EXECUTION COPY
U.S. $1,000,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 29, 1997
Among
XXXXXX GROUP INTERNATIONAL, INC.
as the Borrower,
THE XXXXXX GROUP INC.
as a Guarantor,
THE LENDERS NAMED HEREIN
as the Lenders,
XXXXXXX XXXXX CREDIT PARTNERS L.P.
as the Documentation Agent,
and
BANK OF MONTREAL
as L/C Issuer, Swing Line Lender and Administrative and Syndication Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.1. The Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . 27
2.1.1 Facility A Revolving Loans . . . . . . . . . . . . . . . . 27
2.1.2 Facility B Revolving Loans . . . . . . . . . . . . . . . . 27
2.2. Repayment of the Revolving Loans . . . . . . . . . . . . . . . . 28
2.3. Ratable Revolving Loans; Types of Advances . . . . . . . . . . . 28
2.4. Minimum Amount of Each Advance . . . . . . . . . . . . . . . . . 28
2.5. Optional Prepayments of Revolving Loans . . . . . . . . . . . . . 28
2.6. Method of Selecting Types and Interest Periods for New Advances . 29
2.7. Conversion and Continuation of Outstanding Advances . . . . . . . 30
2.8. Payment of Interest on Revolving Loans and Advances . . . . . . . 30
2.9. Changes in Interest Rate, Etc. . . . . . . . . . . . . . . . . . 31
2.10. Commitment Fee; Mandatory and Voluntary Reductions in Aggregate
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.10.1 Facility A Commitment Fee . . . . . . . . . . . . . . . . 31
2.10.2 Facility B Commitment Fee . . . . . . . . . . . . . . . . 32
2.10.3 Mandatory Reductions in Facility A Aggregate Commitment . 32
2.10.4 Voluntary Reductions in Aggregate Commitment . . . . . . 33
2.11. Rates Applicable After Default . . . . . . . . . . . . . . . . . 33
2.12. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . 33
2.13. Evidence of Debt; Telephonic Notices . . . . . . . . . . . . . . 34
2.14. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . 34
2.15. Lending Installations . . . . . . . . . . . . . . . . . . . . . . 35
2.16. Non-Receipt of Funds by the Agent . . . . . . . . . . . . . . . . 35
2.17. Withholding Tax Exemption; Gross Up . . . . . . . . . . . . . . . 35
2.18. Extension of Facility A Termination Date . . . . . . . . . . . . 37
2.19. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . 38
2.19.1 Facility A Revolving Loans . . . . . . . . . . . . . . . 38
2.19.2 Facility B Revolving Loans . . . . . . . . . . . . . . . 38
2.20. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2.21. Letter of Credit Facility . . . . . . . . . . . . . . . . . . . . 39
2.21.1 Letters of Credit . . . . . . . . . . . . . . . . . . . . 39
2.21.2 Letter of Credit Participation . . . . . . . . . . . . . 39
2.21.3 Reimbursement Obligation . . . . . . . . . . . . . . . . 40
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2.21.4 Cash Collateral . . . . . . . . . . . . . . . . . . . . . 42
2.21.5 Letter of Credit Fees . . . . . . . . . . . . . . . . . . 43
2.21.6 Indemnification; Exoneration . . . . . . . . . . . . . . 43
2.21.7 Letter of Credit Cancellation . . . . . . . . . . . . . . 45
2.22. Swing Line Commitment . . . . . . . . . . . . . . . . . . . . . . 45
2.23. Borrowing Procedures for Swing Line Loans . . . . . . . . . . . . 45
2.24. Refunding of Swing Line Loans . . . . . . . . . . . . . . . . . . 46
2.25. Participations in Swing Line Loans . . . . . . . . . . . . . . . 46
2.26. Swing Line Participation Obligations Unconditional . . . . . . . 47
2.27. Evidence of Swing Line Loans; Telephonic Notices . . . . . . . . 47
2.28. Conditions to Swing Line Loans . . . . . . . . . . . . . . . . . 48
ARTICLE III CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . 48
3.1. Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . 48
3.2. Changes in Capital Adequacy Regulations . . . . . . . . . . . . . 49
3.3. Availability of Types of Advances . . . . . . . . . . . . . . . . 50
3.4. Funding Indemnification . . . . . . . . . . . . . . . . . . . . . 50
3.5. Mitigation; Lender Statements; Survival of Indemnity . . . . . . 50
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 51
4. Conditions Precedent to Amendment and Restatement . . . . . . . . 51
4.1. Initial Advance, Swing Line Loan and Letter of Credit . . . . . . 51
4.2. Each Advance, Swing Line Loan and Letter of Credit . . . . . . . 53
ARTICLE V TLGI GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.1. The Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.2. Guaranty Unconditional . . . . . . . . . . . . . . . . . . . . . 54
5.3. Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.4. Waiver by TLGI . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.5. Waiver of Subrogation Rights . . . . . . . . . . . . . . . . . . 56
5.6. Stay of Acceleration . . . . . . . . . . . . . . . . . . . . . . 56
5.7. Gross-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 57
6. Representations and Warranties . . . . . . . . . . . . . . . . . 57
6.1. Corporate Existence and Standing . . . . . . . . . . . . . . . . 57
6.2. Authorization and Validity . . . . . . . . . . . . . . . . . . . 57
6.3. No Conflict; Government Consent . . . . . . . . . . . . . . . . . 58
6.4. Financial Statements . . . . . . . . . . . . . . . . . . . . . . 58
6.5. Material Adverse Change . . . . . . . . . . . . . . . . . . . . . 58
6.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.7. Litigation and Contingent Liabilities . . . . . . . . . . . . . . 59
6.8. Subsidiaries; Pledge of Stock . . . . . . . . . . . . . . . . . . 59
ii
6.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.10. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . 60
6.11. Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . 60
6.12. Material Agreements . . . . . . . . . . . . . . . . . . . . . . . 60
6.13. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . 60
6.14. Ownership of Properties . . . . . . . . . . . . . . . . . . . . . 61
6.15. Investment Company Act . . . . . . . . . . . . . . . . . . . . . 61
6.16. Public Utility Holding Company Act . . . . . . . . . . . . . . . 61
6.17. Post-Retirement Benefits . . . . . . . . . . . . . . . . . . . . 61
6.18. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.19. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.20. Existing Letters of Credit . . . . . . . . . . . . . . . . . . . 62
6.21. No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.1. Financial Reporting . . . . . . . . . . . . . . . . . . . . . . . 62
7.2. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.3. Notices of Default, Litigation, Etc. . . . . . . . . . . . . . . 66
7.4. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . 66
7.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.7. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . 67
7.8. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . 67
7.9. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.10. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.11. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.12. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.13. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.14. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.15. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.16. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.17. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.18. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
7.19. Minimum Consolidated Net Worth . . . . . . . . . . . . . . . . . 75
7.20. Minimum Consolidated Tangible Net Worth . . . . . . . . . . . . . 75
7.21. Maximum Consolidated Indebtedness to Consolidated
Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.22. Interest Charges Coverage; Treatment of Gain on Sale of Arbor
Funeral Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.23. Maximum Consolidated Indebtedness to Adjusted EBITDA . . . . . . 76
7.24. Ownership of the Borrower . . . . . . . . . . . . . . . . . . . . 76
7.25. Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . 76
7.26. Pledge of Stock and Grant of Security Interest in Certain
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
iii
7.27. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.28. Subsidiaries' Stock . . . . . . . . . . . . . . . . . . . . . . 78
7.29. Deliveries by Pledgor Subsidiaries . . . . . . . . . . . . . . . 78
ARTICLE VIII DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
8. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES . . . . . . . . . 82
9.1. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . 82
9.2. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.3. Preservation of Rights . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE X GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 85
10.1. Survival of Representations . . . . . . . . . . . . . . . . . . 85
10.2. Governmental Regulation . . . . . . . . . . . . . . . . . . . . 85
10.3. Stamp Duties . . . . . . . . . . . . . . . . . . . . . . . . . . 85
10.4. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
10.5. Entire Agreement; Independence of Covenants . . . . . . . . . . 85
10.6. Several Obligations; Benefits of this Agreement . . . . . . . . 85
10.7. Expenses; Indemnification . . . . . . . . . . . . . . . . . . . 86
10.8. Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . 87
10.9. Accounting; Currency Conversions . . . . . . . . . . . . . . . . 87
10.10. Severability of Provisions . . . . . . . . . . . . . . . . . . . 88
10.11. Nonliability of Lenders . . . . . . . . . . . . . . . . . . . . 88
10.12. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . 88
10.13. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . 88
10.14. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . 89
10.15. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 89
10.16. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . 89
10.17. Canadian Interest Antidotes . . . . . . . . . . . . . . . . . . 90
10.18. Counterparts; Effectiveness . . . . . . . . . . . . . . . . . . 90
ARTICLE XI THE AGENT AND THE DOCUMENTATION AGENT . . . . . . . . . . . . . 91
11.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.2. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.3. General Immunity . . . . . . . . . . . . . . . . . . . . . . . . 91
11.4. No Responsibility for Revolving Loans, Swing Line Loans,
Recitals, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 91
11.5. Action on Instructions of Lenders . . . . . . . . . . . . . . . 91
11.6. Employment of Agents and Counsel . . . . . . . . . . . . . . . . 92
11.7. Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . 92
11.8. Agent's Reimbursement and Indemnification . . . . . . . . . . . 92
11.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . 92
iv
11.10. Lenders' Credit Decisions . . . . . . . . . . . . . . . . . . . 93
11.11. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . 93
11.12. Agent's Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 93
11.13. Documentation Agent . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE XII SETOFF; RATABLE PAYMENTS. . . . . . . . . . . . . . . . . . . . 94
12.1. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
12.2. Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS. . . . . . . 94
13.1. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 94
13.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . 95
13.2.1 Permitted Participations; Effect . . . . . . . . . . . . 95
13.2.2 Voting Rights . . . . . . . . . . . . . . . . . . . . . 96
13.2.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . 96
13.3. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . 96
13.3.1 Permitted Assignments . . . . . . . . . . . . . . . . . 96
13.3.2 Effect; Effective Date of Assignments . . . . . . . . . 97
13.4. Dissemination of Information . . . . . . . . . . . . . . . . . . 98
13.5. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . 98
ARTICLE XIV NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.1. Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . 99
14.2. Change of Address . . . . . . . . . . . . . . . . . . . . . . . 99
ARTICLE XV COLLATERAL TRUST AGREEMENT . . . . . . . . . . . . . . . . . . . 99
15.1. Appointment of Secured Party Representative . . . . . . . . . . 99
15.2. Appointment of Enforcement Representatives . . . . . . . . . . . 99
15.3. Actions of Lenders . . . . . . . . . . . . . . . . . . . . . . . 99
v
ARTICLE XVI AMENDMENT AND RESTATEMENT . . . . . . . . . . . . . . . . . . . 100
16.1. Amendment and Restatement . . . . . . . . . . . . . . . . . . . 100
16.2 Departing Lenders . . . . . . . . . . . . . . . . . . . . . . . 101
vi
SCHEDULE 1 - Disclosure Schedule
SCHEDULE 2 - Applicable Margins and Applicable Commitment Fee and Letter of
Credit Fee Rates
SCHEDULE 3 - Senior Obligations
SCHEDULE 4 - Existing Letters of Credit
SCHEDULE 5 - Commitments of the Lenders
SCHEDULE 6 - Certain Pledged Shares Subject to Transfer Restrictions
SCHEDULE 7 - Departing Lenders
EXHIBIT A-1 - Form of Facility A Revolving Note
EXHIBIT A-2 - Form of Facility B Revolving Note
EXHIBIT B - Required Opinions
EXHIBIT C - Form of Compliance Certificate
EXHIBIT D - Form of Assignment Agreement
EXHIBIT E - Form of Revolving Loan/Swing Line Loan/Credit Related Money
Transfer Instruction
EXHIBIT F - Form of Revolving Loan Borrowing Notice
EXHIBIT G - Form of Prepayment Notice
EXHIBIT H - Form of Extension Request
EXHIBIT I - Form of Conversion/Continuation Notice
EXHIBIT J - Collateral Trust Agreement
EXHIBIT K - Form of Approved Sale Certificate
EXHIBIT L - Form of Swing Line Loan Borrowing Notice
vii
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September
29, 1997, is among XXXXXX GROUP INTERNATIONAL, INC., a Delaware corporation,
as the Borrower, THE XXXXXX GROUP INC., a corporation organized under the
laws of the Province of British Columbia, Canada, as a Guarantor, THE LENDERS
NAMED HEREIN, as the initial Lenders, XXXXXXX XXXXX CREDIT PARTNERS L.P., as
the Documentation Agent, and BANK OF MONTREAL, as the L/C Issuer and the
Swing Line Lender and as the Administrative and Syndication Agent for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, The Xxxxxx Group Inc., Xxxxxxx, Xxxxx & Co.,
as the Documentation Agent, certain Lenders party thereto and Bank of
Montreal, as L/C Issuer, Swing Line Lender and Agent for the Lenders, have
entered into a Credit Agreement, dated as of May 15, 1996 (together with all
amendments thereto, the "Original Agreement"), pursuant to which the Lenders
made certain loans to the Borrower, and the L/C Issuer issued, upon the
application of the Borrower, certain letters of credit for the account of the
Borrower; and
WHEREAS, the Borrower, The Xxxxxx Group Inc., certain of the
Lenders party thereto and Bank of Montreal desire to amend and restate the
Original Agreement to provide for, among other things, (i) an extension of
the term of the Commitments (as defined in the Original Agreement), (ii) new
Facility B Commitments from the Lenders, pursuant to which Facility B
Revolving Loans will be made to the Borrower, in a maximum aggregate
principal amount at any one time outstanding not to exceed the Facility B
Aggregate Commitment, from time to time prior to the Facility B Termination
Date, and (iii) certain other modifications, all on the terms and conditions
set forth herein; and
WHEREAS, the proceeds of the new Facility B Revolving Loans,
together with the proceeds of any Facility A Revolving Loans and Swing Line
Loans, will be used:
(a) to make payment in full of all Indebtedness identified on
ANNEX I of SCHEDULE 1 hereto under the heading "Indebtedness to be
Paid";
(b) for general corporate purposes and working capital
purposes of the Borrower and its Subsidiaries; and
(c) to finance non-contested acquisitions made by the
Borrower or its Subsidiaries under the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. As used in this Agreement the
following terms shall have the following meanings, such meanings being
equally applicable to both the singular and plural forms of the terms defined:
"ACQUISITION" means any transaction, or any series of related
transactions, by which TLGI or any of its Subsidiaries (a) acquires any going
business or all or substantially all of the assets of any firm, corporation,
limited liability company, partnership or other Person, or (as applicable)
any operation or division thereof which constitutes a going business, whether
through purchase of assets, merger or otherwise or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership, membership interests of a limited
liability company, or other ownership interests of any Person.
"ADJUSTED EBITDA" shall mean at any time for the four consecutive
fiscal quarter period then most recently ended the sum of (a) EBITDA of TLGI
and the Borrower and the other Subsidiaries for such four consecutive fiscal
quarter period determined on a consolidated basis, PLUS (b) EBITDA for such
four consecutive fiscal quarter period of all Persons acquired by TLGI, the
Borrower or the other Subsidiaries during the six-month period ending on the
last day of such four consecutive fiscal quarter period (but only to the
extent the Acquisitions of such Persons constituted Permitted Acquisitions),
LESS (c) all amounts included in the foregoing CLAUSE (b) to the extent such
amounts are included in the foregoing CLAUSE (a); provided that EBITDA of any
such acquired Person shall be determined on the basis of actual EBITDA for
such acquired Person as set forth in the financial statements of such
acquired Person, which financial statements shall be (x) audited for the
portion of such four consecutive fiscal quarter period which falls within the
most recently ended fiscal year of such acquired Person ended prior to the
date on which such Person became a Subsidiary of TLGI, the Borrower or
another Subsidiary and unaudited for the portion of such four consecutive
fiscal quarter period which falls after the end of the most recently ended
fiscal year of such acquired Person ended prior to the date on which such
Person became a Subsidiary of TLGI, the Borrower or another Subsidiary if the
total consideration payable in connection with such Acquisition is in excess
of $25,000,000, and (y) unaudited for such four consecutive fiscal quarter
period if the total consideration payable in connection with such Acquisition
is $25,000,000 or less.
"ADVANCE" means a Facility A Advance or a Facility B Advance, as
the context may require or allow, and "ADVANCES" means Facility A Advances
and Facility B Advances, taken together.
2
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or
otherwise.
"AGENT" means Bank of Montreal in its capacity as Administrative
and Syndication Agent for the Lenders pursuant to ARTICLE XI, and not in its
capacity as the Swing Line Lender, the L/C Issuer or a Lender, and any
successor Agent appointed pursuant to ARTICLE XI.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of
all the Lenders, as reduced from time to time pursuant to the terms hereof.
"AGREEMENT" means this Amended and Restated Credit Agreement, as it
from time to time may be amended, restated, supplemented or otherwise
modified in accordance with the terms hereof.
"AGREEMENT ACCOUNTING PRINCIPLES" means GAAP as in effect from time
to time, applied in a manner consistent with that used in preparing the
financial statements referred to in SECTION 6.4.
"ALTERNATE BASE RATE" means, for any day, a floating rate of
interest per annum equal to the higher of (a) the Base Rate for such day and
(b) the sum of the Federal Funds Effective Rate for such day plus 0.50% per
annum. Changes in the rate of interest on that portion of any Revolving
Loans maintained as Floating Rate Advances and on all Swing Line Loans (and
in the rate of interest on any other Obligations from time to time bearing
interest at a rate determined by reference to the Alternate Base Rate) will
take effect simultaneously with each change in the Alternate Base Rate.
"APPLICABLE COMMITMENT FEE RATE" means the Facility A Applicable
Commitment Fee Rate or the Facility B Applicable Commitment Fee Rate, as the
context may require or allow.
"APPLICABLE LETTER OF CREDIT FEE RATE" means a per annum rate
determined from time to time by reference to TLGI's senior unsecured and
unenhanced (except, if applicable, pursuant to the Collateral Trust
Agreement) long-term debt rating as specified on SCHEDULE 2 hereto; PROVIDED,
HOWEVER, that the Applicable Letter of Credit Fee Rate will be adjusted as
specified on SCHEDULE 2 hereto whenever Excess Leverage Margin is applicable.
Any change in the Applicable Letter of Credit Fee Rate resulting from a
change in TLGI's debt ratings will take effect as of the date of the debt
ratings change and any change in the Applicable Letter of Credit
3
Fee Rate resulting from the application of Excess Leverage Margin thereto
will take effect on the date specified in the definition of "Excess Leverage
Margin".
"APPLICABLE MARGIN" means a per annum rate determined from time to
time by reference to TLGI's senior unsecured and unenhanced (except, if
applicable, pursuant to the Collateral Trust Agreement) long-term debt rating
as specified on SCHEDULE 2 hereto. Any change in the Applicable Margin
resulting from a change in TLGI's debt ratings will take effect as of the
date of the debt ratings change.
"APPROVED SALE" means any sale of Property pledged to the
Collateral Agent under the terms of the Collateral Trust Agreement (i) which
is expressly permitted by the terms of SECTION 7.13 and with respect to which
TLGI and the Borrower shall have delivered to the Agent prior to consummation
of such sale a certificate from an Authorized Officer in the form of EXHIBIT
K hereto certifying that both immediately before and after giving effect to
such sale, no Default or Unmatured Default shall have occurred and be
continuing, or (ii) which is otherwise approved by the Required Lenders.
"ARTICLE" means a numbered article of this Agreement, unless
another document is specifically referenced.
"ASSESSMENT RATE" means, for any CD Interest Period, the assessment
rate per annum (rounded upwards to the next higher multiple of 1/100 of 1% if
the rate is not such a multiple) payable to the Federal Deposit Insurance
Corporation (or any successor) by a member of the Bank Insurance Fund which
is classified as adequately capitalized and within supervisory subgroup "A"
(or a comparable successor assessment risk classification) within the meaning
of 12 C.F.R. SECTION 327.4(a) (or any successor provision) for the insurance
of time deposits at the offices of such institution in the United States, as
estimated by the Agent on the first day of such Interest Period.
"AUTHORIZED OFFICER" means (a) with respect to TLGI, any of the
President, Executive Vice President, Senior Vice President and CFO or Vice
President, Finance of TLGI, or any Person designated by any two of the
foregoing, acting singly and (b) with respect to the Borrower, any of the
President, Executive Vice President, Senior Vice President and CFO or Vice
President, Finance of the Borrower, or any Person designated by any two of
the foregoing, acting singly.
"BANK OF MONTREAL" means Bank of Montreal in its individual
capacity, and its successors.
"BASE RATE" means, at any time, the floating rate per annum then
most recently announced by Bank of Montreal in Chicago, Illinois as the
reference rate of interest it will use to determine rates of interest for
loans in Dollars in the United States and referred to by it as its
4
"U.S. base rate". The Base Rate is not necessarily intended to be the lowest
rate of interest determined by the Bank of Montreal in connection with
extensions of credit.
"BORROWER" means Xxxxxx Group International, Inc., a Delaware
corporation, and its successors and assigns to the extent permitted under the
terms of this Agreement.
"BUSINESS DAY" means (a) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday
or other day on which banks are authorized or required to be closed) on which
banks generally are open in Chicago, New York and London for the conduct of
substantially all of their commercial lending activities and (b) for all
other purposes, a day (other than a Saturday or Sunday or other day on which
banks are authorized or required to be closed) on which banks generally are
open in Chicago and New York for the conduct of substantially all of their
commercial lending activities.
"CANADIAN DOLLARS" and "C$" means the lawful money of Canada.
"CANADIAN GAAP" means, at any time, generally accepted accounting
principles in Canada at such time.
"CANADIAN PLAN" means a pension plan provided by TLGI or any other
Subsidiary incorporated under the laws of Canada or any Province of Canada.
"CAPITALIZED LEASE" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CD INTEREST PERIOD" means, with respect to a Fixed CD Rate
Advance, a period of 30, 60, 90 or 180 days commencing on a Business Day
selected by the Borrower pursuant to this Agreement. If such CD Interest
Period would end on a day which is not a Business Day, such CD Interest
Period shall end on the next succeeding Business Day.
"CHANGE OF CONTROL" means an event which shall be deemed to have
occurred if (a) the Borrower shall at any time cease to be a Wholly-Owned
Subsidiary of TLGI, or (b) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended)
shall either (x) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of TLGI having ordinary voting power in the
election of directors of TLGI or (y) obtain the power (whether or not
exercised) to elect a majority of TLGI's directors, or (c) during any period
of 12 consecutive calendar months, individuals (i) who were directors of TLGI
on the first day of such period, or (ii) whose election or nomination for
election
5
to the board of directors of TLGI was recommended or approved by at least a
majority of the directors then still in office who were directors of TLGI on
the first day of such period, or whose election or nomination for election
was so approved, shall cease to constitute a majority of the board of
directors of TLGI.
"CHIEF FINANCIAL OFFICER" means, at any time, the Person who
reports to the board of directors of TLGI on the financial affairs of TLGI
and the Subsidiaries.
"CLASS B INVESTED AMOUNT" has the meaning specified in the Pooling
and Servicing Agreement dated as of November 15, 1994, among The First
National Bank of Atlanta, d/b/a Wachovia Bank Card Services, as seller,
Wachovia Bank of Georgia, N.A., as servicer and Banc One Columbus, N.A., as
trustee.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"COLLATERAL AGENT" means Bankers Trust Company and its successors
in the capacity of collateral agent under the terms of the Collateral Trust
Agreement.
"COLLATERAL RELEASE DATE" has the meaning specified in SECTION 7.26.
"COLLATERAL TRUST AGREEMENT" means that certain Collateral Trust
Agreement, a copy of which is attached as EXHIBIT J hereto, dated as of May
15, 1996 and executed by TLGI, the Borrower, all Pledgor Subsidiaries, and
the Collateral Agent, as such Collateral Trust Agreement may be amended or
modified and is in effect from time to time.
"COMMITMENT" means, relative to any Lender, the obligation of such
Lender to make Facility A Revolving Loans and Facility B Revolving Loans, to
purchase participations in Swing Line Loans and to purchase participations in
Letters of Credit not exceeding the amount set forth opposite such Lender's
name on Schedule 5 hereto or as set forth in any Notice of Assignment
relating to any assignment that has become effective pursuant to Section
13.3.2, as such amount may be modified from time to time pursuant to the
terms hereof.
"CONDEMNATION" has the meaning specified in SECTION 8.8.
"CONSOLIDATED CAPITALIZATION" means at any time of determination,
the sum of (a) the Consolidated Indebtedness of TLGI at such time, and (b)
the Consolidated Net Worth of TLGI at such time.
"CONSOLIDATED DISTRIBUTABLE AMOUNT" means, at any time of
determination, the sum of,
(a) $10,000,000, plus
6
(b) 50% of Consolidated Net Income (or if such Consolidated Net
Income is a deficit figure, then minus 100% of such deficit) determined
on a cumulative basis for the period commencing on January 1, 1996, and
ending on the date of determination, plus
(c) 33 1/3% of the aggregate amount of the net cash proceeds
received by TLGI and the Borrower and their respective Subsidiaries from
the issuance or sale on or after January 1, 1996 (other than sales or
issuances to TLGI or the Borrower or any of their respective
Subsidiaries, and other than the Equity Placement and the issuance, at
any time, of preferred stock by TLGI in exchange for the First
Preferred Series C Receipts) of the capital stock of TLGI or
Indebtedness of TLGI, the Borrower or any of their respective
Subsidiaries which has been converted into capital stock of TLGI.
"CONSOLIDATED FIXED CHARGES" means, for any period, without
duplication, the sum of the amounts for such period of (i) Consolidated
Interest Charges and (ii) the product of (a) the aggregate amount of
dividends and other distributions paid or accrued during such period in
respect of (1) preferred stock of TLGI, the Borrower or any other Subsidiary
(but exclusive of preferred stock issued to TLGI or an Affiliate of TLGI) and
(2) capital stock of TLGI which is or may be redeemable or convertible into
debt prior to the Facility A Termination Date and (b) for each such dividend
or distribution, a multiplier, the numerator of which is one and the
denominator of which is one minus the then current combined federal,
provincial, state and local statutory tax rate of TLGI and its Subsidiaries
determined on a consolidated basis, such multiplier to be expressed as a
decimal, PROVIDED, HOWEVER, that the multiplier in CLAUSE (ii)(b) shall be
deemed to be one if such dividend or other distribution described in the
preceding clause (ii)(a) is fully tax deductible.
"CONSOLIDATED FIXED CHARGES COVERAGE RATIO" means, with respect to
a Transaction Date (hereinafter defined), the ratio of (x) EBITDA for the
full fiscal quarter immediately preceding the date of the transaction (the
"TRANSACTION DATE") giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio (such full fiscal quarter period being referred
to herein as the "PRIOR QUARTER") to (y) the amount of Consolidated Fixed
Charges for the Prior Quarter. In addition to and without limitation of the
foregoing, for purposes of this definition, "EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a PRO FORMA basis for the
period of such calculation to, without duplication, the incurrence of any
Indebtedness of TLGI or any of its Subsidiaries (and the application of the
net proceeds thereof) during the period commencing on the first day of the
Prior Quarter to and including the Transaction Date (the "REFERENCE PERIOD"),
including, without limitation, the incurrence of the Indebtedness giving rise
to the need to make such calculation (and the application of the net proceeds
thereof), as if such incurrence (and application) occurred on the first day
of the Reference Period. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator)
of "Consolidated Fixed Charges Coverage Ratio", (i) interest on outstanding
Indebtedness determined on a fluctuating basis as at the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate PER ANNUM equal to the rate of interest on such
Indebtedness in effect on
7
the Transaction Date; and (ii) interest on any Indebtedness which is actually
incurred on the Transaction Date and which may optionally be determined at an
interest rate based upon a factor of a prime, base, reference or similar
rate, a eurocurrency interbank offered rate, or other rates, shall be deemed
to have been in effect during the Reference Period at the interest rate in
effect on the Transaction Date. If TLGI or any of its Subsidiaries directly
or indirectly guarantees Indebtedness of a third Person, this definition
shall give effect to the incurrence of such guaranteed Indebtedness as if
TLGI or such Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness.
"CONSOLIDATED INDEBTEDNESS" means, at any time of determination,
without duplication, all Indebtedness of TLGI, the Borrower and the
Subsidiaries of TLGI and the Borrower at such time determined on a
consolidated basis in accordance with GAAP (to the extent GAAP is applicable
thereto).
"CONSOLIDATED INTEREST CHARGES" for any period shall mean on a
consolidated basis all interest (including the interest component of
Capitalized Lease Obligations and Synthetic Lease Obligations), and all
amortization of debt discount and expense on all Indebtedness of TLGI and the
Borrower and their Subsidiaries for such period.
"CONSOLIDATED NET INCOME" for any period shall mean the gross
revenues of TLGI and the Borrower and the other Subsidiaries for such period
less all expenses and other proper charges (including taxes on income),
determined on a consolidated basis after eliminating earnings or losses
attributable to outstanding Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such excluded
gains and any tax deductions or credits on account of any such excluded
losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary accrued prior to the
date it became a Subsidiary;
(d) net earnings and losses of any corporation (other than a
Subsidiary) substantially all the assets of which have been acquired in
any manner by TLGI or any Subsidiary, realized by such corporation prior
to the date of such acquisition;
(e) net earnings and losses of any corporation (other than a
Subsidiary) with which TLGI or a Subsidiary shall have consolidated or
which shall have merged into or amalgamated with TLGI or a Subsidiary
prior to the date of such consolidation, merger or amalgamation;
8
(f) net earnings of any business entity (other than a Subsidiary)
in which TLGI or any Subsidiary has an ownership interest unless such
net earnings shall have actually been received by TLGI or such
Subsidiary in the form of cash distributions;
(g) any portion of the net earnings of any Subsidiary which for
any reason is unavailable for payment of dividends to TLGI or any other
Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of the acquisition thereof over the
amount invested in such Subsidiary;
(j) any gain or loss arising from the acquisition of any
securities of TLGI or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such period; and
(l) any other unusual or extraordinary gain.
PROVIDED for the purpose of calculating Consolidated Net Income for the
fiscal quarter ended September 30, 1997, but only to the extent that
Consolidated Net Income is calculated as part of the calculation of EBITDA
for such fiscal quarter to determine compliance with SECTIONS 7.22 and 7.23,
there shall be included in Consolidated Net Income for such fiscal quarter an
aggregate amount not to exceed $26,000,000 representing TLGI's pre-tax gain
from the sale of TLGI's Investment in Arbor Funeral Inc.
"CONSOLIDATED NET WORTH" means, as of the date of any determination
thereof, the sum of the amount of the shareholders' equity of TLGI and the
Borrower and the other Subsidiaries as would be shown on the consolidated
balance sheet of TLGI and the Borrower and the other Subsidiaries determined
on a consolidated basis in accordance with GAAP, which in any event shall
include (x) the MIPS and (y) the amount of all preferred stock of TLGI and
the Borrower and all Subsidiaries of TLGI and the Borrower to the extent such
preferred stock is not redeemable at the option of the holder for cash or
indebtedness for any reason, and which shall exclude the amount of all
preferred stock of TLGI and the Borrower and all Subsidiaries of TLGI and the
Borrower to the extent such preferred stock is redeemable at the option of
the holder for cash or indebtedness for any reason.
