1
Exhibit 10.1
[EXECUTION COPY]
CREDIT AGREEMENT
among
WESCO DISTRIBUTION, INC.
as U.S. Borrower
WESCO DISTRIBUTION-CANADA, INC.
as Canadian Borrower
WESCO INTERNATIONAL, INC.
and
CERTAIN AFFILIATES OF THE BORROWERS
as Guarantors
THE LENDERS IDENTIFIED HEREIN
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as U.S. Administrative Agent
and
BANK OF AMERICA CANADA
as Canadian Administrative Agent
DATED AS OF JUNE 29, 1999
-----------------------------------------------------------------------------
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arranger and Co-Book Manager
CHASE SECURITIES INC.
as Co-Lead Arranger and Co-Book Manager
THE CHASE MANHATTAN BANK
as Syndication Agent
and
ABN AMRO BANK N.V.
as Documentation Agent
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.1 Definitions..........................................................................................1
1.2 Computation of Time Periods and Other Definitional Provisions.......................................32
1.3 Accounting Terms....................................................................................32
1.4 Time................................................................................................33
SECTION 2 U.S. CREDIT FACILITIES................................................................................33
2.1 U.S. Revolving Loans................................................................................33
2.2 U.S. Letter of Credit Subfacility...................................................................36
2.3 U.S. Swingline Loans Subfacility....................................................................41
2.4 Continuations and Conversions.......................................................................43
2.5 Minimum Amounts.....................................................................................43
SECTION 3 CANADIAN CREDIT FACILITIES............................................................................44
3.1 Canadian Revolving Loans............................................................................44
3.2 Canadian Letter of Credit Subfacility...............................................................46
3.3 Canadian Swingline Loans Subfacility................................................................52
3.4 Bankers' Acceptances................................................................................53
3.5 Continuations and Conversions.......................................................................57
3.6 Minimum Amounts.....................................................................................58
SECTION 4 GENERAL PROVISIONS APPLICABLE TO LOANS,...............................................................58
BANKERS' ACCEPTANCES AND LETTERS OF CREDIT.......................................................................58
4.1 Interest............................................................................................58
4.2 Place and Manner of Payments........................................................................59
4.3 Voluntary Prepayments...............................................................................60
4.4 Fees................................................................................................60
4.5 Payment in full at Maturity.........................................................................61
4.6 Computations of Interest and Fees...................................................................61
4.7 Pro Rata Treatment..................................................................................62
4.8 Sharing of Payments.................................................................................64
4.9 Capital Adequacy....................................................................................64
4.10 Inability To Determine Interest Rate or Create Bankers' Acceptances................................65
4.11 Illegality.........................................................................................66
4.12 Requirements of Law................................................................................66
4.13 Taxes..............................................................................................67
4.14 Compensation.......................................................................................69
4.15 Evidence of Debt...................................................................................69
4.16 Substitution of Lender; Relocation.................................................................70
4.17 All Borrowers Treated Equally......................................................................71
SECTION 5 GUARANTY..............................................................................................71
5.1 Guaranty of Payment.................................................................................71
5.2 Obligations Unconditional...........................................................................71
5.3 Modifications.......................................................................................72
5.4 Waiver of Rights....................................................................................72
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5.5 Reinstatement.......................................................................................73
5.6 Remedies............................................................................................73
5.7 Limitation of Guaranty..............................................................................73
5.8 Rights of Contribution..............................................................................73
SECTION 6 CONDITIONS PRECEDENT..................................................................................74
6.1 Closing Conditions..................................................................................74
6.2 Conditions to All Extensions of Credit..............................................................78
SECTION 7 REPRESENTATIONS AND WARRANTIES........................................................................79
7.1 Financial Condition.................................................................................79
7.2 No Material Change..................................................................................79
7.3 Organization and Good Standing......................................................................79
7.4 Due Authorization...................................................................................80
7.5 No Conflicts........................................................................................80
7.6 Consents............................................................................................80
7.7 Enforceable Obligations.............................................................................80
7.8 No Default..........................................................................................80
7.9 Ownership.......................................................................................... 81
7.10 Indebtedness.......................................................................................81
7.11 Litigation.........................................................................................81
7.12 Taxes..............................................................................................81
7.13 Compliance with Law................................................................................81
7.14 ERISA..............................................................................................81
7.15 Subsidiaries.......................................................................................82
7.16 Use of Proceeds....................................................................................83
7.17 Government Regulation..............................................................................83
7.18 Environmental Matters..............................................................................84
7.19 Intellectual Property..............................................................................85
7.20 Solvency.......................................................................................... 85
7.21 Investments........................................................................................85
7.22 Location of Collateral.............................................................................86
7.23 Disclosure.........................................................................................86
7.24 Licenses, etc......................................................................................86
7.25 Collateral Documents...............................................................................86
7.26 Burdensome Restrictions............................................................................86
7.27 Year 2000 Compliance...............................................................................86
7.28 Labor Contracts and Disputes.......................................................................87
7.29 Broker's Fees......................................................................................87
SECTION 8 AFFIRMATIVE COVENANTS.................................................................................87
8.1 Information Covenants...............................................................................87
8.2 Financial Covenants.................................................................................90
8.3 Preservation of Existence and Franchises............................................................91
8.4 Books and Records...................................................................................91
8.5 Compliance with Law.................................................................................91
8.6 Payment of Taxes and Other Indebtedness.............................................................91
8.7 Insurance...........................................................................................92
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8.8 Maintenance of Property.............................................................................93
8.9 Performance of Obligations..........................................................................93
8.10 Collateral.........................................................................................93
8.11 Use of Proceeds....................................................................................94
8.12 Audits/Inspections.................................................................................94
8.13 Additional Credit Parties..........................................................................95
SECTION 9 NEGATIVE COVENANTS....................................................................................96
9.1 Indebtedness........................................................................................97
9.2 Liens...............................................................................................99
9.3 Nature of Business..................................................................................99
9.4 Consolidation and Merger............................................................................99
9.5 Sale or Lease of Assets............................................................................100
9.6 Sale Leasebacks....................................................................................100
9.7 Advances, Investments and Loans....................................................................101
9.8 Restricted Payments................................................................................101
9.9 Transactions with Affiliates.......................................................................101
9.10 Fiscal Year; Organizational Documents.............................................................101
9.11 No Limitations....................................................................................101
9.12 No Other Negative Pledges.........................................................................102
9.13 Other Indebtedness................................................................................102
9.14 Limitation on Parent..............................................................................102
9.15 Capital Expenditures..............................................................................103
9.16 Limitation on Ownership of Assets.................................................................103
SECTION 10 EVENTS OF DEFAULT...................................................................................103
10.1 Events of Default.................................................................................103
10.2 Acceleration; Remedies............................................................................106
10.3 Allocation of Payments After Event of Default.....................................................107
10.4 Conversion and Redenomination of Loans; Purchase of Risk Participations...........................108
SECTION 11 AGENCY PROVISIONS...................................................................................109
11.1 Appointment.......................................................................................109
11.2 Delegation of Duties..............................................................................109
11.3 Exculpatory Provisions............................................................................110
11.4 Reliance on Communications........................................................................110
11.5 Notice of Default.................................................................................111
11.6 Non-Reliance on Agents and Other Lenders..........................................................111
11.7 Indemnification...................................................................................111
11.8 Agents in Their Individual Capacity...............................................................112
11.9 Successor Agent...................................................................................112
SECTION 12 MISCELLANEOUS.......................................................................................113
12.1 Notices...........................................................................................113
12.2 Right of Set-Off..................................................................................113
12.3 Benefit of Agreement..............................................................................113
12.4 No Waiver; Remedies Cumulative....................................................................117
12.5 Payment of Expenses; Indemnification..............................................................117
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12.6 Amendments, Waivers and Consents..................................................................118
12.7 Counterparts/Telecopy.............................................................................119
12.8 Headings..........................................................................................119
12.9 Defaulting Lender.................................................................................119
12.10 Survival of Indemnification and Representations and Warranties...................................119
12.11 Governing Law; Jurisdiction......................................................................119
12.12 Waiver of Jury Trial; Waiver of Consequential Damages............................................120
12.13 Severability.....................................................................................120
12.14 Further Assurances...............................................................................120
12.15 Confidentiality..................................................................................121
12.16 Judgment Currency................................................................................121
12.17 Entirety.........................................................................................122
12.18 Binding Effect; Continuing Agreement.............................................................122
12.19 Designated Senior Indebtedness...................................................................123
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SCHEDULES
Schedule 1.1(a) Lenders and Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Permitted Liens
Schedule 7.10 Indebtedness
Schedule 7.11 Litigation
Schedule 7.15 Subsidiaries
Schedule 7.19 Intellectual Property
Schedule 7.21 Investments
Schedule 7.22(a) Personal Property Locations
Schedule 7.22(b) Chief Executive Offices
Schedule 7.28 Labor Contract and Disputes
Schedule 8.7 Insurance
Schedule 12.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(f) Form of U.S. Revolving Note
Exhibit 2.3(b) Form of Swingline Loan Request
Exhibit 2.3(d) Form of U.S. Swingline Note
Exhibit 2.4 Form of Notice of Continuation/Conversion
Exhibit 3.1(e) Form of Canadian Revolving Note
Exhibit 3.3(d) Form of Canadian Swingline Note
Exhibit 3.4(d) Form of Bankers' Acceptance Notice
Exhibit 8.1(c) Form of Officer's Certificate
Exhibit 8.13 Form of Joinder Agreement
Exhibit 12.3(b) Form of Assignment Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
June 29, 1999 among WESCO DISTRIBUTION, INC., a Delaware corporation (the "U.S.
Borrower"), WESCO DISTRIBUTION-CANADA, INC., an Ontario corporation (the
"Canadian Borrower", and together with the U.S. Borrower, the "Borrowers"),
WESCO INTERNATIONAL, INC., a Delaware corporation (the "Parent") and certain
Subsidiaries of the Parent (individually a "Guarantor" and collectively the
"Guarantors"), the Lenders (as defined herein), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as U.S. Administrative Agent and U.S. Swingline Lender,
BANK OF AMERICA CANADA, as Canadian Administrative Agent and Canadian Swingline
Lender, and the Issuing Lenders (as defined herein).
RECITALS
A. The Borrowers have requested that the Lenders provide a senior
secured credit facility consisting of (i) a $365 million revolving facility to
the U.S. Borrower and (ii) a C$50 million revolving facility to the Canadian
Borrower.
B. The Lenders party hereto have agreed to make the requested senior
secured credit facility available to the Borrowers on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acceptance Fee" means, in respect of a particular Bankers'
Acceptance accepted by a Canadian Lender, an amount equal to the
product of (a) the Applicable Percentage for Eurodollar Loans and
Bankers' Acceptances as at the date of acceptance of such Bankers'
Acceptance; (b) the aggregate Face Amount of such Bankers' Acceptance;
and (c) a fraction (i) the numerator of which is the number of days in
the term of such Bankers' Acceptance, and (ii) the denominator of which
is 365 days.
"Acquisition" means the acquisition by any Person of (a) the
Capital Stock of another Person, (b) all or substantially all of the
assets of another Person or (c) all or substantially all of a line of
business of another Person, in each case whether or not involving a
merger or consolidation with such other Person.
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"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 8.13.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage for Base Rate Loans and Canadian Prime Rate Loans.
"Adjusted Canadian Prime Rate" means the Canadian Prime Rate
plus the Applicable Percentage for Base Rate Loans and Canadian Prime
Rate Loans.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage for Eurodollar Loans and Bankers' Acceptances.
"Adjusted Funded Debt" means total Funded Debt (as defined
below) minus the sum of: (a) Indebtedness related to Permitted
Receivables Financing, (b) Indebtedness constituting seller financing
incurred in connection with Permitted Acquisitions not to exceed $30
million, in the aggregate, at any one time outstanding, (c) Support
Obligations relating to loans for a stock purchase program for senior
management of the Credit Parties, not to exceed $9,000,000, in the
aggregate and (d) cash on the consolidated balance sheet of the Credit
Parties and their Subsidiaries in excess of $15,000,000.
For purposes hereof, "Funded Debt" means, without duplication,
the sum of (a) all Indebtedness of the Credit Parties and their
Subsidiaries for borrowed money, (b) all purchase money Indebtedness of
the Credit Parties and their Subsidiaries, (c) the principal portion of
all obligations of the Credit Parties and their Subsidiaries under
Capital Leases, (d) all obligations, contingent or otherwise, relative
to the face amount of all letters of credit (other than trade letters
of credit obtained in the ordinary course of business), whether or not
drawn, and banker's acceptances issued for the account of a Credit
Party or its Subsidiaries (it being understood that, to the extent an
undrawn letter of credit supports another obligation consisting of
Indebtedness, in calculating aggregated Indebtedness only such other
obligation shall be included), (e) all Support Obligations of the
Credit Parties and their Subsidiaries with respect to Funded Debt of
another Person, (f) all Funded Debt of another entity secured by a Lien
on any property of the Credit Parties and their Subsidiaries whether or
not such Funded Debt has been assumed by a Credit Party or any of its
Subsidiaries, (g) all Funded Debt of any partnership or unincorporated
joint venture to the extent a Credit Party or any of its Subsidiaries
is legally obligated or has a reasonable expectation of being liable
with respect thereto, net of any assets of such partnership or joint
venture, provided that such netting does not result in a negative value
for such Funded Debt, (h) the outstanding aggregate amount of
Indebtedness permitted under Section 9.1(p) and Section 9.1(q),
including without limitation as such Indebtedness relates to the sale
leaseback transactions permitted under clauses (ii) and (iii) of
Section 9.6, and (i) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product where such transaction
is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP (but excluding
operating leases under GAAP entered into in the ordinary course of
business and not as an off-balance sheet financing product); provided,
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however, that the outstanding aggregate amount of Indebtedness
permitted under clause (ii) of Section 9.1(c) shall be excluded from
Funded Debt.
"Administrative Agents" means the U.S. Administrative Agent
and the Canadian Administrative Agent.
"Administrative Fees" has the meaning set forth in Section
4.4(d).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers (or the equivalent) of such Person),
controlled by or under direct or indirect common control with such
Person (and specifically including any other Person that is an
"associate" of such Person, as the term "associate" is used in the
context of Canadian corporate and securities law). A Person shall be
deemed to control an entity if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the ordinary voting
power for the election of directors (or the equivalent) of such entity
or (b) to direct or cause direction of the management and policies of
such entity, whether through the ownership of voting securities, by
contract or otherwise.
"Agents" means, collectively, the Administrative Agents and
the Collateral Agent and any successors and assigns in such capacity.
"Applicable BA Discount Rate" means (a) with respect to any
Canadian Lender named on Schedule I to the Bank Act (Canada), as
applicable to a Bankers' Acceptance being purchased by such Lender on
any day, the respective percentage discount rate per annum for a
Canadian Dollar bankers' acceptance for the term and face amount
comparable to the term and face amount of such Bankers' Acceptance that
appears on the Reuters Screen CDOR Page as of 10:00 a.m. (Toronto,
Ontario time) on the date of determination as reported by the Canadian
Administrative Agent; provided, however, that if on such day no rate
appears on the Reuters Screen CDOR Page as contemplated, the rate for
such day shall be the average (as calculated by the Canadian
Administrative Agent) of the respective percentage discount rates
(expressed to two decimal places and rounded upward, if necessary, to
the nearest 1/100th of 1%) quoted to the Canadian Administrative Agent
by each of the five largest Canadian chartered banks named on Schedule
I to the Bank Act (Canada) (each a "Schedule I Reference Bank") as the
percentage discount rate at which such Schedule I Reference Bank would,
in accordance with its normal practices, at or about 10:00 a.m.
(Toronto, Ontario time) on such day, be prepared to purchase bankers'
acceptances accepted by such Schedule I Reference Bank having a term
and a face amount comparable to the term and face amount of such
Bankers' Acceptance and (b) with respect to any Canadian Lender named
on Schedule II to the Bank Act (Canada), as applicable to a Bankers'
Acceptance being purchased by such Lender on any day, the lesser of (x)
the percentage discount rate at which Bank of America Canada would, in
accordance with its normal practices, at or about 10:00 a.m. (Toronto
time) on such day, be prepared to purchase bankers' acceptances
accepted by it having a term and a face amount comparable to the term
and face amount of such Bankers' Acceptance and (y) the rate that is 7
basis points per annum in excess of the rate determined pursuant to
clause (a) of this definition in connection with the relevant issuance
of Bankers' Acceptances.
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"Applicable Percentage" means the appropriate applicable
percentages corresponding to the Leverage Ratio in effect as of the
most recent Calculation Date as shown below:
----------- ---------------- -------------- --------------- -------------- ---------------- ------------------
Applicable
Percentage
Applicable Applicable for U.S.
Percentage Percentage Standby
for for Base Rate Letter of Applicable
Eurodollar Loans and Credit Fees Percentage for
Loans and Canadian and Canadian U.S. Trade Applicable
Pricing Bankers' Prime Rate Letter of Letters of Percentage for
Level Leverage Ratio Acceptances Loans Credit Fees Credit Commitment Fees
----------- ---------------- -------------- --------------- -------------- ---------------- ------------------
I <= 2.0 to 1.0 1.00% 0% 1.0% .50% .30%
II <= 2.5 to 1.0 1.25% .25% 1.25% .6125% .35%
but
> 2.0 to 1.0
III <= 3.25 to 1.0 1.50% .50% 1.50% .75% .40%
but
> 2.5 to 1.0
IV <= 4.0 to 1.0 1.75% .75% 1.75% .875% .45%
but
> 3.25 to 1.0
V > 4.0 to 1.0 2.00% 1.00% 2.00% 1.00% .50%
----------- ---------------- -------------- --------------- -------------- ---------------- ------------------
The Applicable Percentage for Loans, Bankers' Acceptances, the
Letter of Credit Fees and the Commitment Fees shall, in each case, be
determined and adjusted quarterly on the date (each a "Calculation
Date") five Business Days after the date by which the U.S. Borrower is
required to provide the officer's certificate in accordance with the
provisions of Section 8.1(c); provided that the initial Applicable
Percentage for Loans, the Letter of Credit Fees and the Commitment Fees
shall be based on Pricing Level III (as shown above) and, thereafter,
the Pricing Level shall be determined by the Leverage Ratio calculated
as of the most recent Calculation Date (provided that the Applicable
Percentage shall not be less than Pricing Level III until the first
Calculation Date subsequent to September 30, 1999); and provided
further that if the U.S. Borrower fails to provide the officer's
certificate required by Section 8.1(c) on or before the most recent
Calculation Date, the Applicable Percentage for Loans, the Letter of
Credit Fees and the Commitment Fees from such Calculation Date shall be
based on Pricing Level V until such time that an appropriate officer's
certificate is provided whereupon the Pricing Level shall be determined
by the then current Leverage Ratio. Each Applicable Percentage shall be
effective from one Calculation Date until the next Calculation Date.
Any adjustment in the Applicable Percentage shall be applicable to all
existing Loans and Letters of Credit as well as any new Loans made or
Letters of Credit issued.
The U.S. Borrower shall promptly deliver to the U.S.
Administrative Agent, at the address set forth on Schedule 12.1, at the
time the officer's certificate is required to be delivered by Section
8.1(c), information regarding any change in the Leverage Ratio that
would change the existing Pricing Level pursuant to the preceding
paragraph. The U.S. Administrative Agent shall promptly advise the
Canadian Administrative Agent of any such change in the Pricing Level.
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"Approved Fund" means, with respect to any Lender that is a
fund or trust that makes, buys or invests in commercial loans, any
other fund or trust that makes, buys or invests in commercial loans and
is managed by the same investment advisor as such Lender or an
Affiliate thereof.
"Asset Disposition" means the disposition of any or all of the
assets (including the Capital Stock) of a Credit Party or any of its
Subsidiaries whether by sale, lease, transfer, condemnation or
otherwise, other than (a) transfers of assets permitted by Section 9.5
and (b) losses of assets or destroyed assets permitted by Section 8.7.
"BA Discount Proceeds" means proceeds in respect of any
Bankers' Acceptance to be purchased on any day under Section 3.4(b), in
an amount (rounded to the nearest whole Canadian cent, and with
one-half of one Canadian cent being rounded up) calculated on such day
by dividing:
(a) the Face Amount of such Bankers' Acceptance; by
(b) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed as a
decimal) applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number
of days in the term of such Bankers' Acceptance and the
denominator of which is the number of days in the then current
calendar year;
with such product being rounded up or down to the fifth
decimal place and .000005 being rounded up.
"BA Documents" means with respect to any Bankers' Acceptance,
such documents and agreements as the Canadian Lenders accepting the
same may require in connection with the creation of such Bankers'
Acceptance.
"BA Obligations" means all obligations of the Canadian
Borrower with respect to Bankers' Acceptances created under the
Canadian Revolving Committed Amount.
"Bank of America" means Bank of America National Trust and
Savings Association, or any successor thereto.
"Bank of America Canada" means Bank of America Canada, or any
successor thereto.
"Bankers' Acceptance" means a depository xxxx as defined in
the Depository Bills and Notes Act (Canada) in Canadian Dollars that is
in the form of an order signed by the Canadian Borrower and accepted by
a Canadian Lender pursuant to this Credit Agreement or, for Lenders not
participating in clearing services contemplated in that Act, a draft or
xxxx
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of exchange in Canadian Dollars payable in Canada that is drawn in
Canada by the Canadian Borrower and accepted by a Canadian Lender
pursuant to this Credit Agreement. Orders that become depository bills,
drafts and bills of exchange are sometimes collectively referred to in
this Credit Agreement as "orders".
"Bankruptcy Code" means either (a) the Bankruptcy Code in
Title 11 of the United States Code, as amended, modified, succeeded or
replaced from time to time or (b) corresponding Canadian legislation,
as applicable.
"BAS" means Banc of America Securities LLC, in its capacity as
Co-Lead Arranger and Co-Book Manager, and its successors and assigns.
"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the U.S. Reference Rate in effect on such day. If for
any reason the U.S. Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the U.S. Administrative
Agent to obtain sufficient quotations in accordance with the terms
hereof, the Base Rate shall be determined without regard to clause (a)
of the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. Any change in the Base Rate due
to a change in the U.S. Reference Rate or the Federal Funds Rate shall
be effective on the effective date of such change in the U.S. Reference
Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate, including, if applicable,
Swingline Loans.
"Borrowers" means, collectively, the U.S. Borrower and the
Canadian Borrower.
"Business Day" means any day other than a Saturday or a
Sunday; provided that, in addition, (a) in the case of U.S. Revolving
Loans, U.S. Swingline Loans and U.S. Letters of Credit, such day is not
a day on which banking institutions are authorized or required by law
or other governmental action to close in San Francisco, California or
New York, New York (provided that in the case of Eurodollar Loans, such
day is also a day on which dealings between banks are carried on in
Dollar deposits in the London interbank market) and (b) in the case of
Canadian Revolving Loans, Canadian Swingline Loans, Canadian Letters of
Credit and Bankers' Acceptances, such day is not a day on which banking
institutions are authorized or required by law or other governmental
action to close in Xxxxxxx, Xxxxxxx.
"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.
"Canadian Administrative Agent" means Bank of America Canada
or any successor agent appointed pursuant to Section 11.9.
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"Canadian Borrower" means WESCO Distribution-Canada, Inc., an
Ontario corporation, together with any permitted successors and
assigns.
"Canadian Credit Parties" means those Credit Parties domiciled
in Canada.
"Canadian Credit Party Obligations" means, without
duplication, (a) all of the obligations of the Canadian Credit Parties
to the Lenders (including the Canadian Issuing Lender) and the Agents,
whenever arising, under this Credit Agreement, the Notes, the
Collateral Documents or any of the other Credit Documents to which any
such Credit Party is a party and (b) all liabilities and obligations
owing from any such Credit Party to any Lender, or any Affiliate of a
Lender, arising under Hedging Agreements.
"Canadian Dollars" and "C$" mean dollars in lawful currency of
Canada.
"Canadian Facility Guarantors" means each of (a) the U.S.
Borrower, (b) the Subsidiaries of the Canadian Borrower identified as
Canadian Facility Guarantors on the signature pages hereto, if any are
so identified, and (c) each hereafter acquired or organized Subsidiary
of the Canadian Borrower that becomes an Additional Credit Party and
Canadian Facility Guarantor hereunder by execution of a Joinder
Agreement or otherwise, in each case together with their successors and
assigns.
"Canadian Issuing Lender" means Bank of America Canada or,
with the consent of (a) the Borrowers, (b) the Canadian Administrative
Agent and (c) the Required Canadian Lenders, any other Canadian Lender.
"Canadian Lender" means any of the Persons identified as a
"Canadian Lender" on Schedule 1.1(a), and any Eligible Assignee which
may become a Canadian Lender by way of assignment in accordance with
the terms hereof, together with their successors and permitted assigns.
"Canadian Letter of Credit" means a Letter of Credit issued
for the account of the Canadian Borrower by the Canadian Issuing Lender
pursuant to Section 3.2(a), as such Letter of Credit may be amended,
modified, extended, renewed or replaced.
"Canadian Letter of Credit Outstanding Amount" means, for any
period, the quotient resulting from dividing (a) the sum for each day
during such period of the aggregate maximum amount available to be
drawn under all Canadian Letters of Credit by (b) the total number of
days in such period.
"Canadian LOC Commitment" means the commitment of the Canadian
Issuing Lender to issue Letters of Credit for the account of the
Canadian Borrower in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up
to the Canadian LOC Committed Amount.
"Canadian LOC Committed Amount" has the meaning assigned to
such term in Section 3.2(a).
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"Canadian LOC Obligations" means, at any time, the sum of (a)
the maximum amount which is, or at any time thereafter may become,
available to be drawn under Canadian Letters of Credit then
outstanding, assuming compliance with all requirements for drawings
referred to in such Canadian Letters of Credit plus (b) the aggregate
amount of all drawings under Canadian Letters of Credit honored by the
Canadian Issuing Lender but not theretofore reimbursed.
"Canadian LOC Subfacility" means the Letter of Credit
subfacility established pursuant to Section 3.2.
"Canadian Pledge Agreement" means that certain Pledge
Agreement, dated as of the Closing Date, executed and delivered by the
Canadian Borrower in favor of the Collateral Agent, for the benefit of
the Lenders, to secure its obligations under the Credit Documents, as
amended, modified, extended, renewed or replaced from time to time.
"Canadian Prime Rate" means, for any day, the greater of (a)
the variable rate of interest per annum equal to the rate of interest
determined by the Canadian Administrative Agent from time to time as
its prime rate for Canadian Dollar loans made by the Canadian
Administrative Agent in Canada, being a variable per annum reference
rate of interest adjusted automatically upon change by the Canadian
Administrative Agent, and calculated on the basis of a year of 365 or
366 days, as the case may be, and (b) the sum of (i) the rate per annum
determined by the Canadian Administrative Agent as the applicable rate
for it to accept a Canadian Dollar bankers' acceptance having a term of
30 days as of 10:00 a.m. (Toronto, Ontario time) on the date of
determination plus (ii) 100 basis points.
"Canadian Prime Rate Loan" means any Canadian Revolving Loan
bearing interest at a rate determined by reference to the Canadian
Prime Rate, including, if applicable, Canadian Swingline Loans.
"Canadian Revolving Committed Amount" means FIFTY MILLION
CANADIAN DOLLARS (C$50,000,000), as such amount may be reduced in
accordance with Section 3.1(d).
"Canadian Revolving Loan Commitment" means, with respect to
each Canadian Lender, the commitment of such Canadian Lender to make
its portion of the Canadian Revolving Loans in a principal amount equal
to such Canadian Lender's Canadian Revolving Loan Commitment Percentage
of the Canadian Revolving Committed Amount.
"Canadian Revolving Loan Commitment Percentage" means, for
each Canadian Lender, the percentage identified as its Canadian
Revolving Loan Commitment Percentage on Schedule 1.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 12.3.
"Canadian Revolving Loans" means the revolving credit loans
made by the Canadian Lenders to the Canadian Borrower pursuant to
Section 3.1.
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15
"Canadian Revolving Note" or "Canadian Revolving Notes" means
the promissory notes of the Canadian Borrower in favor of each of the
Canadian Lenders evidencing the Canadian Revolving Loans provided
pursuant to Section 3.1, individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time and as evidenced in the
form of Exhibit 3.1(e).
"Canadian Security Agreement" means that certain Security
Agreement, dated as of the Closing Date, executed and delivered by the
Canadian Borrower in favor of the Collateral Agent, for the benefit of
the Lenders, to secure its obligations under the Credit Documents, as
amended, modified, extended, renewed or replaced from time to time.
"Canadian Swingline Committed Amount" means FIVE MILLION
CANADIAN DOLLARS (C$5,000,000).
"Canadian Swingline Lender" means Bank of America Canada or,
with the consent of (i) the Borrowers, (ii) the Canadian Administrative
Agent and (iii) the Required Canadian Lenders, any other Canadian
Lender.
"Canadian Swingline Loan Commitment" means, with respect to
the Canadian Swingline Lender, the commitment of the Canadian Swingline
Lender to make Canadian Swingline Loans available to the Canadian
Borrower in the principal amount of up to the Canadian Swingline
Committed Amount.
"Canadian Swingline Note" means the promissory note of the
Canadian Borrower in favor of the Canadian Swingline Lender evidencing
the Canadian Swingline Loans provided pursuant to Section 3.3, as such
promissory note may be amended, modified, supplemented, extended,
renewed or replaced from time to time in and as evidenced by the form
of Exhibit 3.3(d).
"Canadian Unused Revolving Commitment" means, for any period,
the amount by which (a) the then applicable Canadian Revolving
Committed Amount exceeds (b) the quotient resulting from dividing (i)
the sum for each day during such period of the outstanding aggregate
principal amount of all Canadian Revolving Loans plus Canadian LOC
Obligations plus the Face Amount of BA Obligations by (ii) the total
number of days in such period.
"Capital Expenditures" means all expenditures of the Credit
Parties and their Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures, including, without limitation,
Capital Leases; provided, however, that Capital Expenditures shall
exclude (a) amounts constituting the reinvestment of proceeds from an
Asset Disposition in Eligible Assets and (b) any amount representing
capitalized interest on Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person and the
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16
amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued directly or
fully guaranteed or insured by the United States of America or Canada
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America or Canada is pledged in
support thereof) having maturities of not more than twelve months from
the date of acquisition, (b) U.S. or Canadian dollar denominated time
and demand deposits and certificates of deposit of (i) any Lender, (ii)
any U.S. or Canadian commercial bank having capital and surplus in
excess of $500,000,000 (U.S.) or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Xxxxx'x is at least P-1 or the equivalent thereof (any
such bank being an "Approved Bank"), in each case with maturities of
not more than 270 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or
by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements with a bank or trust company (including any
of the Lenders) or recognized securities dealer having capital and
surplus in excess of $500,000,000 (U.S.) for direct obligations issued
by or fully guaranteed by the United States of America or Canada in
which a Credit Party shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 (U.S.) and the portfolios of
which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"CDOR Rate" means the rate per annum for a Canadian Dollar
bankers' acceptance having a term of 30 days that appears on the
Reuters Screen CDOR Page as of 10:00 a.m. (Toronto, Ontario time) on
the date of determination, as reported by the Canadian Administrative
Agent.
"Change of Control" means the occurrence of any of the
following events: (a) the acquisition, directly or indirectly, whether
voluntarily or by operation of law, by any person (as such term in used
in Section 13(d) of the Exchange Act) other than The Cypress Group LLC,
of beneficial ownership of more than 30% of the outstanding shares of
common stock of the Parent; (b) the replacement or resignation (other
than by reason of death, illness or incapacity), within any two-year
period, of a majority of the members of the Board of Directors of the
Parent (the "Board") or a change in the size of the Board, within any
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17
two-year period, which results in members of the Board who were in
office at the beginning of such two-year period constituting less than
a majority of the members of the Board (unless such replacement,
resignation or change in size of the Board shall have been effected or
initiated by a majority of the members of the Board in office at the
beginning of such two-year period or who became members of the Board
without effectuating a Change in Control) or (c) the failure of the
Parent to own directly or indirectly 100% of the outstanding shares of
common stock of the U.S. Borrower or the Canadian Borrower.
"Chase Securities" means Chase Securities Inc. in its capacity
as Co-Lead Arranger and Co-Book Manager, and its successors and
assigns.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified, succeeded
or replaced from time to time. References to sections of the Code
should be construed also to refer to any successor sections.
"Collateral" means all assets of the Credit Parties in which,
pursuant to the Collateral Documents, a Lien has been granted in favor
of the Collateral Agent for the benefit of the Lenders.
"Collateral Agent" means Bank of America, or any successor
collateral agent appointed pursuant to Section 11.9.
"Collateral Documents" means the Security Agreements, the
Pledge Agreements, and such other documents executed and delivered in
connection with the attachment and perfection of the Lenders' security
interests in the assets of the Credit Parties, including, without
limitation, UCC financing statements and patent, trademark and
copyright filings.
"Commitment Fees" means the fees payable to the Lenders
pursuant to Section 4.4(a).
