AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
October 28, 2005
among
GUSAP PARTNERS
PASUG LLC
GERDAU AMERISTEEL SAYREVILLE INC.
GERDAU AMERISTEEL PERTH AMBOY INC.
GERDAU AMERISTEEL US INC.
GERDAU AMERISTEEL LAKE ONTARIO INC.
XXXXXX BROS. CORPORATION
MFT ACQUISITION, CORP.
as the US Borrowers
and
GERDAU AMERISTEEL CORPORATION
GERDAU AMERISTEEL MRM SPECIAL SECTIONS INC.
as the Canadian Borrowers
and
BANK OF AMERICA, N.A.,
as the Administrative Agent
and
BANK OF AMERICA, N.A. (ACTING THROUGH ITS CANADA BRANCH),
as the Canadian Administrative Agent, the Canadian Funding Bank
and the US Funding Bank
and
BANC OF AMERICA SECURITIES LLC
as the Co-Lead Arranger and Co-Book Manager
and
X.X. XXXXXX SECURITIES INC.,
as the Co-Book Manager and Co-Documentation Agent
and
THE CIT GROUP/BUSINESS CREDIT, INC.,
as the Collateral Agent and the Canadian Collateral Agent
and
WACHOVIA CAPITAL FINANCE CORPORATION (CENTRAL),
as Co-Documentation Agent
and
GECC CAPITAL MARKETS GROUP, INC.,
as the Co-Lead Arranger and Co-Documentation Agent
and
CERTAIN FINANCIAL INSTITUTIONS,
NOW OR HEREAFTER PARTIES HERETO
as the Lenders
and
CERTAIN FINANCIAL INSTITUTIONS,
NOW OR HEREAFTER PARTIES HERETO
as the Risk Participants
MULTI-CURRENCY REVOLVING CREDIT FACILITY
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") is made and
entered into as of the 28th day of October, 2005, among Gerdau Ameristeel
Corporation, an Ontario corporation (the "COMPANY"), Gerdau Ameristeel MRM
Special Sections Inc., a Saskatchewan corporation ("MRM SPECIAL SECTIONS", and
collectively with the Company, the "CANADIAN BORROWERS", and individually, a
"CANADIAN BORROWER"), GUSAP Partners, a Delaware general partnership ("GUSAP"),
PASUG LLC, a Delaware limited liability company ("PASUG"), Gerdau Ameristeel
Sayreville Inc., a Delaware corporation ("SAYREVILLE"), Gerdau Ameristeel Perth
Amboy Inc., a New Jersey corporation ("PERTH AMBOY"), Gerdau Ameristeel US Inc.,
a Florida corporation ("AMERISTEEL US"), Gerdau Ameristeel Lake Ontario Inc., a
Delaware corporation ("LAKE ONTARIO"), Xxxxxx Bros. Corporation, a North Dakota
corporation ("XXXXXX BROS."), MFT Acquisition, Corp., a Delaware corporation
("MFT", and collectively with GUSAP, PASUG, Sayreville, Perth Amboy, Ameristeel
US, Lake Ontario and Xxxxxx Bros., the "US BORROWERS" and individually, a "US
BORROWER"; the US Borrowers and the Canadian Borrowers are together referred to
herein as the "BORROWERS" and individually, a "BORROWER"), Bank of America,
N.A., as the Administrative Agent (as successor to The CIT Group/Business
Credit, Inc. in such capacity), Bank of America, N.A. (acting through its Canada
branch), as the Canadian Administrative Agent (as successor to CIT Business
Credit Canada Inc. in such capacity), the Canadian Funding Bank and the US
Funding Bank, Banc of America Securities LLC., as Co-Lead Arranger and Co-Book
Manager, X.X. Xxxxxx Securities Inc., as Co-Book Manager and Co-Documentation
Agent, The CIT Group/Business Credit, Inc., as the Collateral Agent and the
Canadian Collateral Agent, GECC Capital Markets Group, Inc., as Co-Lead Arranger
and Co-Documentation Agent, Wachovia Capital Finance Corporation (Central), as
Co-Documentation Agent, the Issuing Banks (as defined below), each additional
Issuing Bank hereunder from time to time, each of the lenders that is a
signatory hereto or which hereafter becomes a party hereto as provided in
Section 10.7, including the US Swingline Lender and the Canadian Swingline
Lender (as defined below) (individually, a "LENDER" and, collectively, the
"LENDERS"), and each of the Risk Participants (as defined below).
RECITALS:
WHEREAS, the Borrowers, The CIT Group/Business Credit, Inc., as
"Administrative Agent", CIT Business Credit Canada Inc., as "Canadian
Administrative Agent", certain financial institutions (the "EXISTING LENDERS"),
and the other parties named therein entered into that certain Credit Agreement
dated as of June 20, 2003 (as at any time amended, modified, supplemented or
restated prior to the date hereof, the "EXISTING CREDIT AGREEMENT"), pursuant to
which the Existing Lenders agreed to make certain revolving credit loans,
letters of credit, and other financial accommodations to, inter alia, the
Borrowers in an amount not exceeding $350,000,000; and
WHEREAS, pursuant to that certain letter agreement dated the date hereof
and entered into immediately prior to the effectiveness hereof, (a) The CIT
Group/Business Credit, Inc. has resigned as "Administrative Agent" under the
Existing Credit Agreement and Bank of America, N.A. has been appointed as the
successor "Administrative Agent" thereunder, and (b) CIT Business Credit Canada
Inc. has resigned as "Canadian Administrative Agent" under the Existing Credit
Agreement and Bank of America, N.A. (acting through its Canada branch) has been
appointed as the successor "Canadian Administrative Agent" thereunder; and
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be
amended and restated in its entirety to become effective and binding on the
Borrowers and the other Credit Parties pursuant to the terms hereof, and the
Lenders (including the Existing Lenders that are parties hereto), the Agents (as
defined below) and the Risk Participants have agreed, subject to the terms of
this Agreement, to amend and restate the Existing Credit Agreement in its
entirety to read as set forth herein, and it has
been agreed by the parties hereto that (a) the commitments which the Existing
Lenders that are parties hereto extended to the Borrowers under the Existing
Credit Agreement and the commitments of new Lenders that are or become parties
hereto shall be extended or advanced upon the amended and restated terms and
conditions contained in this Agreement and (b) the Loans and other Lender
Indebtedness (as defined below) outstanding under the Existing Credit Agreement
shall be governed by and deemed to be outstanding under the amended and restated
terms and conditions contained herein; and
WHEREAS, all existing Lender Indebtedness is and shall continue to be (and
all Lender Indebtedness incurred pursuant hereto shall be) secured by, among
other things, the Security Instruments and the other Financing Documents (as
defined below) and shall be guaranteed pursuant to the Guarantees (as defined
below).
AGREEMENTS:
In consideration of the mutual covenants and agreements herein contained,
the Borrowers, the Lenders, the Issuing Banks and the Agents hereby agree to
amend and restate the Existing Credit Agreement as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. As used herein, the following terms shall have the
meanings herein specified (to be equally applicable to both the singular and
plural forms of the terms defined). Reference to any party in a Financing
Document means that party and its successors and permitted assigns.
"144A INDENTURE" means that certain Indenture, dated June 27, 2003, by
and among the Company, GUSAP, the Subsidiary Guarantors (as defined therein) and
SouthTrust Bank, as amended, supplemented or otherwise modified or restated from
time to time.
"144A NOTES" means the unsecured senior notes in a principal amount of
$405,000,000 issued pursuant to the 144A Indenture.
"144A TRANSACTION" means the issuance by the Company and GUSAP of
unsecured senior notes in a principal amount of $405,000,000 pursuant to and as
more particularly described in the 144A Indenture.
"ABR" shall have the meaning provided in Section 2.6(a).
"ABR LOAN" means a Revolving Credit Loan or US Swingline Loan bearing
interest at the rate provided in Section 2.6(a).
"ACCOUNT" has the meaning given to such term in Section 9-102(a)(2) of
the UCC or Section 1 of the PPSA, as applicable.
"ACCOUNT PARTY" shall have the meaning assigned to such term in
Section 2.3(d).
"ACQUISITION" means any transaction, or any series of related
transactions, consummated after the Closing Date, by which any Credit Party,
directly or indirectly, by means of a take-over bid, tender offer, amalgamation,
merger, purchase of assets or otherwise (a) acquires any business or all or
substantially all of the assets of any Person engaged in any business, (b)
acquires control of securities of a Person engaged in a business representing
more than 50% of the ordinary voting power for the election of
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directors or other governing position if the business affairs of such Person are
managed by a board of directors or other governing body, or (c) acquires control
of more than 50% of the ownership interest in any Person engaged in any business
that is not managed by a board of directors or other governing body.
"ADJUSTED INTEREST EXPENSE" means the total Interest Expense of the
Company and the other Credit Parties on a consolidated basis and for any period
less any non cash Interest Expense.
"ADMINISTRATIVE AGENT" means Bank of America (as successor to The CIT
Group/Business Credit, Inc.), acting in the capacity and to the extent described
in Article 9, and any successor to Bank of America, acting in such capacity.
"ADVANCE NOTICE" means written or telecopy notice (with telephonic
confirmation in the case of telecopy notice), which in each case shall be
irrevocable, from the applicable Borrowers to be received by the Administrative
Agent (or the Canadian Administrative Agent (with a copy to the Administrative
Agent) in the case of any Borrowing, conversion, continuation or prepayment of
Canadian Loans) before 11:00 a.m., Eastern Time, by the number of Business Days
in advance of any Borrowing, conversion, continuation or prepayment of any Loan
or Loans pursuant to this Agreement as respectively indicated below:
(a) LIBOR Loans - 3 Business Days;
(b) ABR Loans - Same Business Day;
(c) Canadian Prime Loans - Same Business Day; and
(d) B/A Loans - 3 Business Days
For the purpose of determining the applicable period of Advance Notice in the
case of the conversion from one Type of Loan into another, the Loans into which
there is to be a conversion shall control. The Administrative Agent, the
Canadian Administrative Agent, each Issuing Bank and each Lender are entitled to
rely upon and act upon telecopy notice made or purportedly made by the
Borrowers, and the Borrowers hereby waive the right to dispute the authenticity
and validity of any such transaction once the Administrative Agent, the Canadian
Administrative Agent or any Lender has advanced funds or any Issuing Bank has
issued Letters of Credit, absent manifest error.
"AFFILIATE" means (a) any Person controlling, controlled by or under
common control with any other Person, (b) with respect to any Person, any other
Person who is an officer, director, managing member, partner, trustee or
beneficiary of such Person, and (c) any Person who is a spouse, sibling, parent,
grandparent, child or grandchild of a Person described in clauses (a) or (b)
preceding. For purposes of this definition, "CONTROL" (including "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to either (a) vote 10% or more of the Voting Stock of such Person
unless another Person has beneficial ownership of more than 50% of such Voting
Stock or (b) direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise.
"AFTER TAX BASIS" means on a basis such that any payment to be
received or receivable by any Person is supplemented by a further payment or
payments to that Person so that the sum of all such payments, after deducting
all Taxes (taking into account any related credits or deductions) payable by
such Person under any law or Governmental Authority, is equal to the payment due
to such Person, provided, that for these purposes, such Person shall be assumed
to be subject to tax at the highest marginal rate(s) applicable to such Person
with respect to the amounts in question.
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"AGENT" means either of the Administrative Agent or the Canadian
Administrative Agent, and "AGENTS" means both such Agents collectively.
"AGENT ADVANCES" shall have the meaning given to such term in Section
2.28.
"AGGREGATE CANADIAN REVOLVING CREDIT EXPOSURE" means the sum of all of
the Canadian Revolving Lenders' Canadian Revolving Credit Exposures.
"AGGREGATE US REVOLVING CREDIT EXPOSURE" means the sum of all of the
US Revolving Lenders' US Revolving Credit Exposures.
"AGREEMENT" means this Amended and Restated Credit Agreement, as
further amended, supplemented or otherwise modified or restated from time to
time.
"ALLOCATED US REVOLVING CREDIT EXPOSURE" means, in respect of a US
Operating Borrower, that portion of the Aggregate US Revolving Credit Exposure
which, as a result of the allocation of Borrowings to a US Operating Borrower in
accordance with the terms hereof, is attributable to such US Operating Borrower.
"AMERISTEEL US NOTE" means the promissory note of Ameristeel US, dated
April 29, 2005, made payable to XXXX, and subsequently assigned to Xxxxx, in the
original principal amount of $351,000,000.
"AMERISTEEL US OPERATING ACCOUNT" means the account maintained by
Ameristeel US at a financial institution acceptable to the Administrative Agent,
acting reasonably.
"ANTI-TERRORISM LAWS" means any laws relating to terrorism or money
laundering, including Executive Order No. 13224 and the USA Patriot Act.
"APPLICABLE COMMITMENT" means the Canadian Revolving Credit Commitment
or the US Revolving Credit Commitment, as applicable.
"APPLICABLE FUNDING BANK" means, in the case of Canadian Revolving
Credit Loans and Canadian Risk Participations, the Canadian Funding Bank, and,
in the case of US Revolving Credit Loans and US Risk Participations, the US
Funding Bank.
"APPLICABLE MARGIN" means, on any day and with respect to any Loan,
the applicable per annum percentage set forth at the appropriate intersection in
the table shown below, based on the Average Excess Availability for the most
recently ended Fiscal Quarter with respect to which the Borrowers have delivered
financial statements in accordance with Section 6.10(b) and the related
officer's certificate in accordance with Section 6.10(d):
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CANADIAN
PRIME RATE COMMITMENT
LIBOR LOAN AND ABR LOAN LOAN FEE
B/A LOAN APPLICABLE APPLICABLE APPLICABLE
APPLICABLE MARGIN MARGIN MARGIN
AVERAGE EXCESS AVAILABILITY MARGIN PERCENTAGE PERCENTAGE PERCENTAGE PERCENTAGE
------------------------------------------ ----------------- ---------- ---------- ----------
Less than $150,000,000 2.00% 0.50% 1.00% 0.35%
Greater than or equal to $150,000,000 but
less than $300,000,000 1.75% 0.25% 0.75% 0.35%
Greater than or equal to $300,000,000 but
less than $450,000,000 1.50% 0.00% 0.50% 0.30%
Greater than or equal to $450,000,000 but
less than $550,000,000 1.25% (0.25%) 0.25% 0.25%
Greater than or equal to $550,000,000 1.00% (0.50%) 0.00% 0.25%
Any change in the Applicable Margin based on the Average Excess Availability
during a Fiscal Quarter shall be effective as of the first day of the first
calendar month immediately following the Administrative Agent's receipt of the
financial statements with respect to such Fiscal Quarter in accordance with
Section 6.10(b) and the related officer's certificate in accordance with Section
6.10(d). Notwithstanding the foregoing, for the period from the Closing Date
through April 30, 2006, the Applicable Margin for LIBOR Loans and B/A Loans will
be 1.00%, the Applicable Margin for ABR Loans shall be (0.50%), the Applicable
Margin for Canadian Prime Rate Loans shall be 0.00% and the Applicable Margin
for commitment fees payable pursuant to Section 2.13(a) and (b) shall be 0.25%.
If at any time the Borrowers fail to deliver financial statements or the related
officer's certificate for any Fiscal Quarter as required by Sections 6.10(b) and
(d) on or before the date required pursuant thereto (without regard to grace
periods), the Applicable Margins will be the highest margins provided for in the
above table from the date such financial statements and officer's certificate
are due pursuant to Sections 6.10(b) and (d) (without regard to grace periods)
through the date the Administrative Agent receives all financial statements and
officer's certificate with respect to such Fiscal Quarter which are then due
pursuant to Sections 6.10(b) and (d).
"APPLICABLE PERCENTAGE" means, (a) with respect to any US Revolving
Lender, such US Revolving Lender's US Revolving Credit Percentage, and (b) with
respect to any Canadian Revolving Lender, such Canadian Revolving Lender's
Canadian Revolving Credit Percentage, as applicable.
"APPLICABLE RISK PARTICIPATION" means a Canadian Risk Participation or
US Risk Participation, as applicable.
"APPLICABLE RISK PARTICIPATION COMMITMENT" means, in the case of any
Canadian Risk Participant, its Canadian Risk Participant Commitment, and, in the
case of any US Risk Participant, its US Risk Participant Commitment.
"APPLICABLE US OPERATING BORROWER" shall have the meaning given to
such term in Section 2.2(a)(2).
"APPLICATION" means an "Application and Agreement for Letters of
Credit," or similar instruments or agreements, entered into between a Borrower
and an Issuing Bank in connection with any Letter of Credit.
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"ARRANGERS" means Banc of America Securities LLC and GECC Capital
Markets Group, Inc., acting in the capacity and to the extent described in
Article 9, and any successor to Banc of America Securities LLC and GECC Capital
Markets Group, Inc., acting in such capacity.
"ASSIGNED CANADIAN COMMITMENT" shall have the meaning assigned to such
term in Section 2.8(a)(ii).
"ASSIGNED CANADIAN INTERESTS" shall have the meaning assigned to such
term in Section 2.8(a)(ii).
"ASSIGNED CANADIAN LOANS" shall have the meaning assigned to such term
in Section 2.8(a)(ii).
"ASSIGNED US COMMITMENT" shall have the meaning assigned to such term
in Section 2.8(b)(ii).
"ASSIGNED US INTERESTS" shall have the meaning assigned to such term
in Section 2.8(b)(ii).
"ASSIGNED US LOANS" shall have the meaning assigned to such term in
Section 2.8(b)(ii).
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning provided in Section
10.7(b).
"AVAILABILITY RESERVES" means, as of any date of determination, such
amounts as the Administrative Agent or the Canadian Administrative Agent may
from time to time establish and revise in its reasonable discretion reducing the
US Borrowing Base of any US Borrower and/or the Canadian Borrowing Base which
would otherwise be available to the Borrowers under the lending formulas
provided for herein (a) to reflect criteria, events, conditions, contingencies
or risks which, as determined by the Administrative Agent or the Canadian
Administrative Agent in its reasonable discretion, do or may affect either (i)
any component of the US Borrowing Base of any US Borrower or the Canadian
Borrowing Base or their value, (ii) the assets, business, financial performance,
financial condition or prospects of any Borrower, or (iii) the security
interests and other rights of the Administrative Agent and the Canadian
Administrative Agent in the Collateral (including the enforceability, perfection
and priority thereof), or (b) to reflect the Administrative Agent's or the
Canadian Administrative Agent's customary practice or its reasonable belief that
any collateral report or financial information furnished by or on behalf of any
Borrower to any Agent or any Lender is or may have been incomplete, inaccurate
or misleading in any material respect, or (c) in respect of any state of facts
which the Administrative Agent or the Canadian Administrative Agent determines
constitutes a Default or an Event of Default, or (d) with respect to the
Convertible Debentures in accordance with Section 7.20(c). Without limiting the
foregoing, the Administrative Agent or the Canadian Administrative Agent, in its
reasonable discretion, may establish and/or increase Availability Reserves in
respect of (A) fabrication accounts, (B) health insurance self-funding
obligations, (C) rent at leased locations which may be subject to statutory or
contractual landlord liens, (D) Dilution of accounts, (E) warehouseman's or
bailee's charges, where no Bailee's Letter is in effect, (F) inventory
shrinkage, (G) slow moving or obsolete Inventory, (H) liabilities of any Credit
Party under any Cash Management Agreement or Swap Agreement, to the extent such
liabilities have been reported to the Administrative Agent in accordance with
Section 2.11(h) and (i) hereof, (I) statutory claims, deemed trusts or inventory
subject to rights of suppliers under Xxxxxxx 00.0 xx xxx Xxxxxxxxxx xxx
Xxxxxxxxxx Xxx (Xxxxxx), (X) employee or employee benefit related liabilities,
and (K) any other claims which may have priority over the claims of the Agents
and the Lenders. Any Availability Reserve resulting from the establishment of a
new reserve category shall not become effective until the third Business Day
following written notice of the establishment of such new reserve
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category has been given by the Administrative Agent or the Canadian
Administrative Agent to the applicable Borrowers.
"AVERAGE EXCESS AVAILABILITY" means, for any Fiscal Quarter, the
amount obtained by adding the Excess Availability at the end of each day for
such Fiscal Quarter and by dividing such sum by the number of days in such
Fiscal Quarter.
"B/A LOAN" means a C$ Denominated Loan bearing interest based upon the
CDOR Rate.
"BAILEE" means any Person who is in possession of any inventory of any
Credit Party on behalf of such Credit Party.
"BAILEE'S LETTER" means a letter substantially in the form attached as
Exhibit A (or in such other form as may be acceptable to the Administrative
Agent) executed by any Bailee pursuant to which such Bailee acknowledges the
Administrative Agent's Lien or the Canadian Administrative Agent's Lien, as
applicable, with respect thereto.
"BANK OF AMERICA" means Xxxx xx Xxxxxxx, X.X.
"XXXX XX XXXXXXX - XXXXXX BRANCH" means Bank of America, N.A. (acting
through its Canada branch).
"BANKRUPTCY CODE" shall have the meaning provided in Section 8.7.
"BLOCK EVENT" means the occurrence and continuance of a Default or if
Excess Availability shall at any time be less than $65,000,000.
"BLOCKED ACCOUNT" means one or more demand deposit accounts
established by the Canadian Borrowers with a Canadian Lockbox Bank and the US
Borrowers with a US Lockbox Bank which (a) the applicable Borrowers and US
Lockbox Bank or Canadian Lockbox Bank, as applicable, jointly designate as a
"Blocked Account," (b) into which all cash receipts of the applicable Borrowers
from whatever source (including, without limitation, all currency, checks and
drafts representing proceeds of the Collateral and further including any of the
foregoing received in a Lockbox) shall be deposited pursuant to Section 4.3 and
Section 4.4 hereof and pursuant to the Security Instruments, and (c) which are
subject to the provisions of Section 4.5 and Section 4.6 hereof.
"BLOCKED PERSON" has the meaning specified in Section 5.31.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States.
"BONDING OBLIGATIONS" shall have the meaning given to such term in
Section 7.3(f).
"BORROWER" and "BORROWERS" shall have the meanings set forth in the
initial paragraph hereof.
"BORROWING" means a borrowing pursuant to a Borrowing Request or a
continuation or a conversion pursuant to Section 2.12 consisting, in each case,
of the same Type of Loans having, in the case of LIBOR Loans or B/A Loans, the
same Interest Period (except as otherwise provided in Section 2.15 and Section
2.16) and made previously or being made concurrently by all of the Lenders.
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"BORROWING BASE REPORT" means the report of each of the US Operating
Borrowers or each of the Canadian Borrowers concerning the amount of the US
Borrowing Base of each such US Operating Borrower or the Canadian Borrowing
Base, as applicable, to be delivered pursuant to Section 6.10(g), substantially
in the form attached as Exhibit B-1 or B-2 (depending on which Borrowing Base is
being computed).
"BORROWING REQUEST" means a request for a Borrowing pursuant to
Section 2.2(a) or (b), substantially in the form attached as Exhibit C-1 through
C-5 hereof (depending on the Type of Loan with respect to which such Borrowing
Request is being submitted).
"BUSINESS DAY" means any day excluding Saturday, Sunday and any other
day on which banks are required or authorized to close in New York, New York or
Atlanta, Georgia and, if the applicable Business Day relates to LIBOR Loans, on
which trading is carried on by and between banks in Dollar deposits in the
London interbank market and, if the applicable Business Day relates to Canadian
Revolving Credit Loans, including B/A Loans, or the Dollar Equivalent of any
amount denominated in C$, shall also exclude any other day on which banks are
required or authorized to close in Xxxxxxx, Xxxxxxx, Xxxxxx.
"C$" means lawful money of Canada.
"C$ DENOMINATED LOAN" means Canadian Revolving Credit Loans which are
denominated in C$.
"CANADIAN ADMINISTRATIVE AGENT" means Bank of America - Canada Branch
(as successor to CIT Business Credit Canada Inc.), acting in the capacity and to
the extent described in Article 9, and any successor to Bank of America - Canada
Branch acting in such capacity.
"CANADIAN AGENT ADVANCE" means each Agent Advance made to or with
respect to a Canadian Borrower hereunder.
"CANADIAN AVAILABILITY" means, as of any date, (a) the Canadian
Borrowing Base as of such date, minus, without duplication, the Availability
Reserves with respect to the Canadian Borrowing Base as of such date, minus (b)
the aggregate outstanding balance of the Canadian Lender Indebtedness as of such
date and the aggregate face amount of undrawn Canadian Letters of Credit as of
such date. Canadian Availability shall always be determined on the basis that
all debts and obligations shall be current, and all accounts payable shall be
handled in the normal course of the Borrowers' business consistent with their
past practices.
"CANADIAN BLOCKED ACCOUNT" means a Blocked Account established by the
Canadian Borrowers with a Canadian Lockbox Bank.
"CANADIAN BORROWERS" shall have the meaning set forth in the initial
paragraph hereof.
"CANADIAN BORROWING BASE" means, only with respect to the Canadian
Borrowers, the Dollar Equivalent of the sum of:
(1) the Eligible Account Advance Percentage of the Canadian Borrowers'
Eligible Accounts, plus
(2) the lesser of (i) the Eligible Inventory Advance Percentage of the
Canadian Borrowers' Eligible Inventory, or (ii) 85% of the appraised net
recovery value of the Canadian Borrowers'
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Eligible Inventory, determined by reference to the net recovery percentages
determined by the Current Appraisal, minus
(3) the aggregate of all amounts which would otherwise be included in
the Canadian Borrowing Base, but which GUSAP or the applicable US Operating
Borrower has elected to include in the US Borrowing Base of such US Operating
Borrower pursuant to Section 2.2(a).
The Canadian Borrowing Base in effect under this Agreement at any time shall be
the Canadian Borrowing Base reflected on the most recent Canadian Borrowing Base
Report delivered to the Canadian Administrative Agent and the Administrative
Agent pursuant to Section 6.10(g) hereof, subject to (a) immediate adjustment by
the Canadian Administrative Agent or the Administrative Agent to the extent that
the calculations of the Canadian Borrowing Base reflected on such report are not
in accordance with this Agreement, and (b) immediate adjustment as a result of
any changes in eligibility standards required by the Canadian Administrative
Agent, acting reasonably.
"CANADIAN COLLATERAL AGENT" means The CIT Group/Business Credit, Inc.,
acting in the capacity and to the extent described in Article 9, and any
successor to The CIT Group/Business Credit, Inc., acting in such capacity.
"CANADIAN CREDIT PARTY" means the Canadian Borrowers and each other
Credit Party which is formed or organized under the federal laws of Canada or
under the laws of any province or territory in Canada.
"CANADIAN EXCESS AVAILABILITY" means, as of any date, the Dollar
Equivalent of (a) the lesser of (i) the Canadian Borrowing Base as of such date,
minus, without duplication, the Availability Reserves with respect to the
Canadian Borrowing Base as of such date, or (ii) the aggregate Canadian
Revolving Credit Commitments as of such date, minus (b) the aggregate
outstanding balance of the Canadian Lender Indebtedness as of such date and the
aggregate face amount of undrawn Canadian Letters of Credit as of such date. In
calculating Canadian Excess Availability, a deduction shall be made therefrom in
an amount equal to the sum of all debts and obligations of the Canadian
Borrowers that are past due plus the outstanding amount of accounts payable of
the Canadian Borrowers that have not been handled in the normal course of the
Canadian Borrowers' business consistent with their past practices.
"CANADIAN FUNDING BANK" means the reference to Bank of America -
Canada Branch and its successors and assigns acting as the Canadian Funding Bank
hereunder pursuant to Section 2.8(a).
"CANADIAN GUARANTEE" means that certain Amended and Restated Canadian
Guarantee dated as of the date hereof and executed by each Credit Party in favor
of the Canadian Administrative Agent, as amended, modified, renewed,
supplemented or restated from time to time.
"CANADIAN LENDER" means a Canadian Revolving Lender or a Canadian
Swingline Lender.
"CANADIAN LENDER INDEBTEDNESS" means, without duplication, (a) any and
all amounts owing or to be owing by any Canadian Credit Party to the Agents, the
Issuing Banks or any Lender with respect to or in connection with the Canadian
Loans, any Canadian Letter of Credit Liabilities, the Notes, this Agreement
(including Section 2.25) or any other Financing Document (including the Canadian
Guarantee), (b) any and all amounts owing or to be owing by any Canadian Credit
Party to any Risk Participant pursuant to Section 2.21 or 10.4, and (c) as to
Swap Agreements with any Lender, Risk Participant or any Secured Affiliate or
Cash Management Agreements with any Lender, Risk Participant or any Cash
Management Affiliate, any and all amounts owing or to be owing by any Canadian
Credit
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Party thereunder to any Lender, Risk Participant or any Secured Affiliate or
Cash Management Affiliate, as applicable.
"CANADIAN LETTER OF CREDIT" and "CANADIAN LETTERS OF CREDIT" shall
have the meanings assigned to such terms in Section 2.3(b).
"CANADIAN LETTER OF CREDIT LIABILITIES" means, at any time and in
respect of any Canadian Letter of Credit, the Dollar Equivalent at such time of
the sum of (a) the amount available for drawings under such Canadian Letter of
Credit as of the date of determination plus (b) the aggregate unpaid amount of
all Reimbursement Obligations due and payable as of the date of determination in
respect of previous drawings made under such Canadian Letter of Credit, and
shall include any obligations relating to any letter of credit guarantee or
credit support provided by the Canadian Administrative Agent pursuant to Section
2.3(e).
"CANADIAN LOANS" means the Canadian Revolving Credit Loans, the
Canadian Swingline Loans and the Canadian Agent Advances.
"CANADIAN LOCKBOX" means any lock box to be established and operated
pursuant to Section 4.4 hereof and a Canadian Lockbox Agreement.
"CANADIAN LOCKBOX AGREEMENT" means an agreement between one or more
Canadian Borrowers and a Canadian Lockbox Bank governing a Canadian Lockbox.
"CANADIAN LOCKBOX BANK" means a financial institution designated by
the Canadian Borrowers or the Canadian Administrative Agent to act as a Canadian
Lockbox Bank and consented to in writing by the Canadian Borrowers and the
Canadian Administrative Agent (which consents shall not be unreasonably
withheld, provided, however that the consent of the Canadian Borrowers shall not
be required if a Default has occurred and is continuing) and which has entered
into a Canadian Lockbox Agreement.
"CANADIAN LOCKBOX DIRECTION PERIOD" means the period commencing on the
earlier of the occurrence and continuance of a Default or any date on which
Excess Availability is less than $100,000,000.
"CANADIAN MAXIMUM AVAILABLE AMOUNT" means, at any date, an amount
equal to the lesser of (a) the aggregate Canadian Revolving Credit Commitments
as of such date, and (b) the remainder of (i) the Canadian Borrowing Base as of
such date, minus (ii) the sum of (A) the Availability Reserves with respect to
the Canadian Borrowing Base as of such date, plus (B) the portion of the Swap
Reserves and the Cash Management Reserves applicable to the Canadian Borrowers
as of the last day of the month for which the Canadian Borrowing Base is being
calculated.
"CANADIAN PARTICIPATION SETTLEMENT DATE" means the date specified by
the Canadian Funding Bank by written notice to each Canadian Risk Participant,
the Agents and the Canadian Borrowers, following the occurrence and continuance
of an Event of Default, as the date on which the Canadian Funding Bank will
assign to each Canadian Risk Participant, and each Canadian Risk Participant
will assume and purchase, the Assigned Canadian Interests applicable to such
Canadian Risk Participant in accordance with Section 2.8(a)(ii), such notice to
be delivered no later than 2:00 p.m. (Toronto Time) on the Business Day
immediately preceding the Canadian Participation Settlement Date.
"CANADIAN PRIME RATE" means on any day, the annual rate of interest
(rounded upwards, if necessary, to the nearest 1/16 of 1%) equal to the greater
of: (a) the annual rate of interest announced
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from time to time by Bank of America - Canada Branch as its reference rate of
interest for loans made in C$ to Canadian customers and designated as its
"prime" rate (which "prime" rate is a rate set by Bank of America-Canada Branch
based upon various factors, including Bank of America-Canada Branch's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans); and (b) the annual rate of interest
equal to the sum of (i) the one-month CDOR Rate in effect on such day, and (ii)
1%. Any change in the Canadian Prime Rate due to a change in Bank of
America-Canada Branch's "prime" rate shall be effective on the effective date of
such change in Bank of America-Canada Branch's "prime" rate.
"CANADIAN PRIME LOANS" means C$ Denominated Loans which bear interest
at a rate based upon the Canadian Prime Rate.
"CANADIAN PRO RATA SHARE" means at any time, with respect to any
Canadian Revolving Lender or Canadian Risk Participant, as the case may be, a
fraction (expressed as a percentage), the numerator of which is the amount of
the Voting Commitment of such Canadian Revolving Lender or Canadian Risk
Participant, as the case may be, and the denominator of which is the sum of the
amount of all Canadian Revolving Credit Commitments at such time.
"CANADIAN PURCHASE AMOUNT" shall have the meaning assigned to such
term in Section 2.8(a)(ii).
"CANADIAN REVOLVING CREDIT COMMITMENT" shall have the meaning assigned
to such term in Section 2.1(d).
"CANADIAN REVOLVING CREDIT EXPOSURE" means, at any time and as to each
Canadian Revolving Lender, the Dollar Equivalent sum of (a) the aggregate
principal amount of the Canadian Revolving Credit Loans made by such Canadian
Revolving Lender outstanding as of such date, plus (b) other than for purposes
of Section 2.1(d) and 2.11(b) hereof, unless the Canadian Administrative Agent
or the Required Lenders otherwise direct, the accrued and unpaid interest on the
Canadian Revolving Credit Loans made by such Canadian Revolving Lender
outstanding as of such date, plus (c) such Canadian Revolving Lender's Canadian
Revolving Credit Percentage of the aggregate amount of all Canadian Letter of
Credit Liabilities as of such date, plus (d) such Canadian Revolving Lender's
Canadian Revolving Credit Percentage of the Canadian Swingline Exposure as of
such date, plus (e) such Canadian Revolving Lender's Canadian Revolving Credit
Percentage of the aggregate principal amount of the Canadian Agent Advances as
of such date.
"CANADIAN REVOLVING CREDIT LOAN" shall have the meaning provided in
Section 2.1(a).
"CANADIAN REVOLVING CREDIT LOAN COMMITMENT FEE" has the meaning
specified in Section 2.8(a)(vii).
"CANADIAN REVOLVING CREDIT NOTES" means the promissory notes of the
Canadian Borrowers described in Section 2.5(b) payable to any Canadian Revolving
Lender and being substantially in the form of Exhibit D-1 and D-2, evidencing
the aggregate joint and several Indebtedness of the Canadian Borrowers to such
Canadian Revolving Lender resulting from Canadian Revolving Credit Loans made by
such Lender.
"CANADIAN REVOLVING CREDIT PERCENTAGE" means, as to any Canadian
Revolving Lender, the percentage of the aggregate Canadian Revolving Credit
Commitments constituted by its Canadian Revolving Credit Commitment (or, if the
Canadian Revolving Credit Commitments have terminated or expired, the percentage
which such Canadian Revolving Lender's Canadian Revolving
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Credit Exposure at such time constitutes of the Aggregate Canadian Revolving
Credit Exposure at such time).
"CANADIAN REVOLVING LENDER" means a Lender (including the Canadian
Funding Bank) with a Canadian Revolving Credit Commitment.
"CANADIAN RISK PARTICIPANT" means each Person that is a party hereto
as a "Canadian Risk Participant" in accordance with Section 2.8(a) or hereafter
becomes a party hereto as a "Canadian Risk Participant" in accordance with
Section 10.7.
"CANADIAN RISK PARTICIPANT COMMITMENT" means, in the case of any
Canadian Risk Participant, the commitment of such Canadian Risk Participant to
participate in the risk of Canadian Revolving Credit Loans made by the Canadian
Funding Bank in accordance with the terms of Section 2.8(a) in the amount set
forth opposite such Canadian Risk Participant's name on Annex I under the
caption "Canadian Risk Participant Commitment" (as the same may be increased
pursuant to Section 2.1(h), adjusted pursuant to Section 2.10(a), or otherwise
from time to time modified pursuant to Section 10.7).
"CANADIAN RISK PARTICIPANT REVOLVING CREDIT EXPOSURE" means, at any
time and as to each Canadian Risk Participant, the amount of the Canadian
Revolving Credit Exposure of the Canadian Funding Bank the risk of which is
allocable to such Canadian Risk Participant pursuant to its Canadian Risk
Participation.
"CANADIAN RISK PARTICIPATION" has the meaning specified in Section
2.8(a)(i).
"CANADIAN RISK PARTICIPATION FEE" has the meaning specified in Section
2.8(a)(vi).
"CANADIAN SECURITIES PLEDGE AGREEMENT" means that certain Canadian
Securities Pledge Agreement dated as of the Initial Closing Date and executed by
each Canadian Credit Party in favor of the Canadian Administrative Agent
providing for and constituting a first-priority Lien in favor of the Canadian
Administrative Agent on the Collateral described therein, as supplemented and
renewed by the Canadian Securities Pledge Agreement Confirmation, and as further
amended, modified, renewed, supplemented or restated from time to time.
"CANADIAN SECURITIES PLEDGE AGREEMENT CONFIRMATION" means that certain
Confirmation and Affirmation of Canadian Securities Pledge Agreement dated as of
the date hereof and executed by each Canadian Credit Party in favor of the
Canadian Administrative Agent, whereby, among other things, each Canadian Credit
Party confirms and affirms the grant by such Canadian Credit Party of a
first-priority Lien in favor of the Canadian Administrative Agent on the
Collateral described in the Canadian Securities Pledge Agreement as security for
all of the Lender Indebtedness.
"CANADIAN SECURITY AGREEMENT" means that certain Canadian Security
Agreement dated as of the Initial Closing Date and executed by each Canadian
Credit Party in favor of the Canadian Administrative Agent providing for and
constituting a first-priority Lien in favor of the Canadian Administrative Agent
on the Collateral described therein, as supplemented and renewed by the Canadian
Security Agreement Confirmation, and as further amended, modified, renewed,
supplemented or restated from time to time.
"CANADIAN SECURITY AGREEMENT CONFIRMATION" means that certain
Confirmation and Affirmation of Canadian Security Agreement dated as of the date
hereof and executed by each Canadian Credit Party in favor of the Canadian
Administrative Agent, whereby, among other things, each Canadian
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Credit Party confirms and affirms the grant by such Canadian Credit Party of a
first-priority Lien in favor of the Canadian Administrative Agent on the
Collateral described in the Canadian Security Agreement as security for all of
the Lender Indebtedness.
"CANADIAN SWINGLINE AVAILABILITY" means, on any date, an amount equal
to the remainder of (a) the Canadian Swingline Commitment minus (b) the Canadian
Swingline Exposure on such date.
"CANADIAN SWINGLINE COMMITMENT" shall have the meaning assigned to
such term in Section 2.1(f).
"CANADIAN SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Canadian Swingline Loans made to the Canadian Borrowers
outstanding at such time.
"CANADIAN SWINGLINE LENDER" means Bank of America - Canada Branch (as
successor to CIT Business Credit Canada Inc.), in its capacity as lender of
Canadian Swingline Loans hereunder.
"CANADIAN SWINGLINE LOANS" shall have the meaning assigned to such
term in Section 2.1(a).
"CAPITAL EXPENDITURES" means, as to any Person for any period, all
expenditures (whether paid in cash or accrued as a liability, including the
portion of Capital Lease Obligations originally incurred during such period that
are capitalized on the consolidated balance sheet of the Company) by such Person
and its Subsidiaries during such period, that, in conformity with GAAP, are
included in "capital expenditures," "additions to property, plant or equipment"
or comparable items in the consolidated financial statements of such Person, but
excluding expenditures for the restoration, repair or replacement of any fixed
or capital asset that was destroyed or damaged, in whole or in part, in an
amount equal to any insurance proceeds received in connection with such
destruction or damage.
"CAPITAL LEASE OBLIGATIONS" means, as to any Person, the obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease for financial
reporting obligations in accordance with GAAP on a balance sheet of such Person
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof at the time of determination.
"CASH MANAGEMENT AFFILIATE" means any Affiliate of any Lender or any
Risk Participant that has entered into a Cash Management Agreement with a Credit
Party.
"CASH MANAGEMENT AGREEMENT" means any document, instrument, agreement,
arrangement or transaction with respect to cash management services, and
includes any of the foregoing related to deposit accounts, overdraft protection
or automated clearing house transactions.
"CASH MANAGEMENT RESERVES" means, an amount (reflected in Dollars)
calculated as of the last day of each month and separately for the US Borrowers
and the Canadian Borrowers, equal to such Borrowers' liability under the Cash
Management Agreements to which such Borrowers are a party and any exposure of
the Lenders, Risk Participants or Cash Management Affiliates with respect to
such Cash Management Agreements and the services performed thereunder on behalf
of such Borrowers.
"CDOR RATE" means, for the Interest Period of each B/A Loan, the rate
of interest per annum equal to the annual rates applicable to C$ Bankers'
Acceptances having an identical or comparable
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term as the proposed B/A Loan displayed and identified as such on the display
referred to as the "CDOR Page" (or any display substituted therefor) of Xxxxxx
Monitor Money Rates Service as at approximately 10:00 a.m. (Toronto Time) on
such day (or, if such day is not a Business Day, as of 10:00 a.m. (Toronto Time)
on the immediately preceding Business Day), plus five (5) basis points, provided
that if such rates do not appear on the CDOR Page at such time on such date, the
rate for such date will be the annual discount rate (rounded upward to the
nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. (Toronto Time) on such
day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act
(Canada) as selected by the Canadian Administrative Agent is then offering to
purchase C$ Bankers' Acceptances accepted by it having such specified term (or a
term as closely as possible comparable to such specified term), plus five (5)
basis points.
"CHANGE OF CONTROL" means:
(1) (A) any "person" or "group" of related persons (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that, for the purpose of this clause,
such person or group shall be deemed to have "beneficial ownership" of all
shares that any such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock of
the Company (for the purposes of this clause, such person or group shall be
deemed to beneficially own any Voting Stock of the Company held by a parent
entity, if such person or group "beneficially owns" (as defined above), directly
or indirectly, more than 35% of the voting power of the Voting Stock of such
parent entity) and (B) the Permitted Holders "beneficially own" (as defined in
Rules 13d-3 and 13d-5 of the Exchange Act), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting Stock of
the Company than such other person or group and do not have the right or ability
by voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors of the Company (for the purposes of this
clause, such other person or group shall be deemed to beneficially own any
Voting Stock of a specified entity held by a parent entity, if such other person
or group "beneficially owns" directly or indirectly, more than 35% of the voting
power of the Voting Stock of such parent entity and the Permitted Holders
"beneficially own" directly or indirectly, in the aggregate a lesser percentage
of the voting power of the Voting Stock of such parent entity and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of such parent
entity); or
(2) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board of Directors of
the Company or whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors of the Company then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the Company then in
office; or
(3) the sale, lease, transfer, conveyance or other disposition, other
than by way of a merger, amalgamation or consolidation permitted by Section 7.4,
in one or a series of related transactions, of all or substantially all of the
assets of the Company and the other Credit Parties taken as a whole to any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
other than a Permitted Holder; or
(4) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company;
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(5) if any US Borrower or any Canadian Borrower (other than the
Company) ceases to be, directly or indirectly, a wholly owned Subsidiary of the
Company, other than by way of a merger, amalgamation, consolidation, sale or
other disposition permitted by Section 7.4;
(6) if GUSAP ceases to be, directly or indirectly, a wholly owned
Subsidiary of the Company;
(7) if NSULC ceases to be a wholly owned Subsidiary of GUSAP; or
(8) if PASUG ceases to be a wholly owned Subsidiary of NSULC.
"CHATTEL PAPER" has the meaning given to such term in Section
9-102(a)(11) of the UCC or Section 1 of the PPSA, as applicable.
"CLOSING DATE" means October 28, 2005.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
CO-DOCUMENTATION AGENT" means X.X. Xxxxxx Securities Inc., Wachovia
Capital Finance Corporation (Central) and GECC Capital Markets Group, Inc.,
acting in the capacity and to the extent described in Article 9, and any
successor to X.X. Xxxxxx Securities Inc., Wachovia Capital Finance Corporation
(Central) and GECC Capital Markets Group, Inc., acting in such capacity.
"COLLATERAL" means the Credit Parties' Properties described in and
subject to the Liens, privileges, priorities and security interests purported to
be created by any Security Instrument.
"COLLATERAL AGENT" means The CIT Group/Business Credit, Inc., acting
in the capacity and to the extent described in Article 9, and any successor to
The CIT Group/Business Credit, Inc., acting in such capacity.
"COLLATERAL REPORT" has the meaning given to such term in Section 6.9.
"COMBINED INTERESTS" means, in the case of any Revolving Lender or
Risk Participant, as the case may be, and its Related Affiliate, the aggregate
amount of Revolving Credit Commitments and Risk Participation Commitments of
such Persons.
"COMBINED REVOLVING CREDIT COMMITMENT" means, for any Revolving
Lender, the aggregate amount of such Revolving Lender's US Revolving Credit
Commitments and Canadian Revolving Credit Commitments, and for purposes of this
definition, a Revolving Lender and its Related Affiliate shall be deemed to be
one and the same Revolving Lender.
"COMMITMENT" means any US Revolving Credit Commitment, US Swingline
Commitment, Canadian Revolving Credit Commitment or Canadian Swingline
Commitment and "COMMITMENTS" means all such Commitments collectively.
"COMMITMENT INCREASE" shall have the meaning given to such term in
Section 2.1(h).
"COMMITMENT INCREASE ACCEPTANCE DEADLINE" shall have the meaning given
to such term in Section 2.1(h).
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"COMMITMENT INCREASE EFFECTIVE DATE" shall have the meaning given to
such term in Section 2.1(h).
"COMMITMENT INCREASE NOTICE" shall have the meaning given to such term
in Section 2.1(h).
"COMPANY" shall have the meaning set forth in the initial paragraph
hereof.
"CONSOLIDATED NET INCOME" means, for any period, the net income (loss)
of the Company and the other consolidated Credit Parties determined in
accordance with GAAP and the net income (loss) associated with the Company's or
any consolidated Credit Party's direct or indirect interest in the Gallatin
Steel Company; provided, however, that there will not be included in such
Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not the Company
or another Credit Party, except that:
(A) subject to the limitations contained in clause (3) below,
the Company's equity in the net income of any such Person
for such period will be included in such Consolidated Net
Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company
or another Credit Party as a dividend or other distribution
(subject, in the case of a dividend or other distribution to
another Credit Party, to the limitations contained in clause
(2) below); and
(B) the Company's equity in a net loss of any such Person (other
than another Credit Party) for such period will be included
in determining such Consolidated Net Income to the extent
such loss has been funded with cash from the Company or
another Credit Party;
(2) any net income (but not loss) of any Credit Party (other than the
Company) if such Credit Party is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions
by such Credit Party, directly or indirectly, to the Company, except
that the Company's equity in a net loss of any such Credit Party for
such period will be included in determining such Consolidated Net
Income;
(3) any gain (loss) realized upon the sale or other disposition of any
property, plant or equipment of the Company or the other consolidated
Credit Parties (including pursuant to any sale/leaseback transaction)
which is not sold or otherwise disposed of in the ordinary course of
business;
(4) any extraordinary gain or loss;
(5) the cumulative effect of a change in accounting principles; and
(6) any one time expenses (including non-cash charges) relating to the
write-off of deferred financing costs incurred in connection with the
transactions contemplated by this Agreement.
"CONVERTIBLE DEBENTURES" means those certain 6.50% Convertible
Unsecured Subordinated Debentures in the aggregate principal amount of
$125,000,000 issued by the Company
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pursuant to that certain Trust Indenture, dated April 23, 1997, between the
Company (as successor to Co-Steel Inc.) and The R-M Trust Company, as amended,
supplemented or otherwise modified or restated from time to time.
"CREDIT PARTIES" means the Company and each of its Subsidiaries (other
than Ameristeel Bright Bar Inc., Co-Steel Liquidity Management Hungary Limited
Liability Company, Acierco S.A., Goldmarsh Enterprises, Co-Steel U.K. Limited,
C-SBP and NJSC), collectively, and "CREDIT PARTY" means any such Person
individually.