"CONSOLIDATED REVENUES" for any period shall mean the gross
revenues of TLGI and the Borrower and the other Subsidiaries for such period,
determined on a consolidated basis
9
after eliminating revenues attributable to outstanding Minority Interests
determined in accordance with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of the date of any
determination thereof, as to any Person, the Consolidated Net Worth of such
Person, less the sum of the value, as set forth or reflected on the most
recent consolidated balance sheet of such Person and its consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(a) any surplus resulting from any write-up of assets subsequent
to December 31, 1995;
(b) all assets which would be treated as intangible assets for
balance sheet presentation purposes under GAAP, including without
limitation goodwill (whether representing the excess of cost over book
value of assets acquired, or otherwise), trademarks, trade names,
service marks, copyrights, patents and technologies, names and
reputations, covenants not to compete, organization or developmental
expenses, and unamortized debt discount and expense;
(c) to the extent not included in CLAUSE (b) of this definition,
any amount at which shares of capital stock of such Person and its
consolidated Subsidiaries appear as an asset on the balance sheet of
such Person and its consolidated Subsidiaries;
(d) Revolving Loans or Advances or Swing Line Loans or proceeds of
Letters of Credit provided to stockholders, directors, officers or
employees of such Person or its Subsidiaries; and
(e) to the extent not included in CLAUSE (b) of this definition,
deferred expenses.
"CONTINGENT OBLIGATION" of a Person means any agreement,
undertaking or arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment
of, or otherwise becomes or is contingently liable upon, the obligation or
liability of any other Person, or agrees to maintain the net worth or working
capital or other financial condition of any other Person, or otherwise
assures any creditor of such other Person against loss, including, without
limitation, any comfort letter, operating agreement, take-or-pay contract or
reimbursement obligation arising pursuant to a letter of credit (including
any Letter of Credit); PROVIDED, HOWEVER, that notwithstanding the foregoing,
the WLSP Contingent Obligation shall not constitute a Contingent Obligation
of TLGI, the Borrower or any other Subsidiary for any purpose under this
Agreement so long as the Class B Invested Amount at least equals $12,000,000.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together
10
with the Borrower or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"CONVERSION/CONTINUATION NOTICE" has the meaning specified in
SECTION 2.7.
"DEFAULT" means an event described in ARTICLE VIII.
"DISTRIBUTION" in respect of any corporation shall mean (a)
dividends or other distributions on capital stock of the corporation (except
dividends or other distributions payable solely in shares of capital stock),
and (b) the redemption, retirement or acquisition of such stock or of
warrants, rights or other options to purchase such stock (except when solely
in exchange for such stock).
"DISTRIBUTION DATE" has the meaning specified in SECTION 7.10(d).
"DOCUMENTATION AGENT" means Xxxxxxx Xxxxx Credit Partners L.P.
"DOLLARS" and "$" mean the lawful money of the United States.
"EAGLE" means Eagle Financial Associates, LLC, a Delaware limited
liability company and a Wholly-Owned Subsidiary of TLGI.
"EBITDA" for any period shall mean the sum of (a) Consolidated Net
Income during such period, plus (to the extent deducted in determining
Consolidated Net Income), (b) all provisions for any income or similar taxes
paid or accrued by TLGI and the Borrower and the other Subsidiaries during
such period, (c) depreciation, depletion and amortization for such period,
(d) other non-cash charges, and (e) Consolidated Interest Charges of TLGI and
the Borrower and the other Subsidiaries during such period determined in
accordance with GAAP.
"EFFECTIVE DATE" means the first date on which the Agent shall have
received counterparts of this Agreement duly executed by all parties hereto.
"EQUITY PLACEMENT" means the offering by TLGI during the first
calendar quarter of 1996 of common shares in TLGI pursuant to which not less
than C$150,000,000 of net proceeds was realized by TLGI.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any rule or regulation issued thereunder.
"EURODOLLAR ADVANCE" means an Advance that bears interest at a
Eurodollar Rate.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Advance
for the relevant Eurodollar Interest Period, (a) the per annum rate for
deposits in Dollars for a period
11
corresponding to the duration of the relevant Eurodollar Interest Period,
which appears on Telerate Page 3750 at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Eurodollar Interest Period
and (b) if such rate does not appear on Telerate Page 3750 on such day, the
per annum rate at which deposits in Dollars are offered by Bank of Montreal
to first-class banks in the London interbank market at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Eurodollar Interest Period, in the approximate amount of Bank of Montreal's
relevant Eurodollar Loan and having a maturity approximately equal to such
Eurodollar Interest Period. The reference to Telerate Page 3750 in this
definition shall be construed to be a reference to the relevant page or any
other page that may replace such page on the Telerate service or any other
service that may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for deposits in Dollars.
"EURODOLLAR INTEREST PERIOD" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such Eurodollar
Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one, two, three or six months thereafter, unless
there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, in which case such Eurodollar Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If a Eurodollar Interest Period would otherwise end on a day which is
not a Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day, unless said next succeeding Business Day falls in a
new calendar month, in which case such Eurodollar Interest Period shall end
on the immediately preceding Business Day.
"EURODOLLAR LOAN" means a Revolving Loan which bears interest at a
Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i)
the Eurodollar Base Rate applicable to such Eurodollar Interest Period,
divided by (ii) one minus the Reserve Requirement (expressed as a decimal)
applicable to such Eurodollar Interest Period, plus (b) the Applicable Margin
in effect from time to time during such Eurodollar Interest Period, plus (c)
the Excess Leverage Margin in effect from time to time during such Eurodollar
Interest Period (which Excess Leverage Margin will be assessed by the Agent
retroactively to such Eurodollar Interest Period in accordance with, and with
effect from and after the date specified in, the definitions of "Excess
Leverage Margin" and "Excess Leverage Ratio"). The Eurodollar Rate shall be
rounded to the next higher multiple of 1/16 of 1% if the rate is not such a
multiple.
"EXCESS LEVERAGE MARGIN" means a per annum rate determined from
time to time by reference to SCHEDULE 2 hereto whenever the Excess Leverage
Ratio exceeds 5.00 to 1.00 as determined for the four consecutive fiscal
quarter period then most recently ended, such Excess
12
Leverage Margin to be applicable with effect from the first day of the fourth
fiscal quarter in such four consecutive fiscal quarter period.
"EXCESS LEVERAGE RATIO" means, for any day, the ratio of
Consolidated Indebtedness to Adjusted EBITDA (but calculated without the
$35,800,000 adjustment for the fiscal quarter ended September 30, 1997 which
is contemplated by the last sentence of SECTION 7.23) determined for the four
consecutive fiscal quarter period then most recently ended for which TLGI or
the Borrower has delivered financial statements pursuant to which such ratio
can be determined.
"EXTENSION NOTIFICATION DATE" has the meaning specified in SECTION
2.18.
"EXTENSION REQUEST" has the meaning specified in SECTION 2.18.
"EXTENSION REQUEST DATE" has the meaning specified in SECTION 2.18.
"FACILITY A ADVANCE" means a borrowing consisting of simultaneous
Facility A Revolving Loans of the same Type made to the Borrower by each of
the Lenders pursuant to SECTION 2.1.1, for, in the case of Fixed Rate
Advances, the same Interest Period.
"FACILITY A AGGREGATE COMMITMENT" means the aggregate of the
Facility A Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"FACILITY A APPLICABLE COMMITMENT FEE RATE" means a per annum rate
determined from time to time by reference to TLGI's senior unsecured and
unenhanced (except, if applicable, pursuant to the Collateral Trust
Agreement) long-term debt rating as specified on SCHEDULE 2 hereto; PROVIDED,
HOWEVER, that the Facility A Applicable Commitment Fee Rate will be adjusted
as specified on SCHEDULE 2 hereto whenever Excess Leverage Margin is
applicable. Any change in the Facility A Applicable Commitment Fee Rate
resulting from a change in TLGI's debt ratings will take effect as of the
date of the debt ratings change and any change in the Facility A Applicable
Commitment Fee Rate resulting from the application of Excess Leverage Margin
thereto will take effect on the date specified in the definition of "Excess
Leverage Margin".
"FACILITY A COMMITMENT" means, for each Lender, the obligation of
such Lender to make Facility A Revolving Loans, to purchase participations in
Swing Line Loans and to purchase participations in Letters of Credit not
exceeding the amount set forth opposite its name on SCHEDULE 5 hereto or as
set forth in any Notice of Assignment relating to any assignment that has
become effective pursuant to SECTION 13.3.2, as such amount may be modified
from time to time pursuant to the terms hereof.
"FACILITY A REVOLVING LOANS" has the meaning specified in SECTION
2.1.1.
13
"FACILITY A TERMINATION DATE" means September 29, 2002, or such
later date in effect from time to time as the Facility A Termination Date
determined in accordance with the procedures described in SECTION 2.18.
"FACILITY B ADVANCE" means a borrowing consisting of simultaneous
Facility B Revolving Loans of the same Type made to the Borrower by each of
the Lenders pursuant to SECTION 2.1.2, for, in the case of Fixed Rate
Advances, the same Interest Period.
"FACILITY B AGGREGATE COMMITMENT" means the aggregate of the
Facility B Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"FACILITY B APPLICABLE COMMITMENT FEE RATE" means a per annum rate
determined from time to time by reference to TLGI's senior unsecured and
unenhanced (except, if applicable, pursuant to the Collateral Trust
Agreement) long-term debt rating as specified on SCHEDULE 2 hereto; PROVIDED,
HOWEVER, that the Facility B Applicable Commitment Fee Rate will be adjusted
as specified on SCHEDULE 2 hereto whenever Excess Leverage Margin is
applicable. Any change in the Facility B Applicable Commitment Fee Rate
resulting from a change in TLGI's debt ratings will take effect as of the
date of the debt ratings change and any change in the Facility B Applicable
Commitment Fee Rate resulting from the application of Excess Leverage Margin
thereto will take effect on the date specified in the definition of "Excess
Leverage Margin".
"FACILITY B COMMITMENT" means, for each Lender, the obligation of
such Lender to make Facility B Revolving Loans not exceeding the amount set
forth opposite its name on SCHEDULE 5 hereto or as set forth in any Notice of
Assignment relating to any assignment that has become effective pursuant to
SECTION 13.3.2, as such amount may be modified from time to time pursuant to
the terms hereof.
"FACILITY B REVOLVING LOANS" has the meaning specified in SECTION
2.1.2.
"FACILITY B TERMINATION DATE" means September 28, 1998.
"FAIR VALUE" means the value of the relevant asset determined in an
arm's-length transaction conducted in good faith between an informed and
willing buyer, under no compulsion to buy, and an informed and willing
seller, under no compulsion to sell.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such day
is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such
14
day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent in its sole discretion.
"FINANCE SUBSIDIARY" means any captive finance Subsidiary of TLGI
that engages in no material activity other than (i) buying accounts
receivable or other financial assets of any Affiliate of TLGI, (ii) making
loans or otherwise extending credit to any such Affiliates, (iii) succeeding
to (or having succeeded to) any or all of the business of LFW or Eagle or
otherwise engaging in finance activities similar to the finance activities
engaged in by LFW or Eagle from time to time, or (iv) making Investments in
other Finance Subsidiaries.
"FINANCIAL UNDERTAKING" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with
respect to accounts or notes receivable sold by such Person or any of its
Subsidiaries, (b) any liability under any sale and leaseback transactions
which do not create a liability on the consolidated balance sheet of such
Person and its Subsidiaries, (c) obligations arising with respect to any
other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated
balance sheet of such Person and its Subsidiaries, or (d) net liabilities
under any agreements, devices or arrangements designed to protect at least
one of the parties thereto from the fluctuations of interest rates, exchange
rates or forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to, interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options.
"FIRST PREFERRED SERIES C RECEIPTS" means the 8,800,000 Convertible
First Preferred Shares Series C Receipts (C$220,000,000) issued by TLGI
pursuant to the terms of that certain Prospectus, dated December 21, 1995,
each such Receipt representing entitlement to 1/10 of a 6.00% Cumulative
Redeemable Convertible First Preferred Share, Series C, of TLGI.
"FIXED CD BASE RATE" means, with respect to a Fixed CD Rate Advance
for the relevant CD Interest Period, the rate determined by the Agent to be
the arithmetic average of the prevailing bid rates quoted to the Agent at or
before 10:00 a.m. (Chicago time) on the first day of such CD Interest Period
by three New York or Chicago certificate of deposit dealers of recognized
standing selected by the Agent in its sole discretion for the purchase at
face value of certificates of deposit of Bank of Montreal in the approximate
amount of Bank of Montreal's relevant Fixed CD Rate Loan and having a
maturity approximately equal to such CD Interest Period.
"FIXED CD RATE" means, with respect to a Fixed CD Rate Advance for
the relevant CD Interest Period, a rate per annum equal to the sum of (a) the
quotient of (i) the Fixed CD Base Rate applicable to such CD Interest Period,
divided by (ii) one minus the Reserve Requirement (expressed as a decimal)
applicable to such CD Interest Period, plus (b) the Assessment Rate
applicable to such CD Interest Period, plus (c) the Applicable Margin in
effect from time to time during such CD Interest Period, plus (d) the Excess
Leverage Margin in effect
15
from time to time during such CD Interest Period (which Excess Leverage
Margin will be assessed by the Agent retroactively to such CD Interest Period
in accordance with, and with effect from and after the date specified in, the
definitions of "Excess Leverage Margin" and "Excess Leverage Ratio"). The
Fixed CD Rate shall be rounded to the next higher multiple of one-hundredths
of 1% if the rate is not such a multiple.
"FIXED CD RATE ADVANCE" means an Advance which bears interest at a
Fixed CD Rate.
"FIXED CD RATE LOAN" means a Revolving Loan which bears interest at
a Fixed CD Rate.
"FIXED RATE" means the Fixed CD Rate or the Eurodollar Rate.
"FIXED RATE ADVANCE" means an Advance which bears interest at a
Fixed Rate.
"FIXED RATE LOAN" means a Revolving Loan which bears interest at a
Fixed Rate.
"FLOATING RATE" means, for any day, a rate per annum equal to the
sum of (a) the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus (b) the Applicable Margin in effect for
such day, plus (c) the Excess Leverage Margin in effect for such day (which
Excess Leverage Margin will be assessed by the Agent retroactively to such
day in accordance with, and with effect from and after the date specified in,
the definitions of "Excess Leverage Margin" and "Excess Leverage Ratio").
"FLOATING RATE ADVANCE" means an Advance which bears interest at
the Floating Rate.
"FLOATING RATE LOAN" means, as applicable, a Revolving Loan or a
Swing Line Loan which bears interest at the Floating Rate.
"GAAP" means the generally accepted accounting principles generally
applied by TLGI as at December 31, 1995, and thereafter, Canadian GAAP until
such time as TLGI and the Borrower shall prepare their respective books of
record and account in accordance with U.S. GAAP, at which time and at all
times thereafter, "GAAP" shall mean U.S. GAAP.
"GOVERNMENTAL ACTS" has the meaning, specified in SECTION 2.21.6(A).
"GOVERNMENTAL AUTHORITY" means any country or nation, any political
subdivision of such country or nation, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government of any country or nation or political subdivision
thereof.
16
"GUARANTOR" means each of TLGI and each Pledgor Subsidiary and
their respective successors and assigns.
"GUARANTY" means each of (a) the Guaranty of TLGI set forth in
ARTICLE V and (b) the Pledgor Subsidiary Guaranty.
"INDEBTEDNESS" of a Person means, without duplication, such
Person's (a) obligations for borrowed money, (b) obligations representing the
deferred purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (c) obligations, whether or not assumed, secured by
Liens on or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (d) obligations which are
evidenced by notes, acceptances, or other instruments (but exclusive of
notes, bills and checks presented in the ordinary course of business by such
Person to banks for collection or deposit), (e) Capitalized Lease
Obligations, (f) Synthetic Lease Obligations, (g) Securitization Obligations,
(h) Financial Undertakings, (i) Contingent Obligations and (j) obligations
under or in connection with letters of credit (including, with respect to
TLGI or the Borrower, any Letter of Credit); but excluding, in any event, (x)
amounts payable by such Person in respect of covenants not to compete, (y)
with reference to TLGI, the Borrower and the other Subsidiaries, all
obligations of TLGI, the Borrower and the other Subsidiaries of the character
referred to in this definition to the extent owing to TLGI, the Borrower or
any other Subsidiary and (z) Securitization Obligations of such Person except
to the extent of the maximum contractual liability of such Person under the
documentation for the related securitization transaction giving rise to such
Securitization Obligations for losses or defaults which are attributable to
the obligors of the Receivables included in such securitization transaction.
"INTEREST PERIOD" means a CD Interest Period or a Eurodollar
Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade), deposit account or contribution of capital by such Person to any
other Person or any investment in, or purchase or other acquisition of, the
stock, partnership interests, notes, debentures or other securities of any
other Person made by such Person.
"L/C COMMITMENT AMOUNT" means $300,000,000.
"L/C DRAFT" means a draft drawn on the L/C Issuer pursuant to any
of the Letters of Credit.
"L/C INTEREST" has the meaning specified in SECTION 2.21.2.
"L/C ISSUER" means Bank of Montreal.
17
"L/C OBLIGATIONS" means an amount equal to the sum (without
duplication) of (i) the aggregate of the amount then available for drawing
under each of the Letters of Credit, (ii) the face amounts of all outstanding
L/C Drafts corresponding to the Letters of Credit, which L/C Drafts have been
accepted by the L/C Issuer but not yet paid, (iii) the aggregate outstanding
amount of Reimbursement Obligations at such time and (iv) the aggregate face
amount of all Letters of Credit requested by the Borrower but not yet issued
(unless such request has been denied).
"LENDERS" means the lending institutions listed on the signature
pages of this Agreement (including the Swing Line Lender), and any other
lending institutions which may become party hereto pursuant to the terms
hereof, and their respective successors and assigns permitted in accordance
with the terms hereof.
"LENDING INSTALLATION" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"LETTER OF CREDIT" means each letter of credit identified on
SCHEDULE 4 hereto and any standby letter of credit issued pursuant to SECTION
2.21 hereof.
"LFC" means Xxxxxx Financial Corporation, a company incorporated
under the laws of Barbados.
"LFW" means Xxxxxx Finance (Wyoming) Limited Liability Company, a
previously existing Wyoming limited liability company which was a
Wholly-Owned Subsidiary of TLGI.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, security interest, charge, assignment, deposit arrangement,
encumbrance or other security agreement or arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LMIC" means Xxxxxx Management Investment Corporation, a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"LOAN DOCUMENTS" means this Agreement, the Letters of Credit, the
Collateral Trust Agreement, and the promissory notes (if any) issued pursuant
to SECTION 13.1.
"MAJOR ACQUISITION" means any Acquisition of any Person which had
either (x) gross revenues in excess of $5,000,000 for the fiscal year of such
Person most recently ended at the time of closing of such Acquisition or (y)
total assets in excess of $5,000,000 as of the end of the fiscal year of such
Person most recently ended at the time of closing of such Acquisition.
18
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, Property, financial condition, results of operations, or prospects of
TLGI, the Borrower and the other Subsidiaries taken as a whole, (b) the ability
of TLGI or the Borrower to perform its respective obligations under the Loan
Documents, or (c) the validity or enforceability of any of the Loan Documents or
the rights or remedies of the Agent, the L/C Issuer, the Collateral Agent or the
Lenders thereunder, and "MATERIAL ADVERSE EFFECT" shall include, without
limitation, the occurrence at any time of a Material Judgment Event.
"MATERIAL JUDGMENT EVENT" means a judgment, award or other order shall
be entered (whether or not such judgment, award or other order is bonded,
stayed, contested or appealable) against any of TLGI, the Borrower or any of
their respective Subsidiaries at any time when the amount of such judgment,
award or order, when added to the aggregate amount of all other judgments,
awards and orders which at such time shall have been entered against any of
TLGI, the Borrower or any of their respective Subsidiaries without having been
finally satisfied in full or vacated, shall be in excess of $100,000,000.
"MEIP CREDIT AGREEMENT" means that certain $121,300,000 1994 MEIP
Credit Agreement, dated as of June 14, 1994, as amended and restated as of May
15, 1996, among TLGI, the Borrower, LMIC, as agent for TLGI and the Borrower,
the lenders party thereto, and Wachovia Bank of Georgia, N.A., as agent for the
lenders, as it has been and may hereafter be amended, restated, supplemented or
otherwise modified from time to time.
"MINORITY INTERESTS" means any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law or shares
of stock having no right to vote or receive dividends) that are not owned by
TLGI and/or one or more of its Subsidiaries. Minority Interests shall be valued
by valuing Minority Interests constituting preferred stock at the voluntary or
involuntary liquidating value of such preferred stock, whichever is greater, and
by valuing Minority Interests constituting common stock at the book value of
capital and surplus applicable thereto adjusted, if necessary, to reflect any
changes from the book value of such common stock required by the foregoing
method of valuing Minority Interests in preferred stock.
"MIPS" means the 9.45% Cumulative Monthly Income Preferred Securities,
Series A, issued by Xxxxxx Group Capital, L.P. and the related Series A Junior
Subordinated Debentures issued by the Borrower and purchased by Xxxxxx Group
Capital, L.P. with the proceeds of the sale of the 9.45% Cumulative Monthly
Income Preferred Securities, Series A.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
19
"NEWEOL" means Neweol Finance B.V., a company incorporated under the
laws of the Netherlands.
"NON-CONSENTING LENDER" has the meaning specified in SECTION 2.18.
"NOTE AGREEMENTS" means the agreements dated for reference October 1,
1991, September 1, 1993 and February 1, 1994, the indenture dated March 20,
1996, and any and all other warrant agreements and/or note agreements from time
to time entered into by TLGI, the Borrower, or either of them, and the relevant
holders of notes issued and sold thereunder, in each case as amended,
supplemented or otherwise modified from time to time.
"NOTICE OF ASSIGNMENT" has the meaning specified in SECTION 13.3.2.
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid
interest on the Facility A Revolving Loans, the Facility B Revolving Loans and
the Swing Line Loans, all L/C Obligations, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower to
the Lenders or to any Lender, the Agent or any indemnified party hereunder
arising under the Loan Documents.
"ORIGINAL AGREEMENT" has the meaning specified in the Recitals to this
Agreement.
"PARTICIPANT" has the meaning specified in SECTION 13.2.1.
"PAYMENT OFFICE" means the principal office of the Agent in Chicago,
Illinois, located on the date hereof at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, or such other office of the Agent as the Agent may from time to
time designate by written notice to the Borrower and the Lenders. All payments
to be made to the Agent at the Payment Office shall be made by wire transfer to
Xxxxxx Bank, Chicago, Illinois, ABA No. 000000000 for credit to Account No.
0000000 in the name of Bank of Montreal, with references to Xxxxxx Group
International, Inc. and the type of payment being made, or to such other account
as the Agent may from time to time designate by written notice to the Borrower
and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" means any Acquisition (but only to the extent
such Acquisition does not involve lines of business which are outside of the
TLGI Lines of Business, unless the Acquisition of such lines which are outside
of the TLGI Lines of Business would, at the time of the Acquisition and after
giving effect thereto, be permitted as Investments under SECTION 7.16(o)) made
by TLGI, the Borrower or any other Subsidiary from a willing seller or other
willing transferor where such Acquisition is not contested by such seller or
transferor at any time during the pendency of such Acquisition; PROVIDED, that
(i) either (x) TLGI or the Borrower
20
has in place before it executes any binding agreement or other binding writing
by which it agrees to proceed with the Acquisition (whether or not subject to
conditions) sufficient funds which are committed and available (which may
include the availability of Revolving Loans under this Agreement (but only to
the extent no Default or Unmatured Default would occur after then giving
effect to the borrowing necessary to fund such Acquisition), and provided that
for any third-party commitment such commitment is otherwise permitted under
this Agreement), to fund the full amount of the cash consideration for such
Acquisition, or (y) such agreement or other writing contains a condition to
closing of TLGI or the Borrower based upon the ability of TLGI or the Borrower
to raise funds for the Acquisition, and (ii) all contractual arrangements
evidencing such Acquisition include provisions subjecting the parties to
arbitration except to the extent the Board of Directors of TLGI or the Borrower
(or an authorized subcommittee thereof, a majority of whose members consist of
directors who are not employees of TLGI, the Borrower or any other Subsidiary)
shall either make an express determination to the contrary or shall approve the
Acquisition pursuant to valid action which expressly contemplates the absence
of such an arbitration provision in the contractual arrangements evidencing
such Acquisition.
"PERMITTED RECEIVABLES SECURITIZATION" means any transaction (or
series of transactions) effected by TLGI or the Borrower or any Subsidiary of
TLGI pursuant to which TLGI, the Borrower or such Subsidiary either (x) sells or
otherwise transfers (including sales or transfers using one or more SPV's), or
(y) grants a security interest in, assets of one or more of TLGI, the Borrower
and the other Subsidiaries consisting of Receivables and Receivables Related
Assets; PROVIDED, HOWEVER, that the aggregate Securitization Obligations
(without duplication) of TLGI, the Borrower, the Subsidiaries and any such SPV's
in connection with all Permitted Receivables Securitizations shall not exceed
$125,000,000 at any time outstanding.
"PERSON" means any natural person, corporation, limited liability
company, firm, joint venture, partnership, association, enterprise, trust or
other entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"PLEDGOR SUBSIDIARIES" means, at any time, but subject to SECTION
7.26, each Subsidiary of TLGI or the Borrower which at such time is party to the
Collateral Trust Agreement as a pledgor of capital stock or other equity
interests or, in the case of the Borrower, certain assets of the Borrower, held
by it on the terms specified in the Collateral Trust Agreement.
"PLEDGOR SUBSIDIARY GUARANTY" means the guaranty of each Pledgor
Subsidiary set forth in the Collateral Trust Agreement.
"PREPAYMENT NOTICE" has the meaning specified in SECTION 2.5.
21
"PROCESS AGENT" has the meaning specified in SECTION 10.13.
"PROPERTY" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"PURCHASERS" has the meaning specified in SECTION 13.3.1(a).
"RECEIVABLES" means all rights of TLGI, the Borrower or any Subsidiary
to payments from Persons other than TLGI and its Subsidiaries (whether
constituting accounts, chattel paper, instruments, general intangibles or
otherwise, and including the right to payment of any interest or finance
charges).
"RECEIVABLES PROGRAM ASSETS" means (a) all Receivables which are
described as being transferred by TLGI or its Subsidiaries pursuant to a
Permitted Receivables Securitization, (b) all Receivables Related Assets, and
(c) all collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
"RECEIVABLES RELATED ASSETS" means (i) any rights arising under the
documentation governing or relating to Receivables (including rights in respect
of liens securing such Receivables and other credit support in respect of such
Receivables), (ii) any collections, recoveries and proceeds of such Receivables
and any lockboxes or accounts in which such proceeds are deposited, (iii) spread
accounts and other similar accounts (and any amounts on deposit therein)
established in connection with a Permitted Receivables Securitization, (iv) any
warranty, indemnity, dilution and other intercompany claim arising out of
documents relating to a Permitted Receivables Securitization and (v) other
assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable.
"REGIONAL PARTNER" means any Subsidiary, all of the outstanding shares
entitled to receive dividends of which, shall at the time be owned or
controlled, directly or indirectly, by TLGI or a Subsidiary of TLGI.
"REGISTER" has the meaning specified in SECTION 13.3.2.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"REGULATION G", "REGULATION T", "REGULATION U" and "REGULATION X"
mean, respectively, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve
22
System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
the subject matter thereof.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.21.3.
"RELEVANT TAX" has the meaning specified in SECTION 5.7.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of Property having an original term (including any
required renewals or any renewals at the option of the lessor or lessee) of one
year or more.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; PROVIDED, HOWEVER, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at least
66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-2/3% of the aggregate
unpaid principal amount of the outstanding Advances, Swing Line Loans and the
L/C Obligations. For purposes of this definition the aggregate unpaid principal
amount of the outstanding Swing Line Loans held by Lenders at any time shall be
determined such that all Swing Line Loans outstanding at such time shall be
allocated among the Lenders ratably in accordance with their respective
Commitments, notwithstanding that the Swing Line Lender at such time may have
fully funded some or all of the outstanding Swing Line Loans.
"RESERVE REQUIREMENT" means, with respect to a CD Interest Period or a
Eurodollar Interest Period, the maximum aggregate reserve requirement (including
all basic, supplemental, marginal and other reserves) which is imposed under
Regulation D on new non-personal time deposits of $100,000 or more with a
maturity equal to that of such CD Interest Period (in the case of Fixed CD Rate
Advances) or on Eurodollar liabilities (in the case of Eurodollar Advances).
"RESTATEMENT EFFECTIVE DATE" has the meaning specified in
SECTION 16.1.
"REVOLVING LOAN" means a Facility A Revolving Loan or a Facility B
Revolving Loan, as the context may require or allow, and "REVOLVING LOANS" means
Facility A Revolving Loans and Facility B Revolving Loans, taken together.
23
"REVOLVING LOAN BORROWING DATE" means a date on which an Advance is
made hereunder.
"REVOLVING LOAN BORROWING NOTICE" has the meaning specified in SECTION
2.6.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SECURED PARTIES" means the Lenders, the Persons specified on SCHEDULE
3 hereto as Secured Parties and, to the extent designated by the Borrower from
time to time in a writing delivered to the Agent and the Collateral Agent, all
other Persons who from time to time hold Senior Obligations which are secured
pursuant to the Collateral Trust Agreement; PROVIDED, HOWEVER, that no Secured
Parties shall be placed within the class to which the Lenders belong from time
to time under the terms of the Collateral Trust Agreement unless the Required
Lenders shall have given their affirmative approval thereof.
"SECURITIZATION OBLIGATIONS" of a Person means the outstanding
purchaser's investment or outstanding capital or other principal equivalent that
purchasers or other investors are entitled to receive in respect of any
securitization or other sale or asset-backed financing of Receivables of such
Person or its Affiliates effected by such Person.
"SENIOR OBLIGATIONS" means (i) the Obligations, (ii) the Indebtedness
described on SCHEDULE 3 hereto, (iii) the obligations of TLGI or the Borrower
under any and all interest rate or currency exchange swaps, caps, collars,
floors or other similar transactions, or options on any of the foregoing,
entered into by TLGI or the Borrower and having a term of at least two years
from the date of entry into, and (iv) the unpaid principal of and accrued and
unpaid interest on (together with all accrued and unpaid fees and expenses
related to) Indebtedness for borrowed money incurred by TLGI, the Borrower or
any Subsidiary with a maturity of at least two years from its date of issuance
(or, in the case of revolving Indebtedness, with a term of at least two years
from the date of execution of the documentation governing such revolving
Indebtedness), which in the case of Indebtedness described in this CLAUSE (iv)
is not secured except pursuant to the Collateral Trust Agreement and by its
terms is not subordinated (except as expressly provided in the Collateral Trust
Agreement) to the Obligations or any other senior indebtedness of TLGI, the
Borrower or such Subsidiary, respectively.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SPECIFIED REMITTANCE TIME" means (a) if the relevant Payment Office
is located in Chicago, 12:30 p.m. (Chicago time) and (b) if the relevant Payment
Office is located elsewhere, such time as the Agent shall specify after
consultation with the Borrower and the Lenders.
