Swingline Loans, the
Swingline Lender shall make available to the Administrative Agent at the
Applicable Lending Office an amount in immediately available funds equal to the
amount of the Swingline Loan to be made by the Swingline Lender. The
Administrative Agent shall make the proceeds of such Swingline Loan available to
the Company on such Borrowing Date by depositing such proceeds in the account of
the Company with the Administrative Agent on such Borrowing Date in immediately
available funds.
(b) REFUNDED SWINGLINE LOANS. The Swingline Lender, at any time and
from time to time in its sole and absolute discretion may, on behalf of the
Company (which hereby irrevocably directs the Swingline Lender to act on its
behalf), on one Business Day's notice given by the Swingline Lender no later
than 12:00 Noon, New York City time, request each US$ Lender to make, and each
US$ Lender hereby agrees to make, a US$ Loan, in an amount equal to such US$
Lender's US$ Commitment Percentage of the aggregate amount of the Swingline
Loans (the "REFUNDED SWINGLINE LOANS") outstanding on the date of such notice,
to repay the Swingline Lender. Each US$ Lender shall make the amount of such US$
Loan available to the Administrative Agent at the Applicable Lending Office in
immediately available funds, not later than 10:00 a.m., New York City time, one
Business Day after the date of such notice. The proceeds of such US$ Loans shall
be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Company irrevocably authorizes the Swingline Lender, on one
Business Day's notice given by the Swingline Lender no later than 12:00 Noon,
New York City time, to charge the Company's accounts with the Administrative
Agent (up to the amount available in
42
each such account) in order to pay the amount of such Refunded Swingline Loans
to the extent amounts received from the US$ Lenders are not sufficient to repay
in full such Refunded Swingline Loans.
(c) SWINGLINE PARTICIPATION AMOUNT. If prior to the time a US$ Loan
would have otherwise been made pursuant to Section 3.03(b), one of the events
described in Section 10.01(f) shall have occurred and be continuing with respect
to the Company or if for any other reason, as determined by the Swingline Lender
in its sole discretion, US$ Loans may not be made as contemplated by Section
3.03(b), each US$ Lender shall, on the date such US$ Loan was to have been made
pursuant to the notice referred to in Section 3.03(b), purchase for cash an
undivided participating interest in the then outstanding Swingline Loans by
paying to the Swingline Lender an amount (the "SWINGLINE PARTICIPATION AMOUNT")
equal to (i) such US$ Lender's US$ Commitment Percentage TIMES (ii) the sum of
the aggregate principal amount of Swingline Loans then outstanding that were to
have been repaid with such US$ Loans.
(d) DISTRIBUTION OF SWINGLINE PARTICIPATION AMOUNT. Whenever, at any
time after the Swingline Lender has received from any US$ Lender such Lender's
Swingline Participation Amount, the Swingline Lender receives any payment on
account of the Swingline Loans, the Swingline Lender will distribute to such
Lender its Swingline Participation Amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender's PRO RATA portion of such payment
if such payment is not sufficient to pay the principal of and interest on all
Swingline Loans then due); PROVIDED, HOWEVER, that in the event that such
payment received by the Swingline Lender is required to be returned, such US$
Lender will return to the Swingline Lender any portion thereof previously
distributed to it by the Swingline Lender.
(e) OBLIGATION ABSOLUTE. Each US$ Lender's obligation to make the
Loans referred to in Section 3.03(b) and to purchase participating interests
pursuant to Section 3.03(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such US$ Lender or the Company may have
against the Swingline Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 7; (iii) any adverse change in the condition (financial or otherwise) of
the Company; (iv) any breach of this Agreement or any other Basic Document by
the Company, any other Obligor or any other US$ Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(f) NO AMENDMENT, WAIVER OR CONSENT. No amendment, waiver or consent
shall be made with respect to this Section 3.03 and Section 2.01(c) without the
consent of the Swingline Lender and the Administrative Agent.
Section 4 PAYMENTS OF PRINCIPAL AND INTEREST.
4.01. REPAYMENT OF LOANS.
43
(a) The Borrowers hereby promise to pay to the Administrative Agent or
the Multi-Currency Payment Agent, as the case may be, for the account of each
Revolving Lender the entire outstanding principal amount of such Lender's
Revolving Loans, and each Revolving Loan shall mature, on the Commitment
Termination Date.
(b) The aggregate principal amount of the Term Loans shall mature and
be payable in consecutive quarterly installments, on the dates and in the
amounts set forth below:
INSTALLMENT PRINCIPAL AMOUNT
November 30, 2002 $ 250,000
February 28, 2003 $ 250,000
May 31, 2003 $ 250,000
August 31, 2003 $ 250,000
November 30, 2003 $ 250,000
February 29, 2004 $ 250,000
May 31, 2004 $ 250,000
August 31, 2004 $ 250,000
November 30, 2004 $ 250,000
February 28, 2005 $ 250,000
May 31, 2005 $ 250,000
August 31, 2005 $ 250,000
November 30, 2005 $ 250,000
February 28, 2006 $ 250,000
May 31, 2006 $ 250,000
August 31, 2006 $ 250,000
November 30, 2006 $ 250,000
February 28, 2007 $ 250,000
May 31, 2007 $ 250,000
August 31, 2007 $ 250,000
November 31, 2007 $ 250,000
February 15, 2008 $244,750,000
PROVIDED, HOWEVER, that if on or prior to April 15, 2007 the
$120,000,000 9-1/8% Senior Subordinated Notes due July 15, 2007 shall not have
been redeemed, repurchased or defeased in full in a manner in accordance with
this Agreement, the Term Loans shall mature and, to the extent then outstanding,
be payable in full on April 15, 2007.
4.02. INTEREST. Each Borrower will pay to the Administrative Agent or,
in the case of Multi-Currency Loans or non-Dollar-denominated US$-Canadian
Loans, to the Multi-Currency Payment Agent, for the account of each Lender
interest on the unpaid principal amount of each Loan made by such Lender to such
Borrower for the period commencing on the date of such Loan to but excluding the
date such Loan shall be paid in full, at the following rates per annum:
(a) if such Loan is an ABR Loan, the Alternate Base Rate PLUS the
Applicable Margin; and
44
(b) if such Loan is a Eurocurrency Loan, the Eurocurrency Rate PLUS
the Applicable Margin.
Notwithstanding the foregoing, each Borrower hereby promises to pay to
the Administrative Agent or, in the case of Multi-Currency Loans or
non-Dollar-denominated US$-Canadian Loans, to the Multi-Currency Payment Agent,
for account of each Lender interest at the applicable Post-Default Rate (x) on
any principal of any Loan made by such Lender to such Borrower, on any
Reimbursement Obligation held by such Lender and on any other amount payable by
such Borrower hereunder or under the Note held by such Lender to or for account
of such Lender (but, if such amount is interest, only to the extent legally
enforceable), that shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full and (y) during any period when an Event of Default shall have
occurred under Section 10.01(a) hereof and for so long as such Event of Default
shall be continuing, on any principal of any Loan made by such Lender to such
Borrower.
Accrued interest on each Loan shall be payable (i) if such Loan is an
ABR Loan, on each Quarterly Date, (ii) if such Loan is a Eurocurrency Loan, on
the last day of each Interest Period for such Loan (and, if such Interest Period
exceeds three months' duration, quarterly, commencing on the first quarterly
anniversary of the first day of such Interest Period), and (iii) in any event,
upon the payment, prepayment or conversion thereof, but only on the principal so
paid or prepaid or converted; PROVIDED that interest payable at the Post-Default
Rate shall be payable from time to time on demand of the Administrative Agent
(or the Multi-Currency Payment Agent, in the case of Multi-Currency Loans or
non-Dollar-denominated US$-Canadian Loans,) or the Majority Lenders. Promptly
after the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall notify the Lenders and each Borrower
thereof.
Notwithstanding the foregoing provisions of this Section 4.02, if at
any time the rate of interest set forth above on any Loan of any Lender (the
"Stated Rate" for such Loan) exceeds the maximum non-usurious interest rate
permissible for such Lender to charge commercial borrowers under applicable law
(the "Maximum Rate" for such Lender), the rate of interest charged on such Loan
of such Lender hereunder shall be limited to the Maximum Rate for such Lender.
In the event the Stated Rate for any Loan of a Lender that has
theretofore been subject to the preceding paragraph at any time is less than the
Maximum Rate for such Lender, the principal amount of such Loan shall bear
interest at the Maximum Rate for such Lender until the total amount of interest
paid to such Lender or accrued on its Loans hereunder equals the amount of
interest which would have been paid to such Lender or accrued on such Lender's
Loans hereunder if the Stated Rate had at all times been in effect.
In the event, upon payment in full of all amounts payable hereunder,
the total amount of interest paid to any Lender or accrued on such Lender's
Loans under the terms of this Agreement is less than the total amount of
interest which would have been paid to such Lender or accrued on such Lender's
Loans if the Stated Rate had, at all times, been in effect, then the relevant
Borrower shall, to the extent permitted by applicable law, pay to the
Administrative
45
Agent or, in the case of Multi-Currency Loans or non-Dollar-denominated
US$-Canadian Loans, to the Multi-Currency Payment Agent, for the account of such
Lender an amount equal to the difference between (a) the lesser of (i) the
amount of interest which would have accrued on such Lender's Loans if the
Maximum Rate for such Lender had at all times been in effect or (ii) the amount
of interest which would have accrued on such Lender's Loans if the Stated Rate
had at all times been in effect and (b) the amount of interest actually paid to
such Lender or accrued on its Loans under this Agreement. In the event any
Lender ever receives, collects or applies as interest any sum in excess of the
Maximum Rate for such Lender, such excess amount shall be applied to the
reduction of the principal balance of its Loans or to other amounts (other than
interest) payable hereunder, and if no such principal is then outstanding, such
excess or part thereof remaining shall be paid to such Borrower.
Section 5 PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
5.01. PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
any Borrower under the US$ Commitments, the US$-Canadian Commitments, the
Multi-Currency Commitments or the Term Commitments and under the corresponding
Notes shall (except in the case of payments of principal and interest on
Multi-Currency Loans or Letter of Credit Liabilities incurred under the
Multi-Currency Commitments or non-Dollar-denominated US$-Canadian Loans) be made
in Dollars, in immediately available funds, to the Administrative Agent at an
account in New York, New York specified by the Administrative Agent, not later
than 11:00 a.m. New York time on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). The Administrative Agent, or any
Lender for whose account any such payment is made, may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any ordinary deposit account of such Borrower with the Administrative
Agent or such Lender, as the case may be. The relevant Borrower shall, at the
time of making each such payment, specify to the Administrative Agent the Loans
or other amounts payable by such Borrower hereunder to which such payment is to
be applied (and in the event that it fails to so specify, or if an Event of
Default has occurred and is continuing, the Administrative Agent may apply such
payment for the benefit of the Lenders as it may elect in its sole discretion,
but subject to the other terms and conditions of this Agreement, including
without limitation, Section 5.02 hereof). Each payment received by the
Administrative Agent under the US$ Commitments, the US$-Canadian Commitments,
the Multi-Currency Commitments or the Term Commitments or under any
corresponding Note (except in the case of payment of principal and interest on
Multi-Currency Loans or Letter of Credit Liabilities incurred under the
Multi-Currency Commitments or non-Dollar-denominated US$-Canadian Loans) for the
account of a Lender shall be paid promptly to such Lender, in immediately
available funds, for the account of such Lender's Applicable Lending Office. If
the due date of any such payment would otherwise fall on a day which is not a
Business Day such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period of such
extension.
(b) Except to the extent otherwise provided herein, all payments of
principal and interest on (i) Multi-Currency Loans and Letter of Credit
Liabilities incurred under the
46
Multi-Currency Commitments, (ii) non-Dollar-denominated US$-Canadian Loans and
(iii) under corresponding Notes to be made by any Borrower shall be made in the
currency of the applicable Loan or Letter of Credit for which payment is being
made, in immediately available funds, to the Multi-Currency Payment Agent at an
account in London specified by the Multi-Currency Payment Agent, not later than
11:00 a.m. London time on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day). The Multi-Currency Payment Agent, or
any Lender for whose account any such payment is made, may (but shall not be
obligated to) debit the amount of any such payment which is not made by such
time to any ordinary deposit account of such Borrower with the Multi-Currency
Payment Agent or such Lender, as the case may be. The relevant Borrower shall,
at the time of making each such payment, specify to the Multi-Currency Payment
Agent the Loans or other amounts payable by such Borrower hereunder to which
such payment is to be applied (and in the event that it fails to so specify, or
if an Event of Default has occurred and is continuing, the Multi-Currency
Payment Agent may apply such payment for the benefit of the Lenders as it may
elect in its sole discretion, but subject to the other terms and conditions of
this Agreement, including without limitation, Section 5.02 hereof). Each such
payment received by the Multi-Currency Payment Agent for the account of a Lender
shall be paid promptly to such Lender, in immediately available funds, for the
account of such Lender's Applicable Lending Office. If the due date of any such
payment would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for any principal so extended for the period of such extension.
(c) All payments made by each Borrower hereunder and under the Notes
shall be made without set-off, deduction or counterclaim.
5.02. PRO RATA TREATMENT.
(a) With respect to the US$ Lenders, except to the extent otherwise
provided herein: (i) each borrowing from the US$ Lenders under Section 2.01
hereof shall be made from the US$ Lenders, each payment of commitment fees under
Section 2.03 hereof shall be made for the account of the US$ Lenders, and each
termination or reduction of the US$ Commitments under Section 2.02 hereof shall
be applied to the US$ Commitments of the US$ Lenders, PRO RATA according to the
US$ Lenders' respective percentages of the US$ Commitments, (ii) each payment by
a Borrower of principal of or interest on US$ Loans of a particular Type (other
than payments in respect of Loans of individual Lenders provided for by Section
6 hereof) shall be made to the Administrative Agent for the account of the US$
Lenders PRO RATA in accordance with the respective unpaid principal amounts of
such US$ Loans held by the US$ Lenders and (iii) each conversion of US$ Loans of
a particular Type (other than conversions of Loans of individual Lenders
pursuant to Section 6.04 hereof) shall be made PRO RATA among the US$ Lenders in
accordance with the respective principal amounts of such US$ Loans held by the
US$ Lenders.
(b) With respect to the US$-Canadian Lenders, except to the extent
otherwise provided herein: (i) each borrowing from the US$-Canadian Lenders
under Section 2.01 hereof shall be made from the US$-Canadian Lenders and each
termination or reduction of the US$-Canadian Commitments under Section 2.02
hereof shall be applied to the US$-Canadian
47
Commitments of the US$-Canadian Lenders, PRO RATA according to the US$-Canadian
Lenders' respective percentages of the US$-Canadian Commitments, (ii) each
payment by a Borrower of principal of or interest on US$-Canadian Loans of a
particular Type (other than payments in respect of Loans of individual Lenders
provided for by Section 6 hereof) shall be made to the Administrative Agent for
the account of the US$-Canadian Lenders PRO RATA in accordance with the
respective unpaid principal amounts of such US$-Canadian Loans held by the
US$-Canadian Lenders and (iii) each conversion of US$-Canadian Loans of a
particular Type (other than conversions of Loans of individual Lenders pursuant
to Section 6.04 hereof) shall be made PRO RATA among the US$-Canadian Lenders in
accordance with the respective principal amounts of such US$-Canadian Loans held
by the US$-Canadian Lenders.
(c) With respect to the Multi-Currency Lenders, except to the extent
otherwise provided herein: (i) each borrowing from the Multi-Currency Lenders
under Section 2.01 hereof shall be made from the Multi-Currency Lenders, each
payment of commitment fees under Section 2.03 hereof shall be made for the
account of the Multi-Currency Lenders, and each termination or reduction of the
Multi-Currency Commitments under Section 2.02 hereof shall be applied to the
Multi-Currency Commitments of the Multi-Currency Lenders, PRO RATA according to
the Multi-Currency Lenders' respective percentages of the Multi-Currency
Commitments and (ii) each payment by a Borrower of principal of or interest on
Multi-Currency Loans (other than payments in respect of Loans of individual
Lenders provided for by Section 6 hereof) shall be made to the Multi-Currency
Payment Agent, in each case for the account of the Multi-Currency Lenders and
PRO RATA in accordance with the respective unpaid principal amounts of such
Multi-Currency Loans (whether denominated in Dollars or other currency) held by
the Multi-Currency Lenders.
(d) Any reduction of the Commitments under Section 2.02(b) or 3.02(c)
and any mandatory prepayment under Section 3.02(b) shall be applied ratably to
the US$ Commitments, US$-Canadian Commitments and the Multi-Currency
Commitments.
(e) With respect to the Term Lenders, except to the extent otherwise
provided herein: (i) the borrowing from the Term Lenders under Section 2.01
hereof shall be made from the Term Lenders, PRO RATA according to the Term
Lenders' respective percentages of the Term Commitments, (ii) each payment (or
prepayment) by the Company of principal or interest on Term Loans of a
particular Type (other than payments in respect of Loans of individual Lenders
provided for by Section 6 hereof) shall be made to the Administrative Agent for
the account of the Term Lenders, PRO RATA in accordance with the respective
unpaid principal amounts of such Term Loans held by the Term Lenders and (iii)
each conversion of Term Loans of a particular Type (other than conversions of
Loans of individual Lenders pursuant to Section 6.04 hereof) shall be made PRO
RATA among the Term Lenders, in each case, in accordance with the respective
principal amounts of such Term Loans held by the Term Lenders.
(f) Each prepayment by the Company of the Term Loans as provided by
Section 3.02 hereof shall be applied PRO RATA to the Term Loans and to the
installments of the Term Loans, PRO RATA according to the then outstanding
amounts thereof.
5.03. COMPUTATIONS. Interest and fees shall be computed on the basis
of a year of 360 days (or 365 or 366 days, as the case may be, in the case of
(a) ABR Loans the interest
48
rate payable on which is then based on the Prime Rate and (b) Multi-Currency
Loans denominated in Pounds Sterling) and actual days elapsed (including the
first day but excluding the last day) occurring in the period for which payable.
5.04. MINIMUM AND MAXIMUM AMOUNTS; TYPES.
(a) US$ LOANS; DOLLAR-DENOMINATED US$-CANADIAN LOANS;
DOLLAR-DENOMINATED MULTI-CURRENCY LOANS; AND TERM LOANS. Except for prepayments
made pursuant to Section 3.02(b) hereof, each borrowing, conversion and
prepayment of principal of US$ Loans, Dollar-denominated US$-Canadian Loans,
Dollar-denominated Multi-Currency Loans and Term Loans shall be in an aggregate
principal amount equal to (a) in the case of Eurocurrency Loans, $1,000,000 or a
larger multiple of $100,000, and (b) in the case of ABR Loans, $500,000 or a
larger multiple of $100,000 (borrowings, conversions or prepayments of Loans of
different Types or, in the case of Eurocurrency Loans, having different Interest
Periods, at the same time hereunder to be deemed separate borrowings,
conversions and prepayments for purposes of the foregoing, one for Type or
Interest Period); provided that (i) any Loan may be in the aggregate amount of
the unused portion of the relevant Commitments, (ii) Loans may be prepaid in
full and (ii) any borrowing or prepayment of Loans that are ABR Loans may be in
an aggregate principal amount equal to $100,000 or a larger multiple of
$100,000.
(b) NON-DOLLAR-DENOMINATED MULTI-CURRENCY LOANS AND
NON-DOLLAR-DENOMINATED US$-CANADIAN LOANS. Each Multi-Currency Loan other than a
Dollar-denominated Multi-Currency Loan shall be a Eurocurrency Loan, and each
US$-Canadian Loan other than a Dollar-denominated US$-Canadian Loan shall be a
Eurocurrency Loan. Except for prepayments made pursuant to Section 3.02(b)
hereof, each borrowing, conversion and prepayment of principal of
non-Dollar-denominated Multi-Currency Loans and non-Dollar-denominated
US$-Canadian Loans shall be in an aggregate principal amount which is an
integral multiple of 100,000 units of the relevant Multi-Currency or 100,000
Canadian Dollars, as the case may be, and equal to or greater than an amount the
Dollar Equivalent of which is $1,000,000.
5.05. CERTAIN NOTICES.
(a) US$ LOANS AND DOLLAR-DENOMINATED US$-CANADIAN LOANS. Notices to
the Administrative Agent of terminations or reductions of US$ Commitments and
US$-Canadian Commitments, of borrowings, conversions and prepayments of US$
Loans and Dollar-denominated US$-Canadian Loans and of the duration of Interest
Periods shall be irrevocable and shall be effective only if received by the
Administrative Agent (i) in the case of a notice of borrowing of US$ Loans as
ABR Loans, not later than 10:00 a.m. New York Time on the relevant Borrowing
Date and (ii) in the case of any other notice, not later than 11:00 a.m. New
York time on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, conversion and/or prepayment specified below:
--------------------------------------------------------------------------------
NUMBER OF
NOTICE BUSINESS
DAYS PRIOR
--------------------------------------------------------------------------------
49
--------------------------------------------------------------------------------
Termination or reduction of 3
Commitments
--------------------------------------------------------------------------------
Borrowing or prepayment of Same Day
ABR Loans
--------------------------------------------------------------------------------
Borrowing or prepayment of, 3
conversion of or into, or
duration of Interest Period
for Dollar-denominated Eurocurrency Loans
--------------------------------------------------------------------------------
Prepayments required pursuant 1
to Section 3.02(b) or 3.02(c) for Dollars
--------------------------------------------------------------------------------
Each such notice of termination or reduction shall specify the amount thereof to
be terminated or reduced. Each such notice of borrowing, conversion or
prepayment shall specify the amount and Type of the Loans to be borrowed,
converted or prepaid (subject to Sections 3.02(a) and 5.04 hereof), the date of
borrowing, conversion or prepayment (which shall be a Business Day) and, in the
case of Eurocurrency Loans, the duration of the Interest Period therefor
(subject to the definition of Interest Period). Each such notice of duration of
an Interest Period shall specify the Loans to which such Interest Period is to
relate. The Administrative Agent shall promptly notify the affected Lenders of
the contents of each such notice. In the event that a Borrower fails to select
the duration of any Interest Period for any Eurocurrency Loans within the time
period and otherwise as provided in this Section 5.05, such Loans (if
outstanding as Eurocurrency Loans and denominated in Dollars) will be
automatically converted into ABR Loans on the last day of the then current
Interest Period for such Loans or (if outstanding as ABR Loans) will remain as,
or (if not then outstanding) will be made as, ABR Loans. Each Borrower shall
give a copy of each notice to be given by it pursuant to this Section 5.05(a)
with respect to dollar-denominated US$-Canadian Loans or Commitments, to the
Multi-Currency Payment Agent.
(b) MULTI-CURRENCY LOANS AND NON-DOLLAR-DENOMINATED US$-CANADIAN
LOANS. Notices to the Multi-Currency Payment Agent of terminations or reductions
of Multi-Currency Commitments and US$-Canadian Commitments, of borrowings and
prepayments of Multi-Currency Loans and non-Dollar-denominated US$-Canadian
Loans and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Multi-Currency Payment Agent not later than
9:00 a.m. London time on the number of Business Days prior to the date of the
relevant termination, reduction, borrowing and/or prepayment specified below:
--------------------------------------------------------------------------------
NUMBER OF
NOTICE BUSINESS
DAYS PRIOR
--------------------------------------------------------------------------------
Termination or reduction of 3
Commitments
--------------------------------------------------------------------------------
Borrowing or prepayment of Multi-Currency Loans and 3
non-Dollar-denominated US$
--------------------------------------------------------------------------------
50
Loans and non-Dollar denominated US$-
Canadian Loans
--------------------------------------------------------------------------------
Prepayments required pursuant 1
to Section 3.02(b)
--------------------------------------------------------------------------------
Each such notice of termination or reduction shall specify the amount thereof to
be terminated or reduced. Each such notice of borrowing or prepayment shall
specify the amount of the Loans to be borrowed or prepaid (subject to Sections
3.02(a) and 5.04 hereof), the date of borrowing or prepayment (which shall be a
Business Day), the duration of the Interest Period therefor (subject to the
definition of Interest Period) and the currency of Loans to be borrowed. Each
such notice of duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Multi-Currency Payment Agent shall
promptly notify the affected Lenders of the contents of each such notice. Each
Borrower shall give a copy of each notice to be given by it pursuant to this
Section 5.05(b) with respect to non-Dollar-denominated US$-Canadian Loans or
Commitments to the Administrative Agent.
