Exhibit 10.1
EXECUTION COPY
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IRON MOUNTAIN INCORPORATED
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 27, 2000
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$400,000,000
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FLEET NATIONAL BANK
as Documentation Agent
CIBC WORLD MARKETS CORP.
as Syndication Agent
THE CHASE MANHATTAN BANK,
as Administrative Agent
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Administrative Agent
CHASE SECURITIES INC.,
as Arranger and Book Manager
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TABLE OF CONTENTS
Page
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Section 1. Definitions and Accounting Matters.................................2
1.01 Certain Defined Terms...........................................2
1.02 Accounting Terms and Determinations............................29
1.03 Types of Loans.................................................29
Section 2. Loans, Etc........................................................29
2.01 US$ Loans; US$-Canadian Loans; Multi-Currency Loans; C$ Loans..29
2.02 Reductions of Commitments......................................30
2.03 Fees...........................................................30
2.04 Lending Offices................................................31
2.05 Several Obligations: Remedies Independent......................31
2.06 Notes..........................................................31
2.07 Use of Proceeds................................................31
2.08 Letters of Credit............................................. 31
2.09 Currency Fluctuations, etc.....................................36
Section 3. Borrowings, Conversions and Prepayments...........................36
3.01 Procedure for US$ Loan Borrowing, US$-Canadian Loan Borrowing and
Multi-Currency Borrowing.......................................36
3.02 Prepayments and Conversions....................................37
Section 4. Payments of Principal and Interest................................38
4.01 Repayment of Loans.............................................38
Section 5. Payments; Pro Rata Treatment; Computations; Etc.............. ....40
5.01 Payments.......................................................40
5.02 Pro Rata Treatment.............................................41
5.03 Computations...................................................42
5.05 Certain Notices................................................43
5.07 Sharing of Payments; Waiver of Enforcement Without Consent.
Etc........................................................ ...45
5.08 Withholding Tax Exemption. ....................................46
5.09 Judgment Currency..............................................47
Section 6. Yield Protection and Illegality...................................48
6.01 Additional Costs...............................................48
6.02 Limitation on Types of Loans...................................49
6.03 Illegality.....................................................50
6.04 Substitute ABR Loans........... ...............................50
6.05 Compensation...................................................50
6.06 Capital Adequacy...............................................51
6.07 Substitution of Lender.........................................51
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6.08 Additional Costs in Respect of Letters of Credit...............51
6.09 Foreign Borrower Costs.........................................52
Section 7. Conditions Precedent..............................................52
7.01 Signing Date...................................................52
7.02 Effective Date.................................................52
7.03 Initial and Subsequent Loans...................................55
7.04 First Loan to a Subsidiary Borrower............................56
Section 8. Representations and Warranties....................................56
8.01 Corporate Existence............................................56
8.03 Litigation.....................................................57
8.04 No Breach......................................................57
8.05 Corporate Action...............................................58
8.06 Approvals......................................................58
8.07 Regulations U and X............................................58
8.08 ERISA and the Canadian Pension Plans...........................58
8.09 Taxes..........................................................59
8.10 Subsidiaries: Agreements: Etc..................................59
8.12 Public Utility Holding Company Act.............................59
8.13 Ownership and Use of Properties................................59
8.14 Environmental Compliance.......................................59
8.15 Solvency.......................................................60
8.16 Senior Debt....................................................60
Section 9. Covenants.........................................................60
9.01 Financial Statements and Other Information.....................60
9.02 Taxes and Claims...............................................62
9.03 Insurance......................................................62
9.04 Maintenance of Existence; Conduct of Business..................63
9.05 Maintenance of and Access to Properties........................63
9.06 Compliance with Applicable Laws................................63
9.07 Litigation.....................................................64
9.08 Indebtedness...................................................64
9.09 Leverage Ratios................................................64
9.10 Interest Coverage Ratio........................................65
9.11 Fixed Charges Coverage Ratio...................................65
9.12 Mergers, Asset Dispositions. Etc...............................66
9.13 Liens..........................................................67
9.14 Investments....................................................68
9.15 Restricted Payments............................................69
9.16 Transactions with Affiliates...................................70
9.17 Subordinated Indebtedness......................................70
9.18 Lines of Businesses............................................71
9.19 Modification of Other Agreements...............................71
9.20 Interest Rate and Currency Exchange Protection.................71
9.21 Certain Obligations Respecting Subsidiaries....................71
9.22 Environmental Matters..........................................72
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9.23 Residual Assurances........................................... 73
9.24 Investments in Excluded Subsidiaries...........................73
9.25 Hedging Agreements.............................................73
Section 10. Defaults.........................................................74
10.01 Events of Default.............................................74
10.02 Ratable Treatment of Lenders..................................76
Section 11. The Administrative Agent.........................................77
11.01 Appointment Powers and Immunities.............................77
11.02 Reliance by Administrative Agent..............................78
11.03 Defaults......................................................78
11.04 Rights as a Lender............................................78
11.05 Indemnification...............................................79
11.06 Non-Reliance on Administrative Agent and Other Lenders........79
11.07 Failure to Act................................................79
11.08 Resignation or Removal of Administrative Agent................79
11.09 Consents under Basic Documents................................80
11.10 Collateral Sub-Agents.........................................80
11.11 Multi-Currency Payment Agent and Canadian Administrative
Agent.........................................................80
Section 12. Miscellaneous....................................................80
12.01 Waiver........................................................80
12.02 Notices.......................................................81
12.03 Expenses Etc..................................................81
12.04 Indemnification...............................................81
12.05 Amendments. Etc...............................................82
12.06 Successors and Assigns........................................82
12.07 Confidentiality...............................................83
12.08 Survival......................................................84
12.09 Captions......................................................84
12.10 Counterparts; Integration.....................................84
12.11 New Lenders; Commitment Increases.............................84
12.12 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.........................................................85
12.13 Canadian Borrower=s Agent; Subsidiary Borrowers=Agent.........85
12.14 Designation of Indebtedness....................................86
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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 - Form of Note
EXHIBIT B - Form of Subsidiary Guaranty
EXHIBIT C - Form of Company Guaranty
EXHIBIT D - Form of Company Pledge Agreement