24
"SPV" means a corporation, trust, partnership or other special purpose
Person established by TLGI and/or its Subsidiaries solely for the purpose of
implementing a Permitted Receivables Securitization.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"STATED AMOUNT" means, when used with reference to a Letter of Credit,
(x) at the time of issuance, the face amount thereof, and (y) at any time
thereafter, the aggregate amount available to be drawn under such Letter of
Credit at such time.
"SUBSIDIARY" of a Person means (a) any corporation more than 50% of
the outstanding securities having ordinary voting power of which, or more than
50% of the economic benefits associated with all outstanding securities of
which, shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (b) any partnership, association, limited liability
company, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which, or more than 50% of
the economic benefits associated with all outstanding ownership interests of
which, shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of
TLGI.
"SUBSTANTIAL PORTION" means, with respect to the Property of TLGI and
the Borrower and the other Subsidiaries, Property of TLGI, the Borrower and the
other Subsidiaries that has a Fair Value representing more than 5% of
Consolidated Tangible Net Worth of TLGI, the Borrower and the other Subsidiaries
determined as of the end of the fiscal quarter of TLGI most recently ended prior
to the date on which such determination is made.
"SWING LINE ASSIGNMENT" has the meaning specified in SECTION 13.3.1(b)
"SWING LINE COMMITMENT" means the commitment of the Swing Line Lender
to make Swing Line Loans hereunder.
"SWING LINE INTEREST" has the meaning specified in SECTION 2.25(a).
"SWING LINE LENDER" means Bank of Montreal.
"SWING LINE LOAN" has the meaning specified in SECTION 2.22.
"SWING LINE LOAN BORROWING DATE" means a date on which a Swing Line
Loan is made hereunder.
"SWING LINE LOAN BORROWING NOTICE" has the meaning specified in
SECTION 2.23.
25
"SYNTHETIC LEASE" of a Person means any lease of Property by such
Person as lessee which under GAAP would or may be treated as a true operating
lease but which under tax law or commercial law is treated as secured
Indebtedness of such Person and not as a true lease.
"SYNTHETIC LEASE OBLIGATIONS" of a Person means the aggregate funded
amount under all Synthetic Leases to which such Person is party as lessee.
"TAXING JURISDICTION" has the meaning specified in SECTION 5.7.
"TLGI" means The Xxxxxx Group Inc., a corporation incorporated under
the laws of the Province of British Columbia, Canada.
"TLGI LINES OF BUSINESS" means the lines of business conducted as of
the date of this Agreement by TLGI or the Borrower or any of their Subsidiaries
and shall include the making by TLGI, the Borrower or any of their Subsidiaries,
from time to time, of equity and debt investments in, or to, Persons which are
engaged primarily in any one or more of the funeral, funeral home, cemetery and
funeral-related insurance businesses.
"TRANSFEREE" has the meaning specified in SECTION 13.4.
"TYPE" means, (a) with respect to any Revolving Loan, its nature as a
Floating Rate Loan, Eurodollar Loan or Fixed CD Rate Loan, and (b) with respect
to any Advance, its nature as a Floating Rate Advance, Eurodollar Advance or
Fixed CD Rate Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the Fair Value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plans.
"UNITED STATES" and "U.S." mean the United States of America.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"U.S. GAAP" means, at any time, generally accepted accounting
principles in the United States at such time.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (b) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
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"WLSP CONTINGENT OBLIGATION" means the joint and several liability
of Neweol to repay the $160,273,742 Zero Coupon Note dated November 1, 1994,
executed by WLSP Investment Partners I, a partnership formed under the laws
of Switzerland, and payable to Wachovia Bank of Georgia, N.A.
ARTICLE II
THE CREDITS
2.1. THE REVOLVING LOANS.
2.1.1 FACILITY A REVOLVING LOANS. From and including the
Effective Date and prior to the Facility A Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this
Agreement (including, without limitation, the terms and conditions of
SECTIONS 2.10.3, 2.10.4 and 9.1 relating to the reduction, suspension or
termination of the Facility A Aggregate Commitment or the Aggregate
Commitment), to make Revolving Loans (relative to such Lender, its
"FACILITY A REVOLVING LOANS") in Dollars to the Borrower from time to
time in an aggregate amount, together with such Lender's L/C Interest
and Swing Line Interest, not to exceed (except as otherwise contemplated
by the last sentence of SECTION 2.19.1) at any one time outstanding the
amount of such Lender's Facility A Commitment; PROVIDED, HOWEVER, that
the Facility A Aggregate Commitment shall be deemed used for purposes of
determining the availability of Facility A Revolving Loans (but not for
purposes of determining each Lender's commitment fee pursuant to
SECTION 2.10.1, which commitment fee shall be determined for each Lender
as described in SECTION 2.10.1) from time to time to the extent of (x)
the aggregate L/C Obligations then outstanding and (y) the aggregate
principal amount of any Swing Line Loans then outstanding, and such
deemed use of the Facility A Aggregate Commitment shall be applied to
the Lenders ratably according to their respective Facility A
Commitments. Subject to the terms of this Agreement (including, without
limitation, the terms and conditions of SECTIONS 2.10.3, 2.10.4 and 9.1
relating to the reduction, suspension or termination of the Facility A
Aggregate Commitment or the Aggregate Commitment), the Borrower may
borrow, repay and reborrow Facility A Revolving Loans at any time prior
to the Facility A Termination Date. Unless earlier terminated in
accordance with the terms and conditions of this Agreement, the Facility
A Commitments of the Lenders to lend hereunder shall expire on the
Facility A Termination Date.
2.1.2 FACILITY B REVOLVING LOANS. From and including the
Effective Date and prior to the Facility B Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this
Agreement (including, without limitation, the terms and conditions of
SECTIONS 2.10.4 and 9.1 relating to the reduction, suspension or
termination of the Aggregate Commitment), to make Revolving Loans
(relative to such Lender, its "FACILITY B REVOLVING LOANS") in Dollars
to the Borrower from time to time in an aggregate amount not to exceed
at any one time outstanding the amount of such Lender's
27
Facility B Commitment. Subject to the terms of this Agreement
(including, without limitation, the terms and conditions of SECTIONS
2.10.4 and 9.1 relating to the reduction, suspension or termination of
the Aggregate Commitment), the Borrower may borrow, repay and reborrow
Facility B Revolving Loans at any time prior to the Facility B
Termination Date. Unless earlier terminated in accordance with the
terms and conditions of this Agreement, the Facility B Commitments of
the Lenders to lend hereunder shall expire on the Facility B Termination
Date.
2.2. REPAYMENT OF THE REVOLVING LOANS. Any outstanding Facility A
Revolving Loans shall be paid in full by the Borrower on the Facility A
Termination Date, and any outstanding Facility B Revolving Loans shall be paid
in full by the Borrower on the Facility B Termination Date; PROVIDED, HOWEVER,
that nothing in this SECTION 2.2 shall be construed as limiting or modifying the
obligation of the Borrower to repay any or all of the outstanding Revolving
Loans at any earlier time in accordance with the terms of this Agreement.
2.3. RATABLE REVOLVING LOANS; TYPES OF ADVANCES. Each Facility A
Advance hereunder shall consist of Facility A Revolving Loans made from the
several Lenders ratably in proportion to the ratio that their respective
Facility A Commitments bear to the Facility A Aggregate Commitment and each
Facility B Advance hereunder shall consist of Facility B Revolving Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Facility B Commitments bear to the Facility B Aggregate
Commitment. Any Advance may be a Floating Rate Advance, a Fixed CD Rate
Advance or a Eurodollar Advance, as the Borrower shall select in accordance
with SECTIONS 2.6 and 2.7.
2.4. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in a
minimum amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof; PROVIDED, HOWEVER, that (x) any Facility A
Advance may be in the amount of the unused Facility A Aggregate Commitment,
and (y) any Facility B Advance may be in the amount of the unused Facility B
Aggregate Commitment.
2.5. OPTIONAL PREPAYMENTS OF REVOLVING LOANS. Subject to SECTION
3.4 and the requirements of SECTION 2.4, the Borrower may (a) following
notice given to the Agent by the Borrower, in the form attached hereto as
EXHIBIT G (a "PREPAYMENT NOTICE") by not later than 11:00 a.m. (Chicago time)
on the date of the proposed prepayment, such notice specifying the aggregate
principal amount of and the proposed date of the prepayment (and if such
notice is given the Borrower shall), prepay the outstanding principal amounts
of the Floating Rate Loans comprising part of the same Advance in whole or
ratably in part, together with accrued interest to but excluding the date of
such prepayment on the principal amount prepaid and (b) following a
Prepayment Notice given to the Agent by the Borrower by not later than 11:00
a.m. (Chicago time) on (i) if the Advance to be prepaid is a Fixed CD Rate
Advance, the second Business Day preceding the date of the proposed
prepayment, and (ii) if the Advance to be prepaid is a Eurodollar Advance,
the third Business Day preceding the date of the proposed prepayment, such
notice specifying the Advance to be prepaid and the proposed date of the
prepayment, and if such
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notice is given, the Borrower shall prepay the outstanding principal amounts
of the Fixed Rate Loans comprising a Fixed Rate Advance in whole (and not in
part), together with accrued interest to but excluding the date of such
prepayment on the principal amount prepaid. In the case of a Floating Rate
Advance, each partial prepayment shall be in an aggregate principal amount
not less than $10,000,000.
2.6. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
ADVANCES. The Borrower shall select the Type of each Advance and, in the case
of a Fixed Rate Advance, the Interest Period applicable to such Advance from
time to time. The Borrower shall give the Agent irrevocable notice, in the
form attached hereto as EXHIBIT F (a "REVOLVING LOAN BORROWING NOTICE"), not
later than 10:30 a.m. (Chicago time) (i) on the Revolving Loan Borrowing Date
for each Floating Rate Advance, (ii) at least two Business Days before the
Revolving Loan Borrowing Date for each Fixed CD Rate Advance, and (iii) at
least three Business Days before the Revolving Loan Borrowing Date for each
Eurodollar Advance specifying:
(a) the Revolving Loan Borrowing Date, which shall be a Business
Day, of such Advance,
(b) the aggregate amount of such Advance,
(c) whether such Advance is to be made pursuant to the Facility A
Aggregate Commitment as a Facility A Revolving Loan or pursuant to the
Facility B Aggregate Commitment as a Facility B Revolving Loan,
(d) the Type of such Advance, and
(e) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto.
Not later than the Specified Remittance Time on each Revolving Loan Borrowing
Date, each Lender shall make available its Revolving Loan or Revolving Loans
to the Agent in immediately available funds at the relevant Payment Office.
To the extent that the Agent has received funds from the Lenders as specified
in the preceding sentence, the Agent will make such funds available to the
Borrower at the relevant Payment Office as promptly as reasonably practicable
(but in any event within two hours) following the Specified Remittance Time,
it being understood that if the relevant Payment Office is located in
Chicago, the Agent will make the applicable funds available to the Borrower
by depositing such funds to such account as the Borrower shall from time to
time designate in a notice delivered to the Agent executed by two Authorized
Officers.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Fixed Rate Advances or prepaid
pursuant to SECTION 2.5. Each
29
Fixed Rate Advance of any Type shall continue as a Fixed Rate Advance of such
Type until the end of the then applicable Interest Period therefor, at which
time such Fixed Rate Advance shall be automatically converted into a Floating
Rate Advance unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Fixed Rate Advance either continue as a Fixed Rate Advance of
such Type for the same or another Interest Period or be converted into an
Advance of another Type. Subject to the terms of SECTION 2.6, the Borrower
may elect from time to time to convert all or any part of an Advance of any
Type into any other Type or Types of Advances; provided that any conversion
of any Fixed Rate Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Borrower shall give the Agent
irrevocable notice in the form of EXHIBIT I hereto (a
"CONVERSION/CONTINUATION NOTICE") of each conversion of an Advance or
continuation of a Fixed Rate Advance not later than 10:00 a.m. (Chicago time)
(i) in the case of a conversion into a Floating Rate Advance on the date of
such conversion, (ii) in the case of a conversion into or continuation of a
Fixed CD Rate Advance, at least two Business Days before the date of such
conversion or continuation, and (iii) in the case of a conversion into or
continuation of a Eurodollar Advance, at least three Business Days before the
date of such conversion or continuation specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation;
(b) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(c) the amount and Type(s) of Advance(s) into which such Advance
is to be converted or continued and, in the case of a conversion
into or continuation of a Fixed Rate Advance, the duration of the
Interest Period applicable thereto.
2.8. PAYMENT OF INTEREST ON REVOLVING LOANS AND ADVANCES. Interest
accrued on each Floating Rate Advance shall be payable (i) on the last
Business Day of each calendar quarter for the calendar quarter then ending,
(ii) on the Facility A Termination Date for each Floating Rate Advance which
is a Facility A Revolving Loan, (iii) on the Facility B Termination Date for
each Floating Rate Advance which is a Facility B Revolving Loan, (iv) on the
date of the reduction to zero of the Facility A Aggregate Commitment or the
Aggregate Commitment pursuant to SECTIONS 2.10.3 or 2.10.4, (v) on the date
of any repayment of such Floating Rate Advance, and (vi) on the date of the
acceleration of the Obligations pursuant to SECTION 9.1. Interest accrued on
each Fixed Rate Advance shall be payable (i) on the last day of its
applicable Interest Period, (ii) on any date on which such Fixed Rate Advance
is prepaid, whether by acceleration or otherwise, and (iii) at maturity.
Interest accrued on each Fixed Rate Advance having an Interest Period longer
than three months or 90 days, as the case may be, shall also be payable on
the last day of each three-month or 90-day interval during such Interest
Period. Interest on Floating Rate Advances shall be calculated for actual
days elapsed on the basis of a 365/366-day year. Interest on Fixed Rate
Advances shall be calculated for actual days elapsed on
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the basis of a 360-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if
payment is received prior to noon (Chicago time) at the place of payment. If
any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
2.9. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a Fixed
Rate Advance into a Floating Rate Advance pursuant to SECTION 2.7 to but
excluding the date it becomes due or is converted into a Fixed Rate Advance
pursuant to SECTION 2.7, at a rate per annum equal to the Floating Rate for
such day. Changes in the rate of interest on each Advance maintained as a
Floating Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Fixed Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate
determined as applicable to such Fixed Rate Advance. No Interest Period for
a Fixed Rate Advance which is a Facility A Revolving Loan may end after the
Facility A Termination Date and no Interest Period for a Fixed Rate Advance
which is a Facility B Revolving Loan may end after the Facility B Termination
Date.
2.10. COMMITMENT FEE; MANDATORY AND VOLUNTARY REDUCTIONS IN
AGGREGATE COMMITMENT.
2.10.1 FACILITY A COMMITMENT FEE. The Borrower agrees to
pay to the Agent for the account of each Lender a commitment fee at
a rate per annum equal to the Facility A Applicable Commitment Fee
Rate in effect from time to time on the daily unused portion of such
Lender's Facility A Commitment from the Effective Date to but
excluding the earliest of the Facility A Termination Date, the date
of the reduction to zero of the Facility A Aggregate Commitment
pursuant to SECTION 2.10.3 or SECTION 2.10.4 and the date of the
termination of the Aggregate Commitment pursuant to SECTION 9.1;
PROVIDED, HOWEVER, that, solely for purposes of this SECTION 2.10.1,
(x) each Lender's Facility A Commitment (except the commitment of
the Swing Line Lender) shall be determined without regard to any
outstanding Swing Line Loans and (y) the Commitment of the Swing
Line Lender shall be determined assuming that all outstanding Swing
Line Loans have been made by the Swing Line Lender. Such commitment
fees shall be payable on the last Business Day of each calendar
quarter for the quarter then ending, and on the earliest of the
Facility A Termination Date, the date of the reduction to zero of
the Facility A Aggregate Commitment pursuant to SECTION 2.10.3 or
SECTION 2.10.4 and the date of the termination of the Aggregate
Commitment pursuant to SECTION 9.1. Commitment fees shall be
calculated for actual days elapsed on the basis of a 360-day year.
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2.10.2 FACILITY B COMMITMENT FEE. The Borrower agrees to pay
to the Agent for the account of each Lender a commitment fee at a
rate per annum equal to the Facility B Applicable Commitment Fee
Rate in effect from time to time on the daily unused portion of such
Lender's Facility B Commitment from the Effective Date to but
excluding the earliest of the Facility B Termination Date, the date
of the reduction to zero of the Facility B Aggregate Commitment
pursuant to SECTION 2.10.4 and the date of the termination of the
Aggregate Commitment pursuant to SECTION 9.1. Such commitment fees
shall be payable on the last Business Day of each calendar quarter
for the quarter then ending, and on the earliest of the Facility B
Termination Date, the date of the reduction to zero of the
Facility B Aggregate Commitment pursuant to SECTION 2.10.4 and the
date of the termination of the Facility B Aggregate Commitment
pursuant to SECTION 9.1. Commitment fees shall be calculated for
actual days elapsed on the basis of a 360-day year.
2.10.3 MANDATORY REDUCTIONS IN FACILITY A AGGREGATE
COMMITMENT. If as of the end of any fiscal year of TLGI, (x) the
aggregate Fair Value of all Property, whether of TLGI, the Borrower
or any Subsidiary of TLGI or the Borrower, sold during such fiscal
year pursuant to the exception for sales of Property provided under
SECTION 7.13(C) exceeds (y) the aggregate Fair Value, as determined
by the board of directors of TLGI, of all consideration actually
paid during such fiscal year in respect of Acquisitions, by at least
$5,000,000, then within ten Business Days following the date on
which TLGI delivers to the Agent financial statements in respect of
such fiscal year pursuant to SECTION 7.1(A), the Borrower will, by
written notice to the Agent given on or before the date such
financial statements are delivered, reduce the Facility A Aggregate
Commitment by an amount equal to such excess, rounded down to the
nearest $100,000; PROVIDED, HOWEVER, that any such reduction shall
be made equally and ratably with the repayment of any other
Indebtedness (if any) which by its terms must be repaid using the
proceeds of the sale of such Property. Any such reduction in the
Facility A Aggregate Commitment shall be allocated ratably among the
Lenders according to the Facility A Commitments. To the extent that
the amount of any such mandatory reduction of the Facility A
Aggregate Commitment exceeds the unused Facility A Aggregate
Commitment on the date of such mandatory reduction, the Borrower
shall, immediately prior to making such mandatory reduction of the
Facility A Aggregate Commitment, prepay (subject to the proviso to
the immediately preceding sentence) the outstanding Facility A
Advances (as selected by the Borrower) in an amount at least equal
to such excess; it being understood that the Borrower and each
Guarantor shall be liable pursuant to SECTION 3.4 to indemnify each
Lender against any loss or liability which that Lender incurs as a
consequence of any prepayment under this SECTION 2.10.3. If,
following any such prepayment of Facility A Advances, the amount of
any such mandatory reduction of the Facility A Aggregate Commitment
still exceeds the unused Facility A
32
Aggregate Commitment on the date of such mandatory reduction, the
Borrower shall cash collateralize the outstanding L/C Obligations
as contemplated in SECTION 2.21.4 in an amount sufficient, together
with the prepayments of Facility A Advances, to eliminate such
excess.
2.10.4 VOLUNTARY REDUCTIONS IN AGGREGATE COMMITMENT. The
Borrower may permanently reduce the Facility A Aggregate Commitment
or the Facility B Aggregate Commitment in whole, or in part ratably
among the Lenders in integral multiples of $10,000,000, upon at
least three Business Days' written notice to the Agent, which notice
shall specify the amount of any such reduction; PROVIDED, HOWEVER,
that the amount of the Facility A Aggregate Commitment may not be
reduced below the sum of the aggregate principal amount of the
outstanding Facility A Advances and Swing Line Loans and the
aggregate outstanding L/C Obligations, and, PROVIDED FURTHER, that
the amount of the Facility B Aggregate Commitment may not be reduced
below the aggregate principal amount of the outstanding Facility B
Advances.
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to
the contrary contained in SECTION 2.6 or 2.7, during the continuance of a
Default or Unmatured Default no Advance may be made as, converted into or
continued as a Fixed Rate Advance. During the continuance of a Default
pursuant to SECTION 8.2, (a) each Fixed Rate Advance shall bear interest
until paid in full or converted to a Floating Rate Advance at the Fixed Rate
then applicable to such Advance plus 2% per annum, and (b) each Floating Rate
Advance shall bear interest until paid in full at a rate per annum equal to
the Floating Rate plus 2% per annum.
2.12. METHOD OF PAYMENT. Without limiting the operation of the
first sentence of SECTION 2.21.3(b), and without limiting the scope of
SECTION 2.17(b), all payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in Dollars in immediately
available funds to the Agent at the Payment Office, by the Specified
Remittance Time on the date when due and shall be remitted by the Agent to
the Lenders according to their respective interests therein. Each payment
delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds that the Agent
received at such Lender's address specified pursuant to ARTICLE XIV or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized, but is not obligated, to charge the
accounts of the Borrower maintained with Bank of Montreal into which proceeds
of Advances are remitted pursuant to SECTION 2.6 for each payment of interest
and fees as it becomes due hereunder, for each payment of principal, in
accordance with the applicable Prepayment Notice or when otherwise due and
payable in accordance with the terms hereof, and for each payment of
Obligations (including Reimbursement Obligations) when due and payable in
accordance with the terms hereof.
2.13. EVIDENCE OF DEBT; TELEPHONIC NOTICES. (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts
evidencing the Obligations of the
33
Borrower to the appropriate Lending Installation of such Lender resulting
from each Facility A Revolving Loan and each Facility B Revolving Loan made
by such Lending Installation of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lending
Installation of such Lender from time to time under this Agreement.
(b) The Agent shall maintain a Register at the request of the
Borrower pursuant to SECTION 13.3.2, and a subaccount for each relevant
Lender, in which Register and subaccounts (taken together) shall be recorded
(i) the amount of each relevant Revolving Loan made hereunder, whether such
Revolving Loan is, as applicable, a Facility A Revolving Loan, a Facility B
Revolving Loan, a Fixed CD Rate Loan, a Eurodollar Loan, a Fixed Rate Loan or
a Floating Rate Loan, and the Interest Period applicable to any Fixed CD Rate
Loan or Eurodollar Loan, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(c) The entries made in the Register, accounts and subaccounts
maintained pursuant to PARAGRAPHS (a) and (b) of this SECTION 2.13 shall, to
the extent permitted by applicable law, be PRIMA FACIE evidence of the
existence and amounts of the Obligations of the Borrower therein recorded;
PROVIDED, that the failure of any Lender or the 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 the Borrower to
repay the Revolving Loans (and all other amounts owing with respect thereto)
in accordance with the terms of this Agreement.
(d) The Borrower hereby authorizes the Lenders and the Agent to
extend, convert or continue Advances and effect selections of Types of
Advances based on telephonic notices made by any person or persons the Agent
in good faith believes to be acting on behalf of the Borrower, PROVIDED that
the proceeds of such Advances shall only be credited to such account as the
Borrower shall from time to time designate in a notice delivered to the Agent
executed by two Authorized Officers. The Borrower agrees to deliver promptly
to the Agent a written confirmation, if such confirmation is requested by the
Agent or any Lender, of each telephonic notice signed by an Authorized
Officer. If the written confirmation differs in any material respect from
the action taken by the Agent and the Lenders, the records of the Agent of
the relevant telephonic notice shall govern absent manifest error.
2.14. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will notify
each Lender of the contents of each Aggregate Commitment reduction notice,
Revolving Loan Borrowing Notice, Swing Line Loan Borrowing Notice,
Conversion/Continuation Notice, and prepayment notice received by it
hereunder (including specifying whether such notice relates to a Facility A
Revolving Loan or a Facility B Revolving Loan). The Agent will notify the
Borrower and each Lender of the interest rate applicable to each Fixed Rate
Advance promptly upon determination of such interest rate and will give the
Borrower and each Lender prompt notice of each change in the Alternate Base
Rate.
34
2.15. LENDING INSTALLATIONS. Each Lender may book its Revolving
Loans and its Swing Line Interest and its L/C Interest at any one or more
Lending Installations selected by such Lender and may change any such Lending
Installation from time to time. All terms of this Agreement shall apply to
any such Lending Installation and the Revolving Loans, the Swing Line
Interests and the L/C Interests shall be deemed held by each Lender for the
benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Agent and the Borrower, designate a Lending Installation
through which Revolving Loans will be made by it and through which L/C
Interests and Swing Line Interests will be held by it and for whose account
Revolving Loan and Swing Line Loan payments and L/C Obligation payments are
to be made.
2.16. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it
is scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Revolving Loan or (b) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the Lenders, that
it does not intend to make such payment, the Agent may assume that such
payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance
upon such assumption. If such Lender or the Borrower, as the case may be,
has not in fact made such payment to the Agent, the recipient of such payment
shall, on demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to
(a) in the case of payment by a Lender, the Federal Funds Effective Rate for
such day or (b) in the case of payment by the Borrower, the interest rate
applicable to the relevant Revolving Loan.
2.17. WITHHOLDING TAX EXEMPTION; GROSS UP. (a) At least five
Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Lender, each Lender that is not incorporated
under the laws of the United States of America, or a state thereof, and which
has not previously delivered to the Borrower and the Agent under the terms of
the Original Agreement documentation which complies with this SECTION 2.17,
agrees that it will deliver to each of the Borrower and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes. Each Lender which so delivers a Form 1001 or 4224
further undertakes to deliver to each of the Borrower and the Agent two
additional copies of such form (or any successor form or related form as may
from time to time be required under applicable law) on or before the date
that such form expires (currently, three successive calendar years for Form
1001 and one calendar year for Form 4224) or becomes obsolete or after the
occurrence of any event requiring a change in the most recent forms so
delivered by it, and such amendments thereto or extensions or renewals
thereof as may be reasonably requested by the Borrower or the Agent, in each
case certifying that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior
35
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such
Lender advises the Borrower and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
(b) All payments made by the Borrower under or in connection with
this Agreement shall be made in full, without set-off or counterclaim, and free
of and without deduction or withholding for or on account of any present or
future tax, duty, assessment, impost, levy or other similar charge, or any
penalties, fines or interest thereon (a "RELEVANT TAX") imposed upon TLGI, the
Borrower, the Agent, any Lender or the L/C Issuer by the government of Canada
(or any Governmental Authority thereof), the government of the United States of
America (or any Governmental Authority thereof), or by the government of any
other country or jurisdiction (or any Governmental Authority thereof) from or
through which payments hereunder are actually made (each a "TAXING
JURISDICTION"). The Borrower, for the benefit of the Agent, the Lenders and the
L/C Issuer, agrees that in the event any payments made by the Borrower hereunder
or in connection herewith are subject to any deduction or withholding for or on
account of any Relevant Tax, the Borrower will pay to the Agent, such Lender or
the L/C Issuer such additional amounts as may be necessary in order that the net
amounts paid to the Agent, such Lender or the L/C Issuer pursuant to the terms
of this Agreement after imposition of any such Relevant Tax (including
deductions or withholdings applicable to additional amounts paid under this
SECTION 2.17(b)) shall be not less than the amounts specified in this Agreement
to be then due and payable, except that no such additional amounts shall be
payable hereunder to the Agent, any Lender or the L/C Issuer that is liable for
such Relevant Tax in respect of the relevant payment solely by reason of such
recipient (a) having a permanent establishment in the Taxing Jurisdiction, (b)
being organized under the laws of the Taxing Jurisdiction or any political
subdivision thereof, (c) being resident in the Taxing Jurisdiction by virtue of
its domicile or place of management being in the Taxing Jurisdiction, or (d)
having failed to comply with the terms and conditions of SECTION 2.17(a)
applicable to it. If the Agent, any Lender or the L/C Issuer pays any amount in
respect of a Relevant Tax, the Borrower shall indemnify the Agent, the Lender or
the L/C Issuer, as the case may be, for such payment within 15 days of demand
therefor by the Agent, such Lender or the L/C Issuer (in the case of such Lender
or the L/C Issuer, made through the Agent).
2.18. EXTENSION OF FACILITY A TERMINATION DATE. The Borrower may
request an extension of the Facility A Termination Date for a period of one year
on each of September 29, 1998, and, if such first extension shall have become
effective in accordance with the provisions of this SECTION 2.18, September 29,
1999 (each of September 29, 1998 and September 29, 1999, an "EXTENSION REQUEST
DATE"), by delivering a notice of such request in the form attached hereto as
EXHIBIT H (an "EXTENSION REQUEST") to the Agent no more than 90 days and no
fewer than 60 days preceding the relevant Extension Request Date. The Agent
shall promptly notify each Lender of a requested extension. On or before the
30th day (or if such day is not a Business Day, the next succeeding Business
Day) preceding the relevant Extension Request Date (such 30th day, the
"EXTENSION NOTIFICATION DATE"), each Lender shall notify the Agent whether that
Lender
36
consents to the requested extension of the Facility A Termination Date, which
consent may be given or withheld by each Lender in its sole and absolute
discretion. Any Lender that fails to notify the Agent of its consent or
non-consent by the Extension Notification Date will be deemed to have
withheld consent (each such Lender together with each Lender that has
provided notice of its non-consent to be referred to herein as a
"NON-CONSENTING LENDER"). If as of the close of business on the Extension
Notification Date, any Lender is a Non-Consenting Lender, the Agent shall
immediately so advise the Borrower. During the period beginning on the first
day following the Extension Notification Date and ending on the relevant
Extension Request Date, each Non-Consenting Lender will, but only upon the
written request of the Borrower given in the sole discretion of the Borrower
(which request may be given by the Borrower to some, all or none of the
Non-Consenting Lenders in the Borrower's sole discretion), assign all of its
rights and obligations under this Agreement (i) first, to the Lenders who
have consented to the extension and are willing to accept such assignment,
subject to ratable allocation by the Agent among such Lenders and (ii)
second, to the extent such Non-Consenting Lender's rights and obligations
hereunder have not been assigned to an existing Lender as contemplated in the
foregoing CLAUSE (i), to one or more other financial institutions, nominated
by the Borrower and acceptable to the Agent, that are willing to become
Lenders hereunder through the Facility A Termination Date as extended in
accordance with the relevant Extension Request. The obligation of a
Non-Consenting Lender to assign its rights and obligations hereunder as
contemplated by this SECTION 2.18 is subject to the requirements that (x) all
amounts owing to that Non-Consenting Lender under the Loan Documents
(including, without limitation, pursuant to SECTION 3.4) are paid in full
upon the completion of such assignment and (y) any assignment is effected in
accordance with the terms of SECTION 13.3 and on terms otherwise satisfactory
to the Non-Consenting Lender. A requested extension of the Facility A
Termination Date shall be effective only with respect to Lenders which have
consented to such Extension Request in accordance with the terms of this
SECTION 2.18, and shall become effective only if Lenders holding not less
than 75% of the Aggregate Commitments shall have consented to such Extension
Request in accordance with the terms of this SECTION 2.18 (such determination
to be made without giving effect to any assignments contemplated by this
SECTION 2.18), and each Non-Consenting Lender which has been requested to do
so has assigned all of its rights and obligations hereunder to one or more
other Lenders or to one or more successor financial institutions. In any
other event, the requested extension will be deemed to have been denied and
the Facility A Termination Date and the Lenders' respective Facility A
Commitments will remain unchanged without any Non-Consenting Lender incurring
any liability. To the extent an Extension Request has been approved and a
Non-Consenting Lender has not been requested to assign all of its rights and
obligations under this Agreement, or the conditions to such a requested
assignment have not been satisfied as specified in this SECTION 2.18, then
(i) such Non-Consenting Lender's Facility A Commitment shall remain unchanged
and in effect through the Facility A Termination Date then in effect
(determined for such Non-Consenting Lender without giving effect to the
approval of the Extension Request) (such date, the "SCHEDULED TERMINATION
DATE" for such Non-Consenting Lender), and (ii) on the Scheduled Termination
Date for such Non-Consenting Lender, the Borrower shall pay to such
Non-Consenting Lender all amounts owing to such Non-Consenting Lender under
the Loan Documents as of the Scheduled
37
Termination Date (including, without limitation, pursuant to SECTION 3.4),
and, from and after such Scheduled Termination Date, the Aggregate Commitment
shall be reduced by the amount of the Facility A Commitment of such
Non-Consenting Lender.