"C-SBP" means Co-Steel Benefit Plans, Inc., an Ontario corporation.
"CURRENT APPRAISAL" means the appraisal of the Borrowers' inventory
provided to the Administrative Agent prior to the Closing Date or, in the case
of appraisals of the Borrowers' inventory provided to the Administrative Agent
after the Closing Date, the most recent appraisal provided to the Administrative
Agent in accordance with Section 2.29 or 6.10(m).
"CURRENT INFORMATION" means, as of any day, the financial statements
and other related information for any applicable period most recently required
to be delivered to the Administrative Agent pursuant to Section 6.10(a), Section
6.10(b), and Section 6.10(c).
"DATED ASSETS" has the meaning assigned to such term in Section
2.25(c) hereof.
"DATED LIABILITIES" has the meaning assigned to such term in Section
2.25(c) hereof.
"DEFAULT" means an Event of Default or any condition or event which,
with notice or lapse of time or both, would constitute an Event of Default.
"DILUTION" means a reduction as determined by the Administrative Agent
or the Canadian Administrative Agent, in its reasonable discretion, in the value
of accounts caused by returns, allowances, discounts, credits, and/or any other
offsets asserted by customers or granted by any Borrower having the effect of
reducing the collections of accounts.
"DISBURSEMENT ACCOUNT" means, in respect of each Borrower, the account
at the Payment Office of the Administrative Agent or the Canadian Administrative
Agent, as applicable, which such Borrower has designated for purposes of
receiving deposits of the proceeds of Loans and other amounts directed to be
deposited therein pursuant to Section 2.4(b) or Section 2.4(c), as applicable.
"DOCUMENTARY LETTER OF CREDIT" means a Letter of Credit issued
pursuant to this Agreement that supports payment or performance for a single
identified purchase or exchange of products in the ordinary course of business
of the Borrowers.
"DOLLAR" and the sign "$," without the letter "C" before it, means
lawful money of the United States of America.
"DOLLAR DENOMINATED LOANS" means US Revolving Credit Loans, any
Canadian Revolving Credit Loans which are denominated in Dollars, and any
Swingline Loans which are denominated in Dollars.
"DOLLAR EQUIVALENT" means, on any date of determination, with respect
to any amount expressed in C$, the amount of Dollars that may be purchased with
such amount of C$ at the Spot Exchange Rate on such date.
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"EASTERN TIME" means, unless otherwise indicated, the time of day in
Atlanta, Georgia.
"EBITDA" means, as to the Company for any period, without duplication,
the amount equal to the following calculated for the Company, its wholly owned
consolidated Subsidiaries and its other Subsidiaries (but the earnings of such
other Subsidiaries shall only be included to the extent of cash actually
received by the Company or one of its wholly owned Subsidiaries) on a
consolidated basis: Consolidated Net Income, plus to the extent deducted from
Consolidated Net Income, Interest Expense, depreciation, amortization,
impairment charges under FAS 142, income and franchise tax expenses and other
non-cash charges which do not and will not result in a cash outlay in such
period or any subsequent period, minus, without duplication, cash expenditures
in such period in respect of any non-cash charges taken in any previous period;
provided that extraordinary gains or losses for any such period, including gains
or losses on the disposition of assets, shall not be included in EBITDA.
"ELIGIBLE ACCOUNT" means, at any time with respect to any Canadian
Borrower or any US Operating Borrower, the invoice amount, net of all goods and
services, harmonized taxes and sales taxes (which shall be the Dollar Equivalent
at such time of any amount denominated in C$) owing on each account of such
Borrower (net of any credit balance, returns, trade discounts, unapplied cash,
unbilled amounts or retention or finance charges) which meet such standards of
eligibility as the Administrative Agent or the Canadian Administrative Agent
shall establish from time to time in its reasonable discretion; provided that,
no account shall be deemed an Eligible Account unless each of the following
statements is accurate and complete (and the Borrowers by including such account
in any computation of the applicable Borrowing Base shall be deemed to represent
and warrant to the Administrative Agent, each Issuing Bank and the Lenders the
accuracy and completeness of such statements):
(1) Such account is a binding and valid obligation of the obligor
thereon and is in full force and effect;
(2) Such account is evidenced by an invoice;
(3) Such account is genuine as appearing on its face or as represented
in the books and records of the Person;
(4) Such account is free from claims regarding rescission,
cancellation or avoidance, whether by operation of law or otherwise;
(5) Payment of such account is less than 90 days past the original
invoice date thereof and less than 60 days past the original due date thereof;
(6) Such account is net of concessions, offset, deduction, contras,
chargebacks or understandings with the obligor thereon that in any way could
reasonably be expected to adversely affect the payment of, or the amount of,
such account;
(7) The Administrative Agent, or the Canadian Administrative Agent, as
the case may be, on behalf of the applicable Secured Parties, has a
first-priority perfected Lien covering such account and such account is, and at
all times will be, free and clear of all other Liens other than Permitted Liens
under Section 7.3(c) or 7.3(d), subject to Availability Reserves in respect of
such Permitted Liens;
(8) The obligor on such account is not (a) an Affiliate of any Credit
Party, or (b) an employee of any Credit Party;
-18-
(9) Such account arose in the ordinary course of business of the
applicable Borrower out of the sale of goods or services by such Borrower;
(10) Such account is not payable by an obligor who is more than 90
days past the original invoice date thereof or more than 60 days past the
original due date thereof with regard to 50% or more of the total aggregate
accounts owed to the Borrowers by such obligor and all of its Affiliates;
(11) All consents, licenses, approvals or authorizations of, or
registrations or declarations with, any Governmental Authority required to be
obtained, effected or given in connection with the execution, delivery and
performance of such account by each party obligated thereunder, or in connection
with the enforcement and collection thereof by the Administrative Agent or the
Canadian Administrative Agent, have been duly obtained, effected or given and
are in full force and effect;
(12) The obligor on such account is not an individual, and is not the
subject of any bankruptcy or insolvency proceeding, does not have a trustee or
receiver appointed for all or a substantial part of its property, has not made
an assignment for the benefit of creditors, admitted its inability to pay its
debts as they mature or suspended its business, and the Administrative Agent and
the Canadian Administrative Agent, in their reasonable discretion, are otherwise
satisfied with the credit standing of such obligor;
(13) The obligor of such account is organized and existing under the
laws of the United States of America or a State thereof or the federal laws of
Canada, a province or territory thereof, or if the obligor is not so organized
and existing, such account is covered under letters of credit or export/import
insurance reasonably satisfactory to the Administrative Agent and which has been
collaterally assigned or hypothecated to the Administrative Agent or the
Canadian Administrative Agent on terms reasonably satisfactory to the
Administrative Agent;
(14) The obligor of such account is not a state, commonwealth,
provincial, federal, foreign, territorial, or other court or governmental
department, commission, board, bureau, agency or instrumentality other than the
federal government of the United States of America, the federal government of
Canada or the government of any province or territory of Canada or political
subdivision thereof, and then only to the extent that such Person has complied
in all respects with the relevant provisions of the Federal Assignment of Claims
Act of 1940 (for a US account debtor) or the Financial Administration Act
(Canada) or similar provincial or territorial legislation or municipal ordinance
of similar purpose (for a Canadian account debtor);
(15) In the case of the sale of goods, the subject goods have been
completed, sold and shipped, on a true sale basis on open account, or subject to
contract, and not on consignment, on approval, on a "sale or return" basis, or
on a "xxxx and hold" or "pre-sale" basis or subject to any other repurchase or
return agreement; no material part of the subject goods has been returned,
rejected, lost or damaged; and such account is not evidenced by chattel paper or
a promissory note or an instrument of any kind;
(16) Each of the representations and warranties set forth herein and
in the Security Instruments with respect to such account is true and correct on
such date;
(17) A check, promissory note, draft, trade acceptance or other
instrument has not been received with respect to such account (or with respect
to any other account due from the same account debtor), presented for payment
and returned uncollected for any reason;
(18) Such account is not in respect of a volume rebate or tooling
account receivable;
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(19) If such account arises in connection with any contract or project
under which the applicable Borrower's obligations are covered in whole or in
part by a performance, surety or other similar bond, the applicable Agent shall
have received a duly executed subordination agreement from the bonding company
in form and substance acceptable to such Agent; and
(20) The Administrative Agent or the Canadian Administrative Agent, as
applicable, does not believe, in the exercise of its reasonable discretion, that
the prospect of collection of such account is impaired or that the account may
not be paid because of the account debtor's inability to pay;
provided that, if any Eligible Account, when added to all other accounts that
are obligations of the same obligor and its Affiliates, results in a total sum
that exceeds 10% of the total balance then due on all Eligible Accounts owed to
the Borrowers (without giving effect to any reduction in Eligible Accounts
pursuant to this proviso), unless the accounts of such obligors or group of
Affiliated obligors are insured pursuant to credit insurance acceptable to the
Administrative Agent or the Canadian Administrative Agent (as applicable) which
has been collaterally assigned or hypothecated to the Administrative Agent or
the Canadian Administrative Agent (as applicable) on terms reasonably
satisfactory to the Administrative Agent, the amount of such accounts in excess
of 10% of such total balance then due shall be excluded from Eligible Accounts
of the Borrowers to whom such accounts are owed; provided that, if such accounts
of such obligor (or group of Affiliated obligors) are owed to both the US
Borrowers and the Canadian Borrowers, such excess amount shall be excluded from
the Eligible Accounts of the Canadian Borrowers and the US Borrowers in the same
proportion as all amounts from such obligor are owed to the Canadian Borrowers
and the US Borrowers. Any standards of eligibility established by the
Administrative Agent or the Canadian Administrative Agent in addition to those
enumerated above shall not become effective until the third Business Day
following written notice of the establishment of such new standard of
eligibility has been given by the Administrative Agent or the Canadian
Administrative Agent to the applicable Borrowers.
"ELIGIBLE ACCOUNT ADVANCE PERCENTAGE" means 85%.
"ELIGIBLE INSTITUTION" means an association or a corporation that is
(a) organized and doing business under the laws of Canada or any province
thereof, or the United States of America or any State thereof or the District of
Columbia, (b) authorized under such laws to accept deposits and otherwise carry
on the business of banking, (c) has a combined capital and surplus of at least
$250,000,000, (d) is subject to supervision or examination by federal or state
banking authority, and (e) is an entity with a credit rating of at least "A" by
Standard & Poor's Ratings Services, the equivalent thereof by Xxxxx'x Investors
Service, Inc. or "AA(low)" by Dominion Bond Rating Service Limited.
"ELIGIBLE INVENTORY" means, at any time with respect to any Canadian
Borrower or any US Operating Borrower, all inventory of such Borrower valued in
Dollars on a lower of cost (on a first-in, first out basis and excluding any
component of cost representing intercompany profit in the case of inventory
acquired from an Affiliate) or market basis in accordance with GAAP, with
detailed calculations of lower of cost or market to occur on at least a monthly
basis, which meet such standards of eligibility as the Administrative Agent or
the Canadian Administrative Agent shall establish from time to time in its
reasonable discretion; provided that no inventory shall be deemed Eligible
Inventory unless each of the following statements is accurate and complete (and
the Borrowers by including such inventory in any computation of the applicable
Borrowing Base shall be deemed to represent and warrant to the Administrative
Agent, each Issuing Bank and the Lenders the accuracy and completeness of such
statements):
(1) Such inventory is in good condition, merchantable, meets all
standards imposed by any Governmental Authority having regulatory authority over
it or its use and/or sale and is not
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obsolete and is either currently usable or currently salable in the normal
course of business of such Person;
(2) Such inventory is either (a) in possession of such Person and (1)
located on Real Property owned or leased by such Person, and (2) within the
United States or Canada (provided that if such inventory is located on Real
Property leased by such Person, the landlord of such Real Property shall have
executed and delivered to the Administrative Agent or the Canadian
Administrative Agent, as applicable, a Landlord Waiver Agreement) or (b) in the
possession of a Bailee and such Bailee shall have executed and delivered to the
Administrative Agent or the Canadian Administrative Agent, as applicable, a
Bailee Letter or (c) in transit in Canada (provided that the Canadian
jurisdiction in question is a jurisdiction where the Liens of the Canadian
Administrative Agent and the Administrative Agent in such inventory are validly
perfected first-priority Liens) or the United States and between Credit Parties,
and upon arrival at its destination, will comply with either paragraph (a)(1) or
(a)(2) above;
(3) Each of the representations and warranties set forth in the
Security Instruments with respect to such inventory is true and correct on such
date;
(4) The Administrative Agent or the Canadian Administrative Agent, as
the case may be, on behalf of the applicable Secured Parties, has a
first-priority perfected Lien covering such inventory, and such inventory is,
and at all times will be, free and clear of all Liens other than Permitted Liens
under Section 7.3(c) or 7.3(d), subject to Availability Reserves in respect of
such Permitted Liens;
(5) Such inventory does not include goods that are not owned by such
Borrower, that are held by such Borrower pursuant to a consignment agreement or
which have been sold by such Borrower on a xxxx and hold basis;
(6) Such inventory is not subject to repossession under the Bankruptcy
and Insolvency Act (Canada) or other applicable law, except to the extent the
applicable vendor has entered into an agreement with the Canadian Administrative
Agent waiving its right to repossession, which agreement shall be acceptable to
the Canadian Administrative Agent;
(7) Such inventory does not consist of work-in-process, store room
materials, supplies, parts, samples, prototypes, or packing and shipping
materials, but may consist of billets;
(8) Such inventory does not consist of goods that are obsolete,
slow-moving or returned or repossessed or used goods taken in trade;
(9) Any portion of the value of such inventory which results from a
profit or gain resulting from an inter-company sale or other disposition of such
inventory shall be excluded;
(10) Any "seconds" or scrap inventory shall be valued at scrap value;
(11) Such inventory is not evidenced by negotiable documents of title
unless delivered to the Administrative Agent or the Canadian Administrative
Agent, as applicable, with endorsements reasonably acceptable to the
Administrative Agent;
(12) Such inventory does not constitute Hazardous Materials;
(13) Such inventory is covered by casualty insurance; and
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(14) The Administrative Agent or the Canadian Administrative Agent, as
applicable, has not determined in its reasonable discretion that it may not sell
or otherwise dispose of such inventory in accordance with the terms of the
applicable Security Instruments without infringing upon the rights of another
Person or violating any contract with any other Person.
Any standards of eligibility established by the Administrative Agent or the
Canadian Administrative Agent in addition to those enumerated above shall not
become effective until the third Business Day following written notice of the
establishment of such new standard of eligibility has been given by the
Administrative Agent or the Canadian Administrative Agent to the applicable
Borrowers.
"ELIGIBLE INVENTORY ADVANCE PERCENTAGE" means 65%.
"ENVIRONMENTAL LAWS" means all federal, provincial, local or foreign
laws, rules, regulations, treaties, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, whether or not having the force of
law (but in the case of any such matter not having the force of law, responsible
companies would customarily comply with such matter), relating in any way to the
environment, preservation or reclamation of natural resources, the generation,
use, handling, collection, treatment, storage, transportation, recovery,
recycling, release, threatened release or disposal of any Hazardous Material, or
to health and safety matters.
"EQUITY" means shares of capital stock or a partnership, profits,
capital or member interest, or options, warrants, rights to purchase,
participation rights or any other right to substitute for or otherwise acquire
the capital stock or a partnership, profits, capital or member interest however
designated, and whether voting or non-voting, of any Credit Party and shall
expressly include all "stock appreciation rights", "phantom stock", "profit
participations" and other similar interests.
"EQUITY DISTRIBUTION" shall have the meaning provided in Section 7.5.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute.
"ERISA AFFILIATE" means each trade or business (whether or not
incorporated) which together with any Borrower would be deemed to be a "single
employer" within the meaning of Section 4001(b)(1) of ERISA or Subsections
414(b), (c), (m) or (o) of the Code.
"ERISA TERMINATION EVENT" means (a) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
"Reportable Event" not subject to the provision for 30-day notice to the PBGC
pursuant to regulations under Section 4043 of ERISA), (b) the withdrawal of any
Credit Party or any ERISA Affiliate from a Plan during a plan year in which it
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the
filing of a notice of intent to terminate a Plan or the treatment of a Plan
amendment as a termination under Section 4041(c) of ERISA, (d) the institution
of proceedings to terminate a Plan by the PBGC, or (e) any other event or
condition which could reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"EVENT OF DEFAULT" shall have the meaning provided in Article 8.
"EXCESS AVAILABILITY" means, as of any date, the sum of (a) the
Canadian Excess Availability as of such date, and (b) the US Excess Availability
as of such date.
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"EXCHANGE ACT" means the United States Securities Exchange Act of
1934.
"EXCLUDED TAXES" means, with respect to any Indemnitee or any other
recipient of any payment to be made by or on account of any obligation of any
Borrower hereunder or any payment by or on behalf of a Funding Bank to a Risk
Participant hereunder, income or franchise taxes imposed on (or measured by)
such Indemnitee's net income by the United States of America or Canada, or by
the jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender or Risk
Participant, in which its applicable lending office is located. Notwithstanding
the foregoing, "Excluded Taxes" shall not include any Taxes imposed by means of
withholding on or with respect to any payments made by any Borrower or a Funding
Bank (or any Agent on behalf of a Funding Bank) pursuant to the Financing
Documents, except to the extent: (i) that withholding taxes would not have been
imposed with respect to a Lender or Risk Participant but for any failure of such
Lender or Risk Participant (after timely written notice from the Company
accompanied by a draft form of any such requirement prepared by the Company at
the Company's expense not earlier than 90 days prior to a due date thereof) to
comply with certification, information, documentation, reporting or other
similar requirements concerning the nationality, residence, identity, connection
with the jurisdiction imposing such withholding taxes or any other matters
(including the delivery by a US Lender of Internal Revenue Service Form W-8BEN,
W-8IMY or Form W-8ECI (or any substitute form)) that is required by law as a
condition to exemption or the relief from, or reduction of, such withholding
tax; provided that notwithstanding the foregoing, such withholding taxes shall
be Excluded Taxes only if such Lender or Risk Participant is eligible to comply
with such requirements or entitled to deliver such form and such Lender or Risk
Participant has in good faith determined it would suffer no adverse consequences
by providing the applicable certification, information, documentation, reporting
or other similar requirements (including increased expenses); or (ii) that such
taxes solely relate to any certification of the applicable Lender as an Exempt
Canadian Lender or Exempt US Lender (or Risk Participant Certification of a Risk
Participant), as applicable, that is or becomes incorrect other than as a result
of a change in Tax law, the Treaty (or its interpretation) or administrative
practice of a tax authority, a change in any Borrower, or any other change not
directly caused by the applicable Lender or Risk Participant (in any such case
the fact that the certification of a Lender or a Risk Participant Certification
became incorrect shall not result in any Taxes becoming Excluded Taxes).
Notwithstanding anything to the contrary in this Agreement, "Excluded Taxes"
shall specifically not include any Taxes imposed by withholding on or with
respect to any payments made by a Borrower or a Funding Bank (or any Agent on
behalf of a Funding Bank) pursuant to the Financing Documents (1) to a Person
that became a Lender or Risk Participant at a time when an Event of Default
existed, regardless of whether an Event of Default exists at the time any such
payment is made, (2) to a Lender or Risk Participant at a time when an Event of
Default has occurred and is continuing (in either of which cases the fact that
any certification of a Lender or Risk Participant Certification is incorrect
shall not result in any Taxes becoming Excluded Taxes), or (3) with respect to
Indemnified Participation Taxes.
"EXECUTIVE ORDER NO. 13224" means Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
"EXEMPT CANADIAN LENDER" means a Lender that certifies (whether
pursuant to Section 2.21(e) or 10.7) that it is (i) a resident of Canada within
the meaning of the Income Tax Act (Canada) or (ii) an authorized foreign bank
which is deemed to be a resident of Canada for purposes of Part XIII of the
Income Tax Act (Canada) with respect to amounts payable to it hereunder.
"EXEMPT US LENDER" means a Lender that certifies (whether pursuant to
Section 2.21(e) or 10.7) that it (i) is (a) a resident of Canada within the
meaning of the Income Tax Act (Canada) (or is a Canadian Partnership as defined
in the Income Tax Act (Canada)) or (b) an authorized foreign
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bank which is deemed to be a resident of Canada for purposes of Part XIII of the
Income Tax Act (Canada) in respect of amounts payable to it hereunder, and (ii)
(a) such Lender is a "United States person" as that term is defined in Section
7701 of the Code; (b) such Lender is not a "United States person" as that term
is defined in Section 7701 of the Code and all amounts payable to such Lender
hereunder are effectively connected with the conduct of its trade or business
within the United States; or (c) such Lender (or if such Lender is a
"flow-through entity" within the meaning of United States Treasury Regulation
Section 1.1441-1(c)(23), each of its beneficial owners and/or interest holders)
(A) meets all the requirements under Code Section 871(h)(3) or Code Section
881(c)(3) to be eligible for a complete exemption from withholding of United
States taxes under Code Section 1441 or Code Section 1442 on interest payments
made to it hereunder, (B) is eligible for the benefit of the Treaty as a
"resident" of Canada (as defined in the Treaty and interpreted under United
States laws), and (C) is a Person as to whom the US Revolving Credit Loan
Commitment Fees are business profits that are not attributable to a permanent
establishment in the United States of the Exempt US Lender within the meaning of
Article VII of the Treaty. Notwithstanding the foregoing, no Lender shall be
required to meet the requirements set forth in clause (i) above in order to be
an Exempt US Lender at any time after the earlier of (x) the date on which GUSAP
irrevocably notifies the Administrative Agent in writing that GUSAP will no
longer have the right to borrow US Revolving Credit Loans hereunder or (y) the
date on which the Administrative Agent notifies the Borrowers that the
Administrative Agent has elected to permanently exercise its rights under
Section 2.30(c)(i) in accordance with the terms thereof.
"EXISTING CREDIT AGREEMENT" shall have the meaning set forth in the
recitals hereof.
"EXISTING INDEBTEDNESS" means all Funded Indebtedness of the Credit
Parties on the Closing Date, but excluding Loans and Letter of Credit
Liabilities.
"EXISTING LENDERS" shall have the meaning set forth in the recitals
hereof.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the per annum rate
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, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FEE LETTER" means the letter agreement, dated the Closing Date,
regarding fees payable by the US Borrowers to the Administrative Agent and by
the Canadian Borrowers to the Canadian Administrative Agent.
"FINANCIAL STATEMENTS" means the audited consolidated financial
statements and the unaudited consolidating financial statements of the Company
for the Fiscal Year ended December 31, 2004, and the unaudited consolidated
financial statements and the unaudited consolidating financial statements of the
Company for the months ended January, 2005 through August, 2005.
"FINANCING DOCUMENTS" means this Agreement, the Notes, the Security
Instruments, the Applications, Borrowing Requests, Borrowing Base Reports, the
Fee Letter, and the other documents, instruments or agreements described in
Section 3.1 and Section 3.2 (other than the documents, instruments or agreements
described in Section 3.1(e), Section 3.1(f)(2), Section 3.1(f)(3), Section
3.1(i) or Section 3.1(j)), together with any other document, instrument or
agreement (other than participation, agency or similar agreements among the
Lenders or between any Lender and any other bank or creditor with respect to any
indebtedness or obligations of the Company or any Credit Party hereunder or
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thereunder) now or hereafter entered into by a Credit Party in connection with
the Loans, the Lender Indebtedness or the Collateral, as such documents,
instruments or agreements may be amended, modified or supplemented from time to
time.
"XXXXX" means GNA Financing Inc., a Delaware corporation.
"XXXXX PREFERRED EQUITY" means shares of preferred stock issued by
GUSA.
"FISCAL QUARTER" means the fiscal quarter of the Company and each of
the Borrowers, ending on the last day of each of March, June, September and
December of each year.
"FISCAL YEAR" means the fiscal year of the Company and each of the
Borrowers, ending on the last day of December of each year.
"FIXED CHARGE COVERAGE RATIO" means, as to the Company and the other
Credit Parties on a consolidated basis, determined for any period, the ratio of
(a) EBITDA for such period minus Capital Expenditures made during such period
(other than Capital Expenditures made during such period which are financed,
within 90 days of such Capital Expenditures, by Equity or by Indebtedness
permitted by any of Sections 7.2(g), (j), (k) or (m)), to (b) the sum of (1)
scheduled principal payments on Funded Indebtedness during such period, and any
prepayment during such period of Indebtedness incurred in such period or in a
prior period to finance Capital Expenditures plus (2) Adjusted Interest Expense
for such period, plus (3) cash taxes paid during such period, plus (4) Equity
Distributions paid by the Company during such period (other than in respect of
payments or distributions made in the ordinary course of business on account of
"stock appreciation rights", "phantom stock", "profit participations" and other
similar interests to the extent deducted in computing EBITDA), plus (5) the
amount by which cash pension payments during such period exceeds pension
accruals during such period.
"FUNDED INDEBTEDNESS" means, as to any Person, without duplication,
all Indebtedness for borrowed money, all obligations evidenced by bonds,
debentures, notes, or other similar instruments, all Capital Lease Obligations,
and all guaranties of Funded Indebtedness of other Persons.
"FUNDING BANK" means either of the Canadian Funding Bank or the US
Funding Bank, and "FUNDING BANKS" means both such Funding Banks collectively.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time (consistently applied),
including those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations based on GAAP
contained in this Agreement will be computed in conformity with GAAP.
"XXXX" means XXXX LLC, a Delaware limited liability company.
"GOVERNMENTAL AUTHORITY" means any federal, state, provincial,
territorial, county, city, municipal or other political subdivision or
government, department, commission, board, bureau, court, agency or any other
instrumentality of any of them, which exercises jurisdiction over any Credit
Party or any Property (including the use and/or sale thereof) of any Credit
Party.
"GOVERNMENTAL REQUIREMENT" means any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other
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direction or requirement (including any of the foregoing which relate to
Environmental Laws, energy regulations and occupational, safety and health
standards or controls) of any Governmental Authority, whether or not having the
force of law (but in the case of any such matter not having the force of law,
only to the extent responsible companies would customarily comply with such
matter).
"GUARANTEES" means the Canadian Guarantee and the US Guaranty.
"GUSA" means Gerdau USA Inc., a Delaware corporation.
"GUSA GUARANTEE" means GUSA's guarantee in favor of Nova Scotia Newco
(or any transferee of the Xxxxx Preferred Equity) in respect of the
distributions or dividends payable by Xxxxx with respect to the Xxxxx Preferred
Equity.
"GUSAP" means GUSAP Partners, a Delaware general partnership.
"GUSAP BORROWING TERMINATION EVENT" means any event or circumstance
whereby (a) an Event of Default has occurred and continues to exist or (b)
Excess Availability is less than $125,000,000.
"GUSAP FUNDING PERIOD" means any period during which GUSAP's right to
borrow US Revolving Credit Loans has not been terminated in accordance with the
terms of Section 2.30 or pursuant to GUSAP's irrevocable written notice to the
Administrative Agent that GUSAP will no longer have the right to borrow US
Revolving Credit Loans hereunder.
"GUSAP PAYMENT ACCOUNT" means account number 0000000 established by
GUSAP with The Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx Branch.
"GUSAP TERMINATION EVENT" means any event or circumstance whereby (a)
an Event of Default has occurred and continues to exist, (b) Excess Availability
is less than $100,000,000, (c) any US Borrower or NSULC is not Solvent, or (d)
the Borrowers have not satisfied the conditions set forth in Section 2.30(b) by
the 180th day following the date on which the Administrative Agent has exercised
any of its rights under Section 2.30(a) as a result of any applicable GUSAP
Borrowing Termination Event.
"HAZARDOUS MATERIALS" means any substance, product, liquid, waste,
pollutant, chemical, contaminant, insecticide, pesticide, gaseous or solid
matter, organic or inorganic matter, fuel, micro-organism, ray, odor, radiation,
energy, vector, plasma, constituent or material which (a) is or becomes listed,
regulated or addressed under any Environmental Law, or (b) is, or is deemed to
be, alone or in any combination, hazardous, hazardous waste, toxic, a pollutant,
a deleterious substance, a contaminant or a source of pollution or contamination
under any Environmental Law, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"HIGHEST LAWFUL RATE" means, with respect to each Lender, the maximum
non-usurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the Notes or on other
Lender Indebtedness, as the case may be, owed to it under the law of any
jurisdiction whose laws may be mandatorily applicable to such Lender.
"HOC" means, collectively, Co-Steel Liquidity Management Hungary
Limited Liability Company, Acierco S.A., and Goldmarsh Enterprises.
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"HOSTILE ACQUISITION" means a proposed Acquisition by a Credit Party
in circumstances in which the Person subject to such Acquisition shall not have
evidenced its agreement or agreement in principle to such Acquisition by means
of (i) a definitive agreement of purchase and sale, or (ii) a letter of intent
in respect thereof.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and obligations
evidenced by bonds, debentures (including convertible debentures), notes or
other similar instruments;
(b) all obligations of such Person (whether contingent or otherwise)
in respect of bankers' acceptances, letters of credit, surety or other bonds and
similar instruments;
(c) all obligations of such Person to pay the deferred purchase price
of Property or services (other than for borrowed money);
(d) all Capital Lease Obligations in respect of which such Person is
liable, contingently or otherwise, as obligor, guarantor or otherwise, or in
respect of which obligations such Person otherwise assures a creditor against
loss;
(e) all guaranties (direct or indirect), and other contingent
obligations of such Person in respect of, or obligations to purchase or
otherwise acquire or to assure payment of, Indebtedness or other obligations of
other Persons;
(f) Indebtedness of others secured by any Lien upon Property owned by
such Person, whether or not assumed;
(g) all obligations or undertakings of such Person to maintain or
cause to be maintained the financial position or financial covenants of other
Persons;
(h) the net amount of obligations (measured on a xxxx-to-market basis)
of such Person under agreements of the types described in the definition of Swap
Agreements; and
(i) any "synthetic lease", "tax retained operating lease" or similar
lease financing arrangements under which the tenant is treated as the owner of
property for tax purposes but such lease is treated as an operating lease in
accordance with GAAP.
"INDEMNIFIED PARTICIPATION TAXES" means (i) with respect to a Canadian
Risk Participant (and the Canadian Funding Bank), any Taxes imposed by means of
withholding on or with respect to (a) Canadian Revolving Loan Participation
Fees, (b) Canadian Revolving Loan Commitment Fees or (c) any other payment made
by the Canadian Funding Bank (or any Agent on behalf of the Canadian Funding
Bank) to a Canadian Risk Participant, and (ii) with respect to a US Risk
Participant (and the US Funding Bank), any Taxes imposed by means of withholding
on or with respect to (a) US Risk Participation Fees, (b) US Revolving Loan
Commitment Fees or (c) any other payment made by the US Funding Bank (or any
Agent on behalf of the US Funding Bank) to a US Risk Participant.
Notwithstanding the foregoing, Indemnified Participation Taxes shall exclude the
marginal increase, if any, in Taxes solely related to a Risk Participant
Certification that is or becomes incorrect other than as a result of a change in
Tax law or administrative practice of a tax authority, a change in any Borrower,
or any change not directly caused by the applicable Risk Participant (in any
such case the fact that the Risk Participant Certification became incorrect
shall not result in any marginal increase in Taxes being excluded from
Indemnified Participation Taxes hereunder); provided, however, Indemnified
Participation
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Taxes shall include such marginal increase, if any, in Taxes with respect to
payments made to (1) a Person that became a Risk Participant at a time when an
Event of Default existed, regardless of whether an Event of Default exists at
the time any such payment is made and (2) a Risk Participant at a time when an
Event of Default has occurred and is continuing (in either of which cases the
fact that any Risk Participant Certification is incorrect shall not result in
any marginal increase in Taxes being excluded from Indemnified Participation
Taxes hereunder).
"INDEMNIFIED TAXES" means Taxes (including Indemnified Participation
Taxes) other than Excluded Taxes.
"INDEMNITEE" means each Agent, Lender, Issuing Bank, Risk Participant
and Funding Bank (as the case may be).
"INITIAL CLOSING DATE" means June 27, 2003.
"INTERCOMPANY LIEN SUBORDINATION AGREEMENT" means that certain
Intercompany Lien Subordination Agreement dated as of the date hereof and
executed by PASUG and the Administrative Agent, providing for the subordination
of all Liens of PASUG under the Intercompany Security Agreement to the Liens of
the Administrative Agent, as amended, modified, renewed, supplemented or
restated from time to time.
"INTERCOMPANY SECURITY AGREEMENT" means that certain Security
Agreement dated as of the date hereof and executed by each US Operating Borrower
in favor of PASUG providing for and constituting a Lien in favor of PASUG on the
Collateral subject to the US Security Agreement, as amended, modified, renewed,
supplemented or restated from time to time in accordance with Section 6.11(e),
provided that at all times all Liens thereunder shall be subject and subordinate
to the Liens of the Administrative Agent in such Collateral pursuant to the
terms of the Intercompany Lien Subordination Agreement.
"INTEREST EXPENSE" means, as to any Person for any period, without
duplication, total interest expenses, whether paid or accrued as liabilities
(including the interest component of Capital Lease Obligations), with respect to
all outstanding Indebtedness, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to any financing or
letters of credit and net costs under any Swap Agreement to the extent that such
costs are included within interest expense in the Company's financial statements
prepared in accordance with GAAP; provided that "Interest Expense" shall not
include any one time expenses (including non-cash charges) relating to the
write-off of deferred financing costs in connection with the transactions
contemplated by this Agreement.
"INTEREST PERIOD" means, with respect to each Borrowing of LIBOR Loans
or B/A Loans, an interest period complying with Section 2.7.
"INVENTORY" has the meaning given to such term in Section 9-102(a)(48)
of the UCC or Section 1 of the PPSA, as applicable.
"INVESTMENT" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than advances or extensions of credit to customers
in the ordinary course of business) or other extensions of credit (including by
way of guarantee or similar arrangement, but excluding any debt or extension of
credit represented by a bank deposit other than a time deposit) or capital
contribution to (by means of any transfer of cash or other property to others or
any payment for property or services for the account or use of others), or any
purchase or acquisition of Equity, bonds, notes, debentures or other similar
instruments
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issued by, such other Person and all other items that are or would be classified
as investments on a balance sheet prepared in accordance with GAAP; provided
that none of the following will be deemed to be an Investment:
(1) obligations under Swap Agreements entered into in the ordinary
course of business and in compliance with this Agreement; and
(2) endorsements of negotiable instruments and documents in the
ordinary course of business.
"ISSUING BANK" means (a) for each US Letter of Credit, the Lender or
Lenders (or an Affiliate thereof) designated by the Company and approved in
writing by such Lender (or Affiliate) and the Administrative Agent (such
approval by the Administrative Agent not to be unreasonably withheld) as the
issuing bank for US Letters of Credit hereunder and (b) for each Canadian Letter
of Credit, the Lender or Lenders (or an Affiliate thereof) designated by the
Company and approved in writing by such Lender (or Affiliate) and the Canadian
Administrative Agent (such approval by the Canadian Administrative Agent not to
be unreasonably withheld) as the issuing bank for Canadian Letters of Credit
hereunder.
"LANDLORD WAIVER AGREEMENT" means an agreement executed and delivered
by each landlord of Real Property leased by any Borrower pursuant to which such
landlord subordinates or waives all of its Liens to the Liens of the
Administrative Agent or the Canadian Administrative Agent (as applicable) in the
Property of such Borrower located on the leased Real Property.
"L/C COVER", when required by this Agreement for Letter of Credit
Liabilities of an Account Party, shall be effected by paying to the
Administrative Agent in the case of US Letter of Credit Liabilities or the
Canadian Administrative Agent in the case of Canadian Letter of Credit
Liabilities, in immediately available funds, to be held by the Administrative
Agent or the Canadian Administrative Agent, as applicable, in a collateral
account maintained by the Administrative Agent or the Canadian Administrative
Agent, as applicable, and which accounts shall be under the sole dominion and
control of, the Administrative Agent or the Canadian Administrative Agent, as
applicable, and collaterally assigned as security pursuant to the Financing
Documents, an amount equal to 105% of the maximum amount of each applicable
Letter of Credit issued for the account of such account party which is available
for drawing at any time. Such amount shall be retained by the Administrative
Agent or the Canadian Administrative Agent, as applicable, in such collateral
account until such time as the applicable Letter of Credit shall have expired
and the Reimbursement Obligations, if any, with respect thereto shall have been
fully satisfied.
"LENDER" and "LENDERS" shall have the meanings set forth in the
opening paragraph hereof.
"LENDER INDEBTEDNESS" means, collectively, the Canadian Lender
Indebtedness and the US Lender Indebtedness.
"LENDING OFFICE" means for each Lender the office specified opposite
such Lender's name on the signature pages hereof, or in the Assignment and
Acceptance pursuant to which it became a Lender, with respect to each Type of
Loan, or such other office as such Lender may designate in writing from time to
time to the Company and the Administrative Agent with respect to such Type of
Loan; provided that Lending Offices for Canadian Revolving Lenders shall be in
Canada.
"LETTER OF CREDIT" means any Canadian Letter of Credit or US Letter of
Credit, and "LETTERS OF CREDIT" means Canadian Letters of Credit and US Letters
of Credit, collectively.
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"LETTER OF CREDIT LIABILITIES" means the US Letter of Credit
Liabilities and Canadian Letter of Credit Liabilities, collectively.
"LIBOR LOAN" means a US Revolving Credit Loan or a Canadian Revolving
Credit Loan that is a Dollar Denominated Loan bearing interest at the rate
provided in Section 2.6(b).
"LIBOR RATE" means, for any Interest Period with respect to a LIBOR
Loan, the rate of interest per annum determined pursuant to the following
formula:
LIBOR Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means the rate per annum appearing on Telerate
Page 3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable
to such Interest Period. If for any reason such rate is not available, the
Offshore Base Rate shall be, for any Interest Period, the rate per annum
appearing on Reuters Screen LIBO Page as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, the Offshore Base Rate shall be, for any
Interest Period, the rate per annum determined by the Administrative Agent
as the rate of interest at which Dollar deposits in the approximate amount
of the applicable LIBOR Loan would be offered by the Administrative Agent's
London Branch to major banks in the offshore Dollar market at their request
at or about 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward to
the next 1/8th of 1%) in effect on such day applicable to member banks
under regulations issued from time to time by the Board for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"). The Offshore Rate
for each outstanding LIBOR Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIEN" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on contract, constitutional, common, or statutory law, and
including but not limited to the lien, security interest or hypothec arising
from a mortgage, hypothec, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security purposes.
The term "Lien" shall include reservations, exceptions, encroachments,
easements, servitudes, rights of way, covenants, conditions, restrictions, liens
and other statutory, constitutional, or common law rights of landlords, leases
and other title exceptions and encumbrances affecting Property. For the purposes
of this Agreement, any Person shall be deemed to be the owner of any Property
which it has acquired or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes.
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"LOAN" means a Revolving Credit Loan, a US Swingline Loan, a Canadian
Swingline Loan or an Agent Advance and "LOANS" means the Revolving Credit Loans,
the US Swingline Loans, the Canadian Swingline Loans and the Agent Advances or
one or more of them as provided herein.
"LOCKBOX" means any lockbox to be established and operated pursuant to
Section 4.3 and Section 4.4 hereof and a Lockbox Agreement.
"LOCKBOX AGREEMENT" means one or more lockbox agreements, tri-party
agreements, or similar documents setting forth certain terms applicable to the
establishment and operation of the applicable Lockbox to be entered into between
the Borrowers (or any of them) and a US Lockbox Bank or a Canadian Lockbox Bank,
in form and substance acceptable to, the Administrative Agent, the Canadian
Administrative Agent, such US Lockbox Bank or such Canadian Lockbox Bank (acting
reasonably).
"MARGIN STOCK" shall have the meaning provided in Regulations T, U and
X.
"MATERIAL ADVERSE CHANGE" means any event, development or change in
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
"MATERIAL ADVERSE EFFECT" means any material and adverse effect on (a)
the business, operations, assets, liabilities, condition (financial or
otherwise), prospects, or results of operations of the Credit Parties taken as a
whole, (b) the validity or enforceability of any of the Financing Documents or
the rights and remedies of any Agent or Secured Party thereunder, or (c) the
perfection or priority of any Liens securing the Lender Indebtedness.
"MATURITY DATE" means October 28, 2010, or such other date to which
the Maturity Date has been extended pursuant to Section 2.10(d).
"NJSC" means N.J.S.C. Investment Co., Inc., a New Jersey domestic
profit corporation.
"NON-GUSAP FUNDING PERIOD" means any period which is not a GUSAP
Funding Period.
"NOTES" means the Revolving Credit Notes.
"NOVA SCOTIA NEWCO" means 3100361 Nova Scotia Company, a Nova Scotia
unlimited liability company.
"NSULC" means 3038482 Nova Scotia Company, a Nova Scotia unlimited
liability company.
"NSULC PAYMENT ACCOUNT" means account number 0000000 established by
GUSAP with The Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx Branch.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PARTICIPANT" has the meaning specified in Section 10.7(e).
"PASUG" means PASUG LLC, a Delaware limited liability company.
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"PASUG OPERATING ACCOUNT" means the account maintained by PASUG at a
financial institution acceptable to the Administrative Agent, acting reasonably.
"PASUG PAYMENT ACCOUNT" means account number 0000000 established by
PASUG with The Xxxxxxx-Xxxxxxxx Xxxx, Xxxxxxx Branch.
"PAYMENT OFFICE" means (a) with respect to US Loans, the
Administrative Agent's office located at Atlanta, Georgia (or such other office
or individual as the Administrative Agent may hereafter designate in writing to
the other parties hereto), and (b) with respect to Canadian Loans, the Canadian
Administrative Agent's office located at Toronto, Ontario (or such other office
or individual as the Canadian Administrative Agent may hereafter designate in
writing to the other parties hereto).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERFECTION CERTIFICATES" means a Certificate from a Responsible
Officer of each Credit Party substantially in the form of Exhibit E hereto to be
delivered to the Administrative Agent on the Closing Date.
"PERFECTION CERTIFICATE UPDATE" means a Certificate from a Responsible
Officer of a Credit Party substantially in the form of Exhibit E hereto and
setting forth all changes that would be required to be made to the Perfection
Certificate of such Credit Party (as updated pursuant to any prior Perfection
Certificate Update) to cause the Perfection Certificate of such Credit Party to
be accurate and complete if reissued as of the last day of the Fiscal Quarter
immediately preceding the date on which the Perfection Certificate is required
to be delivered pursuant to Section 6.10(d) hereof.
"PERMITTED ACQUISITION" means any Acquisition by a Credit Party which
is (i) of a Person carrying on a business which is the same as or related,
ancillary or complementary to the business carried on by such Credit Party, or
if an asset Acquisition, is of assets used or useful in a business which is the
same as or related, ancillary or complementary to the business carried on by
such Credit Party; (ii) in respect of which such Credit Party has provided a
certificate of the Chief Financial Officer of such Credit Party, at least twenty
(20) days prior to the closing date for such Acquisition, containing information
in format and detail satisfactory to the Administrative Agent, acting
reasonably, regarding the cost of such Acquisition, the financial and
acquisition structure of such Acquisition, audited financial statements (or, if
not available, unaudited financial statements, or, if unaudited financial
statements are not available, other financial information satisfactory to the
Administrative Agent, acting reasonably) of the subject of such Acquisition for
the previous two years, and financial projections, on a quarterly basis, for the
next two years (with copies of all of the foregoing financial and other
information to be provided by the applicable Credit Party to each of the
Lenders); (iii) in respect of which the Administrative Agent or the Canadian
Administrative Agent, as applicable, shall have received Lien search reports, in
form and substance satisfactory to the Administrative Agent or the Canadian
Administrative Agent, as applicable, and the Administrative Agent or the
Canadian Administrative Agent, as applicable, will, upon consummation of such
Acquisition, have a first priority, perfected Lien over any accounts and
inventory to be acquired, subject only to Permitted Liens, and if such
Acquisition is an Acquisition of Equity of any Person, such Person shall have
executed and delivered a counterpart to the applicable Security Instruments and
such other agreements, documents and instruments as the Administrative Agent or
the Canadian Administrative Agent may reasonably request, in each case in form
and substance satisfactory to the Administrative Agent and the Lenders; (iv) if
such Acquisition is an Acquisition of Equity of a Person and the accounts or
inventory of such Person are to be included in the Canadian Borrowing Base or
the US Borrowing Base, such Person shall have executed and delivered a joinder
agreement to this Agreement becoming a Canadian Borrower or a US Borrower, as
applicable, hereunder and such other agreements, documents and instruments as
the Administrative Agent or the Canadian Administrative
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Agent may reasonably request, in each case in form and substance satisfactory to
the Administrative Agent and the Lenders; (v) if the cash purchase price of such
Acquisition is paid by one or more of the US Operating Borrowers, the percentage
ownership interest (directly or through a Subsidiary) in any assets acquired by
each US Operating Borrower or the percentage of Equity acquired by each US
Operating Borrower, as applicable, in connection with such Acquisition shall be
equal to the percentage of the aggregate consideration paid by such US Operating
Borrower in connection with such Acquisition; (vi) Excess Availability,
immediately after giving effect to such Acquisition (including any Loan made
hereunder in connection therewith), will be no less than $75,000,000 (it being
understood that the Administrative Agent may require a Collateral Report in
respect of any assets forming a part of such Acquisition before the inclusion of
such assets in the US Borrowing Base or Canadian Borrowing Base for purposes of
determining Excess Availability, and if a Collateral Report has not been
delivered to the Administrative Agent within 90 days prior to the date of such
Acquisition, the Administrative Agent may also require a new Collateral Report
in respect of the assets of all of the Credit Parties); (vii) both before and
after giving effect to such Acquisition, no Default shall then exist; (viii) if
such Acquisition is an Acquisition of Equity of any Person, such Credit Party
acquires not less than 60% of the Equity of such Person; and (ix) not a Hostile
Acquisition. In addition to the normal criteria for accounts or inventory to be
an Eligible Account or Eligible Inventory, respectively, no account or inventory
acquired in connection with any Acquisition shall be an Eligible Account or
Eligible Inventory, respectively, until the Administrative Agent or the Canadian
Administrative Agent, as applicable, shall have received a Collateral Report in
respect of such accounts or inventory, as applicable, to the extent required by
the Administrative Agent; however, upon completion of a Permitted Acquisition,
and following receipt by the Administrative Agent or the Canadian Administrative
Agent, as applicable, of the required Collateral Report, any acquired accounts
or inventory which constitute Eligible Accounts or Eligible Inventory, as
applicable, will be included in the Canadian Borrowing Base or the US Borrowing
Base, as applicable.
"PERMITTED CASH APPLICATION" in respect of any US Borrower means the
application of cash by such Borrower or by PASUG on behalf of such Borrower
(which payments will be treated as an advance by PASUG to such Borrower) to (i)
reduce amounts owing by such Borrower to PASUG in respect of prior advances by
PASUG to such Borrower as a result of prior Permitted Cash Applications, (ii)
make payments for the fair value of goods and services received by or enjoyed by
such Borrower in the ordinary course of business, (iii) pay Indebtedness of such
Borrower, including such Borrower's allocated portion of Swingline Loans,
Revolving Credit Loans and Reimbursement Obligations, (iv) pay to a third party
the purchase price of assets to be acquired by such Borrower, (v) pay to a third
party the purchase price of Equity of an entity which will become a Credit
Party, and (vi) pay any other amount for a general corporate purpose of such
Borrower; provided, however, that an application of cash contemplated above
shall constitute a "Permitted Cash Application" only to the extent that such
application of cash is not in contravention of any of the other terms of this
Agreement. Any Permitted Cash Application that is applied to or for the benefit
of any Credit Party other than the US Operating Borrower in respect of which the
applicable Loan was made shall constitute a US Operating Borrower Advance and
shall be subject to all limitations contained in this Agreement relating
thereto.
"PERMITTED HOLDER" means Xxxxxx X.X. or any of its wholly-owned
subsidiaries.
"PERMITTED LIENS" shall have the meaning assigned in Section 7.3
hereof.