(c) TERM LOANS. Notices to the Administrative Agent of borrowing,
conversions and prepayments of Term Loans and of the duration of Interest
Periods shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
borrowing, conversion and/or prepayment specified below:
--------------------------------------------------------------------------------
NUMBER OF
NOTICE BUSINESS
DAYS PRIOR
--------------------------------------------------------------------------------
Borrowing or prepayment of 1
ABR Loans
--------------------------------------------------------------------------------
Borrowing or prepayment of, 3
conversion of or into, or
duration of Interest Period
for Dollar-denominated Eurocurrency Loans
--------------------------------------------------------------------------------
Prepayments required pursuant 1
to Section 3.02(b) or 3.02(c)
--------------------------------------------------------------------------------
Each such notice of termination or reduction shall specify the amount thereof to
be terminated or reduced. Each such notice of borrowing, conversion or
prepayment shall specify the amount and Type of the Loans to be borrowed,
converted or prepaid (subject to Sections 3.02(a) and 5.04 hereof), the date of
borrowing, conversion or prepayment (which shall be a Business Day) and, in the
case of Eurocurrency Loans, the duration of the Interest Period therefor
(subject to the definition of Interest Period). Each such notice of duration of
an Interest Period shall specify the Loans to which such Interest Period is to
relate. The Administrative Agent shall promptly notify
51
the affected Lenders of the contents of each such notice. In the event that a
Borrower fails to select the duration of any Interest Period for any
Eurocurrency Loans within the time period and otherwise as provided in this
Section 5.05, such Loans (if outstanding as Eurocurrency Loans) will be
automatically converted into ABR Loans on the last day of the then current
Interest Period for such Loans or (if outstanding as ABR Loans) will remain as,
or (if not then outstanding) will be made as, ABR Loans.
5.06. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent or the Multi-Currency Payment Agent, as the case may be,
shall have been notified by a US$ Lender, US$-Canadian Lender, Multi-Currency
Lender, Term Lender or a Borrower (the "PAYOR") prior to the date on which such
Lender is to make payment to the Administrative Agent or the Multi-Currency
Payment Agent, as the case may be, of the proceeds of a Loan to be made by it
hereunder or the Borrower is to make a payment to the Administrative Agent or
the Multi-Currency Payment Agent, as the case may be, for the account of one or
more of the Lenders, as the case may be (such payment being herein called the
"REQUIRED PAYMENT"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Administrative Agent
or the Multi-Currency Payment Agent, as the case may be, the Administrative
Agent or the Multi-Currency Payment Agent, as the case may be, may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient on such date and, if the Payor has not in fact made the
Required Payment to the Administrative Agent or the Multi-Currency Payment
Agent, as the case may be, the recipient of such payment shall, on demand, pay
to the Administrative Agent or the Multi-Currency Payment Agent, as the case may
be, the amount made available to it together with interest thereon in respect of
the period commencing on the date such amount was so made available by the
Administrative Agent or the Multi-Currency Payment Agent, as the case may be,
until the date the Administrative Agent or the Multi-Currency Payment Agent, as
the case may be, recovers such amount at a rate per annum equal to the Federal
Funds Effective Rate for such period or, in the case of an amount payable in a
currency other than Dollars, the rate determined by the Administrative Agent in
its discretion of the appropriate rate for interbank settlements.
5.07. SHARING OF PAYMENTS; WAIVER OF ENFORCEMENT WITHOUT CONSENT. ETC.
(a) Each Borrower agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option, to offset balances held by
it or its affiliates for the account of the such Borrower at any of their
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans or Reimbursement Obligations to such
Borrower hereunder, or any other obligation of such Borrower hereunder, which is
not paid when due (regardless of whether such balances are then due to such
Borrower), in which case it shall promptly notify the Company, the relevant
Borrower and the Administrative Agent (or the Multi-Currency Payment Agent, as
the case may be) thereof, provided that such Lender's failure to give such
notice shall not affect the validity thereof. Each Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any Person
purchasing a participation in the Loans to such Borrower made, or other
obligations held, by another Person, whether or not acquired pursuant to the
foregoing arrangements, may exercise all rights of set-off, banker's lien,
52
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of such Loans or other obligations in the
amount of such participation.
(b) If a Lender shall obtain payment of any principal of or interest
on any Loan made by it under this Agreement, or on any other obligation then due
to such Lender hereunder, through the exercise of any right of set-off, banker's
lien, counterclaim or similar right, or otherwise, it shall promptly notify the
Administrative Agent (or the Multi-Currency Payment Agent, as the case may be)
and purchase from the other Lenders participations in the Loans made, or other
obligations held, by the other Lenders in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Lenders shall share the benefit of such payment (net of any expenses which may
be incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the Loans or other
obligations then due to each of them. To such end all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored
(including the payment of interest to the extent that the Lender obligated to
return such funds is obligated to return interest).
(c) Nothing contained herein shall require any Lender to exercise any
right of set-off, banker's lien, counterclaim or similar right or shall affect
the right of any Lender to exercise, and retain the benefits of exercising, any
such right with respect to any other indebtedness or obligation of any Borrower.
(d) This Section 5.07 is for the benefit of the Lenders only and does
not constitute a waiver of any rights against any Borrower or any of their
Subsidiaries or against any property held as security for any obligations
hereunder or under any other Basic Document.
5.08. WITHHOLDING TAX EXEMPTION.
(a) At least five Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Lender, each
Lender that is not incorporated under the laws of the United States of America
or a state thereof agrees that it will deliver, to the extent it has not so
delivered under the Existing Credit Agreement, to each of the Company and the
Administrative Agent two duly completed copies of either U.S. Internal Revenue
Service Form W-8BEN or Form W-8ECI (or any subsequent versions thereof or
successors thereto), or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a statement substantially in
the form of Exhibit K (any such certificate an "EXEMPTION CERTIFICATE") and a
Form W-8BEN (or any subsequent versions thereof or successors thereto),
certifying in either case that such Lender is entitled to receive payments under
this Agreement and the Notes without deduction or withholding of any United
States federal income taxes. Each Lender which so delivers a Form W-8BEN or Form
W-8ECI further undertakes to deliver to each of the Company and the
Administrative Agent (or the Multi-Currency Payment Agent, in the case of
Multi-Currency Lenders) two additional copies of such form (or a successor form)
on or before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Company or the Administrative Agent (or the
Multi-Currency Payment Agent, as the case may be), in each case
53
certifying that such Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Company and the
Administrative Agent (or the Multi-Currency Payment Agent, as the case may be)
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(b) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, deliver to
such Foreign Subsidiary Borrower or the applicable Governmental Authority, any
form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
tax (or to allow any such deduction or withholding to be at a reduced rate)
imposed on such payment under the laws of the jurisdiction under which such
Foreign Subsidiary Borrower is incorporated or organized, PROVIDED that such
Lender is legally entitled to complete, execute and deliver such form or
certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(c) All payments made by a Borrower or the Canadian Borrower under
this Agreement 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 the Administrative Agent, the
Multi-Currency Payment Agent, the Canadian Administrative Agent or any Lender as
a result of a present or former connection between the Administrative Agent, the
Multi-Currency Payment Agent, the Canadian 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 the Administrative Agent, the Multi-Currency
Payment 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") or other taxes
are required to be withheld from any amounts payable to the Administrative
Agent, the Multi-Currency Payment Agent, the Canadian Administrative Agent or
any Lender hereunder, the amounts so payable to the Administrative Agent, the
Multi-Currency Payment Agent, the Canadian Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent,
the Multi-Currency Payment Agent, the Canadian Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and other taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, PROVIDED, HOWEVER, that the relevant Borrower or the Canadian
Borrower shall not be required to increase any such amounts payable to any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (a) or (b) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time the Lender becomes a
54
party to this Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
such Borrower or the Canadian Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
5.09. JUDGMENT CURRENCY. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due from any Borrower or the Canadian
Borrower hereunder or under any of the Notes or the C$ Notes in the currency
expressed to be payable herein (the "specified 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 Administrative Agent could purchase the specified
currency with other such currency at the Administrative Agent's New York Office
on the Business Day that is on or immediately following the day on which final
judgment is given. The obligations of each Borrower or the Canadian Borrower in
respect of any sum due to any Lender, the Administrative Agent, the
Multi-Currency Payment Agent or the Canadian Administrative Agent hereunder or
under any Note or C$ Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender, the Administrative Agent, the
Multi-Currency Payment Agent or the Canadian Administrative Agent, as the case
may be, of any sum adjudged to be so due in such other currency such Lender, the
Administrative Agent, the Multi-Currency Payment Agent or the Canadian
Administrative Agent as the case may be, may in accordance with normal banking
procedures purchase the specified currency with such other currency. If the
amount of the specified currency so purchased is less than the sum originally
due to such Lender, the Administrative Agent, the Multi-Currency Payment Agent
or the Canadian Administrative Agent, as the case may be, in the specified
currency, each Borrower and the Canadian Borrower agrees, to the fullest extent
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender, the Administrative Agent, the Multi-Currency
Payment Agent or the Canadian Administrative Agent, as the case may be, against
such loss, and if the amount of the specified currency so purchased exceeds the
sum originally due to any Lender, the Administrative Agent the Multi-Currency
Payment Agent or the Canadian Administrative Agent, as the case may be, in the
specified currency, such Lender or the Administrative Agent, or the
Multi-Currency Payment Agent, or the Canadian Administrative Agent, as the case
may be, agrees to remit such excess to the appropriate Borrower or the Canadian
Borrower.
Section 6 YIELD PROTECTION AND ILLEGALITY.
6.01. ADDITIONAL COSTS.
(a) Each Borrower shall pay to the Administrative Agent for the
account of each Lender from time to time such amounts as such Lender may
determine to be necessary to compensate it for any costs incurred by such Lender
which such Lender determines are attributable to its making or maintaining of
any Eurocurrency Loans hereunder to such Borrower or its obligation to make any
of such Loans hereunder to such Borrower, or any reduction in any amount
receivable by such Lender in respect of any of such Loans or such obligation
(such increases in costs and reductions in amounts receivable being herein
called "ADDITIONAL COSTS"), in each case resulting from any Regulatory Change
which:
55
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or its Notes in respect of any of such
Loans (other than changes which affect taxes measured by or imposed on
the overall net income of such Lender or of its Applicable Lending
Office by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements relating to any extensions of credit or other assets of,
or any deposits with or other liabilities of, such Lender (including
any of such Loans or any deposits referred to in the definition of
"Eurocurrency Base Rate" in Section 1.01 hereof); or
(iii) imposes any other condition affecting this Agreement (or
any of such extensions of credit or liabilities).
Each Lender will notify the relevant Borrower through the Administrative Agent
of any event occurring after the date of this Agreement which will entitle such
Lender to compensation pursuant to this Section 6.01(a) (an "ADDITIONAL COST
EVENT") as promptly as practicable after it obtains knowledge thereof and
determines to request such compensation, and (if so requested by the Company
through the Administrative Agent) will designate a different Applicable Lending
Office for the Eurocurrency Loans of such Lender if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
sole opinion of such Lender, be disadvantageous to such Lender (provided that
such Lender shall have no obligation to so designate an Applicable Lending
Office located in the United States of America) PROVIDED, that a Borrower shall
not be obligated to compensate such Lender for any such Additional Costs
incurred more than 180 days prior to the time the Lender first notifies such
Borrower of such Additional Cost Event. Each Lender will furnish the relevant
Borrower with a statement setting forth the calculations and the basis therefor,
in each case in reasonable detail, and amount of each request by such Lender for
compensation under this Section 6.01(a). If any Lender requests compensation
from a Borrower under this Section 6.01(a), the relevant Borrower may, by notice
to such Lender through the Administrative Agent, suspend the obligation of such
Lender to make additional Eurocurrency Loans to such Borrower until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 6.04 hereof shall be applicable).
(b) Without limiting the effect of the foregoing provisions of this
Section 6.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Eurocurrency Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurocurrency
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the relevant Borrower (with a copy to the Administrative Agent), the
obligation of such Lender to make Eurocurrency Loans hereunder shall be
suspended until the date such Regulatory Change ceases to be in effect (in which
case the provisions of Section 6.04 hereof shall be applicable).
56
(c) Determinations and allocations by any Lender for purposes of this
Section 6.01 of the effect of any Regulatory Change on its costs of maintaining
its obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate such Lender in respect of any Additional Costs, shall be conclusive
absent manifest error, provided that such determinations and allocations are
made on a reasonable basis.
(d) If any Lender demands compensation under this Section, the
relevant Borrower may, at any time upon at least three (3) Business Days' prior
notice to such Lender through the Administrative Agent, convert in full the then
outstanding Eurocurrency Loans of such Lender (in which case the relevant
Borrower shall be obligated, if such conversion is made on a day that is not the
last day of the then current Interest Period applicable to such affected
Eurocurrency Loan, to reimburse such Lender, in accordance with Section 6.05,
for any resulting loss or expense incurred by it) to an ABR Loan.
6.02. LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, with respect to any Loans that are Eurocurrency Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurocurrency Base Rate" in Section 1.01
hereof are not being provided by the Reference Lenders in the relevant
amounts or for the relevant maturities for purposes of determining the rate
of interest for such Loans for Interest Periods therefor as provided in
this Agreement; or
(b) the Majority Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurocurrency Base Rate" in
Section 1.01 thereof upon the basis of which the rates of interest for such
Loans are to be determined do not accurately reflect the cost to such
Lenders of making or maintaining such Loans for Interest Periods therefor;
then the Administrative Agent shall promptly notify the relevant Borrower and
each Lender thereof, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make Eurocurrency Loans or to convert
ABR Loans into Eurocurrency Loans and the relevant Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurocurrency
Loans, either prepay such Loans or convert such Loans into ABR Loans in
accordance with Section 3.02 hereof.
6.03. ILLEGALITY. Notwithstanding any other provision of this
Agreement to the contrary, in the event that it becomes unlawful for any Lender
or its Applicable Lending Office to (a) honor its obligation to make
Eurocurrency Loans hereunder, or (b) maintain Eurocurrency Loans hereunder, then
such Lender shall promptly notify the relevant Borrower thereof through the
Administrative Agent and such Lender's obligation to make Eurocurrency Loans
hereunder shall be suspended until such time as such Lender may again make and
maintain Eurocurrency Loans (in which case the provisions of Section 6.04 hereof
shall be applicable).
57
6.04. SUBSTITUTE ABR LOANS. If the obligation of any Lender to make
Eurocurrency Loans shall be suspended pursuant to Section 6.01, 6.02 or 6.03
hereof, all Loans in Dollars which would otherwise be made by such Lender as
Eurocurrency Loans shall be made instead as ABR Loans (and, if an event referred
to in Section 6.01 (b)or 6.03 hereof has occurred and such Lender so requests by
notice to the relevant Borrower with a copy to the Administrative Agent, each
Dollar-denominated Eurocurrency Loan of such Lender then outstanding shall be
automatically converted into an ABR Loan on the date specified by such Lender in
such notice) and, to the extent that Eurocurrency Loans are so made as (or
converted into) ABR Loans, all payments of principal which would otherwise be
applied to such Eurocurrency Loans shall be applied instead to such ABR Loans.
6.05. COMPENSATION. Each Borrower shall pay to the Administrative
Agent for the account of each Lender, upon the request of such Lender through
the Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense incurred by it as a result of:
(a) any payment, prepayment or conversion (including, without
limitation, an automatic conversion pursuant to Section 10.02 hereof) of a
Eurocurrency Loan made by such Lender to such Borrower on a date other than
the last day of an Interest Period for such Loan;
(b) any failure by a Borrower to borrow a Eurocurrency Loan to be made
by such Lender to such Borrower on the date for such borrowing specified in
the relevant notice of borrowing under Section 5.05 hereof;
(c) any failure by a Borrower to prepay a Eurocurrency Loan on the
date specified in a notice of prepayment; or
(d) any substitution of a Lender under Section 6.07 hereof on a date
other than the last day of an Interest Period for each Loan of such Lender;
but excluding, in any event, loss of margin for the period after any such
payment, prepayment or conversion or failure to borrow; PROVIDED that such
Lender shall have delivered to the relevant Borrower a certificate as to the
amount of such loss and expense along with the calculation and the basis
therefor, in each case in reasonable detail.
6.06. CAPITAL ADEQUACY. If any Lender shall determine that the
adoption of any applicable law, rule, regulation or treaty regarding capital
adequacy after the date hereof, or any change therein after the date hereof, or
any change after the date hereof in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Lender (or
its Applicable Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on capital of such Lender or any Person controlling such Lender (a
"PARENT") as a consequence of its obligations hereunder to a level below that
which such Lender (or its Parent) could have achieved but for such adoption,
change or compliance (taking into consideration its policies with respect to
capital adequacy) by an
58
amount deemed by such Lender to be material, then from time to time, within 15
days after demand by such Lender (with a copy to the Administrative Agent), the
relevant Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. A statement of any Lender
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive absent manifest error;
provided that the determination thereof is made on a reasonable basis; and
provided further that a Borrower shall not be obligated to compensate such
Lender for any such reduction occurring more than 180 days prior to the time
such Lender first notifies such Borrower of such adoption, implementation,
change or compliance. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
6.07. SUBSTITUTION OF LENDER. If (i) the obligation of any Lender to
make Eurocurrency Loans or the right of a Borrower to convert ABR Loans of any
Lender to Eurocurrency Loans has been suspended pursuant to Section 6.03, or
(ii) any Lender has demanded compensation under Section 6.01, 6.06 or 6.09, the
relevant Borrower shall have the right, with the assistance of the
Administrative Agent, to seek a substitute bank or banks (which may be one or
more of the Lenders) satisfactory to such Borrower and the Administrative Agent
to purchase the Notes and assume the Commitments and Loans of such Lender. Any
such Lender shall be obligated to sell the Notes, Loans and Commitments for cash
without recourse to such substitute bank or banks and to execute and deliver an
appropriately completed assignment and assumption agreement reasonably
satisfactory to the Administrative Agent and the relevant Borrower and any other
document or perform any act reasonably necessary to effect the assumption of the
rights and obligations of such substitute bank or banks.
6.08. ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Borrowers under Section 6.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the relevant Borrower shall pay immediately to the Administrative Agent
for account of such Lender or Lenders, from time to time as specified by such
Lender or Lenders (through the Administrative Agent), such additional amounts as
shall be sufficient to compensate such Lender or Lenders (through the
Administrative Agent) for such increased costs or reductions in amount. A
statement as to such increased costs or reductions in amount incurred by any
such Lender or Lenders, showing calculations and the basis therefor in
reasonable detail, submitted by such Lender or Lenders to the relevant Borrower,
shall be conclusive in the absence of manifest error as to the amount thereof.
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6.09. FOREIGN BORROWER COSTS. (a) If the cost to any Lender of making
or maintaining any Loan to a Foreign Subsidiary Borrower is increased, or the
amount of any sum received or receivable by any Lender (or its Applicable
Lending Office) is reduced, by an amount deemed by such Lender to be material,
by reason of the fact that such Borrower is organized under the laws of, or
principally conducts its business in, a jurisdiction or jurisdictions outside
the United States of America, such Borrower shall indemnify such Lender for such
increased cost or reduction within 15 days after demand by such Lender (with a
copy to the Administrative Agent). A certificate of such Lender claiming
compensation under this subsection (a) and setting forth the additional amount
or amounts to be paid to it hereunder, together with calculations in reasonable
detail supporting such amounts, shall be conclusive in the absence of clearly
demonstrable error. No such compensation may be claimed (x) in respect of any
Loan for any period prior to the date 90 days before the date of notice by such
Lender to the Company of its intention to make claims therefor or (y) to the
extent such Lender was aware of such cost or reduction at the time the related
Loan was made.
(b) Each Lender will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge that will entitle
such Lender to additional interest or payments pursuant to the foregoing
subsection (a) and will designate a different Applicable Lending Office, if, in
the judgment of such Lender, such designation will avoid the need for, or reduce
the amount of, such compensation and will not be otherwise disadvantageous to
such Lender.
Section 7 CONDITIONS PRECEDENT.
7.01. EFFECTIVE DATE. This Agreement shall become effective on the
date (the "EFFECTIVE DATE") on which the Administrative Agent shall notify the
Company and the Lenders that it has received (i) the executed counterparts of
this Agreement in form and substance satisfactory to the Administrative Agent
signed by the Company, the other Borrowers, the Canadian Borrower, the Majority
Lenders (as defined in the Existing Credit Agreement after giving effect to the
prepayment of the Tranche A Term Loans and Tranche B Term Loans thereunder), the
Term Lenders and all Lenders agreeing to a transfer of a portion of their
commitments under the US$ Commitments to the Multi-Currency Commitments and (ii)
the following documents and other evidence, each of which shall be satisfactory
to the Administrative Agent (and to the extent specified below, to each Lender)
in form and substance (provided that this Agreement shall not become effective
unless the Effective Date occurs on or before April 15, 2002):
(a) CORPORATE DOCUMENTS. Certified copies of the charter and by-laws
(or equivalent documents) of each Obligor and of all corporate authority
for each Obligor (including, without limitation, board of director
resolutions and evidence of the incumbency, including specimen signatures,
of officers) with respect to the execution, delivery and performance of
such of the Basic Documents to which such Obligor is intended to be a party
and each other document to be delivered by such Obligor from time to time
in connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from such Obligor to the
contrary).
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(b) OFFICER'S CERTIFICATE. A certificate, dated the Effective Date, of
a senior officer of the Company to the effect set forth in the first
sentence of Section 7.02 hereof.
(c) OPINIONS OF SPECIAL COUNSELS TO THE OBLIGORS. (i) An opinion,
dated the Effective Date, of ▇▇▇▇▇▇▇▇ & Worcester LLP, special New York
counsel to the Obligors, substantially in the form of Exhibit G-1 hereto
and covering such other matters as the Administrative Agent or any Lender
may reasonably request and (ii) an opinion, dated the Effective Date, of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, special Pennsylvania counsel to the
Obligors substantially in the form of Exhibit G-2 hereto and covering such
other matters as the Administrative Agent or any Lender may reasonably
request.
(d) OPINION OF SPECIAL NEW YORK COUNSEL TO THE ADMINISTRATIVE AGENT.
An opinion, dated the Effective Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special New York counsel to the Administrative Agent, substantially in the
form of Exhibit H hereto.
(e) NOTES. The Notes, duly completed and executed for each Lender.
(f) COUNTERPARTS. This Agreement, duly executed and delivered by the
Company, the Canadian Borrower and each of the Lenders.
(g) ACKNOWLEDGMENT AND CONFIRMATION OF GUARANTEE OR SECURITY DOCUMENT.
The Acknowledgment and Confirmation of Guarantee or Security Document, duly
executed and delivered by the Company, each Subsidiary Guarantor, the
Canadian Borrower and the Administrative Agent.
(h) ACCRUED FEES. Evidence that all fees (including without limitation
commitment fees) and other costs and expenses under the Credit Agreement
(including the Existing Credit Agreement) accrued to the Effective Date
shall have been paid in full.
(i) COSTS. Evidence of payment by the Company of such fees as the
Company shall have agreed to pay or deliver to any Lender or the
Administrative Agent in connection herewith, including, without limitation,
the reasonable fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New
York counsel to the Administrative Agent, in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
Notes and the other Basic Documents and the extensions of credit hereunder
(to the extent that statements for such fees and expenses have been
delivered to the Company).
(j) OTHER DOCUMENTS. Such other documents as the Administrative Agent
or any Lender or special New York counsel to the Administrative Agent may
reasonably request.
(k) DESIGNATION OF INDEBTEDNESS AS "SENIOR DEBT" OR "SENIOR
INDEBTEDNESS" UNDER THE SENIOR SUBORDINATED DEBT DOCUMENTS. Evidence that
the Indebtedness of the Company and the Canadian Borrower hereunder and
under the Guarantees of such Indebtedness by the Subsidiaries of the
Company under the Subsidiary Guaranty, or, in the case of the Canadian
Borrower, Guarantees of such Canadian Borrower's Indebtedness hereunder by
the Company under the Company Guaranty, has been
61
designated as "Senior Debt" or "Senior Indebtedness", as the case may be
(and, accordingly, "Designated Senior Debt" or "Designated Senior
Indebtedness", as the case may be) under the Senior Subordinated Debt
Indentures and the other Senior Subordinated Debt Documents.
(l) PREPAYMENT OF TRANCHE A AND TRANCHE B TERM LOANS. Evidence that
the Tranche A Term Loans and Tranche B Term Loans under the Existing Credit
Agreement have been paid in full.