"Commitments" means (a) with respect to each U.S. Lender, the
U.S. Revolving Loan Commitment of such Lender, (b) with respect to each
Canadian Lender, the Canadian Revolving Loan Commitment of such Lender,
(c) with respect to the U.S. Swingline Lender, the U.S. Swingline Loan
Commitment (in addition to its other Commitments), (d) with respect to
the Canadian Swingline Lender, the Canadian Swingline Loan Commitment
(in addition to its other Commitments), (e) with respect to the
Canadian Issuing Lender, the Canadian LOC Commitment (in addition to
its other Commitments) and (f) with respect to the U.S. Issuing Lender,
the U.S. LOC Commitment (in addition to its other Commitments).
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, the Collateral Documents, the LOC Documents, and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
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18
"Credit Parties" means the Borrowers and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (a) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lenders) and the Agents, whenever arising, under this Credit
Agreement, the Notes, the Collateral Documents or any of the other
Credit Documents to which any Credit Party is a party and (b) all
liabilities and obligations owing from any such Credit Party to any
Lender, or any Affiliate of a Lender, arising under Hedging Agreements.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased),
(b) has failed to pay to the Agents or any Lender an amount owed by
such Lender pursuant to the terms of this Credit Agreement (but only
for so long as such amount has not been paid) or (c) has been deemed
insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any assets of
which) a receiver, trustee or similar official has been appointed.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"EBITDA" means, subject to Section 1.3(b), for any period with
respect to the Credit Parties and their Subsidiaries on a consolidated
basis, the sum of (a) Net Income for such period (excluding the effect
of any extraordinary or other non-recurring gains (including any gain
from the sale of property) or non-cash losses) plus (b) an amount
which, in the determination of Net Income for such period, has been
deducted for (i) Interest Expense for such period, (ii) total Federal,
state, foreign or other income or franchise taxes for such period and
(iii) all depreciation and amortization for such period, including the
amortization of debt discounts and deferred financing charges, all as
determined in accordance with GAAP.
"Effective Date" means the date on which the conditions set
forth in Section 6.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assets" means any assets or any business (or any
substantial part thereof) used or useful in the same or a similar line
of business as the Credit Parties and their Subsidiaries were engaged
in on the Closing Date.
"Eligible Assignee" means (a) any Lender; (b) an Affiliate of
a Lender or an Approved Fund; and (c) any other Person that (x) is a
financial institution having capital and surplus in excess of
$100,000,000, (y) if such Person is to be a U.S. Lender, is approved by
the U.S. Administrative Agent, the U.S. Issuing Lender, the U.S.
Swingline Lender and the Borrowers and (z) if such Person is to be a
Canadian Lender, is approved by the
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19
Canadian Administrative Agent, the Canadian Issuing Lender, the
Canadian Swingline Lender and the Borrowers (in each of cases (y) and
(z), such approval not to be unreasonably withheld or delayed; it being
understood that it is reasonable for the Borrowers not to consent to a
new Lender that would impose material additional costs or taxes on the
Borrowers); provided that (i) the Borrowers' consent is not required
during the existence and continuation of an Event of Default; (ii)
approval by the Borrowers shall be deemed given if no objection is
received by the assigning Lender and the U.S. Administrative Agent from
the Borrowers within five Business Days after notice of such proposed
assignment has been received by the Borrowers; and (iii) neither a
Borrower nor an Affiliate of a Borrower shall qualify as an Eligible
Assignee.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding, or written claim whether administrative, judicial, or
private in nature arising (a) pursuant to, or in connection with, an
actual or alleged violation of, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in
connection with an Environmental Law or other order of a Governmental
Authority or (d) from any actual or alleged damage, injury, threat, or
harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater or
(d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land, surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
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20
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party or
any of its Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes any Credit Party or any
of its Subsidiaries and which is treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a U.S. Revolving Loan bearing interest
based at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = London Interbank Offered Rate
----------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not a Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" means any of the events or circumstances
specified in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Credit Agreement" has the meaning set forth in
Section 6.1(n).
"Existing Letters of Credit" means the Letters of Credit
described by date, issuance, letter of credit number, undrawn amount,
name of beneficiary and the date of expiry set forth on Schedule
1.1(b), as such Letters of Credit may be amended, modified, extended,
renewed or replaced.
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21
"Existing U.S. Letters of Credit" means those Existing Letters
of Credit identified as U.S. Letters of Credit on Schedule 1.1(b).
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender), the
issuance of, or participation in, a Letter of Credit by such Lender or
the creation of a Bankers' Acceptance by such Lender.
"Face Amount" means, in respect of a Bankers' Acceptance, the
amount payable to the holder thereof at maturity.
"Federal Funds Rate" means for any day the rate of interest
per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (b) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the U.S.
Administrative Agent on such day on such transactions as determined by
the U.S.
Administrative Agent.
"Fee Letter" means that certain letter agreement between the
U.S. Borrower, BAS and Bank of America dated as of May 26, 1999.
"Fife" means Fife Electric Company, LLC, a Michigan limited
liability company.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section
1.3(a).
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantors" means, collectively, the Total Facility
Guarantors and the Canadian Facility Guarantors.
"Guaranteed Obligations" means, without duplication, (a) in
the case of the Total Facility Guarantors, all Credit Party
Obligations, and (b) in the case of the Canadian Facility Guarantors,
all Canadian Credit Party Obligations.
"Hazardous Materials" means any substance, material or waste
defined in or regulated under any Environmental Laws.
"Hedging Agreements" means any interest rate protection
agreements, foreign currency exchange agreements, commodity futures
agreements or other interest or exchange rate hedging agreements.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds,
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22
debentures, notes or similar instruments, or upon which interest
payments are customarily made (c) all obligations of such Person under
conditional sale or other title retention agreements relating to
property purchased by such Person to the extent of the value of such
property (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations, other than intercompany items, of such
Person issued or assumed as the deferred purchase price of property or
services purchased by such Person which would appear as liabilities on
a balance sheet of such Person, (e) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out
of the proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, (f) all Support Obligations of such Person, (g) the principal
portion of all obligations of such Person under (i) Capital Leases and
(ii) any synthetic lease, tax retention operating lease, off-balance
sheet loan or similar off-balance sheet financing product of such
Person where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance
with GAAP, (h) all net obligations of such Person in respect of Hedging
Agreements, (i) the maximum amount of all performance and standby
letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (j) all preferred stock issued
by such Person and required by the terms thereof to be redeemed, or for
which mandatory sinking fund payments are due by a fixed date, (k) the
aggregate amount of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or similar transaction)
regardless of whether such transaction is effected without recourse to
such Person or in a manner that would not be reflected on the balance
sheet of such Person in accordance with GAAP, and (l) all obligations
of such Person to repurchase any securities which repurchase obligation
is related to the issuance thereof, including, without limitation,
obligations commonly known as residual equity appreciation potential
shares. The Indebtedness of any Person shall include the Indebtedness
of any partnership or unincorporated joint venture in which such Person
is legally obligated.
"Interest Coverage Ratio" means the ratio of (a) EBITDA to (b)
Interest Expense.
"Interest Expense" means, subject to Section 1.3(b), for any
period with respect to the Credit Parties and their Subsidiaries on a
consolidated basis, all cash interest expense (paid or accrued to be
paid), including (a) the interest component under Capital Leases (but
excluding the amortization of debt discounts, deferred financing
charges and other non-cash interest expenses), as determined in
accordance with GAAP and (b) the interest-equivalent costs associated
with any Permitted Receivables Financing as included in the "other
expense" line item in the consolidated income statements of the Credit
Parties and their Subsidiaries, whether accounted for as interest
expense or loss on the sale of Receivables, net of any cash interest
income reported during such period (including any interest-equivalent
income associated with any Permitted Receivables Financing).
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each calendar quarter of the Credit Parties and the
Maturity Date, and (b) as to Eurodollar Loans, the last day of each
applicable Interest Period, the Maturity Date and each date on which
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23
any principal of such Loans is repaid and, in addition, where the
applicable Interest Period for a Eurodollar Loan is greater than three
months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one week or one, two, three, six or (subject to availability from all
Lenders) nine or twelve months' duration, as the U.S. Borrower may
elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided, however,
(a) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls
in the next succeeding calendar month, then on the next preceding
Business Day), (b) no Interest Period shall extend beyond the Maturity
Date, and (c) where an Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes,
debentures, joint ventures or other ownership interests or other
securities of such other Person or (b) any deposit with, or advance,
loan or other extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including, without limitation, any
Support Obligation (including any support for a Letter of Credit issued
on behalf of such Person) incurred for the benefit of such Person.
"Issuing Lender Fees" has the meaning set forth in
Section 4.4(c).
"Issuing Lenders" means, collectively, the U.S. Issuing Lender
and the Canadian Issuing Lender and "Issuing Lender" means any one of
them.
"Joinder Agreement" means a joinder agreement substantially in
the form of Exhibit 8.13.
"Lenders" means, collectively, the U.S. Lenders and the
Canadian Lenders and "Lender" means any one of them.
"Letter of Credit" means (a) Letters of Credit issued for the
account of the U.S. Borrower or one of its Subsidiaries by the U.S.
Issuing Lender pursuant to Section 2.2, as such Letters of Credit may
be amended, modified, extended, renewed or replaced, (b) Letters of
Credit issued for the account of the Canadian Borrower or one of its
Subsidiaries by the Canadian Issuing Lender pursuant to Section 3.2, as
such Letters of Credit may be amended, modified, extended, renewed or
replaced, and (c) the Existing Letters of Credit.
"Letter of Credit Fee" has the meaning set forth in
Section 4.4(b).
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24
"Leverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (a) total Adjusted Funded Debt on such date and
(b) EBITDA for the twelve month period ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans and the Swingline
Loans (or a portion of any Revolving Loan or Swingline Loan),
individually or collectively, as appropriate.
"LOC Commitment" means, collectively, the Canadian LOC
Commitment and the U.S. LOC Commitment.
"LOC Obligations" means, collectively, the Canadian LOC
Obligations and the U.S. LOC Obligations.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any 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 or (b) any collateral security for such obligations.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate
per annum equal to the rate determined by the U.S. Administrative Agent
to be the offered rate which appears on the page of the Telerate Screen
which displays an average British Bankers Association Interest
Settlement Rate (such page currently being page number 3740 or 3750)
for deposits (for delivery on the first day of such period) with a term
equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London, England time) two Business Days prior to the first
day of such Interest Period, or (ii) in the event the rate referenced
in the preceding clause (i) does not appear on such page or service or
if such page or service shall cease to be available, the rate per annum
equal to the rate determined by the U.S. Administrative Agent to be the
offered rate on such other page or other service which displays an
average British Bankers Association Interest Settlement Rate for
deposits (for delivery on the first day of such period) with a term
equivalent to such period in Dollars, determined as of approximately
11:00 a.m. (London, England time) two Business Days prior to the first
day of such Interest Period, or (iii) in the event the rates referenced
in the preceding clauses (i) and (ii) are not available, the rate per
annum equal to the offered quotation rate to first class banks in the
London interbank market by the U.S. Administrative Agent for deposits
(for delivery on the first day of the relevant period) in Dollars of
amounts in immediately available funds comparable to the principal
amount of the Eurodollar Loan for which the London Interbank Offered
Rate is then being
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25
determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) two Business Days prior
to the first day of such Interest Period.
"Mandatory Canadian Borrowing" has the meaning set forth in
Section 3.2(e).
"Mandatory U.S. Borrowing" has the meaning set forth in
Section 2.2(e).
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Credit Parties taken as a whole, (b) the ability of a Credit Party to
perform its obligations under this Credit Agreement or any of the other
Credit Documents, or (c) the validity or enforceability of this Credit
Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole.
"Material Foreign Subsidiary" means, as of any date of
determination, any Subsidiary of the Parent that (a) is organized or
formed outside of the United States and Canada and (b) owns assets
greater than or equal to $7,000,000.
"Maturity Date" means June 29, 2004.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which any Credit Party or any
of its Subsidiaries or any ERISA Affiliate and at least one employer
other than a Credit Party or any of its Subsidiaries or any ERISA
Affiliate are contributing sponsors.
"Net Income" means, for any period, the net income after taxes
for such period of the Credit Parties and their Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Non-Excluded Taxes" has the meaning set forth in
Section 4.13.
"Note" or "Notes" means the Revolving Notes and the Swingline
Notes, individually or collectively, as appropriate.
"Notice of Borrowing" means a request by a Borrower for a
Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by (a) the
U.S. Borrower to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan (other than
a U.S. Swingline Loan) or a Base Rate Loan (other than a U.S. Swingline
Loan) to a Eurodollar Loan or (b) the Canadian Borrower to continue
- 19 -
26
an existing Bankers' Acceptance to a new maturity date or to convert a
Bankers' Acceptance to a Canadian Revolving Loan (other than a Canadian
Swingline Loan) or a Canadian Revolving Loan (other than a Canadian
Swingline Loan) to a Bankers' Acceptance, in either case in the form of
Exhibit 2.4.
"Parent" means WESCO International, Inc., a Delaware
corporation, and any permitted successors and assigns.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Loans, Letters of
Credit, LOC Obligations and/or BA Obligations as provided in any of
Section 2.2, 2.3, 3.2, 3.3, 4.8 or 10.4(b).
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an Acquisition by a Credit Party
or any Subsidiary of a Credit Party for consideration no greater than
the fair market value of the Capital Stock or property acquired;
provided that (a) the property acquired (or the property of the Person
acquired) in such Acquisition constitutes Eligible Assets (or goodwill
associated therewith), (b) the U.S. Administrative Agent shall have
received all items in respect of the Capital Stock or property acquired
in such Acquisition (and/or the seller thereof) required to be
delivered by the terms of Section 8.10 and/or Section 8.13, (c) in the
case of an Acquisition of the Capital Stock of another Person, the
board of directors (or other comparable governing body) of such other
Person shall have duly approved such Acquisition, (d) the U.S. Borrower
shall have delivered to the U.S. Administrative Agent, prior to the
closing of such Acquisition, a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition, the Credit
Parties are in compliance with all of the covenants set forth in
Section 8.2, and (e) the representations and warranties made by the
Credit Parties in any Credit Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition
(after giving effect thereto) except to the extent such representations
and warranties expressly relate to an earlier date.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or made
in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, (c) inventory, raw materials and
general intangibles acquired in the ordinary course of business, (d)
Investments by a Borrower in any Credit Party that guarantees such
Borrower's obligations under the Credit Documents, (e) guaranties not
to exceed, in the aggregate, $10,000,000 at any one time outstanding of
loans from PNC Bank National Association or one of its Affiliates to
senior managers of a Borrower, which loans finance such senior
managers' participation in the Borrowers' stock purchase programs, (f)
Investments by the U.S. Borrower or its Subsidiaries in the Canadian
Borrower in an amount not to exceed, in the aggregate, $50,000,000 at
any one time, (g) loans to directors, officers or employees in the
ordinary course of business for reasonable business expenses, not to
exceed, in the aggregate, $2,500,000 at any one time, (h) Investments
in Capital Expenditures, (i) Permitted Acquisitions, (j) Investments in
non-cash proceeds received as consideration for
- 20 -
27
the sale of Fife and (k) other Investments (in addition to those set
forth above) not to exceed, in the aggregate, $20,000,000 at any one
time.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations, (b) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject to
foreclosure, sale, collection, levy or loss on account thereof), (c)
Liens in respect of property imposed by law arising in the ordinary
course of business such as materialmen's, mechanics', warehousemen's,
carrier's, landlords' and other nonconsensual statutory Liens which are
not yet due and payable or which are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the
property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof), (d) pledges or deposits made in the
ordinary course of business to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social security
programs, (e) Liens arising from good faith deposits in connection with
or to secure performance of tenders, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other than
obligations in respect of the payment of borrowed money), (f) Liens
arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered property for its intended purposes, (h)
judgment Liens that would not constitute an Event of Default, (i) Liens
in connection with Indebtedness permitted by Section 9.1(b) (to the
extent the assets covered by such Liens are subject to Liens on the
Closing Date as indicated on Schedule 1.1(c)), Section 9.1(f), Section
9.1(m), Section 9.1(o) or Section 9.1(p), (j) Liens arising by virtue
of any statutory or common law provision relating to banker's liens,
rights of setoff or similar rights as to deposit accounts or other
funds maintained with a creditor depository institution and (k) Liens
existing on the date hereof and identified on Schedule 1.1(c); provided
that (i) no such Lien shall extend to any property other than the
property subject thereto on the Closing Date and (ii) the principal
amount of the Indebtedness secured by such Liens shall not be extended,
renewed, refunded or refinanced.
"Permitted Receivables Financing" means any transaction
entered into pursuant to and in accordance with the Receivables Sale
Agreements, the Receivables Pooling Agreement and the Receivables
Supplemental Pooling Agreement or any other financing by the Credit
Parties of Receivables in any transaction or series of transactions
that may be entered into by the Credit Parties pursuant to which (a)
one or more Credit Parties sells, conveys or otherwise transfers to a
Receivables Subsidiary and (b) such Receivables Subsidiary sells,
conveys or otherwise transfers to any other Person or grants a security
interest to any Person in, any Receivables (whether now existing or
hereafter acquired) of a Credit Party, and any assets related thereto
including all collateral securing such Receivables, all contracts and
all Support Obligations or other obligations in respect of such
Receivables, proceeds of such Receivables and other assets that are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset
- 21 -
28
securitization transactions involving Receivables, provided that (i)
the Board of Directors of the U.S. Borrower shall have determined in
good faith that such Permitted Receivables Financing is economically
fair and reasonable to the Credit Parties and the applicable
Receivables Subsidiary and (ii) all sales of Receivables and Related
Property to such Receivables Subsidiary are made at fair market value
(as determined in good faith by the U.S. Borrower).
"Permitted Subordinated Refinancing Debt" means Indebtedness
of the U.S. Borrower that (a) is issued in exchange for all of, or the
net proceeds of which are used to refinance, replace, defease or refund
in whole and not in part, the Subordinated Debt; provided that (i) the
principal amount of such Permitted Subordinated Refinancing Debt does
not exceed the principal amount (or accreted value, if applicable) of
the Subordinated Debt, so refinanced, replaced, defeased or refunded,
plus the amount of premiums, prepayment penalties and other amounts
required to be paid in connection therewith and the reasonable and
customary fees and expenses incurred in connection therewith, (ii) no
material terms applicable to such Permitted Subordinated Refinancing
Debt (including the subordination provisions thereof) are materially
less favorable to the U.S. Borrower or the Lenders than the terms that
are applicable under the Subordinate Debt Indenture, prior to such
refinancing, (iii) the timing and amounts of principal repayments
(including any sinking fund therefor) on such Permitted Subordinated
Refinancing Debt are no sooner and no greater, respectively, than the
timing and amounts of principal repayments under the Subordinated Debt
being refinanced, (iv) such Permitted Subordinated Refinancing Debt is
unsecured and (v) such Permitted Subordinated Refinancing Debt accrues
interest at a rate determined in good faith by the Board of Directors
of the U.S. Borrower to be a market rate of interest for such Permitted
Subordinated Refinancing Debt at the time of issuance thereof.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreements" means the U.S. Pledge Agreement, the
Canadian Pledge Agreement and any other pledge agreement executed and
delivered by one or more of the Credit Parties in favor of the
Collateral Agent, for the benefit of the Lenders, to secure its (or
their) respective obligations under the Credit Documents, as amended,
modified, extended, renewed or replaced from time to time.
"Pro Forma Basis" means, for purposes of calculating
(utilizing the principles set forth in Section 1.3(b)) compliance with
each of the financial covenants set forth in Section 8.2 in respect of
a proposed Acquisition as referred to in clause (d) of the definition
of "Permitted Acquisition" set forth in this Section 1.1, that such
Acquisition
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29
shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such Acquisition with respect to which the U.S.
Administrative Agent has received the financial statements and
officer's certificate required to be delivered pursuant to Section
8.1(a) or (b), as applicable, and Section 8.1(c). In connection with
any calculation of the financial covenants set forth in Section 8.2 and
upon giving effect on a Pro Forma Basis to any Acquisition, (a) any
Indebtedness incurred by any Credit Party in connection with such
Acquisition (i) shall be deemed to have been incurred as of the first
day of the applicable period and (ii) if such Indebtedness has a
floating or formula rate, such Indebtedness shall have an implied rate
of interest for the applicable period for purposes of this definition
determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination,
(b) income statement items (whether positive or negative) attributable
to the Capital Stock or property acquired in such Acquisition shall be
included to the extent relating to the relevant period and to the
extent, and in the same manner, as such items are included for the
Credit Parties and (c) Net Income after giving effect to such
Acquisition shall be adjusted to add back identifiable and quantifiable
expenses that would not have been incurred if such Acquisition was
completed as of the first day of the relevant period.
"Pro Forma Compliance Certificate" means a certificate of the
chief financial officer (or other officer acceptable to the U.S.
Administrative Agent) of the U.S. Borrower delivered to the U.S.
Administrative Agent in connection with any Acquisition as referred to
in clause (d) of the definition of "Permitted Acquisition" set forth in
this Section 1.1 and containing reasonably detailed calculations, upon
giving effect to such Acquisition on a Pro Forma Basis, of each of the
financial covenants set forth in Section 8.2 as of the most recent
fiscal quarter end preceding the date of such Acquisition with respect
to which the U.S. Administrative Agent shall have received the
financial statements and officer's certificate required to be delivered
pursuant to Section 8.1(a) or (b), as applicable, and Section 8.1(c);
provided, however, that the calculations of such financial covenants in
such certificate shall either (a) exclude positive income statement
items and all adjustments that would otherwise be used in such
calculations pursuant to clauses (b) and (c) of the definition of "Pro
Forma Basis" or (b) shall include such positive income statement items
and adjustments, but such adjustments shall be included only to the
extent the U.S. Borrower has provided supporting detail acceptable to
the U.S. Administrative Agent for any adjustments to Net Income that
will be made in accordance with clause (c) of the definition of "Pro
Forma Basis".
"Receivable" means the indebtedness and payment obligations of
any Person to any Credit Party or acquired by any Credit Party
(including obligations constituting an account or general intangible or
evidenced by a note, instrument, contract, security agreement, chattel
paper or other evidence of indebtedness or security) arising from a
sale of merchandise or the provision of services in the ordinary course
of business by such Credit Party or the Person from which such
indebtedness and payment obligation were acquired by any Credit Party,
including (a) any right to payment for goods sold or for services
rendered and (b) the right to payment of any interest, sales taxes,
finance charges, returned check or late charges and other obligations
of such Person with respect thereto.
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30
"Receivables Pooling Agreement" means the Pooling Agreement
dated as of June 5, 1998 among WESCO Receivables Corp., the U.S.
Borrower, as servicer, and The Chase Manhattan Bank, as Funding Agent
and as trustee, as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof and
any other supplement to the Receivables Pooling Agreement entered into
in connection with a Permitted Receivables Financing.
"Receivables Sale Agreements" means, collectively, (a) the
U.S. Receivables Sale Agreement dated as of June 5, 1998 among the U.S.
Borrower and WESCO Equity Corporation, as Sellers, WESCO Receivables
Corp. and the U.S. Borrower, in its capacity as servicer, and (b) the
Canadian Receivables Sale Agreement dated as of June 5, 1998 among the
Canadian Borrower, as Seller, WESCO Receivables Corp. and the U.S.
Borrower, in its capacity as servicer.
"Receivables Subsidiary" means WESCO Receivables Corp., a
Delaware corporation that is a wholly owned, bankruptcy-remote, special
purpose subsidiary of the U.S. Borrower or any other wholly owned
Subsidiary of the U.S. Borrower or the Canadian Borrower (a) that
engages in no activities other than in connection with the financing of
Receivables, all proceeds thereof and all rights (contractual or
other), collateral and other assets relating thereto, and any business
or activities incidental or related to such business, (b) that is
designated by the Board of Directors of the U.S. Borrower or the
Canadian Borrower (as provided below) as a Receivables Subsidiary and
(c) of which no portion of its Indebtedness or any other obligations
(contingent or otherwise) (i) is guaranteed by the Credit Parties or
any of their Subsidiaries (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates
the Credit Parties or any of their Subsidiaries in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of directly or indirectly, contingently or otherwise,
to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings. Upon any such designation, a financial
officer of the U.S. Borrower or the Canadian Borrower, as applicable,
shall deliver a certificate to the U.S. Administrative Agent certifying
(a) the resolution of the Board of Directors of the U.S. Borrower or
the Canadian Borrower, as applicable, giving effect to such
designation, (b) that such designation complied with the foregoing
conditions, (c) that after giving effect to such designation (including
any Indebtedness permitted to exist in connection with such
designation), the Credit Parties shall be in compliance, on a pro forma
basis, with the covenants set forth in Section 8.2 and (d) immediately
after giving effect to such designation no Default or Event of Default
shall have occurred and be continuing.
"Receivables Supplemental Pooling Agreement" means the Series
1998-1 Supplement, dated as of June 5, 1998, to the Receivables Pooling
Agreement, among WESCO Receivables Corp., the U.S. Borrower, as
servicer, Park Avenue Receivables Corporation, certain banks or
financial institutions party thereto, and The Chase Manhattan Bank, as
Funding Agent and as trustee, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof, and any other supplement to the Receivables Pooling Agreement
entered into in connection with a Permitted Receivable Financing.
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31
"Regulation D, O, T, U, or X" means Regulation D, O, T, U or
X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
"Related Property" means, with respect to each Receivable:
(a) all of the interest of the applicable Credit
Party or its Subsidiary in the goods, if any, sold and
delivered to an obligor relating to the sale which gave rise
to such Receivable,
(b) all other security interest or Liens, and the
interest of the applicable Credit Party or its Subsidiary in
the property subject thereto, from time to time purporting to
secure payment of such Receivable, together with all financing
statements signed by an obligor describing any collateral
securing such Receivable and
(c) all guarantees, insurance, letters of credit and
other agreements or arrangements of whatever character from
time to time supporting or securing payment of such
Receivable,
in the case of clauses (b) and (c), whether pursuant to the contract
related to such Receivable or otherwise or pursuant to any obligations
evidenced by a note, instrument, contract, security agreement, chattel
paper or other evidence of indebtedness or security and the proceeds
thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Canadian Lenders" means Canadian Lenders whose
aggregate Canadian Facility Credit Exposure (as hereinafter defined)
constitutes more than 50% of the Canadian Facility Credit Exposure of
all Canadian Lenders at such time; provided, however, that if any
Canadian Lender shall be a Defaulting Lender at such time then there
shall be excluded from the determination of Required Canadian Lenders
the aggregate principal amount of Canadian Facility Credit Exposure of
such Lender at such time. For purposes of the preceding sentence, the
term "Canadian Facility Credit Exposure" as applied to each Canadian
Lender shall mean (a) at any time prior to the termination of the
Commitments, the Canadian Revolving Loan Commitment Percentage of such
Lender multiplied by the Canadian Revolving Committed Amount and (b) at
any time after the termination of the Commitments, the sum of (i) the
principal balance of the outstanding Canadian Revolving Loans of such
Lender plus (ii) the Face Amount of all Bankers' Acceptances created by
such Lender plus (iii) such Lender's Participation Interests in the
face amount of the outstanding Canadian Letters of Credit and Canadian
Swingline Loans.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then
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32
there shall be excluded from the determination of Required Lenders the
aggregate principal amount of Credit Exposure of such Lender at such
time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to
the termination of the Commitments, the sum of (i) the U.S. Revolving
Loan Commitment Percentage of such Lender multiplied by the U.S.
Revolving Committed Amount plus (ii) the Canadian Revolving Loan
Commitment Percentage of such Lender multiplied by the Canadian
Revolving Committed Amount and (b) at any time after the termination of
the Commitments, the sum of (i) the principal balance of the
outstanding Loans of such Lender plus (ii) the Face Amount of all
Bankers' Acceptances created by such Lender plus (iii) such Lender's
Participation Interests in the face amount of the outstanding Letters
of Credit and Swingline Loans. In determining each Lender's Credit
Exposure as set forth above, amounts denominated in Canadian Dollars
shall be converted into U.S. Dollars based on an exchange rate
determined by the U.S. Administrative Agent in accordance with its
normal practices.
"Required U.S. Lenders" means U.S. Lenders whose aggregate
U.S. Facility Credit Exposure (as hereinafter defined) constitutes more
than 50% of the U.S. Facility Credit Exposure of all U.S. Lenders at
such time; provided, however, that if any U.S. Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required U.S. Lenders the aggregate principal amount
of U.S. Facility Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term "U.S. Facility Credit
Exposure" as applied to each U.S. Lender shall mean (a) at any time
prior to the termination of the Commitments, the U.S. Revolving Loan
Commitment Percentage of such Lender multiplied by the U.S. Revolving
Committed Amount and (b) at any time after the termination of the
Commitments, the sum of (i) the principal balance of the outstanding
U.S. Revolving Loans of such Lender plus (ii) such Lender's
Participation Interests in the face amount of the outstanding U.S.
Letters of Credit and U.S. Swingline Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Revolving Loans" means, collectively, the U.S. Revolving
Loans and the Canadian Revolving Loans.
"Revolving Note" or "Revolving Notes" means, collectively, the
Canadian Revolving Notes and the U.S. Revolving Notes.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc. or any successor or assignee of the business of such
division in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
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33
"Security Agreements" means the U.S. Security Agreement, the
Canadian Security Agreement and any other security agreement executed
and delivered by one or more of the Credit Parties in favor of the
Collateral Agent for the benefit of the Lenders to secure its (or
their) respective obligations under the Credit Documents, as amended,
modified, extended, renewed, restated or replaced from time to time.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by a Credit Party
that the U.S. Borrower has determined in good faith to be customary in
receivables financing transactions similar to the Permitted Receivables
Financings, including those representations, warranties, covenants and
indemnities relating to the servicing of assets of a Receivables
Subsidiary.
"Subordinated Debt" means the Indebtedness evidenced by the 9
1/8% Senior Subordinated Notes of the U.S. Borrower due 2008 issued on
June 5, 1998.
"Subordinated Debt Indenture" means the indenture entered into
by the U.S. Borrower in connection with the issuance of the
Subordinated Debt, together with all instruments and other agreements
entered into by the U.S. Borrower, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 9.13.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture, limited liability
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company or other entity in which such person directly or indirectly
through Subsidiaries has more than a 50% equity interest at any time.
"Support Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing any Indebtedness of any other Person in any
manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain
working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements,
comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of
Indebtedness of such other Person, (c) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner
of such Indebtedness or (d) to otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect
thereof. The amount of any Support Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Support Obligation
is made.
"Swingline Loan Request" means a request by a Borrower for a
Swingline Loan in substantially the form of Exhibit 2.3(b).
"Swingline Loans" means, collectively, the U.S. Swingline
Loans and the Canadian Swingline Loans.
"Termination Event" means (a) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the
withdrawal of any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(c) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(d) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA; (e) any
event or condition which might reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (f) the complete or partial withdrawal
of any Credit Party or any of its Subsidiaries or any ERISA Affiliate
from a Multiemployer Plan; or (g) the adoption of an amendment to any
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
"Total Facility Commitment Percentage" means, for each Lender,
the percentage identified as its Total Facility Commitment Percentage
on Schedule 1.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of Section
12.3.
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"Total Facility Guarantors" means each of (a) the Parent, (b)
the Subsidiaries of the Parent identified as Total Facility Guarantors
on the signature pages hereto and (c) each hereafter acquired or
organized Subsidiary of the Parent that becomes an Additional Credit
Party and Total Facility Guarantor hereunder by execution of a Joinder
Agreement or otherwise, in each case together with their successors and
assigns.
"Total Senior Debt" means all Indebtedness of the Credit
Parties and their Subsidiaries other than the Subordinated Debt.
"U.S. Administrative Agent" means Bank of America or any
successor agent appointed pursuant to Section 11.9.
"U.S. Borrower" means WESCO Distribution, Inc., a Delaware
Corporation, and any permitted successors and assigns.
"U.S. Credit Parties" means those Credit Parties domiciled in
the United States.
"U.S. Issuing Lender" means (a) Bank of America or, with the
consent of (i) the Borrowers, (ii) the U.S. Administrative Agent and
(iii) the Required U.S. Lenders, any other U.S. Lender or (b) with
respect to any Existing U.S. Letter of Credit, The Chase Manhattan
Bank.
"U.S. Lender" means any of the Persons identified as a "U.S.
Lender" on Schedule 1.1(a), and any Eligible Assignee which may become
a U.S. Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"U.S. Letter of Credit" means a Letter of Credit issued for
the account of the U.S. Borrower by the U.S. Issuing Lender pursuant to
Section 2.2(a) or any Existing U.S. Letter of Credit, as such Letter of
Credit may be amended, modified, extended, renewed or replaced.
"U.S. LOC Commitment" means the commitment of the U.S. Issuing
Lender to issue U.S. Letters of Credit for the account of the U.S.
Borrower in an aggregate face amount at any time outstanding (together
with the amounts of any unreimbursed drawings thereon) of up to the
U.S. LOC Committed Amount.
"U.S. LOC Committed Amount" has the meaning assigned to such
term in Section 2.2(a).