2.19. MANDATORY PREPAYMENTS.
2.19.1 FACILITY A REVOLVING LOANS. Without limitation to the
prepayment obligations of the Borrower under SECTION 2.10.3, if, at
any time, the aggregate principal amount of the then outstanding
Facility A Revolving Loans, Swing Line Loans and L/C Obligations, as
determined by the Agent, equals or exceeds the Facility A Aggregate
Commitment as of such time, the Borrower shall, following demand by
the Agent setting forth, in reasonable detail, the relevant
calculations, prepay outstanding Facility A Revolving Loans and Swing
Line Loans in accordance with the provisions of this Agreement until
the aggregate principal amount of all outstanding Facility A Revolving
Loans, Swing Line Loans and L/C Obligations does not exceed the
Facility A Aggregate Commitment. The Borrower and each Guarantor
shall be liable pursuant to SECTION 3.4 to indemnify each Lender
against any loss or liability which that Lender incurs as a
consequence of any prepayment under this SECTION 2.19.1. If,
following any such prepayment or repayment of Facility A Revolving
Loans and Swing Line Loans, the aggregate principal amount of all
outstanding Facility A Revolving Loans, Swing Line Loans and L/C
Obligations still exceeds the Facility A Aggregate Commitment, the
Borrower shall cash collateralize the outstanding L/C Obligations as
contemplated in SECTION 2.21.4 in an amount sufficient, together with
the prepayment and repayment of Facility A Revolving Loans and Swing
Line Loans, to eliminate such excess.
2.19.2 FACILITY B REVOLVING LOANS. If, at any time, the
aggregate principal amount of the then outstanding Facility B
Revolving Loans, as determined by the Agent, equals or exceeds the
Facility B Aggregate Commitment as of such time, the Borrower shall,
following demand by the Agent setting forth, in reasonable detail, the
relevant calculations, prepay outstanding Facility B Revolving Loans
in accordance with the provisions of this Agreement until the
aggregate principal amount of all outstanding Facility B Revolving
Loans does not exceed the Facility B Aggregate Commitment. The
Borrower and each Guarantor shall be liable pursuant to SECTION 3.4 to
indemnify each Lender against any loss or liability which that Lender
incurs as a consequence of any prepayment under this SECTION 2.19.2.
2.20. TERMINATION. All unpaid Obligations with respect to Facility B
Revolving Loans shall be paid in full by the Borrower on the Facility B
Termination Date, and all other unpaid Obligations shall be paid in full by the
Borrower on the Facility A Termination Date; PROVIDED, HOWEVER, that nothing in
this SECTION 2.20 shall be construed as limiting or modifying
38
the obligation of the Borrower to repay any or all of the outstanding
Obligations at any earlier time in accordance with the terms of this
Agreement.
2.21. LETTER OF CREDIT FACILITY.
2.21.1 LETTERS OF CREDIT. Upon receipt of duly executed
applications therefor, and such other documents, instruments and
agreements as the L/C Issuer may reasonably require, and subject to
the provisions of ARTICLE IV, the L/C Issuer shall issue standby
Letters of Credit (but not trade letters of credit) for the account of
the Borrower, on terms as are satisfactory to the L/C Issuer;
PROVIDED, HOWEVER, that no Letter of Credit will be issued for the
account of the Borrower by the L/C Issuer if on the date of issuance,
before or after taking such Letter of Credit into account (i) the
amount of the Facility A Advances, Swing Line Loans and the L/C
Obligations at such time would exceed the Facility A Aggregate
Commitment or (ii) the aggregate outstanding amount of the L/C
Obligations would exceed the L/C Commitment Amount; and PROVIDED,
FURTHER, that no Letter of Credit shall be issued unless (A) it is
denominated in Dollars and (B) it has an expiration date that is (1)
no more than one year after the date of issuance of such Letter of
Credit (provided that a Letter of Credit, subject to the immediately
following CLAUSE (2), may provide for an annual renewal if such
renewal is consented to by the L/C Issuer at the time of issuance and
the conditions precedent to the issuance of such Letter of Credit are
met at the time of such renewal) and (2) no later than the date which
is five Business Days immediately preceding the Facility A Termination
Date.
2.21.2 LETTER OF CREDIT PARTICIPATION. Immediately upon
issuance of each Letter of Credit by the L/C Issuer hereunder, each
Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the L/C Issuer an
undivided interest and participation in and to such Letter of Credit,
the obligations of the Borrower in respect thereof, and the liability
of the L/C Issuer thereunder (collectively, an "L/C INTEREST") in an
amount equal to the amount available for drawing under such Letters of
Credit multiplied by a fraction having as its numerator, such Lender's
Facility A Commitment, and as its denominator, the Facility A
Aggregate Commitment. The L/C Issuer will notify each Lender promptly
upon presentation to it of an L/C Draft or upon any other draw under
any Letter of Credit. On the Business Day on which the L/C Issuer
makes payment of any L/C Draft or, in the case of any other draw on
the Letter of Credit, on demand of the L/C Issuer (provided that the
Borrower has not prior thereto made payment therefor and no Floating
Rate Advance has been made pursuant to SECTION 2.21.3 with respect
thereto), each Lender shall make payment to the Agent, for credit to
the L/C Issuer, in immediately available funds in an amount equal to
such Lender's ratable share (determined in accordance with the
fraction described above) of the amount of such payment or draw.
Provided that
39
each Letter of Credit is issued by the L/C Issuer in accordance with
the terms of this Agreement, the obligation of each Lender to
reimburse the L/C Issuer under this SECTION 2.21.2 shall be
unconditional, continuing, irrevocable and absolute and shall not be
affected or impaired by, among other things, the occurrence of the
Facility A Termination Date or the reduction, suspension or
termination (except pursuant to SECTION 2.18) of the Facility A
Aggregate Commitment or such Lender's Facility A Commitment in
accordance with the terms of this Agreement. In the event that any
Lender fails to make payment to the Agent of any amount due to the L/C
Issuer under this SECTION 2.21.2, the Agent shall be entitled to
receive for the benefit of the L/C Issuer, and the L/C Issuer shall be
entitled to receive, retain and apply against such obligation the
principal and interest and other amounts otherwise payable to such
Lender hereunder (whether in respect of Facility A Revolving Loans,
Facility B Revolving Loans, Swing Line Loans, Letters of Credit or
otherwise) until the Agent receives such payment from such Lender or
such obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that
nothing contained in this sentence shall relieve such Lender of its
obligation to reimburse the L/C Issuer for such amount in accordance
with this SECTION 2.21.2.
2.21.3 REIMBURSEMENT OBLIGATION. (a) The Borrower agrees
unconditionally, irrevocably and absolutely to pay immediately to the
Agent, for the account of the L/C Issuer and the Lenders, the amount
of each L/C Draft or other demand which may be drawn under or pursuant
to a Letter of Credit (such obligation of the Borrower to pay the
Agent (for the account of the L/C Issuer and the Lenders) being
hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect
to a Letter of Credit or L/C Draft). The obligations of the Borrower
under this Agreement and otherwise in respect of Letters of Credit and
L/C Drafts shall be absolute, unconditional and irrevocable and shall
be performed strictly in accordance with the terms of this Agreement
under all circumstances whatsoever, including the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit, this Agreement or any Loan Document;
(ii) any amendment or waiver of or any consent to departure
from this Agreement or any other Loan Document;
(iii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against the L/C
Issuer, the Agent, any Lender, any beneficiary of any Letter of
Credit (or any Person for whom any such beneficiary may be
acting), or any other Person, whether in connection with this
Agreement, any other Loan Document or any unrelated
transactions;
40
(iv) any statement in any certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any such
statement being untrue or inaccurate in any respect
whatsoever;
(v) payment by the L/C Issuer under any Letter of Credit
against presentation of a draft or certificate which does
not comply with the terms of such Letter of Credit (provided
that the L/C Issuer was not grossly negligent in connection
therewith); or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
(b) If the Borrower at any time fails to repay a Reimbursement
Obligation pursuant to this SECTION 2.21.3, the Borrower shall be
deemed to have elected to borrow a Floating Rate Advance as a Facility
A Revolving Loan from the Lenders, as of the date of the L/C Draft or
other demand giving rise to the Reimbursement Obligation, equal in
amount to the amount of the unpaid Reimbursement Obligation, the
proceeds of which Facility A Advance shall be used to repay such
Reimbursement Obligation; PROVIDED, HOWEVER, that such Floating Rate
Advance shall be deemed to have been borrowed only to the extent that
(x) both immediately before and after giving effect thereto, no
Default or Unmatured Default under SECTION 8.6 or 8.7 shall have
occurred and be continuing, and (y) the Facility A Termination Date
(or the date of any earlier termination of the Facility A Aggregate
Commitment pursuant to this Agreement) shall not have occurred prior
thereto. For each Reimbursement Obligation for which a Floating Rate
Advance is not deemed to have been borrowed by the Borrower, each
Lender shall be deemed to have automatically purchased and received
from the L/C Issuer an undivided interest and participation in and to
such Reimbursement Obligation in an amount equal to such Reimbursement
Obligation multiplied by a fraction having as its numerator, such
Lender's Facility A Commitment, and as its denominator, the Facility A
Aggregate Commitment. If, for any reason, the Borrower fails to repay
a Reimbursement Obligation on the day such Reimbursement Obligation
arises, either directly or through a Floating Rate Advance, then such
Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to Floating Rate
Advances (including, during the continuance of a Default or Unmatured
Default, at the rates determined pursuant to SECTION 2.11).
2.21.4 CASH COLLATERAL. Notwithstanding anything to the
contrary herein or in any application for any Letter of Credit, (a)
after the occurrence and during the continuance of a Default or (b) to
the extent necessary in connection with any mandatory reduction of the
Facility A Aggregate Commitment pursuant to SECTION
41
2.10.3 or any mandatory prepayment or repayment of Facility A
Revolving Loans pursuant to SECTION 2.19, the Borrower shall, upon
the demand of the Required Lenders or the Agent at the request of
the Required Lenders, or if earlier, at the time of the applicable
mandatory reduction of the Facility A Aggregate Commitment pursuant
to SECTION 2.10.3 or mandatory prepayment or repayment of Facility
A Revolving Loans pursuant to SECTION 2.19, as the case may be,
deliver to the Agent for the benefit of the L/C Issuer and the
Lenders, cash collateral in an amount equal to the aggregate
outstanding L/C Obligations, or in connection with a deposit made
pursuant to the foregoing CLAUSE (b), such lesser amount of the
outstanding L/C Obligations as shall satisfy the requirements of
SECTION 2.10.3 and SECTION 2.19, as applicable. Any such collateral
shall be held by the Agent in a separate account appropriately
designated as a cash collateral account in relation to this
Agreement and the Letters of Credit and retained by the Agent for
the benefit of the L/C Issuer and the Lenders as collateral
security for the Borrower's obligations in respect of this
Agreement and the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the L/C Issuer for drawings or
payments under or pursuant to the Letters of Credit or L/C Drafts,
or if no such reimbursement is required, such amounts shall be
applied ratably to the payment of any other unpaid costs, fees,
expenses and other Obligations related to the Letters of Credit,
any L/C Drafts and such cash collateral account as the Agent shall
determine. If no Default shall be continuing, amounts remaining in
any cash collateral account established pursuant to CLAUSE (a) of
this SECTION 2.21.4 which are not to be applied to reimburse the
L/C Issuer or the Lenders for amounts actually paid or to be paid
by the L/C Issuer or the Lenders in respect of the Letters of
Credit or L/C Drafts, shall be returned to the Borrower (after
deduction of the Agent's expenses incurred in connection with such
cash collateral account) except to the extent such amounts (or
portions thereof) are necessary to satisfy the cash collateral
requirements of CLAUSE (b) of this SECTION 2.21.4. In addition, if
the conditions giving rise to a deposit of cash collateral pursuant
to CLAUSE (b) of this SECTION 2.21.4 cease to exist, any amounts
remaining in any cash collateral account established pursuant to
such CLAUSE (b) which are not to be applied to reimburse the L/C
Issuer or the Lenders for amounts actually paid or to be paid by
the L/C Issuer or the Lenders in respect of the Letters of Credit
or L/C Drafts, shall be returned to the Borrower (after deduction
of the Agent's expenses incurred in connection with such cash
collateral account) except to the extent such amounts (or portions
thereof) are necessary to satisfy the cash collateral requirements
of CLAUSE (a) of this SECTION 2.21.4. Investment earnings (net of
investment losses and any unpaid costs, fees, expenses and other
Obligations related to the Letters of Credit, any L/C Drafts and
such cash collateral account) on amounts on deposit in the cash
collateral account (which investments shall be limited to interest
bearing deposit accounts with the Agent) shall be for the account
of the Borrower, and, except at such time as a Default shall have
occurred
42
and be continuing, the Agent shall remit any such accrued earnings to
the Borrower no less frequently than quarterly.
2.21.5 LETTER OF CREDIT FEES. The Borrower agrees to pay (a) to
the Agent for the ratable benefit of the Lenders, a letter of credit
fee equal to the Applicable Letter of Credit Fee Rate in effect from
time to time on the daily sum of (x) the aggregate outstanding amount
of L/C Obligations less (y) the aggregate outstanding amount of
Reimbursement Obligations, such fee to be paid in arrears on the last
Business Day of each calendar quarter for the quarter then ending, and
on the Facility A Termination Date, and such fee to be calculated for
actual days elapsed on the basis of a 360-day year, and (b) to the
Agent for the benefit of the L/C Issuer, as issuing bank, the fees
agreed to by the Borrower and Bank of Montreal pursuant to that
certain letter agreement dated as of May 15, 1996, as amended, or as
otherwise agreed from time to time, together with all customary fees
and other issuance, amendment, negotiation, presentment and payment
expenses and related charges in connection with the issuance,
amendment, negotiation, presentation and payment of L/C Drafts, and
the like customarily charged by the L/C Issuer with respect to standby
letters of credit, payable at the time of invoice of such amounts by
the L/C Issuer.
2.21.6 INDEMNIFICATION; EXONERATION. (a) In addition to
amounts payable as elsewhere provided in this Agreement, Borrower
hereby agrees to protect, indemnify, pay and save harmless the L/C
Issuer, each Lender and the Agent from and against any and all
liabilities and costs which the L/C Issuer, any Lender or the Agent
may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit other than, in the case of
the L/C Issuer, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of
competent jurisdiction, or (ii) the failure of the L/C Issuer to honor
a drawing under any 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 "GOVERNMENTAL ACTS").
(b) As among the Borrower, the L/C Issuer, the Lenders and the
Agent, the Borrower assumes all risks of the acts and omissions of, or
misuse of a Letter of Credit by, the beneficiary of any Letter of
Credit. In furtherance and not in limitation of the foregoing,
subject to the provisions of the letter of credit application and any
letter of credit reimbursement agreement submitted or executed by the
Borrower in connection with any Letter of Credit (except to the extent
otherwise provided in PARAGRAPH (e) of this SECTION 2.21.6), the L/C
Issuer, the Lenders and the Agent shall not be responsible (in the
absence of gross negligence or willful misconduct in connection
therewith): (i) for 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 any
43
Letter of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of
any Letter of Credit to comply duly with conditions required in
order to draw upon any Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telecopy, telex or other
similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay
in the transmission or otherwise of any document required in order
to make a drawing under any Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under any Letter of
Credit; and (viii) for any consequences arising from causes beyond
the control of the L/C Issuer, the Lenders and the Agent including,
without limitation, any Governmental Acts. None of the above shall
affect, impair or prevent the vesting of any rights or powers of
the L/C Issuer under this SECTION 2.21.6.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the L/C Issuer under or in connection with a Letter of Credit
issued on behalf of the Borrower or any related certificates shall
not, in the absence of gross negligence or willful misconduct, as
determined by the final judgment of a court of competent jurisdiction,
put the L/C Issuer, any Lender or the Agent under any resulting
liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 2.21.6 shall survive the payment in full of
principal, interest and all other amounts hereunder, the termination
of the Letters of Credit and the termination of this Agreement.
(e) Notwithstanding anything therein to the contrary, in the
event any of the provisions of any letter of credit application or
letter of credit reimbursement agreement submitted or executed by the
Borrower in connection with any Letter of Credit conflict with the
provisions of this Agreement, the terms of this Agreement shall
govern.
2.21.7 LETTER OF CREDIT CANCELLATION. For all purposes
hereunder, including (without limitation) SECTION 2.21.5, a Letter of
Credit shall be deemed outstanding until the earlier to occur of (i)
the occurrence of the date expressly
44
designated therein as the expiration date for such Letter of Credit
and (ii) the physical receipt by the L/C Issuer of such Letter of
Credit marked "canceled" accompanied by evidence from the
beneficiary thereof satisfactory to the L/C Issuer to such effect.
2.22. SWING LINE COMMITMENT. Subject to the terms and conditions of
this Agreement, the Swing Line Lender agrees to make loans to the Borrower on a
revolving basis (each such loan, a "SWING LINE LOAN") from time to time on any
Business Day during the period from and including the date of this Agreement to
the Facility A Termination Date in an aggregate principal amount at any one time
outstanding not to exceed $10,000,000; PROVIDED, HOWEVER, that (x) the sum of
the aggregate principal amount of all outstanding Swing Line Loans plus the
aggregate principal amount of all outstanding Facility A Revolving Loans plus
the aggregate outstanding L/C Obligations shall not at any time exceed the
Facility A Aggregate Commitment, and (y) the Swing Line Lender shall have no
obligation to make a Swing Line Loan if the principal amount of such Swing Line
Loan, when added to the aggregate principal amount of all Swing Line Loans then
outstanding, the L/C Obligations owing to the Swing Line Lender in its capacity
as a Lender and the aggregate principal amount of all Facility A Revolving Loans
made by the Swing Line Lender in its capacity as a Lender shall exceed the
Facility A Commitment applicable to the Swing Line Lender in its capacity as a
Lender. All Swing Line Loans shall be made in Dollars and maintained as
Floating Rate Loans with interest thereon payable under the terms of SECTIONS
2.8 and 2.11, and repayments to be made thereof under the terms of SECTIONS 2.5
(except for the last sentence thereof), 2.12, 2.14, and 2.20, in each case as if
such Swing Line Loan were a Floating Rate Advance made as a Facility A Revolving
Loan.
2.23. BORROWING PROCEDURES FOR SWING LINE LOANS. The Borrower shall
give the Agent and the Swing Line Lender irrevocable notice, in the form
attached hereto as EXHIBIT L (a "SWING LINE LOAN BORROWING NOTICE"), of each
proposed borrowing pursuant to this SECTION 2.23 not later than 10:30 a.m.
(Chicago time) on the proposed date of borrowing. Each such notice shall be
effective upon receipt by the Agent and the Swing Line Lender and shall specify
the date and amount of borrowing. Unless the Swing Line Lender has received
written notice prior to 8:00 a.m. (Chicago time) on the proposed Swing Line Loan
Borrowing Date (or at any time prior to the Swing Line Loan Borrowing Date) from
the Agent or any Lender that one or more of the conditions precedent set forth
in ARTICLE IV with respect to such borrowing is not then satisfied, the Swing
Line Lender shall pay over the requested amount to the Borrower on the requested
Borrowing Date. Each Swing Line Loan shall be made on a Business Day and shall
be in the amount of at least $500,000 and an integral multiple of $250,000. The
Swing Line Lender will promptly notify the Agent, and the Agent shall promptly
notify each Lender, of the making and amount of each Swing Line Loan and of the
maturity date thereof if it is later than the fourteenth (14th) day following
the Swing Line Loan Borrowing Date therefor.
2.24. REFUNDING OF SWING LINE LOANS. The Borrower shall repay each
Swing Line Loan on or before the earlier to occur of (x) the fourteenth (14th)
day following the Swing Line Loan Borrowing Date for such Swing Line Loan (or
such later date as the Borrower and the
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Swing Line Lender shall from time to time agree) or (y) the Facility A
Termination Date. If the Borrower fails to repay any Swing Line Loan when
due, the Swing Line Lender may, at any time thereafter in its sole and
absolute discretion, on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf), request each Lender to
make a Facility A Revolving Loan, ratably in proportion to the ratio that
such Lender's respective Facility A Commitment bears to the Facility A
Aggregate Commitment, of the principal amount of the Swing Line Loans
outstanding on the date such notice is given. Unless any of the events
described in SECTION 8.6 or 8.7 shall have occurred (in which event the
procedures of SECTION 2.25 shall apply), and regardless of whether the
conditions precedent set forth in this Agreement to the making of a Facility
A Revolving Loan are then satisfied or the aggregate amount of such Facility
A Revolving Loans is not in the minimum or integral amount otherwise required
hereunder, each Lender shall make the proceeds of its Facility A Revolving
Loan available to the Agent for the account of the Swing Line Lender at the
Payment Office in immediately available funds prior to 11:00 a.m. (Chicago
time) on the Business Day next succeeding the date such notice is given. The
proceeds of such Facility A Revolving Loans shall be immediately applied to
repay the outstanding Swing Line Loans. All Facility A Revolving Loans made
pursuant to this SECTION 2.24 shall be Floating Rate Loans.
2.25. PARTICIPATIONS IN SWING LINE LOANS. (a) If an event described
in SECTION 8.6 or 8.7 occurs (or for any reason the Lenders are prohibited from
making, or otherwise may not make, Facility A Revolving Loans pursuant to
SECTION 2.24), each Lender shall, upon notice from the Agent given at the
request of the Swing Line Lender, purchase from the Swing Line Lender (and the
Swing Line Lender shall sell to each such Lender) an undivided participation
interest in all Swing Line Loans then outstanding, ratably in proportion to the
ratio that such Lender's respective Facility A Commitment bears to the Facility
A Aggregate Commitment (and each Lender shall immediately transfer to the Agent,
for the account of the Swing Line Lender, in immediately available funds, the
principal amount reflecting its participation). The participation interest of
each Lender in the Swing Line Loans is referred to herein as such Lender's
"SWING LINE INTEREST".
(b) Whenever, at any time after the Swing Line Lender has received
payment for any Lender's Swing Line Interest pursuant to SUBSECTION 2.25(a), the
Swing Line Lender receives any payment on account thereof, the Swing Line Lender
will distribute promptly to the Agent for the account of such Lender its Swing
Line Interest in such amount (in the case of interest payments, appropriately
adjusted to reflect the period of time during which such Lender's Swing Line
Interest was outstanding and funded) in like funds as received; PROVIDED,
HOWEVER, that in the event that such payment received by the Swing Line Lender
is required to be returned, such Lender will return to the Agent for the account
of the Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it in like funds as such payment is required to be returned by
the Swing Line Lender.
2.26. SWING LINE PARTICIPATION OBLIGATIONS UNCONDITIONAL. Provided
that each Swing Line Loan is made by the Swing Line Lender in accordance with
the terms of this
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Agreement, each Lender's obligation to make Facility A Revolving Loans
pursuant to SECTION 2.24 and/or to purchase participation interests in Swing
Line Loans pursuant to SECTION 2.25 shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever, including (a) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, TLGI, the Borrower or any of their
Affiliates, or any other Person for any reason whatsoever; (b) the occurrence
or continuance of a Default or Unmatured Default; (c) the occurrence of a
Material Adverse Effect or any adverse change in the condition (financial or
otherwise) of any other Person; (d) any breach of this Agreement by any
party; (e) any inability of the conditions precedent to borrowing set forth
in this Agreement to be satisfied on the date upon which any Swing Line Loan
is to be refunded or any participation interest therein is to be purchased;
or (f) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.27. EVIDENCE OF SWING LINE LOANS; TELEPHONIC NOTICES. (a) The
Swing Line Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Obligations of the Borrower to the
appropriate Lending Installation of such Swing Line Lender resulting from
each Swing Line Loan made by it from time to time, including the amounts of
principal thereof and interest thereon payable and paid to such Lending
Installation of the Swing Line Lender from time to time under this Agreement.
(b) The Agent shall maintain a Register pursuant to SECTION 13.3.2,
and a subaccount for the Swing Line Lender, in which Register and subaccount
(taken together) shall be recorded (i) the amount of each Swing Line Loan made
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to the Swing Line Lender in respect of
such Swing Line Loans, and (iii) the amount of any sum received by the Agent
hereunder from the Borrower in respect of such Swing Line Loans.
(c) The entries made in the Register, account and subaccount
maintained pursuant to PARAGRAPHS (a) and (b) of this SECTION 2.27 shall, to the
extent permitted by applicable law, be PRIMA FACIE evidence of the existence and
amounts of the Obligations of the Borrower therein recorded in respect of Swing
Line Loans; PROVIDED, that the failure of the Swing Line Lender or the 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 the Borrower to
repay the Swing Line Loans (and all other amounts owing with respect thereto) in
accordance with the terms of this Agreement.
(d) The Borrower hereby authorizes the Swing Line Lender and the
Agent to extend Swing Line Loans based on telephonic notices made by any person
or persons the Agent in good faith believes to be acting on behalf of the
Borrower, PROVIDED that the proceeds of such Swing Line Loans shall only be
credited to such account as the Borrower shall from time to time designate in a
notice delivered to the Agent and the Swing Line Lender executed by two
Authorized Officers. The Borrower agrees to deliver promptly to the Agent a
written confirmation, if such confirmation is requested by the Agent or the
Swing Line Lender, of each
47
telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the
Agent and the Swing Line Lender, the records of the Agent of the relevant
telephonic notice shall govern absent manifest error.
2.28. CONDITIONS TO SWING LINE LOANS. Notwithstanding any other
provision of this Agreement, the Swing Line Lender shall not be obligated to
make any Swing Line Loan (i) unless all of the conditions set forth in
ARTICLE IV applicable thereto shall have been satisfied and (ii) if a Default
or Unmatured Default would result therefrom.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. YIELD PROTECTION. If any change in law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
of any Lender or the L/C Issuer therewith,
(a) subjects any Lender or the L/C Issuer or any applicable Lending
Installation to any tax, duty, charge or withholding on or from payments due
from the Borrower or TLGI or any other Person obligated hereunder to any Lender
or the L/C Issuer (excluding taxation of the overall net income of any Lender or
the L/C Issuer or any applicable Lending Installation or other taxes in lieu of
such taxes imposed by the United States or any jurisdiction in which such Lender
or the L/C Issuer has its principal office or applicable Lending Installation or
is engaged in business), or changes the basis of taxation of payments to any
Lender or the L/C Issuer in respect of its Facility A Revolving Loans, Facility
B Revolving Loans, Swing Line Loans, Swing Line Interests, L/C Interests, L/C
Obligations or other amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with, or for the account of, or credit extended by, any Lender or the
L/C Issuer or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate applicable to
Fixed Rate Advances), or
(c) imposes any other condition the result of which is to increase
the cost to any Lender or the L/C Issuer or any applicable Lending Installation
of making, funding or maintaining loans or issuing or participating in letters
of credit or reduces any amount receivable by any Lender or the L/C Issuer or
any applicable Lending Installation in connection with loans or letters of
credit, or requires any Lender or the L/C Issuer or any applicable Lending
Installation to make any payment calculated by reference to the amount of loans
or letters of credit held, or interest received by it, by an amount deemed
material by such Lender or the L/C Issuer, as the case may be,
48
then, within 15 days of demand by such Lender or the L/C Issuer, the Borrower
shall pay such Lender or the L/C Issuer that portion of such increased expense
incurred or reduction in an amount received which such Lender or the L/C Issuer
determines is attributable to making, funding and maintaining its Facility A
Revolving Loans, Facility B Revolving Loans, Swing Line Loans, Swing Line
Interests, L/C Interests, the Letters of Credit, the L/C Obligations and its
Commitment (and in the case of the Swing Line Lender, its Swing Line Commitment,
and in the case of the L/C Issuer, its commitment to issue Letters of Credit).
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the L/C
Issuer determines that the amount of capital required or expected to be
maintained by such Lender or the L/C Issuer, any Lending Installation of such
Lender or any corporation controlling such Lender or the L/C Issuer is increased
as a result of a Change (as defined below in this SECTION 3.2), then, within 15
days of demand by such Lender or the L/C Issuer, the Borrower shall pay such
Lender or the L/C Issuer the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such Lender or
the L/C Issuer determines is attributable to this Agreement, its Facility A
Revolving Loans, Facility B Revolving Loans, Swing Line Loans, Swing Line
Interests, L/C Interests, the Letters of Credit, the L/C Obligations or its
obligation to make Facility A Revolving Loans, Facility B Revolving Loans (or in
the case of the Swing Line Lender, its obligations to make Swing Line Loans, or
in the case of the L/C Issuer, its commitment to issue Letters of Credit) or
participate in Swing Line Loans or Letters of Credit hereunder or to issue
Letters of Credit (after taking into account such Lender's or the L/C Issuer's
or such controlling corporation's policies as to capital adequacy). "CHANGE"
means (a) any change after the date of this Agreement in the Risk-Based Capital
Guidelines (as defined below in this SECTION 3.2) or (b) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the L/C Issuer or any
Lending Installation or any corporation controlling any Lender or the L/C
Issuer. "RISK-BASED CAPITAL GUIDELINES" means (a) the risk-based capital
guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (b) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive, whether or not having
the force of law, or if the Required Lenders determine that (a) deposits of a
type and maturity appropriate to match fund Fixed Rate Advances are not
available or (b) the interest rate applicable to a Type of Advance does not
accurately reflect the cost of making or maintaining such Advance, then the
Agent shall suspend the availability of the affected Type of Advance and require
any Fixed Rate Advances of the affected Type to be prepaid or converted into a
Floating Rate Advance.
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3.4. FUNDING INDEMNIFICATION. If (i) any payment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise (including,
without limitation, as a result of a mandatory prepayment of a Fixed Rate
Advance pursuant to SECTION 2.10.3 or 2.19), or (ii) as a result of an
assignment of a Lender's Commitment and its outstanding Revolving Loans, Swing
Line Interest and L/C Interest by operation of SECTION 2.18 or SECTION 3.5, a
Fixed Rate Advance made by the assigning Lender is assigned on a date which is
not the last day of the applicable Interest Period, or (iii) a Fixed Rate
Advance is not made, continued or converted on the date specified by the
Borrower for any reason other than default by the Lenders, or (iv) an optional
prepayment, notice of which has been given in accordance with SECTION 2.5, is
not made on the date specified therefor in such notice, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Fixed Rate Advance, or in liquidating
or terminating prior to scheduled maturity any foreign exchange contracts,
currency swaps or other similar hedging arrangements entered into in connection
with the Fixed Rate Advance.