"PERMITTED NEW AFFILIATE SUBORDINATED DEBT" means Indebtedness
incurred by a Credit Party at any time after the Closing Date, provided that (i)
the creditor under such Indebtedness is an Affiliate of such Credit Party which
is not also a Credit Party, (ii) such Indebtedness is not assignable by the
creditor thereunder, except to another Affiliate of such Credit Party, (iii)
such Indebtedness is unsecured and, in any bankruptcy, insolvency, liquidation,
receivership, winding up or other similar proceeding, is subordinated in right
of payment to the prior payment of all Lender Indebtedness, (iv) such
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Indebtedness accrues interest at a rate determined in good faith by the Board of
Directors (or applicable governing authority) of such Credit Party to be a
market rate of interest for such Indebtedness at the time of issuance thereof,
(v) no amount is payable on account of such Indebtedness (whether on account of
principal, interest, fees or otherwise) if a Default has occurred and is
continuing or if Excess Availability is less than $50,000,000, either before or
immediately after giving effect to the payment, (vi) if at the time of the
incurrence of such Indebtedness the 144A Indenture remains in effect, such
Indebtedness is permitted under the 144A Indenture as in effect on the date
hereof without the need to obtain any waivers thereunder, and (vii) such
Indebtedness is otherwise on terms and conditions satisfactory to the
Administrative Agent, acting reasonably.
"PERMITTED NEW DEBT" means Indebtedness incurred by a Credit Party at
any time after the Closing Date, provided that (i) no material terms applicable
to such Indebtedness (including covenants and events of default) are materially
less favorable (taken as a whole) to the Credit Parties than the terms that are
applicable under the 144A Indenture, (ii) such Indebtedness is unsecured,
matures on a date not earlier than six (6) months after the Maturity Date and
does not include any amortization payments, (iii) such Indebtedness accrues
interest at a rate determined in good faith by the Board of Directors (or
applicable governing authority) of such Credit Party to be a market rate of
interest for such Indebtedness at the time of issuance thereof, (iv) if at the
time of the incurrence of such Indebtedness the 144A Indenture remains in
effect, such Indebtedness is permitted under the 144A Indenture as in effect on
the date hereof without the need to obtain any waivers thereunder, and (v) such
Indebtedness is otherwise on terms and conditions satisfactory to the
Administrative Agent, acting reasonably.
"PERSON" includes any natural person, corporation, company, limited
liability company, unlimited liability company, trust, joint venture,
association, incorporated organization, partnership, Governmental Authority or
other entity.
"PLAN" means any employee pension benefit plan, as defined in Section
3(2) of ERISA (including, but not limited to, an employee pension benefit plan,
such as a foreign plan, which is not subject to the provisions of ERISA), which
(a) is currently or hereafter sponsored, maintained or contributed to by any
Credit Party or an ERISA Affiliate, or (b) was at any time during the six
preceding Fiscal Years sponsored, maintained or contributed to by any Credit
Party or an ERISA Affiliate.
"PPSA" means the Personal Property Security Act (Ontario) as from time
to time in effect in the Province of Ontario or where applicable to a specific
Credit Party or Collateral, any other relevant province.
"PRIME RATE" means the rate which Bank of America announces from time
to time as its prime rate for Dollar-denominated Loans made in the United States
of America, effective as of the date announced as the effective date of any
change in such prime rate. Without notice to the Company or any other Person,
the Prime Rate shall change automatically from time to time as and in the amount
by which such prime rate shall fluctuate. The Prime Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer.
"PRO RATA SHARE" means at any time, with respect to any Lender or Risk
Participant, as the case may be, a fraction (expressed as a percentage), the
numerator of which is the amount of the Voting Commitments of such Lender or
Risk Participant, as the case may be, and its Related Affiliate at such time,
and the denominator of which is the sum of the amount of all Voting Commitments
at such time. If no Commitments are outstanding at such time, "Pro Rata Share"
shall mean at any time, with respect to any Lender or Risk Participant, as the
case may be, a fraction (expressed as a percentage), the numerator of which is
the amount of the Voting Revolving Credit Exposure of such Lender or Risk
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Participant, as the case may be, and its Related Affiliate at such time, and the
denominator of which is the sum of the amount of all Voting Revolving Credit
Exposure at such time.
"PROJECTIONS" means the consolidated and consolidating projections of
the results of operations and financial condition of the Company and its
consolidated Subsidiaries for the Fiscal Year ending on December 31, 2005, a
copy of which has been provided to the Administrative Agent and the Lenders and
is attached hereto as Schedule 1.1(A).
"PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"REAL PROPERTY" means any right, title or interest in and to real
property (and to fixtures or improvements thereon), including any fee interest,
leasehold interest, easement, or license and any other right to use or occupy
real property, including any right arising by contract.
"REGISTER" shall have the meaning assigned in Section 10.7(c).
"REGULATION D", "REGULATIONS T, U AND X" means, respectively,
Regulation D under the Securities Act of 1933, as amended or modified from time
to time, and Regulations T, U and X of the Board of Governors of the Federal
Reserve System, as such regulations are from time to time in effect and any
successor regulations thereto.
"REIMBURSEMENT OBLIGATIONS" means, at any date, the obligation of the
Canadian Borrowers then outstanding in respect of Canadian Letters of Credit and
the obligation of the US Borrowers then outstanding in respect of US Letters of
Credit, to reimburse the Administrative Agent or the Canadian Administrative
Agent, as applicable, for the account of the Issuing Bank for the amount paid by
the Issuing Bank in respect of any drawings under such Letters of Credit.
"RELATED AFFILIATE" means (a) with respect to any US Revolving Lender
or US Risk Participant, such Lender's or Risk Participant's Affiliate, if any,
which is a Canadian Revolving Lender or Canadian Risk Participant hereunder, and
(b) with respect to any Canadian Revolving Lender or Canadian Risk Participant,
such Lender's or Risk Participant's Affiliate, if any, which is a US Revolving
Lender or US Risk Participant hereunder.
"REQUIRED LENDERS" means Lenders and Risk Participants whose Pro Rata
Shares aggregate more than 50%; provided, however, that if any Lender or Risk
Participant shall be in breach of any of its obligations hereunder to the
Borrowers, any Agent or any Funding Bank, including any breach resulting from
its failure to honor its Commitment or Risk Participant Commitment in accordance
with the terms of this Agreement, then, for so long as such breach continues,
the term "Required Lenders" shall mean Lenders and Risk Participants (excluding
each Lender and Risk Participant that is in breach of its obligations under this
Agreement) whose Pro Rata Shares aggregate more than 50%.
"RESPONSIBLE OFFICER" means, with respect to any Person, the chairman
of the board, the president, the chief executive officer or the chief operating
officer, or any equivalent officer (regardless of his or her title), and, in
respect of financial or accounting matters, the chief financial officer, the
vice president of finance, the treasurer, the controller, or any equivalent
officer (regardless of his or her title). Unless otherwise specified, all
references to a Responsible Officer herein means a Responsible Officer of the
Company, GUSAP or PASUG and, to the extent that Loans are made directly by the
Lender to a US Operating Borrower pursuant to the terms hereof, a Responsible
Officer of such US Operating Borrower.
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"REVOLVING CREDIT COMMITMENTS" means collectively, the US Revolving
Credit Commitments and the Canadian Revolving Credit Commitments.
"REVOLVING CREDIT EXPOSURE" means, at any time for each Revolving
Lender, the sum of such Lender's US Revolving Credit Exposure and Canadian
Revolving Credit Exposure at such time.
"REVOLVING CREDIT LOAN" means, collectively, the US Revolving Credit
Loans and the Canadian Revolving Credit Loans.
"REVOLVING CREDIT NOTES" means, collectively, the US Revolving Credit
Notes and the Canadian Revolving Credit Notes.
"REVOLVING LENDERS" means, collectively, the US Revolving Lenders and
the Canadian Revolving Lenders.
"RISK PARTICIPANT" means a Canadian Risk Participant or US Risk
Participant.
"RISK PARTICIPANT CERTIFICATION" means the certification by a Risk
Participant that such Risk Participant (i) is a "United States person" as that
term is defined in Section 7701 of the Code and, for Canadian withholding tax
purposes, is eligible in respect of amounts payable to it hereunder for the
benefit of the Treaty as a "resident" of the United States (as defined in the
Treaty and interpreted under Canadian laws) or (ii) is (a) not a "United States
person" as that term is defined in Section 7701 of the Code, (b) all amounts
payable to such Risk Participant under this Agreement are effectively connected
with the conduct of its trade or business within the United States, and (c) for
Canadian withholding tax purposes, such Risk Participant is eligible in respect
of amounts payable to it under this Agreement for the benefit of the
Canada-France Income Tax Convention or the Canada-Spain Income Tax Convention as
a "resident" of France or Spain, as the case may be (in either case as defined
in the relevant convention), and interpreted under Canadian laws.
"RISK PARTICIPANT COMMITMENT" means, in the case of any Canadian Risk
Participant, the Canadian Risk Participant Commitment of such Canadian Risk
Participant, and, in the case of any US Risk Participant, the US Risk
Participant Commitment of such US Risk Participant.
"SECURED AFFILIATE" means any Affiliate of any Lender or Risk
Participant that has entered into a Swap Agreement with any Credit Party.
"SECURED PARTIES" means each Agent, Lender, Risk Participant, Issuing
Bank, Secured Affiliate and Cash Management Affiliate.
"SECURITIES PLEDGE AGREEMENT CONFIRMATIONS" means the Canadian
Securities Pledge Agreement Confirmation and the US Securities Pledge Agreement
Confirmation.
"SECURITIES PLEDGE AGREEMENTS" means the Canadian Securities Pledge
Agreement and the US Securities Pledge Agreement.
"SECURITY AGREEMENT CONFIRMATIONS" means the Canadian Security
Agreement Confirmation and the US Security Agreement Confirmation.
"SECURITY AGREEMENTS" means the Canadian Security Agreement and the US
Security Agreement.
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"SECURITY INSTRUMENTS" means any and all agreements or instruments now
or hereafter executed and delivered by any Credit Party or any other Person as
security for the payment or performance of the Lender Indebtedness or the
Canadian Lender Indebtedness, as any of the foregoing may be amended, modified
or supplemented and includes, without limitation, the Guarantees, the Security
Agreements and the Securities Pledge Agreements.
"SOLVENT" means with respect to any Person on a particular date, the
condition that, on such date, (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liabilities of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small amount of
capital.
"SPOT EXCHANGE RATE" means, on any day, the spot rate at which Dollars
are offered on such day by Bank of America - Canada Branch in Xxxxxxx, Xxxxxxx,
Xxxxxx for C$ at the opening of business on such day (Toronto Time) or at such
other time as the Administrative Agent or Canadian Administrative Agent may deem
appropriate in accordance with its customary practices.
"STANDBY LETTER OF CREDIT" means a letter of credit that (a) is used
in lieu or in support of performance guarantees or performance, surety or other
similar bonds (but expressly excluding stay and appeal bonds) arising in the
ordinary course of business, (b) is used in lieu or in support of stay or appeal
bonds, (c) supports the payment of insurance premiums for reasonably necessary
casualty insurance carried by any of the Borrowers, or (d) supports payment or
performance for identified purchases or exchanges of products or services in the
ordinary course of business.
"SUBSIDIARY" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, unlimited liability company,
partnership, limited partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, limited
liability company, unlimited liability company, partnership, limited
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"SUBSIDIARY" means a subsidiary of the Company.
"SWAP AGREEMENT" means any interest rate, currency or commodity swap,
cap, floor, collar, forward agreement, futures contract or other protection
agreement or option with respect to any such transaction, designed to hedge
against fluctuations in interest rates, currency exchange rates or commodity
prices.
"SWAP RESERVES" means, an amount (reflected in Dollars), calculated as
of the last day of each month and separately for the US Borrowers and the
Canadian Borrowers, equal to such Borrowers' liability under the Swap Agreements
to which such Borrowers are a party and any xxxx to market exposure of the
Lenders, Risk Participants or Secured Affiliates with respect to such Swap
Agreements.
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"SWINGLINE LOANS" means, collectively, the Canadian Swingline Loans
and the US Swingline Loans.
"TAXES" means all taxes, charges, fees, levies, imposts and other
assessments, including all income, sales, use, goods and services, value added,
capital, capital gains, alternative, net worth, transfer, profits, withholding,
payroll, employer health, excise, real property and personal property taxes, and
any other taxes, customs duties, fees, assessments, or similar charges in the
nature of a tax, including Canada Pension Plan and provincial pension plan
contributions, unemployment insurance payments and workers' compensation
premiums, together with any installments with respect thereto, and any interest,
fines and penalties with respect thereto, imposed by any Governmental Authority
(including federal, state, provincial, municipal and foreign Governmental
Authorities), and whether disputed or not.
"TORONTO TIME" means the time of day in Xxxxxxx, Xxxxxxx, Xxxxxx.
"TRANSACTIONS" means the transactions provided for in and contemplated
by this Agreement and the other Financing Documents.
"TREATY" means the Canada-United States Income Tax Convention, as
amended.
"TYPE" of Loan means an ABR Loan, a LIBOR Loan, a Canadian Prime Loan,
or a B/A Loan and shall also refer to a C$ Denominated Loan or a Dollar
Denominated Loan.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York or, where applicable to a specific Credit Party or
Collateral, any other relevant state.
"US AGENT ADVANCE" means each Agent Advance made to or with respect to
a US Borrower hereunder.
"US BASE RATE" means the rate of interest for Dollar denominated loans
publicly announced by Bank of America - Canada Branch from time to time as its
US Base Rate in effect at its principal office in Xxxxxxx, Xxxxxxx, Xxxxxx for
commercial loans made in Canada.
"US BLOCKED ACCOUNT" means a Blocked Account established by the US
Borrowers with a US Lockbox Bank.
"US BORROWERS" shall have the meaning set forth in the initial
paragraph hereof.
"US BORROWING BASE" means, only with respect to a US Operating
Borrower, the amount equal to the sum of:
(1) the Eligible Account Advance Percentage of such US Operating
Borrower's Eligible Accounts, plus
(2) the lesser of (i) the Eligible Inventory Advance Percentage of
such US Operating Borrower's Eligible Inventory, or (ii) 85% of the appraised
net recovery value of such US Operating Borrower's Eligible Inventory,
determined by reference to the net recovery percentages determined by the
Current Appraisal, plus
(3) the amount, if any, of the Canadian Availability which GUSAP or a
US Operating Borrower has elected to include in the US Borrowing Base of a US
Operating Borrower pursuant to Section 2.2(a).
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The US Borrowing Base in effect under this Agreement at any time for any US
Operating Borrower shall be the US Borrowing Base for such US Operating Borrower
reflected on the most recent US Borrowing Base Report delivered to the
Administrative Agent and the Canadian Administrative Agent pursuant to Section
6.10(g) hereof subject to (a) immediate adjustment by the Administrative Agent
or the Canadian Administrative Agent, to the extent that the calculation of any
components thereof is not in accordance with this Agreement, and (b) immediate
adjustment as a result of any changes in eligibility standards required by the
Administrative Agent, acting reasonably.
"US CREDIT PARTY" means the US Borrowers and any other Credit Party
which is organized or formed under the laws of any state of the United States or
any state thereof.
"US EXCESS AVAILABILITY" means, as of any date, (a) the lesser of (i)
the US Borrowing Base as of such date, minus, without duplication, the
Availability Reserves with respect to the US Borrowing Base as of such date, or
(ii) the aggregate US Revolving Credit Commitments as of such date, minus (b)
the aggregate outstanding balance of the US Lender Indebtedness as of such date
and the aggregate face amount of undrawn US Letters of Credit as of such date.
In calculating US Excess Availability, a deduction shall be made therefrom in an
amount equal to the sum of all debts and obligations of the US Borrowers that
are past due plus the outstanding amount of accounts payable of the US Borrowers
that have not been handled in the normal course of the US Borrowers' business
consistent with their past practices.
"US FUNDING BANK" means the reference to Bank of America - Canada
Branch and its successors and assigns acting as the US Funding Bank hereunder
pursuant to Section 2.8(b).
"US GUARANTY" means that certain Amended and Restated US Guaranty
dated as of the date hereof and executed by each Credit Party in favor of the
Administrative Agent, as amended, modified, renewed, supplemented or restated
from time to time.
"US LENDER" means a US Revolving Lender or a US Swingline Lender.
"US LENDER INDEBTEDNESS" means, without duplication, (a) any and all
amounts owing or to be owing by any US Credit Party to the Agents, the Issuing
Banks or any Lender with respect to or in connection with the US Loans, any US
Letter of Credit Liabilities, the US Revolving Credit Notes, this Agreement
(including Section 2.25) or any other Financing Document (including the US
Guaranty), (b) any and all amounts owing or to be owing by any US Credit Party
to any Risk Participant pursuant to Section 2.21 or 10.4, and (c) as to Swap
Agreements with any Lender, Risk Participant or any Secured Affiliate or Cash
Management Agreements with any Lender, Risk Participant or any Cash Management
Affiliate, any and all amounts owing or to be owing by any US Credit Party
thereunder to any Lender, Risk Participant or any Secured Affiliate or Cash
Management Affiliate, as applicable.
"US LETTER OF CREDIT" and "US LETTERS OF CREDIT" shall have the
meanings assigned to such terms in Section 2.3(a).
"US LETTER OF CREDIT LIABILITIES" means, at any time and in respect of
any US Letter of Credit, the sum of (a) the amount available for drawings under
such US Letter of Credit as of the date of determination, plus (b) the aggregate
unpaid amount of all Reimbursement Obligations due and payable as of the date of
determination in respect of previous drawings made under such US Letter of
Credit, and shall include any obligations relating to any letter of credit
guarantee or credit support provided by the Administrative Agent pursuant to
Section 2.3(e).
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"US LOANS" means the US Revolving Credit Loans, the US Swingline Loans
and the US Agent Advances.
"US LOCKBOX" means any lockbox to be established and operated pursuant
to Section 4.3 hereof and a US Lockbox Agreement.
"US LOCKBOX BANK" means any financial institution designated by the US
Borrowers or the Administrative Agent to act as the US Lockbox Bank and
consented to in writing by the US Borrowers and the Administrative Agent (which
consents shall not be unreasonably withheld, provided, however that the consent
of the US Borrowers shall not be required if a Default has occurred and is
continuing) and which has entered into a US Lockbox Agreement.
"US LOCKBOX AGREEMENT" means an agreement between one or more US
Borrowers and a US Lockbox Bank governing a US Lockbox.
"US MAXIMUM AVAILABLE AMOUNT" means, at any date, an amount equal to
the lesser of (a) the aggregate US Revolving Credit Commitments as of such date,
and (b) the remainder of (i) the aggregate US Borrowing Base as of such date,
minus (ii) the sum of (A) the Availability Reserves with respect to the
aggregate US Borrowing Base as of such date, plus (B) the portion of the Swap
Reserves and the Cash Management Reserves applicable to the US Borrowers as of
the last day of the month for which the US Borrowing Base is being calculated.
"US OPERATING BORROWERS" means, collectively, Ameristeel US, Perth
Amboy, Sayreville, Lake Ontario, Xxxxxx Bros. and MFT, and "US OPERATING
BORROWER" means any such US Borrower.
"US OPERATING BORROWER ADVANCE" means (a) a loan or other advance made
by any US Operating Borrower to any other Credit Party (other than PASUG, GUSAP
or NSULC), and shall expressly include the application of proceeds from
collections of accounts or advances owing to such US Operating Borrower, or the
retention of such proceeds by such other Credit Party, in the name of or to or
for the account of any Person other than the applicable US Operating Borrower;
or (b) a loan or other advance by PASUG to any other Credit Party (other than
GUSAP or NSULC) that is made out of proceeds from collections of accounts owing
to a US Operating Borrower, or that is made out of the proceeds of US Loans
allocated to any other US Operating Borrower.
"US OPERATING BORROWER NET ADVANCE AMOUNT" means, at any time and
without duplication:
(a) for any Credit Party other than a US Operating Borrower or PASUG,
the amount, if positive, of all US Operating Borrower Advances owing by
such Credit Party at such time;
(b) for PASUG only, the outstanding amount, if positive, of all funds
held by PASUG at such time, including any funds that have been invested by
PASUG in its own name, which constitute proceeds from collections of
accounts, or from advances owing by any Person to any Credit Party other
than PASUG (which give rise to an inter-company payable to such other
Credit Party) or the retention of any proceeds from US Loans, but excluding
(i) any amounts that are received by PASUG and are to be promptly applied
towards the payment of principal, interest or fees in respect of Revolving
Credit Loans or the 144A Notes, including applications in the form of
dividends and return of capital to NSULC, and (ii) any amounts on deposit
in the PASUG Operating Account; and
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(c) for any US Operating Borrower and at any time, the amount, if
positive, by which (i) the amount equal to (x) the aggregate amount of all
US Operating Borrower Advances owing by such US Operating Borrower at such
time, plus (y) the aggregate outstanding amount of all US Loans that have
been made in respect to such US Operating Borrower at such time, minus (z)
the amount of US Operating Borrower Advances made by such US Operating
Borrower; exceeds (ii) the amount equal to (x) the US Borrowing Base for
such US Operating Borrower then in effect, minus (y) the aggregate amount
of all US Letter of Credit Liabilities relating to such US Operating
Borrower at such time, minus (z) any Availability Reserves, Swap Reserves,
and Cash Management Reserves relating to such US Operating Borrower. At any
time that the US Operating Borrower Net Advance Amount for any US Operating
Borrower is less than zero, such amount shall be deemed to be zero.
"US PARTICIPATION SETTLEMENT DATE" means the date specified by the US
Funding Bank by written notice to each US Risk Participant, the Agents and the
US Borrowers, following the occurrence and continuance of a US Participation
Triggering Event, as the date on which the US Funding Bank will assign to each
US Risk Participant, and each US Risk Participant will assume and purchase, the
Assigned US Interests applicable to such US Risk Participant in accordance with
Section 2.8(a)(ii), such notice to be delivered no later than 2:00 p.m. (Atlanta
Time) on the Business Day immediately preceding the US Participation Settlement
Date.
"US PARTICIPATION TRIGGERING EVENT" means the occurrence of a GUSAP
Termination Event or an Event of Default.
"US PRO RATA SHARE" means at any time, with respect to any US
Revolving Lender or US Risk Participant, as the case may be, a fraction
(expressed as a percentage), the numerator of which is the amount of the Voting
Commitment of such US Revolving Lender or US Risk Participant, as the case may
be, and the denominator of which is the sum of the amount of all US Revolving
Credit Commitments at such time.
"US PURCHASE AMOUNT" shall have the meaning assigned to such term in
Section 2.8(b)(ii).
"US REVOLVING CREDIT COMMITMENT" shall have the meaning assigned to
such term in Section 2.1(c).
"US REVOLVING CREDIT EXPOSURE" means, at any time and as to each US
Revolving Lender, the sum of (a) the aggregate principal amount of US Revolving
Credit Loans made by such US Revolving Lender outstanding as of such date, plus
(b) other than for purposes of Section 2.1(c) and 2.11(a) hereof, unless the
Administrative Agent or the Required Lenders otherwise direct, the accrued and
unpaid interest on US Revolving Credit Loans made by such US Revolving Lender
outstanding as of such date, plus (c) such US Revolving Lender's US Revolving
Credit Percentage of the aggregate amount of all US Letter of Credit Liabilities
as of such date, plus (d) such US Revolving Lender's US Revolving Credit
Percentage of the US Swingline Exposure as of such date, plus (e) such US
Revolving Lender's US Revolving Credit Percentage of the aggregate principal
amount of the US Agent Advances as of such date.
"US REVOLVING CREDIT LOAN" shall have the meaning provided in Section
2.1(a).
"US REVOLVING CREDIT LOAN COMMITMENT FEE" has the meaning specified in
Section 2.8(b)(vii).
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"US REVOLVING CREDIT NOTE" means a promissory note of the US Borrowers
described in Section 2.5(a) payable to any US Revolving Lender and being
substantially in the form of Exhibit F, evidencing the aggregate joint and
several Indebtedness of the US Borrowers to such US Revolving Lender resulting
from US Revolving Credit Loans made by such US Revolving Lender.
"US REVOLVING CREDIT PERCENTAGE" means, as to any US Revolving Lender,
the percentage of the aggregate US Revolving Credit Commitments constituted by
its US Revolving Credit Commitment (or, if the US Revolving Credit Commitments
have terminated or expired, the percentage which such US Revolving Lender's
Revolving Credit Exposure at such time constitutes of the Aggregate US Revolving
Credit Exposure at such time).
"US REVOLVING LENDER" means a Lender (including the US Funding Bank)
with a US Revolving Credit Commitment.
"US RISK PARTICIPANT" means each Person that is a party hereto as a
"US Risk Participant" in accordance with Section 2.8(b) or hereafter becomes a
party hereto as a "US Risk Participant" in accordance with Section 10.7.
"US RISK PARTICIPANT COMMITMENT" means, in the case of any US Risk
Participant, the commitment of such US Risk Participant to participate in the
risk of US Revolving Credit Loans made by the US Funding Bank in accordance with
the terms of Section 2.8(b) in the amount set forth opposite such US Risk
Participant's name on Annex I under the caption "US Risk Participant Commitment"
(as the same may be increased pursuant to Section 2.1(h), adjusted pursuant to
Section 2.10(a), or otherwise from time to time modified pursuant to Section
10.7).
"US RISK PARTICIPANT REVOLVING CREDIT EXPOSURE" means, at any time and
as to each US Risk Participant, the amount of the US Revolving Credit Exposure
of the US Funding Bank the risk of which is allocable to such US Risk
Participant pursuant to its US Risk Participation.
"US RISK PARTICIPATION" has the meaning specified in Section
2.8(b)(i).
"US RISK PARTICIPATION FEE" has the meaning specified in Section
2.8(b)(vi).
"US SECURITIES PLEDGE AGREEMENT" means that certain US Securities
Pledge Agreement dated as of the Initial Closing Date and executed by each US
Credit Party in favor of the Administrative Agent providing for and constituting
a first-priority Lien in favor of the Administrative Agent on the Collateral
described therein, as supplemented and renewed by the US Securities Pledge
Agreement Confirmation, and as further amended, modified, renewed, supplemented
or restated from time to time.
"US SECURITIES PLEDGE AGREEMENT CONFIRMATION" means that certain
Confirmation and Affirmation of US Securities Pledge Agreement dated as of the
date hereof and executed by each US Credit Party in favor of the Administrative
Agent, whereby, among other things, each US Credit Party confirms and affirms
the grant by each US Credit Party of a first-priority Lien in favor of the
Administrative Agent on the Collateral described in the US Securities Pledge
Agreement as security for all of the Lender Indebtedness.
"US SECURITY AGREEMENT" means that certain US Security Agreement dated
as of the Initial Closing Date and executed by each US Credit Party in favor of
the Administrative Agent providing for and constituting a first-priority Lien in
favor of the Administrative Agent on the Collateral described therein, as
supplemented and renewed by the US Security Agreement Confirmation, and as
further amended, modified, renewed, supplemented or restated from time to time.
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"US SECURITY AGREEMENT CONFIRMATION" means that certain Confirmation
and Affirmation of US Security Agreement dated as of the date hereof and
executed by each US Credit Party in favor of the Administrative Agent, whereby,
among other things, each US Credit Party confirms and affirms the grant by each
US Credit Party of a first-priority Lien in favor of the Administrative Agent on
the Collateral described in the US Security Agreement as security for all of the
Lender Indebtedness.
"US SWINGLINE AVAILABILITY" means, on any date, an amount equal to the
remainder of (a) the US Swingline Commitment, minus (b) the US Swingline
Exposure on such date.
"US SWINGLINE COMMITMENT" shall have the meaning assigned to such term
in Section 2.1(e).
"US SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all US Swingline Loans made to PASUG (and to the US Operating
Borrowers if US Swingline Loans have been made by the US Swingline Lender
directly to one or more US Operating Borrowers pursuant to the terms hereof)
outstanding at such time.
"US SWINGLINE LENDER" means Bank of America - Canada Branch, in its
capacity as lender of US Swingline Loans hereunder.
"US SWINGLINE LOANS" shall have the meaning assigned to such term in
Section 2.1(a).
"USA PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
"VOTING COMMITMENT" means, at any time, (a) in the case of any
Canadian Revolving Lender (other than the Canadian Funding Bank), the Canadian
Revolving Credit Commitment of such Canadian Revolving Lender at such time, (b)
in the case of the Canadian Funding Bank, the Canadian Revolving Credit
Commitment of the Canadian Funding Bank at such time minus the sum of all
Canadian Risk Participant Commitments at such time, (c) in the case of any US
Revolving Lender (other than the US Funding Bank), the US Revolving Credit
Commitment of such US Revolving Lender at such time, (d) in the case of the US
Funding Bank, the US Revolving Credit Commitment of the US Funding Bank at such
time minus the sum of all US Risk Participant Commitments at such time, (e) in
the case of any Canadian Risk Participant, the Canadian Risk Participant
Commitment of such Canadian Risk Participant at such time, and (f) in the case
of any US Risk Participant, the US Risk Participant Commitment of such US Risk
Participant at such time.
"VOTING REVOLVING CREDIT EXPOSURE" means, at any time, (a) in the case
of any Canadian Revolving Lender (other than the Canadian Funding Bank), the
Canadian Revolving Credit Exposure of such Canadian Revolving Lender at such
time, (b) in the case of the Canadian Funding Bank, the Canadian Revolving
Credit Exposure of the Canadian Funding Bank at such time minus the sum of all
Canadian Risk Participant Revolving Credit Exposure at such time, (c) in the
case of any US Revolving Lender (other than the US Funding Bank), the US
Revolving Credit Exposure of such US Revolving Lender at such time, (d) in the
case of the US Funding Bank, the US Revolving Credit Exposure of the US Funding
Bank at such time minus the sum of all US Risk Participant Revolving Credit
Exposure at such time, (e) in the case of any Canadian Risk Participant, the
Canadian Risk Participant Revolving Credit Exposure of such Canadian Risk
Participant at such time, and (f) in the case of any US Risk Participant, the US
Risk Participant Revolving Credit Exposure of such US Risk Participant at such
time.
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"VOTING STOCK" of any Person means Equity of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
SECTION 1.2 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". The
word "or" is disjunctive; the word "and" is conjunctive. The word "shall" is
mandatory; the word "may" is permissive. The words "to the knowledge of" means,
when modifying a representation, warranty or other statement of any Person, that
the fact or situation described therein is known by the Person (or, in the case
or a Person other than a natural Person, known by any Responsible Officer of
that Person) making the representation, warranty or other statement, or with the
exercise of reasonable due diligence under the circumstances (in accordance with
the standard of what a reasonable Person in similar circumstances would have
done) would have been known by the Person (or, in the case of a Person other
than a natural Person, would have been known by such Responsible Officer of that
Person). Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any statute or any section thereof shall, unless
otherwise expressly stated, be deemed to be a reference to such statute or
section as amended, restated or re-enacted from time to time, (c) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (d) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (e) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement, and (f)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. All
references to time will be to Eastern Time unless otherwise expressed herein.
Any reference to a specific bank account shall include any replacement,
substitution or redesignation of such bank account provided that (x) the
Administrative Agent and the Canadian Administrative Agent are provided with
prior written notice of such replacement, substitution or redesignation, (y) the
Canadian Administrative Agent and the Administrative Agent provide their written
consent to such replacement, substitution or redesignation to the applicable
Credit Party (such consent not to be unreasonably withheld) and (z) the Canadian
Administrative Agent and the Administrative Agent are satisfied, acting
reasonably, that the replacement, substituted or redesignated bank account is or
will be subject to a validly perfected first-priority Lien in favor of the
Canadian Administrative Agent and/or the Administrative Agent. Any reference
herein to a security interest shall be construed to include a hypothec.
SECTION 1.3 ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP. All calculations for the purposes of determining
compliance with the financial ratios and financial covenants contained herein
shall be made on a basis consistent with GAAP in existence as at the date of
this Agreement and used in the preparation of the financial statements of the
Borrowers referred to in Section 5.6. Any financial ratios required to be
maintained by the Borrowers pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the result
to one place more than the number of places by which such ratio is expressed in
this Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
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ARTICLE 2
AMOUNT AND TERMS OF LOANS
SECTION 2.1 LOANS AND COMMITMENTS.
(a) LOANS. Subject to the terms and conditions and relying on the
representations and warranties contained herein, (A) on any Business Day from
and after the Closing Date, but prior to the Maturity Date, each US Revolving
Lender severally, but not jointly, agrees to make revolving credit loans in
Dollars (each a "US REVOLVING CREDIT LOAN") to GUSAP or PASUG (or directly to
the US Operating Borrowers in accordance with the terms hereof during any
Non-GUSAP Funding Period), (B) on any Business Day from and after the Closing
Date, but prior to the Maturity Date, each Canadian Revolving Lender severally,
but not jointly, agrees to make revolving credit loans in either Dollars or C$
(each a "CANADIAN REVOLVING CREDIT LOAN") to the Canadian Borrowers, (C) on any
Business Day from and after the Closing Date, but prior to the Maturity Date,
the US Swingline Lender agrees to make revolving swingline loans in Dollars
(each a "US SWINGLINE LOAN") to PASUG for and on behalf of the US Operating
Borrowers (or directly to a US Operating Borrower in accordance with the terms
hereof), and (D) on any Business Day from and after the Closing Date, but prior
to the Maturity Date, the Canadian Swingline Lender agrees to make revolving
swingline loans in Dollars or C$ (each a "CANADIAN SWINGLINE LOAN") to the
Canadian Borrowers.
(b) TYPES OF LOANS. (1) The Dollar Denominated Loans made pursuant hereto
shall, at the option of the US Borrowers or the Canadian Borrowers, as
applicable, be either ABR Loans or LIBOR Loans and may be continued or converted
pursuant to Section 2.12, (2) the C$ Denominated Loans made pursuant hereto
shall, at the option of the Canadian Borrowers, be either Canadian Prime Loans
or B/A Loans and may be continued or converted pursuant to Section 2.12, (3) the
US Swingline Loans made pursuant hereto shall be ABR Loans, (4) the Dollar
Denominated Canadian Swingline Loans made pursuant hereto shall be ABR Loans,
and (5) the C$ Denominated Canadian Swingline Loans made pursuant hereto shall
be Canadian Prime Loans; provided, that, except as otherwise specifically
provided herein, all Loans made pursuant to the same Borrowing shall be of the
same Type.
(c) US REVOLVING CREDIT COMMITMENTS. Each US Revolving Lender's US
Revolving Credit Exposure shall not exceed at any one time the amount set forth
opposite such US Revolving Lender's name on Annex I under the caption "US
Revolving Credit Commitment" (as the same may be increased pursuant to Section
2.1(h), adjusted pursuant to Section 2.10(a), or otherwise from time to time
modified pursuant to Section 10.7, its "US REVOLVING CREDIT COMMITMENT," and
collectively for all US Revolving Lenders, the "US REVOLVING CREDIT
COMMITMENTS"; the term "US Revolving Credit Commitments" includes the
obligations of each US Revolving Lender to purchase participations in the US
Swingline Loans pursuant to Section 2.26 hereof and in US Agent Advances
pursuant to Section 2.28(b)); provided, however, that the Aggregate US Revolving
Credit Exposure at any one time outstanding shall not exceed the US Maximum
Available Amount in effect at such time, except that US Agent Advances may
result in the Aggregate US Revolving Credit Exposure exceeding the amount
contemplated in clause (b) of the definition of "US MAXIMUM AVAILABLE AMOUNT" so
long as the Aggregate US Revolving Credit Exposure shall not exceed the amount
contemplated in clause (a) of the definition of "US MAXIMUM AVAILABLE AMOUNT".
Within the foregoing limits and subject to Section 2.2(a) and the conditions set
forth in Article 3, the US Borrowers may obtain Borrowings of US Revolving
Credit Loans, repay or prepay such US Revolving Credit Loans, and reborrow such
US Revolving Credit Loans.
(d) CANADIAN REVOLVING CREDIT COMMITMENTS. The Dollar Equivalent of each
Canadian Revolving Lender's Canadian Revolving Credit Exposure shall not exceed
at any one time the amount set forth opposite such Canadian Revolving Lender's
name on Annex I under the caption "Canadian
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Revolving Credit Commitment" (as the same may be increased pursuant to Section
2.1(h), adjusted pursuant to Section 2.10(a), or otherwise from time to time
modified pursuant to Section 10.7, its "CANADIAN REVOLVING CREDIT COMMITMENT,"
and collectively for all Canadian Revolving Lenders, the "CANADIAN REVOLVING
CREDIT COMMITMENTS"; the term "Canadian Revolving Credit Commitments" includes
the obligations of the Canadian Revolving Lenders to purchase participations in
the Canadian Swingline Loans pursuant to Section 2.27 hereof and in Canadian
Agent Advances pursuant to Section 2.28(c)); provided, however, that the Dollar
Equivalent of the Aggregate Canadian Revolving Credit Exposure at any one time
outstanding shall not exceed the Canadian Maximum Available Amount in effect at
such time, except that Canadian Agent Advances may result in the Aggregate
Canadian Revolving Credit Exposure exceeding the amount contemplated in clause
(b) of the definition of "CANADIAN MAXIMUM AVAILABLE AMOUNT" so long as the
Aggregate Canadian Revolving Credit Exposure shall not exceed the amount
contemplated in clause (a) of the definition of "CANADIAN MAXIMUM AVAILABLE
AMOUNT". Within the foregoing limits and subject to the conditions set forth in
Article 3, the Canadian Borrowers may obtain Borrowings of Canadian Revolving
Credit Loans, repay or prepay such Canadian Revolving Credit Loans, and reborrow
such Canadian Revolving Credit Loans.
(e) US SWINGLINE LOANS. The US Swingline Lender's US Swingline Exposure
shall not exceed at any one time the amount set forth opposite the US Swingline
Lender's name on Annex I under the caption "US Swingline Loan Commitment" (as
the same may be adjusted pursuant to Section 2.10(b)) (the "US SWINGLINE
COMMITMENT"); provided, however, the Aggregate US Revolving Credit Exposure at
any one time outstanding shall not exceed the US Maximum Available Amount in
effect at such time. Within the foregoing limits set forth herein, PASUG (or the
US Operating Borrowers in accordance with the terms hereof) may obtain
Borrowings of US Swingline Loans, repay or prepay such US Swingline Loans, and
reborrow such US Swingline Loans.
(f) CANADIAN SWINGLINE LOANS. The Canadian Swingline Lender's Canadian
Swingline Exposure shall not exceed at any one time the amount set forth
opposite the Canadian Swingline Lender's name on Annex I under the caption
"Canadian Swingline Loan Commitment" (as the same may be adjusted pursuant to
Section 2.10(b)) (the "CANADIAN SWINGLINE COMMITMENT"); provided, however, the
Aggregate Canadian Revolving Credit Exposure at any one time outstanding shall
not exceed the Canadian Maximum Available Amount in effect at such time. Within
the foregoing limits set forth herein, the Canadian Borrowers may obtain
Borrowings of Canadian Swingline Loans, repay or prepay such Canadian Swingline
Loans, and reborrow such Canadian Swingline Loans.
(g) AMOUNTS OF BORROWINGS, ETC. The aggregate principal amount of each
Borrowing from all Lenders (1) of LIBOR Loans shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000, (2) of US Revolving Credit
Loans which are ABR Loans shall be in a minimum amount of $1,000,000 and in an
integral multiple of $100,000, (3) of Canadian Revolving Credit Loans which are
ABR Loans shall be in a minimum amount of $1,000,000 and in an integral multiple
of $100,000, (4) of Canadian Prime Loans shall be in a minimum amount of
C$1,000,000 and in an integral multiple of C$100,000, (5) of B/A Loans shall be
in a minimum aggregate amount of C$5,000,000 and in an integral multiple of
C$1,000,000, (6) of US Swingline Loans shall be in any amount, and (7) of
Canadian Swingline Loans shall be in any amount. Borrowings of more than one
Type of Loan may be outstanding at the same time; provided, however, that the
Borrowers shall not be entitled to request any Borrowing that, if made, would
result in an aggregate of more than ten separate Borrowings of LIBOR Loans (of
which no more than seven separate Borrowings of LIBOR Loans may be made under
the Canadian Revolving Commitment or the US Revolving Commitment) or more than
four B/A Loans being outstanding at any one time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
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(h) COMMITMENT INCREASES.
(i) Subject to the terms and conditions hereof, at any time after the
Closing Date and up to the Maturity Date, provided that no Default has
occurred and is continuing, the Borrowers may request that the Lenders
increase the Commitments by an aggregate amount of up to $300,000,000 (each
such commitment increase, a "COMMITMENT INCREASE") by notifying the
Administrative Agent, the Canadian Administrative Agent, each Lender and
each Risk Participant of the amount of the proposed Commitment Increase and
the allocation of such Commitment Increase between the US Revolving Credit
Commitments and the Canadian Revolving Credit Commitments (the "COMMITMENT
INCREASE NOTICE"). Notwithstanding anything in this Agreement, no
Commitment Increase shall require the approval of any Lender (or Risk
Participant) other than any Lender providing all or part of the Commitment
Increase (and any Risk Participant acquiring an Applicable Risk
Participation in all or part of a Funding Bank's increase in its
Commitment), no Lender shall be required to provide all or part of any
Commitment Increase unless it agrees to do so in its sole discretion, no
Commitment Increase shall be in an amount less than $75,000,000, and the
aggregate amount of all Commitment Increases shall not exceed $300,000,000.
(ii) Any Commitment Increase shall be offered by the Borrowers to the
Lenders pro rata in accordance with the Applicable Percentages of the
Lenders on the date that the Commitment Increase is requested. The Lenders
shall have 15 Business Days to respond to any request for a Commitment
Increase (by notice to the Borrowers and the Administrative Agent) and may
elect to accept all, a portion or none of their respective Applicable
Percentages of the proposed Commitment Increase. Any Lender which fails to
respond to a request for a Commitment Increase by the end of such 15
Business Day period (the "COMMITMENT INCREASE ACCEPTANCE DEADLINE") will be
deemed to have declined the request for its Applicable Percentage of the
requested Commitment Increase. If any portion of a requested Commitment
Increase is not provided by the Lenders, then the Borrowers may request
that one or more Persons acceptable to the Administrative Agent and the
Canadian Administrative Agent provide such Commitment Increase. In any such
case, the Person providing such portion of the requested Commitment
Increase shall execute and deliver to the Administrative Agent, the
Canadian Administrative Agent and the Borrowers all such documentation as
may be reasonably required by the Administrative Agent and the Canadian
Administrative Agent to evidence such Commitment Increase (including the
fact that such Person shall have become a Lender under this Agreement).
Upon the addition of any Lender hereunder, or the increase in the
Commitment of any Lender, the Commitments set forth on Annex I shall be
amended by the Administrative Agent to reflect each such addition and
increase. Any Person added as a new Lender pursuant to this Section 2.1(h)
shall be required to have a Combined Revolving Credit Commitment of not
less than $10,000,000.
(iii) If any requested Commitment Increase is agreed to in accordance
with this Section 2.1(h), the Administrative Agent and the Borrowers shall
determine the effective date of such Commitment Increase (the "COMMITMENT
INCREASE EFFECTIVE DATE"). The Administrative Agent, with the consent and
approval of the Borrowers, shall promptly confirm in writing to the Lenders
the final allocation of such Commitment Increase and the Commitment
Increase Effective Date. Each new Lender, and each existing Lender that has
increased its Commitment, shall purchase Revolving Credit Loans and
participations in outstanding Letters of Credit from each other Lender in
an amount such that, after such purchase or purchases, the amount of
outstanding Revolving Credit Loans and outstanding Letter of Credit
participations of each Lender shall equal such Lender's Applicable
Percentage of the Commitments, as modified to give effect to such
Commitment Increase, multiplied by the aggregate amount of outstanding
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Revolving Credit Loans and Letter of Credit participations of all Lenders.
The Borrowers shall prepay any Revolving Credit Loans which are LIBOR Loans
or B/A Loans and which are outstanding on the Commitment Increase Effective
Date (and pay any and all costs and other required payments in connection
with such prepayment pursuant to Section 2.19 hereof) to the extent
necessary to keep the outstanding Revolving Credit Loans and Letters of
Credit ratable with any revised Applicable Percentages of the Commitments
arising from any non-ratable increase in the Commitments.
(iv) As a condition precedent to the effectiveness of any such
Commitment Increase, the Borrowers shall deliver to the Administrative
Agent a certificate dated as of the Commitment Increase Effective Date (in
sufficient copies for each Lender and Risk Participant) signed by a
Responsible Officer of the Company, including a certification that, before
and after giving effect to such Commitment Increase, the representations
and warranties contained in Article 5 hereof are true and correct in all
material respects on and as of the Commitment Increase Effective Date
(except to the extent any such representation or warranty is stated to
relate solely to an earlier date) and no Default has occurred and is
continuing.
(v) If any Applicable Risk Participation exists on the date of any
Commitment Increase Notice, (A) the Canadian Funding Bank shall be deemed
to have offered to each Canadian Risk Participant the right to increase its
Canadian Risk Participation by an amount equal to its Pro Rata Share of the
portion of such Commitment Increase to be allocated to the Canadian
Revolving Credit Commitments, and (B) the US Funding Bank shall be deemed
to have offered to each US Risk Participant the right to increase its US
Risk Participation by an amount equal to its Pro Rata Share of the portion
of such Commitment Increase to be allocated to the US Revolving Credit
Commitments. Each Risk Participant shall have until the Commitment Increase
Acceptance Deadline to respond to any such deemed offer of the right to
increase its Applicable Risk Participation (by notice to the Borrowers, the
Administrative Agent and each Funding Bank) and may elect to accept all, a
portion or none of its Pro Rata Share of the proposed Commitment Increase
to be allocated to the Canadian Revolving Credit Commitments or US
Revolving Credit Commitments, as applicable. Any Risk Participant which
fails to respond to a deemed offer of the right to increase its Applicable
Risk Participation by the Commitment Increase Acceptance Deadline will be
deemed to have declined the offer of the right to increase its Applicable
Risk Participation. To the extent any Risk Participant accepts such offer
of the right to increase its Applicable Risk Participation, such acceptance
shall be irrevocable, the amount of the increase accepted in its Applicable
Risk Participation shall be referred to hereafter as the "Participation
Increase Amount", the Applicable Funding Bank shall be deemed to have
timely accepted the request by the Borrowers for an increase in the
Applicable Commitment of the Applicable Funding Bank in an amount equal to
the Participation Increase Amount, and the Applicable Risk Participation
and Applicable Risk Participation Commitment of such Risk Participant shall
be increased on the Commitment Increase Effective Date in an amount equal
to the Participation Increase Amount.
(vi) Notwithstanding anything herein to the contrary, no Commitment
Increase may be effectuated unless, after giving effect to any Commitment
Increase, the Canadian Pro Rata Share of each Canadian Revolving Lender or
Canadian Risk Participant, as applicable, is equal to the US Pro Rata Share
of such Person or its Related Affiliate.
SECTION 2.2 BORROWING REQUESTS.
(a) US REVOLVING CREDIT BORROWING REQUESTS.
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(1) Whenever a US Borrower desires to make a Borrowing of US Revolving
Credit Loans hereunder, GUSAP or PASUG, as applicable (or, during any
Non-GUSAP Funding Period, the requesting US Operating Borrower) shall give
Advance Notice to the Administrative Agent in the form of a Borrowing
Request, specifying, subject to the provisions hereof, (i) the aggregate
principal amount of the US Revolving Credit Loans to be made pursuant to
such Borrowing, (ii) the date of Borrowing (which shall be a Business Day),
(iii) whether the Dollar Denominated Loans being made pursuant to such
Borrowing are to be ABR Loans or LIBOR Loans, and (iv) in the case of LIBOR
Loans, the Interest Period to be applicable thereto. During any GUSAP
Funding Period, all US Revolving Credit Loans are to be made to GUSAP or
PASUG, as applicable, for application in accordance with Section 2.4(b).