7.02. INITIAL AND SUBSEQUENT LOANS. The obligation of each Lender to
make any Loan to be made by it hereunder, and the obligation of the Issuing Bank
to issue any Letter of Credit hereunder, is subject to the conditions precedent
that, as of the date of such Loan or such issuance, and before and after giving
effect thereto:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each of the Company,
the Canadian Borrower, any other Borrower and the Subsidiary Guarantors in
each Basic Document to which it is a party shall be true on and as of the
date of the making of such Loan or such issuance, with the same force and
effect as if made on and as of such date; provided that the representations
and warranties set forth in Section 8.10 hereof need be true only as of the
Effective Date (except to the extent such representations and warranties
relate to an earlier date, in which event they shall be true on and as of
such earlier date); and
(c) the borrowing of such Loan by the Company, the Canadian Borrower
or any other Borrower hereunder or the issuance of such Letter of Credit,
as the case may be, and the related incurrence of obligations by the
Company, the Canadian Borrower or any other Borrower does not violate the
provisions of any Senior Subordinated Debt Indenture or any other Senior
Subordinated Debt Document.
Each notice of borrowing by the Company, the Canadian Borrower or any other
Borrower hereunder shall constitute a certification by the Company, the Canadian
Borrower or such other Borrower to the effect set forth in the preceding
sentence (both as of the date of such notice and, unless the Company, the
Canadian Borrower or such other Borrower otherwise notifies the Administrative
Agent prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
7.03. FIRST LOAN TO A SUBSIDIARY BORROWER. The obligation of each
Lender to make a Loan on the occasion of the first borrowing by each Subsidiary
Borrower is subject to the receipt by the Administrative Agent of all documents
which it may reasonably request relating to the existence of such Subsidiary
Borrower, the corporate or other legal authority for and the validity of its
Election to Participate, this Agreement and the Notes of such Subsidiary
Borrower, and for any other matters relevant thereto, all in form and substance
reasonably satisfactory to the Administrative Agent.
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Section 8 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Lenders and the Administrative Agent, as of the Effective Date
and on the date of each Loan and of the issuance of each Letter of Credit, as
follows:
8.01. CORPORATE EXISTENCE. 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 formation; (b) has all requisite power, and has all
governmental licenses, authorizations, consents, permits and approvals
(including any license, authorization, consent, permit and approval required
under any Environmental Law) necessary to own its assets and carry on its
business as now being or as proposed to be conducted (except such licenses,
authorizations, consents and approvals the lack of which, in the aggregate, will
not have a Material Adverse Effect); and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
8.02. INFORMATION.
(a) The Company has heretofore furnished to each of the Lenders the
consolidated balance sheets of the Company and its Subsidiaries as at December
31, 2000 and the related consolidated statements of income, retained earnings
and cash flows of the Company and its Subsidiaries, respectively, for the fiscal
year ended on said date, with the opinion thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.
Pursuant to Section 9.01(a), the Company shall furnish to each of the Lenders
the consolidated balance sheets of the Company and its Subsidiaries as at
December 31, 2001 and the related consolidated statements of income, retained
earnings and cash flows of the Company and its Subsidiaries, respectively, for
the fiscal year ended on said date, with the opinion thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
L.L.P. All such financial statements are complete and correct and fairly present
the consolidated financial condition of the Company and its Subsidiaries as at
said dates and the consolidated results of their operations for the fiscal years
ended on said dates, all in accordance with generally accepted accounting
principles and practices applied on a consistent basis.
(b) The Company has disclosed to the Lenders in writing any and all
facts (other than general economic conditions) which materially and adversely
affect or may materially and adversely affect (to the extent it can reasonably
foresee) the business, assets, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, or the ability
of the Company, the Canadian Borrower, any other Borrower or any of the
Subsidiary Guarantors to perform its obligations under each Basic Document to
which it is a party or the ability of the Company or any Subsidiary of the
Company to conduct its activities or operations in the normal course of business
at any of its owned or leased properties. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Obligors to the Administrative Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement and the other Basic
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, that with respect to any such information, report,
financial statement, exhibit or schedule to the extent that it was based upon or
constitutes a forecast or projection, the
63
Company represents only that it acted in good faith and utilized reasonable
assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule. All written information furnished
after the date hereof by the Company and its Subsidiaries to the Administrative
Agent and the Lenders and required in connection with this Agreement and the
other Basic Documents and the transactions contemplated hereby and thereby will
be true, complete and accurate in every material respect, or (in the case of
projections) based on reasonable estimates, on the date as of which such
information is stated or certified.
(c) Since September 30, 2001, there has been no material adverse
change in the business, assets, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole or, to the
knowledge of the Company, in the ability of the Company, the Canadian Borrower,
any other Borrower or any of the Subsidiary Guarantors to perform its
obligations under each Basic Document to which it is a party.
8.03. LITIGATION. There are no legal or arbitral proceedings or any
proceedings by or before any Governmental Authority or agency, now pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its Subsidiaries in which there is a reasonable possibility of an adverse
decision which could have a Material Adverse Effect or, to the knowledge of the
Company, which could have a material adverse effect on the ability of the
Company, the Canadian Borrower, any other Borrower or any of the Subsidiary
Guarantors to perform its obligations under each Basic Document to which it is a
party.
8.04. NO BREACH. None of the execution and delivery of the Basic
Documents, the consummation of the transactions therein contemplated or
compliance with the terms and provisions thereof will conflict with or result in
a breach of, or require any consent under, the certificate of incorporation, LLC
operating agreement or partnership agreements, or by-laws of the Company or any
of its Subsidiaries, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or Governmental Authority, or any Basic
Document, any other material agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which it is bound or to which it is
subject, or constitute a default under any such lease, agreement or instrument,
or (except for the Liens created pursuant to, or permitted by, this Agreement
and the Security Documents) result in the creation or imposition of any Lien
upon any of the revenues or assets of the Company or any of its Subsidiaries
pursuant to the terms of any such agreement or instrument.
8.05. CORPORATE ACTION. Each of the Company, the Canadian Borrower and
the Subsidiary Guarantors has all necessary corporate or limited liability
company power and authority to execute, deliver and perform its obligations
under the Basic Documents to which it is a party; the execution, delivery and
performance by the Company, the Canadian Borrower and the Subsidiary Guarantors
of the Basic Documents to which they are parties have been duly authorized by
all necessary corporate or limited liability company action; and this Agreement
has been duly and validly executed and delivered by each of the Company and the
Canadian Borrower and constitutes its legal, valid and binding obligation and
each of the other Basic Documents to which the Company, the Canadian Borrower or
any of the Subsidiary Guarantors is to be a party constitute its legal, valid
and binding obligation, in each case enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
64
insolvency,reorganization or moratorium or other similar laws relating to the
enforcement of creditors' rights generally and by general equitable principles.
8.06. APPROVALS. Each of the Company, the Canadian Borrower and the
Subsidiary Guarantors has obtained all authorizations, approvals and consents
of, and has made all filings and registrations with, any governmental or
regulatory authority or agency necessary for the execution, delivery or
performance by it of any Basic Document to which it is a party, or for the
validity or enforceability thereof, except for filings and recordings of the
Liens created pursuant to, or permitted by, the Security Documents.
8.07. REGULATIONS U AND X. None of the Company or any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U or X of the Board of Governors
of the Federal Reserve System) and no part of the proceeds of any Loan hereunder
will be used to purchase or carry any such margin stock.
8.08. ERISA AND THE CANADIAN PENSION PLANS.
(a) The Company and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA (other than to make
contributions or premium payments in the ordinary course).
(b) Each Canadian Pension Plan is in substantial compliance with all
applicable pension benefits and tax laws; no Canadian Pension Plan has any
unfunded liabilities (either on a "going concern" or on a "winding up" basis and
determined in accordance with all applicable laws and using assumptions and
methods that are appropriate in the circumstances and in accordance with
generally accepted actuarial principles and practices in Canada), all
contributions (including any special payments to amortize any unfunded
liabilities) required to be made in accordance with all applicable laws and the
terms of each Canadian Pension Plan have been made.
8.09. TAXES. Each of the Company and its Subsidiaries has filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by it and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by it, except to the extent the
same may be contested as permitted by Section 9.02 hereof. The charges, accruals
and reserves on the books of such Persons in respect of taxes and other
governmental charges are, in the opinion of the Company, adequate.
8.10. SUBSIDIARIES; AGREEMENTS; ETC.
(a) Schedule II hereto is a complete and correct list on the Effective
Date hereof of all Subsidiaries of the Company and of all equity Investments
held by the Company or any of its Subsidiaries in any joint venture or other
Person. Except for the Liens created by the Security Documents and except as
otherwise provided on Schedule III hereof, on the Effective Date, the Company
owns, free and clear of Liens, except for Liens permitted hereunder, all
outstanding shares of such Subsidiaries and all such shares are validly issued,
fully paid and
65
non-assessable and the Company (or the respective Subsidiary of the Company)
also owns, free and clear of Liens, all such Investments.
(b) None of the Subsidiaries of the Company (other than the Excluded
Subsidiaries) is, on the date hereof, subject to any indenture, agreement,
instrument or other arrangement of the type described in Section 9.21(d) hereof
(other than the Senior Subordinated Debt Indentures).
8.11. INVESTMENT COMPANY ACT. None of the Company or its Subsidiaries
is an investment company within the meaning of the Investment Company Act of
1940, as amended, or, directly or indirectly, controlled by or acting on behalf
of any Person which is an investment company, within the meaning of said Act.
8.12. PUBLIC UTILITY HOLDING COMPANY ACT. None of the Company or its
Subsidiaries is a "holding company", or an "affiliate" of a "holding company" or
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
8.13. OWNERSHIP AND USE OF PROPERTIES. Each of the Company and its
Subsidiaries will at all times have legal title to or ownership of, or the right
to use pursuant to enforceable and valid agreements or arrangements, all
tangible property, both real and personal, and all franchises, licenses,
copyrights, patents and know-how which are material to the operation of its
business as proposed to be conducted.
8.14. ENVIRONMENTAL COMPLIANCE.
(i) No notice, notification, demand, request for information,
citation, summons, complaint or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is pending
or, to the Company's knowledge, threatened by any governmental or other entity
with respect to any (A) alleged violation by the Company or any Subsidiary of
any Environmental Law, (B) alleged failure by the Company or any Subsidiary to
have any environmental permit, certificate, license, approval, registration or
authorization required in connection with the conduct of its business or (C)
generation, treatment, storage, recycling, transportation or disposal or Release
(each a "Regulated Activity") of any Hazardous Substances except for such as
would not have a Material Adverse Effect; (ii) neither the Company nor any
Subsidiary has engaged in any Regulated Activity other than as a generator (as
such term is used in RCRA) in compliance with all applicable Environmental Laws;
and (iii) neither the Company nor any Subsidiary has assumed from any third
party, or indemnified any third party for, any Environmental Liability, except
for Environmental Liabilities of the Company and its Subsidiaries (without
duplication) that relate to or result from any matter referred to in this clause
which do not exceed in the aggregate, at any time, $6,000,000.
8.15. SOLVENCY. At the Effective Date and after giving effect to the
consummation of the transactions contemplated by this Agreement, the Company
will (i) have capital, cash flows and sources of working capital financing
sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage, (ii) be able to pay its debts as
they mature, and (iii) have assets (tangible and intangible) whose fair salable
66
value exceeds its total liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities).
8.16. SENIOR DEBT. The Indebtedness of the Company to the Lenders
hereunder and under the Company Guaranty and the Guarantees of such Indebtedness
by the Subsidiaries of the Company under the Subsidiary Guaranty constitute
"Senior Debt" (or similar debt) and, to the extent applicable and after giving
effect to appropriate notices to be delivered on the Effective Date, "Designated
Senior Debt", under and as defined in, and for all purposes of, Indebtedness of
the Company under, and the Guarantees of such Indebtedness by the Subsidiaries
of the Company, under the Senior Subordinated Debt Indentures and the other
Senior Subordinated Debt Documents.
Section 9 COVENANTS. The Company agrees that, so long as any of the
Commitments are in effect and until payment in full of all Loans hereunder, all
interest thereon and all other amounts payable hereunder, unless the Majority
Lenders shall agree otherwise pursuant to Section 12.05 hereof:
9.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company shall
deliver:
(a) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender), as soon as available and in any
event within 105 days after the end of each fiscal year of the Company,
consolidated statements of income, retained earnings and cash flow of the
Company and its Subsidiaries for such year and the related consolidated
balance sheet as at the end of such year, setting forth in each case in
comparative form the corresponding figures for the preceding fiscal year,
and accompanied by an opinion thereon (without qualification arising out of
the scope of audit) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. or other independent
certified public accountants of recognized national standing, which opinion
shall state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of the Company
and its Subsidiaries as at the end of, and for, such fiscal year, and
stating (or indicating in a footnote to such financial statements) that, in
making the examination necessary for their above-described opinion (but
without any special or additional procedures for that purpose), they
obtained no knowledge, except as specifically stated, of any Default;
(b) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender), as soon as available and in any
event within 60 days after the end of each fiscal quarter of the Company
(or, in the case of the last fiscal quarter in each fiscal year, within 105
days) consolidated statements of income, retained earnings and cash flow of
the Company and its Subsidiaries for such fiscal quarter and for the
portion of the fiscal year ended at the end of such fiscal quarter, and the
related consolidated balance sheet as at the end of such fiscal quarter,
setting forth in each case in comparative form the corresponding figures
from the Company's operating budget for such fiscal year and accompanied,
in each case, by a certificate of the chief financial officer or vice
president-treasurer of the Company which certificate shall state that said
consolidated financial statements fairly present the consolidated financial
condition and results of operations of the Company in accordance with GAAP
(except for the absence
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of footnotes) consistently applied as at the end of, and for, such fiscal
quarter (subject to normal year-end audit adjustments);
(c) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender that has requested the same), within
30 days after the beginning of each fiscal year of the Company commencing
with fiscal year 2001, a copy of the consolidated operating budget,
including, without limitation, projection of the anticipated cash flow, of
the Company and its Subsidiaries for such fiscal year, such budget to be
accompanied by a certificate of the chief financial officer or vice
president-treasurer of the Company specifying the assumptions on which such
budget was prepared, stating that such officer has no reason to question
the reasonableness of any material assumptions on which such budget was
prepared and providing such other details as the Administrative Agent may
reasonably request;
(d) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender that has requested the same),
promptly upon the mailing thereof to the shareholders or creditors of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(e) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender that has requested the same),
promptly upon the filing thereof, copies of all registration statements
(other than any registration statements on Form S-8 or its equivalent) and
any reports which the Company shall have filed with the Securities and
Exchange Commission;
(f) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender), if and when the Company or any
member of the Controlled Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in Section 4043 of ERISA)
with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator
of any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required to
be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate or appoint a trustee to administer the Plan, a copy of such
notice;
(g) to the Administrative Agent (and the Administrative Agent will
deliver such materials to each Lender that has requested the same),
promptly following the delivery thereof to the Company or to the Board of
Directors or management of the Company, a copy of any management letter or
similar written report by independent public accountants with respect to
the financial condition, operations, business or prospects of the Company;
(h) to the Administrative Agent (and the Administrative Agent will
deliver such notice to each Lender), promptly after management of the
Company knows or has
68
reason to know that any Default has occurred and is continuing, a notice of
such Default, describing the same in reasonable detail;
The Company will furnish to the Administrative Agent (and the Administrative
Agent will deliver such notice to each Lender), at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of its chief executive officer, chief financial officer or vice
president-treasurer (i) to the effect that, to the best of such Person's
knowledge after due inquiry, no Default has occurred and is continuing (or, if
any Default has occurred and is continuing, describing the same in reasonable
detail) and (ii) setting forth in reasonable detail the computations necessary
to determine the Applicable Leverage Ratio and to determine whether it was in
compliance with Sections 9.08 through 9.15, 9.17 and 9.19 hereof as of the end
of the respective fiscal quarter or fiscal year. Any financial statement or
other document required to be delivered pursuant to this Section 9.01 shall be
deemed to have been delivered on the date on which the Company posts such
financial statement or other document on the Intralinks website on the Internet
at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇; PROVIDED that the Company shall give prompt notice of any
such posting to the Administrative Agent (who shall then give prompt notice of
any such posting to the Lenders). Notwithstanding the foregoing, the Company
shall deliver paper copies of any financial statement or other document referred
to in this Section 9.01 to the Administrative Agent if the Administrative Agent
or any Lender requests the Company to deliver such paper copies until written
notice to cease delivering such paper copies is given by the Administrative
Agent or such Lender as the case may be.
9.02. TAXES AND CLAIMS. The Company will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any property belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon the property of the Company or such Subsidiary, provided that
neither the Company nor such Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim the payment of which is being contested in
good faith and by proper proceedings if it maintains adequate reserves with
respect thereto.
9.03. INSURANCE. The Company will maintain, and will cause each of its
Subsidiaries to maintain, insurance with responsible companies in such amounts
and against such risks as is usually carried by owners of similar businesses and
properties in the same general areas in which the Company and its Subsidiaries
operate, provided that in any event the Company shall maintain or cause to be
maintained:
(1) PROPERTY INSURANCE -- insurance against loss or damage covering
all of the tangible real and personal property and improvements of the
Company and its Subsidiaries, by reason of any Peril (as defined below), in
amounts as shall be reasonable and customary, but in no event less than the
functional replacement cost of all such real and personal property and
improvements. Such policy shall include insurance against loss of operating
income earned from the operation of the business of the Company and its
Subsidiaries, by reason of any Peril affecting the operation thereof, and
insurance against any other insurable loss of operating income by reason of
any business interruption affecting the Company to the extent covered by
standard business interruption policies in the States in which the
Properties are located.
69
(2) EARTHQUAKE INSURANCE -- insurance against loss or damage covering
all of the tangible real and personal property and improvements of the
Company and its Subsidiaries, by reason of any earthquake peril, in amounts
as shall be reasonable, customary and commercially available in the
property/casualty insurance markets.
Such insurance shall be written by financially responsible companies selected by
the Company, having an A.M. Best rating of "A-" or better and in a financial
size category acceptable to the Majority Lenders, or by other companies
acceptable to the Majority Lenders.
For purposes hereof, the term "Peril" shall mean, collectively, (i)
earthquake outside California, (ii) fire, smoke, lightning, flood, windstorm,
hail, explosion, riot and civil commotion, vandalism and malicious mischief and
(iii) all other perils covered by the "all-risk" endorsement then in use in the
States in which the Properties are located.
9.04. MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. The Company will
preserve and maintain, and will cause each of its Subsidiaries to preserve and
maintain, its legal existence and all of its rights, privileges and franchises
necessary or desirable in the normal conduct of its business, and will conduct
its business in a regular manner; PROVIDED that nothing herein shall prevent (i)
the merger and dissolution of any Subsidiary of the Company into the Company or
any Wholly-Owned Subsidiary of the Company so long as the Company or such
Wholly-Owned Subsidiary is the surviving corporation (and, if such Subsidiary is
not an Excluded Subsidiary prior to such merger or dissolution, the surviving
corporation (if not the Company) is not an Excluded Subsidiary and is a
Subsidiary Guarantor) (ii) the merger of any Subsidiary of the Company (a
"Merging Subsidiary") with any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company) provided that (A) such merger is permitted under
Section 9.12(vi) hereof and (B) the surviving entity is either (x) a
Wholly-Owned Subsidiary (and, if such Merging Subsidiary is not an Excluded
Subsidiary prior to such merger, the surviving entity is not an Excluded
Subsidiary and is a Subsidiary Guarantor), or (y) an Excluded Subsidiary
(PROVIDED that such Merging Subsidiary is an Excluded Subsidiary prior to such
merger), or (iii) the abandonment of any right, privilege or franchise
(including any lease) not material in the aggregate to the business of the
Company and its Subsidiaries. Nothing in this Agreement shall, or shall be
deemed to, prohibit or restrict the merger of the Company with or into another
corporation for the sole purpose of changing the Company's domicile from
Pennsylvania to Delaware, so long as the surviving corporation of such merger,
if such surviving corporation is not the Company, shall expressly assume all of
the obligations of the Company under this Agreement and the other Basic
Documents to which it is a party and expressly agree to be bound by all other
provisions applicable to the Company under this Agreement and the other Basic
Documents to which it is a party in a manner reasonably satisfactory to the
Administrative Agent.
9.05. MAINTENANCE OF AND ACCESS TO PROPERTIES.
(a) The Company will keep, and will cause each of its Subsidiaries to
keep, all of its properties necessary in its business in good working order
and condition (having regard to the condition of such properties at the
time such properties were acquired by the Company or such Subsidiary),
ordinary wear and tear excepted, and will permit representatives of the
Lenders to inspect such properties and, upon reasonable notice and
70
at reasonable times, to examine and make extracts and copies from the books
and records of the Company and any such Subsidiary.
(b) The Company will, and will cause its Subsidiaries to, do all
things necessary to preserve and keep in full force and effect all
trademarks, patents, service marks, trade names, copyrights, franchises and
licenses, and any rights with respect thereto, which are necessary for and
material to the conduct of the business of the Company and its Subsidiaries
taken as a whole.
9.06. COMPLIANCE WITH APPLICABLE LAWS. The Company will comply, and
will cause each of its Subsidiaries to comply, with the requirements of all
applicable laws, rules, regulations and orders of any governmental body or
regulatory authority (including, without limitation, ERISA and all
Environmental Laws), a breach of which would have a Material Adverse
Effect, except where contested in good faith and by proper proceedings.
9.07. LITIGATION. The Company will promptly give to the Administrative
Agent (which shall promptly notify each Lender) notice in writing of (i)
all judgments against it or any of its Subsidiaries (other than judgments
covered by insurance) which in the aggregate exceed $10,000,000 and (ii)
all litigation and of all proceedings of which it is aware before any
courts, arbitrators or governmental or regulatory agencies affecting the
Company or any of its Subsidiaries except litigation or proceedings which,
if adversely determined, would not in the reasonable opinion of the Company
have a Material Adverse Effect.
9.08. INDEBTEDNESS. The Company will not, and will not permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except: (i) Indebtedness to the Lenders hereunder; (ii) the Indebtedness
existing on the Effective Date and set forth in Schedule III hereto
(including any extensions, renewals or refunding of such Indebtedness, so
long as the maximum principal amount of such Indebtedness is not
increased); (iii) Indebtedness issued pursuant to the Senior Subordinated
Debt Indentures and other Indebtedness subordinated to the obligations of
the Company hereunder to at least the same extent as the Senior
Subordinated Debt, so long as such other Indebtedness has no scheduled
payments of principal prior to the Commitment Termination Date and after
giving effect to such Indebtedness, the Company is in compliance on a PRO
FORMA basis with Sections 9.09 through 9.11 hereof, as at the last day of
the latest fiscal quarter; (iv) so long as no Default shall have occurred
or be continuing hereunder at the time of such creation or incurrence,
Permitted Indebtedness; (v) so long as no Default shall have occurred and
be continuing hereunder at the time of such creation or incurrence,
Indebtedness created or incurred by any Excluded Subsidiary (subject to the
limitations set forth in Section 9.09 hereof, and provided that any
Indebtedness incurred under this clause (v) shall be without recourse to
and shall not be Guaranteed by the Company or any Subsidiary (other than
any Excluded Subsidiary) of the Company, except as permitted by Section
9.24 hereof); (vi) Synthetic Lease Obligations of any Subsidiary of the
Company (or of the Company) and any Guarantees by the Company thereof under
the Lease Agreement dated as of October 1, 1998 with Iron Mountain
Statutory Trust - 1998 and other Synthetic Lease Obligations with a
structure and terms substantially similar to said transaction (and any
Indebtedness incurred by the Company and any Subsidiary to refund or
replace any such Synthetic Lease Obligation, so long as the amount of such
Indebtedness does not exceed the amount of such Synthetic Lease Obligation
and has a maturity date not earlier than such Synthetic Obligation and,
after giving
71
effect to each such refunding or replacing of any such Synthetic Lease
Obligation, the Company is in compliance on a PRO FORMA basis with Sections
9.09 through 9.11 hereof as at the last day of the latest fiscal quarter)
(PROVIDED, that the aggregate amount of all such Synthetic Lease
Obligations permitted under this clause (vi) shall not at any time exceed
$360,000,000 and that such obligations shall be without recourse to any
Subsidiary (other than a lessee Subsidiary) of the Company and shall not be
Guaranteed by any Subsidiary of the Company); (vii) Indebtedness incurred
pursuant to the instruments governing (A) Accounts Receivable Financings or
(B) Permitted Mortgage Financings secured by Existing Facilities (PROVIDED,
that the aggregate amount outstanding of all such obligations incurred
pursuant to such Accounts Receivable Financings or such Permitted Mortgage
Financings permitted under this clause (vii) shall not at any time exceed
$150,000,000); and (viii) Indebtedness incurred pursuant to the instruments
governing Permitted Mortgage Financings secured by Facilities acquired by
the Company or any of its Subsidiaries after the Effective Date hereof
(PROVIDED, that the aggregate amount outstanding of all such obligations
incurred pursuant to such Permitted Mortgage Financings permitted under
this clause (viii) shall not at any time exceed $50,000,000).