"U.S. LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under U.S. Letters of Credit (including the
Existing U.S. Letters of Credit) then outstanding, assuming compliance
with all requirements for drawings referred to in such U.S. Letters of
Credit plus (b) the aggregate amount of all drawings under U.S. Letters
of Credit honored by the U.S. Issuing Lender but not theretofore
reimbursed.
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"U.S. LOC Subfacility" means the Letter of Credit subfacility
established pursuant to Section 2.2.
"U.S. Pledge Agreement" means that certain Pledge Agreement,
dated as of the Closing Date, executed and delivered by the U.S. Credit
Parties in favor of the Collateral Agent, for the benefit of the
Lenders, to secure their respective obligations under the Credit
Documents, as amended, modified, extended, renewed or replaced from
time to time.
"U.S. Reference Rate" means the per annum rate of interest
established from time to time by the U.S. Administrative Agent as its
reference rate in effect at its principal office in San Francisco,
California or Charlotte, North Carolina, as applicable (or such other
principal office of the U.S. Administrative Agent as communicated in
writing to the U.S. Borrower and the U.S. Lenders). Any change in the
interest rate resulting from a change in the U.S. Reference Rate shall
become effective as of 12:01 a.m. of the Business Day on which each
change in the U.S. Reference Rate is announced by the U.S.
Administrative Agent. The U.S. Reference Rate is a reference rate used
by the U.S. Administrative Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of interest
charged on any extension of credit to any debtor.
"U.S. Revolving Committed Amount" means THREE HUNDRED
SIXTY-FIVE MILLION DOLLARS ($365,000,000) or such lesser amount as the
U.S. Revolving Committed Amount may be reduced pursuant to Section
2.1(d) or increased in accordance with Section 2.1(e).
"U.S. Revolving Loan Commitment" means, with respect to each
U.S. Lender, the commitment of such U.S. Lender to make its portion of
the U.S. Revolving Loans in a principal amount equal to such U.S.
Lender's U.S. Revolving Loan Commitment Percentage of the U.S.
Revolving Committed Amount.
"U.S. Revolving Loan Commitment Percentage" means, for each
U.S. Lender, the percentage identified as its U.S. Revolving Loan
Commitment Percentage on Schedule 1.1(a), as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 12.3.
"U.S. Revolving Loans" means the revolving loans made by the
U.S. Lenders to the U.S. Borrower pursuant to Section 2.1.
"U.S. Revolving Note" or "U.S. Revolving Notes" means the
promissory notes of the U.S. Borrower in favor of each of the U.S.
Lenders evidencing the U.S. Revolving Loans provided pursuant to
Section 2.1, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time and as evidenced in the form of
Exhibit 2.1(f).
"U.S. Security Agreement" means that certain Security
Agreement, dated as of the Closing Date, executed and delivered by the
U.S. Credit Parties in favor of the Collateral Agent, for the benefit
of the Lenders, to secure their respective obligations under the Credit
Documents, as amended, modified, extended, renewed or replaced from
time to time.
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"U.S. Standby Letters of Credit" has the meaning set forth in
Section 2.2(a).
"U.S. Standby Letter of Credit Outstanding Amount" means, for
any period, the quotient resulting from dividing (a) the sum for each
day during such period of the aggregate maximum amount available to be
drawn under all U.S. Standby Letters of Credit by (b) the total number
of days in such period.
"U.S. Swingline Committed Amount" means TWENTY MILLION DOLLARS
($20,000,000).
"U.S. Swingline Lender" means Bank of America or, with the
consent of (i) the Borrowers, (ii) the U.S. Administrative Agent and
(iii) the Required U.S. Lenders, any other U.S. Lender.
"U.S. Swingline Loan Commitment" means, with respect to the
U.S. Swingline Lender, the commitment of the U.S. Swingline Lender to
make U.S. Swingline Loans available to the U.S. Borrower in the
principal amount of up to the U.S. Swingline Committed Amount.
"U.S. Swingline Loans" means to loans made by the U.S.
Swingline Lender pursuant to Section 2.3.
"U.S. Swingline Note" means the promissory note of the U.S.
Borrower in favor of the U.S. Swingline Lender evidencing the U.S.
Swingline Loans provided pursuant to Section 2.3, as such promissory
note may be amended, modified, supplemented, extended, renewed or
replaced from time to time in and as evidenced by the form of Exhibit
2.3(d).
"U.S. Trade Letter of Credit" has the meaning set forth in
Section 2.2(a).
"U.S. Trade Letter of Credit Outstanding Amount" means, for
any period, the quotient resulting from dividing (a) the sum for each
day during such period of the aggregate maximum amount available to be
drawn under all U.S. Trade Letters of Credit by (b) the total number of
days in such period.
"U.S. Unused Revolving Commitment" means, for any period, the
amount by which (a) the then applicable U.S. Revolving Committed Amount
exceeds (b) the quotient resulting from dividing (i) the sum for each
day during such period of the outstanding aggregate principal amount of
all U.S. Revolving Loans plus U.S. LOC Obligations by (ii) the total
number of days in such period.
"Voting Stock" of a corporation means all classes of the
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
"Working Capital" means, at any time, with respect to the
Credit Parties and their Subsidiaries on a consolidated basis, the sum
of (a) inventory plus (b) Receivables, in each case as determined in
accordance with GAAP.
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"Year 2000 Problem" means any risk (a) that any computer
hardware, software or other equipment used by a Credit Party or any of
its Subsidiaries (or by any suppliers, vendors or customers that is
material to the business of such Credit Party or Subsidiary) will not
function as effectively and reliably on and after January 1, 2000 as it
does prior to January 1, 2000 or (b) that any computer applications
used by a Credit Party or any of its Subsidiaries may not be able to
recognize and properly perform date-sensitive functions after December
31, 1999, to the extent any such risk specified in items (a) or (b)
above could cause or could be reasonably expected to cause a Material
Adverse Effect.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 8.1 (or,
prior to the delivery of the first financial statements pursuant to Section 8.1,
consistent with the financial statements described in Section 6.1(d)); provided,
however, if (i) the U.S. Borrower shall object to determining such compliance on
such basis at the time of delivery of such financial statements due to any
change in GAAP or the rules promulgated with respect thereto or (ii) the U.S.
Administrative Agent or the Required Lenders shall so object in writing within
30 days after delivery of such financial statements, then such calculations
shall be made on a basis consistent with GAAP as in effect as of the date of the
most recent financial statements delivered by the U.S. Borrower to the Lenders
to which no such objection shall have been made.
(b) Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of (i) all calculations made under the financial covenants
set forth in Section 8.2 (including the definitions used therein), (ii)
calculating the Leverage Ratio in connection with the definition of "Applicable
Percentage" set forth in Section 1.1 and (iii) the definition of "Pro Forma
Basis" set forth in Section 1.1, income statement items (whether positive or
negative) attributable to any Person or property acquired in any Acquisition
contemplated by the definition of "Permitted Acquisition" set forth in Section
1.1 shall, to the extent not otherwise included in such income statement items
for the Credit Parties in accordance with GAAP or in accordance with any defined
terms set forth in Section 1.1, be included to the extent relating to any period
applicable in such calculations and to the extent and in the same manner as such
items are included for the Credit Parties.
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1.4 TIME.
All references to time herein shall be references to Eastern Standard
time or Eastern Daylight time, as the case may be, unless specified otherwise.
SECTION 2
U.S. CREDIT FACILITIES
2.1 U.S. REVOLVING LOANS.
(a) U.S. Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each U.S. Lender severally agrees to make
revolving loans (each a "U.S. Revolving Loan" and collectively the
"U.S. Revolving Loans") to the U.S. Borrower, in Dollars, at any time
and from time to time, during the period from and including the
Effective Date to but not including the Maturity Date (or such earlier
date on which the U.S. Revolving Committed Amount has been terminated
as provided herein); provided, however, that (i) the sum of the
aggregate amount of U.S. Revolving Loans outstanding plus the aggregate
amount of U.S. LOC Obligations outstanding plus the aggregate amount of
U.S. Swingline Loans outstanding shall not exceed the U.S. Revolving
Committed Amount and (ii) with respect to each individual U.S. Lender
(other than the U.S. Swingline Lender in its capacity as such), such
Lender's pro rata share of outstanding U.S. Revolving Loans plus such
Lender's pro rata share of outstanding U.S. LOC Obligations plus such
Lender's pro rata share of outstanding U.S. Swingline Loans shall not
exceed such Lender's U.S. Revolving Loan Commitment. Subject to the
terms of this Credit Agreement (including Section 6.2), the U.S.
Borrower may borrow, repay and reborrow U.S. Revolving Loans.
(b) Method of Borrowing for U.S. Revolving Loans. By no later
than 11:00 a.m. (i) on the date of the requested borrowing of U.S.
Revolving Loans that will be Base Rate Loans or (ii) three Business
Days prior to the date of the requested borrowing of U.S. Revolving
Loans that will be Eurodollar Loans, the U.S. Borrower shall telephone
the U.S. Administrative Agent with the information described below as
well as submit a written Notice of Borrowing in the form of Exhibit
2.1(b) (which may be submitted via telecopy) to the U.S. Administrative
Agent setting forth (A) the amount requested, (B) whether such U.S.
Revolving Loans shall accrue interest at the Adjusted Base Rate or the
Adjusted Eurodollar Rate, (C) with respect to U.S. Revolving Loans that
will be Eurodollar Loans, the Interest Period applicable thereto and
(D) a certification that the U.S. Borrower has complied in all respects
with Section 6.2. All U.S. Revolving Loans made on the Effective Date
shall be Base Rate Loans. Thereafter, all or any portion of such U.S.
Revolving Loans may be converted into Eurodollar Loans in accordance
with the terms of Section 2.4.
(c) Funding of U.S. Revolving Loans. Upon receipt of a Notice
of Borrowing, the U.S. Administrative Agent shall promptly inform the
U.S. Lenders as to the terms thereof. Each U.S. Lender shall make its
U.S. Revolving Loan Commitment Percentage of the requested U.S.
Revolving Loans available to the U.S. Administrative Agent by 1:00
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p.m. on the date specified in the Notice of Borrowing by deposit, in
Dollars, of immediately available funds at the offices of the U.S.
Administrative Agent at its principal office in San Francisco,
California or at such other address as the U.S. Administrative Agent
may designate in writing. The amount of the requested U.S. Revolving
Loans will then be made available to the U.S. Borrower by the U.S.
Administrative Agent by crediting the account of the U.S. Borrower on
the books of such office of the U.S. Administrative Agent, to the
extent the amount of such U.S. Revolving Loans are made available to
the U.S. Administrative Agent.
No U.S. Lender shall be responsible for the failure or delay
by any other U.S. Lender in its obligation to make U.S. Revolving Loans
hereunder; provided, however, that the failure of any U.S. Lender to
fulfill its obligations hereunder shall not relieve any other U.S.
Lender of its obligations hereunder. Unless the U.S. Administrative
Agent shall have been notified by any U.S. Lender prior to the date of
any such U.S. Revolving Loan that such U.S. Lender does not intend to
make available to the U.S. Administrative Agent its portion of the U.S.
Revolving Loans to be made on such date, the U.S. Administrative Agent
may assume that such U.S. Lender has made such amount available to the
U.S. Administrative Agent on the date of such U.S. Revolving Loans, and
the U.S. Administrative Agent in reliance upon such assumption, may (in
its sole discretion but without any obligation to do so) make available
to the U.S. Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the U.S. Administrative Agent,
the U.S. Administrative Agent shall be able to recover such
corresponding amount from such U.S. Lender. If such U.S. Lender does
not pay such corresponding amount forthwith upon the U.S.
Administrative Agent's demand therefor, the U.S. Administrative Agent
will promptly notify the U.S. Borrower, and the U.S. Borrower shall
immediately pay such corresponding amount to the U.S. Administrative
Agent. The U.S. Administrative Agent shall also be entitled to recover
from the U.S. Lender or the U.S. Borrower, as the case may be, interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the U.S. Administrative
Agent to the U.S. Borrower to the date such corresponding amount is
recovered by the U.S. Administrative Agent at a per annum rate equal to
(i) from the U.S. Borrower at the applicable rate for such U.S.
Revolving Loan pursuant to the Notice of Borrowing and (ii) from a U.S.
Lender at the Federal Funds Rate.
(d) Reductions of U.S. Revolving Committed Amount. Upon at
least three Business Days' advance written notice, the U.S. Borrower
shall have the right to permanently reduce, without premium or penalty
(other than as may be required pursuant to Section 4.14), all or part
of the aggregate unused amount of the U.S. Revolving Committed Amount
at any time or from time to time; provided that (i) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000
and in integral multiples of $500,000 above such amount and (ii) no
reduction shall be made which would reduce the U.S. Revolving Committed
Amount to an amount less than the aggregate amount of outstanding U.S.
Revolving Loans plus the aggregate amount of outstanding U.S. LOC
Obligations plus the aggregate amount of U.S. Swingline Loans
outstanding. Subject to Section 2.1(e), any reduction in the U.S.
Revolving Committed Amount shall be permanent and may not be
reinstated. The U.S. Administrative Agent shall immediately notify the
U.S. Lenders of any reduction in the U.S. Revolving Committed Amount.
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(e) Increases of U.S. Revolving Committed Amount. Subject to
the terms and conditions set forth herein, upon 30 days' advance
written notice to the U.S. Administrative Agent, the U.S. Borrower
shall have the right, at any time and from time to time from the
Effective Date until the Maturity Date (but no more than once a year,
with each year for purposes hereof being deemed to begin on the Closing
Date or an anniversary thereof), to increase the then existing U.S.
Revolving Committed Amount by an amount of up to FIFTY MILLION DOLLARS
($50,000,000) in the aggregate for all such increases; provided that
(i) the U.S. Revolving Committed Amount may not exceed FOUR HUNDRED
FIFTEEN MILLION DOLLARS ($415,000,000), (ii) any such increase shall be
in a minimum principal amount of $10,000,000 and an integral multiple
of $5,000,000 in excess thereof, (iii) if any U.S. Revolving Loans are
outstanding at the time of any such increase, the U.S. Borrower shall
make such payments and adjustments on such U.S. Revolving Loans
(including payment of any break-funding amount owing under Section
4.14) as are necessary to give effect to the revised U.S. Revolving
Loan Commitment Percentages and U.S. Revolving Loan Commitments of the
U.S. Lenders and (iv) the conditions to an Extension of Credit in
Sections 6.2 shall be satisfied before and after giving effect to any
such increase. An increase in the U.S. Revolving Committed Amount
hereunder shall be subject to satisfaction of the following: (A) the
amount of such increase shall be offered first to the existing U.S.
Lenders, (B) each existing U.S. Lender shall have the right, but not
the obligation, to commit to all or a portion of the proposed increase
to the U.S. Revolving Committed Amount, (C) in the event the additional
U.S. Revolving Loan Commitments which such existing U.S. Lenders are
willing to take shall exceed the amount requested by the U.S. Borrower,
then additional U.S. Revolving Loan Commitments which in the aggregate
equal such requested increase shall be allocated at the discretion of
the U.S. Administrative Agent in consultation with the U.S. Borrower
and (D) if the amount of the increase in the U.S. Revolving Committed
Amount requested by the U.S. Borrower shall exceed the additional U.S.
Revolving Loan Commitments which the existing U.S. Lenders are willing
to take, then the U.S. Borrower may invite other Eligible Assignees to
join this Credit Agreement as U.S. Lenders hereunder for the portion of
such increase not taken by such existing U.S. Lenders, provided that
(i) the minimum U.S. Revolving Loan Commitment of each such institution
equals or exceeds the smallest U.S. Revolving Loan Commitment of an
existing U.S. Lender prior to the increase to the U.S. Revolving
Committed Amount and (ii) such institutions shall enter into such
joinder agreements to give effect thereto as the U.S. Administrative
Agent and/or the U.S. Borrower may reasonably request, and the U.S.
Borrower shall execute such new Notes as appropriate. In connection
with any increase in, or new, U.S. Revolving Loan Commitments pursuant
to this Section, Schedule 1.1(a) hereto shall be revised to reflect the
modified U.S. Revolving Loan Commitment Percentages and U.S. Revolving
Loan Commitments of the U.S. Lenders.
(f) Repayment; U.S. Revolving Notes. The U.S. Borrower hereby
promises to repay in full the principal amount of all U.S. Revolving
Loans on the Maturity Date. Upon the request of any U.S. Lender made
through the U.S. Administrative Agent, the U.S. Revolving Loans made by
each U.S. Lender shall be evidenced by, in addition to the loan
accounts referenced in Section 4.15, a duly executed promissory note of
the U.S. Borrower
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to such U.S. Lender in an original principal amount equal to such U.S.
Lender's U.S. Revolving Loan Commitment Percentage of the U.S.
Revolving Committed Amount and in substantially the form of Exhibit
2.1(f).
2.2 U.S. LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the U.S. Issuing Lender may reasonably require (so long as such terms
and conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by any Credit Party or conflict with any obligation of, or detract from
any action which may be taken by, any Credit Party under this Credit
Agreement), the U.S. Issuing Lender shall from time to time upon
request issue (from the Effective Date to the Maturity Date and in a
form reasonably acceptable to the U.S. Issuing Lender), in Dollars, and
the U.S. Lenders shall participate in, letters of credit ("U.S. Letters
of Credit") for the account of the U.S. Borrower or any of its
Subsidiaries; provided, however, that (i) the aggregate amount of U.S.
LOC Obligations shall not at any time exceed FIFTY MILLION DOLLARS
($50,000,000) (the "U.S. LOC Committed Amount"), (ii) the sum of the
aggregate amount of U.S. LOC Obligations outstanding plus U.S.
Revolving Loans outstanding plus U.S. Swingline Loans outstanding shall
not exceed the U.S. Revolving Committed Amount and (iii) with respect
to each individual U.S. Lender (other than the U.S. Swingline Lender in
its capacity as such), such Lender's pro rata share of outstanding U.S.
Revolving Loans plus its pro rata share of outstanding U.S. LOC
Obligations plus its pro rata share of U.S. Swingline Loans outstanding
shall not exceed such Lender's U.S. Revolving Loan Commitment. The U.S.
Issuing Lender may require the issuance and expiry date of each U.S.
Letter of Credit to be a Business Day. Each U.S. Letter of Credit shall
be either (A) a standby letter of credit issued to support the
obligations (including pension or insurance obligations), contingent or
otherwise, of the U.S. Borrower for itself or on behalf of one of its
Subsidiaries (the "U.S. Standby Letters of Credit") or (B) a commercial
letter of credit in respect of the purchase of goods or services by the
U.S. Borrower for itself or on behalf of one of its Subsidiaries in the
ordinary course of business (the "U.S. Trade Letters of Credit").
Except as otherwise expressly agreed upon by all the U.S. Lenders, no
U.S. Letter of Credit shall have an original expiry date more than one
year from the date of issuance, or as extended, shall have an expiry
date extending beyond the Maturity Date. Each U.S. Letter of Credit
shall comply with the related LOC Documents.
(b) Notice and Reports. The request for the issuance of a U.S.
Letter of Credit shall be submitted to the U.S. Issuing Lender at least
three Business Days prior to the requested date of issuance (or such
shorter period as may be reasonably acceptable to the U.S. Issuing
Lender) and shall be accompanied by a certification that the U.S.
Borrower has complied in all respects with Section 6.2. The U.S.
Issuing Lender will provide to the U.S. Administrative Agent prompt
notice of U.S. Letters of Credit which are issued within three (3)
Business Days, and including in such notice, among other things, the
account party, the beneficiary, the face amount, and the expiry date.
The U.S. Issuing Lender will further provide to the U.S. Administrative
Agent, promptly upon request, copies of the U.S. Letters of Credit and
the other LOC Documents.
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(c) Participations.
(i) Each U.S. Lender acknowledges and confirms that
it has a Participation Interest in the liability of the U.S.
Issuing Lender under each Existing U.S. Letter of Credit in an
amount equal to its U.S. Revolving Loan Commitment Percentage
of such Existing U.S. Letter of Credit. The U.S. Borrower's
reimbursement obligations in respect of each Existing U.S.
Letter of Credit, and each U.S. Lender's obligations in
connection therewith, shall be governed by the terms of this
Credit Agreement.
(ii) Each U.S. Lender, upon issuance of a U.S. Letter
of Credit (or upon the Effective Date in the case of an
Existing U.S. Letter of Credit), shall be deemed to have
purchased without recourse a risk participation from the U.S.
Issuing Lender in such Letter of Credit and each LOC Document
related thereto and the rights and obligations arising
thereunder and any collateral relating thereto, in each case
in an amount equal to its U.S. Revolving Loan Commitment
Percentage of the obligations under such Letter of Credit, and
shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to
the U.S. Issuing Lender therefor and discharge when due, its
U.S. Revolving Loan Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the
scope and nature of each U.S. Lender's participation in any
U.S. Letter of Credit, to the extent that the U.S. Issuing
Lender has not been reimbursed as required hereunder or under
any such Letter of Credit, each such U.S. Lender shall pay to
the U.S. Administrative Agent its U.S. Revolving Loan
Commitment Percentage of such unreimbursed drawing in same day
funds on the day of notification by the U.S. Administrative
Agent of an unreimbursed drawing pursuant to the provisions of
subsection (d) or (e) hereof. The obligation of each U.S.
Lender to so reimburse the U.S. Issuing Lender shall be
absolute and unconditional and shall not be affected by the
occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve
or otherwise impair the obligation of the U.S. Borrower or any
other Credit Party to reimburse the U.S. Issuing Lender under
any U.S. Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any U.S.
Letter of Credit, the U.S. Issuing Lender will promptly notify the U.S.
Borrower. Unless the U.S. Borrower shall immediately notify the U.S.
Issuing Lender of its intent to otherwise reimburse the U.S. Issuing
Lender, including through a U.S. Swingline Loan to the extent a U.S.
Swingline Loan in such amount is available (including the ability of
the U.S. Borrower to meet the conditions of Section 6.2), then the U.S.
Borrower shall be deemed to have requested a U.S. Revolving Loan at the
Adjusted Base Rate in the amount of the drawing, the proceeds of which
will be used to satisfy the reimbursement obligations. The U.S.
Borrower shall reimburse the U.S. Issuing Lender on the day of drawing
under any U.S. Letter of Credit either with the proceeds of such U.S.
Swingline Loan or U.S. Revolving Loan obtained hereunder or otherwise
in same day funds as provided herein or in the LOC Documents. If the
U.S. Borrower shall fail to reimburse the U.S. Issuing Lender as
provided hereinabove, the unreimbursed amount of such drawing shall
bear interest at a per
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annum rate equal to the Adjusted Base Rate plus 200 basis points. The
U.S. Borrower's reimbursement obligations hereunder shall be absolute
and unconditional under all circumstances irrespective of (but without
waiver of) any rights of set-off, counterclaim or defense to payment
the applicable account party or the U.S. Borrower may claim or have
against the U.S. Issuing Lender, an Agent, the Lenders, the beneficiary
of the Letter of Credit drawn upon or any other Person, including,
without limitation, any defense based on any failure of the applicable
account party, the U.S. Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability
of the Letter of Credit. The U.S. Issuing Lender will promptly notify
the U.S. Administrative Agent who will promptly notify the U.S. Lenders
of the amount of any unreimbursed drawing and each U.S. Lender shall
promptly pay to the U.S. Administrative Agent for further credit to the
U.S. Issuing Lender, in Dollars and in immediately available funds, the
amount of such Lender's U.S. Revolving Loan Commitment Percentage of
such unreimbursed drawing. Such payment shall be made on the day such
notice is received by such Lender from the U.S. Administrative Agent if
such notice is received at or before 12:00 Noon; otherwise, such
payment shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. If such Lender does not pay
such amount to the U.S. Administrative Agent for the benefit of the
U.S. Issuing Lender in full upon such request, such Lender shall, on
demand, pay to the U.S. Administrative Agent for the benefit of the
U.S. Issuing Lender interest on the unpaid amount during the period
from the date the Lender received the notice regarding the unreimbursed
drawing until such Lender pays such amount to the U.S. Issuing Lender
in full at a rate per annum equal to, if paid within two Business Days
of the date of drawing, the Federal Funds Rate and thereafter at a rate
equal to the Base Rate. Each U.S. Lender's obligation to make such
payment to the U.S. Administrative Agent for the benefit of the U.S.
Issuing Lender, and the right of the U.S. Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations
hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such
payment by a U.S. Lender to the U.S. Administrative Agent for the
benefit of the U.S. Issuing Lender, such U.S. Lender shall,
automatically and without any further action on the part of the U.S.
Issuing Lender or such Lender, acquire a participation in an amount
equal to such payment (excluding the portion of such payment
constituting interest owing to the U.S. Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim
against the U.S. Borrower and the other Credit Parties with respect
thereto.
(e) Repayment with Revolving Loans. On any day on which the
U.S. Borrower shall have requested, or been deemed to have requested, a
U.S. Revolving Loan borrowing to reimburse a drawing under a U.S.
Letter of Credit (as set forth in clause (d) above), the U.S.
Administrative Agent shall give notice to the U.S. Lenders that a U.S.
Revolving Loan has been requested or deemed requested in connection
with a drawing under a U.S. Letter of Credit, in which case a U.S.
Revolving Loan borrowing comprised solely of Base Rate Loans (each such
borrowing, a "Mandatory U.S. Borrowing") shall be immediately made from
all U.S. Lenders (without giving effect to any termination of the
Commitments pursuant to Section 10.2) pro rata based on each U.S.
Lender's respective U.S. Revolving
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Loan Commitment Percentage and the proceeds thereof shall be paid
directly to the U.S. Issuing Lender for application to the respective
U.S. LOC Obligations. Each U.S. Lender hereby irrevocably agrees to
make such U.S. Revolving Loans immediately upon any such request or
deemed request on account of each such Mandatory U.S. Borrowing in the
amount and in the manner specified in the preceding sentence and on the
same such date notwithstanding (i) the amount of Mandatory U.S.
Borrowing may not comply with the minimum amount for borrowings of U.S.
Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 6.2 are then satisfied, (iii) whether a
Default or Event of Default then exists, (iv) failure of any such
request or deemed request for U.S. Revolving Loans to be made by the
time otherwise required hereunder, (v) the date of such Mandatory U.S.
Borrowing, or (vi) any reduction in the U.S. Revolving Committed Amount
or any termination of the Commitments. In the event that any Mandatory
U.S. Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to
the U.S. Borrower or any other Credit Party), then each U.S. Lender
hereby agrees that it shall forthwith fund (as of the date the
Mandatory U.S. Borrowing would otherwise have occurred, but adjusted
for any payments received from the U.S. Borrower on or after such date
and prior to such purchase) its Participation Interest in the
outstanding U.S. LOC Obligations; provided, further, that in the event
any U.S. Lender shall fail to fund its Participation Interest on the
day the Mandatory U.S. Borrowing would otherwise have occurred, then
the amount of such Lender's unfunded Participation Interest therein
shall bear interest payable to the U.S. Issuing Lender upon demand, at
the rate equal to, if paid within two Business Days of such date, the
Federal Funds Rate, and thereafter at a rate equal to the Base Rate.
(f) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extensions to any U.S.
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new U.S. Letter of Credit hereunder.
(g) Uniform Customs and Practices. The U.S. Issuing Lender may
have the U.S. Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (Publication No. 500 or the
most recent publication, the "UCP"), in which case the UCP may be
incorporated therein and deemed in all respects to be a part thereof.
(h) Responsibility of U.S. Issuing Lender. It is expressly
understood and agreed as between the U.S. Lenders that the obligations
of the U.S. Issuing Lender hereunder to the U.S. Lenders are only those
expressly set forth in this Credit Agreement and that the U.S. Issuing
Lender shall be entitled to assume that the conditions precedent set
forth in Section 6.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been
satisfied; provided, however, that nothing set forth in this Section
2.2 shall be deemed to prejudice the right of any U.S. Lender to
recover from the U.S. Issuing Lender any amounts made available by such
Lender to the U.S. Issuing Lender pursuant to this Section 2.2 in the
event that it is determined by a court of competent jurisdiction that
the payment with respect to a U.S. Letter of Credit constituted gross
negligence or willful misconduct on the part of the U.S. Issuing
Lender.
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(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (other than a Letter
of Credit itself to the extent the UCP or the Uniform Commercial Code
requires such Letter of Credit to govern), this Credit Agreement shall
govern.
(j) Indemnification of U.S. Issuing Lender.
(i) In addition to its other obligations under this
Credit Agreement, the U.S. Credit Parties hereby agree to
protect, indemnify, pay and save the U.S. Issuing Lender
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the U.S. Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any U.S. Letter of Credit or
(B) the failure of the U.S. Issuing Lender to honor a drawing
under a U.S. Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority (all such
acts or omissions, herein called "Government Acts").
(ii) As between the U.S. Credit Parties and the U.S.
Issuing Lender, the U.S. Credit Parties shall assume all risks
of the acts, omissions or misuse of any U.S. Letter of Credit
by the beneficiary thereof. The U.S. Issuing Lender shall not
be responsible for (except in the case of (A), (B) and (C)
below if the U.S. Issuing Lender has actual knowledge to the
contrary): (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of
or the presentation for payment and honoring of any U.S.
Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any U.S. Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the
beneficiary of a U.S. Letter of Credit to comply fully with
conditions (other than those explicitly set forth in the
applicable Letter of Credit) required in order to draw upon a
U.S. Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
courier, cable, telegraph, telex, telecopy or otherwise,
whether or not they be in cipher; (E) errors in interpretation
of technical terms; (F) any loss or delay in the transmission
or otherwise of any document required in order to make a
drawing under a U.S. Letter of Credit or of the proceeds
thereof; and (G) any consequences arising from causes beyond
the control of the U.S. Issuing Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the U.S. Issuing
Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the U.S. Issuing Lender, under
or in connection with any U.S. Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the U.S. Issuing Lender under any resulting liability to any
U.S. Credit Party. It is the intention of the
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parties that this Credit Agreement shall be construed and
applied to protect and indemnify the U.S. Issuing Lender
against any and all risks involved in the issuance of the U.S.
Letters of Credit, all of which risks are hereby assumed by
the U.S. Credit Parties, including, without limitation, any
and all risks of the acts or omissions, whether rightful or
wrongful, of any present or future Government Acts. The U.S.
Issuing Lender shall not, in any way, be liable for any
failure by the U.S. Issuing Lender or anyone else to pay any
drawing under any U.S. Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the
U.S. Issuing Lender.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the U.S. Borrower
contained in this Section 2.2. The obligations of the U.S.
Credit Parties under this subsection (j) shall survive the
termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a U.S. Letter of Credit
shall in any way affect or impair the rights of the U.S.
Issuing Lender to enforce any right, power or benefit under
this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the U.S. Credit Parties
shall have no obligation to indemnify the U.S. Issuing Lender
in respect of any liability incurred by the U.S. Issuing
Lender arising solely out of the gross negligence or willful
misconduct of the U.S. Issuing Lender, as determined by a
court of competent jurisdiction. Nothing in this Credit
Agreement shall relieve the U.S. Issuing Lender of any
liability to the U.S. Credit Parties in respect of any action
taken by the U.S. Issuing Lender which action constitutes
gross negligence or willful misconduct of the U.S. Issuing
Lender or a violation of the UCP or Uniform Commercial Code
(as applicable), as determined by a court of competent
jurisdiction.
(k) Designation of other Credit Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a) hereof, a U.S.
Letter of Credit issued hereunder may contain a statement to the effect
that such Letter of Credit is issued for the account of a Subsidiary of
the U.S. Borrower; provided that notwithstanding such statement, the
U.S. Borrower shall be the actual account party for all purposes of
this Credit Agreement for such Letter of Credit and such statement
shall not affect the U.S. Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
2.3 U.S. SWINGLINE LOANS SUBFACILITY.
(a) U.S. Swingline Loans. The U.S. Swingline Lender hereby
agrees, on the terms and subject to the conditions set forth herein and
in the other Credit Documents, to make loans to the U.S. Borrower, in
Dollars, at any time and from time to time during the period from and
including the Effective Date to but not including the Maturity Date
(each such loan, a "U.S. Swingline Loan" and collectively, the "U.S.
Swingline Loans"); provided that (i) the aggregate principal amount of
the U.S. Swingline Loans outstanding at any one time shall not exceed
the U.S. Swingline Committed Amount and (ii) the aggregate amount of
U.S. Swingline Loans outstanding plus the aggregate amount of U.S.
Revolving Loans
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outstanding plus the aggregate amount of U.S. LOC Obligations
outstanding shall not exceed the U.S. Revolving Committed Amount. Prior
to the Maturity Date, U.S. Swingline Loans may be repaid and reborrowed
by the U.S. Borrower in accordance with the provisions hereof.
(b) Method of Borrowing and Funding U.S. Swingline Loans. By
no later than 1:00 p.m. on the date of the requested borrowing of U.S.
Swingline Loans the U.S. Borrower shall provide telephonic notice to
the U.S. Swingline Lender, followed promptly by a written Swingline
Loan Request in the form of Exhibit 2.3(b) (which may be submitted via
telecopy), each of such telephonic notice and such written Swingline
Loan Request setting forth (i) the amount of the requested U.S.