(2) The US Borrowers acknowledge and agree that availability of US
Revolving Credit Loans hereunder shall be determined by reference to the
individual US Borrowing Base of the US Operating Borrower to which any
requested Borrowing shall be allocated in accordance with this Section
2.2(a)(2), notwithstanding that, during any GUSAP Funding Period, the US
Borrower to which such requested Borrowing is originally advanced is GUSAP
or PASUG. Accordingly, any Borrowing Request issued pursuant to this
Section 2.2(a) shall, in addition to the information required to be
specified above, also (i) specify the US Borrowing Base of the US Operating
Borrower (the "APPLICABLE US OPERATING BORROWER") to which the requested
Borrowing shall be allocated (and any such allocation shall be
irrevocable), (ii) certify that, both before and after giving effect to the
requested Borrowing, the Allocated US Revolving Credit Exposure of the
Applicable US Operating Borrower will not exceed the US Borrowing Base of
such Applicable US Operating Borrower minus Availability Reserves
applicable to such Applicable US Operating Borrower, and (iii) be executed
by a Responsible Officer of GUSAP or PASUG, as applicable, during any GUSAP
Funding Period, or by the Applicable US Operating Borrower during any
Non-GUSAP Funding Period. In connection with a Borrowing Request under this
Section 2.2(a), GUSAP or PASUG, as applicable, shall be entitled, at its
election, to include in the US Borrowing Base for an Applicable US
Operating Borrower all or a portion of the Canadian Availability at such
time, provided that such Borrowing Request (i) specifies that the Borrowers
have elected to include such Canadian Availability in a US Borrowing Base,
(ii) specifies the US Borrowing Base to which such Canadian Availability is
to be added, and (iii) specifies the amount of the Canadian Availability
that is to be so added (and a copy of such Borrowing Request is delivered
by GUSAP or PASUG, as applicable, to the Canadian Administrative Agent
concurrently with its delivery to the Administrative Agent). Each of the
Borrowers acknowledges and agrees that any allocation of Canadian
Availability pursuant to the preceding sentence shall result in a
concurrent reduction of the Canadian Borrowing Base in an amount equal to
such allocation.
(b) US SWINGLINE BORROWING REQUESTS.
(1) Whenever the US Borrowers desire to make a Borrowing of US
Swingline Loans hereunder, PASUG (or, during any Non-GUSAP Funding Period,
the requesting US Operating Borrower) shall give Advance Notice to the
Administrative Agent in the form of a Borrowing Request, specifying,
subject to the provisions hereof, (i) the aggregate principal amount of the
US Swingline Loan to be made pursuant to such Borrowing, and (ii) the date
of Borrowing (which shall be a Business Day). The Lenders acknowledge and
agree that subject to Section 2.2(b)(2) and Section 2.30, it is intended
that all US Swingline Loans are to be made to PASUG.
(2) The US Borrowers acknowledge and agree that availability of US
Swingline Loans hereunder shall be determined by reference to the
individual US Borrowing Base of the US Borrower to which any requested
Borrowing of Swingline Loans shall be allocated in accordance
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with this Section 2.2(b)(2), notwithstanding that the US Borrower to which
such requested Borrowing is originally advanced is PASUG. Accordingly, any
Borrowing Request issued pursuant to this Section 2.2(b) shall, in addition
to the information required to be specified above, also (i) specify the
Applicable US Operating Borrower to which the requested Borrowing shall be
allocated (and any such allocation shall be irrevocable), (ii) certify
that, both before and after giving effect to the requested Borrowing, the
Allocated US Revolving Credit Exposure of the Applicable US Operating
Borrower will not exceed the US Borrowing Base of such Applicable US
Operating Borrower minus Availability Reserves applicable to such
Applicable US Operating Borrower, and (iii) be executed by a Responsible
Officer of PASUG during any GUSAP Funding Period, or by the Applicable US
Operating Borrower during any Non-GUSAP Funding Period. In connection with
a Borrowing Request under this Section 2.2(b), PASUG shall be entitled, at
its election, to include in the US Borrowing Base for an Applicable US
Operating Borrower, all or a portion of the Canadian Availability at such
time, provided that such Borrowing Request specifies that PASUG has elected
to include such Canadian Availability in a US Borrowing Base, specifies the
US Borrowing Base to which such Canadian Availability is to be added, and
specifies the amount of the Canadian Availability that is to be so added
(and a copy of such Borrowing Request is delivered by PASUG to the Canadian
Administrative Agent concurrently with its delivery to the Administrative
Agent). Each of the Borrowers acknowledges and agrees that any allocation
of Canadian Availability pursuant to the preceding sentence shall result in
a concurrent reduction of the Canadian Borrowing Base in an amount equal to
such allocation.
(c) MODIFICATIONS TO CREDIT FACILITY. Each US Borrower agrees and
acknowledges that the present structure of the credit facility detailed in
this Agreement is based in part upon the financial and other information
presently known to the Administrative Agent, the Canadian Administrative
Agent and the Lenders regarding each Borrower, the corporate structure of
the Borrowers, and the present financial condition of each Borrower. In the
event that Excess Availability shall at any time be less than $75,000,000,
the Administrative Agent, at its discretion or at the direction of the
Required Lenders, shall have the right, by notice to the Borrowers, to
require that any or all of the following changes be made to the credit
facility detailed in this Agreement: (1) restrict future loans and advances
between the Borrowers, (2) establish separate Lockboxes and Blocked
Accounts for each US Borrower, and (3) establish such other procedures as
shall be determined by the Administrative Agent or the Required Lenders,
acting reasonably, to ensure the proper administration of any further US
Revolving Credit Loans and US Swingline Loans. The Borrowers shall execute
and deliver such agreements and acknowledgments as the Administrative
Agent, acting reasonably, may request in connection with any of the
foregoing changes to the credit facility detailed in this Agreement. The
Administrative Agent will notify the Lenders and Risk Participants promptly
upon entering into any such written agreement. Upon five (5) Business Days
written notice by the US Operating Borrowers, any such changes shall be
reversed if, at the time of such written notice, (i) Excess Availability is
greater than $75,000,000 on such Business Day, and has been greater than
$75,000,000 for a period of at least 90 consecutive days ending on such
Business Day, (ii) the US Borrowers deliver projections satisfactory to the
Administrative Agent, acting reasonably, demonstrating that Excess
Availability shall continue to be at least $75,000,000 for the 3
consecutive month period commencing on such Business Day, and (iii) no
Default has occurred and is continuing on such Business Day.
(d) CANADIAN REVOLVING CREDIT BORROWING REQUESTS. Whenever a Canadian
Borrower desires to make a Borrowing hereunder, it shall give Advance
Notice to the Canadian Administrative Agent (with a simultaneous copy to
the Administrative Agent) in the form of a Borrowing Request, specifying,
subject to the provisions hereof, (1) the aggregate principal amount of the
Loan to be made pursuant to such Borrowing, (2) whether such Loan is a
Canadian
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Revolving Credit Loan or a Canadian Swingline Loan, (3) whether such Loan
is to be a Dollar Denominated Loan or a C$ Denominated Loan, (4) the date
of Borrowing (which shall be a Business Day), (5) whether the Dollar
Denominated Loans being made pursuant to such Borrowing are to be ABR Loans
or LIBOR Loans, (6) whether the C$ Dollar Denominated Loans being made
pursuant thereto are to be Canadian Prime Loans or B/A Loans, and (7) in
the case of LIBOR Loans or B/A Loans, the Interest Period to be applicable
thereto.
(e) NOTICE BY THE ADMINISTRATIVE AGENT. The Administrative Agent or
the Canadian Administrative Agent (as applicable) shall promptly give to
the other, and to each applicable Lender and Risk Participant, telecopy or
telephonic notice (and, in the case of telephonic notices, confirmed by
telecopy or otherwise in writing) of the proposed Borrowing (other than
Borrowings of US Swingline Loans or Canadian Swingline Loans, in which case
notice shall only be given to the US Swingline Lender or the Canadian
Swingline Lender, as applicable), of such Lender's Applicable Percentage
thereof (and, in the case of each Risk Participant, its Pro Rata Share of
any Borrowing of Revolving Credit Loans (other than Swingline Loans)) and
of the other matters covered by the Advance Notice. The Borrowers hereby
waive the right to dispute the Administrative Agent's record of the terms
of such telephonic notice, absent manifest error.
SECTION 2.3 LETTERS OF CREDIT.
(a) ISSUANCE OF US LETTERS OF CREDIT. Subject to the terms and conditions
hereof, the US Borrowers shall have the right, in addition to US Revolving
Credit Loans provided for in Section 2.1, to utilize the US Revolving Credit
Commitments from time to time prior to the Maturity Date by obtaining the
issuance of either Documentary Letters of Credit or Standby Letters of Credit
for the account of any US Operating Borrower by an Issuing Bank if such US
Operating Borrower shall so request in the notice referred to in Section
2.3(d)(1) (each such letter of credit being referred to as a "US LETTER OF
CREDIT", and collectively referred to as the "US LETTERS OF CREDIT"); provided,
however, that, after giving effect to the issuance of any US Letter of Credit,
(1) the Allocated US Revolving Credit Exposure of the applicable US Operating
Borrower to which such Letter of Credit relates shall not exceed the US
Borrowing Base of such US Operating Borrower minus Availability Reserves
applicable to such US Operating Borrower, (2) the Aggregate US Revolving Credit
Exposure at any one time outstanding shall not exceed the US Maximum Available
Amount in effect at such time, and (3) the aggregate of all US Letter of Credit
Liabilities and the Dollar Equivalent of all Canadian Letter of Credit
Liabilities at any one time outstanding shall not exceed $200,000,000. US
Letters of Credit shall be denominated in Dollars and may be issued to support
the obligations of the US Operating Borrowers only. Upon the date of the
issuance of a US Letter of Credit, the applicable Issuing Bank shall be deemed,
without further action by any party hereto, to have sold to each US Revolving
Lender, and each US Revolving Lender shall be deemed, without further action by
any party hereto, to have purchased from such Issuing Bank, a participation, to
the extent of such applicable Lender's US Revolving Credit Percentage, in such
US Letter of Credit and the related US Letter of Credit Liabilities. The parties
hereto acknowledge and agree that it is intended that in respect of US Letters
of Credit, the Account Party will be one of the US Operating Borrowers and that
all US Letter of Credit Liabilities under each such US Letter of Credit shall be
allocated to the US Borrowing Base of the US Operating Borrower who is the
Account Party thereof consistent with Section 2.2(a)(2) hereof.
(b) ISSUANCE OF CANADIAN LETTERS OF CREDIT. Subject to the terms and
conditions hereof, the Canadian Borrowers shall have the right, in addition to
Canadian Revolving Credit Loans provided for in Section 2.1, to utilize the
Canadian Revolving Credit Commitments from time to time prior to the Maturity
Date by obtaining the issuance of either Documentary Letters of Credit or
Standby Letters of Credit for the account of any Canadian Credit Party by an
Issuing Bank if the Canadian Borrowers shall
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so request in the notice referred to in Section 2.3(d)(1) (each such letter of
credit being referred to as a "CANADIAN LETTER OF CREDIT", and collectively
referred to as the "CANADIAN LETTERS OF CREDIT"); provided, however, that, after
giving effect to the issuance of any Canadian Letter of Credit, (1) the Dollar
Equivalent of the Aggregate Canadian Revolving Credit Exposure at any one time
outstanding shall not exceed the Canadian Maximum Available Amount in effect at
such time, and (2) the aggregate Dollar Equivalent of all Canadian Letter of
Credit Liabilities and US Letter of Credit Liabilities at any one time
outstanding shall not exceed $200,000,000. Canadian Letters of Credit shall be
denominated in Dollars or C$ as the Canadian Borrowers shall elect and may be
issued to support the obligations of the Canadian Borrowers only. Upon the date
of the issuance of a Canadian Letter of Credit, the applicable Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Canadian Revolving Lender, and each Canadian Revolving Lender shall be
deemed, without further action by any party hereto, to have purchased from such
Issuing Bank, a participation, to the extent of such applicable Lender's
Canadian Revolving Credit Percentage, in such Canadian Letter of Credit and the
related Canadian Letter of Credit Liabilities.
(c) LIMITATIONS ON LETTERS OF CREDIT; CERTAIN EXISTING LETTERS OF CREDIT.
No Letter of Credit issued or extended pursuant to this Agreement shall have an
expiry date beyond the earlier of one year after the date of issuance or sixty
(60) days prior to the Maturity Date. No Letter of Credit shall be issued within
sixty (60) days of the Maturity Date. The parties hereto acknowledge and agree
that (i) the letters of credit listed in Schedule 2.3 were issued by the
issuer(s) identified thereon at the request and for the account of certain of
the Credit Parties and remain outstanding on the date hereof, (ii) such letters
of credit shall be deemed to be Letters of Credit issued and outstanding under
this Agreement, and (iii) the issuer(s) of such letters of credit shall be
deemed to be an Issuing Bank under this Agreement in respect of such Letters of
Credit.
(d) ADDITIONAL LETTER OF CREDIT PROVISIONS. The following additional
provisions shall apply to each Letter of Credit:
(1) Any of the US Operating Borrowers or the Canadian Borrowers
which desires an Issuing Bank to issue a Letter of Credit for its account
(an "ACCOUNT PARTY") shall give the Administrative Agent (or the Canadian
Administrative Agent in the event such Letter of Credit is a Canadian
Letter of Credit) and the Issuing Bank at least five (5) Business Days
prior notice in the form of a Borrowing Request (effective upon receipt),
or in each case, such shorter period as may be agreed to by the
Administrative Agent (or the Canadian Administrative Agent, as applicable)
and such Issuing Bank, specifying the date such Letter of Credit is to be
issued (which shall be a Business Day) and describing: (A) the face amount
of the Letter of Credit and, in the case of any Canadian Letter of Credit,
the currency (Dollars or C$) in which such Letter of Credit is to be
denominated, (B) the expiration date of the Letter of Credit, (C) the name
and address of the beneficiary, (D) information concerning the transaction
proposed to be supported by such Letter of Credit as the Administrative
Agent (or the Canadian Administrative Agent, as applicable) or such Issuing
Bank may reasonably request, (E) such other information and documents
relating to the Letter of Credit as the Administrative Agent (or the
Canadian Administrative Agent, as applicable) or such Issuing Bank may
reasonably request, and (F) a precise description of documents and the
verbatim text of any certificate to be presented by the beneficiary, which,
if presented prior to the expiry date of the Letter of Credit, would
require such Issuing Bank to make payment under the Letter of Credit;
provided that such Issuing Bank may require changes in such documents and
certificates; and provided further that such Issuing Bank shall not be
required to issue any Letter of Credit that conflicts with the Issuing
Bank's policies and procedures relating to the issuance and content of
letters of credit. Each such notice shall be accompanied by the applicable
Issuing Bank's Application and by a certificate executed by a Responsible
Officer setting forth calculations evidencing availability for such Letter
of Credit
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pursuant to Section 2.3(d)(2) and stating that all conditions precedent to
such issuance have been satisfied. Each Letter of Credit shall, to the
extent not inconsistent with the express terms hereof or the applicable
Application, be subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500 (together with any subsequent revisions thereof approved by a Congress
of the International Chamber of Commerce, the "UCP"), and shall, as to
matters not governed by the UCP, be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(2) No US Letter of Credit or Canadian Letter of Credit may be
issued if, after giving effect thereto, the Aggregate US Revolving Credit
Exposure or the Aggregate Canadian Revolving Credit Exposure would exceed
the US Maximum Available Amount or the Canadian Maximum Available Amount,
respectively, or if the US Borrowing Base or Canadian Borrowing Base, as
applicable, of the applicable Borrower is insufficient to cover the Letter
of Credit. On each day during the period commencing with the issuance of
any Letter of Credit and until such Letter of Credit shall have expired or
have been terminated, the US Revolving Credit Commitment or Canadian
Revolving Credit Commitment (as applicable) of each Lender shall be deemed
to be utilized for all purposes hereof in an amount equal to such Lender's
Revolving Credit Percentage of the amount of the Letter of Credit
Liabilities related to such Letter of Credit.
(3) Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment thereunder, the Issuing Bank shall promptly notify
the Account Party for whose account such Letter of Credit was issued and
the Administrative Agent (or the Canadian Administrative Agent if such
Letter of Credit is a Canadian Letter of Credit) of such demand (provided
that the failure of an Issuing Bank to give such notice shall not affect
the Reimbursement Obligations of the Account Party hereunder) and the
Account Party shall immediately, and in any event no later than 10:00 a.m.
(Eastern Time) on the date of such drawing, reimburse the Administrative
Agent (or the Canadian Administrative Agent, as applicable) for the account
of the applicable Issuing Bank for any amount paid by the Issuing Bank upon
any drawing under such Letter of Credit, without presentment, demand,
protest or other formalities of any kind in an amount, in same day funds,
equal to the amount of such drawing. Unless prior to 10:00 a.m. (Eastern
Time) on the date of such drawing, the Account Party shall have either
notified the Issuing Bank and the Administrative Agent (or the Canadian
Administrative Agent, as applicable) that the Account Party intends to
reimburse the Administrative Agent (or the Canadian Administrative Agent,
as applicable) for the account of the applicable Issuing Bank for the
amount of such drawing with funds other than the proceeds of Loans or
delivered to the Administrative Agent (or the Canadian Administrative
Agent, as applicable) a Borrowing Request for Loans in an amount equal to
such drawing, the Account Party will be deemed to have given a Borrowing
Request to the Administrative Agent (or the Canadian Administrative Agent,
as applicable) requesting that the Lenders make Revolving Credit Loans on
the date on which such drawing is honored in an amount equal to the amount
of such drawing. Any Loans made pursuant to the preceding sentence shall be
(A) US Revolving Credit Loans which are ABR Loans if the underlying Letter
of Credit was a US Letter of Credit, or Canadian Revolving Credit Loans if
the underlying Letter of Credit was a Canadian Letter of Credit, and (B)
Dollar Denominated Loans and ABR Loans if the underlying Letter of Credit
was denominated in Dollars, and (C) C$ Denominated Loans and Canadian Prime
Loans if the underlying Letter of Credit was denominated in C$. The
obligation of Lenders to make Revolving Credit Loans pursuant to this
Section 2.3 (but not the participation obligations of the Lenders pursuant
to Section 2.3(d)(4) below) shall be subject to the satisfaction of the
conditions in Article 3 and the existence of availability of the US Maximum
Available Amount or Canadian Maximum Available Amount (as applicable)
pursuant to Section 2.1(c) or Section 2.1(d) hereof (after giving effect to
repayment of the applicable Reimbursement Obligations with the proceeds
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of the proposed Revolving Credit Loans). Subject to the preceding sentence,
if so requested by the Administrative Agent (or the Canadian Administrative
Agent, as applicable), each of the US Revolving Lenders or the Canadian
Revolving Lenders (as applicable) shall, on the date of such drawing, make
such Revolving Credit Loans in an amount equal to such Lender's US
Revolving Credit Percentage or Canadian Revolving Credit Percentage (as
applicable) of such drawing or the full amount of the unused US Maximum
Available Amount or Canadian Maximum Available Amount pursuant to Section
2.1(c) or Section 2.1(d) as applicable, the proceeds of which shall be
applied directly by the Administrative Agent (or the Canadian
Administrative Agent, as applicable) to reimburse the applicable Issuing
Bank to the extent of such proceeds.
(4) If the appropriate Account Party fails to reimburse the
applicable Issuing Bank as provided in Section 2.3(d)(3) above for any
reason, including failure to satisfy the conditions in Article 3 or
insufficient availability under the Maximum Available Amount pursuant to
Section 2.1(c) or Section 2.1(d), such Issuing Bank shall promptly notify
the Administrative Agent (or the Canadian Administrative Agent, as
applicable) and the Administrative Agent (or the Canadian Administrative
Agent, as applicable) shall notify each US Revolving Lender or Canadian
Revolving Lender (as applicable) of the unreimbursed amount of such drawing
and of such Lender's respective participation therein based on such
Lender's US Revolving Credit Percentage or Canadian Revolving Credit
Percentage (as applicable). Each such Lender will pay to the Administrative
Agent (or the Canadian Administrative Agent, as applicable) for the account
of the applicable Issuing Bank on the date of such notice an amount equal
to such Lender's US Revolving Credit Percentage or Canadian Revolving
Credit Percentage (as applicable) of such unreimbursed drawing (or, if such
notice is made after 1:00 p.m. (Eastern Time) on such date, on the next
succeeding Business Day). If any Lender fails to make available to such
Issuing Bank the amount of such Lender's participation in such Letter of
Credit as provided in this Section 2.3(d)(4), such Issuing Bank shall be
entitled to recover such amount on demand from such Lender together with
interest at the Federal Funds Effective Rate for one Business Day and
thereafter at the ABR. Nothing in this Section 2.3(d)(4) shall be deemed to
prejudice the right of any Lender to recover from such Issuing Bank any
amounts made available by such Lender to such Issuing Bank pursuant to this
Section 2.3(d)(4) if it is determined by a court of competent jurisdiction
that the payment with respect to a Letter of Credit by such Issuing Bank
was wrongful and such wrongful payment was the result of gross negligence
or willful misconduct on the part of such Issuing Bank. The applicable
Issuing Bank shall pay to the Administrative Agent (or the Canadian
Administrative Agent, as applicable) and the Administrative Agent (or the
Canadian Administrative Agent, as applicable) shall pay to each Lender such
Lender's US Revolving Credit Percentage or Canadian Revolving Credit
Percentage (as applicable) of all amounts received from the Account Party
for payment, in whole or in part, of the Reimbursement Obligation in
respect of any Letter of Credit, but only to the extent such Lender has
made payment to such Issuing Bank in respect of such Letter of Credit
pursuant to this Section 2.3(d)(4).
(5) The issuance by the applicable Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth in Article
3, be subject to the conditions precedent that such Letter of Credit shall
be in the form and contain such terms as shall be satisfactory to such
Issuing Bank and the Administrative Agent, and that the Account Party shall
have executed and delivered such other instruments and agreements relating
to the Letter of Credit as such Issuing Bank shall have requested and that
are not inconsistent with the terms of this Agreement including the
applicable Issuing Bank's Application therefor. In the event of a conflict
between the terms of this Agreement and the terms of any Application, the
terms of this Agreement shall control.
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(6) As between any Account Party and any Issuing Bank, the
Account Party assumes all risks of the acts and omissions of or misuse of
the Letters of Credit issued by such Issuing Bank by the respective
beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank shall not be responsible:
(A) for the form, validity, sufficiency, accuracy, genuineness or legal
effect of any document submitted by any Person in connection with the
application for or issuance of such Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such
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; (C) for errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they are in cipher; (D) for errors in interpretation of
technical terms; (E) for any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under any such Letter
of Credit or of the proceeds thereof; (F) for the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing
under such Letter of Credit; and (G) for any consequences arising from
causes beyond the control of such Issuing Bank, including, without
limitation, the actions of any Governmental Authority. None of the above
shall affect, impair, or prevent the vesting of any of such Issuing Bank's
rights or powers hereunder. Notwithstanding anything to the contrary
contained in this Section 2.3(d)(6), no Account Party shall assume any
risk, and shall have no obligation to indemnify any Issuing Bank, in
respect of any liability incurred by such Issuing Bank arising primarily
out of the gross negligence or willful misconduct of such Issuing Bank, as
finally determined by a court of competent jurisdiction.
(7) Each Issuing Bank will send to the applicable Account Party
and the Administrative Agent (or the Canadian Administrative Agent, as
applicable) immediately upon issuance of any Letter of Credit, or an
amendment thereto, a true and complete copy of such Letter of Credit, or
such amendment thereto. Upon issuance of any Letter of Credit or an
amendment thereto, the Administrative Agent (or the Canadian Administrative
Agent, as applicable) shall promptly notify each Lender of such Lender's US
Revolving Credit Percentage or Canadian Revolving Credit Percentage (as
applicable) of the amount of such Letter of Credit or amendment thereto
(and, in the case of each Risk Participant, its Pro Rata Share of the
amount of such Letter of Credit or amendment thereto). Upon cancellation or
termination of any Letter of Credit, the applicable Issuing Bank shall
promptly notify the Administrative Agent (or the Canadian Administrative
Agent, as applicable) and the applicable Account Party, and the
Administrative Agent (or the Canadian Administrative Agent, as applicable)
will then promptly notify each Lender and Risk Participant, of such
cancellation or termination.
(8) The obligation of each Account Party to reimburse each
Issuing Bank for Reimbursement Obligations with regard to the Letters of
Credit issued by such Issuing Bank for such Account Party and the
obligations of the US Revolving Lenders and the Canadian Revolving Lenders
under Section 2.3(d)(4) shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement and under all
circumstances, including the following circumstances:
(A) any lack of validity or enforceability of any Letter of Credit;
(B) the existence of any claim, set-off, defense or other right that
any of the Borrowers may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for
whom any such transferee may be acting), any Lender, Risk
Participant or any other Person, whether in connection with this
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Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between the
Account Party and the beneficiary for which the Letter of Credit
was procured) other than a defense based on the gross negligence
(as opposed to ordinary negligence) or willful misconduct of such
Issuing Bank, as determined by a court of competent jurisdiction;
(C) any draft, demand, certificate or any other document presented
under any Letter of Credit is proved to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
is untrue or inaccurate in any respect;
(D) any adverse change in the condition (financial or otherwise) of
any Credit Party;
(E) any breach of this Agreement or any other Financing Document by
any of the Borrowers, any Agent, any Lender (other than the
applicable Issuing Bank) or any Risk Participant;
(F) any other circumstance or happening whatsoever; provided that
such other occurrence or happening is not the result of the gross
negligence (as opposed to ordinary negligence) or willful
misconduct of such Issuing Bank, as determined by a court of
competent jurisdiction; or
(G) the fact that a Default shall have occurred and be continuing.
(e) ALTERNATIVE LETTER OF CREDIT PROVISIONS. As an alternative to the
foregoing provisions of this Section 2.3, and in order to assist the Borrowers
in establishing or opening letters of credit, the Borrowers have requested the
Administrative Agent and the Canadian Administrative Agent to join as a
co-applicant under applications for letters of credit, and/or to guarantee
payment or performance of letters of credit and any drafts or acceptances
thereunder through the issuance of letter of credit guarantees, thereby lending
to the Borrowers the credit of the Administrative Agent or the Canadian
Administrative Agent, as applicable, and the Administrative Agent and the
Canadian Administrative Agent have agreed to do so on the terms and conditions
set forth below. For these purposes, the issuer of any such letter of credit
need not be a party to this Agreement. Within the applicable Revolving Credit
Commitments, the Administrative Agent or the Canadian Administrative Agent, as
applicable, shall assist the applicable Borrowers in obtaining letter(s) of
credit in this manner, in an aggregate amount not to exceed the limits set forth
herein. It is understood that the term, form and purpose of each such letter of
credit and all documentation in connection therewith, and any amendments,
modifications or extensions thereof, must be in accordance with the other
provisions of this Section 2.3, mutatis mutandis, and must be mutually
acceptable to the Administrative Agent or the Canadian Administrative Agent, as
applicable, the issuer of the letter of credit and the applicable Borrowers. In
the event of a drawing under any such letter of credit, the issuer of any such
letter of credit would be entitled to require that the Administrative Agent or
the Canadian Administrative Agent, as applicable, reimburse such issuer for any
amount drawn under such letter of credit, whereupon the Administrative Agent or
the Canadian Administrative Agent, as applicable, would be entitled to obtain
reimbursement from the appropriate Account Party and the applicable Revolving
Credit Lenders, all in accordance with the provisions of this Section 2.3, it
being understood that any such letter of credit shall be considered in all
respects as a "Letter of Credit" issued under the applicable Commitments
hereunder, and the Administrative Agent or the Canadian Administrative Agent, as
applicable, shall have all rights and remedies as an "Issuing Bank" under this
Agreement. The Borrowers unconditionally, jointly and severally, agree to
indemnify each of the Administrative Agent and the Canadian Administrative
Agent, as applicable, from and against any and all loss, claim or liability
incurred by the Administrative Agent or the Canadian Administrative Agent, as
applicable, arising from
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any transactions or occurrences relating to letters of credit established or
opened in accordance with these procedures. This indemnity shall survive
termination of this Agreement. In addition to the fees payable under Section
2.13(c) and (d), the Borrowers agree that any customary bank fees and charges
incurred by the Administrative Agent or the Canadian Administrative Agent, as
applicable, in connection with these arrangements shall be for the account of
the applicable Borrowers and shall be paid by the applicable Borrowers to the
Administrative Agent or the Canadian Administrative Agent, as applicable,
forthwith upon demand therefor.
SECTION 2.4 DISBURSEMENT OF FUNDS.
(a) AVAILABILITY. No later than 3:00 p.m. (Eastern Time) on the date of
each Borrowing (other than Borrowings consisting of US Swingline Loans or
Canadian Swingline Loans), each US Revolving Lender (in the case of any
Borrowing of US Revolving Credit Loans) and each Canadian Revolving Lender (in
the case of any Borrowing of Canadian Loans) will make available to the
Administrative Agent (or the Canadian Administrative Agent, in the case of a
Borrowing of Canadian Loans) such Lender's Applicable Percentage of the
principal amount of the Borrowing requested to be made on such date reduced by
the principal amount of Revolving Credit Loans (if any) of such Lender maturing
on such date in immediately available funds at the Payment Office (unless such
Borrowing is to be made under the Canadian Revolving Credit Facility and the
Canadian Borrowers have requested a Borrowing in C$, in which case such funds
shall be C$).
(b) DISBURSEMENT OF US LOANS.
(A) During the GUSAP Funding Period, the Administrative Agent will
disburse all US Revolving Credit Loans to GUSAP or PASUG, as applicable, by
depositing the amount of each Borrowing of such US Revolving Credit Loans
to the Disbursement Account of GUSAP or the Disbursement Account of PASUG,
as applicable. In respect of all amounts so deposited into the Disbursement
Account of GUSAP, GUSAP hereby irrevocably agrees that it shall transfer
all such amounts, in immediately available funds, to the Disbursement
Account of NSULC. In respect of all amounts so deposited to the
Disbursement Account of NSULC, GUSAP (as the sole shareholder of NSULC)
hereby irrevocably agrees that it shall transfer all such amounts to the
Disbursement Account of PASUG. In respect of all amounts so deposited to
the Disbursement Account of PASUG (whether as a result of the application
of this Section 2.4(b)(i) to disbursement of US Revolving Credit Loans to
GUSAP or as a result of disbursement of US Revolving Credit Loans by the
Administrative Agent directly to PASUG), PASUG agrees to make a Permitted
Cash Application to or for the benefit of the Applicable US Operating
Borrower(s) in such amounts (or such portions thereof) as have been
allocated by GUSAP or PASUG, as applicable, to each such Applicable US
Operating Borrower in accordance with Section 2.2(a)(2). During any
Non-GUSAP Funding Period, the Administrative Agent will make available
directly to the Applicable US Operating Borrowers at the Payment Office of
the Administrative Agent the aggregate of the amounts made available by the
US Revolving Lenders pursuant to Section 2.4(a) by depositing such amounts,
in immediately available funds, to the Disbursement Account of such US
Operating Borrower. To the extent that any Loans mature or Reimbursement
Obligations are due and owing on the date of a requested Borrowing of
Revolving Credit Loans, the Administrative Agent may, at its discretion,
prior to giving effect to the directions set out in this Section 2.4(b),
apply the proceeds of the Revolving Credit Loans then being made, to the
extent thereof, to the repayment of such maturing Loans or Reimbursement
Obligations, such Loans or Reimbursement Obligations and repayments
intended to be a contemporaneous exchange. Notwithstanding the foregoing,
at the option of PASUG or GUSAP, any US Revolving Credit Loan may be
retained by PASUG, or may be disbursed by PASUG, as applicable, to a Credit
Party other than the Applicable US Operating
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Borrower to which such Revolving Credit Loan relates, but only to the
extent that such retention or disbursement is permitted under Section
7.2(i) hereof.
(B) During any GUSAP Funding Period, the US Swingline Lender will make
available to PASUG (or, in the case of a US Swingline Loan made to pay
Reimbursement Obligations of any US Operating Borrowers, by remittance to
the applicable Issuing Bank) the proceeds of such US Swingline Loan in
accordance with this Section 2.4(b) on or before 3:00 p.m. (Eastern Time)
on the date requested for such Borrowing or as provided in Section 2.2(d).
During any Non-GUSAP Funding Period, the US Swingline Lender will make
available directly to the applicable US Operating Borrower at the Payment
Office of the Administrative Agent the amount of requested US Swingline
Loans by depositing such amounts, in immediately available funds, to the
Disbursement Account of such US Operating Borrower. At the option of the US
Borrowers, any US Swingline Loan may be retained by PASUG, or may be
disbursed by PASUG, as applicable, to a Credit Party other than the US
Operating Borrower to which such US Swingline Loan relates, but only to the
extent that such retention or disbursement would constitute a US Operating
Borrower Advance that is permitted under Section 7.2(i) hereof.
(c) DISBURSEMENT OF CANADIAN LOANS. The Canadian Administrative Agent will
make available to the Canadian Borrowers at the Payment Office of the Canadian
Administrative Agent the aggregate of the amounts (if any) made available by the
Canadian Revolving Lenders pursuant to Section 2.4(a) by depositing such
amounts, in immediately available funds, to the Disbursement Account of the
relevant Canadian Borrower. To the extent that any Loans mature or Reimbursement
Obligations are due and owing on the date of a requested Borrowing of Canadian
Revolving Credit Loans, the Canadian Revolving Credit Lenders shall apply the
proceeds of the Canadian Revolving Credit Loans then being made, to the extent
thereof, to the repayment of such maturing Loans or Reimbursement Obligations,
such Loans or Reimbursement Obligations and repayments intended to be a
contemporaneous exchange. In respect of Canadian Swingline Loans, the Canadian
Swingline Lender will make available to the Canadian Borrowers (or, in the case
of a Canadian Swingline Loan made to pay Reimbursement Obligations of the
relevant Canadian Borrower, by remittance to the applicable Issuing Bank) the
proceeds of such Canadian Swingline Loan in accordance with this Section 2.4(c)
on or before 3:00 p.m. (Toronto Time) on the date requested for such Borrowing.
(d) FUNDS TO THE ADMINISTRATIVE AGENT OR THE CANADIAN ADMINISTRATIVE AGENT.
Unless the Administrative Agent or the Canadian Administrative Agent shall have
been notified by any Lender prior to the date of a Borrowing (other than a
Borrowing consisting of US Swingline Loans or Canadian Swingline Loans) that
such Lender does not intend to make available to the Administrative Agent or the
Canadian Administrative Agent (as applicable) such Lender's US Revolving Credit
Percentage or Canadian Revolving Credit Percentage (as applicable) of the
Borrowing to be made on such date, the Administrative Agent or the Canadian
Administrative Agent (as applicable) may assume that such Lender has made such
amount available to the Administrative Agent or the Canadian Administrative
Agent (as applicable) on such date, and the Administrative Agent or the Canadian
Administrative Agent (as applicable) may make available to or for the account of
the applicable Borrowers a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent or the Canadian
Administrative Agent (as applicable) by such Lender on the date of a Borrowing,
the Administrative Agent or the Canadian Administrative Agent (as applicable)
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest at such Agent's cost of funds (as determined by
such Agent). If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's or the Canadian Administrative Agent's (as
applicable) demand therefor, the Administrative Agent or the Canadian
Administrative Agent (as applicable) shall promptly notify the applicable
Borrowers and the applicable Borrowers shall immediately pay such corresponding
amount to the Administrative Agent or the Canadian Administrative Agent (as
applicable) together with interest at
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the rate specified for the Borrowing which includes such amount paid. Nothing in
this Section 2.4 shall be deemed to relieve any Lender from its obligation to
fulfill its Revolving Credit Commitments hereunder or to prejudice any rights
which the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
(e) LENDERS' RESPONSIBILITIES. No Lender shall be responsible for any
default by any other Lender in its obligation to make Loans hereunder, and each
Lender shall be obligated to make only such Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
Commitment hereunder.
SECTION 2.5 NOTES AND MATURITY.
(a) US REVOLVING CREDIT NOTES. The US Borrowers' obligations to pay the
principal of, and interest on, the US Revolving Credit Loans made by each US
Revolving Lender shall, at the written request of any US Revolving Lender, be
further evidenced by the US Borrowers' issuance, execution and delivery of a US
Revolving Credit Note payable to the order of each such US Revolving Lender in
the amount of such US Revolving Lender's US Revolving Credit Commitment and
shall be dated as of the date of issuance of such US Revolving Credit Note. The
principal amount of each US Revolving Credit Note shall be payable on or before
the Maturity Date.
(b) CANADIAN REVOLVING CREDIT NOTES. The Canadian Borrowers' obligations to
pay the principal of, and interest on, the Canadian Revolving Credit Loans made
by each Canadian Revolving Lender shall, at the written request of any Canadian
Revolving Lender, be further evidenced by the Canadian Borrowers' issuance,
execution and delivery of (i) a Canadian Revolving Credit Note (C$), and (ii) a
Canadian Revolving Credit Note (US$), each payable to the order of each such
Canadian Lender in the amount of such Canadian Revolving Lender's Canadian
Revolving Credit Commitment and shall be dated as of the date of issuance of
such Canadian Revolving Credit Notes. The principal amount of each Canadian
Revolving Credit Note shall be payable on or before Maturity Date.
(c) US SWINGLINE LOANS. All US Swingline Loans shall mature on the last
Business Day of the month in which such US Swingline Loans are borrowed;
provided, however, in the event such US Swingline Loans are borrowed on the last
Business Day of any month, such US Swingline Loans shall mature on the first
Business Day of the next succeeding month; provided, further, that the principal
amount of all outstanding US Swingline Loans shall be payable on or before the
Maturity Date.
(d) CANADIAN SWINGLINE LOANS. All Canadian Swingline Loans shall mature on
the last Business Day of the month in which such Canadian Swingline Loans are
borrowed; provided, however, in the event such Canadian Swingline Loans are
borrowed on the last Business Day of any month, such Canadian Swingline Loans
shall mature on the first Business Day of the next succeeding month; provided,
further, that the principal amount of all outstanding Canadian Swingline Loans
shall be payable on or before the Maturity Date.
(e) AGENT ADVANCES. All Agent Advances shall be repayable upon demand by
the Administrative Agent or the Canadian Administrative Agent, as applicable.
SECTION 2.6 INTEREST. In all cases subject to Section 10.13:
(a) ABR LOANS. Subject to Section 2.6(e), each of the Borrowers agrees to
pay interest in respect of the unpaid principal amount of each ABR Loan made to
such Borrowers from the date thereof until payment in full thereof at a rate per
annum which shall be, for any day, equal to the sum of the Applicable Margin
plus the ABR in effect on such day, but in no event to exceed the Highest Lawful
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Rate. The term "ABR" means, for any day (1) for any US Loan and US Swingline
Loan which is an ABR Loan, the higher of (A) the Prime Rate in effect on such
day, and (B) one-half of one percent (1/2%) plus the Federal Funds Effective
Rate in effect for such day (rounded upwards, if necessary, to the nearest
1/16th of 1%), and (2) for any Canadian Loan and Canadian Swingline Loan which
is an ABR Loan, the highest of (A) the US Base Rate in effect on such day, or
(B) one-half of one percent (1/2%) plus the Federal Funds Effective Rate in
effect for such day (rounded upwards in necessary, to the nearest 1/16th of 1%).
For purposes of this Agreement, any change in the ABR due to a change in the
Federal Funds Effective Rate, the Prime Rate, or the US Base Rate shall be
effective as of the opening of business on the effective date of such change in
the Federal Funds Effective Rate, the Prime Rate, or the US Base Rate, as the
case may be.
(b) LIBOR LOANS. Subject to Section 2.6(e), each of the Borrowers agrees to
pay interest in respect of the unpaid principal amount of each LIBOR Loan made
to such Borrowers from the date thereof until payment in full thereof at a rate
per annum which shall be the sum of the relevant Applicable Margin plus the
LIBOR Rate, but in no event to exceed the Highest Lawful Rate. No Borrower shall
be entitled to borrow any Loans hereunder as LIBOR Loans, or convert Loans to
LIBOR Loans, or continue any LIBOR Loans, if the Required Lenders or the
Administrative Agent determine, during the continuance of any Event of Default,
that LIBOR Loans are to be unavailable.
(c) CANADIAN PRIME LOANS. Subject to Section 2.6(e), the Canadian Borrowers
agree to pay interest in respect of the unpaid principal amount of each Canadian
Prime Loan from the date thereof until payment in full thereof at a rate per
annum which shall be, for any day, equal to the sum of the Applicable Margin
plus the Canadian Prime Rate in effect on such day, but in no event to exceed
the Highest Lawful Rate.
(d) B/A LOANS. Subject to Section 2.6(e), the Canadian Borrowers agree to
pay interest in respect of the unpaid principal amount of each B/A Loan from the
date thereof until payment in full thereof at a rate per annum which shall be,
for any day, equal to the sum of the Applicable Margin plus the CDOR Rate in
effect on such day, but in no event to exceed the Highest Lawful Rate. No
Borrower shall be entitled to borrow any Loans hereunder as B/A Loans, or
convert Loans to B/A Loans, or continue any B/A Loans, if the Required Lenders
or the Canadian Administrative Agent determine, following any Event of Default,
that B/A Loans are to be unavailable.
(e) DEFAULT INTEREST. After the occurrence and during the continuance of
any Default, the US Borrowers shall, on demand from time to time, pay interest,
to the extent permitted by law, on the outstanding US Lender Indebtedness, and
the Canadian Borrowers shall, on demand from time to time, pay interest, to the
extent permitted by law, on the Canadian Lender Indebtedness (after as well as
before judgment) at a rate per annum equal to (i) in the case of any LIBOR Loan,
the rate that would be applicable under Section 2.6(b) to such LIBOR Loan, plus
2% per annum, (ii) in the case of any Canadian Prime Loan, the rate that would
be applicable under Section 2.6(c) to such Canadian Prime Loan, plus 2% per
annum, (iii) in the case of any B/A Loan, the rate that would be applicable
under Section 2.6(d) to such B/A Loan, plus 2% per annum, and (iv) in the case
of any other amount, the rate that would be applicable under Section 2.6(a) to
an ABR Loan, plus 2% per annum, but in no event to exceed the Highest Lawful
Rate.
(f) INTEREST PAYMENT DATES. Interest on each ABR Loan, LIBOR Loan and
Canadian Prime Loan shall accrue from and including the date of such Loan to but
excluding the date of payment in full thereof. Interest on each LIBOR Loan shall
be payable in arrears on the first Business Day of each month, and on the last
Business Day of each Interest Period applicable thereto, and on any prepayment
(on the amount prepaid), at maturity (whether by acceleration or otherwise) and,
after maturity, on demand. Interest on each ABR Loan and Canadian Prime Loan
shall be payable in arrears on the first
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Business Day of each calendar month, commencing on the first of such days to
occur after such Loan is made, at maturity (whether by acceleration or
otherwise) and, after maturity, on demand. Interest on each B/A Loan shall be
payable in advance on the first Business Day of each Interest Period applicable
thereto (for the entire Interest Period), at maturity (whether by acceleration
or otherwise) and, after maturity, on demand.
SECTION 2.7 INTEREST PERIODS. In connection with each Borrowing of LIBOR
Loans or B/A Loans, the applicable Borrowers shall elect an Interest Period to
be applicable to such Borrowing, which Interest Period shall begin on and
include, as the case may be, the date selected by such Borrowers pursuant to
Section 2.2(a) or (b), the conversion date or the date of expiration of the then
current Interest Period applicable thereto, and end on but exclude the date
which is (i) in the case of LIBOR Loans, either one, two, three or six months
thereafter, as selected by such Borrowers, and (ii) in the case of B/A Loans,
either 30 days, 60 days, 90 days or 180 days; provided further:
(a) BUSINESS DAYS. If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
Business Day, provided, further, that if any Interest Period (other than in
respect of a Borrowing of LIBOR Loans the Interest Period of which is expiring
pursuant to Section 2.16(b) hereof) would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the immediately
preceding Business Day;
(b) MONTH END. Any Interest Period for any LIBOR Loan which begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall, subject to Section 2.7(c) below, end on the last Business Day of
a calendar month; and
(c) PAYMENT LIMITATIONS. No Interest Period shall extend beyond any date
that any principal payment or prepayment is scheduled to be due unless the
aggregate principal amount of Borrowings which are Borrowings of LIBOR Loans or
B/A Loans which have Interest Periods which will expire on or before such date,
less the aggregate amount of any other principal payments or prepayments due
during such Interest Period, is equal to or in excess of the amount of such
principal payment or prepayment.
SECTION 2.8 RISK PARTICIPATIONS.
(a) CANADIAN REVOLVING CREDIT LOANS. The following provisions shall apply
to the Canadian Revolving Credit Loans and the rights and obligations of the
Canadian Funding Bank and the Canadian Risk Participants therein:
(i) CANADIAN RISK PARTICIPATIONS. Notwithstanding anything to the
contrary contained herein, all Canadian Revolving Credit Loans shall be
made solely by the Canadian Revolving Lenders, including the Canadian
Funding Bank. However, each Person that is a Canadian Risk Participant as
of the Closing Date, and each Person that becomes a Canadian Risk
Participant after the Closing Date in accordance with the provisions of
Section 10.7, shall participate in the risk of each Canadian Revolving
Credit Loan funded by the Canadian Funding Bank (other than a Canadian
Swingline Loan) in an amount equal to such Canadian Risk Participant's Pro
Rata Share of all outstanding Canadian Revolving Credit Loans (other than
Canadian Swingline Loans) (each such participation, a "CANADIAN RISK
PARTICIPATION"). Each such Canadian Risk Participation shall be a risk
participation only whereby such Canadian Risk Participant shall not have
any ownership right, title or interest, legal or beneficial, to any
Canadian Revolving Credit Loan, and shall not be entitled to receive any
payments of principal or
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interest thereon, prior to its purchase of an ownership interest in such
Canadian Revolving Credit Loans in accordance with Section 2.8(a)(ii). Each
Canadian Risk Participant agrees with the Canadian Funding Bank to share in
the Canadian Funding Bank's risk of such Canadian Revolving Credit Loans
and in furtherance thereof shall provide the indemnity set forth in Section
2.8(a)(v) and, upon a Canadian Participation Settlement Date, shall
purchase an ownership interest in such Canadian Revolving Credit Loans in
accordance with Section 2.8(a)(ii). The Canadian Funding Bank and the
Canadian Administrative Agent shall record on their books the amount of the
Canadian Revolving Credit Loans made by the Canadian Funding Bank and each
Canadian Risk Participant's Canadian Risk Participation, all payments in
respect thereof and interest accrued thereon, and all payments made by and
to each Canadian Risk Participant pursuant to this Section 2.8(a).
(ii) ASSIGNED CANADIAN INTERESTS OPTION. On each Canadian
Participation Settlement Date, to the extent the Canadian Funding Bank
elects to exercise its rights as provided in the definition of "Canadian
Participation Settlement Date," the Canadian Funding Bank shall assign to
each Canadian Risk Participant, and such Canadian Risk Participant shall
purchase and assume from the Canadian Funding Bank, (A) a portion of the
Canadian Funding Bank's Canadian Revolving Credit Commitment in an amount
equal to the Canadian Risk Participant Commitment of such Canadian Risk
Participant (as to each such Canadian Risk Participant, its "ASSIGNED
CANADIAN COMMITMENT"), and (B) a portion of the Canadian Revolving Credit
Loans funded by the Canadian Funding Bank (other than Canadian Swingline
Loans) in an amount equal to such Canadian Risk Participant's Pro Rata
Share all outstanding Canadian Revolving Credit Loans (other than Canadian
Swingline Loans) (as to each such Canadian Risk Participant, its "ASSIGNED
CANADIAN LOANS"; each such Canadian Risk Participant's Assigned Canadian
Commitment and Assigned Canadian Loans, collectively, its "ASSIGNED
CANADIAN INTERESTS"). Each such assignment shall be effectuated in
accordance with Section 10.7 pursuant to an Assignment and Acceptance to be
executed by the Canadian Funding Bank and such Canadian Risk Participant,
whereby the Canadian Funding Bank shall assign the applicable Assigned
Canadian Interests to such Canadian Risk Participant, and such Canadian
Risk Participant shall assume and purchase its Assigned Canadian Interests;
provided, that, notwithstanding anything to the contrary contained in
Section 10.7 or otherwise, no consent of the Borrowers or any other Person
shall be required with respect to any such assignment. The purchase price
to be paid by each Canadian Risk Participant to the Canadian Funding Bank
for its Assigned Canadian Interests shall be paid in immediately available
funds on the applicable Canadian Participation Settlement Date and shall
equal 100% of the principal amount of such Canadian Risk Participant's
Assigned Canadian Loans, together with all accrued but unpaid interest and
fees thereon (as to each such Canadian Risk Participant, its "CANADIAN
PURCHASE AMOUNT"). Each Canadian Risk Participant hereby grants to the
Canadian Funding Bank an irrevocable power of attorney to execute and
deliver any such Assignment and Acceptance in the name and on behalf of
such Canadian Risk Participant in the event that, for any reason, such
Canadian Risk Participant does not duly execute and deliver to the Canadian
Funding Bank such an Assignment and Acceptance on the applicable Canadian
Participation Settlement Date (which power of attorney shall be coupled
with an interest and irrevocable). Upon the effectiveness of each such
assignment, each such Canadian Risk Participant shall become a Canadian
Revolving Lender hereunder with a Canadian Revolving Credit Commitment in
an amount equal to its Assigned Canadian Commitment and shall cease to be a
Canadian Risk Participant hereunder, but shall remain obligated to the
Canadian Funding Bank under Section 2.8(a)(iv) hereof with respect to any
payments by or on behalf of the Canadian Borrowers or any other Credit
Party received by the Canadian Funding Bank or the Canadian Administrative
Agent with respect to any Canadian Revolving Credit Loan made by the
Canadian Funding Bank prior to the effectiveness of such assignment and
under Section 2.8(a)(v) hereof with respect to any matters arising before
the
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effectiveness of such assignment. The following additional provisions shall
apply to this Section 2.8(a)(ii):
(A) The Canadian Purchase Amount to be paid by each Canadian Risk
Participant hereunder in respect of its Assigned Canadian Loans shall
be paid in C$ (in the case of Assigned Canadian Loans made to the
Canadian Borrowers in C$) or in Dollars (in the case of Assigned
Canadian Loans made to the Canadian Borrowers in Dollars), as the case
may be.