EXHIBIT E - Form of Subsidiary Pledge Agreement
EXHIBIT F - Form of 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 Canadian Counsel to the
Canadian Borrower
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
ANNEXES
ANNEX A - Canadian Borrower Provisions
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of
January 27, 2000, among: IRON MOUNTAIN INCORPORATED, a corporation duly
organized and validly existing under the laws of the State of Delaware (together
with its successors and as more fully defined below, the "COMPANY"); ▇▇▇▇▇▇
▇▇▇▇▇ CANADA COMPANY, a company organized and existing under the laws of the
Province of Nova Scotia (the "CANADIAN BORROWER"); each of the lenders that is a
signatory hereto 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 a signatory hereto
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
a signatory hereto 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 a signatory hereto 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"); FLEET NATIONAL BANK, as Documentation Agent,CIBC WORLD
MARKETS CORP., as Syndication Agent, CHASE SECURITIES INC., as arranger and book
manager, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, as Canadian Administrative Agent
(in such capacity, together with its successors in such capacity, the "CANADIAN
ADMINISTRATIVE AGENT") and 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 a Credit Agreement, dated as of September
30, 1996 (as heretofore amended, supplemented or otherwise modified prior to the
date hereof, the "ORIGINAL CREDIT AGREEMENT"), providing, subject to the terms
thereof, for the extensions of credit to be made by said Lenders to the Company
in an aggregate principal or stated amount not exceeding $150,000,000;
WHEREAS, the Original Credit Agreement was amended and
restated on September 26, 1997 (as so amended and restated, the "EXISTING CREDIT
AGREEMENT") to (a) increase the aggregate principal amount of the Commitments
(as hereinafter defined) to US$250,000,000 and (b) otherwise amend the Original
Credit Agreement and restate it in its entirety as more fully set forth therein;
WHEREAS, the Company intends to merge with and into ▇▇▇▇▇▇
▇▇▇▇▇ Corp., a Pennsylvania corporation ("▇▇▇▇▇▇") upon the terms and subject to
the conditions set forth in the Agreement and Plan of Merger, dated as of
October 20, 1999, by and between the Company and
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▇▇▇▇▇▇, as a result of which the separate existence of the Company shall cease
and ▇▇▇▇▇▇ shall continue as the surviving corporation but shall adopt the name
of the Company (the "▇▇▇▇▇▇ MERGER").
WHEREAS, the Company has requested that the Existing Credit
Agreement be amended and restated to (a) refinance outstanding loans under the
Existing Credit Agreement and certain indebtedness of ▇▇▇▇▇▇ following the
▇▇▇▇▇▇ Merger, (b) provide for multi-currency borrowings, (c) increase the
aggregate principal amount of the Commitments to US$400,000,000 and (d)
otherwise amend the Existing Credit Agreement and restate it in its entirety 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 and
restate the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein set forth, the parties hereto hereby agree that on the Signing 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.
1.1 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.
"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.
"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.
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"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 2
of 1%. Any change in the Alternate Base Rate due to a 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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▇▇▇▇▇ ▇ 0.500%
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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
----------------------------------------- --------------------------------------
▇▇▇▇▇ ▇ 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; PROVIDED, that
for the first six months following the Effective Date, only levels 4
through 6 shall be available.
"APPLICABLE L/C PERCENTAGE" shall mean, at any time, the
Applicable Margin in effect at such time with respect to Eurocurrency
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 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
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until the date five Business Days following receipt by the
Administrative Agent of the applicable financial statements.
"APPLICABLE MARGIN" shall mean 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; PROVIDED, that for the first six months following the
Effective Date, only levels 4 through 6 shall be available:
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Range of Applicable
Leverage Ratio Applicable Margin
----------------------------------------------- ------------------ ------------------------
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
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LEVEL 4
Less than 5.25 to 1.00 and 1.00% 2.00%
greater than or equal to 4.50 to 1.00
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LEVEL 3
Less than 4.50 to 1.00 and 0.75% 1.75%
greater than or equal to 3.75 to 1.00
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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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▇▇▇▇▇ ▇
0.25% 1.25%
Less than 3.25 to 1.00
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"BANKRUPTCY CODE" shall mean the United States Bankruptcy
Code, as now or hereafter in effect, or any successor statute.
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"BASIC DOCUMENTS" shall mean this Agreement, the Notes, the
Letter of Credit Documents, the Company Guaranty, the Subsidiary
Guaranty and the Security Documents.
"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.
"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 a pledge
agreement substantially in the form of Exhibit F hereto between the
Canadian Borrower and the Canadian Administrative Agent, as the same
shall be modified and supplemented and in effect from time to time.
"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.
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"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 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.
"CHASE" shall mean The Chase Manhattan Bank and its
successors.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
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"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 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$-Canadian
Commitments, the Multi-Currency Commitments and, for all purposes other
than Sections 2, 3, 4, 5 and 6 hereof, the Canadian Commitments.
"COMMITMENT TERMINATION DATE" shall mean January 31, 2005 (or,
if such day is not a Business Day, the next preceding Business Day).
"COMPANY" shall mean (a) until the ▇▇▇▇▇▇ Merger, Iron
Mountain Incorporated, a Delaware corporation, and (b) thereafter, Iron
Mountain Incorporated (formerly ▇▇▇▇▇▇ ▇▇▇▇▇ Corp.), a Pennsylvania
Corporation, as successor to Iron Mountain Incorporated.
"COMPANY GUARANTY" shall mean a guaranty, in substantially the
form of Exhibit C hereto, as said agreement shall be modified and
supplemented and in effect from time
9
to time. Pursuant to the Company Guaranty, the Company shall guaranty
the obligations of the Canadian Borrower and all other Borrowers under
the Basic Documents.
"COMPANY PLEDGE AGREEMENT" shall mean a pledge agreement
substantially in the form of Exhibit D hereto between the Company and
the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"CONSOLIDATED NET TANGIBLE ASSETS" shall mean at any date the
assets of the Company and its Subsidiaries determined on such date on a
consolidated basis, LESS goodwill and other intangible assets.
"CONTROLLED GROUP" shall mean all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company,
are treated as a single employer under Section 414 of the Code.
"CURRENCY EXCHANGE AGREEMENT" shall mean a currency exchange
agreement or similar arrangement between the Company and one or more of
the Lenders.
"C$ 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 or Canadian Dollars,
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 or Canadian Dollars
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.
"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 losses 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
10
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 (i) the ▇▇▇▇▇▇ Merger
and (ii) 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 7.02 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 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.
11
"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 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 London interbank market of deposits in Dollars, Canadian Dollars
or euros 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 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.
"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.
12
"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.
"EXISTING LETTERS OF CREDIT" shall mean, collectively, all
letters of credit identified on Schedule IV hereto and outstanding on
the Effective Date.