Swingline Loan, (ii) the date of the requested U.S. Swingline Loan and
(iii) certification that the U.S. Borrower has complied in all respects
with Section 6.2. The U.S. Swingline Lender shall initiate the transfer
of funds representing the U.S. Swingline Loan advance to the U.S.
Borrower by 3:00 p.m. on the Business Day of the requested borrowing.
(c) Repayment and Participations of U.S. Swingline Loans. The
U.S. Borrower agrees to repay all U.S. Swingline Loans within one
Business Day of demand therefor by the U.S. Swingline Lender. Each
repayment of a U.S. Swingline Loan may be accomplished by requesting
U.S. Revolving Loans, which request is not subject to the conditions
set forth in Section 6.2. In the event that the U.S. Borrower shall
fail to timely repay any U.S. Swingline Loan, and in any event upon (i)
a request by the U.S. Swingline Lender made through the U.S.
Administrative Agent, (ii) the occurrence of an Event of Default
described in Section 10.1(f) or (iii) the acceleration of any Loan or
termination of any Commitment pursuant to Section 10.2, each other U.S.
Lender shall irrevocably and unconditionally purchase from the U.S.
Swingline Lender, without recourse or warranty, an undivided interest
and participation in such U.S. Swingline Loan in an amount equal to
such other U.S. Lender's U.S. Revolving Loan Commitment Percentage
thereof, by directly purchasing a participation in such Swingline Loan
in such amount (regardless of whether the conditions precedent thereto
set forth in Section 6.2 hereof are then satisfied, whether or not the
U.S. Borrower has submitted a Notice of Borrowing and whether or not
the Commitments are then in effect, any Event of Default exists or all
the Loans have been accelerated) and paying the proceeds thereof to the
U.S. Administrative Agent on behalf of the U.S. Swingline Lender at the
address provided on Schedule 12.1, or at such other address as the U.S.
Swingline Lender may designate, in Dollars and in immediately available
funds. If such amount is not in fact made available to the U.S.
Swingline Lender by any U.S. Lender, the U.S. Swingline Lender shall be
entitled to recover such amount on demand from such U.S. Lender,
together with accrued interest thereon for each day from the date of
demand thereof, at the Federal Funds Rate. If such U.S. Lender does not
pay such amount forthwith upon the U.S. Swingline Lender's demand
therefor, and until such time as such U.S. Lender makes the required
payment, the U.S. Swingline Lender shall be deemed to continue to have
outstanding U.S. Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Credit Documents other
than those provisions requiring the other U.S. Lenders to purchase a
participation therein. Further, such U.S. Lender shall be deemed to
have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due to it hereunder to the U.S.
Swingline Lender to fund the U.S. Swingline Loans in the amount
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of the participation in U.S. Swingline Loans that such U.S. Lender
failed to purchase pursuant to this Section 2.3(c) until such amount
has been purchased (as a result of such assignment or otherwise).
(d) U.S. Swingline Note. Upon the request of the U.S.
Swingline Lender, the U.S. Swingline Loans shall be evidenced by, in
addition to the loan accounts referenced in Section 4.15, a duly
executed promissory note of the U.S. Borrower to the U.S. Swingline
Lender in the original principal amount of the U.S. Swingline Committed
Amount and in substantially the form of Exhibit 2.3(d).
2.4 CONTINUATIONS AND CONVERSIONS.
The U.S. Borrower shall have the option, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest Period, to convert
Base Rate Loans (other than U.S. Swingline Loans) into Eurodollar Loans or to
convert Eurodollar Loans into Base Rate Loans (other than U.S. Swingline Loans);
provided, however, that (a) each such continuation or conversion must be
requested by the U.S. Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.4, in compliance with the
terms set forth below, (b) except as provided in Section 4.11, Eurodollar Loans
may only be continued or converted into Base Rate Loans on the last day of the
Interest Period applicable thereto, (c) Eurodollar Loans may not be continued
nor may Base Rate Loans be converted into Eurodollar Loans during the existence
and continuation of a Default or an Event of Default and (d) any request to
continue a Eurodollar Loan that fails to comply with the terms hereof or any
failure to request a continuation of a Eurodollar Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period. Each continuation or conversion must be requested by
the U.S. Borrower no later than 11:00 a.m. (i) on the date for a requested
conversion of a Eurodollar Loan to a Base Rate Loan or (ii) three Business Days
prior to the date for a requested continuation of a Eurodollar Loan or
conversion of a Base Rate Loan to a Eurodollar Loan, in each case pursuant to a
written Notice of Continuation/Conversion submitted to the U.S. Administrative
Agent which shall set forth (A) whether the U.S. Borrower wishes to continue or
convert such Loans and (B) if the request is to continue a Eurodollar Loan or
convert a Base Rate Loan to a Eurodollar Loan, the Interest Period applicable
thereto.
2.5 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan shall be in a minimum
amount of $1,000,000 (and in integral multiples of $100,000 in excess thereof),
(b) each Base Rate Loan shall be in a minimum amount of the lesser of $500,000
(and integral multiples of $100,000 in excess thereof) or the remaining amount
available under the U.S. Revolving Committed Amount, (c) each U.S. Swingline
Loan shall be in a minimum amount of $100,000 or the remaining amount of the
U.S. Swingline Committed Amount (provided that this limitation in clause (c)
shall not apply for amounts requested to repay a drawn Letter of Credit pursuant
to Section 2.2(d)), and (d) no more than ten (10) Eurodollar Loans shall be
outstanding hereunder at any one time. For the purposes of this Section,
Eurodollar Loans with different Interest Periods shall be considered as separate
Eurodollar Loans, even if they begin on the same date, although borrowings,
conversions and
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continuations may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new Eurodollar Loan with a
single Interest Period.
SECTION 3
CANADIAN CREDIT FACILITIES
3.1 CANADIAN REVOLVING LOANS.
(a) Canadian Revolving Loan Commitment. Subject to the terms
and conditions set forth herein, each Canadian Lender severally agrees
to make revolving loans (each a "Canadian Revolving Loan" and
collectively the "Canadian Revolving Loans") to the Canadian Borrower,
in Canadian Dollars, at any time and from time to time, during the
period from and including the Effective Date to but not including the
Maturity Date (or such earlier date on which the Canadian Revolving
Committed Amount has been terminated as provided herein); provided,
however, that (i) the sum of the aggregate amount of Canadian Revolving
Loans outstanding plus the aggregate amount of Canadian LOC Obligations
outstanding plus the aggregate amount of Canadian Swingline Loans
outstanding plus the aggregate Face Amount of Bankers' Acceptances
shall not exceed the Canadian Revolving Committed Amount and (ii) with
respect to each individual Canadian Lender (other than the Canadian
Swingline Lender in its capacity as such), such Lender's pro rata share
of outstanding Canadian Revolving Loans plus such Lender's pro rata
share of outstanding Canadian LOC Obligations plus such Lender's pro
rata share of outstanding Canadian Swingline Loans plus such Lender's
pro rata share of the Face Amount of Bankers' Acceptances shall not
exceed such Lender's Canadian Revolving Loan Commitment Percentage of
the Canadian Revolving Committed Amount. Subject to the terms of this
Credit Agreement (including Section 6.2), the Canadian Borrower may
borrow, repay and reborrow Canadian Revolving Loans.
(b) Method of Borrowing for Canadian Revolving Loans. By no
later than 11:00 a.m. (Toronto, Ontario time) one Business Day prior to
the date of the requested borrowing of Canadian Revolving Loans, the
Canadian Borrower shall telephone the Canadian Administrative Agent
with the information described below as well as submit a written Notice
of Borrowing in the form of Exhibit 2.1(b) (which may be submitted via
telecopy) to the Canadian Administrative Agent setting forth (A) the
amount requested and (B) a certification that the Canadian Borrower has
complied in all respects with Section 6.2. All Canadian Revolving Loans
shall be Canadian Prime Rate Loans. All or any portion of such Canadian
Revolving Loans may be converted into Bankers' Acceptances in
accordance with the terms of Section 3.5.
(c) Funding of Canadian Revolving Loans. Upon receipt of a
Notice of Borrowing, the Canadian Administrative Agent shall promptly
inform the Canadian Lenders as to the terms thereof. Each Canadian
Lender shall make its Canadian Revolving Loan Commitment Percentage of
the requested Canadian Revolving Loans available to the Canadian
Administrative Agent by 1:00 p.m. on the date specified in the Notice
of Borrowing by deposit, in Canadian Dollars, of immediately available
funds at the offices of
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the Canadian Administrative Agent at its principal office in Toronto,
Ontario or at such other address as the Canadian Administrative Agent
may designate in writing. The amount of the requested Canadian
Revolving Loans will then be made available to the Canadian Borrower by
the Canadian Administrative Agent by crediting the account of the
Canadian Borrower on the books of such office of the Canadian
Administrative Agent, to the extent the amount of such Canadian
Revolving Loans are made available to the Canadian Administrative
Agent.
No Canadian Lender shall be responsible for the failure or
delay by any other Canadian Lender in its obligation to make Canadian
Revolving Loans hereunder; provided, however, that the failure of any
Canadian Lender to fulfill its obligations hereunder shall not relieve
any other Canadian Lender of its obligations hereunder. Unless the
Canadian Administrative Agent shall have been notified by any Canadian
Lender prior to the date of any such Canadian Revolving Loan that such
Canadian Lender does not intend to make available to the Canadian
Administrative Agent its portion of any Canadian Revolving Loans to be
made on such date, the Canadian Administrative Agent may assume that
such Canadian Lender has made such amount available to the Canadian
Administrative Agent on the date of such Canadian Revolving Loans, and
the Canadian Administrative Agent in reliance upon such assumption, may
(in its sole discretion but without any obligation to do so) make
available to the Canadian Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Canadian
Administrative Agent, the Canadian Administrative Agent shall be able
to recover such corresponding amount from such Canadian Lender. If such
Canadian Lender does not pay such corresponding amount forthwith upon
the Canadian Administrative Agent's demand therefor, the Canadian
Administrative Agent will promptly notify the Canadian Borrower, and
the Canadian Borrower shall immediately pay such corresponding amount
to the Canadian Administrative Agent. The Canadian Administrative Agent
shall also be entitled to recover from the Canadian Lender or the
Canadian Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount
was made available by the Canadian Administrative Agent to the Canadian
Borrower to the date such corresponding amount is recovered by the
Canadian Administrative Agent at a per annum rate equal to (i) from the
Canadian Borrower at the applicable rate for such Canadian Revolving
Loan pursuant to the Notice of Borrowing and (ii) from a Canadian
Lender at the CDOR Rate determined as at the date of such Canadian
Revolving Loan.
(d) Reductions of Canadian Revolving Committed Amount. Upon at
least three Business Days' notice, the Canadian Borrower shall have the
right to permanently reduce, without premium or penalty (other than as
may be required pursuant to Section 4.14), all or part of the aggregate
unused amount of the Canadian Revolving Committed Amount at any time or
from time to time; provided that (i) each partial reduction shall be in
an aggregate amount at least equal to C$5,000,000 and in integral
multiples of C$500,000 above such amount and (ii) no reduction shall be
made which would reduce the Canadian Revolving Committed Amount to an
amount less than the aggregate amount of outstanding Canadian Revolving
Loans plus the aggregate amount of outstanding Canadian LOC Obligations
plus the aggregate amount of Canadian Swingline Loans outstanding plus
the aggregate Face Amount of Bankers' Acceptances. Any reduction in (or
termination of) the Canadian Revolving Committed Amount shall be
permanent and may not be reinstated. The
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Canadian Administrative Agent shall immediately notify the Canadian
Lenders of any reduction in the Canadian Revolving Committed Amount.
(e) Repayment; Canadian Revolving Notes. The Canadian Borrower
hereby promises to repay in full the principal amount of all Canadian
Revolving Loans on the Maturity Date. Upon the request of any Canadian
Lender made through the Administrative Agents, the Canadian Revolving
Loans made by each Canadian Lender shall be evidenced by, in addition
to the loan accounts referenced in Section 4.15, a duly executed
promissory note of the Canadian Borrower to such Canadian Lender in an
original principal amount equal to such Canadian Lender's Canadian
Revolving Loan Commitment Percentage of the Canadian Revolving
Committed Amount and in substantially the form of Exhibit 3.1(e).
3.2 CANADIAN LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Canadian Issuing Lender may reasonably require (so long as such
terms and conditions do not impose any financial obligation on or
require any Lien (not otherwise contemplated by this Credit Agreement)
to be given by any Credit Party or conflict with any obligation of, or
detract from any action which may be taken by, any Credit Party under
this Credit Agreement), the Canadian Issuing Lender shall from time to
time upon request issue (from the Effective Date to the Maturity Date
or such earlier date on which the Canadian LOC Commitment has been
terminated as provided herein and in a form reasonably acceptable to
the Canadian Issuing Lender), in Canadian Dollars, and the Canadian
Lenders shall participate in, letters of credit ("Canadian Letters of
Credit") for the account of the Canadian Borrower or any of its
Subsidiaries; provided, however, that (i) the aggregate amount of
Canadian LOC Obligations shall not at any time exceed THIRTY-FIVE
MILLION CANADIAN DOLLARS (C$35,000,000) (the "Canadian LOC Committed
Amount"), (ii) the sum of the aggregate amount of Canadian LOC
Obligations outstanding plus Canadian Revolving Loans outstanding plus
Canadian Swingline Loans outstanding plus the Face Amount of Bankers'
Acceptances outstanding shall not exceed the Canadian Revolving
Committed Amount and (iii) with respect to each individual Canadian
Lender (other than the Canadian Swingline Lender in its capacity as
such), such Lender's pro rata share of outstanding Canadian Revolving
Loans plus its pro rata share of outstanding Canadian LOC Obligations
plus its pro rata share of Canadian Swingline Loans outstanding plus
its pro rata share of the Face Amount of Bankers' Acceptances
outstanding shall not exceed such Lender's Canadian Revolving Loan
Commitment Percentage of the Canadian Revolving Committed Amount. The
Canadian Issuing Lender may require the issuance and expiry date of
each Canadian Letter of Credit to be a Business Day. Each Canadian
Letter of Credit shall be either (A) a standby letter of credit issued
to support the obligations (including pension or insurance
obligations), contingent or otherwise, of the Canadian Borrower for
itself or on behalf of one of its Subsidiaries or (B) a commercial
letter of credit in respect of the purchase of goods or services by the
Canadian Borrower for itself or on behalf of one of its Subsidiaries in
the ordinary course of business. Except as otherwise expressly agreed
upon by all the Canadian Lenders, no Canadian Letter of Credit shall
have an original expiry date more than one year from the date of
issuance, or as extended, shall have an expiry date extending beyond
the Maturity Date. Each Canadian Letter of Credit shall comply with the
related LOC Documents.
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(b) Notice and Reports. The request for the issuance of a
Canadian Letter of Credit shall be submitted to the Canadian Issuing
Lender at least three Business Days prior to the requested date of
issuance (or such shorter period as may be reasonably acceptable to the
Canadian Issuing Lender) and shall be accompanied by a certification
that the Canadian Borrower has complied in all respects with Section
6.2. The Canadian Issuing Lender will provide to the Canadian
Administrative Agent prompt notice of Canadian Letters of Credit which
are issued within three (3) Business Days, and including in such
notice, among other things, the account party, the beneficiary, the
face amount, and the expiry date. The Canadian Issuing Lender will
further provide to the Canadian Administrative Agent, promptly upon
request, copies of the Canadian Letters of Credit and the other LOC
Documents.
(c) Participations.
(i) [Intentionally omitted.]
(ii) Each Canadian Lender, upon issuance of a
Canadian Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the Canadian
Issuing Lender in such Letter of Credit and each LOC Document
related thereto and the rights and obligations arising
thereunder and any collateral relating thereto, in each case
in an amount equal to its Canadian Revolving Loan Commitment
Percentage of the obligations under such Letter of Credit, and
shall absolutely, unconditionally and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to
the Canadian Issuing Lender therefor and discharge when due,
its Canadian Revolving Loan Commitment Percentage of the
obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Canadian Lender's
participation in any Canadian Letter of Credit, to the extent
that the Canadian Issuing Lender has not been reimbursed as
required hereunder or under any such Letter of Credit, each
such Canadian Lender shall pay to the Canadian Issuing Lender
its Canadian Revolving Loan Commitment Percentage of such
unreimbursed drawing in same day funds on the day of
notification by the Canadian Issuing Lender of an unreimbursed
drawing pursuant to the provisions of subsection (d) or (e)
hereof. The obligation of each Canadian Lender to so reimburse
the Canadian Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair
the obligation of the Canadian Borrower or any other Credit
Party to reimburse the Canadian Issuing Lender under any
Canadian Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Canadian Letter of Credit, the Canadian Issuing Lender will promptly
notify the Canadian Borrower. Unless the Canadian Borrower shall
immediately notify the Canadian Issuing Lender of its intent to
otherwise reimburse the Canadian Issuing Lender, including through a
Canadian Swingline
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Loan to the extent a Canadian Swingline Loan in such amount is
available (including the ability of the Canadian Borrower to meet the
conditions of Section 6.2), then the Canadian Borrower shall be deemed
to have requested a Canadian Revolving Loan bearing interest based upon
the Canadian Prime Rate and in the amount of the drawing, the proceeds
of which will be used to satisfy the reimbursement obligations. The
Canadian Borrower shall reimburse the Canadian Issuing Lender on the
day of drawing under any Canadian Letter of Credit either with the
proceeds of such Canadian Swingline Loan or Canadian Revolving Loan
obtained hereunder or otherwise in same day funds as provided herein or
in the LOC Documents. If the Canadian Borrower shall fail to reimburse
the Canadian Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to
the Adjusted Canadian Prime Rate plus 200 basis points. The Canadian
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of (but without
waiver of) any rights of set-off, counterclaim or defense to payment
the applicable account party or the Canadian Borrower may claim or have
against the Canadian Issuing Lender, an Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person,
including, without limitation, any defense based on any failure of the
applicable account party, the Canadian Borrower or any other Credit
Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit. The Canadian Issuing Lender
will promptly notify the Canadian Administrative Agent who will
promptly notify the Canadian Lenders of the amount of any unreimbursed
drawing and each Canadian Lender shall promptly pay to the Canadian
Administrative Agent for further credit to the Canadian Issuing Lender,
in Canadian Dollars and in immediately available funds, the amount of
such Lender's Canadian Revolving Loan Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such notice
is received by such Lender from the Canadian Administrative Agent if
such notice is received at or before 12:00 noon (Toronto, Ontario
time); otherwise, such payment shall be made at or before 12:00 noon
(Toronto, Ontario time) on the Business Day next succeeding the day
such notice is received. If such Lender does not pay such amount to the
Canadian Administrative Agent for the benefit of the Canadian Issuing
Lender in full upon such request, such Lender shall, on demand, pay to
the Canadian Administrative Agent for the benefit of the Canadian
Issuing Lender interest on the unpaid amount during the period from the
date the Lender received the notice regarding the unreimbursed drawing
until such Lender pays such amount to the Canadian Issuing Lender in
full at a rate per annum equal to, if paid within two Business Days of
the date of drawing, the CDOR Rate determined as at the date of drawing
and thereafter at a rate equal to the Canadian Prime Rate. Each
Canadian Lender's obligation to make such payment to the Canadian
Administrative Agent for the benefit of the Canadian Issuing Lender,
and the right of the Canadian Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations
hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such
payment by a Canadian Lender to the Canadian Administrative Agent for
the benefit of the Canadian Issuing Lender, such Canadian Lender shall,
automatically and without any further action on the part of the
Canadian Issuing Lender or such Lender, acquire a participation in an
amount equal to such payment (excluding the portion of such payment
constituting interest
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owing to the Canadian Issuing Lender) in the related unreimbursed
drawing portion of the LOC Obligation and in the interest thereon and
in the related LOC Documents, and shall have a claim against the
Canadian Borrower and the other Credit Parties with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Canadian Borrower shall have requested, or been deemed to have
requested, a Canadian Revolving Loan borrowing to reimburse a drawing
under a Canadian Letter of Credit (as set forth in clause (d) above),
the Canadian Administrative Agent shall give notice to the Canadian
Lenders that a Canadian Revolving Loan has been requested or deemed
requested in connection with a drawing under a Canadian Letter of
Credit, in which case a Canadian Revolving Loan borrowing comprised
solely of Canadian Prime Rate Loans (each such borrowing, a "Mandatory
Canadian Borrowing") shall be immediately made from all Canadian
Lenders (without giving effect to any termination of the Commitments
pursuant to Section 10.2) pro rata based on each Canadian Lender's
respective Canadian Revolving Loan Commitment Percentage and the
proceeds thereof shall be paid directly to the Canadian Issuing Lender
for application to the respective Canadian LOC Obligations. Each
Canadian Lender hereby irrevocably agrees to make such Canadian
Revolving Loans immediately upon any such request or deemed request on
account of each such Mandatory Canadian Borrowing in the amount and in
the manner specified in the preceding sentence and on the same such
date notwithstanding (i) the amount of Mandatory Canadian Borrowing may
not comply with the minimum amount for borrowings of Canadian Revolving
Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 6.2 are then satisfied, (iii) whether a Default or
Event of Default then exists, (iv) failure of any such request or
deemed request for Canadian Revolving Loans to be made by the time
otherwise required hereunder, (v) the date of such Mandatory Canadian
Borrowing, or (vi) any reduction in the Canadian Revolving Committed
Amount or any termination of the Commitments. In the event that any
Mandatory Canadian Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect
to the Canadian Borrower or any other Credit Party), then each Canadian
Lender hereby agrees that it shall forthwith fund (as of the date the
Mandatory Canadian Borrowing would otherwise have occurred, but
adjusted for any payments received from the Canadian Borrower on or
after such date and prior to such purchase) its Participation Interest
in the outstanding Canadian LOC Obligations; provided, further, that in
the event any Canadian Lender shall fail to fund its Participation
Interest on the day the Mandatory Canadian Borrowing would otherwise
have occurred, then the amount of such Lender's unfunded Participation
Interest therein shall bear interest payable to the Canadian Issuing
Lender upon demand, at the rate equal to, if paid within two Business
Days of such date, the CDOR Rate determined as at such date, and
thereafter at a rate equal to the Canadian Prime Rate.
(f) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extension to any
Canadian Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Canadian Letter of Credit
hereunder.
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(g) Uniform Customs and Practices. The Canadian Issuing Lender
may have the Canadian Letters of Credit be subject to The Uniform
Customs and Practice for Documentary Credits, as published as of the
date of issue by the International Chamber of Commerce (Publication No.
500 or the most recent publication, the "UCP"), in which case the UCP
may be incorporated therein and deemed in all respects to be a part
thereof.
(h) Responsibility of Canadian Issuing Lender. It is expressly
understood and agreed as between the Canadian Lenders that the
obligations of the Canadian Issuing Lender hereunder to the Canadian
Lenders are only those expressly set forth in this Credit Agreement and
that the Canadian Issuing Lender shall be entitled to assume that the
conditions precedent set forth in Section 6.2 have been satisfied
unless it shall have acquired actual knowledge that any such condition
precedent has not been satisfied; provided, however, that nothing set
forth in this Section 3.2 shall be deemed to prejudice the right of any
Canadian Lender to recover from the Canadian Issuing Lender any amounts
made available by such Lender to the Canadian Issuing Lender pursuant
to this Section 3.2 in the event that it is determined by a court of
competent jurisdiction that the payment with respect to a Canadian
Letter of Credit constituted gross negligence or willful misconduct on
the part of the Canadian Issuing Lender.
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (other than a Letter
of Credit itself to the extent the UCP or the Uniform Commercial Code
requires such Letter of Credit to govern), this Credit Agreement shall
govern.
(j) Indemnification of Canadian Issuing Lender.
(i) In addition to their other obligations under this
Credit Agreement, the Canadian Credit Parties hereby agree to
protect, indemnify, pay and save the Canadian Issuing Lender
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Canadian
Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of any Canadian Letter
of Credit or (B) the failure of the Canadian Issuing Lender to
honor a drawing under a Canadian Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Authority
(all such acts or omissions, herein called "Government Acts").
(ii) As between the Canadian Credit Parties and the
Canadian Issuing Lender, the Canadian Credit Parties shall
assume all risks of the acts, omissions or misuse of any
Canadian Letter of Credit by the beneficiary thereof. The
Canadian Issuing Lender shall not be responsible for (except
in the case of (A), (B) and (C) below if the Canadian Issuing
Lender has actual knowledge to the contrary): (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of or the presentation for
payment and honoring of any Canadian Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument
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transferring or assigning or purporting to transfer or assign
any Canadian Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) failure
of the beneficiary of a Canadian Letter of Credit to comply
fully with conditions (other than those explicitly set forth
in the applicable Letter of Credit) required in order to draw
upon a Canadian Letter of Credit; (D) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, courier, cable, telegraph, telex, telecopy
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Canadian Letter of Credit or
of the proceeds thereof; and (G) any consequences arising from
causes beyond the control of the Canadian Issuing Lender,
including, without limitation, any Government Acts. None of
the above shall affect, impair, or prevent the vesting of the
Canadian Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Canadian Issuing Lender,
under or in connection with any Canadian Letter of Credit or
the related certificates, if taken or omitted in good faith,
shall not put the Canadian Issuing Lender under any resulting
liability to any Canadian Credit Party. It is the intention of
the parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Canadian Issuing Lender
against any and all risks involved in the issuance of the
Canadian Letters of Credit, all of which risks are hereby
assumed by the Credit Parties, including, without limitation,
any and all risks of any present or future Government Acts.
The Canadian Issuing Lender shall not, in any way, be liable
for any failure by the Canadian Issuing Lender or anyone else
to pay any drawing under any Canadian Letter of Credit as a
result of any Government Acts or any other cause beyond the
control of the Canadian Issuing Lender.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the Canadian Borrower
contained in this Section 3.2. The obligations of the Canadian
Credit Parties under this subsection (j) shall survive the
termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a Canadian Letter of
Credit shall in any way affect or impair the rights of the
Canadian Issuing Lender to enforce any right, power or benefit
under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the Canadian Credit Parties
shall have no obligation to indemnify the Canadian Issuing
Lender in respect of any liability incurred by the Canadian
Issuing Lender arising solely out of the gross negligence or
willful misconduct of the Canadian Issuing Lender, as
determined by a court of competent jurisdiction. Nothing in
this Credit Agreement shall relieve the Canadian Issuing
Lender of any liability to the Canadian Credit Parties in
respect of any action taken by the Canadian Issuing Lender
which action constitutes gross negligence or willful
misconduct of the Canadian Issuing Lender or a violation of
the UCP or Uniform
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Commercial Code (as applicable), as determined by a court of
competent jurisdiction.
(k) Designation of other Credit Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 3.2(a) hereof, a
Canadian Letter of Credit issued hereunder may contain a statement to
the effect that such Letter of Credit is issued for the account of a
Subsidiary (which is domiciled in Canada) of the Canadian Borrower;
provided that notwithstanding such statement, the Canadian Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Canadian Borrower's reimbursement obligations hereunder with
respect to such Letter of Credit.
3.3 CANADIAN SWINGLINE LOANS SUBFACILITY.
(a) Canadian Swingline Loans. The Canadian Swingline Lender
hereby agrees, on the terms and subject to the conditions set forth
herein and in the other Credit Documents, to make loans to the Canadian
Borrower, in Canadian Dollars, at any time and from time to time during
the period from and including the Effective Date to but not including
the Maturity Date (each such loan, a "Canadian Swingline Loan" and
collectively, the "Canadian Swingline Loans"); provided that (i) the
aggregate principal amount of the Canadian Swingline Loans outstanding
at any one time shall not exceed the Canadian Swingline Committed
Amount and (ii) the aggregate amount of Canadian Swingline Loans
outstanding plus the aggregate amount of Canadian Revolving Loans
outstanding plus the aggregate amount of Canadian LOC Obligations
outstanding plus the Face Amount of Bankers' Acceptances outstanding
shall not exceed the Canadian Revolving Committed Amount. Prior to the
Maturity Date, Canadian Swingline Loans may be repaid and reborrowed by
the Canadian Borrower in accordance with the provisions hereof.
(b) Method of Borrowing and Funding Canadian Swingline Loans.
By no later than 11:00 a.m. (Toronto, Ontario time) on the date of the
requested borrowing of Canadian Swingline Loans the Canadian Borrower
shall provide telephonic notice to the Canadian Swingline Lender,
followed promptly by a written Swingline Loan Request in the form of
Exhibit 2.3(b) (which may be submitted via telecopy), each of such
telephonic notice and such written Swingline Loan Request setting forth
(i) the amount of the requested Canadian Swingline Loan, (ii) the date
of the requested Canadian Swingline Loan and (iii) certification that
the Canadian Borrower has complied in all respects with Section 6.2.
The Canadian Swingline Lender shall initiate the transfer of funds
representing the Canadian Swingline Loan advance to the Canadian
Borrower by 3:00 p.m. (Toronto, Ontario time) on the Business Day of
the requested borrowing.
(c) Repayment and Participations of Canadian Swingline Loans.
The Canadian Borrower agrees to repay all Canadian Swingline Loans
within one Business Day of demand therefor by the Canadian Swingline
Lender. Each repayment of a Canadian Swingline Loan may be accomplished
by requesting Canadian Revolving Loans, which request is not subject to
the conditions set forth in Section 6.2. In the event that the Canadian
Borrower shall fail to timely repay any Canadian Swingline Loan, and in
any event upon (i) a request by the Canadian Swingline Lender made
through the
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Xxxxxxxx Xxxxxxxxxxxxxx Xxxxx, (xx) the occurrence of an Event of
Default described in Section 10.1(f), or (iii) the acceleration of any
Loan or termination of any Commitment pursuant to Section 10.2, each
other Canadian Lender shall irrevocably and unconditionally purchase
from the Canadian Swingline Lender, without recourse or warranty, an
undivided interest and participation in such Canadian Swingline Loan in
an amount equal to such other Canadian Lender's Canadian Revolving Loan
Commitment Percentage thereof, by directly purchasing a participation
in such Swingline Loan in such amount (regardless of whether the
conditions precedent thereto set forth in Section 6.2 hereof are then
satisfied, whether or not the Canadian Borrower has submitted a Notice
of Borrowing and whether or not the Commitments are then in effect, any
Event of Default exists or all the Loans have been accelerated) and
paying the proceeds thereof to the Canadian Administrative Agent on
behalf of the Canadian Swingline Lender at the address provided on
Schedule 12.1, or at such other address as the Canadian Swingline
Lender may designate, in Canadian Dollars and in immediately available
funds. If such amount is not in fact made available to the Canadian
Swingline Lender by any Canadian Lender, the Canadian Swingline Lender
shall be entitled to recover such amount on demand from such Canadian
Lender, together with accrued interest thereon for each day from the
date of demand thereof, at the CDOR Rate determined as at such date. If
such Canadian Lender does not pay such amount forthwith upon the
Canadian Swingline Lender's demand therefor, and until such time as
such Canadian Lender makes the required payment, the Canadian Swingline
Lender shall be deemed to continue to have outstanding Canadian
Swingline Loans in the amount of such unpaid participation obligation
for all purposes of the Credit Documents other than those provisions
requiring the other Canadian Lenders to purchase a participation
therein. Further, such Canadian Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans, and
any other amounts due to it hereunder to the Canadian Swingline Lender
to fund Canadian Swingline Loans in the amount of the participation in
Canadian Swingline Loans that such Canadian Lender failed to purchase
pursuant to this Section 3.3(c) until such amount has been purchased
(as a result of such assignment or otherwise).
(d) Canadian Swingline Note. Upon the request of the Canadian
Swingline Lender, the Canadian Swingline Loans shall be evidenced by,
in addition to the loan accounts referenced in Section 4.15, a duly
executed promissory note of the Canadian Borrower to the Canadian
Swingline Lender in the original principal amount of the Canadian
Swingline Committed Amount and in substantially the form of Exhibit
3.3(d).
3.4 BANKERS' ACCEPTANCES.
(a) Form.
(i) To facilitate the acceptance of Bankers'
Acceptances hereunder, the Canadian Borrower hereby appoints
each Canadian Lender as its attorney to sign and endorse on
its behalf, as and when considered necessary by such Canadian
Lender, an appropriate number of orders in the form prescribed
by that Canadian Lender.
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(ii) Each Canadian Lender may, at its option, execute
any order in handwriting or by the facsimile or mechanical
signature of any of its authorized officers, and the Canadian
Lenders are hereby authorized to accept or pay, as the case
may be, any order of the Canadian Borrower which purports to
bear such a signature notwithstanding that any such individual
has ceased to be an authorized officer of such Canadian
Lender. Any such order or Bankers' Acceptance shall be as
valid as if he or she were an authorized officer at the date
of issue of the order or Bankers' Acceptance.
(iii) Any order signed by a Canadian Lender as
attorney for the Canadian Borrower, whether signed in
handwriting or by the facsimile or mechanical signature of an
authorized officer of a Canadian Lender, may be dealt with by
the Canadian Administrative Agent or any Canadian Lender to
all intents and purposes and shall bind the Canadian Borrower
as if duly signed and issued by the Canadian Borrower.
(iv) The receipt by the Canadian Administrative Agent
of a notice under Section 3.4(c) requesting Bankers'
Acceptances shall be each Canadian Lender's sufficient
authority to execute, and each Canadian Lender shall, subject
to the terms and conditions of this Credit Agreement, execute,
orders in accordance with such request, and the orders so
executed shall thereupon be deemed to have been presented for
acceptance.