3.5. MITIGATION; LENDER STATEMENTS; SURVIVAL OF INDEMNITY. (a) To
the extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Fixed Rate Loans to reduce any
liability of the Borrower to such Lender under SECTIONS 3.1 and 3.2 or to
avoid the unavailability of a Type of Advance under SECTION 3.3, so long as
such designation is not disadvantageous to such Lender. If the obligation of
the Lenders to make Eurodollar Advances has been suspended pursuant to SECTION
3.3, as a consequence of a determination by any Lender that maintenance of its
Eurodollar Loans at a suitable Lending Installation would violate any
applicable law or any Lender has demanded compensation under SECTION 3.1 or
3.2, the Borrower may elect (i) subject to SECTION 3.4, to prepay any
outstanding Advances to the extent necessary to mitigate its liability under
SECTION 3.1 or 3.2, (ii) to terminate the applicable Lender's Commitment
hereunder or (iii) to require the applicable Lender to assign its outstanding
Facility A Revolving Loans, Facility B Revolving Loans, Swing Line Interests,
L/C Interests and Commitment hereunder to another financial institution
designated by the Borrower and reasonably acceptable to the Agent; PROVIDED,
HOWEVER, that the Borrower may make the elections described in the foregoing
CLAUSES (i) and (ii) only at such times as no Default or Unmatured Default
shall have occurred and be continuing. The obligation of a Lender to assign
its rights and obligations hereunder or terminate its Commitment hereunder as
contemplated by this SECTION 3.5(a) is subject to the requirements that (x)
all amounts owing to that Lender under the Loan Documents (including, without
limitation, pursuant to SECTION 3.4) are paid in full upon the completion of
such assignment or prior to such termination and (y) any assignment is
effected in accordance with the terms of SECTION 13.3 and on terms otherwise
satisfactory to that Lender.
(b) Each Lender or the L/C Issuer, as the case may be, shall deliver
a written statement of such Person as to the amount due, if any, under SECTION
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail
the calculations upon which such Person determined such amount and shall be
final, conclusive and binding on the Borrower in the absence of
50
manifest error. Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as though each Lender
funded such Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
interest rate applicable to such Fixed Rate Loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount specified in the
written statement shall be payable on demand after receipt by the Borrower of
the written statement. The obligations of the Borrower under SECTIONS 3.1,
3.2 and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4. CONDITIONS PRECEDENT TO AMENDMENT AND RESTATEMENT. The
effectiveness of this Agreement and the consummation of the actions and deemed
actions contemplated by ARTICLE XVI hereof are subject to the satisfaction of
the conditions precedent set forth below in SECTIONS 4.1 and 4.2.
4.1. INITIAL ADVANCE, SWING LINE LOAN AND LETTER OF CREDIT. The
Lenders shall be obligated (subject to SECTION 4.2) to make the initial Facility
A Advance and the initial Facility B Advance and to purchase participations in
Swing Line Loans and the Letters of Credit hereunder, the L/C Issuer shall be
obligated (subject to SECTION 4.2) to issue the initial Letter of Credit
hereunder, and the Swing Line Lender shall be obligated (subject to SECTION 4.2)
to make the initial Swing Line Loan hereunder, only after (x) the Effective Date
shall have occurred, (y) the Agent shall have been paid in full for all fees,
costs and expenses payable by TLGI or the Borrower under this Agreement and the
other Loan Documents (including, without limitation, the fees and expenses of
Xxxxx, Xxxxx & Xxxxx, counsel for the Agent) to the extent then invoiced, and
(z) the Agent shall have received from the Borrower, with sufficient copies for
the Agent and each of the Lenders, each of the following items in form and
substance satisfactory to the Agent:
(a) copies of the articles of incorporation or comparable
constitutive documents of each of TLGI and the Borrower, together with all
amendments, and, to the extent applicable, a certificate of good standing, in
each case certified by the appropriate governmental officer in the relevant
jurisdiction of organization (except that the articles of incorporation and
comparable constitutive documents of each Pledgor Subsidiary instead may be
certified by the Secretary (or another authorized officer) of such Pledgor
Subsidiary), and copies of the by-laws (or any comparable constitutive laws,
rules or regulations) of each of TLGI and the Borrower as in effect on the
Effective Date certified by the Secretary, Assistant Secretary or other
appropriate officer or director of it;
(b) copies, certified by the Secretary, Assistant Secretary or other
appropriate officer or director of each of TLGI and the Borrower of its board of
directors' resolutions (and
51
resolutions of other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution and performance of the relevant Loan
Documents;
(c) incumbency certificates, executed by the Secretary or Assistant
Secretary or other appropriate officer or director of each of TLGI, the Borrower
and each Pledgor Subsidiary, which shall identify by name and title and bear the
signature of the officers of TLGI, the Borrower and such Pledgor Subsidiary
authorized to sign the relevant Loan Documents and to make borrowings and apply
for Letters of Credit hereunder, as applicable, upon which certificate the
Agent, the Lenders and the L/C Issuer shall be entitled to rely until informed
of any change in writing by TLGI, the Borrower or such Pledgor Subsidiary, as
applicable;
(d) a certificate, signed by the Chief Financial Officer, stating
that on the date hereof no Default or Unmatured Default has occurred and is
continuing;
(e) the following opinions of counsel to the Borrower, TLGI, the
other Guarantors and the Pledgor Subsidiaries regarding the matters set forth on
EXHIBIT B and such other matters as the Agent shall request:
(i) an opinion of Thelen, Marrin, Xxxxxxx & Bridges, United
States counsel to TLGI and the Borrower; and
(ii) an opinion of Xxxxxxx & XxXxxxxx, Canadian counsel to TLGI;
(f) the Collateral Trust Agreement;
(g) evidence satisfactory to the Agent that the Borrower's
Obligations in respect of Facility A Revolving Loans and Facility B Revolving
Loans will each qualify as Class A Secured Indebtedness under the Collateral
Trust Agreement, which evidence shall include (i) an opinion of Thelen, Marrin,
Xxxxxxx & Bridges confirming that Facility A Revolving Loans and Facility B
Revolving Loans will each qualify as Class A Secured Indebtedness under the
Collateral Trust Agreement, (ii) action of the Board of Directors of the
Borrower or TLGI designating the Facility A Revolving Loans and the Facility B
Revolving Loans as Class A Secured Indebtedness under the Collateral Trust
Agreement, and (iii) a duly completed and executed certificate in the form of
Exhibit A to the Collateral Trust Agreement; and
(h) such other documents as the Agent or any Lender or its counsel
may reasonably request.
4.2. EACH ADVANCE, SWING LINE LOAN AND LETTER OF CREDIT. The Lenders
shall not be required to make any Facility A Advance or any Facility B Advance
or to purchase participations in any Swing Line Loan or Letter of Credit, the
Swing Line Lender shall not be required to make any Swing Line Loan, and the L/C
Issuer shall not be required to issue any
52
Letter of Credit hereunder, unless on the applicable Revolving Loan Borrowing
Date, Swing Line Loan Borrowing Date or date for issuance of such Letter of
Credit (as applicable):
(a) there exists no Default or Unmatured Default;
(b) the representations and warranties contained in ARTICLE VI, the
Guaranties and the Collateral Trust Agreement are true and correct as of such
Revolving Loan Borrowing Date, Swing Line Loan Borrowing Date or date for
issuance of such Letter of Credit (as applicable) except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date, and except that from and after the Collateral Release
Date, this SECTION 4.2(b) shall not apply to the representations and warranties
set forth in the Pledgor Subsidiary Guaranties or in the Collateral Trust
Agreement;
(c) after giving effect to such Facility A Advance, the making of
such Swing Line Loan or the issuance of such Letter of Credit, the aggregate
outstanding principal amount of all Facility A Advances and Swing Line Loans and
the outstanding L/C Obligations does not exceed the Facility A Aggregate
Commitment (and, (i) in the case of Swing Line Loans, (x) the aggregate
outstanding principal amount of all such Swing Line Loans does not exceed
$10,000,000, and (y) the aggregate outstanding principal amount of all such
Swing Line Loans, together with the outstanding principal amount of all Facility
A Revolving Loans made by the Swing Line Lender in its capacity as a Lender and
the L/C Interest of the Swing Line Lender in its capacity as the L/C Issuer,
does not exceed the Facility A Commitment applicable to the Swing Line Lender in
its capacity as a Lender, and (ii) in the case of Letters of Credit, the
aggregate outstanding L/C Obligations do not exceed $300,000,000); and
(d) after giving effect to such Facility B Advance, the aggregate
outstanding principal amount of all Facility B Advances does not exceed the
Facility B Aggregate Commitment.
Each Revolving Loan Borrowing Notice with respect to an Advance, Swing Line Loan
Borrowing Notice with respect to a Swing Line Loan, and application with respect
to a Letter of Credit shall constitute a representation and warranty by the
Borrower that the conditions contained in SECTIONS 4.2(a), (b), (c) and (d) have
been satisfied.
ARTICLE V
TLGI GUARANTY
5.1. THE GUARANTY. TLGI hereby unconditionally and irrevocably
guarantees the due and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Facility A
Revolving Loan, Facility B Revolving Loan and Swing Line Loan made to, and of
each Reimbursement Obligation owing by, the Borrower
53
pursuant to this Agreement, and the due and punctual payment and performance
of all other Obligations (including, without limitation, interest accruing
following the filing of a bankruptcy petition by or against the Borrower, at
the applicable rate or rates specified herein, whether or not such interest
is allowed as a claim in bankruptcy). Upon failure by the Borrower to pay or
perform any Obligation, TLGI shall forthwith on demand pay or perform such
Obligation, at the place, in the manner and with the effect otherwise
specified in this Agreement. TLGI hereby agrees that its guaranty of the
Obligations pursuant to this ARTICLE V is an absolute guaranty of payment and
is not a guaranty of collection.
5.2. GUARANTY UNCONDITIONAL. The obligations of TLGI hereunder shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of the Borrower under this Agreement or any Letter
of Credit or the exchange, release or non-perfection of any collateral security
therefor (including, without limitation, the collateral pledged under the
Collateral Trust Agreement);
(b) any modification or amendment of or supplement to this Agreement,
any Letter of Credit, the Collateral Trust Agreement, or any other Loan
Document, or the termination of the Collateral Trust Agreement or the release of
any collateral pledged thereunder;
(c) any change in the corporate existence, structure or ownership of
the Borrower or any other Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower, any other
Subsidiary or their respective assets;
(d) the existence of any claim, set-off or other rights which TLGI
may have at any time against the Borrower, any other Guarantor, the Agent, any
Lender, the L/C Issuer or any other Person, whether in connection herewith or
with any unrelated transactions, PROVIDED that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability relating to or against the
Borrower or any Pledgor Subsidiary for any reason of any provision or all of
this Agreement, the Collateral Trust Agreement, or any other Loan Document, or
any provision of applicable law or regulation purporting to prohibit the payment
by the Borrower of the principal of or interest on any Revolving Loan or Swing
Line Loan or Reimbursement Obligation or the payment or performance by the
Borrower of any other Obligation hereunder or under any of the other Loan
Documents or the payment or performance by any Guarantor of any of its
obligations under any Guaranty; or
(f) any other act or omission to act or delay of any kind by the
Borrower, any other Guarantor, the Agent, any Lender, the L/C Issuer or any
other Person or any other
54
circumstance whatsoever which might, but for the provisions of this SECTION
5.2, constitute a legal or equitable discharge of TLGI's obligations
hereunder.
5.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. TLGI's obligations hereunder shall remain in full force and
effect until the principal of and interest on the Facility A Revolving Loans,
the Facility B Revolving Loans and the Swing Line Loans and all other
Obligations shall have been paid or performed in full and the Letters of Credit
shall have expired or otherwise been terminated and TLGI's obligations hereunder
shall survive the Facility A Termination Date and the Facility B Termination
Date. If at any time any payment of the principal of or interest on any
Facility A Revolving Loan, Facility B Revolving Loan or Swing Line Loan or
Reimbursement Obligation or any payment of any other Obligation hereunder is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person or otherwise,
TLGI's obligations hereunder with respect to such payment shall be reinstated at
such time as though such payment had been due but not made at such time.
5.4. WAIVER BY TLGI. TLGI irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any right be exhausted or any action be taken
by the Agent, any Lender, the L/C Issuer or any other Person against the
Borrower, any Guarantor or any other Person or any collateral security
(including, without limitation, the collateral pledged under the Collateral
Trust Agreement). In addition, the Lenders and the L/C Issuer, either
themselves or acting through the Agent, are hereby authorized, without notice or
demand and without affecting the liability of TLGI hereunder, from time to time,
(a) to renew, extend, accelerate or otherwise change the time for payment of, or
other terms relating to, all or any part of the Obligations, or to otherwise
modify, amend or change the terms of any of the Loan Documents; (b) to accept
partial payments on all or any part of the Obligations; (c) to take and hold
security or collateral (including, without limitation, the collateral pledged
under the Collateral Trust Agreement) for the payment of all or any part of the
Obligations, TLGI's obligations hereunder or any other guaranties of all or any
part of the Obligations or other liabilities of the Borrower; (d) to exchange,
enforce, waive and release any such security or collateral; (e) to apply such
security or collateral and direct the order or manner of sale thereof as in
their discretion they may determine; and (f) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all or any part of
the Obligations, TLGI's obligations hereunder, any other guaranty of all or any
part of the Obligations and any security or collateral for the Obligations or
for any such guaranty. Any of the foregoing may be done in any manner, without
affecting or impairing the obligations of TLGI hereunder.
5.5. WAIVER OF SUBROGATION RIGHTS. Until all Obligations shall have
been indefeasibly paid in full, the Commitments shall have terminated and all of
the Letters of Credit shall have expired or otherwise been terminated, TLGI
hereby waives all rights of subrogation (whether contractual, under Section 509
of the United States Bankruptcy Code, as amended, or otherwise) to the claims of
the Lenders, the L/C Issuer and the Agent against the Borrower and
55
all contractual, statutory or common law rights of reimbursement,
contribution or indemnification from the Borrower and all "claims" (as such
term is defined in the United States Bankruptcy Code, as amended) against the
Borrower, which, in any such case, may otherwise have arisen in connection
with this Agreement and the other Loan Documents.
5.6. STAY OF ACCELERATION. In the event that acceleration of the time
for payment of any of the Obligations hereunder is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person, all such
Obligations otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by TLGI hereunder forthwith on demand by the Agent
for the account of the Lenders, the L/C Issuer and the Agent.
5.7. GROSS-UP. All payments made by TLGI under this ARTICLE V shall
be made in full, without set-off or counterclaim, and free of and without
deduction or withholding for or on account of any present or future tax, duty,
assessment, impost, levy or other similar charge, or any penalties, fines or
interest thereon (a "RELEVANT TAX") imposed upon TLGI, the Borrower, the Agent,
any Lender or the L/C Issuer by the government of Canada (or any Governmental
Authority thereof), the government of the United States of America (or any
Governmental Authority thereof) or by the government of any other country or
jurisdiction (or any Governmental Authority thereof) from or through which
payments hereunder are actually made (each a "TAXING JURISDICTION"). TLGI, for
the benefit of the Agent, the Lenders and the L/C Issuer, agrees that in the
event any payments made by TLGI hereunder are subject to any deduction or
withholding for or on account of any Relevant Tax, TLGI will pay to the Agent,
such Lender or the L/C Issuer such additional amounts as may be necessary in
order that the net amounts paid to the Agent, such Lender or the L/C Issuer
pursuant to the terms of this ARTICLE V after imposition of any such Relevant
Tax (including deductions or withholdings applicable to additional amounts paid
under this SECTION 5.7) shall be not less than the amounts specified in this
ARTICLE V to be then due and payable, except that no such additional amounts
shall be payable hereunder to the Agent, any Lender or the L/C Issuer that is
liable for such Relevant Tax in respect of the relevant payment solely by reason
of such recipient (a) having a permanent establishment in the Taxing
Jurisdiction, (b) being organized under the laws of the Taxing Jurisdiction or
any political subdivision thereof, (c) being resident in the Taxing Jurisdiction
by virtue of its domicile or place of management being in the Taxing
Jurisdiction, or (d) having failed to comply with the terms and conditions of
SECTION 2.17(a) applicable to it. If the Agent, any Lender or the L/C Issuer
pays any amount in respect of Relevant Tax, TLGI shall indemnify the Agent, the
Lender or the L/C Issuer, as the case may be, for such payment within 15 days of
demand therefor by the Agent, such Lender or the L/C Issuer (in the case of such
Lender or the L/C Issuer, made through the Agent).
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6. REPRESENTATIONS AND WARRANTIES. Each of TLGI and, with respect
to itself and its Subsidiaries, the Borrower represents and warrants to the
Lenders and the L/C Issuer that:
6.1. CORPORATE EXISTENCE AND STANDING. Each of TLGI, the Borrower and
the other Subsidiaries is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation and has all
requisite authority to conduct its business in each jurisdiction wherein such
qualification is required, except to the extent that, in the case of any
Subsidiary other than the Borrower or any Pledgor Subsidiary, the failure to be
in good standing or authorized to conduct business in any jurisdiction could
not, when taken together with all similar failures by such Subsidiary and each
other Subsidiary, reasonably be expected to have a Material Adverse Effect.
6.2. AUTHORIZATION AND VALIDITY. Each of TLGI, the Borrower and each
other Guarantor has the corporate power and authority and legal right to execute
and deliver the Loan Documents to which it is party and to perform its
obligations thereunder. The execution and delivery by each of TLGI, the
Borrower and each other Guarantor of the Loan Documents to which it is party and
the performance of its obligations thereunder have been duly authorized by
proper corporate proceedings, and each Loan Document to which TLGI, the Borrower
or any other Guarantor is party constitutes the legal, valid and binding
obligation of TLGI, the Borrower or such other Guarantor, as applicable,
enforceable against TLGI, the Borrower or such other Guarantor, as applicable,
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and general principles of equity, regardless of whether the
application of such principles is considered in a proceeding in equity or at
law.
6.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by each of TLGI, the Borrower and each other Guarantor of the Loan
Documents to which it is party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof, will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
TLGI, the Borrower or any Subsidiary or TLGI's, the Borrower's or any
Subsidiary's articles of incorporation or by-laws or comparable constitutive
documents or the provisions of any indenture, instrument or agreement to which
TLGI, the Borrower or any Subsidiary is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default thereunder,
or result in the creation or imposition of any Lien in, of or on the Property of
TLGI, the Borrower or any Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents, except for consents,
approvals, authorizations and
57
filings which have already been duly obtained and made and which remain valid
and in full force and effect.
6.4. FINANCIAL STATEMENTS. Each of (a) the December 31, 1996,
consolidated financial statements of TLGI and its Subsidiaries and (b) the
December 31, 1996, consolidated financial statements of the Borrower and its
Subsidiaries, heretofore delivered to the Lenders, were prepared in accordance
with GAAP in effect on the date such statements were prepared and fairly present
the consolidated financial condition and operations of TLGI and its Subsidiaries
and of the Borrower and its Subsidiaries, respectively, at the date thereof and
the consolidated results of their respective operations for the period then
ended.
6.5. MATERIAL ADVERSE CHANGE. Since December 31, 1996, there has been
no change in the business, Property, prospects, financial condition or results
of operations of TLGI and its Subsidiaries (taken as a whole) or of the Borrower
and its Subsidiaries (taken as a whole) which could reasonably be expected to
have a Material Adverse Effect.
6.6. TAXES. All income tax returns required to be filed by TLGI, the
Borrower or any Subsidiary in any jurisdiction have, in fact, been filed, all
such tax returns have been prepared in accordance with applicable laws and all
taxes, assessments, fees and other governmental charges upon TLGI, the Borrower
or any Subsidiary or upon any of their respective properties, income or
franchises which are shown on such returns have been paid. For all taxable
years ending on or before December 31, 1989, the United States Federal income
tax liability of TLGI, the Borrower and the other Subsidiaries has been
satisfied and either the period of limitations on assessment of additional
United States Federal income tax has expired or TLGI, the Borrower or the
applicable other Subsidiary has entered into an agreement with the United States
Internal Revenue Service closing conclusively the total tax liability for the
taxable year. None of TLGI, the Borrower and the other Subsidiaries knows of
any proposed additional tax assessment against it or any of them for which
adequate provision has not been made on its or their accounts, and no material
controversy in respect of additional income or other taxes due or claimed to be
due to any Governmental Authority is pending or to the knowledge of TLGI, the
Borrower or the other Subsidiaries threatened. The charges, accruals and
reserves on the books of TLGI, the Borrower and the other Subsidiaries in
respect of any taxes or other governmental charges are adequate.
6.7. LITIGATION AND CONTINGENT LIABILITIES. Except as set forth on
SCHEDULE 1 hereto (but only to the extent described thereon), there is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting TLGI, the Borrower or any other Subsidiary which could have a Material
Adverse Effect, or for which there is a reasonable likelihood that TLGI, the
Borrower or any other Subsidiary would make a payment, whether in settlement or
otherwise, in excess of $50,000,000. Other than any liability incident to such
litigation, arbitration or proceedings, none of TLGI, the Borrower or any other
Subsidiary has any material contingent liabilities not provided for or disclosed
in the financial statements referred to in SECTION 6.4.
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6.8. SUBSIDIARIES; PLEDGE OF STOCK. SCHEDULE 1 hereto, together with
the most recent update, if any, delivered pursuant to SECTION 7.1(k), contains
an accurate list of all of the Subsidiaries (except for inactive Subsidiaries
with immaterial assets and liabilities) of each of TLGI and the Borrower,
setting forth their respective jurisdictions of incorporation and the percentage
of their respective capital stock owned by TLGI, the Borrower or other
Subsidiaries; PROVIDED, HOWEVER, that as of the Restatement Effective Date
SCHEDULE 1 reflects such Subsidiaries only to the extent acquired on or before
September 15, 1997. All of the issued and outstanding shares of capital stock
of the Subsidiaries of TLGI and the Borrower listed on SCHEDULE 1 hereto,
together with the most recent update, if any, delivered pursuant to SECTION
7.1(k), have been duly authorized and issued and are fully paid and non-
assessable and have been duly and validly pledged under the Collateral Trust
Agreement and delivered to the Collateral Agent pursuant to the terms of the
Collateral Trust Agreement; PROVIDED, HOWEVER, that as of the Restatement
Effective Date such shares of capital stock of such Subsidiaries which are
designated with an asterisk on SCHEDULE 1 need not have been duly and validly
pledged under the Collateral Trust Agreement and delivered to the Collateral
Agent pursuant to the terms of the Collateral Trust Agreement.
6.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither TLGI, the Borrower nor any
other member of the Controlled Group has incurred, or is reasonably expected to
incur, any withdrawal liability to Multiemployer Plans in excess of $5,000,000
in the aggregate. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan, none of TLGI, the Borrower or any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan. No contribution
failure has occurred with respect to any Single Employer Plan sufficient to give
rise to a lien under section 302(f) of ERISA. Each Canadian Plan is registered
under, and is in compliance with, the Income Tax Act (Canada), applicable
provincial pensions legislation and all other applicable requirements of law and
regulations and all reports, returns and filings required to be made thereunder
have been made. The Canadian Plans have been at all times administered in
accordance with their terms and the provisions of all applicable requirements of
law and regulations. There are no unfunded liabilities under the Canadian Plans
and, without limiting the generality of the foregoing, there is no going concern
unfunded actuarial liability, past service unfunded actuarial liability or
solvency deficiency. Neither TLGI nor any Subsidiary has received any payment
of surplus from any of the Canadian Plans, other than payments received after
January 1, 1988 with the approval of all necessary pension regulatory and
taxation authorities.
6.10. ACCURACY OF INFORMATION. No written information, exhibit or
report prepared and furnished by TLGI, the Borrower or any other Subsidiary to
the Agent, any Lender or the L/C Issuer in connection with the negotiation of,
or compliance with, the Loan Documents contained any material misstatement of
fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
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6.11. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of TLGI and the Borrower and other
Subsidiaries which are subject to any limitation on sale, pledge or other
restriction hereunder or under any other Loan Document. None of the
execution, delivery and performance of this Agreement and the other Loan
Documents by TLGI, the Borrowers, the other Guarantors and the Pledgor
Subsidiaries will violate Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System.
6.12. MATERIAL AGREEMENTS. None of TLGI, the Borrower or any
Subsidiary is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement to
which it is a party, which default could have a Material Adverse Effect.
6.13. COMPLIANCE WITH LAWS. TLGI, the Borrower and the other
Subsidiaries have complied in all material respects with all applicable
statutes, rules, regulations, orders and restrictions of any Governmental
Authority having jurisdiction over the conduct of their respective businesses
or the ownership of their respective Property the failure with which to
comply could have a Material Adverse Effect. None of TLGI, the Borrower or
any Subsidiary has received any notice to the effect that, or is otherwise
aware that, its operations are not in material compliance with any of the
requirements of applicable environmental, health and safety statutes and
regulations of any Governmental Authority or the subject of any investigation
by any Governmental Authority evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance
into the environment, which non-compliance or remedial action could have a
Material Adverse Effect.
6.14. OWNERSHIP OF PROPERTIES. Except as set forth on SCHEDULE 1
hereto, on the date of this Agreement, each of TLGI, the Borrower and each
other Subsidiary has good title, free of all Liens other than those permitted
by SECTION 7.18, to all of the Property and assets reflected as owned by it
in the financial statements delivered from time to time pursuant hereto.
6.15. INVESTMENT COMPANY ACT. None of TLGI, the Borrower or any
other Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
6.16. PUBLIC UTILITY HOLDING COMPANY ACT. None of TLGI, the
Borrower or any other Subsidiary is a "holding company" or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
6.17. POST-RETIREMENT BENEFITS. The present value of the expected
cost of post-retirement medical and insurance benefits payable by TLGI, the
Borrower and the other Subsidiaries to their employees and former employees,
as estimated by TLGI in accordance with procedures and assumptions specified
by the Required Lenders, or in the absence of such specification, deemed
prudent and reasonable by TLGI, does not exceed $1,000,000.
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6.18. NEGATIVE PLEDGE. None of TLGI, the Borrower nor any
Subsidiary of TLGI or the Borrower is party to any contract or other
arrangement under the terms of which TLGI, the Borrower or any such
Subsidiary is restricted from (i) performing its respective obligations under
the Collateral Trust Agreement or any other Loan Document to which it is a
party or (ii) providing a guaranty to the Agent, the Collateral Agent, the
Lenders or the L/C Issuer.
6.19. SOLVENCY. On the date of this Agreement, on the Effective
Date, and immediately prior to and after giving effect to the issuance of
each Letter of Credit and the making of each Advance and Swing Line Loan
hereunder and the application of the proceeds of each Advance and Swing Line
Loan, each of TLGI, the Borrower and each Pledgor Subsidiary is solvent, is
able to pay its debts as they mature, owns property with fair saleable value
greater than the amount required to pay its debts and has capital sufficient
to carry on its business as then constituted.
6.20. EXISTING LETTERS OF CREDIT. The Letters of Credit
identified on SCHEDULE 4 hereto were issued pursuant to the terms of the
Original Agreement and, as of the date of this Agreement, remain outstanding
in the maximum amounts available to be drawn and with the expiry dates
specified thereon, and no other Letters of Credit (as defined in the Original
Agreement) issued under the Original Agreement remain outstanding as of the
date of this Agreement.
6.21. NO DEFAULT. No Default or Unmatured Default (each term used
as defined in the Original Agreement) has occurred and is continuing as of
the date of this Agreement which has not been duly waived by the Lenders (as
defined in the Original Agreement) under the terms of the Original Agreement.