13
"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 (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
14
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;
(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; and
(vii) indebtedness of others of the type described in
clauses (i) through (v) above Guaranteed by 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.
15
"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); and
(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.
"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 Chase 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, Chase and the
Company.
16
"LENDERS" shall mean the US$ Lenders, the US$-Canadian
Lenders, the Multi-Currency Lenders 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.
"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 of the Company
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, 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 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.
"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 $500,000,000 and which has (or
which is a Subsidiary of a bank holding company which has)
publicly traded debt securities rated A or higher by Standard
& Poor's Ratings Services or A-2 or higher by ▇▇▇▇▇'▇
Investors Service, Inc.;
17
(ii) repurchase obligations with a term of not more
than seven days for underlying securities of the types
described in clause (i) above entered into with (x) any Lender
or (y) any bank or trust company meeting the qualifications
specified in clause (i)(Y) above;
(iii) obligations issued or guaranteed by the United
States of America, with maturities not more than one year
after the date of issue;
(iv) commercial paper with maturities of not more
than 90 days and a published rating of not less than A-2 and
P-2 (or the equivalent rating); and
(v) investments in money market funds substantially
all of whose assets are comprised of securities and other
obligations of the types described in clauses (i) through (iv)
above.
"LOANS" shall mean the US$ Loans, the US$-Canadian Loans, the
Multi-Currency Loans and, for all purposes other than Sections 3, 4, 5
and 6 hereof, the C$ Loans.
"MAJORITY LENDERS" shall mean Lenders having at least 51% of
the aggregate amount of the Commitments (or, if the Commitments shall
have terminated, the aggregate unpaid principal amount of 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 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.
"MULTI-CURRENCY" shall mean each of Pounds Sterling, euros or
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 and may be
increased from time to time pursuant to Section 12.11). The original
aggregate amount of the Multi-Currency Commitments is $100,000,000.
"MULTI-CURRENCY LOAN" shall have the meaning assigned to such
term in Section 2.01.
18
"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 Chase.
"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 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 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.
19
"1996 SENIOR SUBORDINATED DEBT" shall mean the Indebtedness of
the Company in respect of the 10-1/8% Senior Subordinated Notes of the
Company due October 1, 2006 issued pursuant to the 1996 Senior
Subordinated Debt Indenture.
"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.
"1996 SENIOR SUBORDINATED DEBT INDENTURE" shall mean the
Indenture dated as of October 1, 1996 among the Company and First Bank
National Association, as Trustee, as the same may be amended or
modified, without prejudice to the provisions of Section 9.19 hereof.
"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;
20
(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;
(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
21
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 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.
"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.
"▇▇▇▇▇▇" shall have the meaning assigned to such term in the
Recitals.
"▇▇▇▇▇▇ MERGER" shall have the meaning assigned to such term
in the Recitals.
"▇▇▇▇▇▇ 1996 SENIOR SUBORDINATED NOTES" shall mean the 11-1/8%
Senior Subordinated Notes due 2006 of ▇▇▇▇▇▇ in an aggregate original
principal amount of US$200,000,000 issued pursuant to the ▇▇▇▇▇▇ 1996
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.
"▇▇▇▇▇▇ 1997 SENIOR SUBORDINATED NOTES" shall mean the 9-1/8%
Senior Subordinated Notes due 2007 of ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇ Canada Company 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.
"▇▇▇▇▇▇ 1996 SENIOR SUBORDINATED NOTES INDENTURE": the Senior
Subordinated Notes Indenture, dated as of July 15, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as trustee, as amended,
supplemented or otherwise modified from time to time in accordance with
Section 9.19 hereof.
"▇▇▇▇▇▇ 1997 SENIOR SUBORDINATED NOTES INDENTURE": the Senior
Subordinated Notes Indenture, dated as of July 7, 1997 between ▇▇▇▇▇▇
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,
▇▇▇▇▇▇ 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.
22
"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 The Chase Manhattan Bank as its
prime rate in effect at its principal office in New York City; 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 Chase and such 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.
"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
23
(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 then outstanding to reimburse amounts paid
by the Issuing Bank 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 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 4 I 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.
24
"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 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.
"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 1996
Senior Subordinated Debt, the 1997 Senior Subordinated Debt, the 1999
Senior Subordinated Debt, the ▇▇▇▇▇▇ 1996 Senior Subordinated Notes,
the ▇▇▇▇▇▇ 1997 Senior Subordinated Notes and the ▇▇▇▇▇▇ 1998 Senior
Notes.
25
"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.
"SENIOR SUBORDINATED DEBT INDENTURES" shall mean,
collectively, the 1996 Senior Subordinated Debt Indenture, the 1997
Senior Subordinated Debt Indenture , the 1999 Senior Subordinated
Indenture, the ▇▇▇▇▇▇ 1996 Senior Subordinated Notes Indenture, the
▇▇▇▇▇▇ 1997 Senior Subordinated Notes Indenture and the ▇▇▇▇▇▇ 1998
Senior Notes Indenture.
"SIGNING DATE" shall have the meaning assigned to such term in
Section 7.01.
"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
Chase 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
26
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.
"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, in
substantially the form of Exhibit B hereto, between a Subsidiary and
the Administrative Agent, as said agreement shall be modified and
supplemented and in effect from time to time. Pursuant to the
Subsidiary Guaranty, the Subsidiary Guarantors guarantee the
obligations of the Company under the Basic Documents and any Hedging
Agreements with any Lender or any Affiliate thereof.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean a pledge agreement
substantially in the form of Exhibit E hereto between the Subsidiary
Guarantors and the Administrative Agent, as the same shall be modified
and supplemented and in effect from time to time.
"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.
"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.
"TYPE" shall have the meaning assigned to such term in Section
1.03 hereof.
27
"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 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 from time to time pursuant
to Section 2.02 or 3.02 hereof and may be increased from time to time
pursuant to Section 12.11). The original aggregate amount of the US$
Commitments is $250,000,000.
"US$ 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 and
may be increased from time to time pursuant to Section 12.11). 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$-Canadian Lenders at such
time.
28
"US$-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.
1.2 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 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.
1.3 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.