(b) Issuance. Subject to the terms and conditions hereof and
of the BA Documents executed in connection with the creation of each
Banker's Acceptance and any other terms and conditions which the
Canadian Lenders may reasonably require (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by the Canadian Borrower or any other Credit Party or conflict with any
obligation of, or detract from any action which may be taken by, any
Credit Party under this Agreement), each Canadian Lender agrees,
severally and not jointly, at any time and from time to time (from the
Effective Date to the Maturity Date or such earlier date on which the
Canadian Revolving Loan Commitment has been terminated as provided
herein), to create Bankers' Acceptances by accepting orders of the
Canadian Borrower presented to it for acceptance equal to such Canadian
Lender's Canadian Revolving Loan Commitment Percentage of such Bankers'
Acceptances as the Canadian Borrower may request on such date;
provided, however, that (i) the sum of the Face Amount of Bankers'
Acceptances outstanding plus the aggregate amount of Canadian Revolving
Loans outstanding plus Canadian LOC Obligations outstanding plus
Canadian Swingline Loans outstanding shall not exceed the Canadian
Revolving Committed Amount, (ii) with respect to each individual
Canadian Lender (other than the Canadian Swingline Lender in its
capacity as such), such Lender's pro rata share of outstanding Canadian
Revolving Loans plus its pro rata share of outstanding Canadian LOC
Obligations plus its pro rata share of Canadian Swingline Loans
outstanding plus its pro rata share of the Face Amount of Bankers'
Acceptances outstanding shall not exceed such Lender's Canadian
Revolving Loan Commitment Percentage of the Canadian Revolving
Committed Amount, and (iii) if the Face Amount of a Bankers'
Acceptance, which would otherwise be accepted by a Canadian Lender,
would not be C$100,000 or a larger multiple
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thereof, such Face Amount shall be increased or reduced by the Canadian
Administrative Agent in its discretion to the nearest multiple of
C$100,000. Upon the acceptance of any order of the Canadian Borrower
pursuant hereto, the Canadian Borrower shall pay to each of the
Canadian Lenders, in advance, the Acceptance Fee. Forthwith after each
request for drawdown of, continuation of or conversion into Bankers'
Acceptances, the Canadian Administrative Agent shall notify each
Canadian Lender of the amount of Bankers' Acceptances to be accepted by
such Canadian Lender. The Canadian Borrower shall as soon as practical
deliver to the Canadian Administrative Agent a notice confirming the
issuance of Bankers' Acceptances and specifying the BA Discount
Proceeds derived therefrom. For greater certainty, with respect to each
extension of credit by way of Bankers' Acceptances, each Bankers'
Acceptance shall have the same term and, upon sale, each Bankers'
Acceptance shall be discounted at the Applicable BA Discount Rate.
(c) Requirements of Bankers' Acceptances. Each Bankers'
Acceptance shall comply with the related BA Documents and shall be
executed by the Canadian Borrower and presented to the Canadian Lenders
pursuant to such procedures as are provided for in such BA Documents or
as otherwise provided or required by a Canadian Lender. The creation
and maturity date of each Bankers' Acceptance shall be a Business Day
and no Bankers' Acceptance shall have a maturity date later than the
Maturity Date.
(d) Method of Requesting a Bankers' Acceptance. By no later
than 10:00 a.m. (Toronto, Ontario time), two Business Days prior to the
date of the requested Bankers' Acceptance, the Canadian Borrower shall
submit an irrevocable notice, substantially in the form of Exhibit
3.4(d), to the Canadian Administrative Agent setting forth the
aggregate amount of Bankers' Acceptances requested and the maturity
date of the requested Bankers' Acceptances which shall be 30, 60, 90 or
180 days, at the election of the Canadian Borrower, and complying in
all respects with subsection 6.2.
(e) Safekeeping of Orders. Any executed orders to be used as
Bankers' Acceptances which are delivered to a Canadian Lender shall be
held in safekeeping with the same degree of care as if they were such
Canadian Lender's own property, and shall be kept at the place at which
such orders are ordinarily held by such Canadian Lender, provided that
such Canadian Lender shall not be deemed to be an insurer thereof.
(f) Maturity/Continuations. The Canadian Borrower shall pay to
the Canadian Administrative Agent, and there shall become due and
payable, at 1:00 p.m. (Toronto, Ontario time) on the maturity date for
each Bankers' Acceptance an amount in Canadian Dollars in same day
funds equal to the Face Amount of such Bankers' Acceptance
(notwithstanding that any Canadian Lender which accepted any such
Bankers' Acceptance may be the holder thereof at maturity); provided,
however, that subject to Section 4.10 and provided that the Canadian
Borrower has, by giving notice in accordance with Section 3.4(c) or
Section 3.5, requested the Canadian Lenders to accept its orders to
replace all or a portion of outstanding Bankers' Acceptances as they
mature, each Canadian Lender shall, on the maturity of such Bankers'
Acceptances and subject to Section 3.4(h), accept the Canadian
Borrower's order(s) having an aggregate Face Amount equal to such
Canadian Lender's pro rata share of such new Face Amount as will result
in the aggregate BA Discount Proceeds, net of the Acceptance Fees, of
the new order(s) being equal to (or, due
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to the operation of Section 3.4(h), exceeding to the least possible
extent) the aggregate Face Amount of the matured Bankers' Acceptances
or the portion thereof to be replaced.
(g) Repayments Prior to Maturity. Repayment of the Face Amount
of a Bankers' Acceptance may be made, prior to the maturity date
thereof, by the Canadian Borrower to the Canadian Lender which has
accepted such Bankers' Acceptance, but the amount repaid shall be held
on deposit by such Canadian Lender until the maturity date of such
Bankers' Acceptance. The Canadian Borrower shall be entitled to the
benefit of any interest accruing on such deposit, and on the maturity
date of such Bankers' Acceptance such Canadian Lender shall apply such
interest in payment of amounts owed by the Canadian Borrower hereunder.
Any such repayment of the Face Amount of a Bankers' Acceptance by the
Canadian Borrower to a Canadian Lender shall satisfy the Canadian
Borrower's obligations under the Bankers' Acceptance so repaid, and
such Canadian Lender shall thereafter be solely responsible for the
payment of such Bankers' Acceptance.
(h) Minimum Amounts. Each request for Bankers' Acceptances
shall be in a minimum aggregate amount of C$1,000,000 and in an
integral multiple of C$1,000,000 above such amount. The Face Amount of
each Bankers' Acceptance created hereunder shall be C$100,000 or any
multiple thereof.
(i) Funding of Bankers' Acceptances.
(i) Subject to subsections (ii) and (iii) below, each
Canadian Lender shall, not later than 1:00 p.m. (Toronto,
Ontario time), on the date of creation of Bankers'
Acceptances, accept orders of the Canadian Borrower which are
presented to it for acceptance in an amount equal to each
Canadian Lender's Canadian Revolving Loan Commitment
Percentage of the aggregate Face Amounts of Bankers'
Acceptances created on such date; provided, however, that if
the Face Amount of a Banker's Acceptance, which would
otherwise be accepted by a Canadian Lender, would not be
C$100,000 or a larger multiple thereof, such Face Amount shall
be increased or reduced by the Canadian Administrative Agent
in its discretion to the nearest multiple of C$100,000.
Subject to the provisions hereof, the Canadian Administrative
Agent shall be responsible for making all necessary
arrangements with each of the Canadian Lenders with respect to
the acceptance of Bankers' Acceptances.
(ii) Each Canadian Lender shall transfer to the Canadian
Administrative Agent for value on such creation date
immediately available Canadian Dollars in an aggregate amount
equal to the BA Discount Proceeds of all Bankers' Acceptances
accepted and sold or purchased by such Canadian Lender on such
date net of the applicable Acceptance Fee and net of the
amount required to pay any of its previously accepted Bankers'
Acceptances that are maturing on such date or its percentage
of any Canadian Revolving Loan that is being converted to
Bankers' Acceptances on such date.
(iii) Subject to subsection 4.10, in the sole judgment of
a Canadian Lender, if such Canadian Lender is unable to create
a Bankers' Acceptance in
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accordance with this Agreement, such Canadian Lender shall
give an irrevocable notice to such effect to the Canadian
Administrative Agent and the Canadian Borrower prior to 10:00
a.m. (Toronto, Ontario time) on the date of the requested
creation of the Bankers' Acceptances. Such Canadian Lender
shall make available to the Canadian Borrower prior to 1:00
p.m. (Toronto, Ontario time), one Business Day prior to the
date of such requested Bankers' Acceptance, a Canadian Dollar
loan in a principal amount equal to the BA Discount Proceeds
of such Canadian Lender's pro rata share of the aggregate of
the Face Amounts of Bankers' Acceptances to be created on such
date and all of such Canadian Dollar loans to be made pursuant
to this Section 3.4(i)(iii) on such date, such loan to be
funded in the same manner as the Bankers' Acceptances provided
by the other Canadian Lenders. Such loan shall have the same
term as the Bankers' Acceptance for which it is a substitute
and shall bear such interest per annum throughout the term
thereof as shall permit such Canadian Lender to obtain the
same effective rate as if such Canadian Lender had accepted
and purchased a Bankers' Acceptance at the same Acceptance Fee
and pricing at which the Canadian Administrative Agent would
have accepted and purchased such Bankers' Acceptance on the
bid side of the market at approximately 1:00 p.m. (Toronto,
Ontario time) on the date such loan is made. The Canadian
Borrower hereby agrees that if such loan is made by a Canadian
Lender interest shall be payable in advance on the date of
such loan by deducting the interest payable in respect thereof
from the principal amount of such loan.
No Canadian Lender shall be responsible for the failure or
delay by any other Canadian Lender in its obligation to create Bankers'
Acceptances hereunder; provided, however, that the failure of any
Canadian Lender to fulfill its Commitment hereunder shall not relieve
any other Canadian Lender of its Commitment hereunder.
3.5 CONTINUATIONS AND CONVERSIONS.
The Canadian Borrower shall have the option, on any Business Day, to
convert a Canadian Revolving Loan (other than a Canadian Swingline Loan) into a
Bankers' Acceptance, to continue a maturing Bankers' Acceptance in accordance
with Section 3.4 or to convert a maturing Bankers' Acceptance into a Canadian
Revolving Loan (other than a Canadian Swingline Loan); provided, however, (i)
each such continuation or conversion must be requested by the Canadian Borrower
pursuant to an irrevocable notice to the Canadian Administrative Agent,
substantially in the form of Exhibit 2.4, in compliance with the terms set forth
below, (ii) the Canadian Borrower must comply with all the requirements of
Section 3.4, and (iii) failure by the Canadian Borrower to properly continue a
Bankers' Acceptance shall be deemed a conversion to a Canadian Revolving Loan.
Each continuation or conversion must be requested by the Canadian Borrower no
later than 11:00 a.m. (Toronto, Ontario time) (A) two Business Days prior to the
date of a requested conversion of a Bankers' Acceptance to a Canadian Revolving
Loan or (B) two Business Days prior to the date of a requested continuation of a
Bankers' Acceptance or conversion of a Canadian Revolving Loan to a Bankers'
Acceptance, in each case pursuant to an irrevocable notice submitted to the
Canadian Administrative Agent which shall set forth (x) that the Loans to be
continued or converted are Canadian Revolving Loans, (y) whether the Canadian
Borrower wishes to continue or convert such Loans and (z) if the request is to
continue a Bankers' Acceptance or convert a Canadian Revolving Loan to a
Bankers' Acceptance, the maturity date applicable thereto. The Canadian
Administrative
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Agent shall give each Canadian Lender notice as promptly as practicable of any
such proposed continuation or conversion pursuant to this Section.
3.6 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Canadian Revolving Loan shall be in a
minimum amount of the lesser of C$500,000 (and integral multiples of C$100,000
in excess thereof) or the remaining amount available under the Canadian
Revolving Committed Amount and (b) each Canadian Swingline Loan shall be in a
minimum amount of C$100,000 (and in integral multiples of C$100,000 in excess
thereof) or the remaining amount of the Canadian Swingline Committed Amount
(provided that this limitation in clause (b) shall not apply for amounts
requested to repay a drawn Letter of Credit pursuant to Section 3.2(d)).
SECTION 4
GENERAL PROVISIONS APPLICABLE TO LOANS,
BANKERS' ACCEPTANCES AND LETTERS OF CREDIT
4.1 INTEREST.
(a) Interest Rate. Subject to the provisions of
Section 4.1(b):
(i) Swingline Loans. All U.S. Swingline Loans shall
accrue interest at the Adjusted Base Rate or an alternative
rate mutually agreeable to the U.S. Swingline Lender and the
U.S. Borrower; provided that during an Event of Default all
U.S. Swingline Loans shall accrue interest at the Adjusted
Base Rate. All Canadian Swingline Loans shall accrue interest
at the Adjusted Canadian Prime Rate or an alternative rate
mutually agreeable to the Canadian Swingline Lender and the
Canadian Borrower; provided that during an Event of Default
all Canadian Swingline Loans shall accrue interest at the
Adjusted Canadian Prime Rate.
(ii) Base Rate Loans. During such periods as U.S.
Revolving Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at a per
annum rate equal to the Adjusted Base Rate.
(iii) Eurodollar Loans. During such periods as U.S.
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
(iv) Canadian Prime Rate Loans. During such periods
as Canadian Revolving Loans shall be comprised of Canadian
Prime Rate Loans, such Canadian Prime Rate Loans shall bear
interest at a rate per annum equal to the Adjusted Canadian
Prime Rate.
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(b) Default Rate of Interest. Upon the occurrence, and during
the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents (including without
limitation fees and expenses) shall bear interest, payable on demand,
at a per annum rate equal to 2% plus the rate which would otherwise be
applicable (or if no rate is applicable, then the Adjusted Base Rate
plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date and each Borrower
hereby promises to pay interest on all Loans made to it on each such
Interest Payment Date.. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be deemed
to be the next succeeding Business Day, except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business
Day.
4.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest and fees in connection with the
Canadian Revolving Loans, Canadian Swingline Loans, BA Obligations and Canadian
LOC Obligations shall be made by the Canadian Borrower to the Canadian
Administrative Agent or the Canadian Swingline Lender, as applicable, on the
date due by 2:00 p.m., Toronto, Ontario time, (in Canadian Dollars) in
immediately available funds, without setoff, deduction, counterclaim or
withholding of any kind. All other payments of principal, interest, fees,
expenses and other amounts to be made by the Borrowers under this Credit
Agreement (including, but not limited to, the U.S. Revolving Loans, the U.S.
Swing Line Loans and the U.S. LOC Obligations) shall be received not later than
2:00 p.m. on the date when due in Dollars and in immediately available funds,
without setoff, deduction, counterclaim or withholding of any kind, by the U.S.
Administrative Agent or the U.S. Swingline Lender, as applicable. A Borrower
shall, at the time it makes any payment under this Agreement, specify to the
U.S. Administrative Agent, or the Canadian Administrative Agent as applicable,
the Loans, Letters of Credit, Bankers' Acceptances, fees or other amounts
payable by the Borrowers hereunder to which such payment is to be applied (and
in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the U.S. Administrative Agent, or the
Canadian Administrative Agent as applicable, shall distribute such payment to
the Lenders in the manner described in Section 10.3. The U.S. Administrative
Agent or the Canadian Administrative Agent, as applicable, will distribute such
payments to the applicable Lenders on the date of receipt if any such payment is
received prior to 2:00 p.m. (Eastern Standard or Eastern Daylight time or
Toronto, Ontario time, as applicable); otherwise the U.S. Administrative Agent
or the Canadian Administrative Agent, as applicable, will distribute such
payment to the applicable Lenders on the next succeeding Business Day. Whenever
any payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day.
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4.3 VOLUNTARY PREPAYMENTS.
The Borrowers shall have the right to prepay Loans in whole or in part
from time to time without premium or penalty; provided, however, that (i)
Eurodollar Loans may only be prepaid on three Business Day's prior written
notice to the U.S. Administrative Agent and any prepayment of Eurodollar Loans
will be subject to Section 4.14; (ii) that portion of the Canadian Revolving
Loan Commitment subject to the creation of a Bankers' Acceptance may be prepaid
prior to the maturity of such Bankers' Acceptance only in accordance with
Section 3.4(g); (iii) each such partial prepayment of Loans (other than
Swingline Loans) shall be in the minimum principal amount of C$1,000,000 or
$1,000,000, as applicable, and integral multiples of C$500,000 or $500,000,
respectively; and (iv) any partial prepayment of Swingline Loans shall be in a
minimum aggregate principal amount of C$100,000 or $100,000, as applicable.
Amounts prepaid hereunder shall be applied as the Borrowers may elect; provided
that (A) if the U.S. Borrower fails to specify a voluntary prepayment as to the
U.S. Revolving Loans then such prepayment shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities, and (B) if the Canadian Borrower fails to specify a voluntary
prepayment as to the Canadian Revolving Loan Commitment then such prepayments
shall be applied first to Canadian Revolving Loans and then to BA Obligations
(as they mature) in direct order of maturities.
4.4 FEES.
(a) Commitment Fees. In consideration of the U.S. Revolving
Committed Amount being made available by the U.S. Lenders hereunder,
the U.S. Borrower agrees to pay to the U.S. Administrative Agent, for
the pro rata benefit of each U.S. Lender (based on each U.S. Lender's
U.S. Revolving Loan Commitment Percentage of the U.S. Revolving
Committed Amount), a per annum fee equal to the Applicable Percentage
for Commitment Fees multiplied by the U.S. Unused Revolving Commitment
(the "U.S. Commitment Fees"). In consideration of the Canadian
Revolving Committed Amount being made available by the Canadian Lenders
hereunder, the Canadian Borrower agrees to pay to the Canadian
Administrative Agent, for the pro rata benefit of each Canadian Lender
(based on each Canadian Lender's Canadian Revolving Loan Commitment
Percentage of the Canadian Revolving Committed Amount), a per annum fee
equal to the Applicable Percentage for Commitment Fees multiplied by
the Canadian Unused Revolving Commitment (the "Canadian Commitment
Fees") (collectively, the U.S. Commitment Fees and the Canadian
Commitment Fees are referred to herein as the "Commitment Fees"). The
Commitment Fees shall commence to accrue on the Effective Date and
shall be due and payable in arrears on the last day of each calendar
quarter (as well as on the Maturity Date) for the immediately preceding
calendar quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(b) Letter of Credit Fees. In consideration of the issuance of
U.S. Letters of Credit hereunder, the U.S. Borrower agrees to pay to
the U.S. Issuing Lender for the pro rata benefit of the U.S. Lenders
(based on each U.S. Lender's U.S. Revolving Loan Commitment Percentage
of the U.S. Revolving Committed Amount), a per annum fee (the "U.S.
Letter of Credit Fees") equal to (i) the Applicable Percentage for U.S.
Standby Letter of Credit Fees multiplied by the U.S. Standby Letter of
Credit Outstanding Amount plus (ii) the Applicable Percentage for U.S.
Trade Letter of Credit Fees multiplied by the U.S. Trade
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Letter of Credit Outstanding Amount. In consideration of the issuance
of Canadian Letters of Credit hereunder, the Canadian Borrower agrees
to pay to the Canadian Issuing Lender for the pro rata benefit of the
Canadian Lenders (based on each Canadian Lender's Canadian Revolving
Loan Commitment Percentage of the Canadian Revolving Committed Amount),
a per annum fee (the "Canadian Letter of Credit Fees") equal to the
Applicable Percentage for the Canadian Letter of Credit Fees multiplied
by the Canadian Letter of Credit Outstanding Amount (collectively, the
U.S. Letter of Credit Fees and the Canadian Letter of Credit Fees
referred to as the "Letter of Credit Fees."). The Letter of Credit Fees
will be payable in arrears on the last day of each calendar quarter (as
well as on the Maturity Date) for the immediately preceding calendar
quarter (or portion thereof), beginning with the first of such dates to
occur after the Closing Date.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to clause (b) above, each Borrower shall pay to
the applicable Issuing Lender for its own account, without sharing by
the other Lenders, (i) the customary charges from time to time to the
Issuing Lender for its services in connection with the issuance,
amendment, payment, transfer, administration, cancellation and
conversion of, and drawings under, Letters of Credit, and (ii) a letter
of credit fronting fee of 0.125% of the face amount of each Letter of
Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Fees. The Borrowers agree to pay to the
Administrative Agents, for their own account, an annual fee (the
"Administrative Fees") in accordance with the terms of the Fee Letter.
4.5 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans, Swingline Loans, LOC Obligations and BA Obligations, together
with accrued but unpaid interest and all other sums owing with respect thereto,
shall be due and payable in full, unless accelerated sooner pursuant to Section
10.2.
4.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans and Canadian Prime Rate Loans,
in which case interest shall be computed on the basis of a 365 or 366
day year as the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days. Interest shall accrue from and include
the date of borrowing (or continuation or conversion) but exclude the
date of payment. For purposes of the Interest Act (Canada), if interest
computed on the basis of a 360-day year is payable for any part of a
calendar year, the equivalent yearly rate of interest may be determined
by multiplying the specified rate of interest by the number of days
(365 or 366) in such calendar year and dividing such product by 360.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrowers are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing
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or hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrowers or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans
or any other Indebtedness evidenced by any of the Credit Documents does
not include the right to accelerate the payment of any interest which
has not otherwise accrued on the date of such demand, and the Lenders
do not intend to charge or receive any unearned interest in the event
of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
4.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing (including, without
limitation, each Mandatory U.S. Borrowing and each Mandatory Canadian
Borrowing), each creation of Bankers' Acceptances, each payment or
prepayment of principal of any Loan, each payment of fees (other than
the Issuing Lender Fees retained by the applicable Issuing Lender for
its own account and the Administrative Fees retained by the applicable
Administrative Agent for its own account), each reduction of the U.S.
Revolving Committed Amount or the Canadian Revolving Committed Amount,
and each conversion or continuation of any Loan (other than a Swingline
Loan), shall (except as otherwise provided in Section 4.11) be
allocated pro rata among the relevant Lenders in accordance with the
respective U.S. Revolving Loan Commitment Percentages or Canadian
Revolving Loan Commitment Percentages, as applicable, of such Lenders
(or, if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal amounts of the
outstanding Loans, Bankers' Acceptances and Participation Interests of
such Lenders); provided that, if any Lender shall have failed to pay
its applicable pro rata share of any Revolving Loan, then any amount to
which such Lender would otherwise be entitled pursuant to this
subsection (a) shall instead be payable to the applicable
Administrative Agent until the share of such Loan not funded by such
Lender has been repaid; provided
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further, that in the event any amount paid to any Lender pursuant to
this subsection (a) is rescinded or must otherwise be returned by an
Administrative Agent, each Lender shall, upon the request of such
Administrative Agent, repay to such Administrative Agent the amount so
paid to such Lender, with interest for the period commencing on the
date such payment is returned by such Administrative Agent until the
date such Administrative Agent receives such repayment at a rate per
annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Rate (or, with
respect to a Canadian Lender, the CDOR Rate), and thereafter, the Base
Rate (or, with respect to a Canadian Lender, the Canadian Prime Rate)
plus two percent (2%) per annum.
(b) Letters of Credit.
(i) Each payment of unreimbursed drawings in respect
of U.S. LOC Obligations shall be allocated to each U.S. Lender
pro rata in accordance with its U.S. Revolving Loan Commitment
Percentage; provided that, if any U.S. Lender shall have
failed to pay its applicable pro rata share of any drawing
under any U.S. Letter of Credit, then any amount to which such
U.S. Lender would otherwise be entitled pursuant to this
subsection (b) shall instead (to the extent of such
non-payment) be payable to the U.S. Issuing Lender until the
share of such unreimbursed drawing not funded by such U.S.
Lender has been repaid; provided further, that in the event
any amount paid to any U.S. Lender pursuant to this subsection
(b) is rescinded or must otherwise be returned by the U.S.
Issuing Lender, each U.S. Lender shall, upon the request of
the Issuing Lender, repay to the U.S. Administrative Agent for
the account of the U.S. Issuing Lender the amount so paid to
such U.S. Lender, with interest for the period commencing on
the date such payment is returned by the U.S. Issuing Lender
until the date the U.S. Issuing Lender receives such repayment
at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the
Federal Funds Rate, and thereafter, the Adjusted Base Rate
plus two percent (2%) per annum.
(ii) Each payment of unreimbursed drawings in respect
of Canadian LOC Obligations shall be allocated to each
Canadian Lender pro rata in accordance with its Canadian
Revolving Loan Commitment Percentage; provided that, if any
Canadian Lender shall have failed to pay its applicable pro
rata share of any drawing under any Canadian Letter of Credit,
then any amount to which such Canadian Lender would otherwise
be entitled pursuant to this subsection (b) shall instead be
payable to the Canadian Issuing Lender until the share of such
unreimbursed drawing not funded by such Canadian Lender has
been repaid; provided further, that in the event any amount
paid to any Canadian Lender pursuant to this subsection (b) is
rescinded or must otherwise be returned by the Canadian
Issuing Lender, each Canadian Lender shall, upon the request
of the Issuing Lender, repay to the Canadian Administrative
Agent for the account of the Canadian Issuing Lender the
amount so paid to such Canadian Lender, with interest for the
period commencing on the date such payment is returned by the
Canadian Issuing Lender until the date the Canadian Issuing
Lender receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days
after
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such request, the CDOR Rate, and thereafter, the Adjusted
Canadian Prime Rate plus two percent (2%) per annum.
4.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan or Bankers' Acceptance, unreimbursed drawing with respect to any LOC
Obligations or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other applicable Lenders a
participation in such Loans, LOC Obligations, BA Obligations and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all applicable Lenders share such payment
in accordance with their respective ratable shares as provided for in this
Credit Agreement. The Lenders further agree among themselves that if payment to
a Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrowers agree that any
Lender so purchasing such a participation may, to the fullest extent permitted
by law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan, LOC Obligation, BA Obligation or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or an Agent shall fail to remit to an Agent or
any other Lender an amount payable by such Lender or such Agent to such Agent or
such other Lender pursuant to this Credit Agreement on the date when such amount
is due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to such
Agent or such other Lender at a rate per annum equal to the Federal Funds Rate.
If under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section 4.8 applies,
such Lender shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Lenders under
this Section 4.8 to share in the benefits of any recovery on such secured claim,
with the costs of such exercise of rights being shared pro rata among the
applicable Lenders sharing in such benefits.
4.9 CAPITAL ADEQUACY.
If, after the date hereof, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender, or its parent corporation, 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,
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has or would have the effect of reducing the rate of return on such Lender's (or
parent corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender, or its parent
corporation, could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's)
policies with respect to capital adequacy), then, upon notice from such Lender
to the Borrowers, the Borrowers shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an after-tax
basis (after taking into account applicable deductions and credits in respect of
the amount indemnified) for such reduction. Each determination by any such
Lender of amounts owing under this Section shall, absent manifest error, be
conclusive and binding on the parties hereto. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
4.10 INABILITY TO DETERMINE INTEREST RATE OR CREATE
BANKERS' ACCEPTANCES.
(a) If prior to the first day of any Interest Period, the U.S.
Administrative Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the U.S. Borrower)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, the U.S. Administrative Agent
shall give telecopy or telephonic notice thereof to the U.S. Borrower
and the U.S. Lenders as soon as practicable thereafter, and will also
give prompt written notice to the U.S. Borrower when such conditions no
longer exist. If such notice is given (a) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (b) any Loans that were to have been converted
on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Base Rate Loans and (c) any
outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Base Rate Loans. Until such notice is
withdrawn by the U.S. Administrative Agent, no further Eurodollar Loans
shall be made or continued as such, nor shall the U.S. Borrower have
the right to convert Base Rate Loans to Eurodollar Loans.
(b) If the Canadian Administrative Agent determines in good
faith, which determination shall be final, conclusive and binding upon
the Canadian Borrower absent manifest error, and notifies the Canadian
Borrower and each of the Canadian Lenders that, by reason of
circumstances affecting the money market (i) there is no market for
Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is
insufficient to allow the sale or trading of the Bankers' Acceptances
created and purchased hereunder, then,
(A) the right of the Canadian Borrower to request a
borrowing by way of Bankers' Acceptances shall be suspended
until the Canadian Administrative Agent determines in good
faith that the circumstances causing such suspension no longer
exist and the Canadian Administrative Agent so notifies the
Canadian Borrower; and
(B) any notice of requested Bankers' Acceptances
which is outstanding shall be canceled and the Bankers'
Acceptance requested therein shall not be made.
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(C) The Canadian Administrative Agent shall promptly
notify the Canadian Borrower of the suspension of the Canadian
Borrower's right to request a Bankers' Acceptance and of the
termination of any such suspension.
4.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrowers
and the Administrative Agents (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to a Eurodollar Loan shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days or the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrowers shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 4.14.
4.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loans
made by it, any Bankers Acceptances issued by it or its obligation to
make Eurodollar Loans, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered
by Section 4.13 (including Non-Excluded Taxes imposed solely by reason
of any failure of such Lender to comply with its obligations under
Section 4.13(b)) and changes in taxes measured by or imposed upon the
overall net income, or franchise tax (imposed in lieu of such net
income tax), of such Lender or its applicable lending office, branch,
or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate or the
Acceptance Fee in respect of Bankers' Acceptances hereunder; or
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(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or creating or accepting Bankers' Acceptances or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, upon
notice to the Borrowers from such Lender, through either of the Agents, in
accordance herewith, the Borrowers shall be obligated to promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender on an after-tax basis (after taking into account applicable deductions
and credits in respect of the amount indemnified) for such increased cost or
reduced amount receivable. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.13 TAXES.
(a) Except as provided below in this Section 4.13, all
payments made by the Borrowers under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official,
excluding taxes measured by or imposed upon the net income of any
Lender or its applicable lending office, or any branch or affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business
or taxes on the capital or net worth of any Lender or its applicable
lending office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes: (i) by the jurisdiction under the
laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to an Agent or any Lender hereunder or under any
Notes, (A) the amounts so payable to an Agent or such Lender shall be
increased to the extent necessary to yield to an Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in
this Credit Agreement and any Notes, provided, however, that the
Borrower shall be entitled to deduct and withhold any Non-Excluded
Taxes and shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of
America or a state thereof if such Lender fails to comply with the
requirements of paragraph (b) of this Section 4.13 whenever any
Non-Excluded Taxes are payable by the Borrowers, and (B) as promptly as
possible after requested the Borrowers shall send to such Agent for its
own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the
Borrowers showing payment thereof. If the Borrowers fail to pay any
Non-Excluded Taxes when due to the appropriate taxing
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authority or fails to remit to the applicable Administrative Agent the
required receipts or other required documentary evidence, the Borrowers
shall indemnify the Agents and any Lender for any incremental
Non-Excluded Taxes, interest or penalties that may become payable by an
Agent or any Lender as a result of any such failure. The agreements in
this subsection shall survive the termination of this Credit Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the
U.S. Borrower under this Credit Agreement or Notes to such
Lender, deliver to the U.S. Borrower and the U.S.
Administrative Agent (x) two duly completed copies of United
States Internal Revenue Service Form 4224 or 1001, or
successor applicable form (including without limitation Form
W-8ECI or W-8BEN), as the case may be, certifying that it is
entitled to receive payments under this Credit Agreement and
any Notes without deduction or withholding of any United
States federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the
case may be, certifying that it is entitled to an exemption
from United States backup withholding tax;
(B) deliver to the U.S. Borrower and the
U.S. Administrative Agent two further copies of any such form
or certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the U.S. Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the U.S. Borrower or the U.S.
Administrative Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (A) represent to the U.S. Borrower (for
the benefit of the U.S. Borrower and the U.S. Administrative
Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Internal Revenue Code, (B) agree to
furnish to the U.S. Borrower, on or before the date of any
payment by the U.S. Borrower, with a copy to the U.S.
Administrative Agent, two accurate and complete original
signed copies of Internal Revenue Service Form W-8, or
successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption
from U.S. withholding tax under the provisions of Section
881(c) of the Internal Revenue Code with respect to payments
to be made under this Credit Agreement and any Notes (and to
deliver to the U.S. Borrower and the U.S. Administrative Agent
two further copies of such form on or before the date it
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form
and, if necessary, obtain any extensions of time reasonably
requested by the U.S. Borrower or the U.S. Administrative
Agent for filing and completing such forms), and (C) agree, to
the
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extent legally entitled to do so, upon reasonable request by
the U.S. Borrower, to provide to the U.S. Borrower (for the
benefit of the U.S. Borrower and the U.S. Administrative
Agent) such other forms as may be reasonably required in order
to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments under this
Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the U.S. Borrower and the U.S.