ARTICLE VII
COVENANTS
7. COVENANTS. During the term of this Agreement, unless the
Required Lenders shall otherwise consent in writing, TLGI and the Borrower
shall perform, and cause to be performed, the following:
7.1. FINANCIAL REPORTING. TLGI will maintain, and cause the
Borrower and each other Subsidiary to maintain, a system of accounting
established and administered in accordance with GAAP, and will furnish or
cause to be furnished to the Lenders:
(a) (i) within 120 days after the close of each of TLGI's fiscal
years, (x) together with an unqualified (except for qualifications relating
to changes in accounting principles or practices reflecting changes in GAAP
and required or approved by TLGI's independent chartered accountants or
independent public accountants) audit report certified by
61
independent chartered accountants or independent public accountants,
acceptable to the Lenders, consolidated financial statements of TLGI prepared
in accordance with Agreement Accounting Principles on a consolidated basis
for itself and its Subsidiaries, including balance sheets as of the end of
such period, related statements of profit and loss, retained earnings and
changes in financial position, accompanied by a review engagement report of
said accountants in accordance with the standards of Section 8600 of the CICA
Handbook stating that, in connection with the foregoing, they have obtained
no knowledge of any failure of TLGI or its Subsidiaries to comply with the
requirements specified in each of SECTIONS 7.10 through 7.25, or if, in the
opinion of such accountants, TLGI or any of its Subsidiaries has failed to
comply with the requirements specified in any such Section, stating the
nature and status of such failure, and (y) consolidating financial statements
of TLGI certified by the Chief Financial Officer that separately present
TLGI's Canadian operations, United States operations and other material
financial operations prepared in accordance with Agreement Accounting
Principles, including balance sheets as of the end of such period, and
related statements of profit and loss, retained earnings and changes in
financial position; and (ii) within 180 days after the close of each of
TLGI's fiscal years, the management letter prepared by the applicable
accountants in connection with the financial statements for such fiscal year
delivered pursuant to the foregoing CLAUSE (i)(x);
(b) (i) within 120 days after the close of each of the Borrower's
fiscal years, together with an unqualified (except for qualifications
relating to changes in accounting principles or practices reflecting changes
in GAAP and required or approved by the Borrower's independent chartered
accountants or independent public accountants) audit report certified by
independent chartered accountants or independent public accountants,
acceptable to the Lenders, consolidated financial statements of the Borrower
prepared in accordance with Agreement Accounting Principles on a consolidated
basis for itself and its Subsidiaries, including balance sheets as of the end
of such period, and related statements of profit and loss, retained earnings
and changes in financial position;
(c) within 60 days after the close of each of the first three
quarterly periods of each of TLGI's fiscal years, for TLGI and its
Subsidiaries, consolidated unaudited balance sheets as at the close of such
period and consolidated statements of profit and loss, retained earnings and
changes in financial position for the period from the beginning of such
fiscal year to the end of such period, all certified by the Chief Financial
Officer;
(d) within 60 days after the close of each of the first three
quarterly periods of each of the Borrower's fiscal years, for the Borrower
and its Subsidiaries, consolidated unaudited balance sheets as at the close
of such period and consolidated statements of profit and loss, retained
earnings and changes in financial position for the period from the beginning
of such fiscal year to the end of such period, all certified by the Chief
Financial Officer;
(e) together with the financial statements required pursuant to
the foregoing CLAUSES (a), (b), (c) and (d), a compliance certificate in
substantially the form of EXHIBIT C hereto signed by the Chief Financial
Officer showing in reasonable detail the calculations necessary to
62
determine compliance with this Agreement, stating that no Default or
Unmatured Default exists or if any Default or Unmatured Default exists,
stating the nature and status thereof, and otherwise providing the
information required thereby;
(f) within 270 days after the close of each fiscal year of TLGI, a
statement of the Unfunded Liabilities of each Single Employer Plan, certified
as correct by an actuary enrolled under ERISA;
(g) as soon as possible and in any event within ten days after
TLGI or the Borrower knows that any Reportable Event has occurred with
respect to any Plan or that a withdrawal has occurred from any Multiemployer
Plan, the occurrence of either of which may reasonably be expected to give
rise to a Material Adverse Effect, or that a contribution failure has
occurred with respect to any Single Employer Plan sufficient to give rise to
a lien under section 302(f) of ERISA, a statement, signed by the Chief
Financial Officer, describing said Reportable Event or contribution failure
and the action which TLGI and the Borrower propose to take with respect
thereto;
(h) as soon as possible and in any event within 30 days after
receipt by TLGI or any of its Subsidiaries, a copy of (i) any notice or claim
to the effect that TLGI or any of its Subsidiaries is or may reasonably be
expected to be liable for $2,000,000 or more of potential liability (when
aggregated with other similar potential liability) to any Person as a result
of the release by TLGI, any of its Subsidiaries or any other Person of any
toxic or hazardous waste or substance into the environment and (ii) any
notice alleging any violation of any federal, state or local environmental,
health or safety law or regulation by TLGI or any of its Subsidiaries, which
violation could reasonably be expected to give rise to a Material Adverse
Effect;
(i) promptly upon the furnishing thereof to the shareholders of
TLGI, copies of all financial statements, reports and proxy statements so
furnished;
(j) promptly upon their becoming available, one copy of each
financial statement, report, notice or proxy statement sent by TLGI or the
Borrower to stockholders generally (excluding those statements, reports and
notices sent by the Borrower to TLGI which are not sent to TLGI solely in its
capacity as a stockholder) and of each regular report and any registration
statement or prospectus filed by TLGI, the Borrower or any other Subsidiary
with the Ontario Securities Commission, the Toronto Stock Exchange, the
British Columbia Securities Commission, the United States Securities and
Exchange Commission or any successor agency to any of the foregoing or any
other Canadian or United States federal or state or provincial securities
exchange or securities trading system or with any United States or Canadian
national stock exchange and one copy of each periodic report filed by TLGI
with any Canadian regulatory authority, in all cases without duplication;
PROVIDED, HOWEVER, that neither TLGI nor the Borrower shall be obligated to
provide to the Lenders routine reports which are required to be provided to
any of the above-listed entities concerning the management of employee
benefit
63
plans, including, without limitation, stock purchases or the exercise of
stock options made under any such employee benefit plan;
(k) together with the financial statements delivered pursuant to
SECTION 7.1(a), a current list of all of the Subsidiaries of each of TLGI and
the Borrower, setting forth their respective jurisdictions of incorporation,
the percentage of their respective capital stock owned by TLGI, the Borrower
and the other Subsidiaries, and the net worth (after adjustments for
intercompany balances) determined by TLGI on a consistent basis of each such
Subsidiary as of a date reasonably proximate to the date of such list (which
list shall note with respect to each Subsidiary any changes of greater than
$5,000,000 in such net worth of such Subsidiary since the date of the last
list of Subsidiaries delivered pursuant to this SECTION 7.1(k));
(l) so long as the WLSP Contingent Obligation shall be
outstanding, together with the financial statements delivered pursuant to
SECTIONS 7.1(a), 7.1(b), 7.1(c) and 7.1(d), a report specifying the Class B
Invested Amount as of the end of such calendar quarter;
(m) together with the financial statements delivered pursuant to
SECTIONS 7.1(a), (b), (c) and (d), a summary prepared by an Authorized
Officer of TLGI setting forth the status of all Acquisitions by TLGI, the
Borrower or any of their respective Subsidiaries for which (i) a letter of
intent (or other documentation evidencing the intent of the parties to
proceed with such Acquisition, including, without limitation, a definitive
purchase agreement) has been executed by the parties during the period
covered by such financial statements and continuing through the date of such
summary, or (ii) such Acquisition has closed or otherwise been consummated
during the period covered by such financial statements and continuing through
the date of such summary, which summary shall include (x) a statement of the
aggregate consideration paid to date and expected to be paid at any time
thereafter in connection with such Acquisitions, calculated separately for
the matters described in the foregoing CLAUSES (i) and (ii), and (y) a list
of all Acquisitions for which a provision subjecting the parties to
arbitration was not contained in the documentation governing the Acquisition;
(n) together with the financial statements delivered pursuant to
SECTIONS 7.1(a), (b), (c) and (d), a detailed summary prepared by an
Authorized Officer of TLGI (x) specifying all committed lines of credit to
which any of TLGI, the Borrower or any Subsidiary of TLGI or the Borrower is
party as of the date of such summary, identifying the total commitment and
total outstandings under each such line of credit and the purpose thereof,
and stating whether such lines of credit are purportedly secured under the
terms of the Collateral Trust Agreement or otherwise, and (y) identifying
each Finance Subsidiary which has been formed since the date of the last
summary delivered pursuant to this SECTION 7.1(n), and describing any
material changes in the capitalization, assets, or business and activities of
each Finance Subsidiary since the date of the last summary delivered pursuant
to this SECTION 7.1(n); and
(o) promptly, such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
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7.2. USE OF PROCEEDS. The Borrower will, and will cause each of
its Subsidiaries to, use the proceeds of the Advances and the Swing Line
Loans to repay all Indebtedness identified on Annex 1 of SCHEDULE 1 hereto
under the heading "Indebtedness to be Paid", to repay Advances and Swing Line
Loans, to make Permitted Acquisitions or for general corporate and working
capital purposes. The Borrower will not, nor will it permit any of its
Subsidiaries to, use any of the proceeds of the Advances or the Swing Line
Loans to purchase or carry any "margin stock" (as defined in Regulation U).
TLGI will not, nor will it permit any Subsidiary, to use proceeds of the
Advances or the Swing Line Loans other than as contemplated in this SECTION
7.2.
7.3. NOTICES OF DEFAULT, LITIGATION, ETC. TLGI and the Borrower
will give notice in writing to the Lenders of the occurrence of (a) any
Default or Unmatured Default, (b) any payment, or any group of payments
(whether or not related), whether in settlement or otherwise, in excess of
$50,000,000, which at any time are expected to be made at or after such time
by TLGI, the Borrower or any Subsidiary in connection with any litigation,
arbitrations, governmental investigations, proceedings or inquiries, whether
individually or in the aggregate (it being understood that TLGI and the
Borrower, in lieu of separately identifying each such expected payment, may
group such payments to the extent deemed necessary to protect
confidentiality), (c) any development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect, and (d) any change
in the practices and procedures of TLGI and the Borrower in effect on the
date of this Agreement regarding acquisitions and litigation (which practices
and procedures have been described prior to the date of this Agreement by
representatives of TLGI and the Borrower to the Agent and the Lenders) which
notice, in each of the foregoing cases, shall be given promptly and in any
event within five Business Days after TLGI, the Borrower or the relevant
Subsidiary becomes aware of the Default, Unmatured Default, payment,
development, determination or change. Together with the financial statements
delivered pursuant to SECTIONS 7.1(a), (b), (c) and (d), TLGI and the
Borrower shall provide to the Agent (with sufficient copies for each Lender)
a report, prepared as of the last day of each calendar quarter, (x)
identifying in reasonable detail all litigation, arbitrations, governmental
investigations and proceedings pending or, to the knowledge of any Authorized
Officer, threatened against or affecting TLGI, the Borrower or any other
Subsidiary for which the claim or matter involves an amount in excess of
$1,000,000, (y) for all such litigation, arbitrations, governmental
investigations and proceedings for which the claim or matter involves an
amount in excess of $10,000,000, briefly summarizing the matter (including
whether resolution of the matter could come before a jury), identifying the
relief sought and the amount of the claim, and specifying whether the claim
is covered by insurance, and (z) identifying in reasonable detail each
payment in excess of $1,000,000 made during such calendar quarter, or
expected to be made thereafter, in settlement of, or otherwise in
satisfaction of, any litigation, arbitrations, governmental investigations,
proceedings or inquiries. TLGI and the Borrower agree to discuss with the
Agent and the Lenders, upon the request of the Agent or any Lender, the
status of any litigation, arbitrations, governmental investigations,
proceedings and inquiries and any settlements thereof.
65
7.4. CONDUCT OF BUSINESS. TLGI and the Borrower will, and will
cause each respective Subsidiary of it to, carry on and conduct its business
in substantially the same manner and in substantially the same fields of
enterprise as it is conducted on the date of this Agreement and to do all
things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction
in which its business requires it to be so authorized. Nothing in this
SECTION 7.4 shall prohibit any merger, amalgamation, or consolidation which
is permitted by SECTION 7.12.
7.5. TAXES. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside
in accordance with GAAP.
7.6. INSURANCE. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and
covering such risks as is customary in the industries in which TLGI, the
Borrower and such Subsidiaries are engaged and which is consistent with sound
business practice; PROVIDED, HOWEVER, that, in any event, TLGI and the
Borrower will maintain, and cause each respective Subsidiary of it to
maintain, at all times insurance which, in the aggregate, is not materially
less comprehensive in scope and policy amount than the insurance maintained
by them collectively as of the date hereof. TLGI and the Borrower will
furnish to any Lender upon request from time to time full information as to
the insurance carried.
7.7. COMPLIANCE WITH LAWS. TLGI and the Borrower will, and will
cause each respective Subsidiary of it to, comply in all material respects
with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it or its Properties may be subject.
7.8. MAINTENANCE OF PROPERTIES. TLGI and the Borrower will, and
will cause each respective Subsidiary of it to, do all things necessary to
maintain, preserve, protect and keep its Property in good repair, working
order and condition, ordinary wear and tear excepted, and make all necessary
and proper repairs, renewals and replacements so that its business carried on
in connection therewith may be properly conducted at all times.
7.9. INSPECTION. TLGI and the Borrower will, and will cause each
respective Subsidiary of it to, permit the Agent and any or each Lender, by
its respective representatives and agents, to inspect any of the Property,
corporate books and financial records of TLGI, the Borrower and each such
Subsidiary, to examine and make copies of the books of accounts and other
financial records of TLGI, the Borrower and each such Subsidiary, and to
discuss the affairs, finances and accounts of TLGI, the Borrower and each
such Subsidiary with, and to be
66
advised as to the same by, their respective officers at such reasonable times
and intervals as the Agent or such Lender may designate.
7.10. DISTRIBUTIONS. TLGI and the Borrower will not, nor will
either permit any Subsidiary of it to, declare or make or incur any liability
to make any Distribution, except:
(a) dividends payable in the capital stock of TLGI, the Borrower
or such Subsidiary;
(b) Distributions to TLGI, a Regional Partner or a Wholly-Owned
Subsidiary of TLGI or a Regional Partner;
(c) Distributions made by an SPV to TLGI, the Borrower or a
Subsidiary in connection with a Permitted Receivables Securitization; and
(d) other Distributions (in addition to those described in the
foregoing CLAUSES (A) and (B)) so long as, immediately after giving effect to
the declaration thereof in the case of dividends or the making thereof in the
case of other proposed Distributions (the date of such event being referred
to hereinafter as the "DISTRIBUTION DATE"), (i) the aggregate amount of
Distributions declared in the case of dividends or made in the case of other
Distributions pursuant to this CLAUSE (D), during the period from and after
January 1, 1996, to and including the Distribution Date, would not exceed the
Consolidated Distributable Amount as of the Distribution Date, and (ii) no
Default or Unmatured Default shall have occurred and be continuing.
For the purposes of making the foregoing computations, the amount of any
Distribution declared, paid or distributed in property or assets of TLGI or
the Borrower or any other Subsidiary shall be deemed to be the greater of the
book value or Fair Value (as determined in good faith by the board of
directors of TLGI) of such property or assets as of the date of declaration
in the case of a dividend and the date of payment in the case of any other
Distribution.
7.11. INDEBTEDNESS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, create, incur or suffer to exist any
Indebtedness, except:
(a) the Facility A Revolving Loans, the Facility B Revolving
Loans, the Swing Line Loans and the L/C Obligations;
(b) Indebtedness (i) existing as of the close of business on June
30, 1997, and described in SCHEDULE 1 hereto or (ii) incurred on or after July
1, 1997, but only to the extent expressly described on SCHEDULE 1 hereto;
(c) Rentals other than Capitalized Lease Obligations and Synthetic
Lease Obligations;
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(d) Indebtedness of TLGI, the Borrower or any Subsidiary of TLGI
owing to TLGI, the Borrower or any Subsidiary of TLGI;
(e) subject to the final paragraph of this SECTION 7.11 (measured
at the time of initial investment by a purchaser or other investor in
Receivables Program Assets, but not at the time of reinvestment of proceeds
thereof in other Receivables Program Assets), Indebtedness of TLGI, the
Borrower or any Subsidiary in connection with a Permitted Receivables
Securitization;
(f) subject to the final paragraph of this SECTION 7.11,
additional Indebtedness of any Subsidiaries of TLGI (other than the
Borrower), provided that such Indebtedness, when added to the aggregate
outstanding Indebtedness of all such Subsidiaries which is described on
SCHEDULE 1 hereto, does not at any time exceed 10.0% of Consolidated Net
Worth at such time; and
(g) subject to the final paragraph of this SECTION 7.11,
additional Indebtedness issued or incurred by TLGI or the Borrower, provided
that after giving effect thereto and to the application of the proceeds
thereof, Consolidated Indebtedness would not exceed 60% of Consolidated
Capitalization.
Notwithstanding the foregoing, but subject to the last two sentences
of this paragraph, any Indebtedness otherwise permitted under any of the
foregoing SECTIONS 7.11(e), (f) and (g) shall not be permitted unless at the
time of the incurrence of such Indebtedness, and after giving PRO FORMA effect
thereto, the Borrower and TLGI will be in compliance with Section 4.07 of the
Indenture dated as of March 20, 1996, among the Borrower, TLGI and Fleet
National Bank of Connecticut, as Trustee, relating to the Borrower's
$500,000,000 Senior Guaranteed Notes, as such Indenture may be amended,
modified, supplemented or waived from time to time. (The acquisition by TLGI
or any of its Subsidiaries of a new Subsidiary which is obligated in respect
of any Indebtedness shall be deemed for purposes of this Section to be the
incurrence of such Indebtedness by such new Subsidiary on the date it becomes
a Subsidiary of TLGI.) During any period of time that (i) the ratings
assigned to the senior unsecured and unenhanced (other than, if applicable,
pursuant to the Collateral Trust Agreement) long-term Indebtedness of TLGI by
each of Standard & Poor's and Xxxxx'x (collectively, the "RATING AGENCIES")
are no less than BBB- and Baa3, respectively (the "INVESTMENT GRADE RATINGS"),
and (ii) no Default or Unmatured Default has occurred and is continuing, the
restriction contained in the first sentence of this paragraph shall not be
applicable. If one or both Rating Agencies withdraws its rating or downgrades
its Investment Grade Rating, then thereafter the restriction contained in the
first sentence of this paragraph shall be applicable on a prospective basis
until both of the Rating Agencies thereafter assign Investment Grade Ratings
to the senior unsecured and unenhanced (other than, if applicable, pursuant to
the Collateral Trust Agreement) long-term Indebtedness of TLGI.
7.12. MERGER. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, merge, amalgamate or consolidate with or into
any other Person, except that
68
(a) a Subsidiary (other than the Borrower) may merge with TLGI, the Borrower,
a Regional Partner or a Wholly-Owned Subsidiary of TLGI or a Regional
Partner, subject to the further condition that if TLGI or the Borrower is a
party to any such permitted merger, TLGI or the Borrower, as applicable,
shall be the surviving corporation and (b) a Regional Partner or a
Wholly-Owned Subsidiary of TLGI or a Regional Partner incorporated under the
laws of Canada or any Province thereof may amalgamate with another Regional
Partner or Wholly-Owned Subsidiary of TLGI or a Regional Partner incorporated
under the laws of Canada or any Province thereof, it being understood that
neither TLGI nor the Borrower may so amalgamate.
7.13. SALE OF ASSETS. TLGI and the Borrower will not, nor will
either permit any Subsidiary of it to, lease, sell or otherwise dispose of its
Property to any other Person except for (a) sales of inventory in the ordinary
course of business, (b) leases, sales or other dispositions of its Property to
a Regional Partner or a Wholly-Owned Subsidiary of TLGI or a Regional Partner
(provided that if any such Property is subject to the Collateral Trust
Agreement, then such lease, sale or other disposition shall be permissible
hereunder only to the extent that the lessee or transferee thereof shall have
executed documentation satisfactory to the Agent maintaining the security
interest in the Property in favor of the Collateral Agent for the benefit of
the Secured Parties), (c) subject to the requirements of SECTION 2.10.3
hereof, other sales or other dispositions of its Property subject to the
requirement that the net proceeds of each such sale or other disposition of
Property are reinvested, within 180 days following consummation of such sale
or other disposition, in the business of TLGI, the Borrower and the
Subsidiaries of either as conducted in accordance with the requirements of
SECTION 7.4, and that immediately before and after giving effect to such sale,
no Default or Unmatured Default shall have occurred and be continuing, (d)
Permitted Receivables Securitizations, and (e) sales of cemetery properties
(provided that such sales (i) are on commercially reasonable terms, (ii) occur
within 30 days of the acquisition by TLGI, the Borrower or a Subsidiary of
such cemetery property, (iii) give rise to an Investment of the type described
in, and permitted by, SECTION 7.16(m), and (iv) do not involve cemetery
properties with an aggregate Fair Value in excess of $50,000,000 for all such
cemetery properties sold in any calendar year).
7.14. PREPAYMENTS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, either directly or indirectly, voluntarily
redeem, retire or otherwise pay prior to its scheduled maturity, or accelerate
the maturity of, Indebtedness of TLGI or the Borrower or any such Subsidiary,
other than (a) Indebtedness arising hereunder or under other credit facilities
or Permitted Receivables Securitizations of a revolving nature, (b)
Indebtedness between or among TLGI, the Borrower or any Subsidiary, (c)
Indebtedness arising under the MEIP Credit Agreement (but only to the extent
prepayments or redemptions thereof are made in accordance with the
requirements of the MEIP Credit Agreement which are contained in the MEIP
Credit Agreement as in effect on the date hereof), (d) Indebtedness which
ranks PARI PASSU with the Obligations, and (e) other Indebtedness so long as
such Indebtedness either (i) (A) was incurred in connection with an
Acquisition and (B) is prepaid within 180 days of the closing of such
Acquisition or (ii) (A) is prepaid in full and (B) does not exceed $10,000,000
(such limitation to apply to each individual prepayment pursuant to this
clause (ii) and not in the aggregate).
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7.15. AFFILIATES. TLGI and the Borrower will not, nor will either
permit any Subsidiary of it to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of TLGI's, the Borrower's or such
Subsidiary's business and upon fair and reasonable terms no less favorable to
TLGI, the Borrower or such Subsidiary than TLGI, the Borrower or such Subsidiary
would obtain in a comparable arm's-length transaction; PROVIDED, HOWEVER, that
the foregoing terms of this SECTION 7.15 shall not apply to (i) transactions
between or among TLGI, any Wholly-Owned Subsidiary of TLGI and any Regional
Partner and (ii) transactions with an SPV which are related to a Permitted
Receivables Securitization.
7.16. INVESTMENTS. TLGI and the Borrower will not, nor will
either permit any Subsidiary of it to, make or suffer to exist any Investments,
or commitments therefor, except:
(a) Investments (i) in existence as of the close of business on June
30, 1997, and described in SCHEDULE 1 hereto or (ii) arising on or after July 1,
1997, but only to the extent expressly described on SCHEDULE 1 hereto;
(b) Investments by TLGI or the Borrower or any Subsidiary in and to
(i) any Subsidiary (other than LMIC or any other Subsidiary not engaged in one
or more of the TLGI Lines of Business), including any Investment in a
corporation which, after giving effect to such Investment, will become a
Subsidiary (other than as specified in the foregoing parenthetical), (ii) LMIC,
but only to the extent of the aggregate initial par value of the capital stock
thereof issued to the Borrower upon the incorporation of LMIC, and (iii) any
other Person provided that such Person is engaged primarily in one or more of
the TLGI Lines of Business;
(c) Investments in property or assets to be used in the ordinary
course of business of TLGI and the Borrower and the other Subsidiaries conducted
as described in SECTION 7.4 of this Agreement;
(d) Investments in commercial paper maturing in 270 days or less from
the date of issuance which, at the time of acquisition by TLGI or the Borrower
or any other Subsidiary, is accorded one of the two highest commercial paper
ratings by Standard & Poor's or Xxxxx'x or any other United States nationally
recognized credit rating agency of similar standing;
(e) Investments in direct obligations of the United States, any
agency or instrumentality of the United States, the federal government of Canada
or any agency or instrumentality of the federal government of Canada, the
payment or guarantee of which constitutes a full faith and credit obligation of
the United States or Canada, as the case may be, in either case maturing in
three years or less from the date of acquisition thereof;
(f) Investments in direct obligations of any Province of Canada or
any municipality within a Province of Canada or any State or municipality within
the United States
70
maturing in three years or less from the date of acquisition thereof which,
in any such case, at the time of acquisition by TLGI or the Borrower or any
other Subsidiary, is accorded one of the two highest long-term debt ratings
by Standard & Poor's or Xxxxx'x or any other United States nationally
recognized credit rating agency of similar standing;
(g) Investments in certificates of deposit or bankers' acceptances
with a maturity of under one year issued by a bank or trust company organized
under the laws of the United States or any State thereof, Canada or any Province
thereof, Japan or any member of the European Union, having capital, surplus and
undivided profits aggregating at least $100,000,000 and having a short-term
unsecured debt rating of at least "P-1" by Xxxxx'x or "A-1" by Standard &
Poor's;
(h) Investments in money market and auction rate preferred stock
issued by Persons organized under the laws of the United States of America or
any State thereof or of Canada or any Province thereof rated "A" or better by
Standard & Poor's or "A" or better by Xxxxx'x, or an equivalent rating by any
other United States nationally recognized credit rating agency of similar
standing;
(i) Investments in mutual funds investing in assets described in
CLAUSE (d), (e), (f) or (g) above which in any such case would be classified as
a current asset in accordance with U.S. GAAP and which are managed by a fund
manager of recognized United States or Canadian national standing and having
share capital of at least $100,000,000 or having at least $250,000,000 under
management;
(j) Investments of funds received by TLGI or the Borrower or any
other Subsidiary in the ordinary course of business, which funds are required to
be held in trust for the benefit of others by TLGI, the Borrower or such
Subsidiary, as the case may be, and which funds do not constitute assets or
liabilities of TLGI or the Borrower or any other Subsidiary;
(k) Investments of funds by any Subsidiary which is engaged in the
insurance business which are invested and managed by such Subsidiary in the
ordinary course of its regulated insurance business and insurance operations;
(l) Investments constituting Permitted Acquisitions;
(m) Investments in promissory notes issued and options granted by
purchasers of cemetery properties sold by the Borrower or any of its Affiliates
(but only to the extent permitted by SECTION 7.13(e)); PROVIDED, HOWEVER, that
such promissory notes are issued and such options are granted on commercially
reasonable terms and the aggregate outstanding principal amount of such
promissory notes at any time shall not exceed $100,000,000, and PROVIDED,
FURTHER, that for each such Investment, the related sale and such Investment
have not been challenged, or threatened to be challenged, by any Governmental
Authority;
71
(n) Investments in SPV's and in Receivables Program Assets in
connection with Permitted Receivables Securitizations; and
(o) other Investments (in addition to those permitted by CLAUSES (a)
through (n) above) so long as immediately after giving effect to the making of
any such Investment the aggregate amount of all outstanding Investments made
pursuant to this Section 7.16(o) would not exceed 5% of Consolidated Net Worth;
PROVIDED, HOWEVER, that notwithstanding any provision to the contrary herein,
none of TLGI, the Borrower or any Subsidiary of either shall make any Investment
in any Person effectively located outside of the United States or Canada if
after giving effect to such Investment, the aggregate amount of Investments of
TLGI, the Borrower or any Subsidiary of either in any Persons effectively
located outside of the United States or Canada, excluding Investments in Finance
Subsidiaries which are Wholly-Owned Subsidiaries, would exceed an amount equal
to 25% of Consolidated Revenues for the period of four consecutive fiscal
quarters ended immediately prior to the date of such Investment; PROVIDED
FURTHER, HOWEVER, that the immediately preceding proviso shall not apply from
and after the Collateral Release Date. For the purpose of any computation
required to be made pursuant to this Agreement, Investments shall be valued at
lower of the cost or Fair Value thereof as of the date of computation.
7.17. NEGATIVE PLEDGE. TLGI and the Borrower will not, nor will
either permit any Subsidiary of it (other than an SPV in connection with a
Permitted Receivables Securitization) to, enter into any agreement or other
arrangement under the terms of which TLGI, the Borrower or any Subsidiary of
TLGI or the Borrower (other than any such SPV) would be restricted from (i)
performing its respective obligations under the Collateral Trust Agreement or
any other Loan Document to which it is a party or (ii) providing a guaranty to
the Agent, the Collateral Agent, the Lenders or the L/C Issuer.
7.18. LIENS. TLGI and the Borrower will not, nor will either
permit any Subsidiary of either to, create, incur or suffer to exist any Lien
in, of or on the Property of TLGI, the Borrower or such Subsidiary, as
applicable, except:
(a) Liens granted to the Agent or the Collateral Agent for the
benefit of the Lenders, the L/C Issuer and the other Secured Parties pursuant to
the Loan Documents;
(b) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(c) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of
72
obligations not more than 60 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(d) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions or other social
security or retirement benefits, or similar legislation (except ERISA);
(e) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the same or interfere with the use thereof in the
business of TLGI, the Borrower or any other Subsidiary;
(f) Liens existing as of the close of business on June 30, 1997, and
described in SCHEDULE 1 hereto or (ii) created or incurred on or after July 1,
1997, but only to the extent expressly described on SCHEDULE 1 hereto;
(g) Liens created or incurred after June 30, 1997, given to secure
Indebtedness incurred or assumed by TLGI or any Subsidiary of TLGI in connection
with the acquisition or construction of property or assets useful and intended
to be used in carrying on the business of TLGI or such Subsidiary, including
Liens existing on such property or assets at the time of acquisition or
construction thereof or at the time of acquisition by TLGI or such Subsidiary of
an interest in any business entity then owning such property or assets, whether
or not such existing Liens were given to secure the consideration for the
property or assets to which they attach, subject to the requirements that (i)
the Lien shall attach solely to the fixed assets acquired or purchased by TLGI
or such Subsidiary, (ii) the Lien shall have been created or incurred within 180
days after the date of acquisition or completion of construction of such
property or assets, and (iii) all such Indebtedness shall have been incurred or
assumed within the limitations provided in SECTION 7.11, and provided that Liens
shall be permitted under this SECTION 7.18(g) only to the extent that the
aggregate amount of Indebtedness of TLGI and its Subsidiaries outstanding at any
time which is secured by Liens described in either SECTION 7.18(f) or this
SECTION 7.18(g) shall not exceed 10.0% of Consolidated Net Worth at such time;
(h) Liens on Receivables and Receivables Related Assets arising in
connection with any Permitted Receivables Securitization;
(i) Liens granted to TLGI, a Regional Partner or a Wholly-Owned
Subsidiary of TLGI or a Regional Partner by any Subsidiary (other than the
Borrower);
(j) Liens on certain intercompany Indebtedness of the Borrower
granted under the terms of the MEIP Credit Agreement as in effect on the date of
this Agreement;
(k) in addition to Liens permitted by the preceding CLAUSE (g), Liens
given to secure Indebtedness of TLGI, the Borrower or any Subsidiary of TLGI,
PROVIDED that the
73
aggregate amount of Indebtedness outstanding at any time which is secured
thereby shall not exceed $5,000,000; and
(l) any extension, renewal or replacement of any Lien permitted by
the preceding CLAUSES (f) and (g) hereof in respect of the same property or
assets theretofore subject to such Lien in connection with the extension,
renewal or refunding of the Indebtedness secured thereby; PROVIDED that (i)
such Lien shall attach solely to the same property or assets and (ii) such
extension, renewal or refunding of such Indebtedness shall be without
increase in the principal remaining unpaid as of the date of such extension,
renewal or refunding.
7.19. MINIMUM CONSOLIDATED NET WORTH. TLGI will maintain at
all times a Consolidated Net Worth (excluding the cumulative effect of
currency translation adjustments) of at least the sum of
(a) Consolidated Net Worth (excluding the cumulative effect of
currency translation adjustments) as of December 31, 1995, plus
(b) the net proceeds to the Borrower from consummation of the
Equity Placement and the issuance by TLGI from time to time of preferred
stock in exchange for the First Preferred Series C Receipts pursuant to the
terms thereof, plus
(c) the sum of 50% of Consolidated Net Income for each fiscal
quarter ended after January 1, 1996 (but only to the extent that, in the case
of any such fiscal quarter, Consolidated Net Income for such fiscal quarter
is at least $1.00), plus
(d) 66-2/3% of the aggregate amount of the net cash proceeds
received by TLGI and the Borrower and the other Subsidiaries from the
issuance or sale on and after January 1, 1996 (other than sales or issuances
to TLGI or the Borrower or any other Subsidiary, and other than pursuant to
the Equity Placement or in connection with the issuance by TLGI from time to
time of preferred stock in exchange for the First Preferred Series C Receipts
pursuant to the terms thereof) of capital stock of TLGI or Indebtedness of
TLGI, the Borrower or any other Subsidiary which has been converted into
capital stock of TLGI.
7.20. MINIMUM CONSOLIDATED TANGIBLE NET WORTH. TLGI will maintain
at all times a Consolidated Tangible Net Worth (excluding the cumulative effect
of currency translation adjustments) of at least $150,000,000.
7.21. MAXIMUM CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED
CAPITALIZATION. TLGI will not permit the ratio of Consolidated Indebtedness
to Consolidated Capitalization at any time to exceed 0.60 to 1.00.
7.22. INTEREST CHARGES COVERAGE; TREATMENT OF GAIN ON SALE OF
ARBOR FUNERAL INC. TLGI will at all times maintain (i) a ratio of EBITDA for
the most recently ended period of
74
four consecutive fiscal quarters of TLGI to Consolidated Interest Charges for
such period of four consecutive fiscal quarters of not less than 2.750 to
1.00 and (ii) a ratio of EBITDA for the most recently ended fiscal quarter to
Consolidated Interest Charges for such fiscal quarter of not less than 1.50
to 1.00. For purposes of the foregoing calculations, $35,800,000 will be
added to EBITDA for the fiscal quarter ended September 30, 1997 whenever
EBITDA for such fiscal quarter is included in such calculations. For
purposes of this SECTION 7.22, any costs and expenses incurred by TLGI in
contesting the 1996 tender offer for TLGI by Service Corporation
International, Inc., which are reflected in the audited financial statements
of TLGI as at December 31, 1996 which have been delivered to the Agent and
the Lenders, up to an aggregate amount not to exceed $18,678,000 for all such
costs and expenses, shall be excluded from the calculation of Consolidated
Net Income in determining EBITDA for the respective periods in which such
costs were incurred.