9.09. LEVERAGE RATIOS.
(a) The Company will not, as at the end of any fiscal quarter, permit
the ratio, calculated as at the end of such fiscal quarter for the period
of four fiscal quarters then ended, of (i) the excess of (x) the aggregate
outstanding principal amount of Funded Indebtedness (on a consolidated
basis) of the Company and its Subsidiaries at such date over (y) the
aggregate amount of cash and Liquid Investments of the Company and
Subsidiaries at such date to (ii) EBITDA for such period (the "Leverage
Ratio") to exceed the ratio set forth below:
----------------------------------------------------------------------
PERIOD LEVERAGE RATIO
----------------------------------------------------------------------
From the date hereof through March 31, 2002 5.5 to 1
----------------------------------------------------------------------
From April 1, 2002 through December 31, 2002 5.65 to 1
----------------------------------------------------------------------
From January 1, 2003 through March 31, 2003 5.55 to 1
----------------------------------------------------------------------
From April 1, 2003 through June 30, 2003 5.45 to 1
----------------------------------------------------------------------
From July 1, 2003 through September 30, 2003 5.35 to 1
----------------------------------------------------------------------
From October 1, 2003 through December 31, 2003 5.25 to 1
----------------------------------------------------------------------
From January 1, 2004 and at all times thereafter 5.00 to 1
----------------------------------------------------------------------
72
(b) The Company will not, as at the end of any fiscal quarter, permit
the ratio, calculated as at the end of such fiscal quarter for the period of
four fiscal quarters then ended, of (i) the excess of (x) the aggregate
outstanding principal amount of Indebtedness (on a consolidated basis and
without regard to Indebtedness owed to the Company and its Subsidiaries,
Indebtedness under the Canadian Commitments, Indebtedness referred to in clause
(xii) of the definition of "Permitted Indebtedness" in Section 1.01 hereof and
the Indebtedness under the ▇▇▇▇▇▇ 1998 Senior Notes) of the Excluded
Subsidiaries at such date over (y) the aggregate amount of cash and Liquid
Investments of the Excluded Subsidiaries at such date to (ii) EBITDA for such
period (the "FOREIGN LEVERAGE RATIO") to exceed 3.75 to 1. Solely for purposes
of this clause (b), in determining the Foreign Leverage Ratio, EBITDA shall be
determined by including only the Excluded Subsidiaries.
9.10. INTEREST COVERAGE RATIO. The Company will not, as at the end of
any fiscal quarter, permit the ratio, calculated as at the end of such fiscal
quarter for the period of four fiscal quarters then ended, of (i) EBITDA for
such period to (ii) Interest Expense for such period to be less than the ratio
set forth below for the period in which such fiscal quarter ends:
--------------------------------------------------------------------------------
PERIOD INTEREST COVERAGE RATIO
--------------------------------------------------------------------------------
From the Effective Date through June 30, 2003 2.00 to 1
--------------------------------------------------------------------------------
From July 1, 2003 through September 30, 2003 2.10 to 1
--------------------------------------------------------------------------------
From October 1, 2003 through December 31, 2003 2.15 to 1
--------------------------------------------------------------------------------
From January 1, 2004 through June 30, 2004 2.25 to 1
--------------------------------------------------------------------------------
From July 1, 2004 through September 30, 2004 2.35 to 1
--------------------------------------------------------------------------------
From October 1, 2004 and at all times thereafter 2.50 to 1
--------------------------------------------------------------------------------
For purposes of calculating any ratio set forth in this Section, if
the Company elects pursuant to the penultimate sentence of the definition of
EBITDA to include in EBITDA for the period to which such ratio relates the PRO
FORMA amounts referred to in such sentence, there shall be included in Interest
Expense for such period, on a PRO FORMA basis, interest accruing during such
period on Indebtedness (and the interest portion of payments under Capitalized
Lease Obligations) assumed or incurred by the Company and its Subsidiaries (on a
consolidated basis) in connection with any Permitted Acquisition having
Acquisition Consideration of more than $500,000 during such period.
73
9.11. FIXED CHARGES COVERAGE RATIO. The Company will not, as at the
end of any fiscal quarter, permit the ratio, calculated as at the end of such
fiscal quarter for the period of four fiscal quarters then ended, of (i)
Adjusted EBITDA for such period to (ii) Fixed Charges for such period to be less
than the ratio set forth below for the period in which such fiscal quarter ends:
--------------------------------------------------------------------------------
PERIOD FIXED CHARGES COVERAGE RATIO
--------------------------------------------------------------------------------
From the Effective Date through June 30, 2003 1.10 to 1
--------------------------------------------------------------------------------
From July 1, 2003 and at all times thereafter 1.20 to 1
--------------------------------------------------------------------------------
For purposes of calculating any ratio set forth in this Section, if
the Company elects pursuant to the penultimate sentence of the definition of
EBITDA to include in EBITDA for the period to which such ratio relates the PRO
FORMA amounts referred to in such sentence, there shall be included in Fixed
Charges for such period, on a PRO FORMA basis, principal payable and interest
accruing during such period on Indebtedness (and the interest portion of
payments under Capitalized Lease Obligations) assumed or incurred by the Company
and its Subsidiaries (on a consolidated basis) in connection with any Permitted
Acquisition having Acquisition Consideration of more than $500,000 during such
period.
9.12. MERGERS, ASSET DISPOSITIONS. ETC. Except as expressly permitted
by Section 9.04, the Company will not, and will not permit any of its
Subsidiaries to, be a party to any merger or consolidation, or sell, lease,
assign, transfer or otherwise dispose of any assets, or acquire assets from any
Person, except:
(i) dispositions and acquisitions of inventory in the ordinary
course of business;
(ii) dispositions of worn out or obsolete tools or equipment no
longer used or useful in the business of the Company and its
Subsidiaries, provided that no single disposition of tools or
equipment shall have a fair market value (determined in good faith by
the Company at the time of such disposition) in excess of $5,000,000;
(iii) Capital Expenditures;
(iv) acquisitions of Investments permitted under Section 9.14
hereof, dispositions of Investments described in clauses (i), (ii) and
(iii) of Section 9.14 hereof and dispositions of other assets;
PROVIDED, that the aggregate fair market value of such other
assets, when added to the value of all such other assets disposed of
during such fiscal year, shall not, without the prior consent of the
Majority Lenders, exceed 25% of Consolidated Net Tangible Assets at
the end of
74
the immediately preceding fiscal year; and PROVIDED, FURTHER, that the
Net Cash Proceeds of the dispositions of such assets shall be subject
to the provisions of Section 3.02(c) (including that such Net Cash
Proceeds in any fiscal year of more than 10% of Consolidated Net
Tangible Assets at the end of the immediately preceding fiscal year
may not be used for a Reinvestment Event and shall cause a mandatory
reduction of the Commitments);
(v) subject to compliance with the provisions of Section 9.21(b)
hereof, the sale, lease, assignment, transfer or other disposition of
any assets by the Company or any Subsidiary of the Company to the
Company or any Subsidiary thereof (other than Excluded Subsidiaries),
PROVIDED, that (i) if such transfer is of material assets by the
Company or a Subsidiary Guarantor, the recipient of such transfer
shall also be the Company or a Subsidiary Guarantor and (ii) any
Excluded Subsidiary may transfer assets to the Company or any other
Subsidiary (including any Excluded Subsidiary); and
(vi) so long as no Default shall have occurred and be continuing
hereunder at the time of such Acquisition or transaction, Permitted
Acquisitions and related Additional Expenditures and any other
transaction expressly permitted by Section 9.14 hereof; PROVIDED, that
any such Permitted Acquisition is an acquisition of another business
operating principally in the United States of America.
(vii) dispositions of accounts receivable and related general
intangibles, and related lockbox and other collection accounts records
and/or proceeds pursuant to the instruments governing an Accounts
Receivable Financing permitted by Section 9.08 hereof.
For purposes of this Section 9.12, "PERMITTED ACQUISITION" shall mean
any Acquisition complying with the following:
(a) COMPLIANCE WITH FINANCIAL COVENANTS. After giving effect to each
such acquisition and any related incurrence of Indebtedness, the Company is
in compliance on a PRO FORMA basis with Sections 9.09 through 9.11 hereof
as at the last day of the latest fiscal quarter.
(b) LINES OF BUSINESS. ETC. Each such Acquisition shall not be
"hostile" and shall be of assets relating to the records and information
management business or activities related thereto (or of 100% of the stock
of corporations whose assets consist substantially of such assets) or
through the merger of such a corporation into a Subsidiary of the Company,
which shall be the surviving corporation.
9.13. LIENS. The Company will not, and will not permit any of its
Subsidiaries to, create or suffer to exist any Lien upon any property or assets,
now owned or hereafter acquired, securing any Indebtedness or other obligation,
except: (i) the Liens created pursuant to the Security Documents; (ii) the Liens
existing on the Effective Date set forth in Schedule III and Liens arising out
of the refinancing, extension, renewal or refunding of any Indebtedness secured
75
by any Lien set forth on Schedule III, PROVIDED that the principal amount
of such Indebtedness is not increased and is not secured by any additional
assets; (iii) (A) Liens contemplated by clauses (ii), (iv), (v) and (vii)
of the definition of Permitted Indebtedness; and (B) Liens securing
Acquired Debt, provided that such Liens cover only those assets that were
covered by such Liens prior to the relevant acquisition; (iv) attachment,
judgment or other similar Liens arising in connection with litigation or
other legal proceedings, PROVIDED that either (A) the claims in respect of
such Liens are fully covered by insurance or (B) the execution or other
enforcement of such Liens is effectively stayed and the claims secured
thereby are in an amount not to exceed $10,000,000 in the aggregate and are
being contested in good faith by appropriate proceedings diligently
prosecuted; (v) Liens on properties or assets of an Excluded Subsidiary
securing Indebtedness of such Excluded Subsidiary permitted hereunder; (vi)
other Liens arising in the ordinary course of the business of the Company
or such Subsidiary which are not incurred in connection with the borrowing
of money or the obtaining of advances or credit and which do not materially
detract from the value of its property or assets or materially impair the
use thereof in the operation of its business; (vii) Liens securing
Indebtedness permitted by clause (v) of Section 9.08 hereof, PROVIDED that
such Liens extend only to the assets of any Excluded Subsidiary incurring
such Indebtedness as a primary obligor (and not as a Guarantor) or Capital
Stock of such Excluded Subsidiary; (viii) Liens on property leased pursuant
to the Synthetic Lease Obligations permitted by clause (vi) of Section 9.08
hereof or securing Indebtedness permitted by said clause to refund or
replace such Synthetic Lease Obligation; and (ix) Liens under the
instruments governing (A) an Accounts Receivable Financing or (B) a
Mortgage Financing permitted by Section 9.08 hereof.
9.14. INVESTMENTS. The Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly, make or permit to remain
outstanding any advances, loans or other extensions of credit or capital
contributions (other than prepaid expenses in the ordinary course of
business) to (by means of transfers of property or assets or otherwise), or
purchase or own any stocks, bonds, notes, debentures or other securities
of, any Person (all such transactions being herein called "INVESTMENTS"),
except (subject to Section 9.24 hereof):
(i) operating deposit accounts with any bank or financial
institution;
(ii) Liquid Investments (including Liquid Investments in the
name and under the control of the Administrative Agent (or a
collateral sub-agent for the Administrative Agent) as contemplated by
the Security Documents);
(iii) subject to Section 9.16 hereof, Investments in accounts
and chattel paper as defined in the Uniform Commercial Code and notes
receivable acquired in the ordinary course of business as presently
conducted;
(iv) Investments in an insurer required as a condition to the
provision by such insurer of insurance coverage contemplated by
Section 9.03;
(v) (w) equity Investments in Wholly-Owned Subsidiaries of the
Company; (x) additional equity Investments in Subsidiaries of the
Company (other than Wholly-Owned Subsidiaries) with the prior written
consent of the Majority Lenders and (y) Investments in the form of
loans, advances or other
76
obligations owed by any Wholly-Owned Subsidiary to the Company, and
Investments in the form of loans, advances or other obligations owed
by the Company to any Wholly-Owned Subsidiary; PROVIDED that the
aggregate amount of Investments by the Company permitted by subclauses
(w) or (y) of this clause (v) in any Subsidiary of the Company that is
a mortgagor under any Permitted Mortgage shall not exceed, in the
aggregate for all such Subsidiaries, $10,000,000 at any one time
outstanding.
(vi) Investments consisting of loans or advances to officers
and directors of the Company and its Subsidiaries in an amount not to
exceed $2,000,000 in the aggregate and loans or advances made to
employees of the Company to permit such employees to exercise options
to purchase Capital Stock of the Company;
(vii) (x) Investments in Persons that are not Subsidiaries of
the Company and (y) Investments in Subsidiaries of the Company (to the
extent such Investments are not permitted under clause (v) of this
Section 9.14); PROVIDED that the aggregate outstanding amount of
Investments made pursuant to this clause (vii) shall not at any time
exceed $30,000,000;
(viii) Investments consisting of (a) Permitted Acquisitions in
accordance with Section 9.12 hereof and (b) any acquisition (by
purchase of shares, merger or otherwise) by any Excluded Subsidiary of
(x) a majority of the shares of Capital Stock of any Person
principally engaged in the same line or lines of business as the
Company and its Subsidiaries or (y) assets principally related to the
records and information management business or related activities;
PROVIDED, that any acquisition under this clause shall not be
"hostile".
(ix) subject to Section 9.16 hereof and on terms and pursuant to
documentation in all respects reasonably satisfactory to the
Administrative Agent, Investments in Affiliates of the Company (which
are not Wholly-Owned Subsidiaries of the Company) to facilitate the
construction or acquisition of records management facilities
including, without limitation, the acquisition of real estate for
development purposes;
(x) subordinated Guarantees of Senior Subordinated Debt by
Subsidiaries of the Company pursuant to the Senior Subordinated Debt
Documents;
(xi) equity Investments and loans and advances and other
extensions of credit to any Excluded Subsidiary or any other person
organized outside of the United States or principally conducting its
business outside of the United States;
(xii) Investments constituted by Hedging Agreements permitted
under Section 9.25 hereof; and
77
(xiii) Investments by the Company in a Subsidiary formed
pursuant to the instruments governing an Accounts Receivable Financing
permitted by Section 9.08 hereof.
9.15. RESTRICTED PAYMENTS. The Company will not, and will not permit
any of its Subsidiaries to, declare or make any Restricted Payment, except that
the Company may:
(i) provided that no Default has occurred and is continuing,
purchase shares of any class of Capital Stock, or options to purchase
such shares, of the Company from employees or former employees of the
Company or its Subsidiaries in amounts not to exceed $500,000 in any
fiscal year and $1,000,000 in the aggregate after the Effective Date;
and
(ii) make additional Restricted Payments constituting the
purchase, redemption, retirement or other acquisition of shares of any
class of Capital Stock of the Company (such Restricted Payments,
"STOCK REPURCHASES"), subject to the satisfaction of each of the
following conditions on the date of such Stock Repurchase and after
giving effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the ratio of Senior Debt on the last day of the most recently
completed fiscal quarter of the Company to EBITDA for the four fiscal
quarters then ended on a PRO FORMA basis, after giving effect to any
purchase, redemption or retirement of any Subordinated Indebtedness
consummated on or prior to the date thereof and to any borrowings to
finance the same and the Stock Repurchases is less than or equal to 1.5 to
1.
Nothing herein shall be deemed to prohibit the payment of dividends by any
Subsidiary of the Company to the Company or to any other Subsidiary of the
Company.
9.16. TRANSACTIONS WITH AFFILIATES. Except as otherwise expressly
permitted by this Agreement, the Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly:
(i) make any Investment in an Affiliate of the Company;
(ii) transfer, sell, lease, assign or otherwise dispose of any
assets to an Affiliate of the Company;
(iii) merge into or consolidate with or purchase or acquire
assets from an Affiliate of the Company; or
(iv) enter into any other transaction directly or indirectly
with or for the benefit of an Affiliate of the Company (including,
without limitation, guarantees and assumptions of obligations of an
Affiliate of the Company);
PROVIDED that (a) any Affiliate who is an individual may serve as a director,
officer or employee of the Company and receive reasonable compensation or
indemnification in connection with his
78
or her services in such capacity; (b) the Company or a Subsidiary of the Company
may enter into any transaction with an Affiliate of the Company if the monetary
or business consideration arising therefrom would be substantially as
advantageous to the Company or such Subsidiary as the monetary or business
consideration which would obtain in a comparable arm's length transaction with a
Person similarly situated to the Company but not an Affiliate of the Company;
and (c) the Company may make Investments in Affiliates permitted by Section
9.14(ix) hereof and may create Residual Assurances for the benefit of an
Affiliate permitted by Section 9.23 hereof in either case in connection with the
construction and/or acquisition of records management facilities to be leased to
the Company or a Subsidiary, so long as, taking such transaction as a whole
(giving effect to such Investment or Residual Assurance, and the lease of such
facility to the Company or such Subsidiary) such Affiliate is not
disproportionately benefited.
9.17. SUBORDINATED INDEBTEDNESS. The Company will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for:
(i) regularly scheduled payments or prepayments of principal and
interest in respect thereof required pursuant to the instruments
evidencing such Subordinated Indebtedness;
(ii) so long as no Default has occurred and is continuing,
scheduled payments of principal of (not to exceed $10,000,000 in the
aggregate, excluding payments made in connection with that certain
company named Datavault acquired by the Company in the United Kingdom)
and interest on, and expenses and indemnities incurred in connection
with, Seller Indebtedness; and
(iii) any other purchase, redemption or retirement of
Subordinated Indebtedness, so long as (i) no Default has occurred and
is continuing and (ii) either (A) such other purchase, redemption or
retirement is in connection with a refinancing of such Subordinated
Indebtedness with the proceeds of, or in connection with an exchange
of such Subordinated Indebtedness for a new series of, Senior
Subordinated Debt issued within 60 days of the substantial completion
of such purchase, redemption or retirement, or (B) after giving effect
to such purchase, redemption or retirement, the ratio of Senior Debt
on the last day of the most recently completed fiscal quarter of the
Company to EBITDA for the four quarters then ended on a PRO FORMA
basis, after giving effect to such purchase, redemption or retirement
and any Stock Repurchase consummated on or prior to the date hereof,
and to any borrowings to finance the same, as at the last day of the
latest fiscal quarter is less than or equal to 1.5 to 1.
9.18. LINES OF BUSINESSES. Neither the Company nor any of its
Subsidiaries, taken as a whole, shall engage to any substantial extent in any
business activity other than the records and information management business or
activities related or incidental thereto.
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9.19. MODIFICATION OF OTHER AGREEMENTS. The Company will not request
or consent to any modification, supplement or waiver of any of the provisions of
any instrument or document evidencing or governing Subordinated Indebtedness
except on terms and pursuant to documentation in all respects reasonably
satisfactory to the Administrative Agent.
9.20. INTEREST RATE AND CURRENCY EXCHANGE PROTECTION. The Company
shall at all times maintain a program reasonably acceptable to the
Administrative Agent providing for the hedging or mitigation of interest rate
and currency exchange risk.
9.21. CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES.
(a) The Company will, and will cause each of its Subsidiaries to, take
such action from time to time as shall be necessary to ensure that the Company
and each of its Subsidiaries at all times owns (i) all of the issued and
outstanding shares of each class of Capital Stock of each of such Person's
Subsidiaries (other than, in each case, Capital Stock of Excluded Subsidiaries)
and (ii) more than 50% of the issued and outstanding shares of Capital Stock of
each Person acquired pursuant to clauses (b) and (c) of Section 9.14(viii)
hereof. Without limiting the generality of the foregoing, the Company shall not,
and shall not permit any of its Subsidiaries to, sell, transfer or otherwise
dispose of any shares of stock in any Subsidiary (other than an Excluded
Subsidiary) owned by them, nor permit any Subsidiary of the Company (other than
an Excluded Subsidiary) to issue any shares of Capital Stock of any class
whatsoever to any Person (other than to the Company or to another Wholly-Owned
Subsidiary or pursuant to Section 9.12 hereof). In the event that any such
additional shares of Capital Stock shall be issued by any Subsidiary of the
Company, or any Subsidiary shall be acquired, the Company agrees (so long as the
certificates evidencing such shares of stock are not subject to a lien permitted
under Section 9.13(vii) hereof, and in any event subject to clause (c) below)
forthwith to deliver to the Administrative Agent pursuant to the Security
Documents the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank as well as, in accordance with the
Security Documents, promissory notes and intercompany notes specified as
Collateral as defined in the Security Documents and shall take such other action
as the Administrative Agent shall request to perfect the security interest
created therein pursuant to the Security Documents.
(b) The Majority Lenders shall have the right from time to time to
require the Company, pursuant to a written request from the Administrative
Agent, to cause such Subsidiaries of the Company as may be specified in such
request (except for any SPE) to become parties to the Subsidiary Guaranty or to
execute and deliver such other guaranties, in form and substance satisfactory to
the Majority Lenders, guaranteeing payment of the Company's obligations
hereunder. Any such request shall be made by the Majority Lenders in the good
faith and reasonable exercise of their discretion. Within 30 days after any such
request, the Company shall, and shall cause the appropriate Subsidiaries of the
Company to, (i) execute and deliver to the Administrative Agent such number of
copies as the Administrative Agent may specify of documents creating such
guaranties and (ii) do all other things which may be necessary or which the
Administrative Agent may reasonably request in order to confer upon and confirm
to the Lenders the benefits of such security.
(c) Notwithstanding anything to the contrary in this Section 9.21:
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(I) no Excluded Subsidiary shall be required to be or become a
party to the Subsidiary Guaranty or otherwise Guarantee the
obligations of the Company hereunder;
(II) the Company and its Subsidiaries shall not be required to
pledge more than 66% of the aggregate Voting Stock of such Excluded
Subsidiary directly held by the Company or its Domestic Subsidiaries
to the Administrative Agent under the Security Documents; and
(III) the Company and its Subsidiaries shall not be required to
pledge the stock of any other Excluded Subsidiary.
(d) The Company will not permit any of its Subsidiaries (other than
Excluded Subsidiaries or any SPE acting pursuant to the terms of an Accounts
Receivable Financing permitted by the terms of this Agreement) to enter into,
after the date hereof, any indenture, agreement, instrument or other arrangement
(other than the Senior Subordinated Debt Documents) that, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon, the incurrence or
payment of Indebtedness, the granting of Liens, the declaration or payment of
dividends, the making of loans, advances or Investments or the sale, assignment,
transfer or other disposition of Property.
9.22. ENVIRONMENTAL MATTERS. The Company will promptly give to the
Lenders notice in writing of any complaint, order, citation, notice or other
written communication from any Person with respect to, or if the Company becomes
aware after due inquiry of, (i) the existence or alleged existence of a
violation of any applicable Environmental Law or the incurrence of any
liability, obligation, remedial action, loss, damage, cost, expense, fine,
penalty or sanction resulting from any air emission, water discharge, noise
emission, asbestos, Hazardous Substance or any other environmental, health or
safety matter at, upon, under or within any property now or previously owned,
leased, operated or used by the Company or any of its Subsidiaries or any part
thereof, or due to the operations or activities of the Company, any Subsidiary
or any other Person on or in connection with such property or any part thereof
(including receipt by the Company or any Subsidiary of any notice of the
happening of any event involving the Release or cleanup of any Hazardous
Substance), (ii) any Release on such property or any part thereof in a quantity
that is reportable under any applicable Environmental Law, (iii) the
commencement of any cleanup pursuant to or in accordance with any applicable
Environmental Law of any Hazardous Substances on or about such property or any
part thereof and (iv) any pending or threatened proceeding for the termination,
suspension or non-renewal of any permit required under any applicable
Environmental Law, in each of the cases (i), (ii), (iii) and (iv), which
individually or in the aggregate could have a Material Adverse Effect.
9.23. RESIDUAL ASSURANCES. The Company will not, and will not permit
any of its Subsidiaries to, create, incur or suffer to exist any Residual
Assurances, except that (notwithstanding Sections 9.08 and 9.14) the Company may
create a Residual Assurance with respect of the construction or acquisition of
any records management facility by any Affiliate of the Company so long as (a)
the maximum liability of the Company in respect of such Residual Assurance does
not exceed 15% of the fair market value (as determined in good faith by the
Board of Directors of the Company) of the completed records management facility,
and (b) the
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maximum liability of the Company in respect of all Residual Assurances does not
exceed $3,000,000 in the aggregate.