Administrative Agent, then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a participant
of a Lender pursuant to Section 12.3 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection (b);
provided that in the case of a participant of a Lender, the obligations
of such participant of a Lender pursuant to this subsection (b) shall
be determined as if the participant of a Lender were a Lender except
that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
4.14 COMPENSATION.
Each Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by such Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans or in creating Bankers' Acceptances
after such Borrower has given a notice requesting the same in accordance with
the provisions of this Credit Agreement, (b) default by the U.S. Borrower in
making any prepayment of a Eurodollar Loan after the U.S. Borrower has given a
notice thereof in accordance with the provisions of this Credit Agreement and
(c) the making of a prepayment of Eurodollar Loans on a day which is not the
last day of an Interest Period with respect thereto or the repayment of a
Bankers' Acceptance prior to its maturity date. Such indemnification may include
an amount equal to (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurodollar Loans provided for herein (excluding, however, the
Applicable Percentage included therein, if any) minus (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank Eurodollar market. The agreements in
this Section shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.15 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to a Borrower from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Credit Agreement. Each Lender
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will make reasonable efforts to maintain the accuracy of its account or accounts
and to promptly update its account or accounts from time to time, as necessary.
(b) Each Administrative Agent shall maintain the Register pursuant to
Section 12.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and Interest
Period of each such Loan hereunder, (ii) the amount of any principal or interest
due and payable or to become due and payable to each Lender hereunder, and (iii)
the amount of any sum received by such Administrative Agent hereunder from or
for the account of such Borrower and each Lender's share thereof, if any. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 4.15 (and, if consistent
with the entries of the U.S. Administrative Agent or the Canadian Administrative
Agent, as applicable, subsection (a)) shall be prima facie evidence of the
existence and amounts of the obligations of such Borrower therein recorded;
provided, however, that the failure of any Lender or any Administrative Agent to
maintain such account, such Register, or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of such Borrower to
repay the Loans made by such Lender in accordance with the terms hereof.
4.16 SUBSTITUTION OF LENDER; RELOCATION.
In the event a Lender makes a request to a Borrower for compensation in
accordance with Section 4.9, 4.11, 4.12, or 4.13, then; provided that no Event
of Default has occurred and is continuing at such time, the Borrowers may, at
their option either
(a) at their own expense (such expense to include any transfer
fee payable to the Administrative Agents under Section 12.3(b) and any
expense pursuant to Section 4.14), and in their sole discretion require
such Lender to transfer and assign in whole (but not in part), without
recourse (in accordance with and subject to the terms and conditions of
Section 12.3(b), all of its interests, rights and obligations under
this Credit Agreement to an Eligible Assignee which shall assume such
assigned obligations (which Eligible Assignee may be another Lender, if
a Lender accepts such assignment); provided that (i) such assignment
shall not conflict with any law, rule or regulation or order of any
court or other governmental authority, and (ii) the Borrowers or such
Eligible Assignee shall have paid to the assigning Lender in
immediately available funds the principal of and interest accrued to
the date of such payment on the portion of the Loans hereunder held by
such assigning Lender and all other amounts owed to such assigning
Lender hereunder, or
(b) request that such Lender use its reasonable efforts
(consistent with legal and regulatory restrictions) to avoid the need
for paying such compensation or such inability, including changing the
jurisdiction of its applicable lending office; provided, however, that
the taking of such action would not, in the sole judgment of such
Lender, be disadvantageous to such Lender and provided further that, if
and to the extent the Borrowers shall make the request described in
this paragraph (b) and such request shall be denied, such
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denial shall not preclude the Borrowers from exercising its rights
under paragraph (a) above.
4.17 ALL BORROWERS TREATED EQUALLY.
Each Lender agrees that it will not make a request for compensation
pursuant to any of Sections 4.9, 4.11, 4.12 or 4.13, or claim it is unable to
make or maintain Eurodollar Loans or to create Bankers' Acceptances, unless such
Lender at such time is making a similar claim for compensation or inability of
all its borrowers which are similarly situated.
SECTION 5
GUARANTY
5.1 GUARANTY OF PAYMENT.
Subject to Section 5.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender, each Affiliate of a
Lender that enters into a Hedging Agreement and the Agents the prompt payment of
the Guaranteed Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This Guaranty is a guaranty
of payment and not of collection and is a continuing guaranty and shall apply to
all Guaranteed Obligations whenever arising.
5.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by
the Lenders without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes or any other of the Credit Documents or any collateral, if
any, hereafter securing the Guaranteed Obligations or otherwise and each
Guarantor hereby waives the right to require the Lenders to proceed against a
Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against a Borrower or any other Guarantor of the
Guaranteed Obligations for amounts paid under this Guaranty until such time as
the Lenders (and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents. Each Guarantor further agrees that
nothing contained herein shall prevent the Lenders from suing on the Notes or
any of the other Credit Documents or any of the Hedging Agreements or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Guaranteed Obligations or from exercising any other rights available to it
under this Credit
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Agreement, the Notes, any other of the Credit Documents, or any other instrument
of security, if any, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a discharge of
any of any Guarantor's obligations hereunder; it being the purpose and intent of
each Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of a
Borrower or by reason of the bankruptcy or insolvency of a Borrower. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
of by any Agent or any Lender upon this Guarantee or acceptance of this
Guarantee. The Guaranteed Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee. All dealings between the
Borrowers and any of the Guarantors, on the one hand, and the Agents and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guarantee. The Guarantors further agree
to all rights of set-off as set forth in Section 12.2.
5.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the Collateral now or
hereafter held for the Guaranteed Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances now or hereafter held, if any, for the Guaranteed
Obligations or the properties subject thereto; (c) the time or place of payment
of the Guaranteed Obligations may be changed or extended, in whole or in part,
to a time certain or otherwise, and may be renewed or accelerated, in whole or
in part; (d) the Borrowers and any other party liable for payment under the
Credit Documents may be granted indulgences generally; (e) any of the provisions
of the Notes or any of the other Credit Documents may be modified, amended or
waived; (f) any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any deposit balance
for the credit of the Borrowers or any other party liable for the payment of the
Guaranteed Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Guaranteed Obligations, all without notice to or further assent
by such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
5.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to a Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Guaranteed Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Guaranteed Obligations or with respect
to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Guaranteed Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
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interests, liens or encumbrances, if any; (e) all other notices to which such
Guarantor might otherwise be entitled; and (f) demand for payment under this
Guaranty.
5.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 5 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agents and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by an Agent
or such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
5.6 REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Agents and the Lenders, on the other hand, the Guaranteed Obligations
may be declared to be forthwith due and payable as provided in Section 10 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 10) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become automatically due and payable), such
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors. The Guarantors
acknowledge and agree that their obligations hereunder are secured in accordance
with the terms of the Collateral Documents and that the Lenders may exercise
their remedies thereunder in accordance with the terms thereof.
5.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
5.8 RIGHTS OF CONTRIBUTION.
(a) The Total Facility Guarantors agree among themselves that,
in connection with payments made hereunder, each Total Facility
Guarantor shall have contribution rights against the other Total
Facility Guarantors as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of
payment to the obligations of such Total Facility Guarantors under the
Credit Documents and no Total Facility Guarantor
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shall exercise such rights of contribution until all Guaranteed
Obligations have been paid in full and the Commitments terminated.
(b) The Canadian Facility Guarantors agree among themselves
that, in connection with payments made hereunder, each Canadian
Facility Guarantor shall have contribution rights against the other
Canadian Facility Guarantors as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of
payment to the obligations of such Canadian Facility Guarantors under
the Credit Documents and no Canadian Facility Guarantor shall exercise
such rights of contribution until all Guaranteed Obligations have been
paid in full and the Commitments terminated.
SECTION 6
CONDITIONS PRECEDENT
6.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction (or waiver by
each of the Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the U.S.
Administrative Agent of duly executed copies of: (i) this Credit
Agreement; (ii) the Notes; (iii) the Collateral Documents; and (iv) all
other Credit Documents, each in form and substance reasonably
acceptable to the U.S. Administrative Agent and the Lenders; provided
that receipt by the U.S. Administrative Agent of an executed signature
page to this Credit Agreement from a Lender shall be deemed approval by
such Lender of the form and substance of the Credit Documents.
(b) Corporate Documents. Receipt by the U.S. Administrative
Agent of the following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Effective Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of each Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof,
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certified by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as of the
Effective Date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of its incorporation and the state or other
jurisdiction in which it has its chief executive office and/or
principal place of business and (B) to the extent available, a
certificate indicating payment of all corporate franchise
taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
to be true and correct as of the Effective Date.
(c) Opinion of Counsel. Receipt by the U.S. Administrative
Agent of an opinion or opinions from U.S. and Canadian legal counsel to
the Credit Parties (which shall cover, among other things, authority,
legality, validity, binding effect, and enforceability of the Credit
Documents and the attachment, perfection and validity of Liens),
reasonably satisfactory to the U.S. Administrative Agent, addressed to
the U.S. Administrative Agent and/or the Canadian Administrative Agent
and the applicable Lenders and dated as of the Effective Date.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Credit Parties as they may request,
including, but not limited to, (i) the consolidated financial
statements of the Credit Parties and their Subsidiaries for their 1996,
1997 and 1998 fiscal years, including balance sheets, income statements
and cash flow statements audited by independent public accountants of
recognized national standing and prepared in accordance with GAAP and
(ii) interim unaudited quarterly financial statements for the Credit
Parties and their Subsidiaries, prepared in accordance with GAAP for
the quarter ending as of March 31, 1999, prepared in accordance with
GAAP.
(e) Subordinated Debt. Confirmation that the Credit Parties
are in compliance with the terms and conditions of the Subordinated
Debt.
(f) Permitted Receivables Facility. Review and approval by the
U.S. Administrative Agent of the terms and conditions of the Permitted
Receivables Facility and confirmation that the Credit Parties are in
compliance thereof.
(g) Personal Property Collateral. The Collateral Agent shall
have received, in form and substance reasonably satisfactory to the
Collateral Agent:
(i) searches under the Uniform Commercial Code or
equivalent Canadian legislation ("UCC") in the jurisdiction of
the chief executive office of each Credit Party and each
jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Lenders'
security interest in the
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Collateral, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Collateral
Agent's sole discretion, to perfect the Lenders' security
interest in the Collateral;
(iii) searches of ownership of intellectual property
in the appropriate governmental offices as requested by the
Collateral Agent and such patent, trademark and copyright
filings as requested by the Collateral Agent;
(iv) all stock certificates evidencing the stock
pledged to the Collateral Agent pursuant to the Pledge
Agreements, together with duly executed in blank undated stock
powers attached thereto;
(v) all instruments and chattel paper in the
possession of a Credit Party, as required by the Security
Agreements, together with allonges or assignments as may be
necessary to perfect the Lenders' security interest in such
Collateral;
(vi) in the case of any personal property Collateral
located at premises leased by a Credit Party, evidence that
such estoppel letters, consents and waivers from the landlords
of such real property as may be required by the Collateral
Agent shall have been delivered to such landlords with an
appropriate request for execution.
(h) Evidence of Insurance. Receipt by the Collateral Agent of
copies of insurance policies or certificates of insurance of the Credit
Parties evidencing liability and casualty insurance meeting the
requirements set forth in the Credit Documents, including, but not
limited to, naming the Collateral Agent as additional insured or loss
payee on behalf of the Lenders.
(i) Litigation. There shall not exist (i) any order, decree,
judgment, ruling or injunction which prohibits or restrains the
consummation of the Credit Documents or (ii) any pending or, to the
knowledge of any Credit Party, threatened action, suit, investigation
or proceeding against a Credit Party that could have or could be
reasonably expected to have a Material Adverse Effect.
(j) Officer's Certificates. The U.S. Administrative Agent
shall have received a certificate or certificates executed by the chief
financial officer of the U.S. Borrower as of the Effective Date stating
that (i) the Parent and each of its Subsidiaries are in compliance with
all existing material financial obligations, (ii) no action, suit,
investigation or proceeding is pending or, to the knowledge of any
Credit Party, threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect the Parent, any of
its Subsidiaries or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding could have
or could be reasonably expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered to the
Administrative Agents on or before the Effective Date were prepared in
good faith and in
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accordance with GAAP, and (iv) immediately after giving effect to this
Credit Agreement, the other Credit Documents, and all the transactions
contemplated therein to occur on such date, (A) no Default or Event of
Default exists, (B) all representations and warranties contained
herein, in the other Credit Documents are true and correct in all
material respects, and (C) the Credit Parties are in compliance with
each of the financial covenants set forth in Section 8.2.
(k) Solvency Certificate. The U.S. Administrative Agent shall
have received a certificate, dated as of the Closing Date, from the
chief financial officer of the U.S. Borrower as to the financial
condition, solvency and related matters of the Credit Parties on a
consolidated basis after giving effect to the initial Extensions of
Credit hereunder.
(l) Material Adverse Effect. There shall not have occurred a
Material Adverse Effect since December 31, 1998.
(m) Fees and Expenses. Payment by the Credit Parties of the
fees and expenses owed by them pursuant to the terms of the Fee Letter
and/or this Credit Agreement (including without limitation any fees or
expenses owed pursuant to Section 12.5 for which demand has been made).
(n) Existing Credit Agreement; Other Indebtedness. Receipt by
the U.S. Administrative Agent of evidence that: (i) that certain Credit
Agreement, dated as of June 5, 1998, among the Parent, the Borrowers,
The Chase Manhattan Bank, as U.S. Administrative Agent, The Chase
Manhattan Bank Canada as Canadian Administrative Agent and the lenders
party thereto (as amended or modified from time to time, the "Existing
Credit Agreement"), and all documents executed or delivered in
connection therewith, have been terminated, and (ii) all amounts owing
in connection with the Existing Credit Agreement or any other
Indebtedness of the Credit Parties and their Subsidiaries (other than
Indebtedness permitted by the terms of this Credit Agreement) shall
have been paid in full and all Liens granted in connection therewith
shall have been or are agreed to be released upon such repayment in
full.
(o) Year 2000 Problem. Receipt and review of information, in
form and substance satisfactory to the U.S. Administrative Agent and
the Lenders, confirming that (i) the Credit Parties and their
subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully address,
business and financial risks facing the Credit Parties and their
Subsidiaries as a result of the Year 2000 Problem, including risks
resulting from the failure of key vendors and customers of the Credit
Parties and their Subsidiaries to successfully address the Year 2000
Problem, and (ii) each Credit Party's material computer applications
and, to the knowledge of the Credit Parties and their Subsidiaries,
those of its key vendors and customers will, on a timely basis,
adequately address the Year 2000 Problem in all material respects.
(p) Other. Receipt and satisfactory review by the U.S.
Administrative Agent and its counsel of such other documents,
instruments, agreements or information as reasonably and timely
requested by the U.S. Administrative Agent, its counsel or any Lender,
including, but not limited to, shareholder agreements, management
agreements and
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information regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership, contingent
liabilities and management of the Credit Parties and their
Subsidiaries.
6.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall an Issuing Lender be
required to issue or extend a Letter of Credit nor shall a Canadian Lender be
required to create Bankers' Acceptances unless:
(a) Notice. The applicable Borrower shall have delivered (i)
in the case of any new Revolving Loan, a Notice of Borrowing, duly
executed and completed, by the time specified in Section 2.1 or Section
3.1, as applicable, (ii) in the case of any Letter of Credit, to the
applicable Issuing Lender an appropriate request for issuance in
accordance with the provisions of Section 2.2 or Section 3.2, as
applicable, (iii) in the case of a Swingline Loan, to the applicable
Swingline Lender, a Swingline Loan Request, duly executed and
completed, by the time specified in Section 2.3 or Section 3.3, as
applicable and (iv) in the case of a Bankers' Acceptance, to the
Canadian Administrative Agent, an appropriate notice in accordance with
Section 3.4.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit or the creation of a Bankers'
Acceptance, as the case may be, the sum of (i) U.S. Revolving Loans
outstanding plus U.S. LOC Obligations outstanding plus U.S. Swingline
Loans outstanding shall not exceed the U.S. Revolving Committed Amount
and (ii) Canadian Revolving Loans outstanding plus Canadian LOC
obligations outstanding plus Canadian Swingline Loans outstanding plus
the Face Amount of BA Obligations shall not exceed the Canadian
Revolving Committed Amount.
The delivery of each Notice of Borrowing, each Swingline Loan Request and each
request for a Letter of Credit or Bankers' Acceptance shall constitute a
representation and warranty by the applicable Borrower of the correctness of the
matters specified in subsections (b), (c), and (d) above.
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SECTION 7
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Agents and each Lender that:
7.1 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders prior to
the Effective Date and pursuant to Section 8.1(a) and (b): (i) have
been prepared in accordance with GAAP and (ii) present fairly the
consolidated and consolidating (as applicable) financial condition,
results of operations and cash flows of the Credit Parties and their
Subsidiaries as of such date and for such periods.
(b) Since December 31, 1998 there has been no sale, transfer
or other disposition by any Credit Party or any of its Subsidiaries of
any material part of the business or property of the Credit Parties and
their Subsidiaries taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Credit Parties and their
Subsidiaries taken as a whole, in each case which is not (i) reflected
in the most recent financial statements delivered to the Lenders
pursuant to Section 8.1 or in the notes thereto or (ii) otherwise
permitted by the terms of this Credit Agreement and communicated to the
Administrative Agents. The Agents and the Lenders hereby acknowledge
that the Parent on May 17, 1999 completed an initial public offering of
11.2 million shares of its common stock, pursuant to which it received
$201.3 million in gross proceeds.
7.2 NO MATERIAL CHANGE.
Since December 31, 1998, there has been no development or event
relating to or affecting a Credit Party which has had or could be reasonably
expected to have a Material Adverse Effect.
7.3 ORGANIZATION AND GOOD STANDING.
Each Credit Party that is domiciled in the United States (a) is a
corporation duly incorporated, validly existing and in good standing under the
laws of the state (or other jurisdiction) of its incorporation, (b) is duly
qualified and in good standing as a foreign corporation and authorized to do
business in every jurisdiction unless the failure to be so qualified, in good
standing or authorized could be reasonably expected to have a Material Adverse
Effect and (c) has the requisite corporate power and authority to own its
properties and to carry on its business as now conducted and as proposed to be
conducted. Each Credit Party that is domiciled in Canada (a) is a corporation
duly incorporated or amalgamated and validly subsisting under the laws of its
jurisdiction of incorporation, (b) is duly qualified, licensed or registered to
carry on its business in each jurisdiction where the failure to do so would have
a Material Adverse Effect and (c) has the corporate power and authority to carry
on its business as now conducted and as proposed to be conducted.
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7.4 DUE AUTHORIZATION.
Each Credit Party (a) has the requisite corporate power and authority
to execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur the obligations herein and therein
provided for and (b) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
7.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws, (b) violate, contravene or materially conflict with any
Requirement of Law or any other law, regulation (including, without limitation,
Regulation T, U or X), order, writ, judgment, injunction, decree or permit
applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it may be bound, the violation of which could
have or could be reasonably expected to have a Material Adverse Effect, or (d)
result in or require the creation of any Lien (other than those contemplated in
or created in connection with the Credit Documents) upon or with respect to its
properties.
7.6 CONSENTS.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by such Credit Party.
7.7 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or moratorium laws or similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
7.8 NO DEFAULT.
No Credit Party, nor any of its Subsidiaries, is in default in any
respect under any material contract, lease, loan agreement, indenture, mortgage,
security agreement or other agreement or obligation to which it is a party or by
which any of its properties is bound. No Default or Event of Default has
occurred or exists except as previously disclosed in writing to the Lenders.
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7.9 OWNERSHIP.
Each Credit Party, and each of its Subsidiaries, is the owner of, and
has good and marketable title to, or has a valid license to use all of its
respective assets and none of such assets is subject to any Lien other than
Permitted Liens.
7.10 INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
(a) as disclosed in the financial statements referenced in Section 8.1, (b) as
set forth on Schedule 7.10, and (c) as otherwise permitted by this Credit
Agreement.
7.11 LITIGATION.
Except as set forth on Schedule 7.11, there are no material actions,
suits or legal, equitable, arbitration or administrative proceedings, pending
or, to the knowledge of any Credit Party, threatened against any Credit Party or
any of its Subsidiaries.
7.12 TAXES.
Each Credit Party, and each of its Subsidiaries, has filed, or caused
to be filed, all tax returns (federal, state, local and foreign) required to be
filed and paid (a) all amounts of taxes shown thereon to be due and payable
(including interest and penalties) and (b) all other taxes, fees, assessments
and other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) that are due and payable, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. To the knowledge of the Credit Parties,
there are no amounts claimed to be due against any of them by any Governmental
Authority.
7.13 COMPLIANCE WITH LAW.
Each Credit Party, and each of its Subsidiaries, is in compliance with
all material Requirements of Law and all other material laws, rules,
regulations, orders and decrees (including without limitation Environmental
Laws) applicable to it, or to its properties. No Requirement of Law could be
reasonably expected to cause a Material Adverse Effect.
7.14 ERISA.
Except as would not cause or be reasonably expected to cause a Material
Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred, and, to the knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan;
(ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan;
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(iii) each Plan has been maintained, operated, and funded in compliance
with its own terms and in material compliance with the provisions of
ERISA, the Code, and any other applicable federal or state laws; and
(iv) no lien in favor of the PBGC or a Plan has arisen or is reasonably
likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(within the meaning of Section 4001 of ERISA) under each Single
Employer Plan (determined utilizing the actuarial assumptions used to
fund such Plans), whether or not vested, did not, as of the last annual
valuation date prior to the date on which this representation is made
or deemed made, exceed the fair market current value as of such date of
the assets of such Plan allocable to such accrued liabilities.
(c) Neither the Parent, nor any of its Subsidiaries, nor any
ERISA Affiliate has incurred, or, to the knowledge of such parties, are
reasonably expected to incur, any withdrawal liability under ERISA to
any Multiemployer Plan or Multiple Employer Plan. Neither the Parent,
nor any of its Subsidiaries, nor any ERISA Affiliate has received any
notification pursuant to ERISA that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and, to the best
knowledge of such parties, no Multiemployer Plan is reasonably expected
to be in reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan which has
subjected or is reasonably expected to subject the Parent or any of its
Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which the Parent or
any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(e) The present value of the liability of the Parent and its
Subsidiaries and each ERISA Affiliate for post-retirement welfare
benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of
ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the Financial Statements in accordance with
FASB 106.
(f) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in material compliance with such
sections.
7.15 SUBSIDIARIES.
Set forth on Schedule 7.15 is a complete and accurate list of all
Subsidiaries of each Credit Party. Information on Schedule 7.15 includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each class
of Capital Stock owned (directly or indirectly) by such Credit Party, and the
number and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all
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other similar rights with respect thereto. The outstanding Capital Stock of all
such Subsidiaries is validly issued, fully paid and non-assessable and is owned
by each such Credit Party, directly or indirectly, free and clear of all Liens
(other than those arising under or contemplated in connection with the Credit
Documents). Other than as set forth in Schedule 7.15, neither any Credit Party
nor any Subsidiary thereof has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its Capital Stock.
Schedule 7.15 may be updated from time to time by the Borrowers by giving
written notice thereof to the Administrative Agents.
7.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 8.11. No proceeds of the Loans hereunder have been
or will be used for the Acquisition of another Person unless the board of
directors (or other comparable governing body) or stockholders, as appropriate,
of such Person has approved such Acquisition.
7.17 GOVERNMENT REGULATION.
(a) No part of the Letters of Credit or proceeds of the Loans
will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U, or for
the purpose of purchasing or carrying or trading in any securities. If
requested by any Lender or the U.S. Administrative Agent, the Borrower
will furnish to the U.S. Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements
of FR Form U-1 referred to in Regulation U. No Indebtedness being
reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any "margin security" within the
meaning of Regulation T. "Margin stock" within the meaning of
Regulation U does not constitute more than 25% of the value of the
consolidated assets of the Credit Parties and their Subsidiaries. None
of the transactions contemplated by the Credit Documents (including,
without limitation, the direct or indirect use of the proceeds of the
Loans) will violate or result in a violation of (i) the Securities Act
of 1933, as amended, (ii) the Securities Exchange Act of 1934, as
amended, (iii) regulations issued pursuant to the Securities Act of
1933 or the Securities Exchange Act of 1934, or (iv) Regulations T, U
or X.
(b) No Credit Party, nor any of its Subsidiaries, is subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, no Credit Party, nor any of its Subsidiaries, is
(i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not
controlled by an "investment company", or (ii) a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
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(c) No director, executive officer or principal shareholder of
any Credit Party or any of its Subsidiaries is a director, executive
officer or principal shareholder of any Lender. For the purposes hereof
the terms "director", "executive officer" and "principal shareholder"
(when used with reference to any Lender) have the respective meanings
assigned thereto in Regulation O.
7.18 ENVIRONMENTAL MATTERS.
(a) Except as would not have or be reasonably expected to have
a Material Adverse Effect:
(i) Each of the real properties owned or operated by
the Credit Parties and their Subsidiaries (the "Real
Properties") and all operations at the Real Properties are in
compliance with all applicable Environmental Laws, and there
is no violation of any Environmental Law with respect to the
Real Properties or the businesses operated by the Credit
Parties or any of their Subsidiaries (the "Businesses"), and
there are no conditions relating to the Businesses or Real
Properties that would reasonably be expected to give rise to
liability under any applicable Environmental Laws.
(ii) No Credit Party, nor any of its Subsidiaries,
has received any written notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with Environmental
Laws with regard to any of the Real Properties or the
Businesses, nor, to the knowledge of a Credit Party, is any
such notice being threatened.
(iii) Hazardous Materials have not been transported
or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by, or on
behalf or with the permission of, a Credit Party or any of its
Subsidiaries in a manner that would give rise to liability
under any applicable Environmental Laws.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of a
Credit Party, threatened under any Environmental Law to which
a Credit Party or any of its Subsidiaries is or will be named
as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to a
Credit Party or any of its Subsidiaries, the Real Properties
or the Businesses.
(v) There has been no release (including, without
limitation, disposal) or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or
related to the operations of a Credit Party or any of its
Subsidiaries in connection with the Real Properties or
otherwise in connection with the Businesses where such release
constituted a violation of, or would give rise to liability
under, any applicable Environmental Laws.
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(vi) None of the Real Properties contains, or has
previously contained, any Hazardous Materials at, on or under
the Real Properties in amounts or concentrations that, if
released, constitute or constituted a violation of, or could
give rise to liability under, Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries,
has assumed any liability of any Person (other than another
Credit Party or Subsidiary thereof) under any Environmental
Law.
(b) The Credit Parties have adopted procedures that are
designed to (i) ensure that each Credit Party, any of its operations
and each of the properties owned or leased by each Credit Party
complies with applicable Environmental Laws and (ii) minimize any
liabilities or potential liabilities that each Credit Party, any of its
operations and each of the properties owned or leased by each Credit
Party may have under applicable Environmental Laws.
7.19 INTELLECTUAL PROPERTY.
Each Credit Party owns, or has the legal right to use, all patents,
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for each of them to conduct its business as
currently conducted. Except as set forth on Schedule 7.19, (a) no holding,
decision or judgment has been rendered by any Governmental Authority which would
limit, cancel or question the validity of any Intellectual Property and (b) no
action or proceeding is pending seeking to limit, cancel or question the
validity of any Intellectual Property. Set forth on Schedule 7.19 is a list of
all patents, registered and material unregistered trademarks, tradenames and
registered copyrights owned by each Credit Party or that any Credit Party has
the right to use. Except as provided on Schedule 7.19, no claim has been
asserted against any Credit Party or its Subsidiaries in writing and is pending
by any Person challenging or questioning the use of any Intellectual Property
owned by a Credit Party or its Subsidiaries or that any Credit Party or its
Subsidiaries has a right to use or the validity or effectiveness of any such
Intellectual Property, nor does any Credit Party have knowledge of any such
claim, and to the Credit Parties' knowledge the use of any Intellectual Property
by the Credit Parties and their Subsidiaries does not infringe on the rights of
any Person. Schedule 7.19 may be updated from time to time by the Borrowers by
giving written notice thereof to the Administrative Agents.
7.20 SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
7.21 INVESTMENTS.
All Investments of each Credit Party and its Subsidiaries are (a) as
set forth on Schedule 7.21 or (b) Permitted Investments.
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7.22 LOCATION OF COLLATERAL.
Set forth on Schedule 7.22(a) is a list of all locations where any
personal property of a Credit Party is located, including county and state where
located. Set forth on Schedule 7.22(b) is the chief executive office and
principal place of business of each Credit Party. Schedules 7.22(a) and 7.22(b)
may be updated from time to time by the Borrowers by giving written notice
thereof to the Administrative Agents.
7.23 DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Administrative Agents or the Lenders nor any other document, certificate or
statement furnished to the Administrative Agents or the Lenders by or on behalf
of any Credit Party in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein,
taken as a whole, not misleading.
7.24 LICENSES, ETC.
The Credit Parties have obtained and hold in full force and effect, all
material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of their respective
businesses as presently conducted.
7.25 COLLATERAL DOCUMENTS.
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
7.26 BURDENSOME RESTRICTIONS.
No Credit Party, nor any of its Subsidiaries, is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any Requirement of Law which,
individually or in the aggregate, could have or could be reasonably expected to
have a Material Adverse Effect.
7.27 YEAR 2000 COMPLIANCE.
Each Credit Party reasonably believes that the Year 2000 Problem has
been appropriately addressed by it and the Year 2000 Problem will not exist with
respect to it, to the extent such Year 2000 Problem could cause or could be
reasonably expected to cause a Material Adverse Effect.
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7.28 LABOR CONTRACTS AND DISPUTES.
Except as disclosed on Schedule 7.28, to any Credit Party's knowledge
(a) there is no collective bargaining agreement or other labor contract covering
employees of any Credit Party; (b) no union or other labor organization is
seeking to organize, or be recognized as, a collective bargaining unit of
employees of any Credit Party; and (c) there is no pending or threatened strike,
work stoppage, material unfair labor practice claim or other material labor
dispute against or affecting any Credit Party or its employees.
7.29 BROKER'S FEES.
No Credit Party will pay or agree to pay, or reimburse any other Person
(other than an Agent or Lender) with respect to, any finder's, broker's,
investment banking or other similar fee in connection with any of the
transactions evidenced by the Credit Documents.
SECTION 8
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, LOC Obligations and BA
Obligations, together with interest and fees and other obligations then due and
payable hereunder, have been paid in full (other than any such obligations which
by the terms thereof are stated to survive termination of the Credit Documents)
and the Commitments, Letters of Credit and Bankers' Acceptances hereunder shall
have terminated:
8.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agents and, unless otherwise specified below, each of the
Lenders:
(a) Annual Financial Statements. To the U.S. Administrative
Agent (with sufficient copies for all of the Lenders), as soon as
available, and in any event within 90 days after the close of each
fiscal year of the Parent, a consolidated balance sheet and income
statement of the Parent and its Subsidiaries, as of the end of such
fiscal year, together with related consolidated statements of
operations, retained earnings and cash flows for such fiscal year,
setting forth in comparative form consolidated figures for the
preceding fiscal year, all such financial information described above
to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agents and whose opinion shall be to
the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or
qualified in any manner.
(b) Quarterly Financial Statements. To the U.S. Administrative
Agent (with sufficient copies for all of the Lenders), as soon as
available, and in any event within 45 days after the close of each of
the first three fiscal quarters of the fiscal year of the Parent, a
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consolidated balance sheet and income statement of the Parent and its
Subsidiaries, as of the end of such quarter, together with related
consolidated statements of cash flow for such quarter, in each case
setting forth in comparative form consolidated figures for the
corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the U.S. Administrative Agent and accompanied
by a certificate of the chief financial officer of the U.S. Borrower to
the effect that such consolidated statements have been prepared in
accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments.
(c) Officer's Certificate. To the U.S. Administrative Agent,
at the time of delivery of the financial statements provided for in
Sections 8.1(a) and 8.1(b) above, a certificate of the chief financial
officer of the U.S. Borrower substantially in the form of Exhibit
8.1(c), (i) demonstrating compliance with the financial covenants
contained in Section 8.2 by calculation thereof as of the end of each
such period, (ii) demonstrating compliance with any other terms of this
Credit Agreement as requested by either Administrative Agent and (iii)
stating that no Default or Event of Default exists, or if any Default
or Event of Default does exist, specifying the nature and extent
thereof and what action the Borrowers propose to take with respect
thereto. If necessary, the Parent shall deliver financial statements
prepared in accordance with GAAP as of the Closing Date, to the extent
GAAP has changed since the Closing Date, in order to show compliance
with the terms of this Credit Agreement, including Section 8.2.
(d) Annual Business Plan and Budgets. To the U.S.
Administrative Agent (with sufficient copies for all of the Lenders),
as soon as available, and in any event within 45 days after the end of
each fiscal year of the Parent, an annual business plan and budget of
the Parent and its Subsidiaries on a consolidated basis containing,
among other things, pro forma quarterly financial projections for the
next fiscal year.
(e) Permitted Receivables Financing. Upon any of the Credit
Parties obtaining knowledge thereof, the Borrowers will give written
notice to the U.S. Administrative Agent promptly (and in any event
within two Business Days) of (i) any affirmative decision by a party to
a Permitted Receivables Financing not to extend the scheduled
termination date of such Permitted Receivables Financing or (ii) a
termination (whether scheduled or unscheduled) of a Permitted
Receivables Financing that is reasonably likely to occur within 60
days.