7.23. MAXIMUM CONSOLIDATED INDEBTEDNESS TO ADJUSTED EBITDA.
TLGI will not permit, at any time, (x) the ratio of Consolidated Indebtedness
determined at such time to Adjusted EBITDA determined for the period of four
consecutive fiscal quarters then most recently ended to be greater than 5.50
to 1.00 or (y) the ratio of Consolidated Indebtedness (determined as of the
last day of the then most recently ended fiscal quarter) to Adjusted EBITDA
(determined for the period of four consecutive fiscal quarters then most
recently ended) to be greater than 5.00 to 1.00 if the ratios of Consolidated
Indebtedness (determined as of the last day of each of the two fiscal
quarters immediately preceding such most recently ended fiscal quarter) to
Adjusted EBITDA (determined for each of the two preceding periods of four
consecutive fiscal quarters ending on such days, respectively) are each
greater than 5.00 to 1.00. For purposes of the foregoing calculations,
$35,800,000 will be added to EBITDA for the fiscal quarter ended September
30, 1997 whenever EBITDA for such fiscal quarter is included in such
calculations.
7.24. OWNERSHIP OF THE BORROWER. TLGI will at all times
maintain the Borrower as a Wholly-Owned Subsidiary of TLGI.
7.25. ACQUISITIONS. TLGI and the Borrower will not, nor will
either permit any Subsidiary of either to, make any Acquisition of any Person
other than a Permitted Acquisition.
7.26. PLEDGE OF STOCK AND GRANT OF SECURITY INTEREST IN CERTAIN
ASSETS. TLGI and the Borrower will, and will cause each respective Pledgor
Subsidiary of it to, pledge (or, for any shares or other equity interests
pledged prior to the date hereof pursuant to the terms of the Collateral
Trust Agreement, TLGI and the Borrower will, and will cause each respective
Pledgor Subsidiary of it to, maintain such pledge in) all outstanding shares
of capital stock and other equity interests of any Subsidiary of TLGI or the
Borrower (other than any SPV which engages in a Permitted Receivables
Securitization but including, without limitation, those Subsidiaries which
are designated on SCHEDULE 1 with an asterisk) held by it or held by any
Subsidiary (other than any SPV which engages in a Permitted Receivables
Securitization but including, without limitation, those Subsidiaries which
are designated on SCHEDULE 1 with an asterisk) of it from
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time to time (including, in the case of TLGI, the Borrower), and the Borrower
shall grant a security interest (or, for any security interests granted prior
to the date hereof pursuant to the Collateral Trust Agreement, the Borrower
shall maintain such security interest) in all of its financial assets
(including, without limitation, accounts receivable and bank accounts), in
each case pursuant to the terms of the Collateral Trust Agreement. All such
shares of capital stock and other equity interests shall be pledged, and all
such security interests shall be granted, solely to secure the Obligations
and any other Senior Obligations outstanding from time to time; PROVIDED,
HOWEVER, that such pledges of capital stock and other equity interests, and
such grants of security interests, shall secure the Senior Obligations (other
than the Obligations and the other Senior Obligations identified on SCHEDULE
3 hereto) only to the extent that the Borrower shall have so elected and
given notice thereof to the Collateral Agent and the Agent. Within 60 days of
the date of closing for each Major Acquisition of a Person, TLGI and the
Borrower shall deliver to the Agent an opinion of counsel addressed to the
Agent and the Lender to the effect that all ownership interests in such
Person acquired in such Major Acquisition have been duly and validly
subjected to the lien granted to the Collateral Agent under the terms of the
Collateral Trust Agreement and that all actions to perfect such lien have
been duly and validly taken, such opinions to be satisfactory to the Agent in
form and substance.
TLGI and the Borrower shall, and shall cause their respective
Subsidiary Pledgors to, complete all actions necessary to comply with the
requirements of the first paragraph of this SECTION 7.26 and the Collateral
Trust Agreement with respect to pledges of shares of capital stock and other
equity interests of their Subsidiaries (including without limitation delivery
of the applicable shares and other instruments to the Collateral Agent) no
later than the dates set forth below:
(i) With respect to the shares of capital stock and other equity
interests of those Subsidiaries which are designated on Schedule I with an
asterisk (other than Xxxxxx Group Acquisition Corporation and shares of
capital stock and other equity interests owned by Xxxxxx Group Acquisition
Corporation) December 31, 1997;
(ii) With respect to the shares of capital stock and other equity
interests of Xxxxxx Group Acquisition Corporation (if then in existence)
or of Subsidiaries at any time owned by Xxxxxx Group Acquisition
Corporation, January 15, 1998; and
(iii) With respect to any shares of capital stock or other equity
interests of any other Subsidiaries, whether now owned or hereafter
acquired, within ninety days from the date of acquisition thereof by TLGI,
the Borrower or any of their respective Subsidiaries.
Notwithstanding the foregoing terms of this SECTION 7.26, on such
first date (the "COLLATERAL RELEASE DATE") on which (a) the Borrower shall have
provided written evidence to the Agent that (x) the rating assigned to the
senior unsecured and unenhanced long-term Indebtedness of TLGI by Standard &
Poor's is BBB- (or higher) and such rating assigned by Xxxxx'x is Baa3 (or
higher), (y) all other Indebtedness secured pursuant to the Collateral Trust
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Agreement has ceased (or on the Collateral Release Date will cease) to be
secured pursuant to the Collateral Trust Agreement, and (z) after giving
effect to this paragraph, the Obligations will be senior to, or PARI PASSU
with, all other Indebtedness which was secured pursuant to the Collateral
Trust Agreement immediately prior to the Collateral Release Date, (b) no
Default or Unmatured Default shall exist and be continuing, and (c) the Agent
shall have provided written notice to each of the Lenders that the conditions
set forth in the foregoing CLAUSES (a) and (b) have been satisfied, THEN (i)
the pledge and security interest described in this SECTION 7.26 and granted
pursuant to the Collateral Trust Agreement will automatically terminate, and
TLGI, the Borrower and the Pledgor Subsidiaries shall have no further
obligations in respect of such pledge and security interest, and (ii) the
Pledgor Subsidiary Guaranty of each Pledgor Subsidiary will automatically
terminate and the Pledgor Subsidiaries shall have no further obligations in
respect of such Pledgor Subsidiary Guaranties, in each case without any
further action or requirement. In connection with the foregoing, the Agent
agrees to take, and to cause the Collateral Agent to take, in each case at
the Borrower's expense, all such actions as may be reasonably requested by
the Borrower to give effect to this paragraph.
7.27. SUBSIDIARIES. TLGI and the Borrower will not permit any of
their respective Subsidiaries (other than the Borrower in the case of TLGI's
Subsidiaries) at any time to (i) issue any preferred stock of any type or nature
(provided that such limitation shall not apply to any Subsidiary which has no
operations and exists solely as a special purpose finance entity, and provided
further that such limitation shall not prohibit the issuance of preferred stock
to TLGI or any Wholly-Owned Subsidiary of TLGI), or (ii) except in the case of
an SPV which engages in a Permitted Receivables Securitization, agree by
contract or otherwise to any restriction on the right and ability of such
Subsidiary to declare and pay dividends and make other distributions to its
shareholders (other than the restrictions set forth in this Agreement and the
other Loan Documents). TLGI and the Borrower will not permit any Indebtedness
owed by them to any Subsidiaries to be secured pursuant to the Collateral Trust
Agreement unless (a) the Subsidiary to which such Indebtedness is owed is a
Finance Subsidiary which is a Wholly-Owned Subsidiary, (b) the security interest
securing such Indebtedness is subordinated in accordance with the terms and
conditions of the Collateral Trust Agreement, (c) all shares of capital stock or
other equity interests of such Subsidiary are pledged under the terms of the
Collateral Trust Agreement, (d) such Subsidiary has no obligations other than
Indebtedness owed to TLGI or the Borrower or an Affiliate of TLGI, and other
than obligations to purchase accounts receivable or other financial assets of an
Affiliate of TLGI, (e) such Subsidiary has no material assets other than (i)
Indebtedness owed to it by TLGI or the Borrower or an Affiliate of TLGI, (ii)
Investments in other Finance Subsidiaries which are Wholly-Owned Subsidiaries
and (iii) the accounts receivable and other financial assets described in the
foregoing CLAUSE (d), and (f) such Subsidiary has no activities or operations
other than the issuance of its capital stock or other equity interests and the
purchase and administration of the accounts receivable and other financial
assets described in the foregoing CLAUSE (d), and other than the holding by it
of Indebtedness, accounts receivable and other financial assets described in the
foregoing CLAUSE (e).
7.28. SUBSIDIARIES' STOCK. TLGI and the Borrower will cause:
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(a) each Canadian Subsidiary incorporated under the laws of British
Columbia, the shares of which are Pledged Shares under the Collateral Trust
Agreement, to ensure that its constating documents do not contain any
restrictions on a transfer of such Pledged Shares pursuant to the due exercise
of the Trustee's powers under the Collateral Trust Agreement;
(b) the board of directors of each Canadian Subsidiary incorporated
under the laws of Nova Scotia or Xxxxxx Xxxxxx Island, the shares of which are
Pledged Shares under the Collateral Trust Agreement, to pass a resolution
consenting to a transfer of such Pledged Shares pursuant to the due exercise of
the Trustee's powers under the Collateral Trust Agreement; and
(c) the directors and shareholders of each Canadian Subsidiary
incorporated under the federal laws of Canada, or the laws of Quebec, Ontario,
Manitoba, Saskatchewan or Alberta, the share of which are Pledged Shares under
the Collateral Trust Agreement, to execute and deliver an unanimous shareholders
agreement to the Trustee providing for the consent of the shareholders to a
transfer of such Pledged Shares pursuant to the due exercise of the Trustee's
powers under the Collateral Trust Agreement.
Except as set out in clauses (d) and (e) below or as otherwise consented to by
the Agent in its sole discretion, TLGI and the Borrower will, and will cause
each Subsidiary (other than a Canadian Subsidiary), the shares or other equity
interests of which are Pledged Shares under the Collateral Trust Agreement, to
take any and all actions necessary to ensure that there are no restrictions on a
transfer of such Pledged Shares pursuant to the due exercise of the Trustee's
powers under the Collateral Trust Agreement, except with respect to any and all
restrictions under applicable law. The foregoing sentence does not apply to:
(d) the interests of TLGI, the Borrower or any Pledgor Subsidiary in
any limited partnership or limited liability company where the restriction is
required to preserve the tax status of the entity; and
(e) the shares listed in SCHEDULE 6 hereto.
The actions described in this SECTION 7.28 must be completed with
respect to any Subsidiary no later than 90 days after any of such Subsidiary's
shares become Pledged Shares under the Collateral Trust Agreement.
The terms "Pledged Shares", "Trustee" and "Applicable Law", as used in
this SECTION 7.28, have the meanings specified in the Collateral Trust
Agreement.
7.29. DELIVERIES REGARDING PLEDGOR SUBSIDIARIES. TLGI and the
Borrower shall deliver to the Agent on or before November 30, 1997 a copy,
with respect to each Pledgor Subsidiary, of such Pledgor Subsidiary's (i)
articles of incorporation or comparable constitutive documents, together with
all material amendments, and, to the extent applicable, a certificate of
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good standing, in each case certified by the appropriate governmental officer
in the relevant jurisdiction of organization, (ii) by-laws or comparable
constitutive laws, rules or regulations as in effect on the Effective Date
certified by the Secretary, Assistant Secretary or other appropriate officer
or director of it, and (iii) board of directors' resolutions, certified by
the Secretary, Assistant Secretary or other appropriate officer or director
of such Pledgor Subsidiary (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) authorizing the execution and
performance of the Collateral Trust Agreement, in each case (of CLAUSES (i),
(ii) and (iii)) to the extent not previously delivered to the Agent or the
Collateral Agent under the Original Agreement or the Collateral Trust
Agreement.
ARTICLE VIII
DEFAULTS
8. DEFAULTS. The occurrence of any one or more of the following
events shall constitute a Default:
8.1. Any representation or warranty made or deemed made by or
on behalf of TLGI, the Borrower or any Pledgor Subsidiary to the Lenders or
the Agent under or in connection with this Agreement, any Revolving Loan, any
Swing Line Loan, any Letter of Credit, any Guaranty, the Collateral Trust
Agreement, any other Loan Document or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall
be materially false on the date as of which made or deemed made.
8.2. Nonpayment of principal of any Revolving Loan or Swing
Line Loan when due, or nonpayment of interest upon any Revolving Loan or
Swing Line Loan or of any commitment fee or other obligations (including,
without limitation, Reimbursement Obligations) under any of the Loan
Documents within three Business Days after the same becomes due.
8.3. The breach by TLGI, the Borrower or any Subsidiary of
either of any of the terms or provisions of SECTION 7.2, SECTION 7.3(a),
SECTIONS 7.10 through 7.14, or SECTIONS 7.16 through 7.27; PROVIDED, HOWEVER,
any failure to provide notice of any Unmatured Default pursuant to SECTION
7.3(a) shall not give rise to a Default under this SECTION 8.3 if such
Unmatured Default may be cured pursuant to the terms of this Agreement and is
in fact cured prior to maturing into a Default.
8.4. The breach by TLGI, the Borrower or any Subsidiary of
either (other than a breach which constitutes a Default under SECTION 8.1,
8.2 or 8.3) of any of the terms or provisions of this Agreement or any other
Loan Document which is not remedied within the earlier to occur of (x) 30
days after written notice from the Agent or any Lender or (y) 30 days after
any Executive Officer first has knowledge thereof.
8.5. Failure of TLGI, the Borrower or any Subsidiaries of
either to pay any Indebtedness equal to or exceeding $5,000,000 in the
aggregate for TLGI, the Borrower and such
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Subsidiaries when due; or the default by TLGI, the Borrower or any
Subsidiaries of either in the performance of any term, provision or condition
contained in any agreement under which any Indebtedness equal to or exceeding
$5,000,000 in the aggregate for TLGI, the Borrower and such Subsidiaries was
created or is governed, or any other event shall occur or condition exist the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity; or any Indebtedness of TLGI, the Borrower or any Subsidiaries of
either equal to or exceeding $5,000,000 in the aggregate for all such Persons
shall be declared to be due and payable or required to be prepaid (other than
by a regularly scheduled payment) prior to the stated maturity thereof; or
TLGI, the Borrower or any Subsidiary of either shall not pay, or shall admit
in writing its inability to pay, its debts generally as they become due.
8.6. TLGI, the Borrower or any Subsidiary of either shall (a) have
an order for relief entered with respect to it under the United States
bankruptcy laws as now or hereafter in effect or cause or allow any similar
event to occur under any bankruptcy or similar law or laws for the relief of
debtors as now or hereafter in effect in any other jurisdiction, (b) make an
assignment for the benefit of creditors, (c) apply for, seek, consent to or
acquiesce in the appointment of a receiver, custodian, trustee, examiner,
liquidator, monitor or similar official for it or any of its Property, (d)
institute any proceeding seeking an order for relief under the United States
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or any of its
Property or its debts under any law relating to bankruptcy, insolvency or
reorganization or compromise of debt or relief of debtors as now or hereafter
in effect in any jurisdiction including, without limitation, any application
under The Bankruptcy and Insolvency Act (Canada) or The Companies' Creditors
Arrangement Act (Canada), the filing of a proposal or notice under The
Bankruptcy and Insolvency Act (Canada) or any organization, arrangement or
compromise of debt under the laws of its jurisdiction of incorporation or
fail to promptly file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (e) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
SECTION 8.6, or (f) fail to contest in good faith any appointment or
proceeding described in SECTION 8.7.
8.7. Without the application, approval or consent of TLGI, the
Borrower or any Subsidiary of either, a receiver, custodian, trustee,
examiner, liquidator or similar official shall be appointed (either privately
or by a court) for TLGI, the Borrower or any Subsidiary or any of its
Property, or a proceeding described in SECTION 8.6(d) shall be instituted
against TLGI, the Borrower or any Subsidiary and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a
period of 30 consecutive days.
8.8. Any court, government or Governmental Authority shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"CONDEMNATION"), all or any portion of the Property of TLGI, the Borrower or
any of the Subsidiaries of either which, when taken together with all other
Property of TLGI, the Borrower and such Subsidiaries so
80
condemned, seized, appropriated or taken custody or control of, during the
twelve-month period ending with the month in which any such Condemnation
occurs, constitutes a Substantial Portion.
8.9. TLGI, the Borrower or any Subsidiary of either shall fail
within 30 days to pay, bond or otherwise discharge any judgment or order for
the payment of money in excess of $5,000,000, unless such judgment or order
has been stayed on appeal or otherwise is being appropriately contested in
good faith and against which appropriate reserves have been established in
accordance with GAAP (provided that, in any event, execution of such judgment
or order has been effectively stayed and no execution thereof has commenced
and is continuing).
8.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $5,000,000 or any Reportable Event, the occurrence of
which may reasonably be expected to give rise to a Material Adverse Effect,
shall occur in connection with any Plan, or a contribution failure sufficient to
give rise to a lien under section 302(f) of ERISA shall occur with respect to
any Single Employer Plan.
8.11. TLGI or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
TLGI or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $5,000,000 or requires
payments exceeding $1,000,000 per annum.
8.12. TLGI or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of TLGI and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $1,000,000.
8.13. TLGI, the Borrower or any Subsidiary of either shall be the
subject of any proceeding or investigation pertaining to the release by TLGI,
the Borrower or any such Subsidiary or any other Person of any toxic or
hazardous waste or substance into the environment, or any violation of any
environmental, health or safety law or regulation of any Governmental Authority,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
8.14. Any Change of Control shall occur.
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8.15. Any Guaranty shall fail to remain in full force or effect,
or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to perform its
obligations under or otherwise comply with any of the terms or provisions of
any Guaranty to which it is a party, or any Guarantor shall deny that it has
any further liability under any Guaranty to which it is a party, or shall
give notice to such effect.
8.16. Except as contemplated by the last paragraph of SECTION
7.26, the Collateral Trust Agreement shall fail to remain in full force or
effect, or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Collateral Trust Agreement, or any
pledgor thereunder shall fail to perform its obligations under or otherwise
comply with any of the terms or provisions of the Collateral Trust Agreement,
or any pledgor thereunder shall deny that it has any further liability under
the Collateral Trust Agreement, or shall give notice to such effect, or any
portion of the shares of stock pledged, or security interests granted,
pursuant to the Collateral Trust Agreement shall cease to be validly
perfected in favor of the Collateral Agent for the benefit of the Secured
Parties, or (except as otherwise provided in the Collateral Trust Agreement
and except to the extent such pledged shares represent Minority Interests)
such pledged shares shall fail to represent 100% of the outstanding shares of
stock of the Subsidiaries whose shares of stock are subject to the Collateral
Trust Agreement.
8.17. A Material Judgment Event shall have occurred and 90 days
shall have passed without one or more of the judgments, awards or other
orders giving rise to such Material Judgment Event having been vacated such
that on such 90th day the aggregate amount of all judgments, awards and
orders entered against any of TLGI, the Borrower or any of their respective
Subsidiaries which shall have been outstanding for at least 90 days without
having been finally satisfied in full or vacated shall be in excess of
$100,000,000.
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. ACCELERATION. If any Default described in SECTION 8.6 or 8.7
occurs with respect to TLGI or the Borrower (but not with respect to any
other Subsidiary), the obligations of the Lenders to make Revolving Loans or
purchase participations in Swing Line Loans and Letters of Credit hereunder
and the obligation of the Swing Line Lender to make Swing Line Loans and the
obligation of the L/C Issuer to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Agent, the L/C
Issuer, the Swing Line Lender or any Lender. If any other Default occurs,
the Required Lenders may (a) terminate or suspend the obligations of the
Lenders to make Revolving Loans and purchase participations in Swing Line
Loans and Letters of Credit hereunder, whereupon the obligation of the Swing
Line Lender to make Swing Line Loans and the obligation of the L/C Issuer to
issue Letters of Credit hereunder shall also terminate or be suspended, or
(b) declare the Obligations to be due and payable, whereupon the Obligations
shall become immediately due and payable, without presentment, demand,
protest or notice of any
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kind, all of which TLGI and the Borrower hereby expressly waive, or (c) take
the action described in both the preceding CLAUSE (A) and the preceding
CLAUSE (B).
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make
Revolving Loans hereunder as a result of any Default (other than any Default
as described in SECTION 8.6 or 8.7 with respect to TLGI, the Borrower or any
other Subsidiary) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice to TLGI
and the Borrower, rescind and annul such acceleration and/or termination.
9.2. AMENDMENTS. Subject to the provisions of this ARTICLE IX,
the Required Lenders (or the Agent with the consent in writing of the
Required Lenders), TLGI and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders, TLGI
or the Borrower hereunder or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of
each Lender affected thereby:
(a) extend the Facility A Commitment or the Facility B Commitment
of any Lender, extend the maturity of any Revolving Loan, extend the final
maturity beyond the Facility A Termination Date of any Swing Line Loan or
Reimbursement Obligation, extend the expiry date of any Letter of Credit
beyond the date which is five Business Days immediately preceding the
Facility A Termination Date, or forgive all or any portion of the principal
amount of any Revolving Loan, Swing Line Loan or Reimbursement Obligation or
any interest or fees, or reduce the rate or extend the time of payment of
interest or fees on any Revolving Loan, Swing Line Loan, Reimbursement
Obligation, Commitment or Letter of Credit;
(b) reduce the percentage specified in the definition of Required
Lenders;
(c) reduce the amount or extend the payment date for the mandatory
payments required under SECTION 2.2, 2.19 or 2.20, reduce the amount of or
extend the reduction date for any mandatory reduction of the Facility A
Aggregate Commitment required by SECTION 2.10.3, or increase the amount of
the Commitment of any Lender hereunder, or permit TLGI or the Borrower to
assign its rights under this Agreement;
(d) amend this SECTION 9.2 or SECTION 13.1(a);
(e) release any Guarantor other than in connection with an
Approved Sale or other than as contemplated by the last paragraph of SECTION
7.26 or as set forth in the Collateral Trust Agreement; or
(f) prior to the appointment of Enforcement Representatives under
(and as defined in) the Collateral Trust Agreement, release any collateral
pledged pursuant to the
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Collateral Trust Agreement other than in connection with an Approved Sale or
as contemplated by the last paragraph of SECTION 7.26.
Following the appointment of any Enforcement Representatives under (and as
defined in) the Collateral Trust Agreement, the Lenders and the Agent agree
that any instructions or directions to be given by the Lenders to the
Enforcement Representatives appointed by the Lender shall be valid if given
by action of the Required Lenders and any action to be taken by them with
respect to enforcement or other remedies shall be taken solely in accordance
with the terms of the Collateral Trust Agreement. The Lenders and the Agent
agree (unless otherwise approved by all of the Lenders) that any vote to be
taken by the Lenders under the terms of the Collateral Trust Agreement
(whether involving the release of collateral pledged thereunder, enforcement
actions, amendments, waivers or otherwise) shall be taken solely by the Agent
casting votes on behalf of each Lender, such votes to be cast identically by
the Agent on behalf of each Lender and to be based upon the actions (if any)
of the Lenders taken pursuant to, and in accordance with, the terms of this
Agreement. No amendment of any provision of this Agreement relating in any
way to the Agent shall be effective without the written consent of the Agent.
No amendment of any provision of this Agreement relating in any way to the
L/C Issuer or any or all of the Letters of Credit shall be effective without
the written consent of the L/C Issuer and the Agent. No amendment of any
provision of this Agreement relating in any way to the Swing Line Lender, the
Swing Line Commitment or any or all of the Swing Line Loans shall be
effective without the written consent of the Swing Line Lender and the Agent.
No amendment of any provision of this Agreement relating in any way to the
Documentation Agent shall be effective without the written consent of the
Documentation Agent. The Agent may waive payment of the fee required under
SECTION 13.3.2 without obtaining the consent of any other party to this
Agreement.
9.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders
or any of them or the Agent, the Documentation Agent, the L/C Issuer or the
Collateral Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Revolving Loan or a Swing Line Loan or the
issuance of a Letter of Credit notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such
Revolving Loan or Swing Line Loan or Letter of Credit shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by (or with the consent of) the Lenders required
pursuant to SECTION 9.2, and then only to the extent specifically set forth
in such writing. All remedies contained in the Loan Documents or afforded by
law shall be cumulative and all shall be available to the Agent, the Lenders,
the L/C Issuer and the Collateral Agent (and to the extent expressly set
forth, the Documentation Agent) until the Obligations have been paid in full.
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ARTICLE X
GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and
warranties of TLGI and the Borrower contained in this Agreement shall survive
the occurrence of the effectiveness of this Agreement and the making of the
Revolving Loans and the Swing Line Loans and the issuance of the Letters of
Credit herein contemplated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower and the L/C Issuer shall not be obligated to
issue any Letter of Credit in violation of any limitation or prohibition
provided by any applicable statute or regulation.
10.3. STAMP DUTIES. The Borrower shall pay and forthwith on
demand indemnify each of the Agent, each Lender and the L/C Issuer against
any liability it incurs in respect of any stamp, registration and similar tax
which is or becomes payable in connection with the entry into, performance or
enforcement of any Loan Document.
10.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT; INDEPENDENCE OF COVENANTS. The Loan
Documents (together with the fee letter agreement described herein) embody
the entire agreement and understanding among TLGI, the Borrower, the Agent,
the Lenders, the L/C Issuer and the Collateral Agent and supersede all prior
agreements and understandings among TLGI, the Borrower, the Agent, the
Lenders, the L/C Issuer and the Collateral Agent relating to the subject
matter thereof. Except as otherwise expressly provided herein, no provision
of this Agreement shall be construed as waiving, negating or otherwise
qualifying any restriction, limitation or other condition imposed by any
other provision of this Agreement.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and not joint and
no Lender shall be the partner or agent of any other (except to the extent to
which the Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other than the parties
to this Agreement and their respective successors and assigns.
10.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Agent and the Documentation Agent for any costs, internal charges and out-of-
pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent) paid or incurred by the Agent or the Documentation
Agent in connection with the preparation, negotiation, execution,
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delivery, review, amendment, modification and administration of the Loan
Documents. Such costs, charges and out-of-pocket expenses shall include,
without limitation, those arising in connection with the litigation audit
conducted by the Agent and its counsel, and all such costs, charges and
out-of-pocket expenses shall be payable regardless of whether the
transactions contemplated by this Agreement and the other Loan Documents
shall ever be consummated. TLGI and the Borrower also agree to reimburse the
Agent, the L/C Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges
of attorneys for the Agent, the L/C Issuer and the Lenders, which attorneys
may be employees of the Lenders) paid or incurred by the Agent, the L/C
Issuer or any Lender in connection with the collection and enforcement of the
Loan Documents. TLGI and the Borrower further agree to indemnify the Agent,
the Documentation Agent, the L/C Issuer and each Lender, and their respective
directors, officers, partners and employees, against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent, the Documentation Agent, the L/C Issuer or any Lender is a party
thereto) which any of them may pay or incur arising out of or relating to
this Agreement, the other Loan Documents, the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Revolving Loan, Swing Line Loan or Letter of Credit
hereunder. Without limiting the generality of the foregoing, in the event
that any of the Agent, the Documentation Agent, the L/C Issuer or any Lender
(each an "INDEMNIFIED PARTY") becomes involved in any capacity in any action,
proceeding or investigation brought by or against any Person, including
stockholders of TLGI, in connection with or as a result of either the
arrangements evidenced by this Agreement and the other Loan Documents or any
matter referred to herein or therein, TLGI and the Borrower, jointly and
severally, periodically will reimburse such Indemnified Party for its
reasonable legal and other expenses (including the cost of any investigation
and preparation) incurred in connection therewith. TLGI and the Borrower,
jointly and severally, also will indemnify and hold such Indemnified Party
harmless against any and all losses, claims, damages or liabilities to any
such Person in connection with or as a result of either the arrangements
evidenced by this Agreement and the other Loan Documents or any matter
referred to herein or therein, except to the extent that any such loss,
claim, damage or liability results from the gross negligence or bad faith of
such Indemnified Party in performing the services that are the subject
hereof. If for any reason the foregoing indemnification is unavailable to an
Indemnified Party or insufficient to hold it harmless, then TLGI and the
Borrower, jointly and severally, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative
economic interests of TLGI, the Borrower and their stockholders on the one
hand and such Indemnified Party on the other hand in the matters contemplated
herein as well as the relative fault of TLGI, the Borrower and such
Indemnified Party with respect to such loss, claim, damage or liability and
any other relevant equitable considerations. The reimbursement, indemnity
and contribution obligations of TLGI and the Borrower hereunder shall be in
addition to any liability which TLGI and the Borrower may otherwise have,
shall extend upon the same terms and conditions to any Affiliate of any
Indemnified Party and the partners, directors, agents, employees and
controlling Persons (if any), as the case may be, of such Indemnified Party
and any such Affiliate, and shall
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be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of TLGI, the Borrower, the Indemnified Parties,
any such Affiliate and any such Person. TLGI and the Borrower also agree
that neither any Indemnified Party nor any of such Affiliates, partners,
directors, agents, employees or controlling Persons shall have any liability
to TLGI, the Borrower, any Person asserting claims on behalf of or in right
of TLGI or the Borrower or any other Person in connection with or as a result
of either the arrangements evidenced by this Agreement and the other Loan
Documents or any matter referred to herein or therein except to the extent
that any losses, claims, damages, liabilities or expenses incurred by TLGI or
the Borrower result from the gross negligence or bad faith of such
Indemnified Party in performing the services that are the subject hereof.
The obligations of TLGI and the Borrower under this SECTION 10.7 shall
survive the termination of this Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may retain one and furnish one to
each of the Lenders.
10.9. ACCOUNTING; CURRENCY CONVERSIONS. Except as provided to the
contrary herein, all accounting terms used herein shall be interpreted and
all accounting determinations hereunder shall be made in accordance with
Agreement Accounting Principles; PROVIDED, HOWEVER, that (a) to the extent
that any change in GAAP shall alter the result of any financial covenant or
test or any other accounting determination to be computed or made hereunder,
TLGI and the Borrower agree that such covenant, test or other determination
shall continue to be computed or made on the basis of Agreement Accounting
Principles as in effect prior to such change in GAAP, unless the Required
Lenders shall otherwise consent and (b) the MIPS shall be deemed to
constitute capital stock of TLGI for purposes of this Agreement. To the
extent that for purposes of computing any financial covenant or test or
making any other accounting determination hereunder, any amount denominated
in one currency must be converted into another currency, such conversion
shall be made in a manner that accords with the currency conversion policies
and procedures used in preparing the financial statements of TLGI, the
Borrower and the other Subsidiaries on the basis of which the relevant
computations or determinations are or will be made, unless the Required
Lenders shall have specified an alternative basis for making such conversions.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
10.11. NONLIABILITY OF LENDERS. The relationship between the
Borrower, on the one hand, and the Lenders, the L/C Issuer and the Agent, on
the other hand, shall be solely that of borrower and lender and the
relationship between TLGI and the Subsidiaries (other than the Borrower), on
the one hand, and the Lenders, the L/C Issuer and the Agent, on the other
hand,
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shall be construed accordingly. None of the Agent, the L/C Issuer or any
Lender shall have any fiduciary responsibilities to TLGI, the Borrower or any
other Subsidiary. None of the Agent, the L/C Issuer or any Lender undertakes
any responsibility to TLGI, the Borrower or any other Subsidiary to review or
inform TLGI, the Borrower or any other Subsidiary of any matter in connection
with any phase of the business or operations of TLGI, the Borrower or any
other Subsidiary.