9.24. INVESTMENTS IN EXCLUDED SUBSIDIARIES. The Company will not, and
will not permit any of its Subsidiaries (other than its Excluded Subsidiaries),
to make any advance, loan or other extension of credit to, or any other
Investment in, or Guarantee any Indebtedness of, any Excluded Subsidiary or any
other person organized outside of the United States or principally conducting
its business outside the United States if, after giving effect thereto, the
aggregate outstanding amount of such Investments and Guaranties (other than (a)
Guaranties permitted under clause (viii) of the definition of "Permitted
Indebtedness" in Section 1.01 hereof, (b) the Guaranties by the Company and its
Subsidiaries of (x) the ▇▇▇▇▇▇ 1998 Senior Notes and (y) Indebtedness under the
Canadian Commitments, and (c) Investments by the Company in Iron Mountain Canada
Corporation to finance the payment by Iron Mountain Canada Corporation of
principal, interest and other amounts due in respect of the ▇▇▇▇▇▇ 1998 Senior
Notes) made after August 14, 2000 is greater than $225,000,000 (with the
applicable exchange rate for any Investment or Guaranty or repayment thereof
determined by reference to the relevant Exchange Rate in effect at the time of
such Investment or Guaranty or repayment).
9.25. HEDGING AGREEMENTS. The Company will not, and will not permit
any of its Subsidiaries to enter into any Hedging Agreement other than Hedging
Agreements entered into in the ordinary course of business, and not for
speculative purposes, to protect against changes in interest rates or foreign
exchange rates. Without limiting the generality of the foregoing, the Company
will not, and will not permit any of its Subsidiaries to, enter into any
derivatives or other transactions with any financial institution, commodities or
stock exchange or clearing house (a "DERIVATIVES COUNTERPARTY") obligating the
Company or any of its Subsidiaries to make any payments to such Derivatives
Counterparty as a result of a change in market value of the Company's Capital
Stock or any Subordinated Indebtedness.
9.26. PERFECTION OF SECURITY INTERESTS IN STOCK OF FOREIGN
SUBSIDIARIES. Within 60 days after the Effective Date, the Company shall have
completed the perfection of security interests in the stock of Subsidiaries
organized in a jurisdiction outside of the United States of America and listed
in Annex 1 to the Company Pledge Agreement, Annex 1 to the Canadian Borrower
Pledge Agreement or Annex 1 to the Subsidiary Pledge Agreement.
Section 10 DEFAULTS.
10.01. EVENTS OF DEFAULT. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) default in the payment of any principal of or interest on any
Loan, any Reimbursement Obligation or any other amount payable hereunder
when due; or
(b) the Company or any of its Subsidiaries (other than Excluded
Subsidiaries) shall default in the payment when due of any principal of or
interest on any Indebtedness having an aggregate outstanding principal
amount of at least $5,000,000 (other than the Loans); or any event or
condition shall occur which results in the acceleration of the maturity of
any such Indebtedness of the Company or any of its Subsidiaries (other than
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Excluded Subsidiaries) or enables (or, with the giving of notice or lapse
of time or both, would enable) the holder of any such Indebtedness or any
Person acting on such holder's behalf to accelerate the maturity thereof;
or
(c) any representation or warranty made or deemed made by the Company,
the Canadian Borrower, any other Borrower or any Subsidiary Guarantor in
any Basic Document, or in any certificate or financial information
furnished to any Lender, the Administrative Agent or the Canadian
Administrative Agent pursuant to the provisions of any Basic Document,
shall prove to have been false or misleading in any material respect as of
the time made or furnished; or
(d) (i) the Company shall default in the performance of any of its
obligations under Sections 9.08 through 9.21 and 9.23 hereof or (ii) the
Company, the Canadian Borrower, any other Borrower or any Subsidiary
Guarantor shall default in the performance of any of its other obligations
in any Basic Document, and such default described in this subclause (ii)
shall continue unremedied for a period of 25 days after notice thereof to
the Company by the Administrative Agent or the Majority Lenders (through
the Administrative Agent); or
(e) the Company or any of its Subsidiaries (except any De Minimus
Excluded Subsidiary) shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) the Company or any of its Subsidiaries (except any De Minimus
Excluded Subsidiary) shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application
or consent of the Company or any of its Subsidiaries (except any De Minimus
Excluded Subsidiary) in any court of competent jurisdiction, seeking (i)
its liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of such Person or of
all or any substantial part of its assets, or (iii) similar relief in
respect of such Person under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 days; or an order for
relief against such Person shall be entered in an involuntary case under
the Bankruptcy Code; or
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(h) a final judgment or judgments by a court or courts (or a final
order by an appropriate Governmental Authority) shall be rendered against
the Company or any of its Subsidiaries (except any De Minimus Excluded
Subsidiary) in excess of $3,000,000 in the aggregate, and the same shall
not be discharged (or provision shall not be made for such discharge), or a
stay of execution thereof shall not be procured, within 30 days from the
date of entry thereof, or the Company or such Subsidiary shall not, within
said period of 30 days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(i) the Company or any member of the Controlled Group shall fail to
pay when due an amount or amounts aggregating in excess of $1,000,000 which
it shall have become liable to pay to the PBGC or to a Plan under Title IV
of ERISA; or notice of intent to terminate a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000 shall be filed under Title IV
of ERISA by the Company or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans
against the Company or any member of the Controlled Group to enforce
Section 515 or 421 9(c)(5) of ERISA; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or there shall occur a complete
or partial withdrawal from, or a default, within the meaning of Section 421
9(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause the Company or one or more members of the Controlled Group to
incur a current payment obligation in excess of $1,000,000; or
(j) an Excluded Subsidiary Material Adverse Change or any Change of
Control shall occur; or
(k) (i) any Security Document or the Company Guaranty or the
Subsidiary Guaranty shall cease, for any reason, to be in full force and
effect (other than as provided therein) or any party thereto (other than
the Lenders) shall so assert in writing; or (ii) any Security Document
shall cease to be effective to ▇▇▇▇▇ ▇ ▇▇▇▇ on the collateral described
therein with the priority purported to be created thereby.
THEREUPON: the Administrative Agent may (and, if directed by the Majority
Lenders, shall) (a) declare the Commitments terminated (whereupon the
Commitments shall be terminated) and/or (b) declare the principal amount then
outstanding of and the accrued interest on the Loans, the Reimbursement
Obligations, and commitment fees and all other amounts payable hereunder and
under the Notes and the C$ Notes to be forthwith due and payable, whereupon such
amounts shall be and become immediately due and payable, without notice
(including, without limitation, notice of intent to accelerate), presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by the Borrowers and the Canadian Borrower; PROVIDED that in
the case of the occurrence of an Event of Default with respect to the Company
referred to in clause (f) or (g) of this Section 10.01, the Commitments shall be
automatically terminated and the principal amount then outstanding of and the
accrued interest on the Loans, the
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Reimbursement Obligations, and commitment fees and all other amounts payable
hereunder and under the Notes and the C$ Notes shall be and become automatically
and immediately due and payable, without notice (including, without limitation,
notice of intent to accelerate), presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company, the Borrowers and the Canadian Borrower.
In addition, upon the occurrence and during the continuance of
any Event of Default (if the Administrative Agent has declared the principal
amount then outstanding of, and accrued interest on, the Loans and all other
amounts payable by the Company, the Canadian Borrower or any other Borrower
hereunder and under the Notes and the C$ Notes to be due and payable), the
Company agrees that it shall, if requested by the Administrative Agent or the
Majority Lenders through the Administrative Agent (and, in the case of any Event
of Default referred to in clause (f) or (g) of this Section 10.01 with respect
to the Company or the other Borrowers or the Canadian Borrower, forthwith,
without any demand or the taking of any other action by the Administrative Agent
or such Lenders) provide cover for the Letter of Credit Liabilities by paying to
the Administrative Agent immediately available funds in an amount equal to the
then aggregate undrawn stated amount of all Letters of Credit, which funds shall
be held by the Administrative Agent in the Collateral Account as collateral
security in the first instance for the Letter of Credit Liabilities.
10.02. RATABLE TREATMENT OF LENDERS. In the event that the
Loans and the Reimbursement Obligations shall be declared or become immediately
due and payable on any date (the "ACCELERATION DATE") pursuant to Section 10.01
hereof, the Borrowers, the Canadian Borrower and the Revolving Lenders agree
that the outstanding Revolving Loans and Reimbursement Obligations and accrued
but unpaid interest thereon not denominated in Dollars shall be automatically
converted to Dollars on the Acceleration Date at the then applicable Exchange
Rate and any Reimbursement Obligation not denominated in Dollars thereafter
arising shall be automatically converted to Dollars on the date of the drawing
giving rise thereto under the relevant Letter of Credit at the then applicable
Exchange Rate. The Revolving Lenders hereby irrevocably agree for the benefit of
each other (and not for the benefit of the Borrowers, the Canadian Borrower or
the other Obligors) that, effective as of the Acceleration Date, each Revolving
Lender shall acquire participations in each then outstanding Revolving Loan and
Letter of Credit Liability in proportion to the aggregate Commitments of such
Revolving Lender to the aggregate Revolving Commitments of all the Revolving
Lenders, in each case determined immediately prior to the Acceleration Date
(such Revolving Lender's "PROPORTION"). On or promptly following the
Acceleration Date, the Administrative Agent shall determine for each Revolving
Lender the difference between (a) such Revolving Lender's Proportion of the
aggregate principal amount of the outstanding Revolving Loans and Reimbursement
Obligations on the Acceleration Date after giving effect to the automatic
conversion to Dollars and (b) the aggregate principal amount of such Revolving
Lender's actual outstanding Revolving Loans and Reimbursement Obligations on the
Acceleration Date after giving effect to the automatic conversions to Dollars.
Each Revolving Lender whose difference is positive shall make a payment which is
equal to such difference to the Administrative Agent in Dollars in immediately
available funds on a date set by the Administrative Agent promptly following the
Acceleration Date. The Administrative Agent shall distribute such payment to the
Revolving Lenders whose differences are negative, with such distribution to be
ratable based upon the respective amounts of such negative differences. On each
subsequent date on which a Reimbursement Obligation
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arises by virtue of a draw on a Letter of Credit, each Revolving Lender shall,
promptly after being notified thereof, make a payment to the Issuing Lender
equal to its Proportion of such Reimbursement Obligation. To the extent that any
Revolving Lender shall fail to pay any amount required to be paid pursuant to
this Section 10.02 on the due date therefor, such Revolving Lender shall pay
interest to the Administrative Agent for ratable distribution to the Revolving
Lenders or Issuing Lenders entitled thereto on such amount from and including
such due date to but excluding the date such payment is made at a rate per annum
equal to the Federal Funds Effective Rate, PROVIDED that if such Revolving
Lender shall fail to make such payment within three Business Days of such due
date, then, retroactively to the due date, such Revolving Lender shall be
obligated to pay interest on such amount at the ABR Rate.
Section 11 THE ADMINISTRATIVE AGENT.
11.01. APPOINTMENT POWERS AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Basic Documents with such powers as are
specifically delegated to the Administrative Agent by the terms hereof and
thereof, together with such other powers as are reasonably incidental thereto.
The Administrative Agent (which term as used in this Section 11 shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents): (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Basic Documents, and shall
not by reason of this Agreement or any other Basic Document be a trustee for any
Lender; (b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or any
other Basic Document, or in any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or any other
Basic Document, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Basic Document or
any other document referred to or provided for herein or therein or for any
failure by the Company, the Canadian Borrower, any other Borrower or any of the
Subsidiary Guarantors or any other Person to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Basic Document
except to the extent requested by the Majority Lenders; and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other Basic Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or willful misconduct. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.
11.02. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other
Basic Document, the Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the
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Majority Lenders and such instructions of the Majority Lenders and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
11.03. DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than a Default of the type
specified in Section 10.01(a)) unless the Administrative Agent has received
notice from a Lender or the Company, the Canadian Borrower or any other Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 11.07
hereof) take such action with respect to such Default as shall be directed by
the Majority Lenders, provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of the
Lenders. The Administrative Agent shall deliver to the Lenders a copy of any
written declaration made pursuant to the second to last paragraph of Section
10.01 hereof.
11.04. RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, the Administrative Agent in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as the Administrative Agent and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent in its individual capacity may (without having to account therefor to any
Lender) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Company, the Canadian Borrower, the
other Borrowers and the Subsidiary Guarantors (and their respective Affiliates)
as if it were not acting as the Administrative Agent, and the Administrative
Agent in its individual capacity may accept fees and other consideration from
the Company, the Canadian Borrower or any other Borrower (in addition to the
agency fees and arrangement fees heretofore agreed to between the Company or the
Canadian Borrower and the Administrative Agent) for services in connection with
this Agreement or otherwise without having to account for the same to the
Lenders.
11.05. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 or 12.04
hereof, but without limiting the obligations of the Company under said Sections
12.03 and 12.04), ratably in accordance with the principal amount of their
respective Loans and Reimbursement Obligations outstanding, or if no Loans or
Reimbursement Obligations are outstanding, ratably in accordance with their
respective Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any other Basic Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under Sections 12.03 and 12.04
hereof but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other
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documents, PROVIDED, that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
11.06. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and the Canadian Borrower and decision to enter into this Agreement and
that it will, independently and without reliance upon the 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 analysis and decisions in
taking or not taking action under this Agreement or any of the other Basic
Documents. The Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Company, the Canadian
Borrower, the other Borrowers and the Subsidiary Guarantors of this Agreement or
any of the other Basic Documents or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Company, the
Canadian Borrower, any other Borrower or any of the Subsidiary Guarantors.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
the other Basic Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company, the
Canadian Borrower, any other Borrower or any of the Subsidiary Guarantors (or
any of their affiliates) which may come into the possession of the
Administrative Agent.
11.07. FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder and under the other Basic Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
11.08. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Company and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal the Majority Lenders shall have the right to appoint a
successor Administrative Agent reasonably acceptable to the Company. Upon any
such resignation or removal, the Administrative Agent that resigned or was
removed shall, to the extent that its annual agency fee was paid in advance, pay
to the Company an amount equal to such fee multiplied by a fraction the
numerator of which shall be the number of days remaining on the date of such
resignation or removal until the next anniversary of the Effective Date, and the
denominator of which shall be 365. If no successor Administrative Agent shall
have been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent (the "Notice Date"), then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent
reasonably acceptable to the Company. Any successor Administrative Agent shall
be (i) a Lender or (ii) if no Lender has accepted such appointment within 30
days after the Notice Date, a
88
bank which has an office in New York, New York with a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
11.09. CONSENTS UNDER BASIC DOCUMENTS. Without the prior written
consent of the Majority Lenders, the Administrative Agent will not consent to
any modification, supplement or waiver under any of the Basic Documents or any
of the other documents described in Section 9.20 hereof.
11.10. COLLATERAL SUB-AGENTS. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by the Security Documents,
that, in the event it shall hold any Liquid Investments referred to therein,
such Liquid Investments shall be held in the name and under the control of such
Lender and such Lender shall hold such Liquid Investments as a collateral
sub-agent for the Administrative Agent thereunder.
11.11. MULTI-CURRENCY PAYMENT AGENT AND CANADIAN ADMINISTRATIVE AGENT.
The Multi-Currency Payment Agent referred to herein and the Canadian
Administrative Agent referred to in Annex A hereto shall be deemed to be
sub-agents of the Administrative Agent for all purposes of this Agreement and
entitled to the benefits of this Section 11.
11.12. ADDITIONAL MINISTERIAL POWERS OF THE AGENTS. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to execute any
document creating any Lien and to release any Lien covering any asset of the
Company or any of its Subsidiaries (including, without limitation, any
Facilities, accounts receivable or inventory) that is the subject of a
disposition, sale or assignment which is permitted under this Agreement.
Section 12 MISCELLANEOUS.
12.01. WAIVER. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under any Basic Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege thereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The remedies provided in
the Basic Documents are cumulative and not exclusive of any remedies provided by
law.
12.02. NOTICES. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made by telecopy or other
writing and telecopied, mailed or delivered to the intended recipient (a) in the
case of the Company, the Canadian Borrower, the Administrative Agent, the
Multi-Currency Payment Agent or the Canadian Administrative Agent at the
"Address for Notices" specified below its name on the signature pages hereof;
(b) in the
89
case of any Lender, at its address (or telecopy number) set forth in its
Administrative Questionnaire; (c) in the case of any other Borrower, at its
address (or telecopy number) set forth in its Election to Participate; or, as to
any party, at such other address as shall be designated by such party in a
notice to the Company, the Canadian Borrower and the Administrative Agent given
in accordance with this Section 12.02. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier (and receipt is electronically confirmed), personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
12.03. EXPENSES ETC. The Company agrees to pay or reimburse each of
the Lenders and the Administrative Agent for paying: (a) the reasonable fees and
expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Administrative
Agent, in connection with (i) the preparation, execution and delivery of this
Agreement (including the Exhibits hereto) and the Security Documents and the
making of the Loans hereunder and (ii) any modification, supplement or waiver of
any of the terms of this Agreement or any other Basic Document (including,
without limitation, the amendment and restatement evidenced hereby); (b) all
reasonable costs and expenses of the Lenders and the Administrative Agent
(including reasonable counsels' fees) in connection with the enforcement of this
Agreement or any other Basic Document or any bankruptcy, insolvency or other
proceedings); (c) all mortgage, intangible, transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other Basic Document or
any other document referred to herein or therein; and (d) all costs, expenses,
taxes, assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
this Agreement, any Security Document or any document referred to herein or
therein.
12.04. INDEMNIFICATION. The Company shall indemnify the Administrative
Agent, the Canadian Administrative Agent, the Lenders and each affiliate thereof
and their respective directors, officers, employees and agents from, and hold
each of them harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of, relate to or result from any (i)
Loan by any Lender hereunder or (ii) breach by the Company, the Canadian
Borrower or any other Borrower of this Agreement or any other Basic Document or
(iii) the ▇▇▇▇▇▇ Merger or (iv) any Environmental Liabilities (whether known or
unknown) or (v) any investigation, litigation or other proceeding (including any
threatened investigation or proceeding) relating to the foregoing, and the
Company shall reimburse the Administrative Agent, the Canadian Administrative
Agent and each Lender, and each affiliate and their respective directors,
officers, employees and agents, upon demand for any reasonable expenses
(including legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
12.05. AMENDMENTS. ETC. No amendment or waiver of any provision of
this Agreement or the Notes or the C$ Notes, nor any consent to any departure by
the Company, the Canadian Borrower or any other Borrower therefrom, shall in any
event be effective unless the same shall be agreed or consented to by the
Majority Lenders and the Company, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
90
which given; PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a defaulting Lender)
directly affected thereby, (i) extend the Commitment Termination Date (it being
understood that any waiver of any prepayment of, or the method of application of
any prepayment to the amortization of, Loans shall not constitute any such
extension), or extend the stated maturity of any Letter of Credit beyond the
Commitment Termination Date, or extend the scheduled date of any payment of
principal of any Term Loan, or reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) or fees, or reduce the principal amount
thereof, or increase any Commitment of any Lender over the amount thereof then
in effect (it being understood that a waiver of any Default or Event of Default
or of a mandatory reduction in the Commitments shall not constitute a change in
the terms of a Commitment of a Lender), (ii) amend, modify or waive any
provision of this Section 12.05, (iii) reduce the percentage specified in, or
(except to give effect to any additional facilities hereunder) otherwise modify,
the definition of Majority Lenders, (iv) release all or substantially all of the
security for the obligations of the Company, the Canadian Borrower or any other
Borrower under this Agreement or any Note, (v) change the order of any mandatory
prepayment provided for in Section 3.02(b) or (c) hereof without the consent of
Term Lenders having at least 51% of the aggregate principal amount of the Term
Loans or (vi) release all or substantially all of the Subsidiary Guarantors from
their obligations under the Subsidiary Guaranty. Notwithstanding anything in
this Section 12.05 to the contrary, no amendment, waiver or consent shall be
made (x) with respect to Section 11 without the consent of the Administrative
Agent or (y) with respect to Annex A hereto without the consent of the Canadian
Borrower.
12.06. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns except that the Company, the Canadian Borrower and the other
Borrowers may not assign their rights or obligations hereunder or under the
Notes or the C$ Notes without the prior written consent of all of the Lenders.
Each Lender may assign all or a portion of its rights and obligations under this
Agreement and the Notes and the C$ Notes (i) to any affiliate thereof
(including, without limitation, (x) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar lines of credit in the ordinary
course of its business and is administered or managed by a Lender or an
affiliate of such Lender and (y) with respect to any Lender that is a fund which
invests in bank loans and similar extensions of credit, any other fund that
invests in bank loans and similar extensions of credit and is managed by the
same investment advisor as such Lender or by an affiliate of such investment
advisor), (ii) to any other Lender or (iii) with the consent of the
Administrative Agent, of the Issuing Bank or the Canadian Issuing Bank (to the
extent that the rights and obligations assigned include obligations in respect
of the US$ Commitments, Multi-Currency Commitments or Canadian Commitments, as
the case may be) and of the Company (provided, that the consent of the Company
shall not be required if an Event of Default hereunder shall have occurred and
be continuing), which consents shall not be unreasonably withheld or delayed, to
any other bank or financial institution (it being understood that, in the case
of the Canadian Issuing Bank, it shall not be unreasonable to withhold consent
in the case of any proposed assignment to any entity or entities rated below
BBB+ by Standard & Poor's, a Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or
other comparable rating by another comparable rating agency), PROVIDED that any
such partial assignment shall not, unless the Company and the Administrative
Agent otherwise agree, be less than $5,000,000 (or, in the case of Term Loans,
91
$1,000,000), or if the remainder of the Lender's Commitment or Term Loans is
less than $5,000,000, such lesser amount. Upon execution by the assignor and the
assignee of an instrument pursuant to which the assignee assumes such rights and
obligations, payment by such assignee to such assignor of an amount equal to the
purchase price agreed between such assignor and such assignee and delivery to
the Administrative Agent and the Company of an executed copy of such instrument
together with payment by such assignee to the Administrative Agent of a
processing fee of $2,500, such assignee shall have, to the extent of such
assignment (unless otherwise provided therein), the same rights and benefits as
it would have if it were a Lender hereunder and the assignor shall be, to the
extent of such assignment (unless otherwise provided therein), released from its
obligations under this Agreement. Each Lender may (without the consent of any
other party to this Agreement) sell participations in all or any part of any
Loan or Loans or any Commitment or Commitments made by it to another bank or
other entity, in which event the participant shall not have any rights under
this Agreement (except as provided in the next succeeding sentence hereof), or
in the case of a Loan, such Lender's Note or C$ Note (the participant's rights
against such Lender in respect of such participation to be those set forth in
the agreement executed by such Lender in favor of the participant relating
thereto, which agreement shall not give the participant the right to consent to
any modification, amendment or waiver other than one described in clause (i),
(ii), (iii),(iv), (v) or (vi) of Section 12.05 hereof). Each of the Company and
the Canadian Borrower agrees that each participant shall be entitled to the
benefits of Sections 5.07 and 6 of this Agreement and Section 3.8 of Annex A
hereto with respect to its participation; PROVIDED that no participant shall be
entitled to receive any greater amount pursuant to such Sections 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. Each Lender may furnish any information
concerning the Company and its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective assignees
and participants) which have agreed in writing to be bound by the provisions of
Section 12.07 hereof. The Administrative Agent and the Company may, for all
purposes of this Agreement, treat any Lender as the holder of any Note or C$
Note drawn to its order (and owner of the Loans evidenced thereby) until written
notice of assignment, participation or other transfer shall have been received
by them from such Lender.
In addition to the assignments and participations permitted the
foregoing provisions of this Section 12.06, any Lender may (without notice to
the Company, the Canadian Borrower, any other Borrower, the Administrative
Agent, the Issuing Bank or any other Lender and without payment of any fee)
assign and pledge all or any portion of its Loans and its Notes (i) to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank and (ii) with respect to any Lender which is
a fund, to its trustee or creditors in support of its obligations to its trustee
or creditors, and such Loans and Notes shall be fully transferable as provided
therein. No such assignment pursuant to the preceding sentence shall release the
assigning Lender from its obligations hereunder.
12.07. CONFIDENTIALITY. Each Lender agrees to exercise all reasonable
efforts to keep any information delivered or made available by or on behalf of
the Company to it which has not been publicly disclosed confidential from anyone
other than persons employed or retained by such Lender who are or are expected
to become engaged in evaluating, approving, structuring or administering the
Loans; PROVIDED that nothing herein shall prevent any Lender
92
from disclosing such information (i) to any other Lender, (ii) to the officers,
directors, employees, agents, attorneys and accountants of such Lender or its
affiliates who have a need to know such information in accordance with customary
banking practices and who receive such information having been made aware of the
restrictions set forth in this Section, (iii) upon the order of any court or
administrative agency, (iv) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Lender, (v) to the extent reasonably
required in connection with any litigation to which the Administrative Agent,
any Lender, the Company, the Canadian Borrower, any other Borrower, any
Subsidiary Guarantor or their respective affiliates may be a party, (vi) to the
extent reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Lender's legal counsel and independent auditors, and
(viii) to any actual or proposed participant or assignee of all or part of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section 12.07.