2.1 US$ LOANS; US$-CANADIAN LOANS; MULTI-CURRENCY LOANS; C$
LOANS. Subject to the terms and conditions of this Agreement, (i) each US$
Lender severally agrees to 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, together with the
aggregate amount
29
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$-Canadian Lender severally agrees to make loans to the
Borrowers in Dollars or Canadian Dollars ("US$-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, exceed
the aggregate amount of the US$-Canadian Commitments as in effect from time to
time, (iii) each Multi-Currency Lender severally agrees to make loans to the
Borrowers in any Multi-Currency ("MULTI-CURRENCY LOANS") during the Commitment
Period in an aggregate principal amount at any one time outstanding up to but
not exceeding the amount of the Multi-Currency Commitment of such Multi-Currency
Lender as in effect from time to time, PROVIDED that in no event shall the
aggregate outstanding principal amount of all Multi-Currency Loans, together
with the aggregate amount of all Letter of Credit Liabilities under the
Multi-Currency Commitments outstanding, exceed the aggregate amount of the
Multi-Currency Commitments as in effect from time to time and (iv) each Canadian
Lender severally agrees to make C$ Loans to the Canadian Borrower in Canadian
Dollars during the Commitment Period in accordance with the terms and provisions
of Annex A hereto. Subject to the terms and conditions of this Agreement, during
such period the Borrowers may borrow, repay and reborrow the US$ Loans, the
US$-Canadian Loans and the Dollar-denominated Multi-Currency Loans by means of
ABR Loans and Eurocurrency Loans and may convert such Loans of one Type into
Loans of the other Type (as provided in Section 3.02(a) hereof) or continue
Eurocurrency Loans for subsequent Interest Periods. Unless otherwise provided
herein, all Multi-Currency Loans other than Dollar-denominated Multi-Currency
Loans shall be made, maintained and continued as Eurocurrency Loans.
2.2 REDUCTIONS OF COMMITMENTS.
(a MANDATORY. The US$ 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 (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$-Canadian
Commitments and Multi-Currency Commitments once terminated or reduced may not be
reinstated.
30
2.3 FEES. The Company shall pay to the Administrative Agent
for the account of each US$ 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
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 Commitments are terminated
and the Commitment Termination Date. The Company shall pay to Chase 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.
2.4 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.
2.5 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.
2.6 NOTES. The Loans made by each Lender under its US$
Commitment, US$-Canadian Commitment or Multi-Currency Commitment shall be
evidenced by a single promissory note of the relevant Borrower (each, a "Note")
in substantially the form of Exhibit A hereto, dated the Effective Date, payable
to such Lender in a principal amount equal to such Commitment as in effect on
the Effective Date and otherwise duly completed. Each Lender is hereby
authorized by the Company to endorse on the schedule (or a continuation thereof)
attached to each Note of such Lender, to the extent applicable, the date, amount
and Type of and the Interest Period (if any) for each Loan made by such Lender
to any Borrower under the relevant Commitment, and the date and amount of each
payment or prepayment of principal of such Loan received by such Lender,
provided that any failure by such Lender to make any such
31
endorsement shall not affect the obligations of the relevant Borrower under such
Note or hereunder in respect of such Loan.
2.7 USE OF PROCEEDS. The proceeds of the Loans shall be used
for the general corporate purposes of the Company and its Subsidiaries,
including, without limitation, the making of Permitted Acquisitions and capital
expenditures and the refinancing of existing Indebtedness of the Company, ▇▇▇▇▇▇
and their Subsidiaries. Neither the Administrative Agent nor any Lender shall
have any responsibility as to the use of any of the proceeds of any of the Loans
or Letters of Credit.
2.8 LETTERS OF CREDIT. Subject to the terms and conditions of
this Agreement, the US$ 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, by 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 exceed $45,000,000 and (iii) the expiration date of
any Letter of Credit extend beyond the earlier of the Commitment Termination
Date and the date one year following the issuance of such Letter of Credit
(provided that any Letter of Credit with a one-year tenor may provide for the
renewal thereof for additional one-year periods, which periods shall in any
event not extend beyond the Commitment Termination Date). On the Effective Date,
all Existing Letters of Credit shall automatically, without any action on the
part of any Person, be deemed to be Letters of Credit issued and outstanding
hereunder (with the Existing Letters of Credit denominated in Dollars being
deemed to be issued under the US$ 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 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 account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of
Credit (including the beneficiary thereof), the nature of the
transactions or obligations proposed to be supported thereby and
whether such Letter of Credit is to be issued under the US$ Commitments
or the Multi-Currency Commitments. 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
shall advise the Issuing Bank of the contents thereof.
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(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) 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 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 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 for account of the Issuing Bank at an account in
New York, New York specified by the Administrative Agent 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 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
33
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 for account of the Issuing Bank, for so long as
such default shall continue the Administrative Agent may at the
request of the Issuing Bank withhold from any payments received by the
Administrative Agent 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, 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 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 Issuing Bank, each Lender shall, upon the request of the Issuing
Bank (through the Administrative Agent), repay to the Issuing Bank
(through the Administrative Agent) 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 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
34
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 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) 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 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) 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 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
35
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) and the Administrative Agent from and against any and all claims
and damages, losses, liabilities, costs or expenses that such Lender or the
Administrative Agent may incur (or that may be claimed against such Lender or
the 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 Issuing Bank under any Letter of Credit; PROVIDED that the Company shall not
be required to indemnify any Lender or the 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 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
other obligations of any Borrower, any Lender or the Administrative Agent under
this Agreement.
2.9 CURRENCY FLUCTUATIONS, ETC. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to 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 (ii) give
notice thereof to the Multi-Currency Lenders which have committed to make
Multi-Currency Loans in each such Multi-Currency 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 Administrative Agent shall (i) determine 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 (ii) notify the
Multi-Currency Lenders 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
36
Administrative 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 Administrative Agent immediately available funds in an amount equal to
such difference, which funds shall be retained by the Administrative 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.
Section 3. BORROWINGS, CONVERSIONS AND PREPAYMENTS.
3.1 PROCEDURE FOR US$ LOAN BORROWING, US$-CANADIAN LOAN
BORROWING AND MULTI-CURRENCY Borrowing. (a) Each Borrower shall give the
Administrative Agent notice of each US$ Loan, US$-Canadian Loan and
Dollar-denominated Multicurrency Loan to be made hereunder as provided in
Section 5.05 hereof. Not later than 12:00 p.m. New York time on the date
specified for each such borrowing hereunder, each US$ Lender, US$-Canadian
Lender or Multicurrency Lender shall make available the amount of the US$ Loan,
US$-Canadian Loan or Dollar-denominated Multicurrency 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 Chase in
New York, New York.