(B) If any Canadian Risk Participant fails to pay to the Canadian
Funding Bank on the applicable Canadian Participation Settlement Date
the full amount of its Canadian Purchase Amount in respect of its
Assigned Canadian Interests to be purchased by such Canadian Risk
Participant on the applicable Canadian Participation Settlement Date,
the Canadian Funding Bank shall be entitled to recover such unpaid
amount from such Canadian Risk Participant, together with interest
thereon (in the same respective currency or currencies as the relevant
Canadian Revolving Credit Loans) at the Canadian Prime Rate (to the
extent relating to Canadian Prime Loans) or the US Base Rate (to the
extent relating to ABR Loans) for the first Business Day from and
after the applicable Canadian Participation Settlement Date and
thereafter at the interest rate then applicable to the relevant
Canadian Revolving Credit Loans. Without limiting the Canadian Funding
Bank's rights to recover from any Canadian Risk Participant the amount
of any unpaid Canadian Purchase Amount payable by such Canadian Risk
Participant to the Canadian Funding Bank, the Canadian Funding Bank,
the Canadian Administrative Agent and the Administrative Agent shall
also be entitled to withhold from amounts otherwise payable to such
Canadian Risk Participant or its Related Affiliate under this
Agreement (whether constituting part of the Canadian Lender
Indebtedness or the US Lender Indebtedness) an amount equal to such
Canadian Risk Participant's unpaid Canadian Purchase Amount owing to
the Canadian Funding Bank and apply such withheld amount to the
payment of any unpaid Canadian Purchase Amount owing by such Canadian
Risk Participant to the Canadian Funding Bank.
(iii) OBLIGATIONS IRREVOCABLE. All obligations of each Canadian Risk
Participant under this Section 2.8(a) shall be irrevocable and not subject
to any qualification or exception whatsoever, including any of the
following circumstances:
(A) any lack of validity or enforceability of this Agreement or
any of the other Financing Documents or of any Loans, against any
Borrower or any other Credit Party;
(B) the existence of any claim, setoff, defense or other right
which the Canadian Borrowers or any other Credit Party may have at any
time in respect of any Canadian Revolving Credit Loans or Canadian
Letters of Credit;
(C) any application or misapplication of any proceeds of any
Canadian Revolving Credit Loans;
(D) the surrender or impairment of any security for any Canadian
Revolving Credit Loans;
(E) the occurrence of any Default;
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(F) the commencement or pendency of any events specified in
Section 8.7 or 8.8 hereof in respect of any Borrower, any other Credit
Party or any other Person;
(G) the failure to satisfy the applicable conditions precedent
set forth in Article 3 hereof or the occurrence of any of the
circumstances set forth in Section 2.3(d)(8) hereof; or
(H) any change in Tax laws.
(iv) RECOVERY OR AVOIDANCE OF PAYMENTS. In the event any payment by or
on behalf of the Canadian Borrowers or any other Credit Party received by
the Canadian Funding Bank or the Canadian Administrative Agent with respect
to any Canadian Revolving Credit Loan made by the Canadian Funding Bank is
thereafter set aside, avoided or recovered from the Canadian Funding Bank
or the Canadian Administrative Agent in connection with any receivership,
liquidation, winding-up, bankruptcy or other insolvency proceeding, each
Canadian Risk Participant shall, upon demand by the Canadian Funding Bank
or the Canadian Administrative Agent, pay to the Canadian Funding Bank
(through the Canadian Administrative Agent) such Canadian Risk
Participant's ratable share of such amount set aside, avoided or recovered,
together with interest at the rate and in the currency required to be paid
by the Canadian Funding Bank or the Canadian Administrative Agent upon the
amount required to be repaid by it. The agreement contained in this Section
2.8(a)(iv) shall survive payment in full of all Canadian Revolving Credit
Loans.
(v) INDEMNIFICATION BY CANADIAN RISK PARTICIPANTS. Each Canadian Risk
Participant agrees to indemnify the Canadian Funding Bank (to the extent
not reimbursed by the Canadian Borrowers and without limiting the
obligations of the Canadian Borrowers hereunder or under any other
Financing Document) ratably for any and all liabilities (including
liabilities under Section 9.7), obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including attorneys' fees) or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Canadian Funding Bank in any way
relating to or arising out of any Canadian Revolving Credit Loans or any
participations by the Canadian Funding Bank in any Canadian Letters of
Credit, Canadian Swingline Loans or Canadian Agent Advances or any action
taken or omitted by the Canadian Funding Bank in connection therewith;
provided that no Canadian Risk Participant shall be liable for any of the
foregoing to the extent it arises from the gross negligence or willful
misconduct of the Canadian Funding Bank. Without limiting the foregoing,
(A) each Canadian Risk Participant agrees to reimburse the Canadian Funding
Bank promptly upon demand for such Canadian Risk Participant's ratable
share of any costs or expenses payable by the Canadian Borrowers to the
Canadian Funding Bank in respect of the Canadian Revolving Credit Loans to
the extent that the Canadian Funding Bank is not promptly reimbursed for
such costs and expenses by the Canadian Borrowers, and (B) each Canadian
Risk Participant shall, upon request of the Canadian Funding Bank, pay to
the Canadian Funding Bank an amount equal to such Canadian Risk
Participant's ratable share of any payment the Canadian Funding Bank is
required to make to (x) the Canadian Administrative Agent (or the Canadian
Swingline Lender, in the case of Canadian Swingline Loans) with respect to
any Canadian Letter of Credit (or its participation therein), any Canadian
Swingline Loan (or its participation therein) or any Canadian Agent Advance
(or its participation therein) or (y) the Issuing Bank with respect to any
Canadian Letter of Credit pursuant to Section 2.3(d)(4) hereof, in each
case other than as a Canadian Revolving Credit Loan being made to the
Canadian Borrowers. The agreement contained in this Section 2.8(a)(v) shall
survive payment in full of all Canadian Revolving Credit Loans.
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(vi) CANADIAN RISK PARTICIPATION FEE. In consideration for each
Canadian Risk Participant's risk participation in the Canadian Revolving
Credit Loans (other than Canadian Swingline Loans) made by the Canadian
Funding Bank, the Canadian Funding Bank agrees to pay to the Canadian
Administrative Agent for the account of each Canadian Risk Participant, as
and when the Canadian Funding Bank receives payment of interest on its
Canadian Revolving Credit Loans (other than Canadian Swingline Loans), a
fee (the "CANADIAN RISK PARTICIPATION FEE") at a rate per annum equal to
the Applicable Margin on B/A Loans, minus 25 basis points, on the Canadian
Risk Participation of such Canadian Risk Participant in such Canadian
Revolving Credit Loans made by the Canadian Funding Bank. The Canadian Risk
Participation Fee in respect of any Canadian Risk Participation in a
Canadian Revolving Credit Loan shall be payable to the Canadian
Administrative Agent (in C$ if such Canadian Revolving Credit Loan was made
to the Canadian Borrowers in C$ or in Dollars if such Canadian Revolving
Credit Loan was made to the Canadian Borrowers in Dollars) when interest on
such Canadian Revolving Credit Loan is received by the Canadian Funding
Bank. If the Canadian Funding Bank does not receive payment in full of such
interest, the Canadian Risk Participation Fee in respect of the Canadian
Risk Participation in such Canadian Revolving Credit Loan shall be reduced
proportionately. Any amounts payable under this Section 2.8(a)(vi) by the
Canadian Administrative Agent to the Canadian Risk Participants shall be
paid in C$ if relating to a Canadian Revolving Credit Loan made to the
Canadian Borrowers in C$ or in Dollars if relating to a Canadian Revolving
Credit Loan made to the Canadian Borrowers in Dollars.
(vii) COMMITMENT FEES. In consideration for each Canadian Risk
Participant's risk participation in the Canadian Revolving Credit Loans
(other than Canadian Swingline Loans) made by the Canadian Funding Bank and
payment obligations with respect to Canadian Letters of Credit participated
in by the Canadian Funding Bank, the Canadian Funding Bank agrees to pay to
the Canadian Administrative Agent for the account of each Canadian Risk
Participant, as and when the Canadian Funding Bank receives payment of its
Applicable Percentage of the commitment fee due with respect to Canadian
Revolving Credit Commitments pursuant to Section 2.13(b) hereof and the fee
due with respect to Canadian Letters of Credit pursuant to Section
2.13(d)(2) hereof (each, a "CANADIAN REVOLVING CREDIT LOAN COMMITMENT
FEE"), a portion of each such Canadian Revolving Credit Loan Commitment Fee
equal to such Canadian Risk Participant's Pro Rata Share of the amount of
such Canadian Revolving Credit Loan Commitment Fee paid by the Canadian
Borrowers to the Canadian Administrative Agent for the benefit of all
Canadian Revolving Lenders. Each payment by the Canadian Funding Bank of a
Canadian Risk Participant's share of a Canadian Revolving Credit Loan
Commitment Fee shall be payable to the Canadian Administrative Agent (in
Dollars) when such Canadian Revolving Credit Loan Commitment Fee is
received by the Canadian Funding Bank. If the Canadian Funding Bank does
not receive payment in full of a Canadian Revolving Credit Loan Commitment
Fee due and owing to the Canadian Funding Bank, the portion of such
Canadian Revolving Credit Loan Commitment Fee payable to such Canadian Risk
Participant shall be reduced proportionately.
(viii) TAXES. Any payments by the Canadian Funding Bank or the
Canadian Administrative Agent to a Canadian Risk Participant pursuant to
this Section 2.8(a) shall (subject to the obligations of the Borrowers as
provided in Section 2.21) be reduced by any and all Taxes required to be
deducted or withheld on such payment. Any payments from a Canadian Risk
Participant to the Canadian Funding Bank or the Canadian Administrative
Agent shall be free and clear and without deduction or withholding for any
Indemnified Taxes or Other Taxes in the same manner as set forth in
Sections 2.21(a), 2.21(b), 2.21(c), and 2.21(d) as if such Canadian Risk
Participant were a Borrower hereunder. The provisions of this Section
2.8(a)(viii) shall survive the payment of all amounts required under this
Agreement.
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(b) US REVOLVING CREDIT LOANS. The following provisions shall apply to the
US Revolving Credit Loans and the rights and obligations of the US Funding Bank
and the US Risk Participants therein:
(i) US RISK PARTICIPATIONS. Notwithstanding anything to the contrary
contained herein, all US Revolving Credit Loans shall be made solely by the
US Revolving Lenders, including the US Funding Bank. However, each Person
that is a US Risk Participant as of the Closing Date, and each Person that
becomes a US Risk Participant after the Closing Date in accordance with the
provisions of Section 10.7, shall participate in the risk of each US
Revolving Credit Loan funded by the US Funding Bank (other than a US
Swingline Loan) in an amount equal to such US Risk Participant's Pro Rata
Share of all outstanding US Revolving Credit Loans (other than US Swingline
Loans) (each such participation, a "US RISK PARTICIPATION"). Each such US
Risk Participation shall be a risk participation only whereby such US Risk
Participant shall not have any ownership right, title or interest, legal or
beneficial, to any US Revolving Credit Loan, and shall not be entitled to
receive any payments of principal or interest thereon, prior to its
purchase of an ownership interest in such US Revolving Credit Loans in
accordance with Section 2.8(b)(ii). Each US Risk Participant agrees with
the US Funding Bank to share in the US Funding Bank's risk of such US
Revolving Credit Loans and in furtherance thereof shall provide the
indemnity set forth in Section 2.8(b)(v) and, upon a US Participation
Settlement Date, shall purchase an ownership interest in such US Revolving
Credit Loans in accordance with Section 2.8(b)(ii). The US Funding Bank and
the Administrative Agent shall record on their books the amount of the US
Revolving Credit Loans made by the US Funding Bank and each US Risk
Participant's US Risk Participation, all payments in respect thereof and
interest accrued thereon, and all payments made by and to each US Risk
Participant pursuant to this Section 2.8(b).
(ii) ASSIGNED US INTERESTS OPTION. On each US Participation Settlement
Date, to the extent the US Funding Bank elects to exercise its rights as
provided in the definition of "US Participation Settlement Date," the US
Funding Bank shall assign to each US Risk Participant, and such US Risk
Participant shall purchase and assume from the US Funding Bank, (A) a
portion of the US Funding Bank's US Revolving Credit Commitment in an
amount equal to the US Risk Participant Commitment of such US Risk
Participant (as to each such US Risk Participant, its "ASSIGNED US
COMMITMENT"), and (B) a portion of the US Revolving Credit Loans funded by
the US Funding Bank (other than US Swingline Loans) in an amount equal to
such US Risk Participant's Pro Rata Share of all outstanding US Revolving
Credit Loans (other than US Swingline Loans) (as to each such US Risk
Participant, its "ASSIGNED US LOANS"; each such US Risk Participant's
Assigned US Commitment and Assigned US Loans, collectively, its "ASSIGNED
US INTERESTS"). Each such assignment shall be effectuated in accordance
with Section 10.7 pursuant to an Assignment and Acceptance to be executed
by the US Funding Bank and such US Risk Participant, whereby the US Funding
Bank shall assign the applicable Assigned US Interests to such US Risk
Participant, and such US Risk Participant shall assume and purchase its
Assigned US Interests; provided, that, notwithstanding anything to the
contrary contained in Section 10.7 or otherwise, no consent of the
Borrowers or any other Person shall be required with respect to any such
assignment. The purchase price to be paid by each US Risk Participant to
the US Funding Bank for its Assigned US Interests shall be paid in
immediately available funds on the applicable US Participation Settlement
Date and shall equal 100% of the principal amount of such US Risk
Participant's Assigned US Loans, together with all accrued but unpaid
interest and fees thereon (as to each such US Risk Participant, its "US
PURCHASE AMOUNT"). Each US Risk Participant hereby grants to the US Funding
Bank an irrevocable power of attorney to execute and deliver any such
Assignment and Acceptance in the name and on behalf of such US Risk
Participant in the event that, for any reason, such US Risk Participant
does not duly execute and deliver to the US Funding Bank such an Assignment
and Acceptance
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on the applicable US Participation Settlement Date (which power of attorney
shall be coupled with an interest and irrevocable). Upon the effectiveness
of each such assignment, each such US Risk Participant shall become a US
Revolving Lender hereunder with a US Revolving Credit Commitment in an
amount equal to its Assigned US Commitment and shall cease to be a US Risk
Participant hereunder, but shall remain obligated to the US Funding Bank
under Section 2.8(b)(iv) hereof with respect to any payments by or on
behalf of the US Borrowers or any other Credit Party received by the US
Funding Bank or the Administrative Agent with respect to any US Revolving
Credit Loan made by the US Funding Bank prior to the effectiveness of such
assignment and under Section 2.8(b)(v) hereof with respect to any matters
arising before the effectiveness of such assignment. The following
additional provisions shall apply to this Section 2.8(b)(ii):
(A) The US Purchase Amount to be paid by each US Risk Participant
hereunder in respect of its Assigned US Loans shall be paid in
Dollars.
(B) If any US Risk Participant fails to pay to the US Funding
Bank on the applicable US Participation Settlement Date the full
amount of its US Purchase Amount in respect of its Assigned US
Interests to be purchased by such US Risk Participant on the
applicable US Participation Settlement Date, the US Funding Bank shall
be entitled to recover such unpaid amount from such US Risk
Participant, together with interest thereon at the ABR for the first
Business Day from and after the applicable US Participation Settlement
Date and thereafter at the interest rate then applicable to the
relevant US Revolving Credit Loans. Without limiting the US Funding
Bank's rights to recover from any US Risk Participant the amount of
any unpaid US Purchase Amount payable by such US Risk Participant to
the US Funding Bank, the US Funding Bank, the Administrative Agent and
the Canadian Administrative Agent shall also be entitled to withhold
from amounts otherwise payable to such US Risk Participant or its
Related Affiliate under this Agreement (whether constituting part of
the US Lender Indebtedness or the Canadian Lender Indebtedness) an
amount equal to such US Risk Participant's unpaid US Purchase Amount
owing to the US Funding Bank and apply such withheld amount to the
payment of any unpaid US Purchase Amount owing by such US Risk
Participant to the US Funding Bank.
(iii) OBLIGATIONS IRREVOCABLE. All obligations of each US Risk
Participant under this Section 2.8(b) shall be irrevocable and not subject
to any qualification or exception whatsoever, including any of the
following circumstances:
(A) any lack of validity or enforceability of this Agreement or
any of the other Financing Documents or of any Loans, against any
Borrower or any other Credit Party;
(B) the existence of any claim, setoff, defense or other right
which the US Borrowers or any other Credit Party may have at any time
in respect of any US Revolving Credit Loans or US Letters of Credit;
(C) any application or misapplication of any proceeds of any US
Revolving Credit Loans;
(D) the surrender or impairment of any security for any US
Revolving Credit Loans;
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(E) the occurrence of any Default;
(F) the commencement or pendency of any events specified in
Section 8.7 or 8.8 hereof in respect of any Borrower, any other Credit
Party or any other Person;
(G) the failure to satisfy the applicable conditions precedent
set forth in Article 3 hereof or the occurrence of any of the
circumstances set forth in Section 2.3(d)(8) hereof; or
(H) any change in Tax laws.
(iv) RECOVERY OR AVOIDANCE OF PAYMENTS. In the event any payment by or
on behalf of the US Borrowers or any other Credit Party received by the US
Funding Bank or the Administrative Agent with respect to any US Revolving
Credit Loan made by the US Funding Bank is thereafter set aside, avoided or
recovered from the US Funding Bank or the Administrative Agent in
connection with any receivership, liquidation, winding-up, bankruptcy or
other insolvency proceeding, each US Risk Participant shall, upon demand by
the US Funding Bank or the Administrative Agent, pay to the US Funding Bank
(through the Administrative Agent) such US Risk Participant's ratable share
of such amount set aside, avoided or recovered, together with interest at
the rate and in the currency required to be paid by the US Funding Bank or
the Administrative Agent upon the amount required to be repaid by it. The
agreement contained in this Section 2.8(b)(iv) shall survive payment in
full of all US Revolving Credit Loans.
(v) INDEMNIFICATION BY US RISK PARTICIPANTS. Each US Risk Participant
agrees to indemnify the US Funding Bank (to the extent not reimbursed by
the US Borrowers and without limiting the obligations of the US Borrowers
hereunder or under any other Financing Document) ratably for any and all
liabilities (including liabilities under Section 9.7), obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys' fees) or disbursements of any kind and nature whatsoever that
may be imposed on, incurred by or asserted against the US Funding Bank in
any way relating to or arising out of any US Revolving Credit Loans or any
participations by the US Funding Bank in any US Letters of Credit, US
Swingline Loans or US Agent Advances or any action taken or omitted by the
US Funding Bank in connection therewith; provided that no US Risk
Participant shall be liable for any of the foregoing to the extent it
arises from the gross negligence or willful misconduct of the US Funding
Bank. Without limiting the foregoing, (A) each US Risk Participant agrees
to reimburse the US Funding Bank promptly upon demand for such US Risk
Participant's ratable share of any costs or expenses payable by the US
Borrowers to the US Funding Bank in respect of the US Revolving Credit
Loans to the extent that the US Funding Bank is not promptly reimbursed for
such costs and expenses by the US Borrowers, and (B) each US Risk
Participant shall, upon request of the US Funding Bank, pay to the US
Funding Bank an amount equal to such US Risk Participant's ratable share of
any payment the US Funding Bank is required to make to (x) the
Administrative Agent (or the US Swingline Lender, in the case of US
Swingline Loans) with respect to any US Letter of Credit (or its
participation therein), any US Swingline Loan (or its participation
therein) or any US Agent Advance (or its participation therein) or (y) the
Issuing Bank with respect to any US Letter of Credit pursuant to Section
2.3(d)(4) hereof, in each case other than as a US Revolving Credit Loan
being made to the US Borrowers. The agreement contained in this Section
2.8(b)(v) shall survive payment in full of all US Revolving Credit Loans.
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(vi) US RISK PARTICIPATION FEE. In consideration for each US Risk
Participant's risk participation in the US Revolving Credit Loans (other
than US Swingline Loans) made by the US Funding Bank, the US Funding Bank
agrees to pay to the Administrative Agent for the account of each US Risk
Participant, as and when the US Funding Bank receives payment of interest
on its US Revolving Credit Loans (other than US Swingline Loans), a fee
(the "US RISK PARTICIPATION FEE") at a rate per annum equal to the
Applicable Margin on LIBOR Loans, minus 25 basis points, on the US Risk
Participation of such US Risk Participant in such US Revolving Credit Loans
made by the US Funding Bank. The US Risk Participation Fee in respect of
any US Risk Participation in a US Revolving Credit Loan shall be payable to
the Administrative Agent when interest on such US Revolving Credit Loan is
received by the US Funding Bank. If the US Funding Bank does not receive
payment in full of such interest, the US Risk Participation Fee in respect
of the US Risk Participation in such US Revolving Credit Loan shall be
reduced proportionately. Any amounts payable under this Section 2.8(b)(vi)
by the Administrative Agent to the US Risk Participants shall be paid in
Dollars.
(vii) COMMITMENT FEES. In consideration for each US Risk Participant's
risk participation in the US Revolving Credit Loans (other than US
Swingline Loans) made by the US Funding Bank and payment obligations with
respect to US Letters of Credit participated in by the US Funding Bank, the
US Funding Bank agrees to pay to the Administrative Agent for the account
of each US Risk Participant, as and when the US Funding Bank receives
payment of its Applicable Percentage of the commitment fee due with respect
to US Revolving Credit Commitments pursuant to Section 2.13(b) hereof and
the fee due with respect to US Letters of Credit pursuant to Section
2.13(d)(2) hereof (each, a "US REVOLVING CREDIT LOAN COMMITMENT FEE"), a
portion of each such US Revolving Credit Loan Commitment Fee equal to such
US Risk Participant's Pro Rata Share of the amount of such US Revolving
Credit Loan Commitment Fee paid by the US Borrowers to the Administrative
Agent for the benefit of all US Revolving Lenders. Each payment by the US
Funding Bank of a US Risk Participant's share of a US Revolving Credit Loan
Commitment Fee shall be payable to the Administrative Agent (in Dollars)
when such US Revolving Credit Loan Commitment Fee is received by the US
Funding Bank. If the US Funding Bank does not receive payment in full of a
US Revolving Credit Loan Commitment Fee due and owing to the US Funding
Bank, the portion of such US Revolving Credit Loan Commitment Fee payable
to such US Risk Participant shall be reduced proportionately.
(viii) TAXES. Any payments by the US Funding Bank or the
Administrative Agent to a US Risk Participant pursuant to this Section
2.8(b) shall (subject to the obligations of the Borrowers as provided in
Section 2.21) be reduced by any and all Taxes required to be deducted or
withheld on such payment. Any payments from a US Risk Participant to the US
Funding Bank or the Administrative Agent shall be free and clear and
without deduction or withholding for any Indemnified Taxes or Other Taxes
in the same manner as set forth in Sections 2.21(a), 2.21(b), 2.21(c), and
2.21(d) as if such US Risk Participant were a Borrower hereunder. The
provisions of this Section 2.8(b)(viii) shall survive the payment of all
amounts required under this Agreement.
(c) LIMITATION OF DUTIES; LACK OF RELIANCE. Each Risk Participant
acknowledges and agrees that (i) except as expressly set forth in Section 2.8(a)
or (b), neither Funding Bank shall have any obligation, liability,
responsibility or duty to such Risk Participant, (ii) neither Funding Bank shall
have, by reason of any Revolving Credit Loan Risk Participation or any provision
of this Section 2.8 or otherwise, any fiduciary relationship with any Risk
Participant, (iii) independently and without reliance upon either of the Funding
Banks, each Risk Participant hereby acknowledges that, by becoming a party to
this Agreement as a Risk Participant hereunder, to the extent it deems
appropriate, it has made and
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shall continue to make its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking or not
taking of any action in connection herewith, and its own appraisal of the
creditworthiness of the Credit Parties, and neither of the Funding Banks shall
have any responsibility, either initially or on a continuing basis, to provide
any Risk Participant with any credit or other information with respect thereto,
whether coming into its possession before the consummation of the transactions
contemplated herein or at any time or times thereafter, and (iv) neither of the
Funding Banks shall be responsible to any Risk Participant for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, any Loan in which a
Risk Participant has a risk participation, the Letters of Credit or the other
Financing Documents or the financial condition of any Credit Party or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Notes or the
other Financing Documents, or the financial condition of any Credit Party, or
the existence or possible existence of any Default.
SECTION 2.9 REPAYMENT OF LOANS.
(a) The US Borrowers hereby unconditionally, jointly and severally promise
to pay to the Administrative Agent for the account of each US Revolving Lender,
(1) the then unpaid principal amount of each US Revolving Credit Loan of such
Lender on the Maturity Date (or such earlier date on which the Revolving Credit
Loans become due and payable pursuant to Article 8); and (2) the amounts
specified in Section 2.11 on the dates specified in Section 2.11. The US
Borrowers hereby unconditionally, jointly and severally promise to pay to the US
Swingline Lender the then unpaid principal amount of each US Swingline Loan on
the date on which such US Swingline Loan becomes due and payable as provided in
Section 2.5(c) hereof (or such earlier date on which such US Swingline Loans
become due and payable pursuant to Article 8). The US Borrowers hereby
unconditionally, jointly and severally promise to pay to the Administrative
Agent the then unpaid principal amount of each US Agent Advance on demand (or
such earlier date on which such US Agent Advances become due and payable
pursuant to Article 8). The US Borrowers hereby unconditionally, jointly and
severally agree to pay interest on the unpaid principal amount of the Loans, the
US Swingline Loans and the US Agent Advances, from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in Section 2.6.
(b) The Canadian Borrowers hereby unconditionally, jointly and severally
promise to pay to the Canadian Administrative Agent for the account of each
Canadian Revolving Lender, (1) the then unpaid principal amount of each Canadian
Revolving Credit Loan of such Lender on the Maturity Date (or such earlier date
on which the Revolving Credit Loans become due and payable pursuant to Article
8); and (2) the amounts specified in Section 2.11 on the dates specified in
Section 2.11. The Canadian Borrowers hereby unconditionally, jointly and
severally promise to pay to the Canadian Swingline Lender the then unpaid
principal amount of each Canadian Swingline Loan on the date on which such
Canadian Swingline Loan becomes due and payable as provided in Section 2.5(d)
hereof (or such earlier date on which such Canadian Swingline Loan becomes due
and payable pursuant to Article 8). The Canadian Borrowers hereby
unconditionally, jointly and severally promise to pay to the Canadian
Administrative Agent the then unpaid principal amount of each Canadian Agent
Advance on demand (or such earlier date on which such Canadian Agent Advances
become due and payable pursuant to Article 8). The Canadian Borrowers hereby
unconditionally, jointly and severally agree to pay interest on the unpaid
principal amount of the Loans, the Canadian Swingline Loans and the Canadian
Agent Advances from time to time, outstanding from the date hereof until payment
in full thereof at the rates per annum, and on the dates, set forth in Section
2.6.
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(c) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including, without
limitation, the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain a Register pursuant to Section
10.7(c), and a subaccount therein for each US Revolving Lender, in which shall
be recorded (1) the amount of each US Loan made hereunder, the Type thereof and
each Interest Period, if any, applicable thereto, (2) the amount of any
principal or interest due and payable or to become due and payable from the US
Borrowers to each US Revolving Lender hereunder, and (3) both the amount of any
sum received by the Administrative Agent hereunder from the US Borrowers and
each US Revolving Lender's Applicable Percentage thereof. The Administrative
Agent shall maintain a separate register with respect to the US Swingline Loans
which Register shall contain the same information as the Register with respect
to the US Loans.
(e) The Canadian Administrative Agent shall maintain a Register pursuant to
Section 10.7(c), and a subaccount therein for each Canadian Revolving Lender, in
which shall be recorded (1) the amount of each Canadian Loan made hereunder, the
Type thereof and each Interest Period, if any, applicable thereto, (2) the
amount of any principal or interest due and payable or to become due and payable
from the Canadian Borrowers to each Canadian Revolving Lender hereunder, and (3)
both the amount of any sum received by the Canadian Administrative Agent
hereunder from the Canadian Borrowers and each Canadian Revolving Lender's
Applicable Percentage thereof. The Canadian Administrative Agent shall maintain
a separate register with respect to the Canadian Swingline Loans which Register
shall contain the same information as the Register with respect to the Canadian
Loans.
(f) The entries made in the Registers and the accounts of the
Administrative Agent and the Canadian Administrative Agent and each Lender
maintained pursuant to Section 2.9 (c), Section 2.9(d) or Section 2.9(e) shall,
absent manifest error, be conclusive evidence of the existence and amounts of
the obligations of the Borrowers therein recorded; provided, however, that the
failure of any Lender or Agent to maintain a Register or any such account, or
any error therein, shall not in any manner affect the obligations of each
Borrower to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.
(g) The Administrative Agent shall render to the US Borrowers each month a
statement of the US Borrowers' account setting forth the following information
for the period from the date of the most recent preceding statement: the
aggregate principal amount of new US Revolving Credit Loans and US Swingline
Loans (if any) made to the US Borrowers, the aggregate amount of new
Reimbursement Obligations which have not been reimbursed, the aggregate face
amount of new US Letters of Credit issued for the account of the US Borrowers,
the amount of remittances and payments actually collected and applied by the
Administrative Agent to reduce the outstanding principal balance of the US
Swingline Loans and US Revolving Credit Loans, to reimburse Reimbursement
Obligations and establish L/C Cover during such period, the outstanding
principal balances of the US Swingline Loans and US Revolving Credit Loans, and
the aggregate US Letter of Credit Liabilities outstanding at the end of such
period. Such statement shall be deemed to be correct and accepted by and be
binding upon the US Borrowers unless the Administrative Agent receives a written
statement of the US Borrowers' exceptions to such account statement within
twenty (20) days after such statement was rendered to the US Borrowers, and then
only those items disclosed on such statement will be considered to be disputed
by the US Borrowers.
(h) The Canadian Administrative Agent shall render to the Canadian
Borrowers each month a statement of the Canadian Borrowers' account setting
forth the following information for the period from the date of the most recent
preceding statement: the aggregate principal amount of new Canadian Revolving
Credit Loans and Canadian Swingline Loans made to the Canadian Borrowers, the
aggregate
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amount of new Reimbursement Obligations which have not been reimbursed, the
aggregate face amount of new Canadian Letters of Credit issued for the account
of the Canadian Borrowers, the amount of remittances and payments actually
collected and applied by the Canadian Administrative Agent to reduce the
outstanding principal balance of the Canadian Revolving Credit Loans and
Canadian Swingline Loans, to reimburse Reimbursement Obligations during such
period and establish L/C Cover, the outstanding principal balances of the
Canadian Revolving Credit Loans and Canadian Swingline Loans, and the aggregate
Canadian Letter of Credit Liabilities outstanding at the end of such period.
Such statement shall be deemed to be correct and accepted by and be binding upon
the Canadian Borrowers unless the Canadian Administrative Agent receives a
written statement of the Canadian Borrowers' exceptions to such account
statement within twenty (20) days after such statement was rendered to the
Canadian Borrowers, and then only those items disclosed on such statement will
be considered disputed by the Canadian Borrowers.
SECTION 2.10 VOLUNTARY ADJUSTMENT, TERMINATION OR REDUCTION OF REVOLVING
CREDIT COMMITMENTS; EXTENSIONS.
(a) So long as a Default has not occurred and is not continuing and subject
to this Section 2.10(a), GUSAP and the Company may, upon at least five Business
Days notice to the Administrative Agent and the Canadian Administrative Agent,
elect to have the US Revolving Credit Commitments and the Canadian Revolving
Credit Commitments adjusted such that the Revolving Credit Commitment designated
by them to be increased shall be increased by, subject to this Section 2.10(a),
the amount designated by them and the other Revolving Credit Commitment shall be
simultaneously decreased by the same amount. The Administrative Agent and the
Lenders shall not be required to give effect to any adjustment under this
Section 2.10(a) which (i) is requested prior to 90 days following the Closing
Date, (ii) is in an amount less than $10,000,000, (iii) is requested within 90
days of any prior adjustment under this Section 2.10(a), or (iv) would result,
after giving effect to such adjustment, in the Aggregate US Revolving Credit
Exposure or the Aggregate Canadian Revolving Credit Exposure exceeding,
respectively, the US Maximum Available Amount or the Canadian Maximum Available
Amount. Any adjustment of the Revolving Credit Commitments under this Section
2.10(a) shall be applied proportionately to the Combined Revolving Credit
Commitments for each Lender, and the Combined Revolving Credit Commitments of
each Lender (or each Lender and its Related Affiliate, if any) shall not be
increased or reduced as a result of such adjustment. In connection with any such
adjustment of the Revolving Credit Commitments of the Lenders, the Canadian Risk
Participant Commitment and US Risk Participant Commitment of each Risk
Participant shall be adjusted accordingly.
(b) So long as a Default has not occurred and is not continuing and subject
to this Section 2.10(b), the Borrowers may, upon at least five Business Days
notice to the Administrative Agent, the Canadian Administrative Agent, the US
Swingline Lender and the Canadian Swingline Lender, elect to have the US
Swingline Commitment and the Canadian Swingline Commitment adjusted such that
the Swingline Commitment designated by the Borrowers to be increased shall be
increased by, subject to this Section 2.10(b), the amount designated by the
Borrowers and the other Swingline Commitment shall be simultaneously decreased
by the same amount. The Administrative Agent and the Swingline Lenders shall not
be required to give effect to any adjustment under this Section 2.10(b) which
(i) is requested prior to 90 days following the Closing Date, (ii) is in an
amount less than $10,000,000, (iii) is requested within 90 days of any prior
adjustment under this Section 2.10(b), or (iv) would result, after giving effect
to such adjustment, in the US Swingline Exposure or the Canadian Swingline
Exposure exceeding, respectively, the US Swingline Availability or the Canadian
Swingline Availability.
(c) Each of the Borrowers may, upon at least five Business Days notice to
the Administrative Agent and the Canadian Administrative Agent, terminate the
Commitments entirely at any time. Neither the US Revolving Credit Commitments,
the Canadian Revolving Credit Commitments, the US Swingline
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Commitment nor the Canadian Swingline Commitment may be partially terminated by
the US Borrowers or the Canadian Borrowers and each of the US Swingline
Commitment and the Canadian Swingline Commitment may only be entirely terminated
by the US Borrowers and the Canadian Borrowers in connection with the entire
termination of the Commitments. If the Commitments are terminated in their
entirety, all accrued commitment fees with respect thereto shall be payable on
the effective date of such termination. Upon termination of the US Revolving
Credit Commitments and the Canadian Revolving Credit Commitments in full, the
commitments of the US Swingline Lender to make US Swingline Loans and the
commitments of the Canadian Swingline Lender to make Canadian Swingline Loans
shall terminate as well.
(d) Subject to the other terms and conditions of this Agreement and unless
the Commitments have been earlier terminated, the Commitments shall be available
hereunder from the Closing Date until the Maturity Date (the "COMMITMENT
PERIOD"). The Maturity Date may be extended for successive one year periods upon
request by the Borrowers providing written notice to the Administrative Agent,
with a copy to the Canadian Administrative Agent, each Lender and each Risk
Participant, requesting that the Commitments hereunder are to be extended as at
the then applicable Maturity Date. Any such request shall be provided by the
Borrowers no later than 90 days prior to the then applicable Maturity Date. Each
Lender may agree to extend its Commitments for the period specified within 30
days of receiving a copy of such notice. The Maturity Date shall not be extended
unless each Lender and Risk Participant approves such extension request within
the specified 30 days. Any Lender which fails to extend its Commitments within
the specified 30 days shall be deemed to have refused to extend such
Commitments.
SECTION 2.11 MANDATORY PREPAYMENTS; VOLUNTARY PREPAYMENTS; ORDER OF
APPLICATION.
(a) MANDATORY PREPAYMENTS OF US REVOLVING CREDIT LOANS. If at any time (i)
the Aggregate US Revolving Credit Exposure is in excess of the US Maximum
Available Amount or (ii) the Allocated US Credit Exposure in respect of a US
Borrower is in excess of such US Borrower's US Borrowing Base, the US Borrowers
shall immediately jointly and severally pay to the Administrative Agent, for the
account of the US Revolving Lenders, the amount of such excess to be applied (1)
as a prepayment of the US Revolving Credit Loans and Reimbursement Obligations
with respect to US Letters of Credit, with such payment to be applied first to
the obligations of any US Borrower having Allocated US Credit Exposure in excess
of its US Borrowing Base, and (2) after payment in full of the US Revolving
Credit Loans and Reimbursement Obligations, as L/C Cover for the US Letter of
Credit Liabilities in an amount of such remaining excess. The foregoing
prepayment requirement is subject to the Administrative Agent's authority, in
its sole discretion, to make Agent Advances pursuant to Section 2.28(a).
(b) MANDATORY PREPAYMENT OF CANADIAN REVOLVING CREDIT LOANS. If at any time
the Dollar Equivalent of the Aggregate Canadian Revolving Credit Exposure is in
excess of the Canadian Maximum Available Amount, the Canadian Borrowers shall
immediately jointly and severally pay to the Canadian Administrative Agent, for
the account of the Canadian Revolving Lenders, the amount of such excess to be
applied (1) as a prepayment of the Canadian Revolving Credit Loans and
Reimbursement Obligations with respect to Canadian Letters of Credit, and (2)
after payment in full of the Canadian Revolving Credit Loans and Reimbursement
Obligations, as L/C Cover for the Canadian Letter of Credit Liabilities in an
amount of such remaining excess. The foregoing prepayment requirement is subject
to the Canadian Administrative Agent's authority, in its sole discretion, to
make Agent Advances pursuant to Section 2.28(a).
(c) APPLICATION OF PROCEEDS FROM US BLOCKED ACCOUNT. Upon and during the
continuance of a Block Event, on or before 11:00 a.m. (Eastern Time) on each
Business Day, the Administrative Agent shall disburse (or cause each US Lockbox
Bank to disburse) to the appropriate Agent or Lenders
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for application in accordance with Section 2.11(f) and Section 2.11(h), all
amounts then on deposit in each US Blocked Account which the Administrative
Agent shall have determined constitute "collected funds" in accordance with the
policies of the Administrative Agent then in effect.
(d) APPLICATION OF PROCEEDS FROM CANADIAN BLOCKED ACCOUNT. Upon and during
the continuance of a Block Event, on or before 11:00 a.m. (Toronto Time) on each
Business Day, the Canadian Administrative Agent shall disburse (or cause the
Canadian Lockbox Bank to disburse) to the appropriate Agent or Lenders for
application in accordance with Section 2.11(g) and Section 2.11(i) hereof all
amounts then on deposit in the Canadian Blocked Account which the Canadian
Administrative Agent shall have determined constitute "collected funds" in
accordance with the policies of the Canadian Administrative Agent then in
effect.
(e) VOLUNTARY PREPAYMENTS. Each of the Borrowers may, at their option, at
any time and from time to time, prepay the Loans and the Reimbursement
Obligations, in whole or in part, without premium or penalty except for breakage
costs with respect to LIBOR Loans as provided in Section 2.19, upon giving, in
the case of any LIBOR Loan or B/A Loan, five Business Days irrevocable prior
written notice to the Administrative Agent, and, in the case of any ABR Loan or
Canadian Prime Loan, prior written notice on the same Business Day to the
Administrative Agent (in the case of prepayment of US Loans) or the Canadian
Administrative Agent (in the case of a prepayment of Canadian Loans). Such
notice shall specify, (i) in the case of any prepayment of Loans, the date and
amount of prepayment and whether the prepayment is (A) of US Revolving Credit
Loans, Canadian Revolving Credit Loans, US Swingline Loans or Canadian Swingline
Loans, or a combination thereof, and (B) of LIBOR Loans, ABR Loans, B/A Loans or
Canadian Prime Loans, or a combination thereof, and, in each case if a
combination thereof, the principal amount allocable to each, and (ii) in the
case of any prepayment of Reimbursement Obligations, the date and amount of
prepayment, the identity of the applicable Letter of Credit or Letters of Credit
and the amount allocable to each of such Reimbursement Obligations. In addition,
the US Borrowers shall, in the case of US Loans or Reimbursement Obligations
related to US Letters of Credit, specify the Applicable US Operating Borrower to
which such prepayment should be allocated. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (if a LIBOR Loan is prepaid other than at the end of the
Interest Period applicable thereto) any amounts payable pursuant to Section
2.19. Each prepayment of US Revolving Credit Loans which are ABR Loans may be in
any amount; each prepayment of Canadian Revolving Credit Loans which are ABR
Loans shall be in a minimum principal amount of $2,000,000 and shall be in an
integral multiple of $100,000; each prepayment of Canadian Prime Loans shall be
in the minimum principal amount of C$2,000,000 and in an integral multiple of
$100,000; each prepayment of LIBOR Loans shall be in the minimum principal
amount of $5,000,000 and in an integral multiple of $100,000; each prepayment of
B/A Loans shall be in the minimum principal amount of C$5,000,000; and in an
integral multiple of C$100,000; or, in any case, the aggregate principal balance
outstanding on such Loans.
(f) ORDER OF PAYMENTS PRIOR TO DEFAULT (US BORROWERS). Unless a payment
relates to a specific item of Lender Indebtedness (including as directed by a
Borrower) or an Event of Default has occurred and is continuing, any payment by
any of the US Borrowers (including, without limitation, any application of the
proceeds of Collateral of the US Borrowers) in respect of the Lender
Indebtedness, including, without limitation, amounts applied pursuant to Section
2.11(c), shall be applied to the Lender Indebtedness in the following order (i)
first, to the payment in full of all costs, expenses and other charges (but not
fees) of the Administrative Agent then due and payable by the Borrowers under
the Financing Documents and all indemnities payable by the Borrowers under the
Financing Documents then due to the Administrative Agent, (ii) second, to the
payment in full of all costs, expenses and other charges (but not fees) of the
US Revolving Lenders payable by the Borrowers under the Financing Documents and
all indemnities payable by the Borrowers under the Financing Documents then due
to any US Lender or US Risk Participant, (iii) third, to the payment in full of
all fees payable by the Borrowers to the
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Administrative Agent in its capacity as such, (iv) fourth, to the payment in
full of all interest then due and payable in respect of the US Swingline Loans
and US Agent Advances, (v) fifth, to the payment in full of all interest then
due and payable in respect of the US Revolving Credit Loans, (vi) sixth, to the
payment in full of all fees then due and payable to the US Revolving Lenders
pursuant to Section 2.13(a) hereof, (vii) seventh, to the payment in full of all
principal then due and payable under Section 2.11(a) above (for application
first to US Agent Advances to the extent necessary to pay such US Agent Advances
in full, then to US Swingline Loans to the extent necessary to pay the US
Swingline Loans in full, and then to the US Revolving Credit Loans), (viii)
eighth, to the payment of principal of US Agent Advances to the extent necessary
to pay such US Agent Advances in full, then to the payment of principal of the
US Swingline Loans, (ix) ninth, to the payment of principal of the US Revolving
Credit Loans, (x) tenth, to any other Lender Indebtedness to the extent then due
and payable, and (xi) eleventh, after giving effect to the payment in full of
all amounts due and payable pursuant to clauses (i) through (x) preceding, to
PASUG by depositing the net amount thereof in the Disbursement Account of PASUG.
In applying any amounts under this Section 2.11(f): (x) amounts on deposit in
the US Blocked Account which represent amounts that have been deposited to the
US Blocked Account as amounts payable to a particular US Borrower; and (y)
proceeds of Collateral of such US Borrower shall, in each case, only be applied
against such of the relevant Lender Indebtedness as has been allocated to such
US Borrower.
(g) ORDER OF PAYMENTS PRIOR TO DEFAULT (CANADIAN BORROWERS). Unless a
payment relates to a specific item of Lender Indebtedness (including as directed
by a Borrower) or an Event of Default has occurred and is continuing, any
payment by the Canadian Borrowers (including, without limitation, any
application of the proceeds of Collateral of the Canadian Borrowers) in respect
of the Canadian Lender Indebtedness, including, without limitation, amounts
applied pursuant to Section 2.11(d), shall be applied to the Canadian Lender
Indebtedness in the following order (i) first, to the payment in full of all
costs, expenses and other charges (but not fees) of the Canadian Administrative
Agent then due and payable by the Canadian Borrowers under the Financing
Documents and all indemnities payable by the Borrowers under the Financing
Agreements then due to the Canadian Administrative Agent, (ii) second, to the
payment in full of all costs, expenses and other charges (but not fees) of the
Canadian Revolving Lenders payable by the Canadian Borrowers under the Financing
Agreements and all indemnities payable by the Canadian Borrowers under the
Financing Agreements then due to any Canadian Lender or Canadian Risk
Participant, (iii) third, to the payment in full of all fees payable by the
Canadian Borrowers to the Canadian Administrative Agent in its capacity as such,
(iv) fourth, to the payment in full of all interest then due and payable in
respect of Canadian Agent Advances and the Canadian Swingline Loans, (v) fifth,
to the payment in full of all interest then due and payable in respect of the
Canadian Revolving Credit Loans, (vi) sixth, to the payment in full of all fees
then due and payable to the Canadian Revolving Lenders pursuant to Section
2.13(b) hereof, (vii) seventh, to the payment in full of all principal then due
and payable under Section 2.11(b) above (for application first to Canadian Agent
Advances to the extent necessary to pay such Canadian Agent Advances in full,
then to the Canadian Swingline Loans to the extent necessary to pay the Canadian
Swingline Loans in full, and then to the Canadian Revolving Credit Loans),
(viii) eighth, to the payment of principal of Canadian Agent Advances to the
extent necessary to pay such Canadian Agent Advances in full, then to the
payment of principal of the Canadian Swingline Loans, (ix) ninth, to the payment
of principal of the Canadian Revolving Credit Loans, (x) tenth, to any other
Canadian Lender Indebtedness to the extent then due and payable, and (ix)
eleventh, after giving effect to the payment in full of all amounts due and
payable pursuant to clauses (i) through (x) preceding, to the Canadian Borrowers
by depositing the net amount thereof in the Disbursement Account for the
Canadian Borrowers.