(f) Auditor's Reports. To the U.S. Administrative Agent,
promptly upon receipt thereof, a copy of any "management letter"
submitted by independent accountants to the Parent or any of its
Subsidiaries in connection with any annual, interim or special audit of
the books of the Parent or any of its Subsidiaries.
(g) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any public filings and registrations with, and reports to
or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as the Parent or any of its Subsidiaries shall send
to its shareholders generally and (b) upon the written request of the
U.S. Administrative Agent,
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all reports and written information to and from the United States
Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational
Health and Safety Administration, or any state or local agency
responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters.
(h) Notices. Upon an officer of a Credit Party obtaining
knowledge thereof, the Borrowers will give written notice to the
Administrative Agents immediately of (a) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Credit Parties propose
to take with respect thereto, and (b) the occurrence of any of the
following with respect to the Parent or any of its Subsidiaries: (i)
the pendency or commencement of any litigation, arbitral or
governmental proceeding against a Credit Party or any of its
Subsidiaries which if adversely determined could have or could be
reasonably expected to have a Material Adverse Effect, (ii) the
institution of any proceedings against a Credit Party or any of its
Subsidiaries with respect to, or the receipt of written notice by such
Person of potential liability or responsibility for violation, or
alleged violation of any federal, state or local law, rule or
regulation (including but not limited to, Environmental Laws), the
violation of which could have or could be reasonably expected to have a
Material Adverse Effect, (iii) any information that a Credit Party may
have a Year 2000 Problem, or (iv) any loss of or damage to any property
of a Credit Party or the commencement of any proceeding for the
condemnation or other taking of any property of a Credit Party, if such
loss, damage or proceeding could have or could be reasonably expected
to have a Material Adverse Effect.
(i) ERISA. Upon any of the Credit Parties or any ERISA
Affiliate obtaining knowledge thereof, the Borrowers will give written
notice to the U.S. Administrative Agent promptly (and in any event
within two Business Days) of: (i) any event or condition, including,
but not limited to, any Reportable Event, that constitutes, or might
reasonably lead to, a Termination Event; (ii) with respect to any
Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the Credit
Parties or any of their ERISA Affiliates, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all
amounts which a Credit Party or any ERISA Affiliates is required to
contribute to each Plan pursuant to its terms and as required to meet
the minimum funding standard set forth in ERISA and the Code with
respect thereto; or (iv) any change in the funding status of any Plan
that could have a Material Adverse Effect; together with a description
of any such event or condition or a copy of any such notice and a
statement by the principal financial officer of the U.S. Borrower
briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties with respect thereto.
Promptly upon request, a Credit Party shall furnish the U.S.
Administrative Agent and each of the Lenders with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
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(j) Environmental.
(i) Subsequent to a notice from any Governmental
Authority where the subject matter of such notice would
reasonably cause concern or during the existence of an Event
of Default, and upon the written request of an Administrative
Agent, the Credit Parties will furnish or cause to be
furnished to such Administrative Agent, at the Credit Parties'
expense, a report of an environmental assessment of reasonable
scope, form and depth, including, where appropriate, invasive
soil or groundwater sampling, by a consultant reasonably
acceptable to such Administrative Agent addressing the subject
of such notice or, if during the existence of an Event of
Default, regarding any release or threat of release of
Hazardous Materials on any real property owned, leased or
operated by a Credit Party and the compliance by the Credit
Parties with Environmental Laws. If the Credit Parties fail to
deliver such an environmental assessment within sixty (60)
days after receipt of such written request, then the
applicable Administrative Agent may arrange for same, and the
Credit Parties hereby grant to such Administrative Agent and
its representatives access to the Real Properties and a
license of a scope reasonably necessary to undertake such an
assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment
arranged for by an Administrative Agent pursuant to this
provision will be payable by the Credit Parties on demand and
added to the obligations secured by the Collateral Documents.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all
remedial, removal and other actions necessary to address all
Hazardous Materials on, from, or affecting any real property
owned, leased or operated by such Credit Party to the extent
necessary to be in compliance with all Environmental Laws and
all other applicable federal, state, and local laws,
regulations, rules and policies and with the orders and
directives of all Governmental Authorities exercising
jurisdiction over such real property to the extent any failure
could have or could be reasonably expected to have a Material
Adverse Effect.
(k) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Credit Parties and their Subsidiaries as
an Administrative Agent may reasonably request.
8.2 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of
each fiscal quarter of the Credit Parties, for the twelve month period
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ending on such date, shall be less than or equal to the ratio shown
below for the period corresponding thereto:
Period Ratio
------ -----
From the Closing Date through June 30, 2000 4.25 to 1.0
From July 1, 2000 through June 30, 2001 4.00 to 1.0
From July 1, 2001 and thereafter 3.75 to 1.0
(b) Interest Coverage Ratio. The Interest Coverage Ratio shall
be greater than or equal to the ratio shown below for the period
corresponding thereto:
Period Ratio
------ -----
For the one quarter period ending September 30, 1999 2.25 to 1.0
For the two quarter period ending December 31, 1999 2.25 to 1.0
For the three quarter period ending March 31, 2000 2.25 to 1.0
For the four quarter period ending June 30, 2000 2.25 to 1.0
As of the end of each fiscal quarter of the Credit Parties thereafter, for the 2.50 to 1.0
four quarter period ending on such date
(c) Working Capital Ratio. The ratio of (i) Working Capital to
(ii) Total Senior Debt shall, at all times, be greater than or equal to
1.20 to 1.0.
8.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each of the Credit Parties will do all things necessary to preserve and
keep in full force and effect its existence, rights, franchises and authority
except as permitted by Section 9.4.
8.4 BOOKS AND RECORDS.
The Parent will, and will cause its Subsidiaries domiciled in the
United States to, keep complete and accurate books and records of its
transactions in accordance with GAAP (including the establishment and
maintenance of appropriate reserves). The Canadian Borrower will, and will cause
its Subsidiaries domiciled in Canada to, keep (or have kept for them by the
Parent or the U.S. Borrower) complete and accurate books and records of its
transactions in accordance with GAAP.
8.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply in all material respects with all laws, rules, regulations and orders,
and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it and its property (including, without limitation,
Environmental Laws).
8.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon
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any of its properties, and (c) all of its other Indebtedness as it shall become
due (to the extent such repayment is not otherwise prohibited by this Credit
Agreement); provided, however, that a Credit Party shall not be required to pay
any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) would give rise to an immediate right to
foreclose or collect on a Lien securing such amounts, but only to the extent
such amounts are in excess of $100,000 in the aggregate, or (ii) could have or
could be reasonably expected to have a Material Adverse Effect.
8.7 INSURANCE.
Each of the Credit Parties will, and will cause its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) from reputable insurance companies having a rating of at
least A by Best's Rating Services, in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice. All policies shall have the U.S.
Administrative Agent, on behalf of the Lenders, named as an additional insured
and loss payee.
In the event there occurs any material loss, damage to or destruction
of the Collateral of any Credit Party or any part thereof, such Credit Party
shall promptly give written notice thereof to the U.S. Administrative Agent
generally describing the nature and extent of such loss, damage or destruction.
Subsequent to any loss, damage to or destruction of the Collateral of any Credit
Party or any part thereof, such Credit Party, whether or not the insurance
proceeds, if any, received on account of such damage or destruction shall be
sufficient for that purpose, at such Credit Party's cost and expense, will
promptly repair or replace the Collateral of such Credit Party so lost, damaged
or destroyed; provided, however, that such Credit Party need not repair or
replace the Collateral of such Credit Party so lost, damaged or destroyed to the
extent the failure to make such repair or replacement (a) is desirable to the
proper conduct of the business of such Credit Party in the ordinary course and
otherwise is in the best interest of such Credit Party and (b) would not
materially impair the rights and benefits of the Agents or the Lenders under
this Credit Agreement or any other Credit Document.
The Administrative Agent is authorized, but not obligated, as the
attorney-in-fact of each of the Credit Parties and for the benefit of the
Lenders, upon the occurrence of an Event of Default, without the consent of the
applicable Credit Party, (i) to adjust and compromise proceeds payable under
such insurance policies, (ii) to collect, receive and give receipts for such
insurance proceeds in the name of such Credit Party, the U.S. Administrative
Agent and the Lenders and (iii) to endorse such Credit Party's name upon any
instrument in payment thereof.
In the event a Credit Party shall receive any insurance proceeds as a
result of any loss, damage or destruction of Collateral in a net amount in
excess of $1,000,000, such Credit Party will immediately pay over such proceeds
to the Collateral Agent as cash collateral for the Credit Party Obligations. The
Collateral Agent agrees to release such insurance proceeds to such Credit Party
for replacement or restoration of the portion of the Collateral of such Credit
Party lost, damaged or destroyed if (A) within 30 days from the date the
Collateral Agent receives such insurance proceeds, the Collateral Agent receives
written application for such release from such Credit Party
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together with evidence reasonably satisfactory to it that the Collateral lost,
damaged or destroyed has been or will be replaced (by Collateral having a value
at least equal to the asset subject to the loss, damage or destruction) or
restored to its condition immediately prior to the loss, destruction or other
event giving rise to the payment of such insurance proceeds and (B) on the date
of such release no Default or Event of Default exists. If the conditions in the
preceding sentence are not met, the Collateral Agent may or, upon the request of
the Required Lenders, shall at any time after the first Business Day subsequent
to the date 30 days after it received such insurance proceeds, forward such
proceeds to the applicable Administrative Agent so it can apply such insurance
proceeds as a mandatory prepayment of the Credit Party Obligations. All
insurance proceeds shall be subject to the security interest of the Lenders
under the Collateral Documents. All insurance policies maintained hereunder
shall contain a clause providing that such policies may not be canceled, reduced
in coverage or otherwise modified without 30 days prior written notice to the
U.S. Administrative Agent.
The present insurance coverage of the Credit Parties and their
Subsidiaries is outlined as to carrier, policy number, expiration date, type and
amount on Schedule 8.7. Schedule 8.7 shall be amended and updated by the Credit
Parties no less frequently than annually or upon the request of the
Administrative Agents.
8.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its properties and equipment in good repair, working order
and condition, normal wear and tear excepted, and will make, or cause to be
made, in such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto as may
be needed or proper, to the extent and in the manner customary for companies in
similar businesses.
8.9 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
8.10 COLLATERAL.
(a) The Credit Parties will, and will cause their Subsidiaries
to, at their own expense, (i) deliver to the Collateral Agent, within
90 days after the Closing Date, an executed landlord waiver or estoppel
letter in a form acceptable to the Collateral Agent with respect to the
regional distribution center of the Credit Parties in Sparks, Nevada,
(ii) use commercially reasonable efforts to cause to be delivered to
the Collateral Agent as soon as practicable following the Closing Date
an executed landlord waiver or estoppel letter in a form acceptable to
the Collateral Agent with respect to the other material leased real
property of the Credit Parties (it being understood that no Default or
Event of Default will result solely from a failure of the Credit
Parties to obtain and deliver executed landlord waivers or estoppel
letters with respect to 100% of their other material leased real
property subject to this clause (ii), as long as the Credit Parties use
commercially
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reasonable efforts to obtain and deliver such waivers and estoppel
letters) and (iii) deliver to the Collateral Agent, promptly upon its
request, copies of the leases entered into by the Credit Parties with
respect to their material leased real property.
(b) If, subsequent to the Closing Date, a Credit Party shall
(a) acquire any patented, registered or applied for intellectual
property or any securities or (b) acquire any other personal property
required to be delivered to the Collateral Agent as Collateral
hereunder or under any of the Collateral Documents, the U.S. Borrower
shall immediately notify the Collateral Agent of same. Each Credit
Party shall take such actions (including, but not limited to, the
actions set forth in Section 6.1(g)) as reasonably requested by the
Collateral Agent and at its own expense, to ensure that the Lenders
have a perfected Lien in such personal property of the Credit Parties
as set forth in the Security Agreements and the Pledge Agreements
(whether now owned or hereafter acquired), subject only to Permitted
Liens. Each Credit Party shall adhere to the covenants regarding the
location of personal property as set forth in the Security Agreements.
(c) If Fife has not been sold within 180 days of the Closing
Date, the Credit Parties shall take such actions as reasonably
requested by the Collateral Agent and at their own expense, to (i)
ensure that the Lenders have a perfected Lien in the equity interest in
Fife owned by the Credit Parties on the terms set forth in the U.S.
Pledge Agreement and (ii) pledge to the Collateral Agent, for the
benefit of the Lenders, the promissory note issued by Fife to the U.S.
Borrower.
8.11 USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Loans solely (a) to
repay Indebtedness owing under the Existing Credit Agreement, (b) to provide
working capital for the Credit Parties and (c) for general corporate purposes of
the Credit Parties, including Permitted Acquisitions and permitted Capital
Expenditures. The Credit Parties will use the Letters of Credit solely for the
purposes set forth in Section 2.2(a) and Section 3.2(a).
8.12 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will permit representatives appointed by the Administrative Agents,
including, without limitation, independent accountants, agents, attorneys and
appraisers to visit and inspect such Credit Party's property, including its
books and records, its accounts receivable (other than accounts receivable sold
to a Receivables Subsidiary pursuant to a Permitted Receivables Financing) and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agents or their
representatives to investigate and verify the accuracy of information provided
to the Lenders, including, without limitation, the performance of collateral
valuation reviews from time to time, and to discuss all such matters with the
officers, employees and representatives of the Credit Parties. The Credit
Parties agree that the Collateral Agent may conduct such collateral reviews, at
the Credit Parties' expense, as it reasonably deems appropriate; provided that,
absent an Event of Default, such reviews shall not occur more frequently than
once a year.
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8.13 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Subsidiary of a Credit Party, the
Borrowers shall so notify the Administrative Agents and promptly thereafter (but
in any event within 30 days after the date thereof or within such longer period
of time as agreed to by an Administrative Agent):
(a) if such Person is a Subsidiary (other than a Receivables
Subsidiary) domiciled in the United States, shall cause such Person to
become a Total Facility Guarantor by (i) executing a Joinder Agreement
in substantially the same form as Exhibit 8.13, (ii) causing all of the
Capital Stock of such Person owned by a Credit Party to be delivered to
the Collateral Agent (together with undated stock powers signed in
blank) and pledged to the Collateral Agent to secure its parent's
guaranty of the Guaranteed Obligations pursuant to an appropriate
pledge agreement in substantially the form of the U.S. Pledge Agreement
(or a modification to the existing U.S. Pledge Agreement) and otherwise
in a form reasonably acceptable to the Collateral Agent, (iii) pledging
all of its personal property assets located in the United States to the
Collateral Agent to secure its guaranty of the Guaranteed Obligations
pursuant to an appropriate security agreement in substantially the form
of the U.S. Security Agreement (or a joinder to the existing U.S.
Security Agreement) and otherwise in a form reasonably acceptable to
the Collateral Agent, (iv) if such Person has any Subsidiaries
domiciled in the United States or any Material Foreign Subsidiaries,
(A) delivering (x) 100% of the Capital Stock of such Subsidiaries
domiciled in the United States owned by it and (y) 65% of the Capital
Stock of such Material Foreign Subsidiaries owned by it (in each case
together with undated stock powers signed in blank) to the Collateral
Agent and (B) executing an appropriate pledge agreement in
substantially the form of the U.S. Pledge Agreement (or a joinder to
the existing U.S. Pledge Agreement) and otherwise in a form acceptable
to the Collateral Agent, in each of cases (A) and (B) to secure its
guaranty of the Guaranteed Obligations, and (v) if such Person leases
any real property, using its commercially reasonable efforts to cause
to be delivered a landlord waiver or estoppel letter with respect
thereto in a form acceptable to the Collateral Agent;
(b) if such Person is a Subsidiary (other than a Receivables
Subsidiary) domiciled in Canada, shall cause such Person to become a
Canadian Facility Guarantor by (i) executing a Joinder Agreement in
substantially the same form as Exhibit 8.13, (ii) causing all of the
Capital Stock of such Person owned by a Credit Party to be delivered to
the Collateral Agent (together with undated stock powers signed in
blank) and pledged to the Collateral Agent to secure its parent's
guaranty of the Guaranteed Obligations pursuant to an appropriate
pledge agreement in substantially the form of the Canadian Pledge
Agreement (or a modification to the existing Canadian Pledge Agreement)
and otherwise in a form reasonably acceptable to the Collateral Agent,
(iii) pledging all of its personal property assets located in Canada to
the Collateral Agent to secure its guaranty of the Guaranteed
Obligations pursuant to an appropriate security agreement in
substantially the form of the Canadian Security Agreement (or a joinder
to the existing Canadian Security Agreement) and otherwise in a form
reasonably acceptable to the Collateral Agent, (iv) if such Person has
any Subsidiaries domiciled in the United States or Canada or any
Material Foreign Subsidiaries, (A) delivering all of the Capital Stock
of such Subsidiaries owned by it (together with undated stock powers
signed in blank) to the
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Collateral Agent and (B) executing an appropriate pledge agreement in
substantially the form of the Canadian Pledge Agreement (or a joinder
to the existing Canadian Pledge Agreement) and otherwise in a form
acceptable to the Collateral Agent, in each of cases (A) and (B) to
secure its guaranty of the Guaranteed Obligations, and (v) if such
Person leases any real property, using its commercially reasonable
efforts to cause to be delivered a landlord waiver or estoppel letter
with respect thereto in a form acceptable to the Collateral Agent;
provided, however, that if such Person is prohibited by applicable
Canadian federal or provincial corporate law from becoming a Canadian
Facility Guarantor (as evidenced by an opinion of Canadian counsel to
the Credit Parties delivered to the Administrative Agents), then this
Section 8.13(b) shall not require such Person to become a Canadian
Facility Guarantor so long as such prohibition continues in effect, and
if the extent to which such Person is permitted to guaranty the
Canadian Credit Party Obligations is limited by applicable Canadian
federal or provincial corporate law (as evidenced by an opinion of
Canadian counsel to the Credit Parties delivered to the Administrative
Agents), such Person shall, so long as such limitation continues in
effect, be required under this Section 8.13(b) to guaranty such
obligations only to the extent thereby permitted; and
(c) if such Person is (i)(A) a Receivables Subsidiary
domiciled in the United States and owned directly by one or more U.S.
Credit Parties, (B) a Receivables Subsidiary domiciled in Canada and
owned directly by one or more Canadian Credit Parties or (C) a Material
Foreign Subsidiary owned directly by one or more Canadian Credit
Parties, cause 100% of the Capital Stock of such Person to be pledged
to the Collateral Agent and (ii) a Material Foreign Subsidiary owned
directly by one or more U.S. Credit Parties, cause 65% of the Capital
Stock of such Person to be pledged to the Collateral Agent, in each
case in a manner reasonably acceptable to the Collateral Agent and to
the extent that no materially adverse tax consequences would result
therefrom.
In each case, the Borrowers shall (A) deliver such other documentation as the
Collateral Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements,
landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above and the
attachment, perfection and validity of any Liens created thereby), all in form,
content and scope reasonably satisfactory to the Collateral Agent and (B)
provide to the U.S. Administrative Agent (i) a new Schedule 7.15 which shall
reflect the information regarding such new Subsidiary required by Section 7.15,
and (ii) if applicable, a new Schedule 2(a) to the appropriate Pledge Agreement
which shall reflect the pledge of the Capital Stock of such new Subsidiary.
SECTION 9
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, LOC Obligations and BA
Obligations, together with interest, fees and other
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obligations then due and payable hereunder, have been paid in full and the
Commitments, Letters of Credit and Bankers' Acceptances hereunder shall have
terminated:
9.1 INDEBTEDNESS.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness existing as of the Closing Date as referenced
in Section 7.10 (and renewals, refinancings, replacements or extensions
thereof on terms and conditions no more favorable, in the aggregate, to
such creditor than such existing Indebtedness and in a principal amount
not in excess of that outstanding as of the date of such renewal,
refinancing, replacement or extension; provided, however, that, with
respect to any Indebtedness which is being renewed, refinanced,
replaced or extended, the principal amount thereof which is permitted
to be renewed, refinanced, replaced or extended pursuant to the terms
of this clause (b) shall be an amount less than or equal to the
aggregate commitments of the lenders under the documents evidencing the
Indebtedness which is being so renewed, refinanced, replaced or
extended plus any financed fees and expenses, including without
limitation prepayment premiums and break funding fees, incurred by the
applicable Credit Party in connection with any such renewal,
refinancing, replacement or extension);
(c) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business and to the
extent not current, accounts payable and accrued expenses that are
subject to (i) bona fide dispute or (ii) an inventory assistance plan
or a similar supplier agreement; provided that the total of such
Indebtedness permitted pursuant to clause (ii) hereof shall not exceed
$25,000,000 at any one time outstanding.
(d) Indebtedness owing from the U.S. Borrower to its
Subsidiaries domiciled in the United States (other than a Receivables
Subsidiary) or from such Subsidiaries in the United States to the U.S.
Borrower;
(e) Indebtedness from the Canadian Borrower to its
Subsidiaries domiciled in Canada (other than a Receivables Subsidiary)
or from such Subsidiaries in Canada to the Canadian Borrower;
(f) purchase money Indebtedness (including Capital Leases) to
finance the purchase of fixed assets (including equipment); provided
that (i) the total of all such Indebtedness for all such Persons taken
together, together with any outstanding sale leaseback transactions
permitted under clause (i) of Section 9.6, shall not exceed, in the
aggregate, $20,000,000 at any one time outstanding (in addition to any
such Indebtedness referred to in subsection (b) above); (ii) such
Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed; and (iii) no such Indebtedness shall be
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refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(g) the Subordinated Debt or Permitted Subordinated
Refinancing Debt;
(h) other subordinated Indebtedness; provided that (i) the
aggregate amount of such Indebtedness does not exceed $200,000,000 at
any one time outstanding (in addition to the Indebtedness referred to
in subsection (g) above); (ii) such Indebtedness is unsecured; (iii)
the loan documentation with respect to such Indebtedness shall not
contain covenants or default provisions relating to any Credit Party or
any of its Subsidiaries that are more restrictive than the covenants
and default provisions contained in the Credit Documents; (iv) the
scheduled maturity of all principal with respect to such Indebtedness
is subsequent to the Maturity Date and (v) the other terms of, and the
documentation evidencing, such Indebtedness are reasonably acceptable
to the U.S. Administrative Agent;
(i) Indebtedness arising from Hedging Agreements entered into
in the ordinary course of business and not for speculative purposes;
(j) Indebtedness arising from judgments that do not cause an
Event of Default;
(k) Indebtedness not to exceed, in the aggregate, $15,000,000
at any one time outstanding assumed in connection with Permitted
Acquisitions; provided that such Indebtedness existed at the time of
the relevant Permitted Acquisition and was not incurred in
contemplation thereof;
(l) Indebtedness constituting unsecured seller financing not
to exceed, in the aggregate, $100,000,000 at any one time outstanding
incurred in connection with Permitted Acquisitions;
(m) secured or unsecured Indebtedness incurred by Subsidiaries
of the Parent that are domiciled outside the United States and Canada
not to exceed, in the aggregate, $10,000,000 at any one time
outstanding;
(n) guaranties not to exceed, in the aggregate, $10,000,000 at
any one time outstanding of loans from PNC Bank National Association or
one of its Affiliates to senior managers of a Borrower, which loans
finance such senior managers' participation in the Borrowers' stock
purchase programs;
(o) Indebtedness arising from a Permitted Receivables
Financing incurred by the U.S. Credit Parties and/or their Subsidiaries
domiciled in the United States (including a Receivables Subsidiary) not
to exceed $375,000,000 at any one time outstanding;
(p) Indebtedness permitted by clause (i) or clause (iii) of
Section 9.6;
(q) Indebtedness the proceeds of which are used to finance the
U.S. Borrower's headquarters location, provided that the total of all
such Indebtedness, together with any outstanding sale leaseback
transactions permitted under clause (ii) of Section 9.6, (i) does
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not exceed, in the aggregate, $20,000,000 at any one time outstanding
and (ii) is included in the definition of Adjusted Funded Debt for
purposes of calculating the Applicable Percentages and the financial
covenants set forth in Section 8.2; and
(r) other unsecured Indebtedness up to $10,000,000, in the
aggregate, at any one time outstanding.
9.2 LIENS.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
9.3 NATURE OF BUSINESS.
No Credit Party will, nor will it permit its Subsidiaries to, alter the
character of its business from that conducted as of the Effective Date or engage
in any business other than the business conducted as of the Effective Date and
activities which are substantially similar or related thereto or logical
extensions thereof.
9.4 CONSOLIDATION AND MERGER.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction of merger, amalgamation or consolidation or liquidate, wind
up or dissolve itself; provided that a Credit Party or another Person may merge,
amalgamate or consolidate with or into another Credit Party if the following
conditions are satisfied:
(a) each Administrative Agent is given prior written notice of
such action;
(b) the Person formed by such amalgamation or consolidation or
into which such Credit Party is merged shall either (i) be a Credit
Party or (ii) be a Subsidiary of a Credit Party and expressly assume in
writing all of the obligations of such Credit Party under the Credit
Documents; provided that if the transaction is between a Borrower and
another Person, such Borrower must be the surviving entity;
(c) the Credit Parties execute and deliver such documents,
instruments and certificates as an Administrative Agent may request
(including, if necessary, to maintain its perfection and priority in
the Collateral pledged pursuant to the Collateral Documents);
(d) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(e) the Borrowers deliver to the Administrative Agents an
opinion of counsel stating that such consolidation, amalgamation or
merger and any written agreement entered into in connection therewith,
comply with this Section 9.4.
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9.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit its Subsidiaries to, convey,
sell, lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business or assets whether now owned or
hereafter acquired, including, without limitation, inventory, receivables,
equipment, real property interests (whether owned or leasehold), and securities,
other than (a) any inventory sold or otherwise disposed of in the ordinary
course of business; (b) the sale, lease, transfer or other disposal by a Credit
Party (other than a Borrower) of any or all of its assets to another Credit
Party; (c) obsolete, slow-moving, idle or worn-out assets no longer used or
useful in its business; (d) the transfer of assets which constitute a Permitted
Investment; (e) the issuance of Capital Stock by a Borrower; (f) the lease or
sublease of real property interests in the ordinary course of business; (g) the
license of intellectual property in the ordinary course of business; (h) the
sale of accounts receivable and related rights pursuant to a Permitted
Receivables Financing; (i) the sale of Fife for consideration that the Board of
Directors of the U.S. Borrower shall have determined in good faith is
economically fair and reasonable to the Credit Parties; and (j) other sales of
assets in the ordinary course of business not to exceed (x) $5,000,000, in the
aggregate for all Credit Parties and their Subsidiaries, during any fiscal year
of the Credit Parties or (y) $20,000,000, in the aggregate for all Credit
Parties and their Subsidiaries, during the term of this Credit Agreement;
provided that the net cash proceeds from any sale of assets pursuant to this
clause (h) must either (i) be reinvested by the Credit Parties within twelve
months of such sale in Eligible Assets or (ii) delivered to the U.S.
Administrative Agent and/or the Canadian Administrative Agent, as applicable, to
permanently reduce the U.S. Revolving Committed Amount and/or the Canadian
Revolving Committed Amount as requested by the applicable Credit Party and in
accordance with the terms hereof.
Upon a sale of assets permitted by this Section 9.5, the Collateral
Agent shall promptly deliver to the Borrowers, upon the Borrowers' request and
at the Borrowers' expense, such documentation as is reasonably necessary to
evidence the release of the Lenders' security interest in such assets,
including, without limitation, amendments or terminations of UCC financing
statements.
9.6 SALE LEASEBACKS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly become or remain liable as lessee or as guarantor or other surety
with respect to any lease of any property (whether real or personal or mixed),
whether now owned or hereafter acquired, (a) which such Credit Party has sold or
transferred or is to sell or transfer to any other Person other than a Credit
Party or (b) which such Credit Party intends to use for substantially the same
purpose as any other property which has been sold or is to be sold or
transferred by such Credit Party to any Person in connection with such lease,
other than (i) sale leaseback transactions the aggregate amount of which, when
added to the aggregate amount of Indebtedness then outstanding and permitted
under Section 9.1(f), shall not exceed $20,000,000 at any one time outstanding,
(ii) the sale leaseback of the U.S. Borrower's headquarters location in an
aggregate amount which, when added to the aggregate amount of Indebtedness then
outstanding and permitted under Section 9.1(q), shall not exceed $20,000,000, as
long as such amount is included in the definition of Adjusted Funded Debt for
purposes of calculating the Applicable Percentages and the financial covenants
set forth in Section 8.2 or (iii) sale leaseback transactions (A) the aggregate
amount of which does not exceed
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$80,000,000, (B) the aggregate amount of which is included in the definition of
Adjusted Funded Debt for purposes of calculating the Applicable Percentages and
the financial covenants set forth in Section 8.2, (C) the proceeds of which are
used by the Credit Parties to permanently reduce the U.S. Revolving Committed
Amount, subject to Section 2.1(e), (D) the aggregate amount of which when in
does not exceed the purchase price for such assets and (E) no amount of which
shall be refinanced for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing.
9.7 ADVANCES, INVESTMENTS AND LOANS.
No Credit Party will, nor will it permit its Subsidiaries to, make any
Investments except for Permitted Investments.
9.8 RESTRICTED PAYMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly, (a) declare or pay any dividends or make any other distribution
upon any shares of its Capital Stock of any class (other than dividends payable
solely in the same class of Capital Stock) or (b) purchase, redeem or otherwise
acquire or retire or make any provisions for redemption, acquisition or
retirement of any shares of its Capital Stock of any class or any warrants or
options to purchase any such shares; provided that (i) any Subsidiary of a
Borrower may pay dividends to its parent, (ii) a Borrower may pay dividends to
the Parent to allow for the payment of (A) taxes, (B) dividends permitted
pursuant to the following clause (iii) and (C) customary fees and expenses of
the Parent in the ordinary course and (iii) as long as no Default or Event of
Default has occurred and is continuing, the Parent may pay dividends in an
amount not to exceed, in the aggregate, 25% of cumulative Net Income earned
after June 30, 1999.
9.9 TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than on terms and conditions substantially as favorable as would
be obtainable in a comparable arm's-length transaction with a Person other than
an officer, director, shareholder, Subsidiary or Affiliate.
9.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, (a)
change its fiscal year (other than to change to a retail fiscal year ending
within five days of December 31) or (b) in any manner that would reasonably be
likely to adversely affect the rights of the Lenders, change its articles or
certificate of incorporation or its bylaws.
9.11 NO LIMITATIONS.
No Credit Party will, nor will it permit its Subsidiaries (other than a
Receivables Subsidiary) to, directly or indirectly, create or otherwise cause,
incur, assume, suffer or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of
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any such Person to (a) pay dividends or make any other distribution on any of
such Person's Capital Stock, (b) pay any Indebtedness owed to any other Credit
Party, (c) make loans or advances to any other Credit Party or (d) transfer any
of its property to any other Credit Party, except for encumbrances or
restrictions existing under or by reason of (i) customary non-assignment or net
worth provisions in any lease governing a leasehold interest, (ii) any agreement
or other instrument of a Person existing at the time it becomes a Subsidiary of
a Credit Party; provided that such encumbrance or restriction is not applicable
to any other Person, or any property of any other Person, other than such Person
becoming a Subsidiary of a Credit Party and was not entered into in
contemplation of such Person becoming a Subsidiary of a Credit Party, (iii) the
Subordinated Debt Indenture as in effect on the Closing Date and any similar
provision in the documentation evidencing Permitted Subordinated Refinancing
Debt and (iv) this Credit Agreement and the other Credit Documents.
9.12 NO OTHER NEGATIVE PLEDGES.
No Credit Party will, nor will it permit its Subsidiaries (other than a
Receivables Subsidiary) to, enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation except as set forth in the Credit Documents (it being
understood that the Subordinated Debt Indenture to which the U.S. Borrower is a
party contains such restrictions with respect to additional subordinated debt
and that the Permitted Subordinated Refinancing Debt may contain similar
restrictions).
9.13 OTHER INDEBTEDNESS.
No Credit Party will, if any Default or Event of Default has occurred
and is continuing or would be directly or indirectly caused as a result thereof,
(a) amend or modify (or permit the amendment or modification of) any of the
terms of any Indebtedness (other than the Indebtedness under the Credit
Documents) of such Credit Party or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto or change any subordination
provision thereof or (b) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment, redemption, acquisition for value
or defeasance of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Indebtedness (other than
the Indebtedness under the Credit Documents) of such Credit Party.
Notwithstanding the above, the U.S. Borrower will not (i) amend, modify or waive
any of the terms and conditions of the Subordinated Debt without the prior
written consent of the Required Lenders, (ii) make an offer to make any
voluntary or optional principal payments with respect to the Subordinated Debt,
(iii) redeem or offer to redeem any of the Subordinated Debt or (iv) deposit any
funds intended to discharge or defease any or all of the Subordinated Debt.
9.14 LIMITATION ON PARENT.
The Parent will not sell, transfer or otherwise dispose of any shares
of capital stock of a Borrower. Furthermore, the Parent will not directly hold
any assets other than (a) the stock of
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the U.S. Borrower and WESCO Finance Corp., and (b) such amounts allowed to be
transferred to the Parent pursuant to Section 9.8. The Parent may not have any
liabilities other than the liabilities under the Credit Documents, tax
liabilities and other liabilities in the ordinary course of business (which
shall include liabilities under certain agreements with members of management
and indemnification obligations).