(b) Each Borrower shall give the Administrative Agent and the
Multi-Currency Payment Agent notice of each Multicurrency Loan denominated in a
currency other than Dollars to be made hereunder as provided in Section 5.05
hereof. Not later than 11:00 a.m. London time on the date specified for each
such borrowing hereunder, each Multicurrency Lender shall make available the
amount of the Multicurrency Loan 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 and maintained with Chase in London.
3.2 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: (i)
the relevant Borrower shall give the Administrative
37
Agent, and, if applicable, the Multi-Currency Payment Agent, notice of each such
prepayment as provided in Section 5.05 hereof and (ii) except to the extent
required pursuant to Section 3.02(b) hereof, Eurocurrency Loans in Dollars may
be prepaid or converted only on the last day of an Interest Period for such
Loans.
(b MANDATORY PREPAYMENTS. 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 (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 Commitments shall not be subject to automatic
reduction.
(c) COMMITMENT REDUCTIONS. 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 Commitments shall be reduced
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 $15,000,000
in the then-current fiscal year of the Company; PROVIDED, that notwithstanding
the foregoing, (i) the aggregate Net Cash Proceeds from dispositions of assets
and Recovery Events that may be excluded from the foregoing requirement for a
Reinvestment Event shall not exceed 10% of the Consolidated Net Tangible Assets
of the Company as at the end of the immediately preceding fiscal year and (ii)
on each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied toward the reduction of the Commitments. To the extent that, after
giving effect to such reduction, the aggregate principal amount of the US$ Loans
or the Multi-Currency Loans and the aggregate amount of Letter of Credit
Liabilities under the US$ 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 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 immediately available
funds in an amount equal to the required amount, which funds shall be retained
by the Administrative Agent in the Collateral Account 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.
Section 4. PAYMENTS OF PRINCIPAL AND INTEREST.
38
4.1 REPAYMENT OF LOANS. The Borrowers hereby promise to pay to
the Administrative Agent for the account of each Lender the entire outstanding
principal amount of such Lender's Loans, and each Loan shall mature, on the
Commitment Termination Date.
4.02 INTEREST. Each Borrower will pay to the Administrative
Agent or, in the case of Multi-Currency Loans denominated in a currency other
than Dollars, 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
(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
denominated in any currency other than Dollars, 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 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.
39
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 Agent or, in the case of Multi-Currency Loans denominated in any
currency other than Dollars, 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.
5.1 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$-Canadian
Commitments or the Multi-Currency Commitments and under the corresponding Notes
shall (except in the case of payments of principal and interest on
Multi-Currency Loans not denominated in Dollars or Letter of Credit Liabilities
not denominated in Dollars incurred under the Multi-Currency Commitments) be
made in Dollars, in immediately available funds, to the Administrative Agent at
an account in New York, New York specified by the Administrative Agent, not
later than 11:00 a.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day). The Administrative
Agent, or any Lender for whose account any such payment is made, may (but shall
not be obligated to) debit the amount of any such payment which is not made by
such time to any ordinary deposit account of such Borrower with the
Administrative Agent or such Lender, as the case may be. The relevant Borrower
shall, at the time of making each such payment, specify to the Administrative
Agent the Loans or other amounts payable by such Borrower hereunder to which
such payment is to be applied (and in the event that it fails to so specify, or
if an Event of Default has occurred and is continuing, the Administrative Agent
may apply such payment for the benefit of the Lenders as it may elect in its
sole discretion, but subject to the other terms and conditions of this
Agreement, including without limitation, Section
40
5.02 hereof). Each payment received by the Administrative Agent under the US$
Commitments, the US$-Canadian Commitments or the Multi-Currency Commitments or
under any corresponding Note (except in the case of payment of principal and
interest on Multi-Currency Loans not denominated in Dollars or Letter of Credit
Liabilities not denominated in Dollars incurred under the Multi-Currency
Commitments) 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 Multi-Currency Loans denominated in a
currency other than Dollars and Letter of Credit Liabilities denominated in a
currency other than Dollars incurred under the Multi-Currency Commitments and
under corresponding Notes to be made by any Borrower shall be made in such
currency, 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 or counterclaim.
5.2 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
41
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$-Canadian Commitments of the US$-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, in the case of
Multi-Currency Loans denominated in Dollars, to the Administrative Agent, or in
the case of Multi-Currency Loans denominated in a currency other than Dollars,
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$-Canadian Commitments and the Multi-Currency
Commitments.
5.3 COMPUTATIONS. Interest and fees shall be computed on the
basis of a year of 360 days (or 365 or 366 days, as the case may be, in the case
of (a) ABR Loans the interest rate payable on which is then based on the Prime
Rate and (b) Multi-Currency Loans denominated in Pounds Sterling) and actual
days elapsed (including the first day but excluding the last day) occurring in
the period for which payable.
42
5.4 MINIMUM AND MAXIMUM AMOUNTS; TYPES.
(a US$ LOANS; US$-CANADIAN LOANS; AND DOLLAR-DENOMINATED
MULTI-CURRENCY LOANS. Except for prepayments made pursuant to Section 3.02(b)
hereof, each borrowing, conversion and prepayment of principal of US$ Loans,
US$-Canadian Loans and Dollar-denominated Multi-Currency 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. Each
Multi-Currency Loan other than a Dollar-denominated Multi-Currency 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 shall be in an aggregate principal
amount which is an integral multiple of 100,000 units of the relevant
Multi-Currency and equal to or greater than an amount the Dollar Equivalent of
which is $1,000,000.
5.5 CERTAIN NOTICES.
(a US$ LOANS, US$-CANADIAN LOANS AND DOLLAR-DENOMINATED
MULTI-CURRENCY LOANS. Notices to the Administrative Agent of terminations or
reductions of US$ Commitments, US$-Canadian Commitments and Dollar-denominated
Multi-Currency Commitments and of borrowings, conversions and prepayments of US$
Loans, US$-Canadian Loans, and Dollar-denominated Multi-Currency 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 1:00 p.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
----------------------------------------------------------- --------------------------------------------------------
Termination or reduction of 3
Commitments
----------------------------------------------------------- --------------------------------------------------------
Borrowing or prepayment of 1
ABR Loans
----------------------------------------------------------- --------------------------------------------------------
Borrowing or prepayment of, 3
conversion of or into, or
duration of Interest Period
43
----------------------------------------------------------- --------------------------------------------------------
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) 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.
(b NON-DOLLAR-DENOMINATED MULTI-CURRENCY LOANS. Notices to the
Administrative Agent and the Multi-Currency Payment Agent of terminations or
reductions of Multi-Currency Commitments, of borrowings and prepayments of
Multi-Currency Loans denominated in a currency other than Dollars and of the
duration of Interest Periods shall be irrevocable and shall be effective only if
received by the Administrative 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 Non-Dollar Denominated 3
Multi-Currency 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.