(h) ORDER OF PAYMENTS DURING DEFAULT (US BORROWERS). During the existence
of any Event of Default, any payments in respect of the Lender Indebtedness by
or for the account of any of the US Borrowers or in respect of any of the
proceeds of Collateral of the US Borrowers, including amounts applied pursuant
to Section 2.11(c), shall be applied to the Lender Indebtedness (1) first, to
the payment
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in full of all costs, expenses and other charges (but not fees) of the Agents
incurred in connection with the collection and enforcement of the Lender
Indebtedness and for the protection, preservation or sale, disposition or other
realization upon the Collateral, including all expenses, liabilities and
advances incurred or made by or on behalf of the Agents in their capacities as
such, including attorneys' fees and legal expenses, (2) second, to the remaining
US Lender Indebtedness (including to establish L/C Cover for all outstanding US
Letters of Credit) on a prorata basis in such order as the Administrative Agent
shall determine in its sole discretion in order to minimize tax or other costs
to the Lenders, but expressly excluding any amounts to be paid pursuant to
clause (4) of this Section 2.11(h), (3) third, to the remaining Canadian Lender
Indebtedness (including to establish L/C Cover for all outstanding Canadian
Letters of Credit) on a prorata basis in such order as the Canadian
Administrative Agent shall determine in its sole discretion in order to minimize
tax or other costs to the Lenders, but expressly excluding any amounts to be
paid pursuant to clause (4) of this Section 2.11(h), and (4) fourth, on a
prorata basis to any Lender Indebtedness consisting of amounts owed by any
Credit Party in respect of any Swap Agreement or Cash Management Agreement;
provided, that, (A) if any Lender or Risk Participant (or any Affiliate of a
Lender or Risk Participant) other than Bank of America (or its Affiliates)
enters into any Swap Agreement or Cash Management Agreement with any Borrower,
such Lender or Risk Participant shall report to the Administrative Agent the
current exposure of the Borrowers to such Lender or Risk Participant (or any
Affiliate of a Lender or Risk Participant) under such Swap Agreements and Cash
Management Agreements (and any increase in such exposure since the last report)
no less frequently than monthly and whenever requested by the Administrative
Agent, and (B) if there is any exposure or increase in the exposure of the
Borrowers to such Lender or Risk Participant (or any Affiliate of a Lender or
Risk Participant) under such Swap Agreements or Cash Management Agreements and
such Lender or Risk Participant fails to report such exposure or increased
exposure to the Administrative Agent as required in clause (A) above, then,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, the payment of such exposure or increased exposure shall not
constitute Lender Indebtedness and shall not be secured by any of the
Administrative Agent's or the Canadian Administrative Agent's Liens. In applying
any amounts under this Section 2.11(h), amounts on deposit in the US Blocked
Account which represent amounts that have been deposited to the US Blocked
Account as amounts payable to a US Borrower, and proceeds of Collateral of a US
Borrower, shall, in each case, be applied first against such of the relevant
Lender Indebtedness as has been allocated to such US Borrower, and second,
against such of the relevant Lender Indebtedness as has been guaranteed by such
US Borrower.
(i) ORDER OF PAYMENT DURING DEFAULT (CANADIAN BORROWERS). During the
existence of any Event of Default, any payments in respect of the Lender
Indebtedness by or for the account of the Canadian Borrowers or in respect of
any of the proceeds of Collateral of the Canadian Borrowers, including amounts
applied pursuant to Section 2.11(d), shall be applied to the Lender Indebtedness
(1) first, to the payment in full of all costs, expenses and other charges (but
not fees) of the Agents incurred in connection with the collection and
enforcement of the Lender Indebtedness and for the protection, preservation or
sale, disposition or other realization upon the Collateral provided by the
Canadian Borrowers, including all expenses, liabilities and advances incurred or
made by or on behalf of the Agents in their capacities as such, including
attorneys' fees and legal expenses, (2) second, to the remaining Canadian Lender
Indebtedness (including to establish L/C Cover for all outstanding Canadian
Letters of Credit) on a prorata basis in such order as the Canadian
Administrative Agent shall determine in its sole discretion in order to minimize
tax or other costs to the Lenders (but expressly excluding any amounts to be
paid pursuant to clause (4) of Section 2.11(h)), (3) third, to the remaining US
Lender Indebtedness (including to establish L/C Cover for all outstanding US
Letters of Credit) on a prorata basis in such order as the Administrative Agent
shall determine in its sole discretion in order to minimize tax or other costs
to the Lenders, but expressly excluding any amounts to be paid pursuant to
clause (4) of this Section 2.11(i), and (4) fourth, on a prorata basis to any
Lender Indebtedness consisting of amounts owed by any Canadian Credit Party in
respect of any Swap Agreement or Cash Management Agreement;
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provided, that, (A) if any Lender or Risk Participant (or any Affiliate of a
Lender or Risk Participant) other than Bank of America (or its Affiliates)
enters into any Swap Agreement or Cash Management Agreement with any Borrower,
such Lender or Risk Participant shall report to the Administrative Agent the
current exposure of the Borrowers to such Lender or Risk Participant (or any
Affiliate of a Lender or Risk Participant) under such Swap Agreements and Cash
Management Agreements (and any increase in such exposure since the last report)
no less frequently than monthly and whenever requested by the Administrative
Agent, and (B) if there is any exposure or increase in the exposure of the
Borrowers to such Lender or Risk Participant (or any Affiliate of a Lender or
Risk Participant) under such Swap Agreements or Cash Management Agreements and
such Lender or Risk Participant fails to report such exposure or increased
exposure to the Administrative Agent as required in clause (A) above, then,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, the payment of such exposure or increased exposure shall not
constitute Lender Indebtedness and shall not be secured by any of the
Administrative Agent's or the Canadian Administrative Agent's Liens. In applying
any amounts under this Section 2.11(i), amounts on deposit in the Canadian
Blocked Account which represent amounts that have been deposited to the Canadian
Blocked Account as amounts payable to the Canadian Borrowers, and proceeds of
Collateral of the Canadian Borrowers, shall, in each case, be applied, first,
against such of the relevant Canadian Lender Indebtedness, and second, against
such of the relevant Lender Indebtedness as has been guaranteed by the Canadian
Borrowers.
SECTION 2.12 CONTINUATION AND CONVERSION OPTIONS.
(a) CONTINUATION. The Borrowers may elect to continue all or any part of
any Borrowing of LIBOR Loans or B/A Loans beyond the expiration of the then
current Interest Period relating thereto by giving Advance Notice (which shall
be irrevocable) to the Administrative Agent, in the case of LIBOR Loans, or the
Canadian Administrative Agent (with a simultaneous copy to the Administrative
Agent), in the case of B/A Loans, of such election, specifying the LIBOR Loans
or B/A Loans or portion thereof to be continued and the Interest Period
therefor. In the absence of such a timely and proper election with regard to
LIBOR Loans, the Borrowers shall be deemed to have elected to convert such LIBOR
Loans to ABR Loans pursuant to Section 2.12(d). In the absence of such a timely
and proper election with regard to B/A Loans, the Borrowers shall be deemed to
have elected to convert such B/A Loans to Canadian Prime Loans pursuant to
Section 2.12(f).
(b) AMOUNT OF CONTINUATIONS. All or part of any LIBOR Loans may be
continued as provided herein, provided that any continuation of such Loans shall
not be (as to each Borrowing of such Loans as continued for an applicable
Interest Period) less than $5,000,000 for all Lenders and shall be in an
integral multiple of $1,000,000. All or part of any B/A Loans may be continued
as provided herein, provided that any continuation of such Loans shall not be
(as to each Borrowing of such Loans as continued for an applicable Interest
Period) less than C$5,000,000 for all Lenders and shall be in an integral
multiple of C$1,000,000.
(c) CONTINUATION OR CONVERSION UPON DEFAULT. If, but only if, no Default
shall have occurred and be continuing, each LIBOR Loan or B/A Loan may be
continued or converted as provided in this Section 2.12.
(d) CONVERSION TO ABR OR CANADIAN PRIME RATE. The Borrowers may elect to
convert any LIBOR Loan on the last day of the then current Interest Period
relating thereto to an ABR Loan by giving Advance Notice to the Administrative
Agent of such election. The Canadian Borrowers may elect to convert any B/A Loan
on the last day of the then current Interest Period relating thereto to a
Canadian Prime Loan by giving Advance Notice to the Canadian Administrative
Agent (with a simultaneous copy to the Administrative Agent) of such election.
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(e) CONVERSION TO LIBOR RATE. If, but only if, no Default shall have
occurred and be continuing, the Borrowers may elect to convert any ABR Loan at
any time or from time to time to a LIBOR Loan by giving Advance Notice (which
shall be irrevocable) to the Administrative Agent of such election, specifying
each Interest Period therefor.
(f) CONVERSION TO B/A LOAN. If, but only if, no Default shall have occurred
and be continuing, the Borrowers may elect to convert any Canadian Prime Loan at
any time or from time to time to a B/A Loan by giving Advance Notice to the
Canadian Administrative Agent (with a simultaneous copy to the Administrative
Agent) of such election, specifying each Interest Period therefor.
SECTION 2.13 FEES.
(a) US REVOLVING CREDIT COMMITMENTS. The US Borrowers shall jointly and
severally pay to the Administrative Agent for the account of and distribution to
each US Revolving Lender in accordance with its US Revolving Credit Percentage a
commitment fee, for the period commencing on the Closing Date to and including
the Maturity Date (or such earlier date as the US Revolving Credit Commitments
shall have been terminated entirely), computed at a rate per annum equal to the
Applicable Margin, on the average daily excess amount of the US Revolving Credit
Commitments over the US Revolving Credit Exposure. The commitment fees on the US
Revolving Credit Commitments earned from and after the Closing Date shall be
payable in arrears on the first Business Day of each month commencing after the
Closing Date.
(b) CANADIAN REVOLVING CREDIT COMMITMENTS. The Canadian Borrowers shall
jointly and severally pay to the Canadian Administrative Agent for the account
of and distribution to each Canadian Revolving Lender in accordance with its
Canadian Revolving Credit Percentage a commitment fee, for the period commencing
on the Closing Date to and including the Maturity Date (or such earlier date as
the Canadian Revolving Credit Commitments shall have been terminated entirely),
computed at a rate per annum equal to the Applicable Margin, on the average
daily excess amount of the Canadian Revolving Credit Commitments over the
Canadian Revolving Credit Exposure. The commitment fees on the Canadian
Revolving Credit Commitments earned from and after the Closing Date shall be
payable in arrears on the first Business Day of each month commencing after the
Closing Date.
(c) US LETTERS OF CREDIT.
(1) The US Borrowers shall jointly and severally pay to the applicable
Issuing Bank, with respect to any issuance, amendment, transfer, or
cancellation prior to expiration of any US Letter of Credit and for
each drawing made thereunder, documentary and processing charges in
accordance with such Issuing Bank's standard schedule for such charges
in effect at the time of, and payable at the time of, such issuance,
amendment, transfer, cancellation or drawing, as the case may be, as
well as a fronting fee in an amount to be agreed from time to time
between the US Borrowers and the applicable Issuing Bank. All fees
payable pursuant to this Section 2.13(c)(1) shall be retained by the
applicable Issuing Bank.
(2) The US Borrowers will jointly and severally pay to the Administrative
Agent for the account of and pro rata distribution to each US
Revolving Lender a fee on the daily average amount available for
drawings under each US Letter of Credit, in each case for the period
from and including the date of issuance of such US Letter of Credit to
and excluding the date of expiration or termination thereof computed
at a per annum rate for each day equal to the Applicable Margin for
LIBOR Loans. Such fees shall be payable in arrears on the first
Business Day of each month.
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(d) CANADIAN LETTERS OF CREDIT.
(1) The Canadian Borrowers shall jointly and severally pay to the
applicable Issuing Bank, with respect to any issuance, amendment,
transfer, or cancellation prior to expiration of any Canadian Letter
of Credit and for each drawing made thereunder, documentary and
processing charges in accordance with such Issuing Bank's standard
schedule for such charges in effect at the time of, and payable at the
time of, such issuance, amendment, transfer, cancellation or drawing,
as the case may be, as well as a fronting fee in an amount to be
agreed from time to time between the Canadian Borrowers and the
applicable Issuing Bank. All fees payable pursuant to this Section
2.13(d)(1) shall be retained by the applicable Issuing Bank.
(2) The Canadian Borrowers will jointly and severally pay to the Canadian
Administrative Agent for the account of and pro rata distribution to
each Canadian Revolving Lender a fee on the daily average amount
available for drawings under each Canadian Letter of Credit, in each
case for the period from and including the date of issuance of such
Canadian Letter of Credit to and excluding the date of expiration or
termination thereof computed at a per annum rate for each day equal to
the Applicable Margin for B/A Loans. Such fees shall be payable in
arrears on the first Business Day of each month.
(e) AUDIT AND DUE DILIGENCE FEES. On the Closing Date, the Borrowers shall
pay to the Administrative Agent (i) all reasonable fees and/or verification
costs incurred by the Administrative Agent or the Canadian Administrative Agent
in connection with audits conducted against the Borrowers' property and assets
prior to the Closing Date (up to a maximum of $850 per person, per day), and
(ii) any other reasonable out-of-pocket expenses related to any of the
foregoing.
(f) FEE LETTER. The US Borrowers shall jointly and severally pay to the
Administrative Agent such fees as are set forth in the Fee Letter, on the dates
and in the manner specified therein, and the Canadian Borrowers shall jointly
and severally pay to the Canadian Administrative Agent such fees as are set
forth in the Fee Letter, on the dates and in the manner set forth therein.
SECTION 2.14 PAYMENTS, ETC.
(a) WITHOUT SETOFF, ETC. Except as otherwise specifically provided herein,
all payments under this Agreement shall be made to the Administrative Agent (if
such payment is made on or in respect of US Loans or US Commitments) or to the
Canadian Administrative Agent (if such payment is made on or in respect of
Canadian Loans or Canadian Commitments) for the account of the appropriate
Lenders without defense, set-off or counterclaim not later than 1:00 p.m.
Eastern Time on the date when due and shall be made in Dollars (unless such
payment is a payment of principal or interest on C$ Denominated Loans or
Reimbursement Obligations with respect to Canadian Letters of Credit denominated
in C$, in which case such payments shall be in C$) in immediately available
funds at the Payment Office of the appropriate Agent. Except with respect to
Swingline Loans and Agent Advances, the Administrative Agent or the Canadian
Administrative Agent will promptly thereafter distribute funds in the form
received relating to the payment of principal or interest or commitment fees
ratably to the appropriate Lenders for the account of their respective Lending
Offices, and funds in the form received relating to the payment of any other
amount payable to any Lender to such Lender for the account of its applicable
Lending Office.
(b) NON-BUSINESS DAYS. Whenever any payment to be made hereunder or under
any Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to
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the next succeeding Business Day (except as otherwise provided in Section 2.7
hereof) and, with respect to payments of principal, interest thereon shall be
payable at the applicable rate during such extension.
(c) COMPUTATIONS. All computations of interest (other than interest on
LIBOR Loans) and fees shall be made on the basis of a year of 365 days for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. All
computations of interest on LIBOR Loans shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable. Each
determination by the Administrative Agent or the Canadian Administrative Agent
of an interest rate or fee hereunder shall, except for manifest error, be final,
conclusive and binding for all purposes. If the Administrative Agent or the
Canadian Administrative Agent and the Borrowers determine that manifest error
exists, said parties shall correct such error by way of an adjustment to the
next payment due hereunder. For the purposes of the Interest Act (Canada) and
disclosure thereunder, whenever interest to be paid hereunder is to be
calculated on the basis of a year of 360 days or any other period of time that
is less than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by either 360 or such other period of time, as
the case may be. Calculations of interest shall be made using the nominal rate
method of calculation, and will not be calculated using the effective rate
method of calculation or any other basis that gives effect to the principle of
deemed reinvestment of interest.
SECTION 2.15 INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that the
Administrative Agent shall have determined (which determination shall be
reasonably exercised and shall, absent manifest error, be final, conclusive and
binding upon all parties) that on any date for determining the LIBOR Rate for
any Interest Period, by reason of any changes affecting the London interbank
LIBOR market, or any Lender's position in such market, adequate and fair means
do not exist for ascertaining the applicable interest rate on the basis provided
for in the definition of LIBOR Rate, then, and in any such event, the
Administrative Agent shall forthwith give notice (by telephone confirmed in
writing) to the Borrowers and to the Lenders of such determination. Until the
Administrative Agent notifies the Borrowers that the circumstances giving rise
to the suspension described herein no longer exist, the obligations of the
Lenders to make LIBOR Loans shall be immediately suspended, any Borrowing of
LIBOR Loans that is requested (by continuation, conversion or otherwise) shall
instead be made as a Borrowing of ABR Loans, and any outstanding LIBOR Loan
shall be converted, on the last day of the then current Interest Period
applicable thereto, to an ABR Loan.
SECTION 2.16 ILLEGALITY.
(a) DETERMINATIONS OF ILLEGALITY OF LIBOR LOAN. In the event that any
Lender shall have determined (which determination shall be reasonably exercised
and shall, absent manifest error, be final, conclusive and binding upon all
parties) at any time that the making or continuance of any LIBOR Loan has become
unlawful as a result of compliance by such Lender in good faith with any
applicable law, governmental rule, regulation, guideline or order (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful), then, in any such event, such Lender shall give prompt notice (by
telephone confirmed in writing) to the Borrowers, and the Administrative Agent
of such determination (which notice the Administrative Agent shall promptly
transmit to the other Lenders).
(b) LIBOR LOANS SUSPENDED. Upon the giving of the notice to the Borrowers
referred to in Section 2.16(a) above, (1) the Borrowers' right to request (by
continuation, conversion or otherwise) and such Lender's obligation to make
LIBOR Loans shall be immediately suspended, and thereafter, any requested
Borrowing of LIBOR Loans shall, as to such Lender only, be deemed to be a
request for a ABR Loan, and (2) if the affected LIBOR Loan or Loans are then
outstanding, the Borrowers shall
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immediately, or if permitted by applicable law, no later than the date permitted
thereby, upon at least one Business Day's written notice to the Administrative
Agent and the affected Lender, convert each such LIBOR Loan into an ABR Loan,
provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this subsection.
(c) DETERMINATIONS OF ILLEGALITY OF DOLLAR DENOMINATED LOANS. In the event
that any Canadian Revolving Lender shall have determined (which determination
shall be reasonably exercised and shall, absent manifest error, be final,
conclusive and binding upon all parties) at any time that the making or
continuance of any Dollar Denominated Loan has become unlawful as a result of
compliance by such Canadian Revolving Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, such Canadian Revolving Lender shall give
prompt notice (by telephone confirmed in writing) to the Canadian Borrowers and
to the Canadian Administrative Agent (with a simultaneous copy to the
Administrative Agent) of such determination (which notice the Canadian
Administrative Agent shall promptly transmit to the other Canadian Revolving
Lenders).
(d) DOLLAR DENOMINATED LOAN SUSPENDED. Upon the giving of the notice to the
Canadian Borrowers referred to in Section 2.16(c) above, (1) the Canadian
Borrowers' right to request (by continuation, conversion or otherwise) and such
Canadian Revolving Lender's obligation to make Dollar Denominated Loans shall be
immediately suspended, and thereafter, any requested Borrowing of Dollar
Denominated Loans shall, as to such Canadian Revolving Lender only, be deemed to
be a request for a Canadian Revolving Credit Loan denominated in C$, and (2) if
the affected Dollar Denominated Loan or Loans are then outstanding, the Canadian
Borrowers shall immediately, or if permitted by applicable law, no later than
the date permitted thereby, upon at least one Business Day's written notice to
the Canadian Administrative Agent (with a simultaneous copy to the
Administrative Agent) and the affected Canadian Revolving Lender, convert each
such Dollar Denominated Loan which is a LIBOR Loan into a B/A Loan and convert
each such Dollar Denominated Loan which is an ABR Loan into a Canadian Prime
Loan, provided that if more than one Lender is affected at any time, then all
affected Lenders must be treated the same pursuant to this subsection.
SECTION 2.17 INCREASED COSTS.
(a) LIBOR REGULATIONS, ETC. If, by reason of (x) the introduction of or any
change (including any change by way of imposition or increase of reserve
requirements) in or in the interpretation of any law or regulation, or (y) the
compliance with any guideline or request issued by any central bank or other
governmental authority or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having the force of
law):
(1) any Lender (or its applicable Lending Office) shall be subject to any
Tax or other charge with respect to its LIBOR Loans or its obligation
to make LIBOR Loans, or shall change the basis of taxation of payments
to any Lender of the principal of or interest on its LIBOR Loans or
its obligation to make LIBOR Loans (except for changes in the rate of
tax on the overall net income or gross receipts of such Lender or its
applicable Lending Office imposed by the jurisdiction in which such
Lender's principal executive office or applicable Lending Office is
located); or
(2) any reserve (including any imposed by the Board), special deposit or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or its applicable
Lending Office shall be imposed or deemed applicable or any other
condition affecting its LIBOR Loans or its obligations to make LIBOR
Loans shall be
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imposed on any Lender or its applicable Lending Office or the
interbank LIBOR market or the secondary certificate of deposit market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Loans or there shall
be a reduction in the amount received or receivable by such Lender or its
applicable Lending Office, then the applicable Borrowers shall from time to
time, upon written notice from and demand by such Lender (with a copy of such
notice and demand to the Administrative Agent), pay to such Lender on demand
additional amounts determined by such Lender to be sufficient to indemnify such
Lender against such increased cost. A certificate as to the amount of such
increased cost and the calculation thereof, submitted to the Borrowers and the
Administrative Agent by such Lender, shall, except for manifest error, be final,
conclusive and binding for all purposes.
(b) COSTS. If any Lender shall advise the Administrative Agent that at any
time, because of the circumstances described in clauses (x) or (y) in Section
2.17(a) or any other circumstances affecting such Lender or the London interbank
market or such Lender's position in such market, the LIBOR Rate, as determined
in good faith by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lender of funding its LIBOR Loans, then, and in any
such event:
(1) the Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to the Borrowers and to the Lenders of such
advice; and
(2) the Borrowers' right to request a Borrowing of LIBOR Loans from such
Lender and such Lender's obligation to make LIBOR Loans shall be
immediately suspended, any such Borrowing of LIBOR Loans that is
requested (by continuation, conversion or otherwise) shall, as to such
Lender only, be deemed to be a request for an ABR Loan, and any such
outstanding LIBOR Loan from such Lender shall be converted, on the
last day of the then current Interest Period applicable thereto, to an
ABR Loan.
(c) CAPITAL ADEQUACY. If (1) the introduction of or any change after the
date hereof (including any change by way of imposition or increase of reserve
requirements) in or in the interpretation of any law or regulation, or (2) the
compliance with any guideline or request issued by any central bank or other
Governmental Authority or other authority exercising control over banks or
financial institutions generally (whether or not having the force of law),
affects or would affect the amount of capital required to be maintained by any
Lender or any corporation controlling such Lender, and the amount of such
capital is increased by or based upon the existence of such Lender's Loans or
such Lender's Commitment hereunder and other commitments to lend or of the
Letters of Credit (or similar contingent obligations), then, upon written
request therefor by such Lender (with a copy of such request to the
Administrative Agent), the applicable Borrowers shall pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for the increased cost of such additional capital in
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's Loans or such Lender's commitment to lend hereunder or to the issuance
or maintenance of the Letters of Credit. A certificate as to such amounts and
the calculation thereof, submitted to the Borrowers and the Administrative Agent
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(d) ISSUING BANK. The rights and benefits of the Lenders under this Section
2.17 shall also apply to any Issuing Bank in its capacity as such.
SECTION 2.18 CHANGE OF LENDING OFFICE. Each Lender agrees that it will use
reasonable efforts to designate an alternate Lending Office with respect to any
of its LIBOR Loans affected by the matters or circumstances described in Section
2.15, Section 2.16 or Section 2.17 to reduce the liability of
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the Borrowers or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as determined by such Lender
in its sole discretion.
SECTION 2.19 FUNDING LOSSES. Each of the Borrowers shall compensate each
Lender, upon its written request (which request shall set forth the basis for
requesting such amounts and shall, absent manifest error, be final, conclusive
and binding upon all of the parties hereto), for all losses, expenses and
liabilities (including any interest paid by such Lender to lenders of funds
borrowed by it to make or carry its LIBOR Loans to such Borrowers), which the
Lender may sustain: (a) if for any reason (other than a default by such Lender)
a Borrowing of LIBOR Loans does not occur on the date specified therefor in a
Borrowing Request (whether or not withdrawn), including a failure by the
applicable Borrowers to fulfill on the date of any Borrowing of LIBOR Loans the
conditions set forth in Article 3, or to convert or continue any LIBOR Loan
hereunder after irrevocable notice of such conversion or continuation has been
given pursuant to Section 2.12; (b) if any payment, prepayment or conversion of
any of its LIBOR Loans required or permitted by any other provision of this
Agreement or otherwise, or any assignment of a LIBOR Loan pursuant to Section
2.23, in each case is made or deemed made on a date which is not the last day of
the Interest Period applicable thereto; or (c) if, for any reason, any of the
Borrowers defaults in its obligation to repay its LIBOR Loans or B/A Loans as
and when due and payable (at the due date thereof, whether at scheduled
maturity, by acceleration, irrevocable notice of prepayment or otherwise).
SECTION 2.20 SHARING OF PAYMENTS, ETC.
(a) If any US Revolving Lender shall obtain any payment or reduction
(including any amounts received as adequate protection of a deposit treated as
cash collateral under the Bankruptcy Code) of any obligations of the US
Borrowers hereunder (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share of payments or
reductions on account of such obligations obtained by all the US Revolving
Lenders, such US Revolving Lender shall forthwith notify each of the other US
Revolving Lenders and the Administrative Agent of such receipt, and purchase
from the other US Revolving Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing US Revolving Lender
to share the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them; provided that, if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing US
Revolving Lender or additional costs are incurred, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery or such
additional costs, but without interest. The US Borrowers agree that any US
Revolving Lender so purchasing a participation from another US Revolving Lender
pursuant to this Section 2.20 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such US Revolving Lender were the direct
creditor of the US Borrowers in the amount of such participation.
(b) If any Canadian Revolving Lender shall obtain any payment or reduction
of any obligation of the Canadian Borrowers hereunder (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share of payments or reductions on account of such
obligations obtained by all the Canadian Revolving Lenders, such Canadian
Revolving Lender shall forthwith notify each of the other Canadian Revolving
Lenders and the Canadian Administrative Agent (with a simultaneous copy to the
Administrative Agent) of such receipt, and purchase from the other Canadian
Revolving Lenders such participations in the affected obligations as shall be
necessary to cause such purchasing Canadian Revolving Lender to share the excess
payment or reduction, net of costs incurred in connection therewith, ratably
with each of them; provided that, if all or any portion of such excess payment
or reduction is thereafter recovered from such purchasing Canadian Revolving
Lender or additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional costs,
but without interest. The Canadian Borrowers agree that any Canadian Revolving
Lender so purchasing a participation from another Canadian Revolving Lender
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pursuant to this Section 2.20 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Canadian Revolving Lender were the
direct creditor of the Canadian Borrowers in the amount of such participation.
SECTION 2.21 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by or on account of any
obligation of any of the Borrowers hereunder shall be made free and clear of and
without deduction or withholding for any Indemnified Taxes or Other Taxes;
provided, that, if any of the Borrowers shall be required to deduct, withhold,
pay or be assessed any Indemnified Taxes or Other Taxes in respect of such
payments, or any Indemnitee that receives any payments shall be required to
deduct, withhold, pay or be assessed any Indemnified Taxes or Other Taxes in
respect of such payments, then (1) the amounts payable by the Borrowers shall be
increased so that, after taking into account all assessments or making all
required deductions, withholdings, payments and assessments (including
deductions, withholdings, payments and assessments applicable to additional sums
payable under this Section 2.21), each Indemnitee receives and retains an amount
equal to the sum it would have received had no such deduction, withholding,
payment or assessment been made (and for greater certainty, it is intended by
the parties hereto that the applicable Borrowers be responsible to pay such
additional amounts to the Applicable Funding Bank in respect of both (i) the
withholding obligations of the applicable Borrowers on payments to the
Applicable Funding Bank and (ii) the withholding obligations of the Applicable
Funding Bank on payments to a Risk Participant), and (2) the applicable
Borrowers shall make all such deductions, withholdings, payments and assessments
and such Borrowers shall pay the full amount deducted, withheld, paid or
assessed to the relevant Governmental Authority in accordance with applicable
law.
(b) OTHER TAXES. In addition, the applicable Borrowers shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) INDEMNIFICATION. Each of the Borrowers shall indemnify each Indemnitee
on an After Tax Basis, upon written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by or on behalf of such Indemnitee on or
with respect to or otherwise deducted, withheld or remitted from any payment by
or on account of any obligation of such Borrowers hereunder or any payment by a
Funding Bank to a Risk Participant hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.21) and any penalties, interest or additions thereto and all
reasonable costs and expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the applicable Borrowers by any
Indemnitee, on its own behalf or on behalf of any Lender or an Issuing Bank,
shall be conclusive absent manifest error.
(d) RECEIPTS. As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by any of the Borrowers to a Governmental Authority, such
Borrowers shall deliver to the Administrative Agent or the Canadian
Administrative Agent, as applicable, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) TAX CERTIFICATIONS. Each Lender shall provide to the Borrowers, on the
Closing Date, all such certifications and other confirmations as may be
reasonably required by the Borrowers to evidence or confirm that (i) in the case
of a Canadian Lender, such Canadian Lender is an Exempt Canadian Lender, or (ii)
in the case of a US Lender, such US Lender is an Exempt US Lender. Each Risk
Participant shall provide to the Funding Banks and the Borrowers, on the Closing
Date, a Risk Participant Certification.
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(f) RISK PARTICIPATIONS. In the event that any Funding Bank (or any Agent
on its behalf) shall be required to deduct, withhold, pay or be assessed any
Indemnified Taxes or Other Taxes in respect of any payments to a Risk
Participant hereunder, then (1) the Borrowers shall pay to such Funding Bank (or
the applicable Agent) an amount such that, after taking into account all
assessments or making all required deductions, withholdings, payments and
assessments (including deductions, withholdings, payments and assessments
applicable to additional sums payable under this Section 2.21), each Risk
Participant receives and retains an amount equal to the sum it would have
received had no such deduction, withholding, payment or assessment been made,
and (2) the Funding Bank (or the applicable Agent on its behalf) shall make (but
only to the extent it actually received such amount from the applicable
Borrowers) all such deductions, withholdings, payments and assessments and shall
pay the full amount deducted, withheld, paid or assessed to the relevant
Governmental Authority in accordance with applicable law.
(g) SURVIVAL. Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.21
shall survive the payment in full of principal and interest hereunder.
SECTION 2.22 PRO RATA TREATMENT. Subject to Section 2.4(d), each Borrowing
of US Revolving Credit Loans shall be made, and each payment on account of any
commitment fee in respect of the US Revolving Credit Commitments hereunder and
any reduction of the US Revolving Credit Commitments of the US Revolving Lenders
shall be allocated, by the Administrative Agent pro rata according to the
relevant US Revolving Credit Percentages of the US Revolving Lenders. Subject to
Section 2.4(d) and Section 2.11, each payment (including each prepayment) on
account of principal of and interest on any US Revolving Credit Loans shall be
allocated by the Administrative Agent pro rata according to the respective
outstanding principal amounts of such US Revolving Credit Loans then held by the
US Revolving Lenders. Subject to Section 2.4(d), each Borrowing of Canadian
Revolving Credit Loans shall be made, and each payment on account of any
commitment fee in respect of the Canadian Revolving Credit Commitments
hereunder, and any reduction of the Canadian Revolving Credit Commitments of the
Canadian Revolving Lenders shall be allocated, by the Canadian Administrative
Agent pro rata according to the relevant Canadian Revolving Credit Percentages
of the Canadian Revolving Lenders. Subject to Section 2.4(d) and Section 2.11,
each payment (including each prepayment) on account of principal of and interest
on any Canadian Revolving Credit Loans shall be allocated by the Canadian
Administrative Agent pro rata according to the respective outstanding principal
amounts of such Canadian Revolving Credit Loans then held by the Canadian
Revolving Lenders.
SECTION 2.23 REPLACEMENT OF LENDERS. If (i) any Lender does not make a
LIBOR Loan pursuant to Section 2.16 or fails to designate an alternate Lending
Office pursuant to Section 2.18 or (ii) if any Lender seeks indemnification for
increased costs pursuant to Section 2.17, or is owed additional amounts pursuant
to Section 2.21, which increased costs or additional amounts are not being
incurred generally by the other Lenders, then the Borrowers shall have the
right, if no Default then exists, to replace such Lender with another bank or
financial institution with the consent of the Administrative Agent and the
Canadian Administrative Agent, which consent shall not be unreasonably withheld,
provided that (a) the obligations of the Borrowers owing hereunder or under any
other Financing Document to the Lender being replaced (including such increased
costs and additional amounts) that are not being assigned to the replacement
lender shall be paid in full to the Lender being replaced concurrently with such
replacement, (b) the replacement lender shall execute an Assignment and
Acceptance pursuant to which it shall become a party hereto as provided in
Section 10.7 and such assignment shall be effectuated in accordance with Section
10.7, (c) upon compliance with the provisions for assignment provided in Section
10.7 and the payment of amounts referred to in clause (a), the replacement
lender shall constitute a "Lender" hereunder and the Lender being so replaced
shall no longer constitute a "Lender" hereunder, and (d) any such replacement
shall be effected within 90 days after the Borrowers became aware of
circumstances giving rise to such right of replacement.
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SECTION 2.24 BANK CHARGES; ADVANCES OF REVOLVING CREDIT LOANS TO SATISFY
LENDER INDEBTEDNESS. The Borrowers shall pay to the Agents, on demand, any and
all fees, costs or expenses which either Agent pays to a bank or other similar
institution (including any fees paid by an Agent to any Participant) arising out
of or in connection with (i) the forwarding to a Borrower or any other Person on
behalf of a Borrower by an Agent of proceeds of Loans made to a Borrower
pursuant to this Agreement and (ii) the depositing for collection by an Agent of
any check or other payment item received or delivered to an Agent on account of
the Lender Indebtedness (collectively, "BANK CHARGES"). Each of the Borrowers
and each Lender hereby agrees with the Administrative Agent, the Canadian
Administrative Agent and each other Lender that, on each date on which Bank
Charges are due hereunder or on which any other payment of interest, fees,
principal or other amounts are due and owing hereunder or under any of the other
Financing Documents, the Administrative Agent or the Canadian Administrative
Agent may, in its sole discretion, but without any obligation to do so and
subject to all other terms of this Agreement (other than any request for
delivery of a Borrowing Request hereunder), cause a Borrowing of (a) US
Swingline Loans to the extent of the remaining US Swingline Availability, and
thereafter such Borrowings shall be US Revolving Credit Loans which shall be ABR
Loans, or (b) Dollar Denominated Canadian Swingline Loans to the extent of the
remaining Canadian Swingline Availability, and thereafter such Borrowings shall
be Dollar Denominated Canadian Revolving Credit Loans which shall be ABR Loans,
each to be made on such date in an amount sufficient to satisfy in full all such
Bank Charges and payments of interest, fees or other amounts which are then due
hereunder (including principal, interest, and other amounts owing in respect of
Agent Advances), and the Administrative Agent or the Canadian Administrative
Agent may disburse the proceeds of such Borrowing to each other Agent and Lender
to satisfy all such obligations and liabilities which are then due. The
Administrative Agent or the Canadian Administrative Agent, as applicable, shall
notify the Borrowers promptly after any Borrowing is made in accordance with
this Section 2.24; provided that any failure by the Administrative Agent or the
Canadian Administrative Agent to provide any such notice shall not relieve the
applicable Borrowers from their obligation to repay any such Borrowing in
accordance with this Agreement.
SECTION 2.25 JOINT AND SEVERAL LIABILITY OF US BORROWERS AND OF CANADIAN
BORROWERS; RIGHTS OF CONTRIBUTION AMONG US BORROWERS.
(a) Each US Borrower states and acknowledges that: (i) pursuant to this
Agreement, the US Borrowers desire to utilize their borrowing potential on a
consolidated basis to the same extent possible as if they were merged into a
single corporate entity; (ii) each US Borrower has determined that it will
benefit specifically and materially from the advances of credit contemplated by
this Agreement; (iii) it is both a condition precedent to the obligations of the
Agents, the Lenders, the Risk Participants and the Issuing Banks hereunder and a
desire of each US Borrower that each US Borrower execute and deliver this
Agreement; and (iv) each US Borrower has requested and bargained for the
structure and terms of and security for the advances contemplated by this
Agreement.
(b) Each US Borrower hereby irrevocably and unconditionally: (i) agrees
that it is jointly and severally liable to the Administrative Agent, the
Lenders, the Risk Participants and each Issuing Bank for the full and prompt
payment and performance of the obligations of each US Borrower under this
Agreement and each other Financing Document that may specify that a particular
US Borrower is responsible for a given payment or performance, including without
limitation, all US Lender Indebtedness; (ii) agrees to fully and promptly
perform all of its obligations hereunder with respect to each advance of credit
hereunder as if such advance had been made directly to it; and (iii) agrees as a
primary obligation to indemnify each Agent, each Lender, each Risk Participant
and each Issuing Bank, on demand, for and against any loss incurred by any
Agent, any Issuing Bank, any Risk Participant or any Lender as a result of any
of the obligations of any US Borrower (the "SUBJECT US BORROWER") being or
becoming void, voidable, unenforceable or ineffective for any reason whatsoever,
whether or not known to the subject US Borrower or any Person, the amount of
such loss being the amount which the Agents (or
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any of them), any Issuing Bank, the Risk Participants (or any of them) or the
Lenders (or any of them) would otherwise have been entitled to recover from the
subject Borrower.
(c) It is the intent of each US Borrower that the indebtedness, obligations
and liabilities hereunder of no one of them be subject to challenge on any basis
related to any federal or state law dealing with fraudulent conveyances or any
other law related to transfers for less than fair or reasonably equivalent
value. Accordingly, as of the date hereof, the liability of each US Borrower
under this Section 2.25, together with all of its other liabilities to all
Persons as of the date hereof and as of any other date on which a transfer is
deemed to occur by virtue of this Agreement, calculated in amount sufficient to
pay its probable net liabilities on its existing indebtedness as the same become
absolute and matured ("DATED LIABILITIES") is and is to be, less than the amount
of the aggregate of a fair valuation of its property as of such corresponding
date ("DATED ASSETS"). To this end, each US Borrower under this Section 2.25 (i)
grants to and recognizes in each other US Borrower ratably, rights of
subrogation and contribution in the amount, if any, by which the Dated Assets of
such US Borrower, but for the aggregate rights of subrogation and contribution
in its favor recognized herein, would exceed the Dated Liabilities of such US
Borrower, and (ii) acknowledges receipt of and recognizes its right to
subrogation and contribution ratably from the other US Borrowers in the amount,
if any, by which the Dated Liabilities of such US Borrower, but for the
aggregate of subrogation and contribution in its favor recognized herein, would
exceed the Dated Assets of such US Borrower under this Section 2.25. In
recognizing the value of the Dated Assets and the Dated Liabilities, it is
understood that each US Borrower will recognize, to at least the same extent of
their aggregate recognition of liabilities hereunder, their rights to
subrogation and contribution hereunder. It is a material objective of this
Section 2.25 that each US Borrower recognizes rights to subrogation and
contribution rather than be deemed to be insolvent (or in contemplation thereof)
by reason of an arbitrary interpretation of its joint and several obligations
hereunder. Notwithstanding anything in this Section 2.25 to the contrary, the
obligations of GUSAP, PASUG and each of the US Operating Borrowers for any Loans
made directly to such Borrowers shall not be affected by this Section 2.25.
(d) Each Canadian Borrower states and acknowledges that: (i) pursuant to
this Agreement, the Canadian Borrowers desire to utilize their borrowing
potential on a consolidated basis to the same extent possible as if they were
merged into a single corporate entity; (ii) each Canadian Borrower has
determined that it will benefit specifically and materially from the advances of
credit contemplated by this Agreement; (iii) it is both a condition precedent to
the obligations of the Agents, the Lenders, the Risk Participants and the
Issuing Banks hereunder and a desire of each Canadian Borrower that each
Canadian Borrower execute and deliver this Agreement; and (iv) each Canadian
Borrower has requested and bargained for the structure and terms of and security
for the advances contemplated by this Agreement.
(e) Each Canadian Borrower hereby irrevocably and unconditionally: (i)
agrees that it is jointly and severally liable to the Canadian Administrative
Agent, the Lenders, the Risk Participants and each Issuing Bank for the full and
prompt payment and performance of the obligations of each Canadian Borrower
under this Agreement and each other Financing Document that may specify that a
particular Canadian Borrower is responsible for a given payment or performance,
including, without limitation, all Canadian Lender Indebtedness; (ii) agrees to
fully and promptly perform all of its obligations hereunder with respect to each
advance of credit hereunder as if such advance has been made directly to it; and
(iii) agrees as a primary obligation to indemnify each Agent, each Lender, each
Risk Participant and each Issuing Bank, on demand, for and against any loss
incurred by any Agent, any Issuing Bank, any Risk Participant or any Lender as a
result of any of the obligations of any Canadian Borrower (the "SUBJECT CANADIAN
BORROWER") being or becoming void, voidable, unenforceable or ineffective for
any reason whatsoever whether or not known to the subject Canadian Borrower or
any Person, the amount of such loss being the amount which the Agents (or any of
them), any Issuing Bank, the Risk Participants (or any
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of them) or the Lenders (or any of them) would otherwise have been entitled to
recover from the subject Canadian Borrower.
(f) The foregoing provisions are in addition to and not limitation of the
terms of any Guarantees executed by any Credit Party.
SECTION 2.26 PARTICIPATIONS IN US SWINGLINE LOANS. The US Swingline Lender
may by written notice given to the Administrative Agent (such notice to be given
not less frequently than weekly if US Swingline Loans are outstanding) not later
than 10:00 a.m. (Eastern Time), on any Business Day require the US Revolving
Lenders to acquire participations within one (1) Business Day in all or a
portion of the US Swingline Loans outstanding. Such notice to the Administrative
Agent shall specify the aggregate amount of US Swingline Loans in which the US
Revolving Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each US Revolving Lender,
specifying in such notice such US Revolving Lender's Revolving Credit Percentage
of such US Swingline Loans. Each US Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above in this
paragraph, to pay to the Administrative Agent, for account of the US Swingline
Lender, such US Revolving Lender's US Revolving Credit Percentage of such US
Swingline Loans. Each US Revolving Lender acknowledges and agrees that its
obligation to acquire participations in US Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Aggregate US Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each US Revolving Lender shall comply with
its obligation under this Section 2.26 by wire transfer of immediately available
funds, in the same manner as provided in Section 2.4(a) with respect to Loans
made by such US Revolving Lender (and Section 2.4(a) shall apply, mutatis
mutandis, to the payment obligations of the US Revolving Lenders), and the
Administrative Agent shall promptly pay to the US Swingline Lender the amounts
so received by it from the US Revolving Lenders. The Administrative Agent shall
notify the US Borrowers of any participations in any US Swingline Loan acquired
pursuant to this Section 2.26, and thereafter payments in respect of such US
Swingline Loan shall be made to the Administrative Agent and not to the US
Swingline Lender. Any amounts received by the US Swingline Lender from the US
Borrowers (or any other party on behalf of the US Borrowers) in respect of a US
Swingline Loan after receipt by the US Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative
Agent and, thereafter, shall be promptly remitted by the Administrative Agent to
the US Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the US Swingline Lender, as their interests may appear. The
purchase of participations in a US Swingline Loan pursuant to this Section 2.26
shall not relieve the US Borrowers of any default in the payment thereof.
SECTION 2.27 PARTICIPATIONS IN CANADIAN SWINGLINE LOANS. The Canadian
Swingline Lender may by written notice given to the Canadian Administrative
Agent (such notice to be given not less frequently than weekly if Canadian
Swingline Loans are outstanding) not later than 10:00 a.m. (Toronto Time), on
any Business Day require the Canadian Revolving Lenders to acquire
participations within one (1) Business Day in all or a portion of the Canadian
Swingline Loans outstanding. Such notice to the Canadian Administrative Agent
shall specify the aggregate amount of Canadian Swingline Loans in which the
Canadian Revolving Lenders will participate. Promptly upon receipt of such
notice, the Canadian Administrative Agent will give notice thereof to each
Canadian Revolving Lender, specifying in such notice such Canadian Revolving
Lender's Revolving Credit Percentage of such Canadian Swingline Loans. Each
Canadian Revolving Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above in this paragraph, to pay to the Canadian
Administrative Agent, for account of the Canadian Swingline Lender, such
Canadian Revolving Lender's Canadian Revolving Credit Percentage of such
Canadian Swingline Loans. Each Canadian Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Canadian Swingline Loans
pursuant to this
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paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Aggregate Canadian Revolving Credit
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Canadian Revolving Lender
shall comply with its obligation under this Section 2.27 by wire transfer of
immediately available funds, in the same manner as provided in Section 2.4(a)
with respect to Loans made by such Canadian Revolving Lender (and Section 2.4(a)
shall apply, mutatis mutandis, to the payment obligations of the Canadian
Revolving Lenders), and the Canadian Administrative Agent shall promptly pay to
the Canadian Swingline Lender the amounts so received by it from the Canadian
Revolving Lenders. The Canadian Administrative Agent shall notify the Canadian
Borrowers of any participations in any Canadian Swingline Loan acquired pursuant
to this Section 2.27, and thereafter payments in respect of such Canadian
Swingline Loan shall be made to the Canadian Administrative Agent and not to the
Canadian Swingline Lender. Any amounts received by the Canadian Swingline Lender
from the Canadian Borrowers (or any other party on behalf of the Canadian
Borrowers) in respect of a Canadian Swingline Loan after receipt by the Canadian
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Canadian Administrative Agent and, thereafter, shall be
promptly remitted by the Canadian Administrative Agent to the Canadian Revolving
Lenders that shall have made their payments pursuant to this paragraph and to
the Canadian Swingline Lender, as their interests may appear. The purchase of
participations in a Canadian Swingline Loan pursuant to this Section 2.27 shall
not relieve the Canadian Borrowers of any default in the payment thereof.
SECTION 2.28 AGENT ADVANCES; PARTICIPATIONS.
(a) Subject to the limitations set forth below, the Administrative Agent
and the Canadian Administrative Agent are authorized by the Borrowers and the
Revolving Lenders, from time to time in the sole discretion of the
Administrative Agent or the Canadian Administrative Agent, as applicable (A)
during the continuance of a Default, or (B) at any time that any of the other
conditions precedent set forth in Article 3 have not been satisfied, to make ABR
Loans to the US Borrowers or Canadian Prime Loans to the Canadian Borrowers on
behalf of the applicable Revolving Lenders in an aggregate amount outstanding at
any time not to exceed 10% of the US Borrowing Base or the Canadian Borrowing
Base, as applicable, which the Administrative Agent or the Canadian
Administrative Agent, as applicable, in its reasonable judgment, deems necessary
or desirable (1) to preserve or protect the Collateral, or any portion thereof,
(2) to enhance the likelihood of, or maximize the amount of, repayment of the
Loans and other Lender Indebtedness, or (3) to pay any other amount chargeable
to the Borrowers pursuant to the terms of this Agreement, including costs, fees
and expenses as described in Section 10.4 (any of such advances are herein
referred to as "AGENT ADVANCES"); provided, that (x) Agent Advances will not at
any time cause the Aggregate Canadian Revolving Credit Exposure to exceed the
Canadian Revolving Credit Commitments or the Aggregate US Revolving Credit
Exposure to exceed the US Revolving Credit Commitments; (y) notwithstanding any
other provision of this Agreement, the Required Lenders may at any time revoke
this authorization to make Agent Advances, and (z) no Agent Advance shall remain
outstanding for more than 60 days from the date of advance. Any such revocation
must be in writing and shall become effective prospectively upon receipt thereof
by the Administrative Agent or the Canadian Administrative Agent, as applicable.
Any Agent Advances shall be secured by the Liens in and to the Collateral
granted to the Administrative Agent or the Canadian Administrative Agent, as
applicable, and shall constitute Lender Indebtedness hereunder.