12.08. SURVIVAL. The obligations of the Company under Sections 6.01,
6.05, 6.06, 6.08, 6.09, 12.03 and 12.04 hereof and of the Canadian Borrower
under such Sections and Section 3.8 of Annex A hereto and the obligations of the
Lenders under Section 11.05 shall survive the repayment of the Loans and the
termination of the Commitments.
12.09. CAPTIONS. Captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
12.10. COUNTERPARTS; INTEGRATION. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral and written, relating to the subject matter
hereof.
12.11. [intentionally omitted]
12.12. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. EACH OF THE COMPANY, THE
CANADIAN BORROWER AND THE SUBSIDIARY BORROWERS HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH OF THE COMPANY, THE CANADIAN BORROWER AND THE SUBSIDIARY BORROWERS
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE COMPANY, THE
CANADIAN BORROWER, THE SUBSIDIARY
93
BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE OTHER BASIC DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.13. CANADIAN BORROWER'S AGENT; SUBSIDIARY BORROWERS' AGENT. (a) The
Canadian Borrower, by execution and delivery of this Agreement, irrevocably
appoints the Company as its agent and attorney-in-fact for all purposes of this
Agreement, irrevocably designates, appoints and empowers the Company, as its
designee and agent, for service of any and all legal process, summons, notices
and documents which may be served in any such action or proceeding and hereby
ratifies and confirms, and agrees to be bound by, all actions taken by the
Company on its behalf pursuant to the foregoing authorization. The Company
irrevocably accepts such appointment. Without limiting the generality of the
foregoing, all notices from and to the Canadian Borrower hereunder shall be
given by or to the Company on its behalf. Each Lender, the Canadian
Administrative Agent and the Administrative Agent may conclusively rely on the
authority of the Company to act on behalf of the Canadian Borrower.
(b) Each Subsidiary Borrower, by execution and delivery of its
Election to Participate, irrevocably appoints the Company as its agent and
attorney-in-fact for all purposes of this Agreement, irrevocably designates,
appoints and empowers the Company, as its designee and agent, for service of any
and all legal process, summons, notices and documents which may be served in any
such action or proceeding and hereby ratifies and confirms, and agrees to be
bound by, all actions taken by the Company on its behalf pursuant to the
foregoing authorization. The Company irrevocably accepts such appointment.
Without limiting the generality of the foregoing, all notices from and to each
Subsidiary Borrower hereunder shall be given by or to the Company on its behalf.
Each Lender and the Administrative Agent may conclusively rely on the authority
of the Company to act on behalf of any Subsidiary Borrower.
12.14. DESIGNATION OF INDEBTEDNESS. The indebtedness incurred
hereunder constitutes "Senior Debt" or "Senior Indebtedness", as the case may be
(and, accordingly, "Designated Senior Debt" or "Designated Senior Indebtedness",
as the case may be) under the Senior Subordinated Debt Indentures and the other
Senior Subordinated Debt Documents.
12.15. AMENDMENTS TO SECURITY DOCUMENTS, ETC. Each of the parties
hereby consents to and approves in all material respects the Acknowledgment and
Confirmation of Guarantee or Security Documents, dated as of the date hereof,
among the Company, Iron Mountain Canada Corporation, the Subsidiary Guarantors,
the Administrative Agent and the Canadian Administrative Agent, and
substantially in the form attached hereto as Exhibit L, upon the terms and
conditions set forth therein, including, without limitation, the amendments to
the Security Documents effected thereby, including the amendment to the Company
Pledge Agreement, the Subsidiary Pledge Agreement and the Canadian Borrower
Pledge Agreement to include as part of the Collateral, as defined therein,
intercompany notes and advances and the amendment to the Company Guarantee to
include within such Guarantee the Reimbursement Obligations of the Canadian
Borrower in respect of Canadian Letters of Credit.
The following annexes, exhibits and schedules have been omitted and
will be supplementally furnished to the Securities and Exchange Commission
upon request:
SCHEDULES
---------
SCHEDULE I - Commitments
SCHEDULE II - Subsidiaries; Investments in Joint Ventures and Other
Persons
SCHEDULE III - Credit Agreements, Indentures, Leases
SCHEDULE IV - Existing Letters of Credit
SCHEDULE V - Subsidiary Borrowers
EXHIBITS
--------
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B - Subsidiary Guaranty
EXHIBIT C - Company Guaranty
EXHIBIT D - Company Pledge Agreement
EXHIBIT E - Subsidiary Pledge Agreement
EXHIBIT F - Canadian Borrower Pledge Agreement
EXHIBIT G-1 - Form of Opinion of Special New York Counsel to the Company
EXHIBIT G-2 - Form of Opinion of Special Pennsylvania Counsel to the
Company
EXHIBIT H - Form of Opinion of Special New York Counsel to the
Administrative Agent
EXHIBIT I - Election to Participate
EXHIBIT J - Election to Terminate
EXHIBIT K - Exemption Certificate
EXHIBIT L - Form of Acknowledgment and Confirmation of Guarantee or
Security Document
EXHIBIT M - Form of Second Amended and Restated Pledge and
Intercreditor Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
COMPANY:
--------
IRON MOUNTAIN INCORPORATED
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: VP & Treasurer
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Executive Vice President
and Chief Financial Officer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN BORROWER:
IRON MOUNTAIN CANADA CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: VP & Treasurer
Address for Notices:
Iron Mountain Canada Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Iron Mountain Incorporated.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Executive Vice President
and Chief Financial Officer
US$ LENDERS
WACHOVIA BANK, N.A.
Name of Lender
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
FIRST UNION NATIONAL BANK
Name of Lender
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
FLEET NATIONAL BANK
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
CIBC, INC.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Director
CIBC World Markets Corp. As Agent
THE BANK OF NOVIA SCOTIA
Name of Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------------
▇.▇. ▇▇▇▇▇▇▇
Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Senior Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Director
THE BANK OF NEW YORK
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
HSBC BANK USA
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
UNION BANK OF CALIFORNIA, N.A.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. Kinkeis
--------------------------------------
▇▇▇▇▇ ▇. Kinkeis
Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
Name of Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
ALLFIRST BANK
Name of Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
ERSTE BANK NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Erste Bank New York Branch
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Erste Bank New York Branch
CITIZEN'S BANK OF MASSACHUSETTS
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
ARAB BANK
Name of Lender
By: /s/ ▇▇▇▇▇ Tamili
--------------------------------------
▇▇▇▇▇ Tamili
Vice President
MULTI-CURRENCY LENDERS
WACHOVIA BANK, N.A.
Name of Lender
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
FIRST UNION NATIONAL BANK
Name of Lender
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
FLEET NATIONAL BANK
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
CIBC, INC.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Director
CIBC World Markets Corp. As Agent
THE BANK OF NOVIA SCOTIA
Name of Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------------
▇.▇. ▇▇▇▇▇▇▇
Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Senior Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Director
THE BANK OF NEW YORK
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
HSBC BANK USA
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
UNION BANK OF CALIFORNIA, N.A.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. Kinkeis
--------------------------------------
▇▇▇▇▇ ▇. Kinkeis
Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
Name of Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Director
ALLFIRST BANK
Name of Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
ERSTE BANK NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Erste Bank New York Branch
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Erste Bank New York Branch
CITIZENS BANK OF MASSACHUSETTS
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
US$-CANADIAN LENDERS
--------------------
CIBC, Inc.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director,
CIBC World Markets Corp.
as Agent
The Bank of Nova Scotia
Name of Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------------
▇.▇. ▇▇▇▇▇▇▇
Authorized Signatory
CANADIAN LENDERS
----------------
CIBC, Inc.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director,
CIBC World Markets Corp.
as Agent
The Bank of Nova Scotia
Name of Lender
By: /s/ S.C. ▇▇▇▇▇▇▇
--------------------------------------
S.C. ▇▇▇▇▇▇▇
Director
TERM LENDERS
FLEET NATIONAL BANK
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
THE BANK OF NOVIA SCOTIA
Name of Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------------------
▇.▇. ▇▇▇▇▇▇▇
Authorized Signatory
BNP PARIBAS
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. March
--------------------------------------
▇▇▇▇▇ ▇. March
Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
CREDIT LYONNAIS NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Senior Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Director
THE SUMITOMO TRUST AND BANKING CO., LTD.,
NEW YORK BRANCH
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
LAGUNA FUNDING TRUST
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
▇▇▇▇▇▇▇ BANK
Name of Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇
Vice President
METROPOLITAN LIFE INSURANCE COMPANY
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING, INC.
Name of Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Duly Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME TRUST
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
TORONTO DOMINION (NEW YORK), INC,
Name of Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
PPM SHADOW CREEK FUNDING LLC
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Asst. Vice President
PINEHURST TRADING, INC.
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Asst. Vice President
JUPITER FUNDING TRUST
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
WINGED FOOT FUNDING TRUST
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
KZH PONDVIEW LLC
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ Tarrobino
--------------------------------------
▇▇▇▇▇▇▇ Tarrobino
Authorized Agent
KZH WATERSIDE LLC
Name of Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇
Authorized Agent
SKUDDER FLOATING RATE FUND
Name of Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Sr. Vice President
OLYMPIC FUNDING TRUST, SERIES 1999-1
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Authorized Agent
MUIRFIELD TRADING LLC
Name of Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Asst. Vice President
ADMINISTRATIVE AGENT
--------------------
JPMORGAN CHASE BANK,
as Administrative Agent
By:
-------------------------------------
Title:
ADDRESS FOR NOTICES GIVEN PURSUANT TO SECTION 5.05:
(a) US$ Notices
JPMorgan Chase Bank
Loan and Agency Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Multicurrency Notices
Chase Manhattan International
Agency Department
Trinity Tower-9 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
ADDRESS FOR OTHER NOTICES:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN ADMINISTRATIVE AGENT
-----------------------------
▇.▇. ▇▇▇▇▇▇ BANK CANADA,
as Canadian Administrative Agent
By:
-------------------------------------
Title:
ADDRESS FOR FUNDING NOTICES:
▇.▇. ▇▇▇▇▇▇ Bank Canada
▇▇▇ ▇▇▇ ▇▇.
Royal Bank Plaza, South Tower
Suite 1800
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ Staff
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
▇.▇. ▇▇▇▇▇▇ Bank Canada
▇▇▇ ▇▇▇ ▇▇.
Royal Bank Plaza, South Tower
Suite 1800
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Annex A
to the Credit Agreement
SECTION 1. DEFINITIONS
DEFINED TERMS. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement, and the following terms shall have the following meanings:
"ACCEPTANCE FEE" shall mean the fee payable in C$ to each Canadian
Lender in respect of Bankers' Acceptances computed in accordance with
subsection 2.3(e).
"APPLICABLE BA DISCOUNT RATE" shall mean (i) with respect to any
Schedule I Canadian Lender, as applicable to a Bankers' Acceptance being
purchased by such Schedule I Canadian Lender on any day, the average (as
determined by the Canadian Administrative Agent) of the respective
percentage discount rates (expressed to two decimal places and rounded
upward, if necessary, to the nearest 1/100th of 1%) quoted to the Canadian
Administrative Agent by each Schedule I Reference Canadian Lender as the
percentage discount rate at which such Schedule I Reference Canadian Lender
would, in accordance with its normal practices, at or about 10:00 A.M.
(Toronto time) on such day, be prepared to purchase bankers' acceptances
accepted by such Schedule I Reference Canadian Lender having a term and
face amount comparable to the term and face amount of such Bankers'
Acceptance and (ii) with respect to any Schedule II Canadian Lender, as
applicable to a Bankers' Acceptance being purchased by such Schedule II
Canadian Lender on any day, the lesser of (x) the average (as determined by
the Canadian Administrative Agent) of the respective percentage discount
rates (expressed to two decimal places and rounded upward, if necessary, to
the nearest 1/100th of 1%) quoted to the Canadian Administrative Agent by
each Schedule II Reference Canadian Lender as the percentage discount rate
at which such Schedule II Reference Canadian Lender would, in accordance
with its normal practices, at or about 10:00 A.M. (Toronto time) on such
day, be prepared to purchase bankers' acceptances accepted by such Schedule
II Reference Canadian Lender having a term and a face amount comparable to
the term and face amount of such Bankers' Acceptance and (y) the rate that
is 0.10% per annum in excess of the rate determined pursuant to clause (i)
of this definition in connection with the relevant issuance of Bankers'
Acceptances.
"APPLICABLE MARGIN FOR CANADIAN BORROWING" shall mean the rate for the
respective type of C$ Loan set forth below opposite the level (either ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5 or Level 6) indicated in the schedule
set forth below corresponding to the Applicable Leverage Ratio in effect at
such time:
2
Applicable Margin (% per annum)
----------------------------------
Range of C$ Prime Bankers'
Leverage Ratio Loans Acceptances
-------------- ------------ ---------------
LEVEL 6
Greater than or equal to
5.50 to 1.00 1.50% 2.50%
▇▇▇▇▇ ▇
Less than 5.50 to 1.00 and
greater than or equal to 5.25 to 1.00 1.25% 2.25%
▇▇▇▇▇ ▇
Less than 5.25 to 1.00 and
greater than or equal to 4.50 to 1.00 1.00% 2.00%
▇▇▇▇▇ ▇
Less than 4.50 to 1.00 and
greater than or equal to 3.75 to 1.00 0.75% 1.75%
▇▇▇▇▇ ▇
Less than 3.75 to 1.00 and
greater than or equal to 3.25 to 1.00 0.50% 1.50%
▇▇▇▇▇ ▇
Less than 3.25 to 1.00 0.25% 1.25%
"AVAILABLE CANADIAN COMMITMENT" shall mean as to any Canadian Lender,
at a particular time, an amount equal to the excess, if any, of (a) the
amount of such Canadian Lender's Canadian Commitment at such time OVER (b)
the aggregate principal amount of all C$ Loans made by such Canadian Lender
then outstanding.
"BA DISCOUNT PROCEEDS" shall mean in respect of any Bankers'
Acceptance to be purchased by a Canadian Lender on any day under subsection
2.3, an amount (rounded to the nearest whole Canadian cent, and with
one-half of one Canadian cent being rounded up) calculated on such day by
dividing:
(a) the face amount of such Bankers' Acceptance; by
(b) the sum of one PLUS the product of:
3
(i) the Applicable BA Discount Rate (expressed as a decimal)
applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptance and the
denominator of which is 365;
with such product being rounded up or down to the fifth
decimal place and .000005 being rounded up.
"BANKERS' ACCEPTANCE" shall mean a ▇▇▇▇ of exchange or a depository
▇▇▇▇ governed by the Depository Bills and Notes Act (Canada) denominated in
C$ drawn by the Canadian Borrower and accepted by a Canadian Lender
pursuant to subsection 2.3.
"BORROWING DATE (CANADA)" shall mean any Business Day (Canada)
specified in a notice as a date on which the Canadian Borrower requests the
relevant Canadian Lenders to make C$ Loans under this Annex A to the Credit
Agreement.
"BUSINESS DAY (CANADA)" shall mean a day on which banks are open for
business in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ but excludes Saturday, Sunday and any
other day which is a legal holiday in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"CANADIAN ADMINISTRATIVE AGENT" shall mean ▇.▇. ▇▇▇▇▇▇ Bank Canada,
together with its affiliates, as the agent for the Canadian Lenders under
the Credit Agreement and the other Basic Documents.
"CANADIAN ADMINISTRATIVE OFFICE" shall mean the Canadian
Administrative Agent's office located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza,
South Tower, Suite 1800, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, or such other office in
Canada as may be designated as such by the Canadian Administrative Agent by
written notice to the Canadian Borrower and the Lenders.
"CANADIAN COMMITMENT" shall mean as to any Canadian Lender, the
obligation of such Canadian Lender to make C$ Prime Loans to and purchase
Bankers' Acceptances from the Canadian Borrower hereunder in an aggregate
principal or face amount at any one time outstanding up to but not
exceeding the amount set forth opposite such Canadian Lender's name on
Schedule I to the Credit Agreement under the caption "Canadian Commitment"
(expressed in Canadian Dollars) or, in the case of a Person that is party
to an assignment permitted under Section 12.06 of the Credit Agreement
after the Effective Date, as specified in the respective instrument of
assignment pursuant to which such assignment is effected (as the same may
be reduced at any time or from time to time pursuant to subsection 3.3 of
this Annex A or reallocated from time to time pursuant to subsection 2.6 of
this Annex A, and may be increased from time to time pursuant to Section
12.11 of the Credit Agreement). The original aggregate principal amount of
the Canadian Commitments is the Canadian Dollar equivalent of US$50,000,000
minus the original aggregate amount of the US$-Canadian Commitments;
PROVIDED, that in no event shall the aggregate outstanding principal amount
of the C$ Loans, together with the
4
aggregate outstanding principal amount of the US$-Canadian Loans, exceed
US$50,000,000.
"CANADIAN DOLLARS" or "C$" shall mean dollars in lawful currency of
Canada.
"CANADIAN EXCHANGE RATE" shall mean on a particular date, the rate at
which C$ may be exchanged into US$, determined by reference to the Bank of
Canada noon rate as published on the Reuters Screen page BOFC. In the event
that such rate does not appear on such Reuters page, the "CANADIAN EXCHANGE
RATE" shall be determined by reference to any other means (as selected by
the Canadian Administrative Agent) by which such rate is quoted or
published from time to time by the Bank of Canada (in each case as in
effect at or about 12:00 Noon, Toronto time, on the Business Day (Canada)
immediately preceding the relevant date of determination); PROVIDED, that
if at the time of any such determination, for any reason, no such exchange
rate is being quoted or published, the Canadian Administrative Agent may
use any reasonable method as it deems applicable to determine such rate,
and such determination shall be prima facie evidence of the accuracy
thereof.
"CANADIAN ISSUING BANK" shall mean The Bank of Nova Scotia.
"CANADIAN LENDER" shall mean each of the lenders that is a signatory
to the Credit Agreement under the caption "CANADIAN LENDER" on the
signature pages thereto and each lender or financial institution that
becomes a Canadian Lender after the date hereof pursuant to Section 12.06
of the Credit Agreement.
"CANADIAN LENDING OFFICE" shall mean for each Canadian Lender, the
lending office for such Canadian Lender (or of an affiliate of such
Canadian Lender) designated for each type of C$ Loan in the Administrative
Questionnaire of such Canadian Lender or such other lending office of such
Canadian Lender (or of an affiliate of such Canadian Lender) as such
Canadian Lender may from time to time specify to the Canadian
Administrative Agent and the Canadian Borrower as the office by which its
C$ Loans of such type are to be made and maintained.
"CANADIAN LETTERS OF CREDIT" shall have the meaning assigned to such
term in Section 2.8 hereof.
"C$ COMMITMENT PERCENTAGE" shall mean as to any Canadian Lender at any
time, the percentage of the aggregate Canadian Commitments then constituted
by such Canadian Lender's Canadian Commitment.
"C$ LOANS" shall mean the collective reference to C$ Prime Loans and
Bankers' Acceptances; for the purposes of this Agreement, the principal
amount of any C$ Loan constituting a Bankers' Acceptance shall be deemed to
be the undiscounted face amount of such Bankers' Acceptance.
"C$ NOTE" as defined in subsection 3.2 hereof.
5
"C$ PRIME LOANS" shall mean advances denominated in Canadian Dollars
that bear interest at a rate based upon the C$ Prime Rate.
"C$ PRIME RATE" shall mean with respect to a C$ Prime Loan, on any
day, the greater of (a) the annual rate of interest announced from time to
time by the Canadian Administrative Agent as its reference rate then in
effect for determining interest rates on C$ denominated commercial loans in
Canada and (b) the annual rate of interest equal to the sum of (i) the CDOR
Rate and (ii) 0.50% per annum.
"CDOR RATE" shall mean on any date, the per annum rate of interest
which is the rate based on the rate applicable to C$ bankers' acceptances
for a term of 30 days appearing on the "Reuters Screen CDOR Page" (as
defined in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) on such date, or if such date is
not a Business Day (Canada), then on the immediately preceding Business Day
(Canada); PROVIDED, HOWEVER, that if no such rate appears on the Reuters
Screen CDOR Page as contemplated, then the CDOR Rate on any date shall be
calculated as the arithmetic mean of the rates for the term and amount
referred to above applicable to C$ bankers' acceptances quoted by the
Schedule I Reference Canadian Lenders as of 10:00 A.M., Toronto time, on
such date or, if such date is not a Business Day (Canada), then on the
immediately preceding Business Day (Canada).
"DRAFT" shall mean a ▇▇▇▇▇ ▇▇▇▇ of exchange, within the meaning of the
Bills of Exchange Act (Canada), in substantially the form set forth in
Exhibit A to this Annex A, drawn by the Canadian Borrower on a Canadian
Lender, denominated in C$ and bearing such distinguishing letters and
numbers as such Lender may determine, but which at such time, except as
otherwise provided herein, has not been completed or accepted by such
Lender.
"DRAWING" shall mean the creation and purchase of Bankers' Acceptances
and/or the purchase of completed Drafts, by the Canadian Lenders pursuant
to subsection 2.3.
"REQUIREMENT OF LAW" shall mean 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.
"SCHEDULE I CANADIAN LENDER" shall mean any Canadian bank named on
Schedule I to the Bank Act (Canada).
"SCHEDULE I REFERENCE CANADIAN LENDER" shall mean Canadian Imperial
Bank of Commerce and The Bank of Nova Scotia.
"SCHEDULE II CANADIAN LENDER" shall mean any bank named on Schedule II
or Schedule III to the Bank Act (Canada).
"SCHEDULE II REFERENCE CANADIAN LENDER" shall mean ▇.▇. ▇▇▇▇▇▇ Bank
Canada.
6
SECTION 2. THE CANADIAN COMMITMENTS
2.1. THE CANADIAN COMMITMENTS. Subject to the terms and conditions
hereof, each Canadian Lender severally agrees to make revolving credit loans
(which shall be C$ Prime Loans) to, to accept and, at the option of the Canadian
Borrower, purchase Bankers' Acceptances from, and to issue letters of credit for
the account of, the Canadian Borrower from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed the lesser of (i) such Lender's Canadian Commitment and (ii) the
US$-Canadian Commitment of such Lender less the aggregate outstanding principal
amount of the US$-Canadian Loans of such Lender. During the Commitment Period,
the Canadian Borrower may use the Canadian Commitments by borrowing, prepaying
(other than Bankers' Acceptances) or repaying the C$ Prime Loans or Bankers'
Acceptances, in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
2.2. PROCEDURE FOR C$ PRIME LOAN BORROWING. The Canadian Borrower may
borrow C$ Prime Loans during the Commitment Period on any Business Day (Canada),
provided that the Canadian Borrower shall give the Canadian Administrative Agent
irrevocable written or telephonic notice (in the case of telephonic notice, to
be promptly confirmed in writing) (which notice must be received by the Canadian
Administrative Agent prior to 10:00 A.M., Toronto time, one Business Day
(Canada) prior to the requested Borrowing Date (Canada)), specifying (a) the
amount to be borrowed and (b) the requested Borrowing Date (Canada). Each
borrowing of C$ Prime Loans shall be in an amount equal to C$300,000 or a whole
multiple of C$100,000 in excess thereof. Upon receipt of any such irrevocable
notice from the Canadian Borrower, the Canadian Administrative Agent shall
promptly notify each Canadian Lender thereof. Each Canadian Lender will make the
amount of its pro rata share of each such borrowing available to the Canadian
Administrative Agent for the account of the Canadian Borrower at the Canadian
Administrative Office prior to 11:00 A.M., Toronto time, on the Borrowing Date
(Canada) requested by the Canadian Borrower in funds immediately available to
the Canadian Administrative Agent. Such borrowing will then be made available on
such date to the Canadian Borrower by the Canadian Administrative Agent
crediting the account of the Canadian Borrower on the books of the Canadian
Administrative Office with the aggregate of the amounts made available to the
Canadian Administrative Agent by the Canadian Lenders and in like funds as
received by the Canadian Administrative Agent.
2.3. BANKERS' ACCEPTANCES.
(a) The Canadian Borrower may issue Bankers' Acceptances denominated
in C$, for acceptance and, at the Canadian Borrower's option, purchase by the
Canadian Lenders, each in accordance with the provisions of this subsection 2.3.
(b) PROCEDURES.