10.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.13. CONSENT TO JURISDICTION. EACH OF TLGI AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND EACH OF
TLGI AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH
COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT, THE L/C ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST TLGI OR THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
TLGI OR THE BORROWER AGAINST THE AGENT, THE L/C ISSUER OR ANY LENDER OR ANY
AFFILIATE OF THE AGENT, THE L/C ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED
WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT
SITTING IN NEW YORK CITY.
EACH OF THE BORROWER AND TLGI HEREBY IRREVOCABLY APPOINTS THELEN,
MARRIN, XXXXXXX & XXXXXXX (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE
HEREOF AT 000 XXXXXXX XXXXXX, 00XX XXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION:
XXXXX X. XXXXXXXX, ESQ., AS ITS AGENT TO RECEIVE ON BEHALF OF THE BORROWER OR
TLGI, AS APPLICABLE, AND ITS PROPERTY SERVICE OF COPIES OF THE SUMMONS AND
COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH
PROCESS TO THE BORROWER OR TLGI, AS APPLICABLE, IN CARE OF THE PROCESS AGENT AT
THE PROCESS AGENT'S ABOVE ADDRESS WITH A COPY TO THE BORROWER OR TLGI, AS
APPLICABLE, AT ITS ADDRESS FOR NOTICES
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HEREUNDER, AND THE BORROWER OR TLGI, AS APPLICABLE, HEREBY IRREVOCABLY
AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS
BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH OF TLGI AND THE BORROWER
ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO ITS ADDRESS
FOR NOTICES HEREUNDER. EACH OF TLGI AND THE BORROWER AGREES THAT A FINAL
JUDGMENT IN ANY SUCH 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.
10.14. WAIVER OF JURY TRIAL. TLGI, THE BORROWER, THE AGENT, THE
L/C ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
10.15. CONFIDENTIALITY. Each of the Agent, each Lender and the
L/C Issuer agrees to hold any confidential information identified in writing
as such which it may receive from TLGI, the Borrower or any other Subsidiary
pursuant to this Agreement in confidence, except for disclosure (a) to other
Lenders, the L/C Issuer and the Agent and their respective Affiliates, (b) to
legal counsel, accountants and other professional advisors to the Agent, the
L/C Issuer or that Lender or to a Transferee, (c) to regulatory officials and
examiners, (d) to any Person as requested pursuant to or as required by law,
regulation or legal process, (e) to any Person in connection with any legal
proceeding to which the Agent, the L/C Issuer or that Lender is a party, and
(f) permitted by SECTION 13.4.
10.16. JUDGMENT CURRENCY. If the Agent, the L/C Issuer or any
Lender receives an amount in respect of the Borrower's or TLGI's liability
under the Loan Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"contractual currency") in which the amount is expressed to be payable under
the relevant Loan Document, (a) TLGI and the Borrower, as applicable, shall
indemnify the Agent, the L/C Issuer or such Lender, as applicable, as an
independent obligation against any loss, cost, expense or liability arising
out of or as a result of the conversion; (b) if the amount received by the
Agent, the L/C Issuer or such Lender, as applicable, when converted into the
contractual currency at a market rate on the date of receipt by the Agent,
the L/C Issuer or such Lender in the usual course of its business, is less
than the amount owed in the contractual currency, the Borrower or TLGI, as
applicable, shall forthwith on demand pay to the Agent, the L/C Issuer or
such Lender, as applicable, an amount in the contractual currency equal to
the deficit; and (c) TLGI or the Borrower, as applicable, shall pay to the
Agent, the L/C Issuer or such Lender, as applicable, on demand any exchange
costs and taxes payable in connection with any such conversion. Each of the
Borrower and TLGI waives any right it may have in any jurisdiction to the
extent permitted
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by law to pay any amount under the Loan Documents in a currency other than
that in which it is expressed to be payable.
10.17. CANADIAN INTEREST ANTIDOTES. (a) Notwithstanding any
other provision of this Agreement, if and to the extent that the laws of
Canada are applicable to interest payable under this Agreement, no interest
on the credit advanced will be payable in excess of that permitted by the
laws of Canada. If the effective annual rate of interest, calculated in
accordance with generally accepted actuarial practices and principles, would
exceed 60% (or such other rate as the Parliament of Canada may determine from
time to time as the criminal rate) on the credit advanced, then: (i) the
amount of any charges for the use of money, expenses, fees, bonuses,
commissions or other charges payable in connection therewith will be reduced
to the extent necessary to eliminate such excess; (ii) any remaining excess
that has been paid will be credited towards repayment of the principal
amount; and (iii) any overpayment that may remain after such crediting will
be returned forthwith on demand. In this paragraph the terms "interest,"
"criminal rate" and "credit advanced" have the meaning ascribed to them in
Section 347 of the Criminal Code (Canada).
(b) If and to the extent that the laws of Canada are applicable
to interest payable under this Agreement, for the purpose of the Interest Act
(Canada) the yearly rate of interest to which interest calculated on the
basis of a 360- or 365-day year is equivalent is the rate of interest
determined as herein provided multiplied by the number of days in such year
and divided by 360 or 365, as the case may be.
10.18. COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall become
effective on the Effective Date.
ARTICLE XI
THE AGENT AND THE DOCUMENTATION AGENT
11.1. APPOINTMENT. Bank of Montreal is hereby appointed Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the agent of such Lender. The
Agent agrees to act as such upon the express conditions contained in this
ARTICLE XI. The Agent shall not have a fiduciary relationship in respect of
TLGI, the Borrower, any other Subsidiary or any Lender by reason of this
Agreement.
11.2. POWERS. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Agent shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
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11.3. GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any or all of TLGI, the
Borrower, any other Subsidiary, the Lenders or the L/C Issuer for any action
taken or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith except for its or their own
gross negligence or willful misconduct.
11.4. NO RESPONSIBILITY FOR REVOLVING LOANS, SWING LINE LOANS,
RECITALS, ETC. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in connection with
any Loan Document or any extension of credit hereunder; (b) the performance or
observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of any condition
specified in ARTICLE IV, except receipt of items required to be delivered to the
Agent; or (d) the validity, effectiveness or genuineness of any Loan Document or
any other instrument or writing furnished in connection therewith. The Agent
shall have no duty to disclose to the Lenders or the L/C Issuer information that
is not required to be furnished by TLGI or the Borrower to the Agent at such
time, but is voluntarily furnished by TLGI or the Borrower to the Agent (either
in its capacity as Agent or in its individual capacity).
11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders or, in the case of any act or failure to act calculated to
give rise to any of the events or circumstances described in CLAUSES (a) through
(f) of SECTION 9.2, each affected Lender, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Revolving Loans and participations in Swing Line Loans,
Reimbursement Obligations and Letters of Credit. The Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders PRO RATA against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
11.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any
of its duties as Agent hereunder and under any other Loan Document by or
through employees, agents and attorneys-in-fact and shall not be answerable
to the Lenders or the L/C Issuer, except as to money or securities received
by it or its authorized agents, for the default or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. The Agent
shall be entitled to advice of counsel concerning all matters pertaining to
the agency hereby created and its duties hereunder and under any other Loan
Document.
11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled
to rely upon any record, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper
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person or persons and, with respect to legal matters, upon the opinion of
counsel selected by the Agent, which counsel may be employees of the Agent.
11.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (a) for any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under the Loan Documents, (b)
for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents to the extent not otherwise reimbursed by the
Borrower and (c) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, PROVIDED that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Agent. The obligations of the Lenders under this SECTION 11.8 shall survive
payment of the Obligations and termination of this Agreement.
11.9. RIGHTS AS A LENDER. In the event the Agent or the
Documentation Agent is a Lender, the Agent and the Documentation Agent shall
each have the same rights and powers hereunder and under any other Loan Document
as any Lender and may exercise the same as though it were not the Agent or the
Documentation Agent, respectively, and the term "Lender" or "Lenders" shall, at
any time when the Agent or the Documentation Agent is a Lender, unless the
context otherwise indicates, include the Agent or the Documentation Agent in its
individual capacity. The Agent and the Documentation Agent may accept deposits
from, lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with TLGI, the Borrower or any other Subsidiary in which
TLGI, the Borrower or any such other Subsidiary is not restricted hereby from
engaging with any other Person.
11.10. LENDERS' CREDIT DECISIONS. Each Lender acknowledges that it
has, independently and without reliance upon the Agent, the Documentation Agent
or any other Lender and based on the financial statements prepared by TLGI and
the Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent, the Documentation Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
11.11. SUCCESSOR AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders, the L/C Issuer and the Borrower, such
resignation to be effective
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upon the appointment of a successor Agent or, if no successor Agent has been
appointed, 45 days after the resigning Agent gives notice of its intention to
resign. The Agent shall so resign if at any time it ceases to be a Lender.
Upon any such resignation the Required Lenders shall have the right to
appoint, on behalf of the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within 30 days after the
resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Lenders, a successor Agent. If
the Agent has resigned and no successor Agent has been appointed, the Lenders
may perform all the duties of the Agent hereunder and the Borrower shall make
all payments in respect of the Obligations to the applicable Lender (except for
payments required to be made directly to the L/C Issuer) and for all other
purposes shall deal directly with the Lenders and the L/C Issuer. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Agent. Upon the
effectiveness of the resignation of the Agent, the resigning Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this ARTICLE XI shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
11.12. AGENT'S FEE. The Borrower agrees to pay to the Agent, for
its own account, the fees agreed to by the Borrower and the Agent pursuant to
that certain letter agreement dated as of May 15, 1996, or as otherwise agreed
from time to time.
11.13. DOCUMENTATION AGENT. The Documentation Agent shall have no
rights, duties, liabilities or obligations under or in connection with this
Agreement except for such rights as are expressly granted to it in this
Agreement, including in SECTION 10.7, and the Documentation Agent shall not have
any fiduciary relationship in respect of TLGI, the Borrower, any other
Subsidiary or any Lender by reason of this Agreement.
ARTICLE XII
SETOFF; RATABLE PAYMENTS
12.1. SETOFF. In addition to, and without limitation of, any rights
of the Lenders and the L/C Issuer under applicable law, if TLGI or the Borrower
becomes insolvent, however evidenced, or any Default occurs, any and all
deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or the L/C Issuer to or for the credit or account of
TLGI or the Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender or the L/C Issuer, whether or not the
Obligations, or any part hereof, shall then be due.
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12.2. RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Facility A Revolving Loans or its
Facility B Revolving Loans or its participation in Swing Line Loans,
Reimbursement Obligations or Letters of Credit (other than payments received
pursuant to SECTION 3.1, 3.2 or 3.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Facility A Revolving Loans and the Facility B Revolving Loans and
the participations in Swing Line Loans, Reimbursement Obligations and Letters of
Credit held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Facility A Revolving Loans and Facility B
Revolving Loans and its ratable participation in Swing Line Loans, Reimbursement
Obligations and Letters of Credit. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Facility A Revolving Loans, Facility B Revolving Loans,
L/C Interest and Swing Line Interest. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of TLGI, the Borrower,
the Agent, the Documentation Agent, the Collateral Agent, the L/C Issuer and the
Lenders and their respective successors and assigns, except that (a) neither
TLGI nor the Borrower shall have the right to assign its rights or obligations
under the Loan Documents and (b) any assignment by any Lender (including the
Swing Line Lender) must be made in compliance with SECTION 13.3.
Notwithstanding CLAUSE (b) of the preceding sentence, any Lender may at any
time, without the consent of TLGI, the Borrower, the Agent, the Collateral Agent
or the L/C Issuer, assign all or any portion of its rights under this Agreement
to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such assignment to a
Federal Reserve Bank shall release the transferor Lender from its obligations
hereunder. In order to facilitate such assignment, the Borrower hereby agrees
that, upon request of any Lender at any time and from time to time after the
Borrower has made its initial borrowing hereunder, the Borrower shall provide to
such Lender, at the Borrower's own expense, a promissory note, substantially in
the form of EXHIBITS A-1 and A-2 hereto, evidencing the Facility A Revolving
Loans and the Facility B Revolving Loans, respectively, owing to such Lender.
The Agent may treat the payee of any Revolving Loan as the owner thereof for all
purposes hereof unless and until such payee complies with SECTION 13.3 in the
case of an assignment thereof or, in the case of any other transfer, a written
notice of the transfer is filed with the Agent. Any assignee or transferee of a
Revolving Loan, a Swing Line Loan, a participation in a Swing Line Loan, a
participation in a Letter of Credit or a participation in a Reimbursement
Obligation agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents, and any request, authority or consent of any
Person, who at
94
the time of making such request or giving such authority or consent is the
holder of any Revolving Loan, Swing Line Loan, participation in a Swing Line
Loan, participation in a Letter of Credit or participation in a Reimbursement
Obligation, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Revolving Loan, Swing Line Loan, participation
in a Swing Line Loan, participation in a Letter of Credit or participation in
a Reimbursement Obligation.
13.2. PARTICIPATIONS.
13.2.1 PERMITTED PARTICIPATIONS; EFFECT. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks or other entities (each
such bank or other entity being referred to herein as a "PARTICIPANT")
participating interests in any Revolving Loan owing to such Lender,
any Swing Line Interest or L/C Interest held by such Lender, the
Commitment of such Lender or any other interest of such Lender under
the Loan Documents; PROVIDED, HOWEVER, that no Lender shall grant a
participating interest to any entity which is engaged in any business
which is competitive in any material respect with the business of
TLGI, the Borrower or any of the Subsidiaries of TLGI. In the event
of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Revolving Loan, Swing Line
Interest or L/C Interest for all purposes under the Loan Documents,
all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests
and TLGI, the Borrower, the L/C Issuer and the Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents. The
participation agreement effecting the sale of any participating
interest shall contain a representation by the Participant to the
effect that none of the consideration used to make the purchase of the
participating interest in the Commitment, Revolving Loans, the Swing
Line Loans, the Swing Line Interests and the L/C Interests under such
participation agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Participant in and under the Loan
Documents will not be "plan assets" under ERISA.
13.2.2 VOTING RIGHTS. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any
Revolving Loan, Swing Line Loan, Swing Line Interest, L/C Interest or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Revolving Loan, Swing Line Loan,
Swing
95
Line Interest, L/C Interest or Commitment, or postpones any date
fixed for any regularly scheduled payment of principal of, or interest
or fees on, any such Revolving Loan, Swing Line Loan, Swing Line
Interest, L/C Interest or Commitment.
13.2.3 SETOFF. Each Lender's right to exercise its right of
setoff provided in SECTION 12.1 shall not be reduced or impaired by
any grant by such Lender of a participating interest to a Participant.
13.3. ASSIGNMENTS.
13.3.1 PERMITTED ASSIGNMENTS. (a) Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign to one or more banks or other entities
("PURCHASERS") all or any part of its Commitment and outstanding
Revolving Loans, Swing Line Interests and L/C Interests, together with
its rights and obligations under the Loan Documents with respect
thereto; PROVIDED, HOWEVER, that (i) each such assignment shall be of
a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations so assigned; (ii) any such assignment
by such Lender of its Facility A Revolving Loans, Facility A
Commitment, Swing Line Interest or L/C Interest shall include a PRO
rata assignment of such Lender's Facility B Revolving Loans and
Facility B Commitment, and any such assignment by such Lender of its
Facility B Revolving Loans or Facility B Commitment shall include a
PRO RATA assignment of such Lender's Facility A Revolving Loans,
Facility A Commitment, Swing Line Interest and L/C Interest; (iii) the
amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of such
assignment) may be in the amount of such Lender's entire Commitment
but otherwise shall not be less than $5,000,000 or an integral
multiple of $1,000,000 in excess of that amount; and (iv)
notwithstanding the foregoing CLAUSE (iii), (x) if the assignment is
made to a Lender or an Affiliate of the assigning Lender, the amount
of the Commitment assigned shall not be less than $1,000,000 and (y)
if the assignment is made pursuant to SECTION 2.18(a)(ii), the
Commitment assigned may be in the amount of the relevant Non-
Consenting Lender's entire remaining Commitment after giving effect to
all assignments pursuant to SECTION 2.18(a)(i). Such assignment shall
be substantially in the form of EXHIBIT D hereto or in such other form
as may be agreed to by the parties thereto. The consent of TLGI, the
Borrower, the L/C Issuer and the Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not
a Lender; PROVIDED, HOWEVER, that if a Default has occurred and is
continuing, the consent of neither TLGI nor the Borrower shall be
required. Such consents shall not be unreasonably withheld.
96
(b) The Swing Line Lender may, in accordance with applicable
law, at any time assign to a single Purchaser all (but not less than
all) of the Swing Line Commitment and the outstanding Swing Line
Loans, together with the rights and obligations of the Swing Line
Lender under the Loan Documents with respect thereto; PROVIDED,
HOWEVER, that the consent of the Agent, the Required Lenders and the
Borrower shall be required prior to such assignment becoming
effective. Such assignment shall be in such form as the Agent, the
Borrower and the Swing Line Lender shall agree. Such assignment shall
become effective on the date agreed to by the Agent and the Swing Line
Lender. Any such assignment pursuant to this SECTION 13.3.1(b) shall
be a "SWING LINE ASSIGNMENT". All provisions of SECTION 13.3.2 shall
be applicable to any Swing Line Assignment, except for the first two
sentences thereof, and except that each reference therein to
"assignment", "Lender", "Commitment" and "Revolving Loans" shall be
deemed to be references to the Swing Line Assignment, Swing Line
Lender, Swing Line Commitment and Swing Line Loans, respectively.
13.3.2 EFFECT; EFFECTIVE DATE OF ASSIGNMENTS. Solely with
respect to assignments under SECTION 13.3.1(a), upon (a) delivery to
the Agent of a notice of assignment, substantially in the form
attached to EXHIBIT D hereto (a "NOTICE OF ASSIGNMENT"), together with
any consents required by SECTION 13.1, and (b) payment of a $3,500 fee
to the Agent for processing such assignment, such assignment shall
become effective on the date for effectiveness specified in such
Notice of Assignment. If any such assignment is made as contemplated
by the terms of SECTION 2.18 or SECTION 3.5 at the request of the
Borrower, or is otherwise made at the request of the Borrower, the
$3,500 fee shall be paid by the Borrower. The Notice of Assignment
shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Commitment,
Revolving Loans, Swing Line Interest and L/C Interest under the
applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under
the Loan Documents will not be "plan assets" under ERISA. On and
after the date such assignment becomes effective, such Purchaser shall
for all purposes be a Lender party to this Agreement and any other
Loan Document executed by or on behalf of the Lenders and shall have
all the rights and obligations of a Lender under the Loan Documents,
to the same extent as if it were an original party hereto and thereto,
and the transferor Lender shall be released with respect to the
percentage of the Aggregate Commitment, Revolving Loans, Swing Line
Interest and L/C Interest assigned to such Purchaser without any
further consent or action by TLGI, the Borrower, the Lenders, the L/C
Issuer or the Agent being required. Upon the consummation of any
assignment to a Purchaser pursuant to this SECTION 13.3.2, the
transferor Lender, the Agent and the Borrower shall make appropriate
notations in their respective records to reflect the principal amounts
of the Commitments of the transferor Lender and the Purchaser, as
adjusted pursuant to
97
such assignment. In connection with the foregoing, the Agent shall
maintain at its address referred to in SECTION 14.1 a copy of each
Notice of Assignment delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders, the
Commitments of such Lenders, the principal amount of each Type of
Revolving Loan owing to each such Lender from time to time and the
principal amount of each Swing Line Loan owing to the Swing Line
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of clearly demonstrable error, and TLGI,
the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Revolving
Loans and the Swing Line Loans recorded therein for all purposes of
this Agreement. The Register shall be available for inspection by
TLGI, the Borrower, or any Lender at any reasonable time and from
time to time upon reasonable prior notice. The Agent shall give
prompt written notice to the Borrower of the making of any entry
in the Register or any change in any such entry.
13.4. DISSEMINATION OF INFORMATION. Each of TLGI and the Borrower
authorizes each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of TLGI and the Borrower and
the other Subsidiaries; provided that each Transferee and prospective Transferee
agrees to be bound by SECTION 10.15.
13.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.17.
ARTICLE XIV
NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION
2.13(d) with respect to Revolving Loans and SECTION 2.27(d) with respect to
Swing Line Loans, all notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed or delivered to such party at its address
set forth below its signature hereto or at such other address as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2. CHANGE OF ADDRESS. The Borrower, TLGI, the Agent, the L/C
Issuer and any Lender may each change the address for service of notice upon it
by a notice in writing to the
98
other parties hereto.
ARTICLE XV
COLLATERAL TRUST AGREEMENT
15.1. APPOINTMENT OF SECURED PARTY REPRESENTATIVE. Each Lender
hereby irrevocably appoints the Agent as its Secured Party Representative under
(and as defined in) the Collateral Trust Agreement to serve for so long as the
Agent shall be the Agent hereunder.
15.2. APPOINTMENT OF ENFORCEMENT REPRESENTATIVES. Whenever the
Lenders shall be entitled to vote on the selection of one or more Enforcement
Representatives under (and as defined in) the Collateral Trust Agreement, the
Agent shall cast on behalf of all of the Lenders all of the votes to which the
Lenders are entitled for (x) such natural person as the Agent shall select (who
may be, but need not be, an employee or officer of the Agent), and (y) such
other natural persons, if any, as shall have been selected by a vote of the
Required Lenders; provided that by a vote of the Required Lenders any such
Enforcement Representative (including the Enforcement Representative selected by
the Agent) may be replaced.
15.3. ACTIONS OF LENDERS. Any actions, including votes, to be taken
by the Lenders under the terms of the Collateral Trust Agreement (whether in
respect of releases of collateral, enforcement actions, amendments, waivers or
otherwise) shall in all respects be subject to the terms of this Agreement
(including, without limitation, SECTION 9.2).
ARTICLE XVI
AMENDMENT AND RESTATEMENT
16.1. AMENDMENT AND RESTATEMENT. On the date that all of the
conditions precedent to the effectiveness of this Agreement have been satisfied
(the "RESTATEMENT EFFECTIVE DATE") (i) the full principal balance of all of the
Revolving Loans (as defined in the Original Agreement) outstanding under the
Original Agreement on such date (the "PRIOR LOANS") shall be converted into and
continued as Facility A Revolving Loans hereunder; (ii) all Letters of Credit
(as defined in the Original Agreement) issued and outstanding under the Original
Agreement shall remain issued and outstanding in accordance with their
respective terms and all L/C Obligations (as defined in the Original Agreement)
whenever arising in connection therewith (the "PRIOR L/C OBLIGATIONS") shall
become L/C Obligations hereunder and all L/C Interests (as defined in the
Original Agreement) outstanding on such date in connection therewith shall be
converted into and continued as L/C Interests hereunder; (iii) the full
principal balance of all Swing Line Loans (as defined in the Original Agreement)
outstanding under the Original Agreement on such date (the "PRIOR SWING LINE
LOANS") shall be converted into and continued as Swing Line Loans hereunder and
all Swing Line Interests (as defined in the Original Agreement) outstanding on
such date in connection therewith shall be converted into and continued as Swing
99
Line Interests hereunder; and (iv) all fees and other obligations of the
Borrower which shall have accrued but which shall remain unpaid on the
Restatement Effective Date (the "ACCRUED FEES") shall be converted into and
continued as obligations of the Borrower hereunder. The Prior Loans, Prior L/C
Obligations, Prior Swing Line Loans and Accrued Fees outstanding on the
Restatement Effective Date shall not be deemed to have been repaid as a result
of this amendment and restatement or the operation of this ARTICLE XVI. The
parties hereto agree that this Agreement shall not be deemed to be a novation of
the Obligations (as defined in the Original Agreement) or any other obligations
of the Borrower, TLGI or any other Guarantor arising under the Original
Agreement or the other Loan Documents (as defined in the Original Agreement).
Each Lender which has received a note or notes evidencing the Prior Loans made
by such Lender agrees to return to the Borrower such note or notes marked
"replaced and superseded," which note or notes, but only upon the express
request of such Lender, shall be replaced by a promissory note substantially in
the form of EXHIBIT A-1 hereto issued on the terms and conditions set forth in
this Agreement. On the Restatement Effective Date, to the extent necessary to
properly reflect the Commitments of the Lenders and the interest rates, fees and
other charges applicable to the Advances and the other Obligations, the Agent
shall cause some or all of the Lenders to purchase or sell Facility A Revolving
Loans, L/C Interests and/or Swing Line Interests from one or more other Lenders
(which purchases and sales shall be deemed to have occurred concurrently with
the execution and delivery of this Agreement by all such purchasing and selling
Lenders, without any further action or evidence thereof), and the Agent shall
reset interest rates and assess charges for the costs and expenses of the type
described in ARTICLE III to the extent necessary to permit such purchases and
sales of Facility A Revolving Loans, L/C Interests and/or Swing Line Interests,
and the Agent shall assess whatever other amounts may be due from the Borrower
in connection with the foregoing (which resets of rates and assessments shall
become effective upon the giving by the Agent of notice thereof, without any
further action or evidence thereof).
16.2. DEPARTING LENDERS. Upon the Restatement Effective Date, each
of the Lenders (as defined in the Original Agreement) identified on SCHEDULE 7
shall cease to be a "Lender" under and for all purposes of the Original
Agreement as amended and restated by this Agreement and shall have no further
rights or obligations thereunder, except for (i) the right to receive payment on
the Restatement Effective Date of all principal, accrued interest, accrued fees
and other amounts then payable to it under the Original Agreement, and (ii)
rights which by the terms of the Original Agreement expressly survive the
termination thereof.
100
IN WITNESS WHEREOF, the Borrower, TLGI, the Lenders, the L/C Issuer
and the Agent have executed this Agreement as of the date first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By:___________________________________________
Print Name: Xxxx Xxxxxx
Title: Senior Vice President, Finance
and Chief Financial Officer
Address:
Xxxxxx Group International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
X.X.X.
Attention: Senior Vice President, Finance
and Chief Financial Officer
Facsimile No.: (000) 000-0000
with a copy to:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Vice President, Finance
Facsimile No.: (000) 000-0000
THE XXXXXX GROUP INC.
By:___________________________________________
Print Name: Xxxx Xxxxxx
Title: Senior Vice President, Finance
and Chief Financial Officer
Address:
The Xxxxxx Group Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attention: Senior Vice President, Finance
and Chief Financial Officer
S-1
Facsimile No.: (000) 000-0000
BANK OF MONTREAL, as L/C Issuer, Swing Line
Lender and Administrative and Syndication
Agent
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P., as
Documentation Agent
By:___________________________________________
Print Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
Address:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
S-2
LENDERS
ALLIED IRISH BANKS, P.L.C., CAYMAN ISLANDS
BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
BANK BRUSSELS XXXXXXX, NEW YORK BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
S-3
BANKERS TRUST COMPANY
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
One Bankers Trust Plaza
130 Liberty Street
34th Floor, Mail Stop 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Attention: Loan Portfolio
Royal Bank Plaza, North Tower
Suite 1700, 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Facsimile: (000) 000-0000
BANK ONE, NA
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
X-0
XXXX XX XXXXXX
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
BANK OF MONTREAL
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
THE BANK OF NEW YORK
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
S-5
BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
BANK POLSKA KASA OPIEKI, S.A.
PEKAO S.A. GROUP NEW YORK BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
S-6
CAISSE NATIONALE DE CREDIT AGRICOLE
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
CIBC INC.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
CITIBANK CANADA
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000-000 0xx Xxxxxx XX
Xxxxxxx XX Xxxxxx T2P442
S-7
COMERICA BANK
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
CORESTATES BANK, N.A.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000 Xxxxxxxx Xxxxxx
FC 0-0-0-00
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
THE DAI-ICHI KANGYO BANK, LIMITED
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
X-0
XXXXXXXX XXXX XX, XXX XXXX BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
FIRST NATIONAL BANK OF COMMERCE
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xx. Xxxxxxx Xxxxxx
28th Floor
New Orleans, Los Angeles 70170
Facsimile: (000) 000-0000
FIRST HAWAIIAN BANK
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
S-9
THE FUJI BANK, LIMITED
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:___________________________________________
Print Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
Address:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
S-10
HIBERNIA NATIONAL BANK
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
KREDIETBANK N.V.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Kredietbank N.V.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx or
Xxxxx X. Grimmin
Facsimile: (000) 000-0000
X-00
XXXXXX XXXX, N.A.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
One Mellon Bank Center
500 Grant Street
Room 4502
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Mellon Bank Canada
00 Xxxx Xxxxxx Xxxx
X.X. Xxx 000, Xxxxx 0000
Royal Trust Tower
Toronto, Ontario M5K 1K2
CANADA
Attention: X.X. Xxxxxxxxx
Facsimile: (000) 000-0000
THE MITSUBISHI TRUST AND BANKING CORPORATION,
CHICAGO BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
X-00
XX XXXX XXXXXX XXXXXXXXX (PERSERO)
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
00 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
RABOBANK NEDERLAND
NEW YORK BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
with a copy to:
Cooperative Centrale Raiffeisen-
Boerenleenbank B.A.
Rabobank Nederland
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx, Vice President
Facsimile: (000) 000-0000
X-00
XXXXXXXX XXXXXXXX XXXX XX
XXX XXXX
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Republic National Bank of New York
000 Xxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
ROYAL BANK OF CANADA
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
S-14
THE SAKURA BANK, LIMITED,
NEW YORK BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
THE SANWA BANK, LIMITED, ATLANTA AGENCY
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
Georgia-Pacific Center, Suite 4950
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
The Sanwa Bank Canada
BCE Place, Canada Trust Tower
X.X. Xxx 000, Xxxxx 0000
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 XXXXXX
Attention: Xxxx Xxxxx, Account Manager
Facsimile: (000) 000-0000
S-15
THE SUMITOMO BANK LTD.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 X. Xxxxxxxx Xx. #0000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
The Sumitomo Bank Ltd.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, AVP
Facsimile: (000) 000-0000
THE TOYO TRUST & BANKING CO., LTD.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
S-16
U.S. BANCORP
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000 Xxxxx Xxxxxx-XXX 000
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Union Bank of Switzerland
000 Xxxxxxxxxx Xxxxxx
X-00
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx, Assistant
Vice President Structured Finance
Facsimile: (000) 000-0000
WACHOVIA BANK, N.A.
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
S-18
THE YASUDA TRUST AND BANKING CO. LTD., NEW YORK
BRANCH
By:___________________________________________
Print Name:___________________________________
Title:________________________________________
Address:
000 Xxxxx Xxxxxx
Xxxxx #000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