(b) The Administrative Agent may by written notice given to the US
Revolving Lenders not later than 2:00 p.m. (Eastern Time) on any Business Day
require the US Revolving Lenders to acquire participations within one (1)
Business Day in all or a portion of US Agent Advances then outstanding. Such
notice shall specify the aggregate amount of US Agent Advances in which the US
Revolving Lenders will participate and each US Revolving Lender's Revolving
Credit Percentage of such US Agent
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Advances. Each US Revolving Lender hereby absolutely and unconditionally agrees,
upon receipt of notice as provided above in this Section 2.28(b), to pay to the
Administrative Agent such US Revolving Lender's US Revolving Credit Percentage
of such US Agent Advances. Each US Revolving Lender acknowledges and agrees that
its obligation to acquire participations in US Agent Advances pursuant to this
Section 2.28(b) is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Aggregate US Revolving Credit Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each US Revolving Lender shall comply with
its obligation under this Section 2.28(b) by wire transfer of immediately
available funds, in the same manner as provided in Section 2.4(a) with respect
to Loans made by such US Revolving Lender (and Section 2.4(a) shall apply,
mutatis mutandis, to the payment obligations of the US Revolving Lenders). Any
amounts received by the Administrative Agent from any US Borrower (or other
party on behalf of any US Borrower) in respect of US Agent Advances after
receipt by the Administrative Agent of the proceeds of a sale of participations
therein shall be promptly remitted to the US Revolving Lenders that shall have
made their payments pursuant to this Section 2.28(b), as their interests may
appear. The purchase of participations in a US Agent Advance pursuant to this
Section 2.28(b) shall not relieve the US Borrowers of any default in the payment
thereof.
(c) The Canadian Administrative Agent may by written notice given to the
Canadian Revolving Lenders not later than 2:00 p.m. (Toronto Time) on any
Business Day require the Canadian Revolving Lenders to acquire participations
within one (1) Business Day in all or a portion of Canadian Agent Advances then
outstanding. Such notice shall specify the aggregate amount of Canadian Agent
Advances in which the Canadian Revolving Lenders will participate and each
Canadian Revolving Lender's Revolving Credit Percentage of such Canadian Agent
Advances. Each Canadian Revolving Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above in this Section 2.28(c), to pay
to the Canadian Administrative Agent such Canadian Revolving Lender's Canadian
Revolving Credit Percentage of such Canadian Agent Advances. Each Canadian
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Canadian Agent Advances pursuant to this Section 2.28(c) is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Aggregate Canadian Revolving Credit Commitments, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Canadian Revolving Lender shall comply with its
obligation under this Section 2.28(c) by wire transfer of immediately available
funds, in the same manner as provided in Section 2.4(a) with respect to Loans
made by such Canadian Revolving Lender (and Section 2.4(a) shall apply, mutatis
mutandis, to the payment obligations of the Canadian Revolving Lenders). Any
amounts received by the Canadian Administrative Agent from any Canadian Borrower
(or other party on behalf of the Canadian Borrower) in respect of Canadian Agent
Advances after receipt by the Canadian Administrative Agent of the proceeds of a
sale of participations therein shall be promptly remitted to the Canadian
Revolving Lenders that shall have made their payments pursuant to this Section
2.28(c), as their interests may appear. The purchase of participations in a
Canadian Agent Advance pursuant to this Section 2.28(c) shall not relieve the
Canadian Borrowers of any default in the payment thereof.
SECTION 2.29 NEW APPRAISALS. The Borrowers may request, not more frequently
than twice in any Fiscal Year, that the Administrative Agent obtain a new
appraisal of the inventory of the Borrowers to determine whether it is
appropriate to adjust the appraised net recovery values used to calculate the
Canadian Borrowing Base and the US Borrowing Base. Any such appraisals shall be
at the sole cost and expense of the Borrowers. The appraiser which will perform
any such appraisal will be selected by the Administrative Agent from a list of
three appraisal firms (each of which shall have recognized expertise in the
asset-based lending appraisal business, and will not have provided services to
the Borrowers at any time during the previous two years) to be provided by the
Borrowers to the Administrative Agent,
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provided that if none of the appraisal firms provided by the Borrowers are
acceptable to the Administrative Agent, the appraiser shall be the same
appraiser that conducted the appraisal of inventory most recently delivered to
the Administrative Agent. After receiving a written report confirming the
results of any such appraisal, the Administrative Agent shall make, within three
weeks of receipt of such written report, any adjustment which the Administrative
Agent, in its reasonable discretion, considers appropriate as a result of such
appraisal.
SECTION 2.30 FINANCING STRUCTURE AVAILABILITY.
(a) Notwithstanding any other provision of this Agreement, but subject to
Section 2.30(b), if a GUSAP Borrowing Termination Event occurs, the
Administrative Agent, at its discretion or at the direction of the Required
Lenders, shall have the right, by notice to the Borrowers, to require any or all
of the following changes to the credit facility detailed in this Agreement:
(i) that neither GUSAP nor PASUG shall have any right to issue any
Borrowing Requests in respect of US Revolving Credit Loans or US Swingline
Loans, and that all Borrowing Requests in respect of US Revolving Credit
Loans and US Swingline Loans shall be made solely by one or more US
Operating Borrowers (but otherwise in compliance with Section 2.2(a) and
Section 2.2(b) regarding the requirements related to the issuance of
Borrowing Requests and the limitations thereon);
(ii) that each Borrowing of US Revolving Credit Loans shall be made
available directly to the US Operating Borrower to which such US Revolving
Credit Loans relate and shall be disbursed directly to such US Operating
Borrower by depositing the amount of each Borrowing directly to the
Disbursement Account of such US Operating Borrower;
(iii) that all Borrowings of US Swingline Loans shall be made
available (i) either directly to the US Operating Borrower to which such US
Swingline Loans relate, in which case such Borrowings shall be disbursed
directly to the applicable US Operating Borrower by depositing the amount
of such Borrowing directly to the Disbursement Account of the applicable US
Operating Borrower, or (ii) by disbursement to the Ameristeel US Operating
Account;
(iv) that all payments to be made by any US Borrower under this
Agreement or any other Financing Document (whether in the nature of
interest, principal, fees or otherwise) to the Agents, an Issuing Bank or
the Lenders, with respect to any Borrowing made available to a US Borrower
after the occurrence of a GUSAP Borrowing Termination Event and the
Administrative Agent's exercise of its rights under this Section 2.30(a)
(other than a Borrowing made available to a US Borrower prior to the
occurrence of a GUSAP Termination Event for the sole purpose of repaying a
Borrowing made available to GUSAP prior to the occurrence of such GUSAP
Borrowing Termination Event), shall be made by the applicable US Operating
Borrower directly to the applicable recipient, or shall be made by
Ameristeel US out of amounts on deposit in the Ameristeel US Operating
Account if permitted under Section 7.2(i), with the amounts on deposit
therein being applied in accordance with Section 2.11(f) or Section
2.11(h), as applicable, at the end of each Business Day;
(v) that the first reference to "PASUG" in the definition of
"PERMITTED CASH APPLICATION" shall be deemed to be a reference to
"Ameristeel US" and that all other references to "PASUG" in such definition
shall be deemed to include a reference to "Ameristeel US";
(vi) that all references in this Agreement to "PASUG Operating
Account" and "PASUG Payment Account" shall be deemed to be references to
the "Ameristeel US Operating
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Account" and the "Ameristeel US Payment Account", respectively; and in
respect of all US Swingline Loans deposited into the Ameristeel US
Operating Account relating to any US Operating Borrower other than
Ameristeel US, that Ameristeel US shall agree to make a Permitted Cash
Application to or for the benefit of such Applicable US Operating Borrower;
(vii) that clause (b) in the definition of "US OPERATING BORROWER
ADVANCE" shall not be applicable;
(vii) that the definition of "US OPERATING BORROWER NET ADVANCE
AMOUNT" shall be deemed amended (i) by removing the reference to PASUG in
paragraph (a) thereof, (ii) by removing clause (b) thereof, and (iii) by
adding to the end of paragraph (c) thereof a new sentence, to read as
follows:
"For Ameristeel US only, the amounts on deposit in the Ameristeel
US Operating Account shall be excluded from the determination of
the US Operating Borrower Net Advance Amount for such US
Operating Borrower."
(viii) that the proceeds of US Swingline Loans made in respect of any
US Operating Borrower other than Ameristeel US may be deposited into the
Ameristeel US Operating Account, so long as Ameristeel makes a Permitted
Cash Application out of such proceeds; provided, however, if the amounts on
deposit in the Ameristeel US Operating Account, other than (A) amounts
arising out of the collection of accounts owing to Ameristeel US, and (B)
amounts arising out of the proceeds of any US Loans made to Ameristeel US
based upon the Borrowing Base of Ameristeel US, at any time exceed
$3,000,000, Ameristeel shall promptly either transfer such excess amounts
to the US Operating Borrower(s) to which such excess amounts relate, or
prepay US Swingline Loans or US Revolving Credit Loans owing by the US
Operating Borrower(s) to which such excess amounts relate; and
(ix) such other procedures as the Administrative Agent or the Required
Lenders shall determine, acting reasonably, to ensure the proper
administration of US Revolving Credit Loans and US Swingline Loans.
(b) In the event that, as of any Business Day following the Administrative
Agent's exercise of any of its rights under Section 2.30(a) with respect to a
GUSAP Borrowing Termination Event, (i) Excess Availability is greater than
$125,000,000 on such Business Day, and has been greater than $125,000,000 for a
period of at least 90 consecutive days ending on such Business Day, (ii) the US
Borrowers deliver projections satisfactory to the Administrative Agent, acting
reasonably, demonstrating that Excess Availability shall continue to be at least
$125,000,000 for the 3 consecutive month period commencing on such Business Day,
(iii) no Default has occurred and is continuing on such Business Day, and (iv)
the US Borrowers have delivered to the Administrative Agent five (5) Business
Days notice certifying as to the satisfaction of each of the foregoing
conditions, then the foregoing changes shall cease to apply (but will be
applicable if Excess Availability is less than $125,000,000 at any later date);
provided, however, that no such notice may be delivered by the US Borrowers to
the Administrative Agent later than the 180th day following the date on which
the Administrative Agent first exercises its rights under Section 2.30(a) with
respect to a GUSAP Borrowing Termination Event.
(c) Notwithstanding any other provision of this Agreement, if a GUSAP
Termination Event occurs, the Administrative Agent, at its discretion or at the
direction of the Required Lenders, shall have the right, by notice to the
Borrowers, to require any or all of the changes described in Section 2.30(a)
above and, without limitation of Section 2.30(a)(iv) above, to require that (i)
all payments to be made by
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any US Borrower under this Agreement or any other Financing Document (whether in
the nature of interest, principal, fees or otherwise) to the Agents, an Issuing
Bank or the Lenders shall be made by the applicable US Operating Borrower
directly to the applicable recipient, or shall be made by Ameristeel US out of
amounts on deposit in the Ameristeel US Operating Account if permitted under
Section 7.2(i), with the amounts on deposit therein being applied in accordance
with Section 2.11(f) or Section 2.11(h), as applicable, at the end of each
Business Day, and (ii) all amounts collected in the US Lockboxes and transferred
to the US Blocked Account shall in turn be transferred to the Ameristeel US
Operating Account.
(d) The Borrowers acknowledge that, notwithstanding anything contained in
this Agreement to the contrary and whether or not any GUSAP Borrowing
Termination Event or GUSAP Termination Event has occurred, (i) no US Operating
Borrower will repay any intercompany advances owing by such US Operating
Borrower to PASUG unless such US Operating Borrower would be Solvent after
giving effect to such repayment and such repayment is permitted by, and not
avoidable under, any provision of applicable law, (ii) PASUG will not make any
distribution to NSULC unless PASUG would be Solvent after giving effect to such
distribution and such distribution is permitted by, and not avoidable under, any
provision of applicable law, and (iii) NSULC will not make any distribution to
GUSAP unless such distribution is permitted by, and not avoidable under, any
provision of applicable law.
ARTICLE 3
CONDITIONS TO BORROWINGS
SECTION 3.1 CLOSING. The obligation of each Lender to make Loans and each
Issuing Bank to issue Letters of Credit hereunder is subject to (x) receipt by
the Administrative Agent or the Canadian Administrative Agent, as applicable, of
the following items which are to be delivered, in form and substance
satisfactory to each Lender and Risk Participant, with a copy (except for the
Notes) for each Lender and Risk Participant, and (y) the satisfaction of the
following conditions prior to or simultaneously with the making of the initial
Loan and the issuance of such initial Letter of Credit hereunder:
(a) CREDIT AGREEMENT. Either (i) a counterpart of this Agreement signed on
behalf of each party hereto, or (ii) written evidence satisfactory to the
Administrative Agent and the Canadian Administrative Agent (which may include
facsimile transmission of a signed signature page of this Agreement) that each
such party has signed a counterpart of this Agreement.
(b) US REVOLVING CREDIT NOTES. A duly completed and executed US Revolving
Credit Note for each US Revolving Lender requesting same, dated as of the
Closing Date, and payable to the order of such US Revolving Lender.
(c) CANADIAN REVOLVING CREDIT NOTES. A duly completed and executed Canadian
Revolving Credit Note (C$) and a duly completed and executed Canadian Revolving
Credit Note (US$) for each Canadian Revolving Lender requesting same, dated as
of the Closing Date, and payable to the order of such Canadian Revolving Lender.
(d) RESOLUTIONS AND INCUMBENCY CERTIFICATES.
(1) certified copies of the resolutions of the Board of Directors (or
applicable governing authority) of each Credit Party dated as of
the Closing Date and approving, as appropriate, the Loans, the
Notes, this Agreement and the other Financing Documents, and all
other documents, if any, to which each Credit
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Party is a party and evidencing corporate authorization with
respect to such documents;
(2) a certificate of the Secretary or an Assistant Secretary of each
Credit Party dated as of the Closing Date and certifying (A) the
name, title and true signature of each officer of such Person
authorized to execute the Notes, this Agreement, Applications and
the other Financing Documents to which it is a party, (B) the
name, title and true signature of each officer of such Person
authorized to provide the certifications required pursuant to
this Agreement including, but not limited to, certifications
required pursuant to Section 6.10, Borrowing Requests, and
Borrowing Base Reports, and (C) that attached thereto is a true
and complete copy of the certificate of incorporation,
certificate of organization, certificate of formation or
certificate of limited partnership, as applicable, certified by
the appropriate Governmental Authority of the jurisdiction of
incorporation or organization of each Credit Party and the
bylaws, limited partnership agreement, operating agreement or
limited liability company agreement, as applicable, of each
Credit Party, each as amended to date, recent good standing
certificates and/or certificates of existence for each Credit
Party and certificates of foreign qualification for each Credit
Party in such jurisdictions as the Administrative Agent shall
require; and
(3) certain letter agreements certifying to the names and signatures
of officers of the Borrowers authorized to issue Borrowing
Requests, issue Borrowing Base Reports, initiate wire transfers
and take other actions with respect to the credit facilities
contemplated hereby.
(e) OPINIONS OF COUNSEL.
(1) An opinion of Torys LLP, US counsel to the Credit Parties dated
as of the Closing Date addressed to the Agents, the Issuing
Banks, the Lenders and the Risk Participants and covering such
matters as the Agents, the Issuing Banks, the Lenders or the Risk
Participants may reasonably request;
(2) An opinion of Torys LLP, Canadian counsel to the Credit Parties
dated as of the Closing Date addressed to the Agents, the Issuing
Banks, the Lenders and the Risk Participants and covering such
matters as the Agents, the Issuing Banks, the Lenders or the Risk
Participants may reasonably request; and
(3) Opinions of counsel to the Canadian Credit Parties and the US
Credit Parties, respectively, in each jurisdiction in which
inventory comprising part of the Collateral is located, dated as
of the Closing Date, addressed to the Agents, the Issuing Banks,
the Lenders and the Risk Participants and covering such matters
as the Agents, the Issuing Banks, the Lenders or the Risk
Participants may reasonably request.
(f) SECURITY INSTRUMENTS.
(1) duly executed copies of the Security Agreement Confirmations, the
Guarantees, the Securities Pledge Agreement Confirmations and
such other Security Instruments as may be necessary to confirm,
affirm, continue, preserve, perfect and protect the Liens of the
Administrative Agent and the Canadian
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Administrative Agent in the Collateral in all jurisdictions
designated by the Agents;
(2) the original stock certificates listed in Schedule 3.1(f) and
duly executed corresponding stock powers to perfect the
Administrative Agent's and the Canadian Administrative Agent's
Liens in the equity securities represented by such stock
certificates; and
(3) all Property in which the Administrative Agent or the Canadian
Administrative Agent shall, at such time, be entitled to have a
Lien pursuant to this Agreement or any other Financing Document
(including, without limitation, all promissory notes which
evidence any intercompany advances permitted to be made by the
Credit Parties hereunder) shall have been physically delivered to
the possession of the Administrative Agent or the Canadian
Administrative Agent to the extent that such possession is
necessary or desirable for the purpose of perfecting, or ensuring
priority of, the Administrative Agent's or the Canadian
Administrative Agent's Liens in such Collateral.
(g) REGULATORY APPROVAL; CONSENTS; WAIVERS. The Administrative Agent and
the Canadian Administrative Agent shall be satisfied that all material
authorizations required in connection with the Transactions contemplated hereby
have been obtained and are in full force and effect (including all approvals
listed in Schedule 3.1(g)), and that all consents and waivers required to
consummate the Transactions have been obtained, to the extent that consummation
of the Transactions would otherwise be restricted or prohibited under the terms
of any material contract to which any Credit Party is a party, or by which it is
bound, in each case without the imposition of any burdensome provisions.
(h) INDEBTEDNESS. The transactions contemplated in this Agreement and the
other Financing Documents shall not have caused any event or condition to occur
which has resulted, or which will result, in any material Indebtedness becoming
due prior to its scheduled maturity or that permits (with or without the giving
of notice, the lapse of time, or both) the holder or holders of any material
Indebtedness or any trustee or agent on its or their behalf to cause any
material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity, or which will
result in the creation of any Liens under any Indebtedness.
(i) INSURANCE. The Administrative Agent and the Canadian Administrative
Agent shall have received a certificate of insurance coverage, dated not more
than 30 days prior to the Closing Date, evidencing that the Credit Parties are
carrying insurance in accordance with Section 6.5 hereof, along with the loss
payable endorsements contemplated by Section 6.5.
(j) FINANCIAL STATEMENTS AND PROJECTIONS. The Financial Statements and the
other financial information and Projections of the Borrowers shall not be
changed as of the Closing Date in such a way as to cause or result in a Material
Adverse Effect.
(k) BORROWING BASE REPORT. A Borrowing Base Report prepared as of the
Closing Date and setting forth the US Borrowing Base for each US Borrower and
the Canadian Borrowing Base to be in effect under this Agreement on the Closing
Date and, after giving effect to the consummation of the transactions
contemplated herein, and the initial Loans hereunder, the Excess Availability
shall not be less than $550,000,000. For these purposes, all Existing
Indebtedness not permitted to remain outstanding under Section 7.2 must be
repaid, all debts and obligations shall be current, and all accounts payable
shall be handled in the normal course of the Borrowers' business consistent with
their past practices.
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(l) CERTIFICATES OF CHIEF FINANCIAL OFFICER; PERFECTION CERTIFICATE. (i) A
certificate of the Chief Financial Officer of the Company dated as of the
Closing Date and certifying, before and after the making of the initial Loans
and the issuance of the initial Letters of Credit, that (1) each Borrower and
each Credit Party is Solvent, (2) no Default then, or thereafter would, exist,
(3) each of the conditions to Closing have been satisfied, and (4) each
representation and warranty of the Borrowers contained herein and in the other
Financing Documents is true and correct in all material respects, (ii) a
certificate of the Chief Financial Officer of the Company certifying that the
Company and each of its Subsidiaries are in compliance with the minimum funding
requirements with respect to each Plan maintained by the Company and/or its
Subsidiaries, or to which the Company or any of its Subsidiaries is a member,
and that the Company and its Subsidiaries are in compliance in all respect with
Section 7.9 of this Agreement, and (iii) a Perfection Certificate for each of
the Credit Parties dated as of the Closing Date.
(m) CORPORATE STRUCTURE. Each Lender and Risk Participant shall be
satisfied in its sole judgment with the corporate, capital, legal and management
structure and Tax liabilities of each Borrower and the flow of funds among the
Borrowers and the other Credit Parties.
(n) NO MATERIAL ADVERSE EFFECT. The Administrative Agent, the Canadian
Administrative Agent, the Lenders and the Risk Participants shall be satisfied
that since December 31, 2004, there has been no event, condition or occurrence
that is not disclosed to the Lenders in this Agreement and that has had or could
reasonably be expected to have a Material Adverse Effect.
(o) FEES AND EXPENSES. Payment and/or reimbursement of (1) the
Administrative Agent's, the Canadian Administrative Agent's, and Banc of America
Securities LLC's respective counsel's reasonable fees and expenses (limited to
one US outside counsel and one Canadian counsel (and its local counsel in
provinces where Collateral may be located)) incurred through the Closing Date,
to the extent invoiced, and (2) any fees or expenses required to be paid
pursuant to the Fee Letter or this Agreement.
(p) DOCUMENTATION. (i) Each Financing Document and all other documents
required hereunder and (ii) all other documents, instruments and agreements as
may be required by the Administrative Agent or the Canadian Administrative
Agent, acting reasonably, shall have been duly authorized, executed and
delivered by each of the parties thereto, all in form and substance satisfactory
to the Administrative Agent, acting reasonably, and all of the Security
Instruments shall have been registered in all offices in which, in the opinion
of the Administrative Agent or its counsel, registration is necessary or of
advantage to preserve the priority of the Liens intended to be created thereby,
and duplicate copies of such Security Instruments bearing or accompanied by
appropriate endorsements or certificates of registration shall have been
delivered to the Administrative Agent. The Administrative Agent shall have
received and be satisfied with the results of all personal property, pending
litigation, judgment, bankruptcy, bulk sale, tax, execution and other searches
with respect to the Credit Parties in all jurisdictions selected by the
Administrative Agent and its counsel.
(q) INTERCOMPANY SECURITY DOCUMENTS. The Intercompany Security Agreement
and Intercompany Lien Subordination Agreement shall have been duly authorized,
executed and delivered by each party thereto, all in form and substance
satisfactory to the Administrative Agent, acting reasonably, and all filings
shall have been made in all offices in which, in the opinion of the
Administrative Agent or its counsel, filing is necessary to perfect the Liens
intended to be created by the Intercompany Security Agreement.
(r) BLOCKED ACCOUNTS; CONTROL AGREEMENTS. Blocked Accounts and other
appropriate account arrangements shall have been established for each Credit
Party (including GUSAP, NSULC and PASUG) and in respect of each bank account
maintained by a Credit Party in the United States or Canada.
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(s) CASH MANAGEMENT ARRANGEMENTS. The Administrative Agent and the Canadian
Administrative Agent shall be satisfied in their sole discretion with all
material aspects of the Borrowers' actual and agreed upon cash management
arrangements.
SECTION 3.2 CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT. The
obligation of each Lender to make each Loan hereunder (including the initial
Loan) and the obligation of each Issuing Bank to issue each Letter of Credit
(including the initial Letter of Credit) is subject to fulfillment of the
following conditions immediately prior to or contemporaneously with each such
Loan or issuance (provided, however, that the following conditions are not
conditions to (i) each Revolving Lender participating in or reimbursing either
of the Agents for such Revolving Lender's US Revolving Credit Percentage or
Canadian Revolving Credit Percentage, as applicable, of any Agent Advance made
in accordance with Section 2.28 hereof or any Swingline Loan made in accordance
with Section 2.26 hereof, or (ii) each Risk Participant participating in or
reimbursing the Applicable Funding Bank for such Risk Participant's Revolving
Credit Loan Risk Participation of any Revolving Credit Loan made in accordance
with Article 2 hereof):
(a) REPRESENTATIONS AND WARRANTIES. All representations and warranties
contained herein and in the other Financing Documents executed and delivered on
or after the Closing Date shall be true and correct in all respects with the
same effect as though such representations and warranties had been made on and
as of the date of such Loan (unless such representation and warranty is
expressly limited to an earlier date).
(b) NO DEFAULT. There shall not exist a Default hereunder.
(c) MAXIMUM AVAILABLE AMOUNT. The Aggregate US Revolving Credit Exposure
and the Aggregate Canadian Revolving Credit Exposure, after giving effect to
such proposed Loan or Letter of Credit, shall not exceed the US Maximum
Available Amount and Canadian Maximum Available Amount, respectively, then in
effect.
(d) BORROWING REQUESTS. The applicable Borrowers shall have provided
Advance Notice of the requested Borrowing by completion, execution and delivery
of a Borrowing Request.
ARTICLE 4
SECURITY
SECTION 4.1 SECURITY GRANTED BY US CREDIT PARTIES. The Lender Indebtedness
is and shall continue to be secured by perfected, first priority Liens in and
encumbering the following property and assets of each US Credit Party, in each
case whether now owned or hereafter acquired and wherever located: (a) all
accounts (including, without limitation, inter-company loans), (b) all inventory
(including "rolls inventory") and other goods held for sale or lease, (c) all
chattel paper, documents of title (but excluding documents of title in respect
of assets which do not constitute inventory) and instruments, (d) all general
intangibles (including, without limitation, intellectual property rights), (e)
all bank accounts (including, without limitation, collateral proceeds accounts
and investment accounts), (f) all books and records, and (g) all capital stock
in its Subsidiaries. In furtherance of the foregoing, the US Borrowers shall
execute and deliver, and shall cause each of the other US Credit Parties to
execute and deliver, the US Guaranty, the US Security Agreement Confirmation and
the US Securities Pledge Agreement Confirmation and shall hereafter execute and
deliver (and cause each other US Credit Party and any other appropriate Person
to execute and deliver) to the Administrative Agent, promptly upon request by
the Administrative Agent, such Security Instruments and other documents,
instruments, agreements and certificates, as the Administrative Agent, acting
reasonably, shall determine to be necessary or appropriate to create, evidence,
perfect, ensure the priority of and protect the Liens contemplated by this
Section 4.1.
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SECTION 4.2 SECURITY GRANTED BY CANADIAN CREDIT PARTIES. The Lender
Indebtedness is and shall continue to be secured by perfected, first priority
Liens in and encumbering the following property and assets of each Canadian
Credit Party, in each case whether now owned or hereafter acquired and wherever
located: (a) all accounts receivable (including, without limitation,
inter-company loans), (b) all inventory (including "rolls inventory") and other
goods, (c) all chattel paper, documents of title (but excluding documents of
title in respect of assets which do not constitute inventory) and instruments,
(d) all intangibles (including, without limitation, intellectual property
rights), (e) all bank accounts (including, without limitation, collateral
proceeds accounts and investment accounts), (f) all books and records, and (g)
all capital stock in its Subsidiaries. In furtherance of the foregoing, the
Canadian Borrowers shall execute and deliver (and shall cause each of the other
Canadian Credit Parties to execute and deliver) the Canadian Guarantee, the
Canadian Security Agreement Confirmation and the Canadian Securities Pledge
Agreement Confirmation and shall hereafter execute and deliver (cause each other
Canadian Credit Party and any other appropriate Person to execute and deliver)
to the Canadian Administrative Agent, promptly upon request by the Canadian
Administrative Agent, such Security Instruments and other documents,
instruments, agreements and certificates, as the Canadian Administrative Agent,
acting reasonably, shall determine to be necessary or appropriate to create,
evidence, perfect, ensure the priority of and protect the Liens contemplated by
this Section 4.2.
SECTION 4.3 ESTABLISHMENT OF US LOCKBOXES. On or prior to the date hereof,
the US Borrowers have established one or more US Lockboxes to be operated by the
US Lockbox Banks and, within 60 days after the Closing Date (or, with the
Administrative Agent's consent, within 90 days after the Closing Date), the US
Borrowers shall have entered into a Lockbox Agreement with respect to each US
Lockbox with the Administrative Agent and each applicable US Lockbox Bank. At
all times from and after the date hereof, each US Credit Party shall direct all
account debtors with respect to such US Credit Party's accounts and all other
Persons obligated to make payments of any type to any US Credit Party to direct
such payments to the US Lockboxes. All invoices issued by any US Credit Party
after the date hereof shall contain a notation requiring the accounts evidenced
by such invoice to be paid to a US Lockbox. Subject to Section 4.5, the US
Lockbox Banks, for the benefit of the US Borrowers, shall have sole and
exclusive access to the US Lockboxes. All monies, checks and other drafts
received in the US Lockboxes shall be endorsed in accordance with the applicable
Lockbox Agreements and deposited by the US Lockbox Banks each Business Day in
the US Blocked Account.
SECTION 4.4 ESTABLISHMENT OF CANADIAN LOCKBOXES. On or prior to the date
hereof, the Canadian Borrowers have established one or more Canadian Lockboxes
to be operated by the Canadian Lockbox Banks and, within 60 days after the
Closing Date (or, with the Canadian Administrative Agent's consent, within 90
days after the Closing Date), the Canadian Borrowers shall have entered into a
Lockbox Agreement with respect to each Canadian Lockbox with the Canadian
Administrative Agent and each applicable Canadian Lockbox Bank. At all times
during a Canadian Lockbox Direction Period, each Canadian Credit Party shall
direct all account debtors with respect to such Canadian Credit Party's accounts
and all other Persons obligated to make payments of any type to any Canadian
Credit Party to direct such payments to the Canadian Lockbox. All invoices
issued by any Canadian Credit Party during a Canadian Lockbox Direction Period
shall contain a notation requiring the accounts evidenced by such invoice to be
paid to the Canadian Lockbox. Subject to Section 4.6, the Canadian Lockbox Bank,
for the benefit of the Canadian Borrowers, shall have sole and exclusive access
to the Canadian Lockbox. All monies, checks and other drafts received in the
Canadian Lockbox shall be endorsed in accordance with the Lockbox Agreement and
deposited by Canadian Lockbox Bank each Business Day in the Canadian Blocked
Account.
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SECTION 4.5 ESTABLISHMENT OF US BLOCKED ACCOUNT; DOMINION AND CONTROL;
OPERATION OF US BLOCKED ACCOUNT AND PASUG OPERATING ACCOUNT.
(a) So long as this Agreement is in effect, the US Borrowers acknowledge
and agree that all funds received by any US Credit Party from any source have
been and shall continue to be deposited in a US Blocked Account not later than
one Business Day following the date of receipt. Such deposit shall be made in
the exact form received subject only to any necessary endorsements. The US
Borrowers hereby acknowledge and agree (i) that each US Credit Party has granted
a Lien on and pledged to Administrative Agent, as additional collateral security
for the US Lender Indebtedness, each US Blocked Account and all funds on deposit
therein and "control" has been established (or will be established as set forth
in Section 4.3 hereof) with respect to such US Blocked Account as defined in
Section 9-104 of the UCC, and (ii) no US Credit Party may unilaterally terminate
a US Blocked Account.
(b) Except as otherwise provided in this Agreement, the US Borrowers shall
have exclusive power and authority to withdraw funds from time to time on
deposit in the US Blocked Accounts and to otherwise exercise dominion and
control over the US Blocked Accounts and the funds on deposit therein. Upon the
occurrence of a Block Event, then immediately upon written notice from the
Administrative Agent (i) all power and authority of withdrawal of funds from the
US Blocked Accounts of the US Borrowers or any other Credit Party shall cease
and (ii) the US Blocked Accounts and all funds on deposit therein shall be
subject to the absolute dominion and control of the Administrative Agent. Upon
five (5) Business Days written notice by the US Borrowers, dominion and control
of the US Blocked Accounts and the power of withdrawal of funds on deposit
therein shall revert to the US Borrowers if, at the time of such written notice,
(i) Excess Availability is greater than $65,000,000 on such Business Day, and
has been greater than $65,000,000 for a period of at least 90 consecutive days
ending on such Business Day, (ii) the US Borrowers deliver projections
satisfactory to the Administrative Agent, acting reasonably, demonstrating that
Excess Availability shall continue to be at least $65,000,000 for the 3
consecutive month period commencing on such Business Day, and (iii) no Default
has occurred and is continuing on such Business Day.
(c) Each of the US Borrowers and the Administrative Agent agree that each
US Blocked Account is a "deposit account" within the meaning of 9-102(a)(29) of
the UCC. The parties hereby further agree that, notwithstanding anything to the
contrary contained herein, each US Blocked Account shall be subject to "control"
sufficient to enable the Administrative Agent to have a perfected, first
priority Lien in such US Blocked Account, as and to the extent required by the
UCC.
(d) At all times the US Borrowers shall ensure that each US Blocked Account
and the PASUG Operating Account are operated in such a manner as to permit the
Administrative Agent or any other Person from time to time to identify which
deposits thereto and amounts on deposit therein are attributable to the
applicable US Operating Borrower for its account and shall provide evidence of
such attribution to the Administrative Agent promptly upon request.
SECTION 4.6 ESTABLISHMENT OF CANADIAN BLOCKED ACCOUNT; DOMINION AND
CONTROL.
(a) So long as this Agreement is in effect, the Canadian Borrowers
acknowledge and agree that all funds received by any Canadian Credit Party from
any source (including without limitation items of payment and other amounts
deposited in a Canadian Lockbox) have been and shall continue to be deposited in
a Canadian Blocked Account not later than one Business Day following the date of
receipt. The Canadian Borrowers hereby acknowledge and agree that (i) each
Canadian Credit Party has granted a Lien on and pledged to the Canadian
Administrative Agent as additional collateral security for the Canadian Lender
Indebtedness, the Canadian Blocked Account and all funds on deposit therein, and
(ii) no Canadian Credit Party may unilaterally terminate a Canadian Blocked
Account.
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(b) Except as otherwise provided in this Agreement, the Canadian Borrowers
shall have exclusive power and authority to withdraw funds from time to time on
deposit in the Canadian Blocked Accounts and to otherwise exercise dominion and
control over the Canadian Blocked Accounts and the funds on deposit therein.
Upon the occurrence of a Block Event, then (i) all power and authority of
withdrawal of funds from the Canadian Blocked Accounts of the Canadian Borrowers
or any other Credit Party shall cease and (ii) the Canadian Blocked Accounts and
all funds on deposit therein shall be subject to the absolute dominion and
control of the Canadian Administrative Agent. Upon five (5) Business Days
written notice by the Canadian Borrowers, dominion and control of the Canadian
Blocked Accounts and the power of withdrawal of funds on deposit therein shall
revert to the Canadian Borrowers if, at the time of such written notice, (i)
Excess Availability is greater than $65,000,000 on such Business Day, and has
been greater than $65,000,000 for a period of at least 90 consecutive days
ending on such Business Day, (ii) the Canadian Borrowers deliver projections
satisfactory to the Canadian Administrative Agent, acting reasonably,
demonstrating that Excess Availability shall continue to be at least $65,000,000
for the 3 consecutive month period commencing on such Business Day, and (iii) no
Default has occurred and is continuing on such Business Day.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
In order to induce the Agents, the Lenders and the Risk Participants to
enter into this Agreement, each Borrower hereby represents and warrants to each
Agent, each Lender and each Risk Participant that each statement set forth in
this Article 5 is true and correct on the date hereof (other than
representations and warranties that, by their terms, refer to a specific date,
in which case as of such specific date) and will be true and correct on the date
each Borrowing and each Letter of Credit is requested hereunder and on the date
each Borrowing is disbursed and each Letter of Credit is issued hereunder. Each
such representation and warranty shall survive the execution and delivery of
this Agreement and any Borrowing or issuance of any Letter of Credit hereunder
and shall not be qualified or limited by any investigation undertaken by any
Agent, any Lender or any Risk Participant or any actual or constructive
knowledge any Agent, any Lender or any Risk Participant may have or be charged
with indicating that any such representation or warranty is inaccurate or
incomplete in any respect.
SECTION 5.1 CORPORATE EXISTENCE. Each Credit Party is duly organized,
validly existing and in good standing under the laws of the jurisdictions in
which it is organized and is duly licensed or qualified to transact business and
in good standing in all jurisdictions wherein the Property owned or the business
transacted by it makes such qualification necessary, except where the failure to
be so licensed or qualified could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.2 CORPORATE POWER AND AUTHORIZATION. Each Borrower is authorized
and empowered to create and issue the Notes; each Credit Party is duly
authorized and empowered to execute, deliver and perform the Financing
Documents, including this Agreement, to which it is a party; and all corporate,
partnership or other action on any Credit Party's part requisite for the due
creation and issuance of the Notes and for the due execution, delivery and
performance of the Financing Documents, including this Agreement, to which the
Credit Parties (or any of them) are parties has been duly and effectively taken.
SECTION 5.3 BINDING OBLIGATIONS. This Agreement does, and the Notes and
other Financing Documents to which any Credit Party is a party will, when issued
and delivered under this Agreement, constitute legal, valid and binding
obligations of each Credit Party that is a party thereto, and will be
enforceable against such Credit Party in accordance with their respective terms
(except that enforcement may be subject to any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
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generally affecting the enforcement of creditors' rights and subject to the
availability of equitable remedies).
SECTION 5.4 NO LEGAL BAR OR RESULTANT LIEN. The execution, delivery and
performance of the Notes and the other Financing Documents, including this
Agreement, to which the Credit Parties (or any of them) are parties do not
violate or create a default under any provisions of the articles or certificate
of incorporation, bylaws, partnership agreement or other organizational
documents of any Credit Party, or any material contract, agreement, instrument
or Governmental Requirement to which any Credit Party is subject (including,
without limitation, the 144A Indenture), or result in the creation or imposition
of any Lien upon any Properties of any Credit Party.
SECTION 5.5 NO CONSENT. Each Credit Party's execution, delivery and
performance of the Notes and the other Financing Documents, including this
Agreement, to which such Credit Party (or any of them) is a party, and the
consummation of the Transactions contemplated herein do not require notice to or
filing or registration with, or the authorization, consent or approval of or
other action by any other Person, including, but not limited to, any
Governmental Authority.
SECTION 5.6 FINANCIAL INFORMATION.
(a) FINANCIAL STATEMENTS. The Financial Statements and the Current
Information were prepared in accordance with GAAP (subject, in the case of
unaudited statements, to normal year-end adjustments and the absence of
footnotes) and fairly present in all material respects the consolidated and
consolidating financial condition and results of operations of the Company and
its Subsidiaries as of the dates and for the periods reflected therein.
(b) PROJECTIONS. The Projections set forth the Company's good faith
estimate as of the date hereof of the Company's and its Subsidiaries'
consolidated and consolidating financial condition and results of operations as
of the dates and for the periods covered thereby. The Projections were prepared
in good faith on the basis of the assumptions stated therein, which assumptions
were believed by management of the Company to be reasonable at the time made and
which the Company continues to believe are reasonable on the date hereof.
(c) NO MATERIAL ADVERSE EFFECT. Since December 31, 2004, there has been no
event, condition or occurrence that has had or could reasonably be expected to
have a Material Adverse Effect.
SECTION 5.7 LITIGATION. Except as set forth in Schedule 5.7, there is no
action, suit, claim, grievance or proceeding, or any governmental investigation
or any arbitration proceeding, in each case pending (including any unsatisfied
settlement, judgment decree or order) or, to the knowledge of any Borrower,
threatened against any Credit Party or any Property of any Credit Party before
any court or arbitrator or any Governmental Authority, or pursuant to any
collective bargaining agreement, which (a) challenges the validity of this
Agreement, any Note, any Application, any Security Instrument or any of the
other Financing Documents or (b) could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.8 USE OF PROCEEDS; DISTRIBUTION OF PROCEEDS. The Canadian
Borrowers will use the proceeds of the Canadian Loans only to refinance certain
existing indebtedness of the Canadian Borrowers, to support working capital
requirements of the Canadian Borrowers and for other general corporate purposes
not prohibited hereunder. Subject to Section 2.4(b) and 2.30, GUSAP will use all
proceeds of all US Revolving Loans to acquire Equity of NSULC or to make a
capital contribution to NSULC (each, a "NSULC EQUITY INJECTION"), following
which (i) the proceeds of any NSULC Equity Injection shall be used by NSULC
solely to acquire Equity of PASUG or to make a capital contribution to PASUG
(each, a "PASUG EQUITY INJECTION") and (ii) the proceeds of any PASUG Equity
Injection shall
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be used by PASUG solely to fund inter-company advances to the US Operating
Borrowers (which inter-company advances, if requested by the Administrative
Agent, shall be evidenced by promissory notes) and allocated amongst the US
Operating Borrowers, as applicable, in the same amounts as were allocated by
GUSAP on the applicable Borrowing Request prepared in accordance with Section
2.2(a). Each US Operating Borrower shall use the proceeds of such inter-company
advances to support its own working capital requirements, for US Operating
Borrower Advances to the extent permitted hereunder, and for other general
corporate purposes of such US Operating Borrower not prohibited hereunder.
Subject to Section 2.30, PASUG will use all proceeds of all US Swingline Loans
solely for Permitted Cash Applications to or for the benefit of the Applicable
US Operating Borrowers, who in turn will use such proceeds solely for the
purposes set out in the preceding sentence of this Section 5.8. In the event
that Loans are made directly by the Lenders to any US Operating Borrower
hereunder, such US Operating Borrower shall use the proceeds thereof solely to
support its own working capital requirements, for US Operating Borrower Advances
to the extent permitted hereunder, and for other general corporate purposes of
such US Operating Borrower not prohibited hereunder. The Letters of Credit will
be used only for the purposes provided in Section 2.3.
SECTION 5.9 US EMPLOYEE BENEFITS.
(a) Each US Credit Party and each ERISA Affiliate have complied in all
material respects with all applicable laws regarding each Plan. Each Plan is,
and has been, maintained and administered in substantial compliance with its
terms, applicable collective bargaining agreements, and all applicable laws. No
act, omission or transaction has occurred which could result in an imposition on
any US Credit Party or any ERISA Affiliate (whether directly or indirectly) of
(A) either a civil penalty assessed pursuant to Subsections (c), (i) or (l) of
Section 502 of ERISA or a tax imposed pursuant to Chapter 43 of Subtitle D of
the Code or (B) breach of fiduciary duty liability damages under Section 409 of
ERISA which, in any case, could reasonably be expected to have a Material
Adverse Effect.
(b) There exists no outstanding material liability of any US Credit Party
or any ERISA Affiliate with respect to any Plan that has been terminated. No
material liability to the PBGC (other than for the payment of current premiums
which are not past due) by any US Credit Party or any ERISA Affiliate has been
or is expected by any US Credit Party or any ERISA Affiliate to be incurred with
respect to any Plan. No ERISA Termination Event with respect to any Plan has
occurred or could reasonably be expected to occur.
(c) Except as set forth on Schedule 5.9, full payment when due has been
made of all amounts which any US Credit Party or any ERISA Affiliate is required
under the terms of each Plan or applicable law to have paid as contributions to
such Plan (excluding any non-payment involving an amount that is not material),
and no accumulated funding deficiency (as defined in Section 302 of ERISA and
Section 412 of the Code), whether or not waived, exists with respect to any
Plan.
(d) No Lien as described in Section 412(n) of the Code exists with respect
to any Plan and there has been no failure to make a required contribution to any
Plan which would result in the imposition of a Lien as described in Section
412(n) of the Code to exist.
(e) On the Closing Date, neither any US Credit Party nor any ERISA
Affiliate sponsors, maintains or contributes to any "multiemployer plan" (as
defined in Section 3(37) or 4001(a)(3) of ERISA) nor has incurred or expects to
incur any material liability under Sections 4201 or 4243 of ERISA with respect
to any multiemployer plan.
(f) Neither any US Credit Party nor any ERISA Affiliate is required to
provide security to a Plan pursuant to Section 401(a)(29) of the Code.
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SECTION 5.10 CANADIAN EMPLOYEE BENEFITS.
(a) Except as could not reasonably be expected to have a Material Adverse
Effect, each Canadian Credit Party has complied in all material respects with
all applicable laws regarding each Plan (including, where applicable, the Income
Tax Act (Canada)); and each Plan is, and has been, maintained and administered
in substantial compliance with its terms, applicable collective bargaining
agreements, and all applicable laws (including, where applicable, the Income Tax
Act (Canada)).
(b) There exists no material outstanding liability of any Canadian Credit
Party with respect to any Plan that has been terminated.
(c) Full payment when due has been made of all amounts which any Canadian
Credit Party is required under the terms of each Plan or applicable law to have
paid as contributions to such Plan (excluding any nonpayment involving an amount
that is not material), and except with respect to the Plans set out on Schedule
5.10, no funding deficiency, whether or not waived, resulting from the action or
inaction of any Canadian Credit Party exists with respect to any Plan which is a
registered pension plan.
(d) Each Plan relating to a Canadian Credit Party is funded, on a going
concern basis and a solvency basis, in accordance with its terms, all regulatory
and administrative requirements and applicable law, except to the extent any
failure to do so could not reasonably be expected to have a Material Adverse
Effect. Any assessments owed to the Pension Benefits Guarantee Fund established
under the Pension Benefits Act (Ontario), or other assessments or payments
required under similar legislation in any other jurisdiction, have been paid
when due.
SECTION 5.11 TAXES; GOVERNMENTAL CHARGES. Each Credit Party has filed all
tax returns and reports required by law to be filed and has paid all taxes,
assessments, fees and other governmental charges levied upon any of them or upon
any of their respective Properties or income which are due and payable,
including interest and penalties, except to the extent being diligently
contested in good faith by appropriate proceedings and with respect to which
such Credit Party has provided adequate reserves for the payment thereof if
required in accordance with GAAP.
SECTION 5.12 TITLES, ETC. The Properties of each Credit Party are free and
clear of all Liens except Permitted Liens.
SECTION 5.13 DEFAULTS. On the Closing Date, no Credit Party is in default
nor has any event or circumstance occurred which, but for the passage of time or
the giving of notice, or both, would constitute a default under any material
loan or credit agreement, indenture, mortgage, deed of trust, security agreement
or other instrument or agreement evidencing or pertaining to any Indebtedness of
any Credit Party, or under any material agreement or instrument to which any
Credit Party is a party or by which any Credit Party is bound. No Default
hereunder has occurred and is continuing.
SECTION 5.14 CASUALTIES; TAKING OF PROPERTIES. Neither the business nor the
Properties of any Credit Party has been affected in a manner that has or could
reasonably be expected to have a Material Adverse Effect as a result of any
fire, explosion, earthquake, flood, drought, windstorm, accident, strike or
other labor disturbance, embargo, requisition or taking of Property or
cancellation of contracts, permits or concessions by any domestic or foreign
government or any agency thereof, riot, activities of armed forces or acts of
God or of any public enemy.
SECTION 5.15 COMPLIANCE WITH THE LAW. Except as set forth in Schedule 5.15,
no Credit Party:
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(a) is in violation of any Governmental Requirement; or
(b) has failed to obtain any license, permit, right-of-way, franchise or
other right or governmental authorization necessary to the ownership of any of
their respective Properties or the conduct of their respective business;
which violation or failure could, individually or in the aggregate, reasonably
be expected to have (in the event that such a violation or failure were asserted
by any Person through appropriate action) a Material Adverse Effect.
SECTION 5.16 NO MATERIAL MISSTATEMENTS. This Agreement (including the
Schedules hereto) does not contain any material misstatement of fact or omit to
state a material fact necessary to make the statements contained herein not
misleading; provided, that, except as provided in Section 5.6(b), no
representation or warranty is made with respect to the Projections.
SECTION 5.17 INVESTMENT COMPANY ACT. No Credit Party is an "investment
company" or a company "controlled" by an "investment company," as those terms
are defined in the Investment Company Act of 1940, and no Credit Party is
registered or required to be registered under the Investment Company Act of
1940. The execution and delivery by the Credit Parties of this Agreement and the
other Financing Documents to which they respectively are parties and their
respective performance of the obligations provided for therein, will not result
in a violation of the Investment Company Act of 1940.
SECTION 5.18 MARGIN STOCK; PUBLIC UTILITY HOLDING COMPANY ACT. No Credit
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying Margin Stock (within the meaning of
Regulation T, U or X) and no part of the proceeds of any Loan hereunder will be
used to purchase or carry any Margin Stock in violation of Regulation T, U or X.
No Credit Party 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," or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 5.19 CAPITAL STRUCTURE. Schedule 5.19 hereto accurately reflects,
as of the date hereof, (a) the jurisdiction of incorporation or organization of
each Credit Party, (b) each jurisdiction in which each Credit Party is qualified
to transact business as a foreign corporation, foreign partnership or foreign
limited liability company, (c) the authorized, issued and outstanding Equity of
each Credit Party, including the names of (and number of shares or other Equity
interest held by) the record and beneficial owners of such securities (other
than with respect to the Company). As of the date hereof, except as set forth in
Schedule 5.19 hereto, there are no outstanding shareholder agreements, voting
agreements or other agreements of any nature which in any way restrict or effect
the transfer, pledge or voting of any of the Equity securities of any Credit
Party or subject any of such securities to any put, call, redemption obligation
or similar right or obligation of any nature.