(1) NOTICE. The Canadian Borrower shall notify the Canadian
Administrative Agent by irrevocable written or telephonic notice (in the
case of telephonic notice, to be promptly confirmed in writing) by 10:00
A.M., Toronto time, two Business Days (Canada) prior to the date of the
relevant borrowing in respect of any borrowing by way of Bankers'
Acceptances.
7
(2) MINIMUM BORROWING AMOUNT. Each borrowing by way of Bankers'
Acceptances shall be in a minimum aggregate face amount of C$1,000,000 or a
whole multiple of C$100,000 in excess thereof.
(3) FACE AMOUNTS. The face amount of each Bankers' Acceptance shall be
C$100,000 or any whole multiple thereof.
(4) TERM. Bankers' Acceptances shall be issued and shall mature on a
Business Day (Canada). Each Bankers' Acceptance shall have a term of 30,
60, 90 or 180 days (or such shorter or longer term as shall be agreed to by
all of the Canadian Lenders), shall mature on or before the Commitment
Termination Date and shall be in form and substance reasonably satisfactory
to each Canadian Lender.
(5) BANKERS' ACCEPTANCES IN BLANK. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, the Canadian Borrower shall,
from time to time as required, provide to the Canadian Administrative Agent
Drafts duly executed and endorsed in blank by the Canadian Borrower in
quantities sufficient for each Canadian Lender to fulfill its obligations
hereunder. In addition, the Canadian Borrower hereby appoints each Canadian
Lender as its attorney, with respect to Bankers' Acceptances for which the
Canadian Borrower has provided a Bankers' Acceptance notice:
(i) to complete and sign on behalf of the Canadian Borrower,
either manually or by facsimile or mechanical signature, the Drafts to
create the Bankers' Acceptances (with, in each Canadian Lender's
discretion, the inscription "This is a depository ▇▇▇▇ subject to the
Depository Bills and Notes Act (Canada)");
(ii) after the acceptance thereof by any Canadian Lender, to
endorse on behalf of the Canadian Borrower, either manually or by
facsimile or mechanical signature, such Bankers' Acceptance in favor
of the applicable purchaser or endorsee thereof including, in such
Canadian Lender's discretion, such Canadian Lender or a clearing house
(as defined by the Depository Bills and Notes Act (Canada));
(iii) to deliver such Bankers' Acceptances to such purchaser or
to deposit such Bankers' Acceptances with such clearing house; and
(iv) to comply with the procedures and requirements established
from time to time by such Canadian Lender or such clearing house in
respect of the delivery, transfer and collection of bankers'
acceptances and depository bills.
The Canadian Borrower recognizes and agrees that all Bankers' Acceptances
signed, endorsed, delivered or deposited on its behalf by a Canadian Lender
shall bind the Canadian Borrower as fully and effectually as if signed in
the handwriting of and duly issued, delivered or deposited by the proper
signing officer of the Canadian Borrower. Each Canadian Lender is hereby
authorized to accept such Drafts or issue such Bankers' Acceptances
endorsed in blank in such face amounts as may be determined by such
Canadian Lender in accordance with the terms of this Agreement, PROVIDED
that the
8
aggregate amount thereof is less than or equal to the aggregate amount of
Bankers' Acceptances required to be accepted by such Canadian Lender. No
Canadian Lender shall be responsible or liable for its failure to accept a
Bankers' Acceptance if the cause of such failure is, in whole or in part,
due to the failure of the Canadian Borrower to provide duly executed and
endorsed Drafts to the Canadian Administrative Agent on a timely basis, nor
shall any Canadian Lender be liable for any damage, loss or other claim
arising by reason of any loss or improper use of any such instrument except
loss or improper use arising by reason of the gross negligence or willful
misconduct of such Canadian Lender, its officers, employees, agents or
representatives. The Canadian Administrative Agent and each Canadian Lender
shall exercise such care in the custody and safekeeping of Drafts as it
would exercise in the custody and safekeeping of similar property owned by
it. Each Canadian Lender will, upon the request of the Canadian Borrower,
promptly advise the Canadian Borrower of the number and designation, if
any, of Drafts then held by it for the Canadian Borrower. Each Canadian
Lender shall maintain a record with respect to Drafts and Bankers'
Acceptances (i) received by it from the Canadian Administrative Agent in
blank hereunder, (ii) voided by it for any reason, (iii) accepted by it
hereunder, (iv) purchased by it hereunder and (v) canceled at their
respective maturities. Each Canadian Lender further agrees to retain such
records in the manner and for the statutory periods provided in the various
Canadian provincial or federal statutes and regulations which apply to such
Canadian Lender.
(6) EXECUTION OF BANKERS' ACCEPTANCES. Drafts of the Canadian Borrower
to be accepted as Bankers' Acceptances hereunder shall be duly executed on
behalf of the Canadian Borrower. Notwithstanding that any person whose
signature appears on any Bankers' Acceptance as a signatory for the
Canadian Borrower may no longer be an authorized signatory for the Canadian
Borrower at the date of issuance of a Bankers' Acceptance, such signature
shall nevertheless be valid and sufficient for all purposes as if such
authority had remained in force at the time of such issuance, and any such
Bankers' Acceptance so signed shall be binding on the Canadian Borrower.
(7) ISSUANCE OF BANKERS' ACCEPTANCES. Promptly following receipt of a
notice of borrowing by way of Bankers' Acceptances, the Canadian
Administrative Agent shall so advise the Canadian Lenders and shall advise
each Canadian Lender of the face amount of each Draft to be accepted by it
and the term thereof. The aggregate face amount of Drafts to be accepted by
a Canadian Lender shall be determined by the Canadian Administrative Agent
on a pro rata basis by reference to the respective Canadian Commitments of
the Canadian Lenders, except that, if the face amount of a Draft which
would otherwise be accepted by a Canadian Lender would not be C$100,000 or
a whole multiple thereof, such face amount shall be increased or reduced by
the Canadian Administrative Agent in its sole and unfettered discretion to
the nearest whole multiple of C$100,000.
(8) ACCEPTANCE OF BANKERS' ACCEPTANCES. Each Draft to be accepted by a
Canadian Lender shall be accepted at such Canadian Lender's Canadian
Lending Office.
(9) PURCHASE OF BANKERS' ACCEPTANCES. Each Canadian Lender shall be
required to purchase (subject to the commercial availability of a resale
market in the case of
9
Bankers' Acceptances with a term of approximately 30, 60, 90 or 180 days,
as the case may be) from the Canadian Borrower on the Borrowing Date
(Canada), at the Applicable BA Discount Rate, the Bankers' Acceptances
accepted by it on such date and to provide to the Canadian Administrative
Agent the BA Discount Proceeds thereof not later than 12:00 Noon, Toronto
time, on such Borrowing Date (Canada) for the account of the Canadian
Borrower. The Acceptance Fee payable by the Canadian Borrower to such
Canadian Lender under subsection 2.3(e) in respect of each Bankers'
Acceptance accepted and purchased by such Canadian Lender from the Canadian
Borrower shall be set off against the BA Discount Proceeds payable by such
Canadian Lender under this subsection 2.3(b)(9). Not later than 2:00 P.M.,
Toronto time, on such Borrowing Date (Canada), the Canadian Administrative
Agent shall make such BA Discount Proceeds available to the Canadian
Borrower by crediting the account of the Canadian Borrower on the books of
the Canadian Administrative Office with the aggregate of the amounts made
available to the Canadian Administrative Agent by the Canadian Lenders and
in like funds as received by the Canadian Administrative Agent.
(10) SALE OF BANKERS' ACCEPTANCES. Each Canadian Lender may at any
time and from time to time hold, sell, rediscount or otherwise dispose of
any or all Bankers' Acceptances accepted and purchased by it.
(11) WAIVER OF PRESENTMENT AND OTHER CONDITIONS. To the extent
permitted by applicable law, the Canadian Borrower waives presentment for
payment and any other defense to payment of any amounts due to a Canadian
Lender in respect of a Bankers' Acceptance accepted by it pursuant to this
Agreement which might exist solely by reason of such Bankers' Acceptance
being held, at the maturity thereof, by such Canadian Lender in its own
right, and the Canadian Borrower agrees not to claim any days of grace if
such Canadian Lender as holder sues the Canadian Borrower on the Bankers'
Acceptances for payment of the amount payable by the Canadian Borrower
thereunder.
(c) The Canadian Borrower shall reimburse a Canadian Lender for, and
there shall become due and payable at 10:00 A.M., Toronto time, on the maturity
date for each Bankers' Acceptance, an amount in Canadian Dollars in same day
funds equal to the face amount of such Bankers' Acceptance. The Canadian
Borrower shall make each such reimbursement payment (i) by causing any proceeds
of a Refunding Bankers' Acceptance (as defined in subsection 2.3(d) below)
issued in accordance with subsection 2.3(d) or conversion of such Bankers'
Acceptance in accordance with subsection 2.4 to be applied in reduction of such
reimbursement payment; and (ii) by depositing the amount of such reimbursement
payment (or any portion thereof remaining unpaid after application of any
proceeds referred to in clause (i)) with the Canadian Administrative Office in
accordance with subsection 3.7. The Canadian Borrower's payment in accordance
with this subsection shall satisfy its obligations under any Bankers' Acceptance
to which it relates, and the Canadian Lender which has accepted such Bankers'
Acceptance shall thereafter be solely responsible for the payment of such
Bankers' Acceptance.
(d) The Canadian Borrower shall give irrevocable written or telephonic
notice (in the case of telephonic notice, to be promptly confirmed in writing)
(or such other method of notification as may be agreed upon between the Canadian
Administrative Agent and the
10
Canadian Borrower) to the Canadian Administrative Agent at or before 10:00 A.M.,
Toronto time, two Business Days (Canada) prior to the maturity date of each
Bankers' Acceptance of the Canadian Borrower's intention to issue a Bankers'
Acceptance on such maturity date (a "REFUNDING BANKERS' ACCEPTANCE") to provide
for the payment of such maturing Bankers' Acceptance (it being understood that
payments by the Canadian Borrower and fundings by the Canadian Lenders in
respect of each maturing Bankers' Acceptance and the related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers' Acceptance).
If the Canadian Borrower fails to give such notice or does not have sufficient
funds on deposit in the amount of reimbursement payment in accordance with
subsection 2.3(c)(ii), the Canadian Borrower shall be deemed to have requested
that such maturing Bankers' Acceptances be repaid with the proceeds of C$ Prime
Loans (without any requirement to give notice with respect thereto), commencing
on the maturity date of such maturing Bankers' Acceptances.
(e) An Acceptance Fee shall be payable by the Canadian Borrower to
each Canadian Lender in advance (in the manner specified in subsection 2.3(b)(9)
hereof) upon the issuance of a Bankers' Acceptance to be accepted by such
Canadian Lender calculated at the rate per annum equal to the Applicable Margin
for Canadian Borrowing, such Acceptance Fee to be calculated on the face amount
of such Bankers' Acceptance and to be computed on the basis of the number of
days in the term of such Bankers' Acceptance and a year of 365 days.
(f) Upon the occurrence of any Event of Default which is continuing,
the Canadian Borrower shall, forthwith, without any demand or the taking of any
action by the Canadian Administrative Agent, provide cover for all outstanding
Bankers' Acceptances by paying to the Canadian Administrative Agent immediately
available funds in an amount equal to the then aggregate face amount of all
outstanding Bankers' Acceptances, which funds shall be held by the Canadian
Administrative Agent in an account as collateral security, and in addition to
any other rights or remedies of any Canadian Lender and the Canadian
Administrative Agent hereunder, any Canadian Lender or the Canadian
Administrative Agent (or such alternate arrangement as may be agreed upon by the
Canadian Borrower and such Canadian Lender or the Canadian Administrative Agent,
as applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms), for the ratable benefit of the
Canadian Lenders, amounts which are received by such Canadian Lender or the
Canadian Administrative Agent from the Canadian Borrower hereunder or as
proceeds of the exercise of any rights or remedies of any Canadian Lender or the
Canadian Administrative Agent hereunder against the Canadian Borrower, to the
extent such amounts may be required to satisfy any contingent or unmatured
obligations or liabilities of the Canadian Borrower to the Canadian Lenders or
the Canadian Administrative Agent, or any of them hereunder.
2.4. CONVERSION OPTION. Subject to the provisions of this Agreement,
the Canadian Borrower may, prior to the Commitment Termination Date, effective
on any Business Day (Canada), convert, in whole or in part, C$ Prime Loans into
Bankers' Acceptances or vice versa upon giving to the Canadian Administrative
Agent prior irrevocable written or telephonic notice (in the case of telephonic
notice, to be promptly confirmed in writing) within the notice
11
period and in the form which would be required to be given to the Canadian
Administrative Agent in respect of the category of C$ Loan into which the
outstanding C$ Loan is to be converted in accordance with the provisions of
subsection 2.2 or 2.3, as applicable, PROVIDED that:
(a) no C$ Prime Loan may be converted into a Bankers' Acceptance when
any Event of Default has occurred and is continuing;
(b) each conversion to Bankers' Acceptances shall be for an aggregate
amount of C$1,000,000 (and whole multiples of C$100,000 in excess
thereof), and each conversion to C$ Prime Loans shall be in a
minimum aggregate amount of C$300,000; and
(c) Bankers' Acceptances may be converted only on the maturity date
of such Bankers' Acceptances and, PROVIDED that, if less than all
Bankers' Acceptances are converted, then after such conversion
not less than C$1,000,000 (and whole multiples of C$100,000 in
excess thereof) shall remain as Bankers' Acceptances.
2.5. CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE.
(a) If the Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon the Canadian
Borrower, and notifies the Canadian Borrower that, by reason of circumstances
affecting the money market, there is no market for Bankers' Acceptances, then:
(i) the right of the Canadian Borrower to request a borrowing by way
of Bankers' Acceptance shall be suspended until the Canadian Administrative
Agent determines that the circumstances causing such suspension no longer
exist and the Canadian Administrative Agent so notifies the Canadian
Borrower; and
(ii) any notice relating to a borrowing by way of Bankers' Acceptance
which is outstanding at such time shall be deemed to be a notice requesting
a borrowing by way of C$ Prime Loans (all as if it were a notice given
pursuant to subsection 2.2).
(b) The Canadian Administrative Agent shall promptly notify the
Canadian Borrower and the Canadian Lenders of the suspension of the Canadian
Borrower's right to request a borrowing by way of Bankers' Acceptance and of the
termination of such suspension.
2.6. DESIGNATION OF BORROWINGS. On or prior to the date which is five
(5) Business Days (Canada) prior to the first day of each month, the US Borrower
and the Canadian Borrower shall give notice to each of the Canadian
Administrative Agent and the Administrative Agent, respectively, of the
aggregate Canadian Commitment and the aggregate US$-Canadian Commitment to be
available during such month (the "US-CANADIAN ALLOCATION"), and the Canadian
Administrative Agent and the Administrative Agent shall promptly notify the
Canadian Lenders and the US$-Canadian Lenders, respectively, thereof. With the
consent of each of the US$-Canadian Lenders, the Canadian Lenders, the
Administrative Agent and the Canadian Administrative Agent (as evidenced in a
manner satisfactory to the Administrative
12
Agent), the US Borrower and the Canadian Borrower may modify the then-current
US-Canadian Allocation for any period and subject to any notice as they may
request; and in the event of a failure by the US Borrower and the Canadian
Borrower to give a timely notice as to the US-Canadian Allocation for any month,
the US-Canadian Allocation for the immediately preceding month shall continue in
effect. The US Borrower and the Canadian Borrower agree that at no time during
such month shall the aggregate principal amount of the C$ Loans exceed the
aggregate Canadian Commitment specified in such notice, nor shall the aggregate
principal amount of the US$-Canadian Loans exceed the aggregate US$-Canadian
Commitment specified in such notice, and in no event shall the aggregate of the
Canadian Commitments and the US$-Canadian Commitments exceed US$50,000,000.
2.7. FEES. The Canadian Borrower shall pay to the Canadian
Administrative Agent for the account of each Canadian Lender commitment fees in
Canadian Dollars on the daily average unused amount of such Canadian Lender's
Canadian Commitment (for which purpose, the aggregate amount of any Bankers'
Acceptance liabilities shall be deemed to be a PRO RATA (based on the Canadian
Commitments) use of each Canadian Lender's Canadian Commitment and the daily
average used amount of each Canadian Lender's Canadian Commitment shall be
determined after taking into account its outstanding US$-Canadian Loans) for the
period from the Closing Date to and including the earlier of the date the
Canadian Commitments are terminated and the Commitment Termination Date, at a
rate per annum equal to the Applicable Commitment Fee Rate in effect from time
to time. Accrued commitment fees under this subsection 2.7 shall be payable on
the Quarterly Dates and on the earlier of the date the Canadian Commitments are
terminated and the Scheduled Revolving Credit Commitment Termination Date. The
Canadian Borrower shall pay to the Canadian Administrative Agent on the Closing
Date syndication, agency and additional commitment fees in the amounts
heretofore mutually agreed in writing. The Canadian Borrower shall pay to the
Canadian Administrative Agent on the Closing Date and on each anniversary
thereof, so long as any of the Canadian Commitments are in effect and until
payment in full of all C$ Loans hereunder, all interest thereon and all other
amounts payable hereunder, and an annual agency fee in the amount heretofore
mutually agreed in writing.
2.8. CANADIAN LETTERS OF CREDIT. Subject to the terms and conditions
of this Agreement, the Canadian Commitments may be utilized, upon the request of
the Canadian Borrower, in addition to the Loans provided for by subsection 2.2
hereof, by the issuance by the Canadian Issuing Bank of standby letters of
credit ("CANADIAN LETTERS OF CREDIT") for the account of the Canadian Borrower,
PROVIDED that in no event shall (i) the aggregate amount of all letter of credit
liabilities under the Canadian Commitments, together with the aggregate
outstanding principal amount of the C$ Loans, exceed the aggregate amount of the
Canadian Commitments as in effect from time to time, (ii) the aggregate
outstanding amount of all letter of credit liabilities under the Canadian
Commitments exceed $5,000,000 and (iii) the expiration date of any Canadian
Letter of Credit extend beyond the earlier of the Commitment Termination Date
and the date one year following the issuance of such Canadian Letter of Credit
(provided that any Canadian Letter of Credit with a one-year tenor may provide
for the renewal thereof for additional one-year periods, which periods shall in
any event not extend beyond the Commitment Termination Date). Prior to the
issuance of any Canadian Letter of Credit, the Administrative Agent shall have
first determined, and advised the relevant Canadian Issuing Bank, that the
13
requested amount of Canadian Letters of Credit shall be available under the
Canadian Commitments
The following additional provisions shall apply to Canadian Letters of
Credit:
(a) The Canadian Borrower shall give the Canadian Administrative Agent
at least three Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than 5 days preceding the
Commitment Termination Date) on which each Canadian Letter of Credit is to be
issued and the account party or parties therefor and describing in reasonable
detail the proposed terms of such Canadian Letter of Credit (including the
beneficiary thereof) and the nature of the transactions or obligations proposed
to be supported thereby. Upon receipt of any such notice, the Canadian
Administrative Agent shall advise the Canadian Issuing Bank of the contents
thereof.
(b) On each day during the period commencing with the issuance by the
Canadian Issuing Bank of any Canadian Letter of Credit and until such Canadian
Letter of Credit shall have expired or been terminated, the Canadian Commitment
of each Canadian Lender shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Canadian Lender's C$ Commitment Percentage
of the then undrawn stated amount of such Canadian Letter of Credit. Each
Canadian Lender (other than the Canadian Issuing Bank) agrees that, upon the
issuance of any Canadian Letter of Credit hereunder, it shall automatically
acquire a participation in the Canadian Issuing Bank's rights and obligations
under such Canadian Letter of Credit in an amount equal to such Canadian
Lender's C$ Commitment Percentage of such rights and obligations, and each
Canadian Lender (other than the Canadian Issuing Bank) thereby shall
automatically absolutely, unconditionally and irrevocably assume, as primary
obligor and not as surety, and be unconditionally obligated to the Canadian
Issuing Bank to pay and discharge when due, its C$ Commitment Percentage of the
Canadian Issuing Bank's obligation to pay drawings under such Canadian Letter of
Credit.
(c) Upon receipt from the beneficiary of any Canadian Letter of Credit
of any demand for payment under such Canadian Letter of Credit, the Canadian
Issuing Bank shall promptly notify the Canadian Borrower (through the Canadian
Administrative Agent) of the amount to be paid by the Canadian Issuing Bank as a
result of such demand and the date on which payment is to be made by the
Canadian Issuing Bank to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Canadian Letter of
Credit, the Canadian Borrower hereby unconditionally agrees to pay and reimburse
the Canadian Administrative Agent for account of the Canadian Issuing Bank for
the amount of each demand for payment under such Canadian Letter of Credit that
is in substantial compliance with the provisions of such Canadian Letter of
Credit at or prior to the date on which payment is to be made by the Canadian
Issuing Bank to the beneficiary thereunder, without presentment, demand, protest
or other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in paragraph
(c) of this Section 2.8, the Canadian Borrower shall advise the Canadian
Administrative Agent whether or not the Canadian Borrower intends to borrow
hereunder to finance its obligation to reimburse the Canadian Issuing Bank for
the amount of the related demand for payment and, if it does, submit a notice of
such borrowing as provided in Section 5.05 of the Credit Agreement.
14
(e) Each Canadian Lender shall pay to the Canadian Administrative
Agent for account of the Canadian Issuing Bank at the Canadian Administrative
Office in Canadian Dollars and in immediately available funds the amount of such
Canadian Lender's C$ Commitment Percentage of any payment under a Canadian
Letter of Credit upon notice by the Canadian Issuing Bank (through the Canadian
Administrative Agent) to such Canadian Lender requesting such payment and
specifying such amount. Each such Canadian Lender's obligation to make such
payment to the Canadian Administrative Agent for account of the Canadian Issuing
Bank under this paragraph (e), and the Canadian Issuing Bank's right to receive
the same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever (other than gross negligence or wilful misconduct of the
Canadian Issuing Bank), including, without limitation, the failure of any other
Canadian Lender to make its payment under this paragraph (e), the financial
condition of the Company or the Canadian Borrower (or any other account party),
any failure to satisfy any condition precedent to any Loan, the existence of any
Default or the termination of the Commitments. Each such payment to the Canadian
Issuing Bank shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Canadian Lender shall default in its obligation to
make any such payment to the Canadian Administrative Agent for account of the
Canadian Issuing Bank, for so long as such default shall continue the Canadian
Administrative Agent may at the request of the Canadian Issuing Bank withhold
from any payments received by the Canadian Administrative Agent under this
Agreement or any Note for account of such Canadian Lender the amount so in
default and, to the extent so withheld, pay the same to the Canadian Issuing
Bank in satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Canadian Lender to the
Canadian Issuing Bank pursuant to paragraph (e) above in respect of any Canadian
Letter of Credit, such Canadian Lender shall, automatically and without any
further action on the part of the Canadian Administrative Agent, the Canadian
Issuing Bank or such Canadian Lender, acquire (i) a participation in an amount
equal to such payment in the Reimbursement Obligation owing to the Canadian
Issuing Bank hereunder and under the Canadian Letter of Credit Documents
relating to such Letter of Credit and (ii) a participation in a percentage equal
to such Canadian Lender's C$ Commitment Percentage in any interest or other
amounts payable by the Canadian Borrower hereunder and under such Letter of
Credit Documents in respect of such Reimbursement Obligation (other than the
commissions, charges, costs and expenses payable to the Canadian Issuing Bank
pursuant to paragraph (g) of this Section 2.8). Upon receipt by the Canadian
Issuing Bank from or for account of the Canadian Borrower of any payment in
respect of any Reimbursement Obligation or any such interest or other amount
(including by way of setoff or application of proceeds of any collateral
security) the Canadian Issuing Bank shall promptly pay to the Canadian
Administrative Agent for account of each Canadian Lender entitled thereto such
Canadian Lender's C$ Commitment Percentage of such payment, each such payment by
the Canadian Issuing Bank to be made in the same money and funds in which
received by the Canadian Issuing Bank. In the event any payment received by the
Canadian Issuing Bank and so paid to the Canadian Lenders hereunder is rescinded
or must otherwise be returned by the Canadian Issuing Bank, each Canadian Lender
shall, upon the request of the Canadian Issuing Bank (through the Canadian
Administrative Agent), repay to the Canadian Issuing Bank (through the Canadian
Administrative Agent) the amount of such payment paid to such Canadian Lender,
with interest at the rate specified in paragraph (j) of this Section 2.8.