44
The Administrative Agent shall promptly notify the affected Lenders of the
contents of each such notice.
5.6 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 or
Multi-Currency 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.
5.7 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 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, 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
45
otherwise, it shall promptly notify the Administrative Agent 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.
5.8 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
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 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, in each case 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 that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
46
(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 Foreign Subsidiary 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 Foreign Subsidiary 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 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 Foreign Subsidiary Borrower
with respect to such Non-Excluded Taxes pursuant to this paragraph.
5.9 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
47
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 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, 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, 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, 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, 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
or the Canadian Administrative Agent, as the case may be, in the specified
currency, such Lender or the Administrative 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.
6.1 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:
(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 any of such Loans 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
48
(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).
(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
49
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.
6.2 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.
6.3 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).
6.4 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.
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6.5 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 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.
6.6 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 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.
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6.7 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 of such Lender. Any such Lender
shall be obligated to sell the 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
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.
6.8 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.
6.9 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
52
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.
7.1 SIGNING DATE. This Agreement shall become effective on the
date (the "SIGNING DATE") on which the Administrative Agent shall notify the
Company and the Lenders that it has received the executed counterparts of this
Agreement in form and substance satisfactory to the Administrative Agent signed
by each of the Company, the Canadian Borrower and the Lenders (provided that
such Credit Agreement shall not become effective unless the Signing Date occurs
on or before January 27, 2000).
7.2 EFFECTIVE DATE. The Commitments provided hereunder shall
become available on the date (the "EFFECTIVE DATE") on which the Administrative
Agent shall notify the Company and the Lenders that it has received 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 such funding shall not take place unless the
Effective Date occurs on or before February 15, 2000):
(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).
(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 7.03 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Scales, special Canadian
counsel to the Canadian Borrower, substantially in the form of Exhibit
G-2 hereto and covering such
53
other matters as the Administrative Agent, the Canadian 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) GUARANTIES. The Company Guaranty and the Subsidiary
Guaranty, duly executed and delivered by the Company or each Subsidiary
Guarantor, as the case may be, and the Administrative Agent.
(h) SECURITY DOCUMENTS.
(i) The Company Pledge Agreement, duly executed and
delivered by the Company and the Administrative Agent,
together with the certificates identified in Annex I thereto,
accompanied by undated stock powers executed in blank.
(ii) The Canadian Borrower Pledge Agreement duly
executed and delivered by the Canadian Borrower and the
Administrative Agent, together with the certificates
identified in Annex I thereto, accompanied by undated stock
powers executed in blank.
(iii) The Subsidiary Pledge Agreement duly executed
and delivered by each Subsidiary Guarantor and the
Administrative Agent, in each case together with the
certificates identified in Annex I thereto under the names of
the respective Subsidiary Guarantor, in each case accompanied
by undated stock powers executed in blank.
In addition, each of the Obligors shall have taken such other action
(including, without limitation, delivering to the Administrative Agent,
for filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Administrative Agent shall
have requested in order to perfect the security interests created
pursuant to the Company Pledge Agreement, the Canadian Borrower Pledge
Agreement and the Subsidiary Pledge Agreement.
(i) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence that the
principal of and interest on, and all other amounts owing in respect
of, the Indebtedness (including, without limitation, any contingent or
other amounts payable in respect of letters of credit, but excluding
Existing Letters of Credit) indicated on Schedule III hereto that is to
be repaid on the Effective Date shall have been (or shall be
simultaneously) paid in full, that any commitments to extend credit
under the agreements or instruments relating to such
54
Indebtedness shall have been canceled or terminated and all Liens
securing, any such Indebtedness shall have been released (or
arrangements for such release satisfactory to the Majority Lenders
shall have been made); in addition, the Administrative Agent shall
have received from any Person holding any Lien securing any such
Indebtedness, such Uniform Commercial Code termination statements,
mortgage releases and other instruments, in each case in proper form
for recording, as the Administrative Agent shall have requested to
release and terminate of record the Liens securing such Indebtedness
(or arrangements for such release and termination satisfactory to the
Majority Lenders shall have been made).
(j) MERGER. The ▇▇▇▇▇▇ Merger shall have been consummated
substantially in accordance with the terms of the Agreement and Plan of
Merger, dated as of October 20, 1999 between the Company and ▇▇▇▇▇▇,
and in a manner not materially adverse to the Lenders.
(k) ACCRUED FEES. Evidence that all fees (including without
limitation commitment fees) and other costs and expenses under the
Credit Agreement accrued to the Effective Date shall have been paid in
full.
(l) 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, and
from Fraser ▇▇▇▇▇▇, Canadian counsel to the Canadian 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).
(m) OTHER DOCUMENTS. Such other documents as the
Administrative Agent or any Lender or special New York counsel to the
Administrative Agent or Canadian Counsel to the Administrative Agent
may reasonably request.
(n) DESIGNATION OF INDEBTEDNESS AS "SENIOR DEBT" OR "SENIOR
INDEBTEDNESS" UNDER THE SENIOR SUBORDINATED DEBT DOCUMENTS. Evidence
that the Indebtededness 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 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.
7.3 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
55
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).
7.4 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.
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:
8.1 CORPORATE EXISTENCE. Each of the Company and its
Subsidiaries: (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; (b) has all
requisite corporate 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
56
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify would have a Material Adverse Effect.
8.2 INFORMATION.
(a) The Company has heretofore furnished to each of the
Lenders consolidated balance sheets of the Company and its Subsidiaries as at
December 31, 1997 and December 31, 1998 and the related consolidated statements
of income, retained earnings and cash flows of the Company and its Subsidiaries
for the fiscal years respectively ended on said dates, with the opinion thereon
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., and the unaudited consolidated balance sheets of the
Company and its Subsidiaries as at March 31, 1999, June 30, 1999 and September
30, 1999 and the related consolidated statements of income, retained earnings
and cash flows of the Company and its Subsidiaries for the three, six and nine
month periods respectively ended on such dates. 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 and three, six month and nine
month periods ended on said dates (subject, in the case of such financial
statements as at March 31, 1999, June 30, 1999 and September 30, 1999, to normal
year-end audit adjustments), all in accordance with generally accepted
accounting principles and practices applied on a consistent basis.