9.15 CAPITAL EXPENDITURES.
The Credit Parties will not permit Capital Expenditures (other than
Capital Expenditures in connection with a new headquarters for the U.S. Borrower
not to exceed $20,000,000) for (a) fiscal year 1999 to exceed $25,000,000, (b)
fiscal year 2000 to exceed $30,000,000 and (c) each fiscal year after fiscal
year 2000 to exceed $35,000,000; provided, however, that the maximum amount for
each such fiscal year shall be increased by the unused amount available for
Capital Expenditures under this Section 9.15 for the immediately preceding
fiscal year (excluding any carry forward available from any prior fiscal year).
9.16 LIMITATION ON OWNERSHIP OF ASSETS.
The Credit Parties will not permit the Total Facility Guarantors to own
at any time less than 85% of the total assets of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in accordance with GAAP.
SECTION 10
EVENTS OF DEFAULT
10.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence, and during the
continuance, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the payment (i)
when due of any principal of any of the Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
three Business Days of when due of any interest on the Loans or any
fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
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(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 8.2,
8.3, 8.11, or 9.1 through 9.16 inclusive;
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 8.1
and such default shall continue unremedied for a period of
five Business Days; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 10.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of a Credit Party becoming aware of
such default or notice thereof given by an Administrative
Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of a
Credit Party becoming aware of such default or notice thereof given by
an Administrative Agent, or (ii) any Credit Document shall fail to be
in full force and effect or any Credit Party shall so assert or any
Credit Document shall fail to give the Collateral Agent and the Lenders
the security interests, liens, rights, powers and privileges purported
to be created thereby.
(e) Guaranties. The guaranty given by any Credit Party
hereunder or by any Additional Credit Party hereafter or any provision
thereof shall cease to be in full force and effect, or any guarantor
thereunder or any Person acting by or on behalf of such guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following:
(i) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit Party
or any of its Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of its affairs; or (ii) an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect is commenced against any Credit Party or any
of its Subsidiaries and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its
Subsidiaries
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shall admit in writing its inability to pay its debts generally as they
become due or any action shall be taken by such Person in furtherance
of any of the aforesaid purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party or any of its Subsidiaries shall
default in the due performance or observance (beyond the
applicable grace period with respect thereto) of any material
obligation or condition of any contract or lease to which it
is a party; or
(ii) With respect to any Indebtedness of a Credit
Party or any of its Subsidiaries in excess of $20,000,000
(specifically including any Permitted Receivables Financing in
which the Credit Parties have received consideration in excess
of $20,000,000 for the sale of Receivables but excluding
Indebtedness outstanding under this Credit Agreement), (A) any
such Credit Party or Subsidiary shall (x) default in any
payment (beyond the applicable grace period with respect
thereto, if any) with respect to any such Indebtedness, or (y)
default (after giving effect to any applicable grace period)
in the observance or performance relating to such Indebtedness
or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition
shall occur or condition exist, the effect of which default or
other event or condition is to cause, or permit, the holder or
holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to whether
any notice or lapse of time is required) any such Indebtedness
to become due prior to its stated maturity; (B) any such
Indebtedness shall be declared due and payable, or required to
be prepaid other than by a required prepayment prior to the
stated maturity thereof; or (C) any such Indebtedness shall
mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees
(including, without limitation, any judgment, order, or decree with
respect to any litigation disclosed pursuant to the Credit Documents)
shall be entered against any one or more of the Credit Parties
involving a liability of $20,000,000 or more, in the aggregate (to the
extent not paid or covered by insurance provided by a carrier who has
acknowledged coverage), and such judgments, orders or decrees (i) are
the subject of any enforcement proceeding commenced by any creditor or
(ii) shall continue unsatisfied, undischarged and unstayed for a period
ending on the first to occur of (A) the last day on which such
judgment, order or decree becomes final and unappealable or (B) 60
days.
(i) ERISA. The occurrence of any of the following events or
conditions: (A) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall
arise on the assets of any Credit Party, any of its Subsidiaries or any
ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination Event
shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the U.S. Administrative Agent, likely to result
in the termination of such Plan for purposes of Title IV of ERISA; (C)
a Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the U.S.
Administrative Agent, likely
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to result in (i) the termination of such Plan for purposes of Title IV
of ERISA, or (ii) any Credit Party, any of its Subsidiaries or any
ERISA Affiliate incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA),
or insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; or (D) any prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit Party, any of
its Subsidiaries or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any agreement or other instrument pursuant to which any Credit
Party, any of its Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
(k) Material Loss of Collateral. There shall occur any loss,
theft, damage or destruction of any item or items of Collateral which
either (i) has had or could be reasonably expected to have a Material
Adverse Effect or (ii) materially and adversely affects the operation
of the Credit Parties' business, taken as a whole, and is not covered
by insurance as required herein.
(l) Subordinated Debt. The holders of the Subordinated Debt
assert (or any Governmental Authority determines) that (i) the Loans do
not constitute Senior Indebtedness (as defined in the Subordinated
Debt) or (ii) the obligations of the U.S. Borrower with respect to the
Subordinated Debt are not fully subordinate to the repayment of the
Loans and all other amounts owing under the Credit Documents.
10.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default,
and at any time thereafter unless and until such Event of Default has been
waived in writing by the Required Lenders (or the Lenders as may be required
hereunder), the Administrative Agents shall, upon the request and direction of
the Required Lenders, by written notice to the Borrowers, take the following
actions without prejudice to the rights of the Agents or any Lender to enforce
its claims against the Credit Parties, except as otherwise specifically provided
for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Cash Collateral. Direct the Borrowers to pay (and the
Borrowers agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under
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Section 10.1(f), they will immediately pay) to the Administrative
Agents additional cash to be held by the Administrative Agents, for the
benefit of the Lenders, in a cash collateral account as additional
security for (i) the LOC Obligations in respect of subsequent drawings
under all then outstanding Letters of Credit in an amount equal to the
maximum aggregate amount which may be drawn under all Letters of
Credits then outstanding and (ii) the BA Obligations in respect of
subsequent maturities under all then outstanding Bankers' Acceptances
in an amount equal to the maximum aggregate amount of all BA
Obligations.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and
all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
10.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit and Bankers'
Acceptances, all accrued interest in respect thereof, all cash necessary to
collateralize the LOC Obligations and BA Obligations pursuant to Section
10.2(c), all accrued and unpaid fees and other indebtedness or obligations owing
to the Lenders hereunder shall immediately become due and payable without the
giving of any notice or other action by the Agents or the Lenders, which notice
or other action is expressly waived by the Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agents, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
10.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by an Agent or any Lender on account of amounts
outstanding under any of the Credit Documents or in respect of the Collateral
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agents or any of the Lenders in connection with enforcing the
rights of the Lenders under the Credit Documents and any protective
advances made by the Agents or any of the Lenders with respect to the
Collateral under or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to an Agent, an Issuing
Lender or any Lender;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder and all other obligations (other than those
obligations to be paid pursuant to clause "FOURTH" below) which shall
have become due and payable under the Credit Documents and not repaid
pursuant to clauses "FIRST" and "SECOND" above;
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FOURTH, to the payment of the outstanding principal amount of
the Loans, unreimbursed drawings under Letters of Credit and matured
and unpaid Bankers' Acceptances, to the payment of any principal
amounts outstanding under Hedging Agreements between a Credit Party and
a Lender or an Affiliate of a Lender and to the payment or cash
collateralization of the outstanding LOC Obligations and BA
Obligations, pro rata as set forth below; and
FIFTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, LOC
Obligations, BA Obligations and obligations under Hedging Agreements held by
such Lender bears to the aggregate then outstanding Loans, LOC Obligations, BA
Obligations and obligations under Hedging Agreements) of amounts available to be
applied; and (c) to the extent that any amounts available for distribution
pursuant to clause "FOURTH" above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the
Collateral Agent in a cash collateral account and applied (x) first, to
reimburse the Issuing Lenders from time to time for any drawings under such
Letters of Credit and (y) then, following the expiration of all Letters of
Credit, to all other obligations of the types described in clause "FOURTH" above
in the manner provided in this Section 10.3.
10.4 CONVERSION AND REDENOMINATION OF LOANS; PURCHASE OF RISK
PARTICIPATIONS.
(a) Conversion and Redenomination of Loans. Notwithstanding
anything herein to the contrary, upon a termination of the Commitments
following the occurrence of an Event of Default (a "Commitment
Termination Event"), (i) all outstanding Loans denominated in Canadian
Dollars or bearing interest at a rate other than the Adjusted Base Rate
shall be redenominated and/or converted into Base Rate Loans
denominated in Dollars and (ii) all BA Obligations and LOC Obligations
owed to a Lender in Canadian Dollars shall be redenominated into BA
Obligations and LOC Obligations owed in Dollars (and a demand for cash
collateralization of such obligations shall be made in accordance with
Section 10.2(c)), in each case on and with effect from the soonest
practicable date following the Commitment Termination Event as
determined by the Administrative Agents (the "Conversion Date") and at
the exchange rate in effect as of such Conversion Date as determined by
the Administrative Agents in accordance with their normal market
practice. The Borrowers hereby agree to pay to the Administrative
Agents, for the pro rata benefit of the Lenders, on the Conversion Date
any amounts owing pursuant to Section 4.14 as a result of any such
conversion occurring prior to the end of an Interest Period. The
Administrative Agents will promptly notify the Borrowers and the
Lenders of any such redenomination and conversion following a
Commitment Termination Event.
(b) Purchase of Risk Participations. Each Lender hereby agrees
that it shall forthwith purchase, as of the Conversion Date (but
adjusted for any payments received from a Borrower on or after such
date and prior to such purchase), from the other Lenders
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such Participation Interests in the outstanding Loans, LOC Obligations
and BA Obligations (whether or not such Loans, LOC Obligations and BA
Obligations have been redenominated or converted pursuant to subsection
10.4(a)) as shall be necessary to cause each such Lender to share in
all Loans, LOC Obligations and BA Obligations ratably based upon its
Total Facility Commitment Percentage (determined before giving effect
to any termination of the Commitments), provided that (A) all interest
and fees payable on a Loan, LOC Obligation or BA Obligation shall be
for the account of the Lender that originally extended such Extension
of Credit until the date as of which the respective Participation
Interest is purchased and (B) if any purchase of a Participation
Interest required to be made pursuant to this sentence is not made on
the Conversion Date, then at the time such purchase is actually made
the purchasing Lender shall be required to pay to the selling Lender,
to the extent not paid to such selling Lender by the applicable
Borrower in accordance with the terms of this Credit Agreement,
interest on the principal amount of the Participation Interest
purchased for each day from and including the day upon which such
purchase of the Participation Interest would otherwise have occurred to
but excluding the date of actual payment for the purchase of such
Participation Interest, at the rate equal to the Federal Funds Rate.
SECTION 11
AGENCY PROVISIONS
11.1 APPOINTMENT.
Each Lender hereby designates and appoints Bank of America as U.S.
Administrative Agent and as Collateral Agent and Bank of America Canada as
Canadian Administrative Agent of such Lender to act as specified herein and the
other Credit Documents, and each such Lender hereby authorizes the Agents, as
the agents for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Agents shall
not have any duties or responsibilities except those expressly set forth herein
and therein or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Agents. The provisions of this Section are
solely for the benefit of the Agents and the Lenders and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement and
the other Credit Documents, each Agent shall act solely as an agent of the
Lenders and does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for any Credit Party or
any of its Subsidiaries.
11.2 DELEGATION OF DUTIES.
An Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all
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matters pertaining to such duties. An Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
11.3 EXCULPATORY PROVISIONS.
Neither the Agents nor any of their officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct) or responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any of the Credit Parties contained herein or in any of
the other Credit Documents or in any certificate, report, document, financial
statement or other written or oral statement referred to or provided for in, or
received by an Agent under or in connection herewith or in connection with the
other Credit Documents, or enforceability or sufficiency therefor of any of the
other Credit Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agents shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of this Credit Agreement, or any of the other
Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower or any of its Subsidiaries in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith
furnished or made by an Agent to the Lenders or by or on behalf of the Credit
Parties to the Agents or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or of the existence or
possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties. The Agents are not trustees
for the Lenders and owe no fiduciary duty to the Lenders.
11.4 RELIANCE ON COMMUNICATIONS.
The Agents shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation reasonably believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any of the Credit Parties, independent
accountants and other experts selected by the Agents with reasonable care). The
Agents may deem and treat the Lenders as the owner of its interests hereunder
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the U.S. Administrative Agent in accordance
with Section 12.3(b). The Agents shall be fully justified in failing or refusing
to take any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agents shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with
a request of the Required Lenders (or to the extent specifically provided in
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Section 12.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
11.5 NOTICE OF DEFAULT.
Except for a default with respect to a payment due to it, an Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless such Agent has received notice from a
Lender, another Agent or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the U.S. Administrative Agent receives
such a notice, the U.S. Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders and as is permitted by the Credit Documents.
11.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agents, BAS, Chase
Securities nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Agents or any affiliate thereof hereinafter taken,
including any review of the affairs of any Credit Party or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agents to any Lender. Each Lender represents to the Agents, Chase Securities
and BAS that it has, independently and without reliance upon the Agents or BAS
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Credit Parties and made its own decision
to make its Loans hereunder and enter into this Credit Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Agents, BAS, Chase Securities or any Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Credit Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agents hereunder, the Agents, Chase Securities
and BAS shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, assets,
property, financial or other conditions, prospects or creditworthiness of the
Credit Parties which may come into the possession of the Agents, Chase
Securities, BAS or any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates.
11.7 INDEMNIFICATION.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to their respective Commitments
(or if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind
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whatsoever which may at any time (including without limitation at any time
following payment in full of the Credit Party Obligations) be imposed on,
incurred by or asserted against an Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by an Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of an Agent. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section shall survive the payment of the Credit Party
Obligations and all other amounts payable hereunder and under the other Credit
Documents.
11.8 AGENTS IN THEIR INDIVIDUAL CAPACITY.
Each Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Parent or any of its
Subsidiaries as though such Agent were not an Agent hereunder. With respect to
the Loans made, Letters of Credit issued and BA Obligations created and all
obligations owing to it, an Agent shall have the same rights and powers under
this Credit Agreement as any Lender and may exercise the same as though they
were not an Agent, and the terms "Lender" and "Lenders" shall include each Agent
in its individual capacity.
11.9 SUCCESSOR AGENT.
Any Agent may, at any time, resign upon 20 days written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent, which, so long as no Event of Default has occurred
and is continuing, shall be acceptable to the U.S. Borrower (such acceptance not
to be unreasonably withheld or delayed). If no successor Agent shall have been
so appointed by the Required Lenders, and shall have accepted such appointment,
within 60 days after the notice of resignation, then the resignation of the
retiring Agent shall nonetheless thereupon be effective and the retiring Agent
shall select a successor Agent, provided such successor is an Eligible Assignee
(or if no Eligible Assignee shall have been so appointed by the retiring Agent
and shall have accepted such appointment, then the U.S. Lenders or the Canadian
Lenders, as the case may be, shall perform all obligations of the retiring Agent
hereunder until such time, if any, as a successor Agent shall have been
appointed and shall have accepted such appointment as provided for above). Upon
the acceptance of any appointment as an Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as an Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Section 11.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Credit
Agreement.
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SECTION 12
MISCELLANEOUS
12.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid (or on an invoice basis) to a reputable national
overnight air courier service, or (d) the third Business Day following the day
on which the same is sent by certified or registered mail, postage prepaid, in
each case to the respective parties at the address or telecopy numbers set forth
on Schedule 12.1, or at such other address as such party may specify by written
notice to the other parties hereto.
12.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described in
Section 10.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of any Credit Party or any of its Subsidiaries against Credit Party
Obligations of such Credit Party, irrespective of whether an Administrative
Agent or the Lenders shall have made any demand hereunder and although such
Credit Party Obligations may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section 12.3(e)
or Section 4.8 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
12.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests (except as
permitted by Section 9.4 or 9.5) without the prior written consent of
the Lenders; and provided further that the rights of each Lender to
transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 12.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including,
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without limitation, all or a portion of its Loans, its Notes, and its
Commitments); provided, however, that:
(i) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000
(or C$5,000,000, as applicable) (or, if less, the remaining
amount of the Commitment of such assigning Lender) or an
integral multiple of $1,000,000 (or C$1,000,000, as
applicable) in excess thereof;
(ii) each such assignment by a Lender of it rights
and obligations under Section 2 or Section 3 shall be of a
constant, and not varying, percentage of all of its rights and
obligations under such Section; and
(iii) the parties to such assignment shall execute
and deliver to the appropriate Administrative Agent for its
acceptance an Assignment Agreement in substantially the form
of Exhibit 12.3(b), together with a processing fee from the
assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights (other than indemnity and expense
reimbursement rights relating to the period during which such assigning
Lender was a Lender hereunder) and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 12.3(b), the assignor, the Administrative
Agents and the Borrowers shall make appropriate arrangements so that,
if required, new Notes are issued to the assignor and the assignee. If
the assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the U.S. Borrower and
the U.S. Administrative Agent certification as to exemption from
deduction or withholding of taxes in accordance with Section 4.13.
By executing and delivering an assignment agreement in accordance with
this Section 12.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (A) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and the assignee
warrants that it is an Eligible Assignee; (B) except as set forth in
clause (A) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of this Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto or
the financial condition of any Credit Party or any of its Subsidiaries
or the performance or observance by any Credit Party of any of its
obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto
or thereto; (C) such assignee
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represents and warrants that it is legally authorized to enter into
such Assignment Agreement; (D) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
Assignment Agreement; (E) such assignee will independently and without
reliance upon the Agents, such assigning Lender or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Credit Agreement and the other
Credit Documents; (F) such assignee appoints and authorizes the Agents
to take such action on its behalf and to exercise such powers under
this Credit Agreement or any other Credit Document as are delegated to
the Agents by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto; and (G) such assignee agrees that it
will perform in accordance with their terms all the obligations which
by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Register. The Administrative Agents shall maintain a copy
of each Assignment Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest or
demonstrable error, and the Borrowers, the Administrative Agents and
the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note relating to
such assignment, and payment of the processing fee, the Administrative
Agents shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b) hereto and if the relevant
assignment is otherwise permitted by this Credit Agreement, (i) accept
such Assignment Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitments and its Loans); provided, however, that (i)
such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection
provisions contained in Sections 4.9 through 4.14, inclusive, and the
right of set-off contained in Section 12.2 and (iv) the Borrowers shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and such Lender shall retain the sole right to enforce the obligations
of the Borrowers relating to its Loans, its Notes and any other Credit
Party Obligations owing to it and to approve any amendment,
modification, or waiver of any provision of this Credit Agreement
(other than amendments,
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modifications, or waivers decreasing the amount of principal of or the
rate at which interest or fees are payable on such Loans, Notes or
other Credit Party Obligations, extending any scheduled principal
payment date or date fixed for the payment of interest or fees on such
Loans, Notes or other Credit Party Obligations, extending its
Commitments or releasing all or substantially all of the Collateral or
the Guarantors) and (v) such Lender shall provide written notice of any
participation to the Borrowers and the Administrative Agents.
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any U.S. Lender may at
any time 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 and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(g) Information. Any Lender may furnish any information
concerning the Parent or any of its Subsidiaries in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants), subject, however, to the
provisions of Section 12.15.
(h) CLO's. Notwithstanding anything to the contrary contained
herein, any Lender, (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any part
of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Credit Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to
fund such Loan pursuant to the terms hereof, (iii) no SPC shall have
any voting rights pursuant to Section 12.6 and (iv) with respect to
notices, payments and other matters hereunder, the Credit Parties, the
Agents and the Lenders shall not be obligated to deal with an SPC, but
may limit their communications and other dealings relevant to such SPC
to the applicable Granting Lender. The funding of a Loan by an SPC
hereunder shall utilize the U.S. Revolving Loan Commitment or Canadian
Revolving Loan Commitment, as applicable, of the Granting Lender to the
same extent that, and as if, such Loan were funded by such Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or payment under this Credit Agreement for which a Lender
would otherwise be liable for so long as, and to the extent, the
Granting Lender provides such indemnity or makes such payment.
Notwithstanding anything to the contrary contained in this Credit
Agreement, any SPC may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency,
commercial paper dealer or provider of any surety or guarantee to such
SPC. This Section may not be amended without the prior written consent
of each Granting Lender, all or any part of whose Loan is being funded
by an SPC at the time of such amendment.
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12.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Parent or any of its Subsidiaries and the
Agents or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Agents or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agents or the Lenders to any other or
further action in any circumstances without notice or demand.
12.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The U.S. Credit Parties agree to: (a) pay all reasonable out-of-pocket
costs and expenses of (i) the Agents, BAS and Chase Securities in connection
with (A) the negotiation, preparation, execution and delivery and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of counsel to the Agents), and (B) any amendment, waiver or
consent relating hereto and thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Credit Parties
under this Credit Agreement and (ii) the Agents and the Lenders in connection
with (A) enforcement of the Credit Documents and the documents and instruments
referred to therein, including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for the Agents and
each of the Lenders, and (B) any bankruptcy or insolvency proceeding of a Credit
Party or any of its Subsidiaries and (b) indemnify each Agent, BAS, Chase
Securities, each Lender and each of their officers, directors, employees,
representatives, Affiliates and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses (including,
without limitation, the reasonable fees and expenses of legal counsel, including
the allocated cost of internal counsel, and settlement costs) incurred by any of
them as a result of, or arising out of, or in any way related to, or by reason
of, any investigation, litigation or other proceeding (whether or not any Agent,
BAS, Chase Securities, or Lender is a party thereto) related to (i) the entering
into and/or performance of any Credit Document or the use of proceeds of any
Loans (including other Extensions of Credit) hereunder or the consummation of
any other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding, (ii) any
Environmental Claim, (iii) any claims for Non-Excluded Taxes (but excluding in
the case of (i), (ii) and (iii) above, any such losses, liabilities, claims,
damages or expenses to the extent incurred by reason of gross negligence or
willful misconduct on the part of the Person to be indemnified). Without
limiting the U.S. Credit Parties' obligations under this Section 12.5, the
Canadian Credit Parties agree to pay any such costs and expenses referred to in
clause (a) above and to indemnify the parties referred to in clause (b) above
for any of the losses referred to in such clause, in each case to the extent (x)
such Canadian Credit Parties are responsible for such costs and expenses or
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losses or such costs and expenses or losses can reasonably be attributed to them
and (y) such costs and expenses or losses are not otherwise paid or reimbursed
by the U.S. Credit Parties.
12.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the then Credit Parties; provided
that no such amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the Maturity Date;
(b) 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) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend any Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(e) release all or substantially all of the Collateral
securing the Credit Party Obligations hereunder (provided that the
Collateral Agent may, without consent from any other Lender, release
any Collateral that is sold or transferred by a Credit Party in
conformance with Section 9.5);
(f) release either Borrower or the Parent from its obligations
or release all or substantially all of the other Credit Parties from
their respective obligations under the Credit Documents;
(g) amend, modify or waive any provision of this Section or
Section 4.4, 4.7, 4.8, 6.2, 10.1(a), 12.2, 12.3 or 12.5;
(h) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders; or
(i) consent to the assignment or transfer by a Borrower of any
of its rights and obligations under (or in respect of) the Credit
Documents.
Notwithstanding the above, no provisions of Section 11 may be amended or
modified without the consent of the Agents. No provisions affecting an Issuing
Lender's rights to (a) reimbursement or indemnity under Section 2.2 or Section
3.2 or (b) any Issuing Lender Fees may be amended without the consent of the
applicable Issuing Lender. No provision of Section 2.3 or Section 3.3 affecting
the Swingline Loans may be amended without the consent of the applicable
Swingline Lender. No
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provision of Section 2 may be amended without the consent of the Required U.S.
Lenders and no provision of Section 3 may be amended without the consent of the
Required Canadian Lenders.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
12.7 COUNTERPARTS/TELECOPY.
This Credit Agreement and the other Credit Documents may be executed in
any number of counterparts, each of which where so executed and delivered shall
be an original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be as effective as an
original and shall constitute a representation that an original will be
delivered.
12.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
12.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 12.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
12.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND
WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations, BA Obligations and other obligations and the
termination of the Commitments hereunder.
12.11 GOVERNING LAW; JURISDICTION.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. Any legal action or proceeding with respect
to this Agreement or any other Credit Document may be brought in the
courts of the State of North Carolina or of the United States for the
Western District of North Carolina, and, by execution and delivery of
this Credit Agreement, each Credit Party hereby irrevocably accepts for
itself and in respect of
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its property, generally and unconditionally, the jurisdiction of such
courts. Each Credit Party further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address for notices
pursuant to Section 12.1, such service to become effective 10 days
after such mailing. Nothing herein shall affect the right of a Lender
to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against a Credit Party in any
other jurisdiction. Each Credit Party agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law; provided that nothing in this Section 12.11(a) is
intended to impair a Credit Party's right under applicable law to
appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Agreement or any other Credit Document brought in the courts
referred to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Each Canadian Credit Party hereby appoints the U.S.
Borrower as its agent in the United States for service of process.
12.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Agents, the Issuing Lenders, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
or agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to any of the transactions
contemplated herein.
12.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
12.14 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of an Administrative Agent,
to promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents,
including, but not limited to, such actions as are
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127
necessary to ensure that the Lenders have a perfected security interest in the
Collateral subject to no Liens other than Permitted Liens.
12.15 CONFIDENTIALITY.
Each of the Agents, the Issuing Lenders, the Swingline Lenders and the
other Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors, and to any direct or indirect contractual
counterparty in swap agreements or to such contractual counterparty's
professional advisor (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Credit Agreement or to an SPC (as defined in Section
12.3(h)) in connection with Section 12.3(h), (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Credit Agreement or any other Credit Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Credit Agreement, (g) with the consent of
Parent and the Borrowers or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Agents, any Issuing Lender or any Lender on a
nonconfidential basis from a source other than Parent or the Borrowers. For the
purposes of this Section, the term "Information" means all information received
from Parent or the Borrowers relating to Parent, the Borrowers, or their
Subsidiaries or their respective business other than any such information that
is available to the Agents, any Issuing Lender or any Lender on a
nonconfidential basis prior to disclosure by Parent or the Borrowers, provided
that, in the case of information received from Parent or the borrowers after the
date hereof (other than any such information received pursuant to Section 8.1)
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
12.16 JUDGMENT CURRENCY.
(a) The Borrowers' obligations hereunder and under the Credit
Documents to make payments in Dollars or in Canadian Dollars (the
"Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted
into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by
the Administrative Agents, the Collateral Agent or a Lender of the full
amount of the Obligation Currency expressed to be payable to such
Administrative Agent, Collateral Agent or Lender under this Agreement
or the other Credit Documents. If, for the purpose of obtaining or
enforcing judgment against either of the Borrowers or any other Credit
Party in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than the Obligation Currency
(such other currency being hereinafter referred to as the "Judgment
Currency") an amount
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due in the Obligation Currency, the conversion shall be made, at the
Dollar Equivalent (as defined below) of such amount, in the case of any
Canadian Dollars or Dollars, and, in the case of other currencies, the
rate of exchange (as quoted by the U.S. Administrative Agent or if the
U.S. Administrative Agent does not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the U.S.
Administrative Agent) determined, in each case, as of the date
immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Borrowers covenant and agree to pay, or
cause to be paid, such additional amounts, if any (but in any event not
a lesser amount), as may be necessary to ensure that the amount paid in
the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment of judicial award at the
rate of exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes hereof, Dollar Equivalent means, with respect
to any amount of Canadian Dollars on any date, the amount of Dollars
that may be purchased with such amount of Canadian Dollars, as
determined by the rate at which Dollars are offered in Toronto, Ontario
on such date by the Canadian Administrative Agent for Canadian Dollars
at 11:00 a.m. (Toronto, Ontario time) in accordance with its normal
market practice. In determining the Dollar Equivalent or rate of
exchange for this Section, such amounts shall include any premium and
costs payable in connection with the purchase of the Obligation
Currency.
12.17 ENTIRETY.
This Credit Agreement together with the other Credit Documents and the
Fee Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
12.18 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 6.1 have been satisfied
or waived by the Lenders and it shall have been executed by the Credit
Parties and the Agents, and the Agents shall have received copies
hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Credit Parties, the
Agents and each Lender and their respective successors and assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC Obligations,
interest, fees and other Credit Party Obligations have been paid in
full and all Commitments and Letters of Credit have been terminated.
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Upon termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents and the Collateral Agent shall, at the request and
expense of the Credit Parties, deliver all Collateral in its possession
to the Credit Parties and release all Liens on Collateral; provided
that should any payment, in whole or in part, of the Credit Party
Obligations be rescinded or otherwise required to be restored or
returned by an Agent or any Lender, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, then the
Credit Documents shall automatically be reinstated and all Liens of the
Lenders shall reattach to the Collateral and all amounts required to be
restored or returned and all costs and expenses incurred by an Agent or
Lender in connection therewith shall be deemed included as part of the
Credit Party Obligations.
12.19 DESIGNATED SENIOR INDEBTEDNESS.
The Parent and the U.S. Borrower hereby specifically designate the
Indebtedness evidenced by this Credit Agreement and the other Credit Documents
(specifically including all Credit Party Obligations) as "Designated Senior
Indebtedness" for all purposes, including without limitation for purposes of the
Subordinated Debt Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
U.S. BORROWER: WESCO DISTRIBUTION, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO and Treasurer
------------------------------------
CANADIAN BORROWER: WESCO DISTRIBUTION-CANADA, INC.,
an Ontario corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO & Treasurer
------------------------------------
TOTAL FACILITY
GUARANTORS: WESCO INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO & Treasurer
------------------------------------
CDW REALCO, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO & Treasurer
------------------------------------
WESCO EQUITY CORPORATION,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: President/Treasurer
------------------------------------
WESCO FINANCE CORP.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO & Treasurer
------------------------------------
131
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
WESCO - AZERBAIJAN, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President, CFO & Treasurer
------------------------------------
S-2
132
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
LENDERS: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
in its capacity as the
U.S. Administrative Agent
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually in its capacity as a
U.S. Lender, the U.S. Issuing Lender and
the U.S. Swingline Lender
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Managing Director
------------------------------------
BANK OF AMERICA CANADA,
in its capacity as a Canadian Lender,
the Canadian Administrative Agent, the
Canadian Issuing Lender and the
Canadian Swingline Lender
By: /s/ XXXXXXX X. XXXX
---------------------------------------
Name: Xxxxxxx X. Xxxx
-------------------------------------
Title: Vice President
------------------------------------
S-3
133
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
ABN AMRO BANK N.V.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-4
134
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
BANKBOSTON, N.A.
By: /s/ XXXX X. XXXXX SACASA
---------------------------------------
Name: Xxxx X. Xxxxx Xxxxxx
-------------------------------------
Title: Managing Director
------------------------------------
S-5
135
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
BANK OF HAWAII
By: /s/ XXXXX X. XXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-6
136
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
THE BANK OF NEW YORK
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-7
137
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
THE BANK OF NOVA SCOTIA
By: /s/ FCH XXXXX
---------------------------------------
Name: FCH Xxxxx
-------------------------------------
Title: Senior Management Loan Operations
------------------------------------
S-8
138
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
BANK ONE, MICHIGAN
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------------
Title: First Vice President
------------------------------------
S-9
139
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
THE CHASE MANHATTAN BANK
By: /s/ XXXXXXX XX XXXXXXXX
---------------------------------------
Name: Xxxxxxx Xx Xxxxxxxx
-------------------------------------
Title: Managing Director
------------------------------------
S-10
140
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
XXX XXXXX XXXXXXXXX XXXX XX XXXXXX
By: /s/ XXXXXXXXX XXXX
---------------------------------------
Name: Xxxxxxxxx Xxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-11
141
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
COMERICA BANK
By: /s/ XXXXX SKIREY
---------------------------------------
Name: Xxxxx Skirey
-------------------------------------
Title: Assistant Vice President
------------------------------------
S-12
142
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
THE FUJI BANK, LIMITED
By: /s/ XXXX XXXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxxx
-------------------------------------
Title: Vice President and Manager
------------------------------------
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143
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
SYNDICATED LOAN FUNDING TRUST
BY: XXXXXX COMMERCIAL PAPER INC. NOT IN
ITS INDIVIDUAL CAPACITY BUT SOLELY AS
ASSET MANAGER
By: /s/ XXXXXXX XXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------------
Title: Authorized Signatory
------------------------------------
S-14
144
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
MELLON BANK, N.A.
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-15
145
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
XXXXXX BANK PLC
By: /s/ XXXXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-16
146
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
NATIONAL BANK OF CANADA
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President and Manager
------------------------------------
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-17
147
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-18
148
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
THE TORONTO-DOMINION BANK
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Manager, Credit Administration
------------------------------------
S-19
149
Signature pages to Credit Agreement
in favor of WESCO Distribution, Inc.
and WESCO Distribution-Canada, Inc.
TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
S-20