15
(g) The Company shall pay to the Canadian Administrative Agent for
account of the Canadian Lenders (ratably in accordance with their respective C$
Commitment Percentages) a letter of credit fee in Canadian Dollars in respect of
each Canadian Letter of Credit in an amount equal to the Applicable L/C
Percentage of the daily average undrawn stated amount of such Canadian Letter of
Credit for the period from and including the date of issuance of such Canadian
Letter of Credit (i) in the case of a Canadian Letter of Credit that expires in
accordance with its terms, to and including such expiration date and (ii) in the
case of a Canadian Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Canadian Letter of
Credit, to but excluding the date such Canadian Letter of Credit is drawn in
full or is terminated (such fee to be non-refundable, to be paid in arrears on
each Quarterly Date and on the Commitment Termination Date and on the date of
expiry or termination or full utilization of such Canadian Letter of Credit and
to be calculated for any day after giving effect to any payments made under such
Canadian Letter of Credit on such day). In addition, the Company shall pay to
the Canadian Administrative Agent for account of the Canadian Issuing Bank a
fronting fee in Canadian Dollars in respect of each Canadian Letter of Credit in
an amount equal to 0.25% per annum of the daily average undrawn stated amount of
such Canadian Letter of Credit for the period from and including the date of
issuance of such Canadian Letter of Credit (i) in the case of a Canadian Letter
of Credit that expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Canadian Letter of Credit that is
drawn in full or is otherwise terminated other than on the stated expiration
date of such Canadian Letter of Credit, to but excluding the date such Canadian
Letter of Credit is drawn in full or is terminated (such fee to be
non-refundable, to be paid in arrears on each Quarterly Date and on the
Commitment Termination Date and to be calculated for any day after giving effect
to any payments made under such Canadian Letter of Credit on such day) plus all
commissions, charges, costs and expenses in the amounts customarily charged by
the Canadian Issuing Bank from time to time in like circumstances with respect
to the issuance of each Canadian Letter of Credit and drawings and other
transactions relating thereto.
(h) Promptly following the end of each calendar month, the Canadian
Issuing Bank shall deliver (through the Canadian Administrative Agent) to each
Canadian Lender and the Canadian Borrower a notice describing the aggregate
amount of all Canadian Letters of Credit outstanding at the end of such month.
Upon the request of any Canadian Lender from time to time, the Canadian Issuing
Bank shall deliver any other information reasonably requested by such Canadian
Lender with respect to each Canadian Letter of Credit then outstanding.
(i) The issuance by the Canadian Issuing Bank of each Canadian Letter
of Credit shall, in addition to the conditions precedent set forth in Section 7
of the Credit Agreement, be subject to the conditions precedent that (i) such
Canadian Letter of Credit shall be in such form, contain such terms and support
such transactions as shall be satisfactory to the Canadian Issuing Bank
consistent with its then current practices and procedures with respect to
letters of credit of the same type, (ii) such Canadian Letter of Credit shall be
denominated in Canadian Dollars and (iii) the Canadian Borrower shall have
executed and delivered such applications, agreements and other instruments
relating to such Canadian Letter of Credit as the Canadian Issuing Bank shall
have reasonably requested consistent with its then current practices and
procedures with respect to letters of credit of the same type, provided that in
the event of any conflict between any such application, agreement or other
instrument and the provisions of this Agreement or any Security Document, the
provisions of this Agreement and the Security Documents shall control.
16
(j) To the extent that any Canadian Lender shall fail to pay any
amount required to be paid pursuant to paragraph (e) or (f) of this Section 2.8
on the due date therefor, such Canadian Lender shall pay interest to the
Canadian Issuing Bank (through the Canadian Administrative Agent) on such amount
from and including such due date to but excluding the date such payment is made
at the rate determined by the Canadian Administrative Agent in its discretion as
the appropriate rate for interbank settlements, PROVIDED that if such Canadian
Lender shall fail to make such payment to the Canadian Issuing Bank within three
Business Days of such due date, then, retroactively to the due date, such
Canadian Lender shall be obligated to pay interest on such amount at the rate
then payable by the Canadian Borrower on such amount.
(k) The issuance by the Canadian Issuing Bank of any modification or
supplement to any Canadian Letter of Credit hereunder shall be subject to the
same conditions as are applicable under this Section 2.8 to the issuance of new
Canadian Letters of Credit, and no such modification or supplement shall be
issued hereunder unless either (i) the respective Canadian Letter of Credit
affected thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (ii) each Canadian
Lender shall have consented thereto.
The Company hereby indemnifies and holds harmless each Canadian Lender
(including the Canadian Issuing Bank and the Canadian Administrative Agent) from
and against any and all claims and damages, losses, liabilities, costs or
expenses that such Canadian Lender or the Canadian Administrative Agent may
incur (or that may be claimed against such Canadian Lender or the Canadian
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Canadian Issuing Bank under any Canadian Letter of Credit; PROVIDED that the
Company shall not be required to indemnify any Canadian Lender or the Canadian
Administrative Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the willful
misconduct or gross negligence of the Canadian Issuing Bank in determining
whether a request presented under any Canadian Letter of Credit complied with
the terms of such Canadian Letter of Credit or (y) in the case of the Canadian
Issuing Bank, its failure to pay under any Canadian Letter of Credit after the
presentation to it of a request strictly complying with the terms and conditions
of such Canadian Letter of Credit. Nothing in this Section 2.8 is intended to
limit the other obligations of the Canadian Borrower, any Canadian Lender or the
Canadian Administrative Agent under this Agreement.
SECTION 3. GENERAL PROVISIONS
3.1. REPAYMENT OF LOANS; EVIDENCE OF DEBT. The Canadian Borrower
hereby unconditionally promises to pay to the Canadian Administrative Agent for
the account of each Canadian Lender the then unpaid principal amount of each C$
Loan of such Canadian Lender on the Commitment Termination Date (or such earlier
date on which the C$ Loans become due and payable pursuant to Section 10 of the
Credit Agreement). The Canadian Borrower hereby further agrees to pay interest
on the unpaid principal amount of the C$ Loans from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 3.5 hereof.
17
3.2. C$ NOTES. The C$ Prime Loans made by each Canadian Lender under
its Canadian Commitment shall be evidenced by a single promissory note of the
Canadian Borrower (each, a "C$ NOTE") in substantially the form of Exhibit B to
this Annex A, dated the Closing Date, payable to such Canadian Lender in a
principal amount equal to such Canadian Commitment as in effect on the Closing
Date and otherwise duly completed. Each Canadian Lender is hereby authorized by
the Canadian Borrower to endorse on the schedule (or a continuation thereof)
attached to each C$ Note of such Canadian Lender, to the extent applicable, the
date and amount for each C$ Prime Loan made by such Canadian Lender to the
Canadian Borrower hereunder, and the date and amount of each payment or
prepayment of principal of such C$ Loan received by such Canadian Lender,
provided that any failure by such Canadian Lender to make any such endorsement
shall not affect the obligations of the Canadian Borrower under such C$ Note or
hereunder in respect of such C$ Prime Loan.
3.3. TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Canadian Commitments shall terminate on the Commitment
Termination Date.
(b) The Canadian Borrower shall have the right to terminate or reduce
the unused Canadian Commitments at any time or from time to time to an amount
not less than the aggregate principal amount of the C$ Prime Loans and Bankers'
Acceptances outstanding, PROVIDED that (i) the Canadian Borrower shall give no
less than two Business Days' (Canada) notice of each such termination or
reduction to the Canadian Administrative Agent and (ii) each partial reduction
shall be in an aggregate amount at least equal to C$1,000,000 and, if greater,
in integral multiples of C$100,000. Any termination of the Canadian Commitments
shall be accompanied by prepayment in full of all C$ Prime Loans together with
accrued interest thereon to the date of such prepayment, and by cash
collateralization, but not prepayment, of the Bankers' Acceptances on terms
satisfactory to the Canadian Administrative Agent.
3.4. OPTIONAL AND MANDATORY PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. The Canadian Borrower shall have the right
to prepay the C$ Loans, in whole or in part, at any time or from time to time,
PROVIDED that the Canadian Borrower shall give the Canadian Administrative Agent
at least one Business Days' (Canada) irrevocable notice of each such prepayment
specifying the date and amount of such prepayment. Upon receipt of any such
notice the Canadian Administrative Agent shall promptly notify 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 any
amounts payable pursuant to Section 12.04 of the Credit Agreement. Partial
prepayments shall be in an aggregate principal amount of C$1,000,000 or a whole
multiple of C$100,000 in excess thereof. Notwithstanding anything to the
contrary above, C$ Loans consisting of Bankers' Acceptances may not be prepaid
pursuant to this subsection.
(b) MANDATORY PREPAYMENTS. (i) If, at any time during the Commitment
Period, the aggregate principal amount of C$ Loans outstanding with respect to
all Canadian Lenders exceeds the aggregate Canadian Commitments then in effect
by more than 5% of the aggregate principal amount of the Canadian Commitments
then in effect, the Canadian Borrower shall,
18
without notice or demand, immediately repay the C$ Loans (or, in the case of
Bankers' Acceptances, cash collateralize such Bankers' Acceptances) in an
aggregate principal amount equal to such excess, together with interest accrued
to the date of such payment or prepayment.
(ii) If on any date, the Canadian Borrower or any Subsidiary of the
Canadian Borrower shall receive Net Cash Proceeds from any issuance subsequent
to the Closing Date of Indebtedness other than Indebtedness incurred pursuant to
Section 9.08 of the Credit Agreement (it being understood that this subsection
3.4(b) shall not constitute a waiver of any provision of said Section 9.08),
then the Canadian Borrower shall prepay the C$ Loans (or, in the case of
Bankers' Acceptances, cash collateralize such Bankers' Acceptances) in an amount
equal to such Net Cash Proceeds (less any prepayment on account of the receipt
of such Net Cash Proceeds under Section 3.02(b) of the Credit Agreement), but
the Canadian Commitments shall not be subject to automatic reduction.
(c) APPLICATION OF MANDATORY PREPAYMENTS. To the extent that
prepayment is required to be made by the Canadian Borrower, such prepayment
shall be applied to reduce (ratably among the Canadian Lenders) such of the then
outstanding C$ Loans (or, in the case of Bankers' Acceptances, cash
collateralization of such Bankers' Acceptances on terms satisfactory to the
Canadian Administrative Agent, which cash collateral shall be invested in a
manner satisfactory to the Canadian Administrative Agent) as the Canadian
Borrower shall determine in its sole discretion.
(d) Notwithstanding anything to the contrary contained above, (i) all
prepayments of C$ Loans shall be made in Canadian Dollars and (ii) all cash
collateralization of Bankers' Acceptances shall be made in Canadian Dollars.
3.5. INTEREST RATES AND PAYMENT DATES.
(a) Subject to subsection 3.5(b) below, each C$ Prime Loan shall bear
interest at a rate per annum equal to the C$ Prime Rate PLUS the Applicable
Margin for Canadian Borrowing.
(b) The Canadian Borrower hereby promises to pay to the Canadian
Administrative Agent for account of each Canadian Lender interest at the
applicable Post-Default Rate (x) on any principal of any C$ Loan made by such
Canadian Lender and on any other amount payable by the Canadian Borrower
hereunder or under the C$ Note held by such Canadian Lender to or for account of
such Canadian Lender (but, if such amount is interest, only to the extent
legally enforceable), that shall not be paid in full when due (whether at stated
maturity, by acceleration, by mandatory prepayment or otherwise), for the period
from and including the due date thereof to but excluding the date the same is
paid in full and (y) during any period when an Event of Default shall have
occurred under Section 10.01(a) of the Credit Agreement and for so long as such
Event of Default shall be continuing, on any principal of any C$ Loan made by
such Canadian Lender.
(c) Accrued interest on each C$ Prime Loan shall be calculated monthly
and payable quarterly in arrears, and in any event, upon the payment or
prepayment thereof, but only on the principal so paid or prepaid; PROVIDED that
interest payable after the occurrence of a
19
Default at the Post-Default Rate shall be payable from time to time on demand of
the Canadian Administrative Agent or the Canadian Lenders having at least 51% of
the aggregate amount of the Canadian Commitments. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Canadian Administrative Agent shall notify the Canadian Lenders and the
Canadian Borrower thereof.
(d) Interest in respect of C$ Prime Loans (and all other amounts
denominated in C$) shall be payable in C$ and shall be payable based upon a year
of 365 days.
(e) (i) If any provision of this Annex would obligate any party to the
Credit Agreement to make any payment of interest or other amount payable to any
Canadian Lender in an amount or calculated at a rate which would be prohibited
by law or would result in a receipt by such Canadian Lender of interest at a
criminal rate (as such terms are construed under the CRIMINAL CODE (Canada)),
then notwithstanding such provision, such amount or rate shall be deemed to have
been adjusted with retroactive effect to the maximum amount or rate of interest,
as the case may be, as would not be so prohibited by law or so result in a
receipt by such Canadian Lender of interest at a criminal rate, such adjustment
to be effected, to the extent necessary, as follows:
(x) first, by reducing the amount or rates of interest required to be
paid under this subsection 3.5; and
(y) thereafter, by reducing any fees, commissions, premiums and other
amounts which would constitute interest for purposes of Section
347 of the CRIMINAL CODE (Canada).
(ii) If, notwithstanding the provisions of clause (i) of this
subsection 3.5(e), and after giving effect to all adjustments contemplated
thereby, any Canadian Lender shall have received an amount in excess of the
maximum permitted by such clause, then the party having paid such amount shall
be entitled, by notice in writing to such Canadian Lender, to obtain
reimbursement from such Canadian Lender of an amount equal to such excess, and,
pending such reimbursement, such amount shall be deemed to be an amount payable
by such Canadian Lender to such party.
(iii) Any amount or rate of interest referred to in this subsection
3.5(e) shall be determined in accordance with generally accepted actuarial
practices and principles as an effective annual rate of interest over the term
of any C$ Loan on the assumption that any charges, fees or expenses that fall
within the meaning of "interest" (as defined in the CRIMINAL CODE (Canada))
shall, if they relate to a specific period of time, be prorated over that period
of time and otherwise be prorated over the period from the Closing Date to the
Scheduled Revolving Credit Commitment Termination Date and, in the event of
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Canadian Administrative Agent shall be conclusive for the
purposes of such determination absent manifest error.
3.6. COMPUTATION OF INTEREST AND FEES. For the purposes of the
INTEREST ACT (Canada), in any case in which an interest rate is stated in this
Agreement to be calculated on the basis of a year of 360 days or 365 days, as
the case may be, the yearly rate of interest to which
20
such interest rate is equivalent is equal to such interest rate multiplied by
the number of days in the year in which the relevant interest payment accrues
and divided by 360 or 365, respectively. In addition, the principles of deemed
investment of interest do not apply to any interest calculations under this
Agreement and the rates of interest stipulated in this Agreement are intended to
be nominal rates and not effective rates or yields.
3.7. PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Canadian Borrower from the Canadian Lenders
hereunder, each payment by the Canadian Borrower on account of any commitment
fee or Acceptance Fee hereunder and any reduction of the Canadian Commitments of
the Canadian Lenders shall be made pro rata according to the respective C$
Commitment Percentages. Each payment by the Canadian Borrower on account of
principal of and interest on the C$ Loans shall be made pro rata according to
the respective outstanding principal amounts of the relevant C$ Loans then held
by the relevant Canadian Lenders. All payments (including prepayments) to be
made by the Canadian Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set off or counterclaim and
shall be made prior to 11:00 A.M., Toronto time, on the due date thereof to the
Canadian Administrative Agent, for the account of the Canadian Lenders, at the
Canadian Administrative Office in C$ and in immediately available funds. The
Canadian Administrative Agent shall distribute such payments to the Canadian
Lenders promptly upon receipt in like funds as received, but the Canadian
Borrower shall have satisfied its payment obligation hereunder upon payment to
the Canadian Administrative Agent, regardless of whether such Canadian
Administrative Agent distributes such payments as required hereunder. If any
payment hereunder becomes due and payable on a day other than a Business Day
(Canada), such payment shall be extended to the next succeeding Business Day
(Canada), and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Canadian Administrative Agent shall have received
notice from a Canadian Lender prior to 11:00 A.M., Toronto time, on any
Borrowing Date (Canada) that such Lender will not make available to the Canadian
Administrative Agent such Canadian Lender's share of the borrowing requested to
be made on such Borrowing Date (Canada), the Canadian Administrative Agent may
assume that such Canadian Lender has made its share of such borrowing available
to the Canadian Administrative Agent on such Borrowing Date (Canada), and the
Canadian Administrative Agent may, in reliance upon such assumption, make
available to the Canadian Borrower on such Borrowing Date (Canada) a
corresponding amount. If such amount is not so made available to the Canadian
Administrative Agent by such Canadian Lender on such Borrowing Date (Canada),
the Canadian Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to the C$ Prime Rate
determined for such day PLUS 1%, on demand, from the relevant Canadian Lender.
Nothing contained in this subsection 3.7(b) shall relieve any Canadian Lender
which has failed to make available its share of any borrowing hereunder from its
obligation to do so in accordance with the terms hereof or prejudice any rights
which the Canadian Borrower may have against any Canadian Lender as a result of
any default by such Canadian Lender to make loans.
(c) The failure of any Canadian Lender to make the C$ Loan to be made
by it on any Borrowing Date (Canada) shall not relieve any other Lender of its
obligation, if any,
21
hereunder to make its C$ Loan on such Borrowing Date (Canada), but no Lender
shall be responsible for the failure of any other Canadian Lender to make the C$
Loan to be made by such other Canadian Lender on such Borrowing Date (Canada).
3.8. ADDITIONAL COSTS.
(a) If the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof by
any Governmental Authority or compliance by any Canadian Lender or any
corporation controlling such Canadian Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Canadian Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Canadian 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 Canadian Lender to be material, then from time to time, the Canadian
Borrower shall promptly pay to such Canadian Lender, upon written demand
therefor, such additional amount or amounts as will compensate such Canadian
Lender for such reduced rate of return. In determining such additional amounts,
each Canadian Lender will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable and which will, to the
extent the reduced rate of return relates to such Canadian Lender's loans or
commitments in general and are not specifically attributable to C$ Loans or
Canadian Commitments hereunder, be calculated with respect to all loans or
commitments similar to the C$ Loans or Canadian Commitments made by such
Canadian Lender hereunder whether or not the loan documentation for such other
loans or commitments permits the Canadian Lender to charge the respective
borrower on a basis similar to that provided in this subsection 3.8.
(b) If any Canadian Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Canadian
Borrower (with a copy to 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 subsection submitted by such Canadian Lender to
the Canadian Borrower (with a copy to the Canadian Administrative Agent),
showing in reasonable detail the basis for the calculation thereof, shall be
prima facie evidence of such additional amounts payable. The agreements in this
subsection shall survive the termination of the Credit Agreement and the payment
of the C$ Loans and all other amounts payable thereunder.
3.9. TAXES. All payments made by the Canadian Borrower, the US
Borrower or any Subsidiary Guarantor in respect of amounts owing under this
Annex A and any C$ 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 gross or net income or gross receipts taxes,
ad valorem taxes, personal property and/or sales taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Canadian Administrative
Agent or any Canadian Lender as a result of a present or former connection
between the Canadian Administrative Agent or such Canadian Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
22
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Canadian Administrative Agent or such
Canadian Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Annex A or any C$ Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Canadian Administrative Agent or any Canadian Lender hereunder or
under any C$ Note, the amounts so payable to the Canadian Administrative Agent
or such Canadian Lender shall be increased to the extent necessary to yield to
the Canadian Administrative Agent or such Canadian 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 Annex A, PROVIDED, HOWEVER, that
neither the Canadian Borrower, the US Borrower, nor any Subsidiary Guarantor
shall be required to increase any such amounts payable to the Canadian
Administrative Agent, any Canadian Lender or any holder of Bankers' Acceptances
if such increased amount arises as a result of the failure of such Canadian
Lender, the Canadian Administrative Agent or any holder of Bankers' Acceptances
to be a Person resident in Canada for the purposes of the INCOME TAX ACT
(Canada). The Canadian Borrower shall also indemnify the Canadian Administrative
Agent and each Canadian Lender on an after-tax basis for any additional taxes on
net income which the Canadian Administrative Agent or such Canadian Lender, as
the case may be, may be obligated to pay as a result of the receipt of
additional amounts under this subsection 3.9. Whenever any Non-Excluded Taxes
are payable by the Canadian Borrower, the US Borrower or any Subsidiary
Guarantor, as promptly as possible thereafter but in any event within 45 days
after the date of payment the Canadian Borrower, the US Borrower or such
Subsidiary Guarantor shall send to the Canadian Administrative Agent for its own
account or for the account of such Canadian Lender, as the case may be, a
certified copy of an original official receipt received by the Canadian
Borrower, the US Borrower or such Subsidiary Guarantor showing payment thereof.
If the Canadian Borrower, the US Borrower or any Subsidiary Guarantor fails to
pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails
to remit to the Canadian Administrative Agent the required receipts or other
required documentary evidence, the Canadian Borrower, the US Borrower or such
Subsidiary Guarantor shall indemnify the Canadian Administrative Agent and the
Canadian Lenders for any incremental taxes, interest or penalties that may
become payable by the Canadian Administrative Agent or any Canadian Lender as a
result of any such failure. The agreements in this subsection shall survive the
termination of this Annex A and the payment of the C$ Loans and all other
amounts payable hereunder.
3.10. SUBSTITUTION OF LENDER. If any Canadian Lender has demanded
compensation under subsection 3.8 of this Annex A, the Canadian Borrower shall
have the right, with the assistance of the Canadian Administrative Agent, to
seek a substitute bank or banks (which may be one or more of the Lenders)
satisfactory to the Canadian Borrower and the Canadian Administrative Agent to
purchase the C$ Notes and assume the Canadian Commitments of such Canadian
Lender. Any such Canadian Lender shall be obligated to sell the C$ Notes for
cash without recourse to such substitute bank or banks and to execute and
deliver an appropriately completed assignment and assumption agreement
reasonably satisfactory to the Canadian Administrative Agent and the Canadian
Borrower and any other document or perform any act reasonably necessary to
effect the assumption of the rights and obligations of such substitute bank or
banks.
EXHIBIT B
To Annex A
[Form of C$ Note]
PROMISSORY NOTE
FOR VALUE RECEIVED, IRON MOUNTAIN CANADA CORPORATION, a Nova Scotia
corporation (the "CANADIAN BORROWER"), hereby promises to pay to _______________
(the "BANK"),for account of its respective Applicable Lending Offices provided
for by the Credit Agreement referred to below, at the principal office of the
Canadian Administrative Agent at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, South Tower,
Suite 1800, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, the aggregate unpaid principal amount of
the C$ Prime Loans made by the Bank to the Canadian Borrower under the Credit
Agreement), in lawful money in the currency of such C$ Prime Loans and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such C$ Prime Loan, at such office, in like money and funds, for the period
commencing on the date of such C$ Prime Loan until such C$ Prime Loan shall be
paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The date, amount and interest rate of each C$ Prime Loan made by the
Bank to the Canadian Borrower and each payment made on account of the principal
thereof, shall be recorded by the Bank on its books and, prior to any transfer
of this C$ Note, endorsed by the Bank on the schedule attached hereto or any
continuation thereof, PROVIDED that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Canadian
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the C$ Prime Loans made by the Bank.
This C$ Note is one of the C$ Notes referred to in the Fifth Amended
and Restated Credit Agreement dated as of March 15, 2002 (as the same may be
modified and supplemented and in effect from time to time, the "CREDIT
AGREEMENT") between Iron Mountain Incorporated, Iron Mountain Canada
Corporation, the lenders party thereto (including the Bank), Fleet National Bank
as Documentation Agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc. as Arranger and Book
Manager, JPMorgan Chase Bank as Administrative Agent, and ▇.▇. ▇▇▇▇▇▇ Bank
Canada as Canadian Administrative Agent and evidences C$ Prime Loans made by the
Bank thereunder. Terms used but not defined in this C$ Note have the respective
meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this C$ Note upon the occurrence of certain events and for prepayments of C$
Prime Loans upon the terms and conditions specified therein.
2
Except as permitted by Section 12.06 of the Credit Agreement, this C$
Note may not be assigned by the Bank to any other Person.
This C$ Note shall be governed by, and construed in accordance with,
the law of the State of New York.
IRON MOUNTAIN CANADA CORPORATION
By
---------------------------
Title:
3
SCHEDULE OF C$ PRIME LOANS
This C$ Note evidences C$ Prime Loans made, Continued or Converted
under the within-described Credit Agreement to the Canadian Borrower, on the
dates, in the principal amounts and bearing interest at the rates set forth
below, subject to the payments, Continuations, Conversions and prepayments of
principal set forth below.
Principal Amount Paid,
Date Made, Amount Prepaid, Unpaid
Continued of Continued or Principal Notation
or Converted Loan Interest Rate Converted Amount Made by
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