(b) The Company has heretofore furnished to each of the
Lenders the PRO FORMA balance sheets referred to in the proxy
statement/prospectus dated December 15, 1999.
(c) 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 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.
57
(d) Since December 31, 1998, 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.
8.3 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.
8.4 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 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.
8.5 CORPORATE ACTION. Each of the Company, the Canadian
Borrower and the Subsidiary Guarantors has all necessary corporate 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 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, insolvency, reorganization or moratorium or other
similar laws relating to the enforcement of creditors' rights generally and by
general equitable principles.
8.6 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.
58
8.7 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.
8.8 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.
8.9 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 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, 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 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).
59
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 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 Signing Date,
"Designated Senior Debt", under and as defined in, and for all purposes of,
Indebtedness of
60
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:
9.1 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall deliver:
(a) to the Administrative Agent and each Lender that has
requested the same, 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 each Lender that has
requested the same, 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 of footnotes) consistently applied as at the end of,
and for, such fiscal quarter (subject to normal year-end audit
adjustments);
(c) to each of the Lenders, 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
61
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 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 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 each of the Lenders, 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 each of the Lenders, 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 each of the Lenders, promptly after management of the
Company knows or has 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 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 and 9.19 hereof as of the end of the respective
fiscal quarter or fiscal year.
9.2 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,
62
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.
9.3 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.
(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.
9.4 MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Other than
in connection with the ▇▇▇▇▇▇ Merger, the Company will preserve and maintain,
and will cause each of its Subsidiaries to preserve and maintain, its corporate
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
63
is a Subsidiary Guarantor) or (ii) 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.
9.5 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 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.
9.6 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.
9.7 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 individually exceed $1,000,000 or in the aggregate
exceed $3,000,000 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.
9.8 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
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
64
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); and (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 (PROVIDED, that the aggregate amount
of all such Synthetic Lease Obligations permitted under this clause (vi) shall
not at any time exceed $152,500,000 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).
9.9 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 Effective Date
through June 30, 2001 5.75 to 1
----------------------------------------------------- ---------------------------
From July 1, 2001 through June 30, 2002 5.50 to 1
----------------------------------------------------- ---------------------------
From July 1, 2002 through June 30, 2003 5.25 to 1
----------------------------------------------------- ---------------------------
From July 1, 2003 and at all times thereafter 5.00 to 1
----------------------------------------------------- ---------------------------
(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 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 3.50 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:
65
------------------------------------------------ --------------------------------
Period Interest Coverage Ratio
------------------------------------------------ --------------------------------
From the Effective Date through June 30, 2001
1.75 to 1
------------------------------------------------ --------------------------------
From July 1, 2001 through June 30, 2002 2.00 to 1
------------------------------------------------ --------------------------------
From July 1, 2002 through June 30, 2003 2.25 to 1
------------------------------------------------ --------------------------------
From July 1, 2003 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.
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, 2001 1.00 to 1
-------------------------------------------------------------------- ----------------------
From July 1, 2001 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.
66
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 (other than the
▇▇▇▇▇▇ Merger), 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 Required
Lenders, exceed 25% of Consolidated Net Tangible Assets at the end of
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 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.
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
67
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 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 $3,000,000 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 obliger (and not as a Guarantor) or Capital Stock of
such Excluded Subsidiary; and (viii) Liens on property leased pursuant to the
Synthetic Lease Obligations permitted by clause (vi) of 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);
68
(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 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 $350,000 in the aggregate during any fiscal year (and in any
event not to exceed $750,000 at any one time outstanding) 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 or
Affiliates 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 $20,000,000;
(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;
69
(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; and
(xii) Investments constituted by Hedging Agreements permitted
under Section 9.25 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 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
70
(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 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 benefitted.
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 ▇▇▇▇▇▇ ▇▇▇▇▇ 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) after giving effect to each 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 thereof, 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.
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9.18 LINES OF BUSINESSES. Neither the Company nor any of its
Subsidiaries shall engage to any substantial extent in any business activity
other than the records and information management business or activities related
thereto.
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 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 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
72
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
(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) to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement (other than the Senior Subordinated
Debt Indentures) 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
73
(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 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 Subsdiary 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 Guaranties permitted under clause (viii) of the definition of
"Permitted Indebtedness" in Section 1.01 hereof) made after the date hereof is
greater than $150,000,000 (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.
10.1 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
74
maturity of any such Indebtedness of the Company or any of its
Subsidiaries (other than 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
75
(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
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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 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 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, 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.
10.2 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 Lenders agree that the
outstanding 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 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 Lender shall acquire
participations in each then outstanding Loan and Letter of Credit Liability in
proportion to the aggregate Commitments of such Lender to the aggregate
Commitments of all the Lenders, in each case determined immediately prior to the
Acceleration Date (such Lender's "PROPORTION"). On or promptly following the
Acceleration Date, the Administrative Agent shall determine for each Lender the
difference between (a) such Lender's Proportion of the aggregate principal
amount of the outstanding 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 Lender's actual outstanding Loans and
Reimbursement Obligations on the Acceleration Date after giving effect to the
automatic conversions to Dollars. Each 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 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
77
Reimbursement Obligation arises by virtue of a draw on a Letter of Credit, each
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 Lender shall fail to pay any amount required to be paid pursuant
to this Section 10.02 on the due date therefor, such Lender shall pay interest
to the Administrative Agent for ratable distribution to the 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 Lender shall fail to make such
payment 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
ABR Rate.
Section 11. The Administrative Agent.
11.1 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.
11.2 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 Majority Lenders
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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.
11.3 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.
11.4 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.
11.5 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 documents, PROVIDED,
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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.
11.6 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.
11.7 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.
11.8 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
80
Lender or (ii) if no Lender has accepted such appointment within 30 days after
the Notice Date, a 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.
11.9 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.
Section 12. MISCELLANEOUS
12.1 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.
12.2 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 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
81
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.
12.3 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.
12.4 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) or 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.
12.5 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 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
82
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 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, or (v) 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.
12.6 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, (ii) to any other Lender or (iii) with the consent of the
Administrative Agent, of the Issuing Bank and of the Company, which consents
shall not be unreasonably withheld or delayed, to any other bank or financial
institution (provided that any such partial assignment shall not, unless the
Company and the Administrative Agent otherwise agree, be less than $5,000,000,
or if the remainder of the Lender's Commitment 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 $2,500, such
assignee shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would have if it were a Lender
hereunder and the assignor shall be, to the extent of such assignment (unless
otherwise provided therein), released from its obligations under this Agreement.
Each Lender may (without the consent of any other party to this Agreement) sell
participations in all or any part of any Loan or Loans made by it to another
bank or other entity, in which event the participant shall not have any rights
under this Agreement (except as provided in the next succeeding sentence
hereof), or in the case of a Loan, such Lender's Note or C$ 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) or (v) 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
83
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 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 such Loans and Notes shall be fully transferrable
as provided therein. No such assignment pursuant to the preceding sentence shall
release the assigning Lender from its obligations hereunder.
12.7 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
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.
12.8 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.
84
12.9 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 NEW LENDERS; COMMITMENT INCREASES. (a) With the consent
of the Company and the Administrative Agent (which, in the case of the
Administrative Agent, shall not be unreasonably withheld), at any time when no
Event of Default shall have occurred and be continuing, (i) one or more
additional banks or other financial institutions may become a party to this
Agreement and have a Commitment or Commitments hereunder by executing a
supplement hereto, in form and substance satisfactory to such bank or other
financial institution, the Company and the Administrative Agent, whereupon such
bank or other financial institution (a "NEW LENDER") shall become a Lender for
all purposes hereof and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement and (ii) any
Lender may increase the amount of any of its Commitments by executing a
supplement hereto, in form and substance satisfactory to such Lender, the
Company and the Administrative Agent, whereupon such Lender shall be bound by
and entitled to the benefits of this Agreement with respect to the full amount
of its Commitment as so increased. In no event (x) may the aggregate Commitments
be increased above $500,000,000 pursuant to any supplement described in this
Section 12.11(a) and (y) shall the aggregate Commitments of any Lender be
reduced as a result of any such supplement.
(b) If on the date upon which a bank or other financial
institution becomes a New Lender or upon which a Lender's Commitment is changed
pursuant to Section 12.11(a), any Loans are then outstanding, the Company shall
borrow Loans from such Lender in such amount and with such Interest Period such
that, after giving effect thereto, the quotient of (x) the Loan of such Lender
of each Type and, in the case of Eurocurrency Loans, with each Interest Period
and (y) such Lender's Commitment is equal to the corresponding comparable
quotient of each other Lender. Any Eurocurrency Loan borrowed pursuant to the
preceding sentence shall bear interest at a rate equal to the respective
interest rates then applicable to the Eurocurrency Loans of the other Lenders or
such other rate as may be agreed upon by the Company and such Lender.
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
85
AGREEMENT 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 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 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.
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: V.P., Treasurer
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Executive Vice President
and Chief Financial Officer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN BORROWER:
▇▇▇▇▇▇ ▇▇▇▇▇ CANADA COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇
-----------------------
Title: V.P., Treasurer
Address for Notices:
▇▇▇▇▇▇ ▇▇▇▇▇ Canada Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
Iron Mountain Incorporated.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Executive Vice President
and Chief Financial Officer
US$ LENDERS
THE CHASE MANHATTAN BANK
By /s/
-----------------------
Title:
US$ LENDERS
CIBC INC.
By /s/
-----------------------
Title:
US$ LENDERS
ALLFIRST BANK
By /s/
-----------------------
Title:
US$ LENDERS
THE BANK OF NEW YORK
By /s/
-----------------------
Title:
US$ LENDERS
THE BANK OF NOVA SCOTIA
By /s/
--------------------------
Title:
US$ LENDERS
BANK ONE, NA (MAIN OFFICE CHICAGO)
By /s/
--------------------------
Title:
US$ LENDERS
CREDIT LYONNAIS NEW YORK BRANCH
By /s/
--------------------------
Title:
US$ LENDERS
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/
--------------------------
Title:
By /s/
--------------------------
Title:
US$ LENDERS
ERSTE BANK NEW YORK
By /s/
--------------------------
Title:
By /s/
--------------------------
Title:
US$ LENDERS
FLEET NATIONAL BANK
By /s/
--------------------------
Title:
US$ LENDERS
FIRST UNION NATIONAL BANK
By /s/
--------------------------
Title:
US$ LENDERS
HSBC BANK USA
By /s/
--------------------------
Title:
US$ LENDERS
UNION BANK OF CALIFORNIA, N.A.
By /s/
--------------------------
Title:
US$ LENDERS
CITIZENS BANK OF MASSACHUSETTS
AS SUCCESSOR TO US TRUST
By /s/
--------------------------
Title:
US$ LENDERS
WACHOVIA BANK, N.A.
By /s/
--------------------------
Title:
US$-CANADIAN LENDERS
THE CHASE MANHATTAN BANK
By /s/
--------------------------
Title:
US$-CANADIAN LENDERS
CIBC INC.
By /s/
--------------------------
Title:
US$-CANADIAN LENDERS
THE BANK OF NOVA SCOTIA
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
THE CHASE MANHATTAN BANK
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
CIBC INC.
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
ALLFIRST BANK
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
THE BANK OF NEW YORK
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
THE BANK OF NOVA SCOTIA
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
BANK ONE, NA (MAIN OFFICE CHICAGO)
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
CREDIT LYONNAIS NEW YORK BRANCH
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/
--------------------------
Title:
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
ERSTE BANK NEW YORK
By /s/
--------------------------
Title:
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
FLEET NATIONAL BANK
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
FIRST UNION NATIONAL BANK
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
HSBC BANK USA
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
UNION BANK OF CALIFORNIA, N.A.
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
CITIZENS BANK OF MASSACHUSETTS
AS SUCCESSOR TO US TRUST
By /s/
--------------------------
Title:
MULTI-CURRENCY LENDERS
WACHOVIA BANK, N.A.
By /s/
--------------------------
Title:
CANADIAN LENDERS
THE CHASE MANHATTAN BANK OF CANADA
By /s/
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Title:
CANADIAN LENDERS
CANADIAN IMPERIAL BANK OF COMMERCE
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Title:
CANADIAN LENDERS
THE BANK OF NOVA SCOTIA
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Title:
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
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Title:
ADDRESS FOR NOTICES GIVEN PURSUANT
TO SECTION 5.05:
The Chase Manhattan Bank
Loan and Agency Group
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS FOR OTHER NOTICES:
The Chase Manhattan Bank
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
CANADIAN ADMINISTRATIVE AGENT
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as Canadian Administrative Agent
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Title:
ADDRESS FOR FUNDING NOTICES:
The Chase Manhattan Bank of Canada
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Attention: ▇▇▇▇▇▇ Staff
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADDRESS FOR NOTICES:
The Chase Manhattan Bank of Canada
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