SECTION 5.20 INSURANCE. All policies of fire, liability, workmen's
compensation, casualty, flood, business interruption and other forms of
insurance owned or held by each Credit Party are sufficient for compliance with
all requirements of law and of all material agreements to which each Credit
Party is a party; are valid, outstanding and enforceable policies; provide
adequate insurance coverage which is, to the knowledge of the Borrowers, in at
least such amounts and against at least such risks (but including in any event
public liability) as are usually insured against in the same general area by
companies engaged in the same or a similar business for the assets and
operations of the Credit Parties; and will not in any way be affected by, or
terminate or lapse by reason of, the transactions contemplated by this
Agreement. All such policies are in full force and effect, all premiums with
respect thereto have
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been paid in accordance with their respective terms, and if a notice of
cancellation or termination has been received with respect to any such policy,
the applicable Credit Parties are using reasonable best efforts to replace the
relevant insurance and have no reason to believe that such insurance will not be
replaced. Except as provided on Schedule 5.20 hereto, no Credit Party maintains
any formalized self-insurance program with respect to its material assets or
operations or risks with respect thereto. The certificate of insurance delivered
to the Lenders pursuant to Section 3.1(i) contains an accurate and complete
description of all material policies of insurance owned or held by each Credit
Party on the Closing Date.
SECTION 5.21 ENVIRONMENTAL MATTERS.
(a) ENVIRONMENTAL LAWS, ETC. Except as disclosed in Schedule 5.21 hereto,
neither any Property of any Credit Party nor the operations conducted thereon
violate any applicable order of any court or Governmental Authority or
Environmental Laws, which violation could reasonably be expected to have a
Material Adverse Effect or which could reasonably be expected to result in
remedial obligations having a Material Adverse Effect assuming disclosure to the
applicable Governmental Authority of all relevant facts, conditions and
circumstances, if any, pertaining to the relevant Property.
(b) NO LITIGATION. Except as disclosed in Schedule 5.21 hereto, no Property
of any Credit Party nor the operations currently conducted thereon are subject
to any existing, pending or, to the knowledge of the Company and each Borrower,
threatened action, suit, investigation, inquiry or proceeding by or before any
court or Governmental Authority or to any remedial obligations under
Environmental Laws, which action, suit, investigation, inquiry or proceeding
could reasonably be expected to have a Material Adverse Effect.
(c) NOTICES, PERMITS, ETC. Except as disclosed in Schedule 5.21 hereto, all
notices, permits, licenses or similar authorizations, if any, required to be
obtained or filed by any Credit Party in connection with the operation or use of
any and all Property of the Credit Parties, including but not limited to past or
present treatment, storage, disposal or release of a hazardous substance or
solid waste into the environment, have been duly obtained or filed except for
those notices, permits, licenses or authorizations the failure of which to
obtain could not reasonably be expected to have a Material Adverse Effect
assuming disclosure to the applicable Governmental Authority of all relevant
facts, conditions and circumstances, if any, pertaining to such operations or
use.
(d) HAZARDOUS SUBSTANCES CARRIERS. Except as disclosed in Schedule 5.21
hereto, to the knowledge of the Borrowers, all hazardous substances or solid
waste generated at any and all Property of any Credit Party have in the past
been transported, treated and disposed of only by carriers maintaining valid
permits under applicable Environmental Laws, and only at treatment, storage and
disposal facilities maintaining valid permits under applicable Environmental
Laws, which carriers and facilities have been and are operating in material
compliance with such permits.
(e) HAZARDOUS SUBSTANCES DISPOSAL. Except as disclosed in Schedule 5.21
hereto, each Credit Party has taken all reasonable steps necessary to determine
and has determined that no hazardous substances or solid waste has been disposed
of or otherwise released and there has been no threatened release of any
hazardous substances on or to any Property of any Credit Party except in
material compliance with Environmental Laws or where such disposal, release or
threatened release could not reasonably be expected to have a Material Adverse
Effect.
(f) NO CONTINGENT LIABILITY. Except as disclosed in Schedule 5.21, the
Credit Parties have no contingent liability in connection with any release or
threatened release of any hazardous substance or solid waste into the
environment, other than such contingent liabilities at any one time and from
time to
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time which could not reasonably be expected to exceed $10,000,000 in the
aggregate in excess of the insurance coverage maintained by the Credit Parties
in respect of such risks.
SECTION 5.22 SOLVENCY. Each Credit Party is Solvent, both before and after
giving affect to the transactions contemplated by this Agreement and the
incurrence of all Lender Indebtedness to be incurred in connection therewith.
SECTION 5.23 EMPLOYEE MATTERS. Except as disclosed in Schedule 5.23, there
are no strikes, slowdowns, work stoppages, union organizing campaigns or
representation petitions, unfair labor practices or labor disputes pending or,
to the best knowledge of the Borrowers, threatened against any Credit Party, or
their respective employees, which could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
SECTION 5.24 REAL PROPERTY. Schedule 5.24 hereto accurately reflects, as of
the date hereof, all Real Property in which any Credit Party holds any right,
title or interest, including any leasehold interest. Schedule 5.24 further
accurately reflects, in respect of each parcel of Real Property described
thereon, the name of the Credit Party which is the owner and holder of record
title or leasehold interest thereto, the nature of the interest of the Credit
Parties therein (fee, leasehold or other), and, in the case of any leasehold
interest of Real Property where any Collateral is or may be located, the monthly
rent and the name of the landlord under such lease.
SECTION 5.25 PERFECTION CERTIFICATE; SCHEDULES TO OTHER FINANCING
DOCUMENTS. All information in each Perfection Certificate and all information
set forth in all disclosure schedules to each of the other Financing Documents
is true, correct and complete.
SECTION 5.26 EXISTING INDEBTEDNESS. Schedule 5.26 hereto contains an
accurate and complete list of all Existing Indebtedness of the Credit Parties on
the Closing Date after giving effect to the repayment of any such Indebtedness
to be repaid on the Closing Date, and including, with respect to each such item
of Existing Indebtedness which will remain outstanding after the Closing Date:
(a) the current lender or holder of such Indebtedness, (b) the principal amount
of such Indebtedness on the Closing Date, (c) identifying the material loan
agreements, promissory notes and other documents evidencing, governing or
otherwise pertaining to such Indebtedness, and (d) a summary description of all
property which stands as security for such Indebtedness.
SECTION 5.27 144A INDENTURE. This Agreement shall at all times constitute
the "Senior Secured Credit Agreement" under and as defined in the 144A Indenture
and each of the Liens granted under any Security Instrument or other Financing
Document shall at all times constitute a "Permitted Lien" under and as defined
in the 144A Indenture.
SECTION 5.28 MATERIAL CONTRACTS. No Credit Party is in default under or in
breach of any term or condition of any material contract, nor is any Credit
Party aware of any default under or breach of any term or condition of any
material contract by any other party thereto, in either case where the default
could reasonably be expected to have a Material Adverse Effect.
SECTION 5.29 ACCOUNTS. Other than the accounts specifically permitted by
Section 7.18 hereof, none of the Borrowers maintains any account with any bank
or other depository institution into which any cash or cash equivalents are
deposited or cash or cash equivalents or maintained.
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SECTION 5.30 REPRESENTATIONS WITH RESPECT TO CERTAIN CREDIT PARTIES.
(a) GUSAP's sole business is as set forth in Section 6.11(a). GUSAP does
not own, lease, license or otherwise have the right to use any other Property,
other than as expressly permitted under Section 6.11(a). GUSAP has no
liabilities or obligations to any Person other than as expressly permitted under
Section 6.11(a). GUSAP has sufficient cash available to it to pay its expenses
and obligations as they come due.
(b) NSULC's sole business is as set forth in Section 6.11(b). NSULC does
not own, lease, license or otherwise have the right to use any other Property,
other than as expressly permitted under Section 6.11(b). NSULC has no
liabilities or obligations to any Person other than as expressly permitted under
Section 6.11(b). NSULC has sufficient cash available to it to pay its expenses
and obligations as they come due.
(c) PASUG's sole business is as set forth in Section 6.11(c). PASUG does
not own, lease, license or otherwise have the right to use any other Property,
other than as expressly permitted under Section 6.11(c). PASUG has no
liabilities or obligations to any Person other than as expressly permitted under
Section 6.11(c). PASUG has sufficient cash available to it to pay its expenses
and obligations as they come due.
SECTION 5.31 ANTI-TERRORISM LAWS.
(a) No Borrower nor any of its Affiliates is in violation of any
Anti-Terrorism Law or engages in or conspires to engage in any transaction that
evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.
(b) No Borrower nor any of its Affiliates is any of the following (each a
"BLOCKED PERSON"): (1) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224; (2) a Person owned or
controlled by, or acting for or on behalf of, any Person that is listed in the
annex to, or is otherwise subject to the provisions of, Executive Order No.
13224; (3) a Person or entity with which any bank or other financial institution
is prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law; (4) a Person or entity that commits, threatens or conspires
to commit or supports "terrorism" as defined in Executive Order No. 13224; (5) a
Person or entity that is named as a "specially designated national" on the most
current list published by the US Treasury Department Office of Foreign Asset
Control at its official website or any replacement website or other replacement
official publication of such list; (6) a Person or entity who is affiliated with
a Person or entity listed above; or (7) an agency of the government of, an
organization directly or indirectly controlled by, or a Person resident in, a
country on any official list maintained by the Office of Foreign Assets Control
of the United States Department of Treasury (or any successor thereto).
(c) No Borrower nor any of its Affiliates (1) conducts any business or
engages in making or receiving any contribution of funds, goods or services to
or for the benefit of any Blocked Person, (2) has more than 10% of its assets in
a Blocked Person, (3) deals in, or otherwise engages in any transaction relating
to, any property or interests in property blocked pursuant to Executive Order
No. 13224, or (4) derives more than 10% of its operating income from investments
in or transactions with a Blocked Person.
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ARTICLE 6
AFFIRMATIVE COVENANTS
So long as any Lender has any Commitment hereunder or any Loan remains
unpaid or any Revolving Credit Exposure remains outstanding, each Borrower will
at all times comply with the following covenants.
SECTION 6.1 MAINTENANCE AND COMPLIANCE, ETC. Each Borrower will and will
cause each other Credit Party to (a) observe and comply in all material respects
with all Governmental Requirements and with all of its material contractual
obligations, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect, (b) except as permitted by Section 7.4,
preserve and maintain its corporate existence, and (c) obtain, preserve, renew
and keep in full force and effect any and all rights, licenses, permits,
privileges and franchises material to the conduct of its business, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.2 PAYMENT OF TAXES AND CLAIMS, ETC. Each Borrower will pay, and
cause each other Credit Party to pay, (a) all material taxes, assessments and
governmental charges imposed upon it or upon its Property, and (b) all material
claims (including, but not limited to, claims for labor, materials, supplies or
services) which could reasonably be expected, if unpaid, to become a Lien upon
its Property, unless, in each case, such Lien is a Permitted Lien or the
validity or amount thereof is being contested in good faith by appropriate
action or proceedings and if the Borrowers have made adequate reserves for the
payment thereof if required in accordance with GAAP.
SECTION 6.3 FURTHER ASSURANCES. Each Borrower will and will cause each
other Credit Party to promptly cure upon the reasonable request by the
Administrative Agent any defects in the creation and issuance of the Notes, or
in the execution and delivery of the Financing Documents. Each Borrower at its
expense will, as promptly as practical, execute and deliver to the
Administrative Agent or the applicable Issuing Bank, following reasonable
request, all such other and further documents, agreements and instruments (or
cause any of the other Credit Parties to take such action) in order to carry out
to the Administrative Agent's reasonable satisfaction the transactions
contemplated by the Financing Documents, including this Agreement, or to further
evidence and more fully describe the Collateral, or to correct any omissions in
the Financing Documents, or more fully to state the security obligations set out
herein or in any of the Financing Documents, or to perfect, protect or preserve
any Liens created pursuant to any of the Financing Documents, or to make any
recordings, to file any notices, or obtain any consents, all as may be necessary
or appropriate in connection therewith.
SECTION 6.4 BANK ACCOUNTS. Without limitation of the provisions of Sections
6.13(b) and 7.18, in order to facilitate the administration of this Agreement
and the Agents' and the Lenders' rights hereunder and under the other Financing
Documents (including the Liens of the Agents), the Borrowers will maintain one
or more of the Lenders or Risk Participants as the Borrowers' principal
depository bank, including for the maintenance of operating, administrative,
cash management, collection activity and other deposit accounts for the conduct
of the Borrowers' business, provided (a) such services offered by the Lenders or
Risk Participants are competitive with the corresponding services offered by
other banks, and (b) the foregoing shall not restrict the Borrowers from
maintaining and using any bank accounts that are used by the Borrowers as of the
Closing Date for the same purpose after the Closing Date or from establishing
and using new bank accounts with any bank at which the Borrowers maintain one or
more bank accounts as of the Closing Date to the extent approved by the
Administrative Agent.
SECTION 6.5 INSURANCE. Except as provided in Schedule 6.5, each Borrower
will and will cause each of the other Credit Parties to maintain or cause to be
maintained, with insurers believed by the Borrowers in good faith to be
financially sound and reputable insurers having a rating of at least A or
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better by Best Rating Guide, insurance with respect to their respective
Properties and business against such liabilities, casualties, risks and
contingencies and in such types (including business interruption insurance,
marine insurance, and flood insurance) and amounts as the Administrative Agent
may reasonably require or as may be required in accordance with any Governmental
Requirement. Each Borrower will obtain endorsements to the policies naming the
Administrative Agent or the Canadian Administrative Agent, as applicable, as a
loss payee as their interests may appear, and containing provisions that such
policies will not be canceled without 30 days prior written notice having been
given by the insurance company to the Administrative Agent or the Canadian
Administrative Agent, as applicable.
SECTION 6.6 ACCOUNTS AND RECORDS. Each Borrower will keep and will cause
each of the other Credit Parties to keep proper books of record and account in
accordance with GAAP.
SECTION 6.7 RIGHT OF INSPECTION. In addition to any other inspection or
audit rights of the Administrative Agent, the Canadian Administrative Agent, any
Lender or any Risk Participant hereunder, each Borrower will permit and will
cause each of the other Credit Parties to permit any officer, employee or agent
of the Administrative Agent, the Canadian Administrative Agent, any Lender or
any Risk Participant to visit and inspect any of the Properties of the Credit
Parties, examine any Credit Party's books of record and accounts, take copies
and extracts therefrom, and discuss the affairs, finances and accounts of the
Credit Parties with any Credit Party's executive officers, accountants and
auditors, as often and all at such reasonable times during normal business hours
and upon reasonable advance notice by the Administrative Agent or the Canadian
Administrative Agent, all as may be reasonably requested by the Administrative
Agent or the Required Lenders; provided, that (a) such inspection rights shall
not be limited or conditioned by reasonable prior notice or reasonable times
during the existence of a Default, and (b) the Administrative Agent and the
Canadian Administrative Agent shall be limited to two (2) such visitations and
inspections in each Fiscal Year unless a Default or an Event of Default shall
have occurred and be continuing. Without limiting the foregoing, the Borrowers
agree to hold a meeting (including by conference call) with all Lenders and Risk
Participants at least once a year, if requested by the Administrative Agent, to
discuss the business and affairs of the Borrowers.
SECTION 6.8 [INTENTIONALLY DELETED.]
SECTION 6.9 COLLATERAL REPORTS. During each Fiscal Year, as of a date or
dates to be designated by the Administrative Agent, the Borrowers will, at the
cost of the Borrowers, provide such assistance as the Administrative Agent and
the Canadian Administrative Agent may reasonably request in connection with the
preparation by the Administrative Agent and the Canadian Administrative Agent of
up to two (2) reports (each, a "COLLATERAL REPORT") of a collateral field
examiner (the cost of which shall be for the account of the Borrowers) selected
by the Administrative Agent in writing (which may be the Administrative Agent or
an affiliate thereof) with respect to the Eligible Accounts and Eligible
Inventory components for each of the Borrowers included in the US Borrowing Base
and the Canadian Borrowing Base and such other matters regarding the Credit
Parties or the Collateral as the Administrative Agent or the Canadian
Administrative Agent shall reasonably require; provided, that (a) for so long as
Excess Availability is below $65,000,000, or at any time an Event of Default has
occurred and is continuing, the Administrative Agent shall be entitled to
receive at the cost of the Borrowers any number of Collateral Reports as the
Administrative Agent determines in its discretion, (b) the Administrative Agent
shall also be entitled, in its discretion, to receive, at no cost to the
Borrowers, Collateral Reports in addition to those set out above, (c) any
Collateral Report provided in connection with a Permitted Acquisition shall be
in addition to the Collateral Reports required to be provided pursuant to this
Section 6.9, and (d) in the first Fiscal Year following the Closing Date, the
first Collateral Report shall be done not later than 90 days following the
Closing Date, and the Administrative Agent may, but need not, require up to two
(2) further Collateral Reports.
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SECTION 6.10 REPORTING COVENANTS. The Company and the Borrowers will
furnish the following to each of the Lenders and Risk Participants:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 120 days after the end of each Fiscal Year, consolidating and
consolidated balance sheets of the Company and its Subsidiaries as at the end of
such year and the related consolidating and consolidated statements of income,
retained earnings and cash flows of the Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, all in reasonable detail and accompanied by the
unqualified report thereon of independent public accountants of recognized
national standing, which report shall state that such consolidated financial
statements present fairly in all material respects the consolidated financial
condition as at the end of such Fiscal Year, and the consolidated results of
operations and cash flows for such Fiscal Year, of the Company and its
Subsidiaries in accordance with GAAP, applied on a consistent basis; provided
that (i) the consolidating balance sheets and consolidating statements of
income, retained earnings and cash flow of the Company and its Subsidiaries are
not required to be audited, and (ii) the consolidating balance sheets and
consolidating statements of income, retained earnings and cash flow shall be
prepared for the Company and for GUSAP (individually), for the Credit Parties
(as a group), and for those Subsidiaries which are not Credit Parties and NSULC
(as a group).
(b) MONTHLY FINANCIAL STATEMENTS. As soon as available and in any event
within 30 days after the end of each calendar month of the Company, unaudited
consolidating and consolidated balance sheets of the Company and its
Subsidiaries as at the end of such month and the related unaudited consolidating
and consolidated statements of income, retained earnings and cash flows of the
Company and its Subsidiaries for such calendar month and for the portion of the
Company's Fiscal Year ended at the end of such month, setting forth in each case
in comparative form the figures for the corresponding month and the
corresponding portion of the Company's previous Fiscal Year, all in reasonable
detail and certified by a Responsible Officer that such financial statements
present fairly in all material respects the consolidated financial condition as
at the end of such calendar month, and the consolidating and consolidated
results of operations and cash flows for such calendar month and such portion of
the Company's Fiscal Year, of the Company and its Subsidiaries in accordance
with GAAP (subject to normal, year-end adjustments and the absence of
footnotes); provided that the consolidating balance sheets and consolidating
statements of income, retained earnings and cash flow shall be prepared for the
Company and for GUSAP (individually), for the Credit Parties (as a group), and
for those Subsidiaries which are not Credit Parties and NSULC (as a group).
(c) MANAGEMENT DISCUSSION AND ANALYSIS Together with the financial
statements required pursuant to Section 6.10(a), a management discussion and
analysis of the financial performance of the Company and its Subsidiaries for
the periods covered thereby, in reasonable detail. In addition, the Company
shall provide to the Administrative Agent, for distribution to the Lenders and
Risk Participants, a management discussion and analysis of the financial
performance of the Company and its Subsidiaries on a quarterly basis, at the
same time as such management discussion and analysis is disclosed publicly to
the shareholders of the Company.
(d) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the financial
statements required pursuant to Section 6.10(a) and Section 6.10(b) above, a
certificate of the Company, which shall be substantially in the form of Exhibit
G hereto and signed by a Responsible Officer: (1) stating that a review of such
financial statements during the period covered thereby and of the activities of
the Company and its Subsidiaries has been made under such Responsible Officer's
supervision with a view to determining whether the Company and its Subsidiaries
have fulfilled in all material respects all of their obligations under this
Agreement, the other Financing Documents, and the Notes; (2) stating that no
Default exists and that the Company and its Subsidiaries have fulfilled in all
respects their obligations under such
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instruments, or if there shall be a Default, specifying the nature and status
thereof and the Company's proposed response thereto; (3) demonstrating in
reasonable detail compliance (including, but not limited to, showing all
material calculations) as at the end of such Fiscal Year or such month with
Section 6.12, Section 7.2(g) and 7.3(f); (4) containing or accompanied by such
financial or other details, information and material as the Administrative Agent
may reasonably request to evidence such compliance; (5) certifying that the
Company and its Subsidiaries have complied with the minimum funding requirements
with respect to each Plan maintained by the Company and/or its Subsidiaries, or
to which the Company or any of its Subsidiaries is a member, and that the
Company and its Subsidiaries have complied in all respects with Section 7.9 of
this Agreement; and (6) stating that no event has occurred or condition exists
that has had or reasonably could be expected to have a Material Adverse Effect.
At the same time, the Company shall deliver (I) an accounts receivable aging,
payables aging and inventory aging prepared as of the close of business on the
last Business Day of the preceding calendar month, a monthly accounts receivable
aging and reconciliation, an accounts payable reconciliation, and sales reports
and inventory designations, in each case satisfactory to the Administrative
Agent, and such other information related thereto requested by the
Administrative Agent, (II) a certificate of the Company signed by a Responsible
Officer stating that the Credit Parties have been in compliance with Section
7.2(h) and Section 7.2(i) at all times during the preceding calendar month and
setting out the US Operating Borrower Net Advance Amount for each Credit Party
and the aggregate US Operating Borrower Net Advance Amount for all Credit
Parties, in each case as of the last day of the preceding calendar month, and
(III) a summary of all Swap Agreements to which any Borrower is subject as of
the last Business Day of the preceding calendar month, in form, substance and
detail acceptable to the Administrative Agent. To the extent that any changes
would be required to be made to any Perfection Certificate (as updated pursuant
to any prior Perfection Certificate Update) to cause the applicable Perfection
Certificate to be accurate and complete if reissued as of the last day of any
Fiscal Quarter, the applicable Credit Party shall deliver to the Administrative
Agent, together with each certificate of a Responsible Officer required to be
delivered under this Section 6.10(d) with respect to the Fiscal Quarter then
ended, a Perfection Certificate Update for the applicable Credit Party prepared
as of the close of business on the last day of such Fiscal Quarter.
(e) TITLE INFORMATION. Promptly after a request by the Administrative
Agent, additional title information in form and substance acceptable to the
Required Lenders as is reasonably requested and reasonably necessary covering
the Collateral so that the Lenders and Risk Participants shall have received,
together with the title information previously received by the Lenders and Risk
Participants, satisfactory title information covering all of the Collateral.
(f) EVENTS OR CIRCUMSTANCES WITH RESPECT TO COLLATERAL. Promptly after the
occurrence of any event or circumstance concerning or changing any of the
Collateral that could reasonably be expected to have a Material Adverse Effect,
notice of such event or circumstance in reasonable detail.
(g) BORROWING BASE REPORTS. As soon as available, and in any event on or
before the 20th day of each calendar month (or the next succeeding Business Day
if such day is not a Business Day): (1) a Canadian Borrowing Base Report and a
US Borrowing Base Report, reflecting the US Borrowing Base for each US Operating
Borrower, and US Maximum Available Amount (on a combined basis for all US
Borrowers, and individually for each US Borrower) and the Canadian Borrowing
Base and Canadian Maximum Available Amount as of the close of business on the
last Business Day of the preceding calendar month; provided, however, at any
time that Excess Availability shall be below $95,000,000, the Administrative
Agent, in its discretion, may require the delivery of US Borrowing Base Reports,
the Canadian Borrowing Base Reports and other reports more frequently than
monthly (including daily), in which event the US Borrowing Base and Canadian
Borrowing Base (as applicable) would be adjusted immediately upon delivery
(subject to the right of the Administrative Agent and the Canadian
Administrative Agent to review such reports and confirm that they have been
prepared in accordance with the terms of this Agreement) of such reports based
on the information reflected in such reports; and (2) a
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certificate of the Company signed by a Responsible Officer setting out the
aggregate mark to market exposure, as at the end of the preceding month, under
all Swap Agreements entered into by the Credit Parties.
(h) NOTICE OF CERTAIN EVENTS. Promptly after any Borrower learns of the
receipt or occurrence of any of the following, a certificate of the Borrowers,
signed by a Responsible Officer specifying: (1) any official written notice of
any material violation, possible violation, non-compliance or possible
non-compliance, or claim made by any Governmental Authority pertaining to all or
any part of the Properties of any Credit Party; (2) any event which constitutes
a Default, together with a statement specifying the nature thereof and the steps
being taken to cure such Default; (3) the creation, dissolution, merger or
acquisition of any Credit Party; (4) any event or condition not previously
disclosed to the Administrative Agent, which violates any Environmental Law and
which could reasonably be expected to have a Material Adverse Effect; (5) any
release or threatened release of any hazardous substance or solid waste into the
environment where any contingent liabilities associated with such release or
threatened could reasonably be expected to exceed $2,000,000; (6) any material
amendment to, termination of, or material default under any material contract or
any execution of, or material amendment to, termination of, or material default
under, any material collective bargaining agreement; (7) any change which would
result in any of Schedules 5.9, 5.10, 5.15, 5.19, 5.20, 5.21 and 5.24 no longer
being correct in any material respect; or (8) any event or condition which may
reasonably be expected to have a Material Adverse Effect.
(i) SHAREHOLDER COMMUNICATIONS, FILINGS. Promptly upon the mailing, filing,
or making thereof, copies of all registration statements, periodic reports and
other documents (excluding the related exhibits except to the extent expressly
requested by the Administrative Agent) required to be filed by any Credit Party
with the Securities and Exchange Commission (or any successor thereto) or any
securities exchange or Canadian provincial securities commission.
(j) LITIGATION. Promptly after the occurrence thereof, notice of the
institution of or any material adverse development in any material action, suit,
claim or proceeding or any governmental investigation or any arbitration, before
any arbitrator or any Governmental Authority, in which the amount involved is
$5,000,000 or more, or which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
(k) ERISA. Promptly after (1) any Credit Party obtaining knowledge of the
occurrence thereof, notice that an ERISA Termination Event has occurred, a
"prohibited transaction," as such term is defined in Section 406 of ERISA or
Section 4975 of the Code (for which there is no exemption) with respect to any
Plan has occurred that could reasonably be expected to have a Material Adverse
Effect, or the assertion of a material claim (other than a routine claim for
benefits) against a Plan or against any Credit Party or any ERISA Affiliate with
respect to a Plan has occurred, which such notice shall specify the nature
thereof, the Borrowers' proposed response thereto (and, if applicable, the
proposed response thereto of any Subsidiary of the Borrowers and of any ERISA
Affiliate) and, where known, any action taken or proposed by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto, (2)
any Credit Party's obtaining knowledge thereof, copies of any notice of the
PBGC's intention to terminate or to have a trustee appointed to administer any
Plan, (3) any Credit Party's obtaining knowledge thereof, notice of the
imposition of a lien pursuant to Section 401(a)(29) or 412(n) of the Code or
pursuant to ERISA with respect to any Plan, and (4) the filing thereof with any
Governmental Authority copies of each annual and other report (including
applicable schedules) with respect to each Plan or any trust created thereunder
(if requested by the Administrative Agent).
(l) ANNUAL BUDGET. As soon as available and in any event not later than 60
days after the end of each Fiscal Year, a budget of the Credit Parties on a
consolidating and consolidated basis for the
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next Fiscal Year (prepared on a monthly basis), together with written
confirmation that such budget has been reviewed and approved by the Board of
Directors of the Company. Each such budget shall set forth in reasonable detail
the projected revenues and expenses of the Company for such next Fiscal Year,
projected Availability and Borrowing Base information, and projected balance
sheets and cash flow statements. In addition, as soon as available and in any
event not later than 60 days after the end of each Fiscal Year, the Company
shall provide to the Administrative Agent a set of consolidated projections for
the next three years.
(m) INVENTORY APPRAISALS. If a Block Event exists, the Administrative Agent
may require, at the cost of the Borrowers, and as frequently as the
Administrative Agent determines, appraisals of the Borrowers' inventory in scope
and detail and prepared by an independent appraisal firm selected by the
Administrative Agent. The Administrative Agent may also require, at its own
cost, and as frequently as the Administrative Agent determines, additional
appraisals of the Borrowers' inventory in scope and detail and prepared by an
independent appraisal firm selected by the Administrative Agent. The Borrowers
and other Credit Parties will cooperate with the Administrative Agent and the
appraiser in the conduct of any such appraisal.
(n) OTHER INFORMATION. With reasonable promptness, such other information
about the business and affairs and financial condition of any Credit Party as
the Administrative Agent may reasonably request from time to time, including,
without limitation, monthly accounts receivable aging and reconciliation,
accounts payable aging and reconciliation, sales reports and inventory
designations.
SECTION 6.11 FINANCING ENTITIES.
(a) GUSAP's business shall be restricted solely to operating a group
financing business to provide financing to the Company, the other Credit Parties
and certain of their Affiliates, to borrowing under the 144A Transaction and
under this Agreement, to making Investments (otherwise permitted herein), and to
making Investments in the Equity of GUSA existing on the date hereof and
disclosed on Schedule 5.19 and Investments in NSULC, together with such
ancillary activities which are necessary or desirable to operate such business.
GUSAP shall not own, lease, license or otherwise have the right to use any
Property, other than (1) Investments in NSULC, (2) Investments in GUSA existing
on the date hereof, (3) the GUSAP Payment Account, the other deposit accounts
listed as being owned by GUSAP on Schedule 7.18, and such other deposit accounts
as the Administrative Agent shall have consented to in writing, (4) Investments
permitted by clauses (b), (c), (d), (e) (f) and (h) of Section 7.6 having an
aggregate value at any one time together with Investments by PASUG pursuant to
6.11(c)(1)(ii) not in excess of $20,000,000, (5) funds held by GUSAP and raised
by equity, from the Lenders or from the holders of the 144A Notes, in each case
promptly invested in NSULC, and (6) other funds to the extent necessary to pay
expenses that relate solely to the 144A Notes or this Agreement or to
maintaining the existence of the Company (including its reasonable share of
legal, accounting and administrative expenses relating thereto). GUSAP shall not
incur or suffer to exist any liabilities or obligations to any Person, other
than to the Lenders in respect of the Loans, to the holders of the 144A Notes in
respect of amounts owing thereunder, Indebtedness owing to other Credit Parties
as set forth on Schedule 5.26 hereof, liabilities for Taxes, and liabilities for
its share of fees and expenses that directly relate to its Investment in NSULC
and its borrowing under the 144A Notes and hereunder (including its reasonable
share of legal, accounting and administrative expenses relating thereto). GUSAP
shall remain Solvent at all times during the term of this Agreement, and shall
maintain sufficient cash to pay its expenses and obligations as they come due.
GUSAP shall not incur or permit to exist any Liens on any of its Properties,
other than Liens permitted under Section 7.3(a), (b), (c) or (l). Upon receipt
by GUSAP of any Equity Distribution from NSULC in the GUSAP Payment Account,
GUSAP agrees that it shall repay amounts owing in respect of US Revolving Credit
Loans to the Administrative Agent and the Lenders by transferring the amount of
such Equity Distributions so received in the GUSAP Payment Account to the
Administrative
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Agent. GUSAP hereby agrees that it shall use its reasonable best efforts to
ensure that all payments made by GUSAP in respect of the Revolving Credit Loans
shall be made with funds that originated as Equity Distributions by PASUG to
NSULC as contemplated in clause (d) below.
(b) NSULC's business shall be restricted solely to being a holding company,
raising equity capital from GUSAP, making Investments (otherwise permitted
herein) in PASUG, and making Investments in the Equity of GUSA existing on the
date hereof and disclosed on Schedule 5.19, together with such ancillary
activities which are necessary or desirable to operate such business. NSULC
shall not own, lease, license or otherwise have the right to use any Property,
other than (1) Investments in PASUG, (2) Investments in GUSA existing on the
date hereof, (3) the NSULC Payment Account, the other deposit accounts listed as
being owned by NSULC on Schedule 7.18, and such other deposit accounts as the
Administrative Agent shall have consented to in writing, (4) funds held by NSULC
and promptly invested in PASUG, and (5) other funds in an amount not to exceed
$500,000 at any time to the extent necessary to pay expenses that relate solely
to its business activity or maintaining its existence (including its reasonable
share of legal, accounting and administrative expenses relating thereto), which
shall not exceed $500,000 in any Fiscal Year. NSULC shall have no liabilities or
obligations to any Person, other than guarantee liabilities in respect of the
Loans and amounts owing under the 144A Notes, liabilities owing to other Credit
Parties for its share of fees and expenses that directly relate to its
Investment in PASUG (including its reasonable share of legal, accounting and
administrative expenses relating thereto) and liabilities for Taxes. NSULC shall
remain Solvent at all times during the term of this Agreement, and shall
maintain sufficient cash to pay its expenses and obligations as they come due.
NSULC shall not incur or permit to exist any Liens on any of its Properties,
other than Liens permitted under Section 7.3(a), (b), (c) or (l).
(c) PASUG's business shall be restricted solely to operating a group
financing business to provide financing to the Company and the other Credit
Parties and to act as a payment and collection agent for the Company and the
Credit Parties. PASUG shall not own, lease, license or otherwise have the right
to use any Property, other than (1) (i) Investments constituting loans and
advances by PASUG to the Company and other Credit Parties (including loans and
advances arising out of payments to third parties in accordance with the terms
hereof, for which the Company or the other applicable Credit Party will be
liable to reimburse PASUG as repayment of such loans and advances), to the
extent permitted hereunder, and (ii) Investments permitted by clauses (b),(c),
(d), (e), (f), and (h) of Section 7.6 having an aggregate value at any one time
not in excess of $20,000,000 together with Investments by GUSAP pursuant to
Section 6.11(a)(4), (2) the PASUG Operating Account, provided that at no time
shall the account balance thereof, together with amounts contained in any other
account maintained by PASUG, exceed an amount equal to the sum of $6,000,000
plus the amount of its outstanding and unpaid checks; (3) the applicable US
Lockbox and the applicable US Blocked Account, provided that all collections
received in such US Lockbox and transferred to such US Blocked Account are
transferred to the PASUG Operating Account (or, to the extent required herein,
directly to the Administrative Agent and the Lenders) not later than one
Business Day after receipt thereof, and (4) the PASUG Payment Account, the other
deposit accounts listed as being owned by PASUG on Schedule 7.18, and such other
accounts as the Administrative Agent shall have consented to in writing. PASUG
shall have no liabilities or obligations to any Person other than in respect of
US Operating Borrower Advances permitted hereunder, guarantee liabilities in
respect of the Loans and amounts owing under the 144A Notes, and liabilities to
other Credit Parties for its share of fees and expenses that directly relate to
its financing business or maintaining its existence (including its reasonable
share of legal, accounting and administrative expenses relating thereto), which
shall not exceed $1,000,000 during any Fiscal Year. PASUG shall remain Solvent
at all times during the term of this Agreement, and shall maintain sufficient
cash to pay its expenses and obligations as they come due. PASUG shall not incur
or permit to exist any Liens on any of its Properties, other than Liens
permitted under Section 7.3(a), (b), (c) or (l).
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(d) If PASUG desires to make any Equity Distribution to NSULC, PASUG may
elect to deposit the amount of such Equity Distribution into the PASUG Payment
Account, and such Equity Distribution shall automatically be transferred to
NSULC as an Equity Distribution to the NSULC Payment Account. Upon receipt of
such Equity Distribution, NSULC hereby agrees that it shall immediately make an
Equity Distribution to GUSAP in an amount equal to the amount of the Equity
Distribution received by it from PASUG by transferring such amount so received
to the GUSAP Payment Account.
(e) PASUG shall at all times maintain the Intercompany Security Agreement
and the Liens created thereunder in full force and effect and, without limiting
the foregoing, PASUG (i) shall take all actions as may be required to maintain
such Liens as perfected Liens under all applicable laws, (ii) shall not amend,
modify, supplement or waive any provision of the Intercompany Security Agreement
without the Administrative Agent's consent, and (iii) shall not subordinate the
Liens created under the Intercompany Security Agreement to the Liens of any
other Person, except as set forth in the Intercompany Lien Subordination
Agreement or with the Administrative Agent's consent.
SECTION 6.12 FIXED CHARGE COVERAGE RATIO. On each date during the term of
this Agreement that Excess Availability is less than $65,000,000 (each such date
being a "Trigger Date"), the Borrowers shall have demonstrated that the Fixed
Charge Coverage Ratio, measured as of the immediately preceding fiscal month end
for which financial statements have been (or were required to be) delivered
hereunder for the twelve fiscal month period then ended, was at least 1.1 to
1.0. If the Borrowers fail to deliver financial statements on the due date
therefor (without giving effect to any cure periods), such that the Fixed Charge
Coverage Ratio required by this Section 6.12 cannot be calculated, the Fixed
Charge Coverage Ratio shall be deemed to be less than 1.1 to 1.0 until such time
as the required financial statements are actually delivered. Following a Trigger
Date, the requirement to comply with the Fixed Charge Coverage Ratio covenant
shall remain in effect unless and until the Borrowers have maintained Excess
Availability of at least $65,000,000 for a period of at least 90 consecutive
days, after which time the requirement to comply with the Fixed Charge Coverage
Ratio shall not apply unless a subsequent Trigger Date occurs.
SECTION 6.13 POST CLOSING OBLIGATIONS.
(a) The Borrowers shall cause NJSC to be dissolved in accordance with all
applicable procedures of law, and shall deliver to the Administrative Agent
evidence of such dissolution, in each case within 180 days after the Closing
Date. Pending such dissolution, the Borrowers shall not permit NJSC to own any
Property.
(b) The Borrowers shall close each of the bank accounts listed on Schedule
6.13, and deliver to the Administrative Agent evidence of such closure, in each
case within 120 days after the Closing Date. Pending such closure, the Borrowers
shall not permit the aggregate amount of deposits in all such accounts on any
day to exceed $300,000.
(c) Within 60 days after the Closing Date (or, with the Administrative
Agent's consent, within 90 days after the Closing Date), the Borrowers shall
deliver to the Administrative Agent a control agreement with respect to each
bank account maintained by a Credit Party (including GUSAP, NSULC and PASUG) in
the United States or Canada (other than any accounts described in clause (b)
above and any other accounts with respect to which the Administrative Agent may
elect not to require a control agreement), duly executed and delivered by the
applicable Credit Party and depository bank in a form sufficient to perfect the
Liens of the applicable Agent in each such bank account and otherwise in form
acceptable to the Administrative Agent or the Canadian Administrative Agent, as
applicable, acting reasonably.
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(d) The Borrowers shall use their commercially reasonable efforts to cause
C-SBP to become reinstated in good standing as an Ontario corporation as
promptly as practicable after the Closing Date. Pending such reinstatement, the
Borrowers shall not permit C-SBP to own any assets or to conduct any business.
Upon such reinstatement, the Borrowers shall promptly cause C-SBP to execute and
deliver to the Administrative Agent a counterpart to the applicable Security
Instruments (including the Canadian Guarantee) and such other agreements,
documents and instruments as the Administrative Agent may reasonably request,
and shall deliver such certificates, Lien search reports, opinions of counsel
and other items as the Administrative Agent may reasonably require, in each case
in form and substance satisfactory to the Administrative Agent.
ARTICLE 7
NEGATIVE COVENANTS
So long as any Lender has any Commitment hereunder or any Loan remains
unpaid or any Revolving Credit Exposure remains outstanding, neither the Company
nor any other Credit Party will:
SECTION 7.1 ANTI-TERRORISM LAWS. Conduct any business or engage in any
transaction or dealing with any Blocked Person, including the making or
receiving of any contribution of funds, goods or services to or for the benefit
of any Blocked Person; deal in, or otherwise engage in any transaction relating
to, any property or interests in property blocked pursuant to Executive Order
No. 13224; or engage in on conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any
of the prohibitions set forth in Executive Order No. 13224 or the USA Patriot
Act. The Borrowers shall deliver to the Administrative Agent and the Lenders any
certification or other evidence requested from time to time by the
Administrative Agent or any Lender, acting reasonably, confirming each
Borrower's compliance with this Section 7.1.
SECTION 7.2 INDEBTEDNESS. Create, incur, assume or suffer to exist, any
Indebtedness, other than:
(a) the Lender Indebtedness;
(b) Indebtedness which does not exceed the principal amount of $405,000,000
and which has been incurred as a result of the issuance of the 144A Notes by the
Company and GUSAP and the guaranty thereof by other Subsidiaries in connection
with the 144A Transaction;
(c) Indebtedness outstanding on the date hereof which is set forth in (i)
line items 1, 3, 4 or 6 on Schedule 5.26 and any refinancing, refunding, renewal
or extension thereof, provided that such refinancing, refunding, renewal or
extension is not for a term shorter than the term of the original Indebtedness
and the principal amount thereof is not greater than the principal amount of the
original Indebtedness, and the terms and conditions of any such refinancing,
refunding, renewal or extension (taken as a whole) are prevailing market terms
and are not materially less favorable to the Credit Parties than the terms which
are applicable to such Indebtedness, and (ii) line items 9, 21 through 25, 28,
29, 30, 35 and 36 on Schedule 5.26;
(d) trade or accounts payable (for the deferred purchase price of Property
or services) from time to time incurred in the ordinary course of business;
(e) obligations for current taxes, assessments and other governmental
charges and taxes, assessments or other governmental charges which are not yet
due or are being contested in good faith by appropriate action or proceeding
promptly initiated and diligently conducted, if reserves required pursuant to
Section 6.2 hereof have been established with respect thereto;
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(f) Indebtedness owing pursuant to Swap Agreements entered into in the
ordinary course of business for the purpose of hedging against risks actually
incurred by the Borrowers with respect to interest rates, exchange rates and
commodity prices;
(g) Indebtedness in respect of Capital Lease Obligations and purchase money
Indebtedness in an aggregate amount not in excess of $20,000,000 outstanding at
any time;
(h) Advances made by PASUG to a US Operating Borrower, other than advances
constituting US Operating Borrower Advances; provided that (i) all such advances
shall be (and are hereby deemed to be) at all times subordinated in right of
payment to the prior payment of all Lender Indebtedness, except that such
advances may be repaid at any time prior to a GUSAP Termination Event so long
as, after giving effect to any such repayment, the US Operating Borrower making
such repayment shall be Solvent (and any such repayment shall be a deemed
representation by the Borrowers that the US Operating Borrower making such
repayment is Solvent after giving effect to such repayment), and (ii) all such
advances shall at all times be secured by a duly perfected junior security
interest in accordance with the terms of the Intercompany Security Agreement;
(i) US Operating Borrower Advances; provided that (i) the aggregate US
Operating Borrower Net Advance Amount, determined for all Credit Parties, shall
at no time exceed $50,000,000, (ii) at all times during which any such US
Operating Borrower Advance is outstanding, both the maker and the recipient of
such US Operating Borrower Advance are Solvent, (iii) all such US Operating
Borrower Advances owing by any US Operating Borrower to PASUG shall be (and are
hereby deemed to be) at all times subordinated in right of payment to the prior
payment of all Lender Indebtedness, except that such advances may be repaid at
any time prior to a GUSAP Termination Event so long as, after giving effect to
any such repayment, the US Operating Borrower making such repayment shall be
Solvent (and any such repayment shall be a deemed representation by the
Borrowers that the US Operating Borrower making such repayment is Solvent after
giving effect to such repayment), and (iv) all such US Operating Borrower
Advances owing by any US Operating Borrower to PASUG shall at all times be
secured by a duly perfected junior security interest in accordance with the
terms of the Intercompany Security Agreement;
(j) Permitted New Debt;
(k) Permitted New Affiliate Subordinated Debt;
(l) (i) Indebtedness provided by a Person which is not an Affiliate of a
Credit Party to finance a Permitted Acquisition, (ii) Indebtedness of a Person
or any of its Subsidiaries existing at the time such Person is acquired pursuant
to a Permitted Acquisition, and (iii) Indebtedness assumed in connection with an
acquisition of assets from a Person in a Permitted Acquisition, which in each
case may be secured by Liens on assets not included in the Collateral, provided
that the aggregate of all Indebtedness contemplated by paragraphs (i), (ii) and
(iii) shall not exceed $100,000,000 outstanding at any time; and any
refinancing, refunding, renewal or extension of any such Indebtedness, provided
that the terms and conditions of any such refinancing, refunding, renewal or
extension Indebtedness (taken as a whole) are prevailing market terms and the
terms and conditions of any such Indebtedness (taken as a whole) are not
materially less favorable to the Credit Parties than the terms which are
applicable to such Indebtedness;
(m) Indebtedness provided by a Person which is not an Affiliate of a Credit
Party which may be secured by Liens (i) on machinery and equipment, in an
aggregate amount not in excess of $150,000,000 outstanding at any time, and (ii)
on Real Property, in an aggregate amount not in excess of $50,000,000
outstanding at any time, and any refinancing, refunding, renewal or extension of
any such
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Indebtedness described in clause (i) or (ii), provided that the terms and
conditions of any such refinancing, refunding, renewal or extension Indebtedness
(taken as a whole) are prevailing market terms and the terms and conditions of
any such refinancing, refunding, renewal or extension Indebtedness (taken as a
whole) are not materially less favorable to the Credit Parties than the terms
which are applicable to such Indebtedness;
(n) advances made by any Canadian Credit Party to any other Credit Party;
(o) Indebtedness existing as of the Closing Date from the Company to the
HOC or its assignee (provided any assignee is a Credit Party), provided that (i)
no cash payments of principal or interest may be made thereon; and (ii) no other
payments may be made thereon unless Excess Availability is at least $75,000,000
after giving effect to any such payment;
(p) Bonding Obligations to the extent permitted by Section 7.3(f) below;
(q) guarantees by a Credit Party(s) (other than NSULC or any US Borrower)
of Indebtedness of a Credit Party(s) otherwise permitted hereby;
(r) Indebtedness from Ameristeel US to Finco, as evidenced by and in the
amounts set forth in the Ameristeel US Note; provided, however, that (i) the
Ameristeel US Note shall be delivered and pledged to the Administrative Agent
pursuant to a collateral assignment of promissory note, with the Ameristeel US
Note and such collateral assignment being in form and substance satisfactory to
the Administrative Agent in its sole discretion, (ii) such Indebtedness shall be
subordinated to the Lender Indebtedness pursuant to an intercreditor and
subordination agreement, in form and substance satisfactory to the
Administrative Agent in its sole discretion, and (iii) the principal amount of
such Indebtedness shall in no event exceed $351,000,000;
(s) the GUSA Guarantee; and
(t) other unsecured Indebtedness incurred by a Credit Party so long as, at
the time such Indebtedness is incurred, no Default exists.
SECTION 7.3 LIENS. Create, incur, assume or suffer to exist, any Lien on
any of its Property now owned or hereafter acquired to secure any Indebtedness
of any Credit Party or any other Person, other than (collectively, the
"PERMITTED LIENS"):
(a) Liens existing on the date hereof and set forth on Schedule 7.3 and
Liens securing any Indebtedness incurred to refinance, refund, renew or extend
the Indebtedness secured by Liens set forth on such Schedule 7.3 provided that
the collateral subject to such Liens is not expanded;
(b) Liens securing the Lender Indebtedness;
(c) Liens for taxes, assessments or other governmental charges or levies
not yet due or which are being contested in good faith by appropriate action or
proceedings and with respect to which reserves required by Section 6.2 hereof
are maintained;
(d) statutory and contractual Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, repairmen, workmen, and other Liens
imposed by law created in the ordinary course of business for amounts which are
not past due for more than 60 days or which are being contested in good faith by
appropriate action or proceedings and with respect to which reserves required by
Section 6.2 are maintained;
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(e) Liens incurred in connection with or deposits or pledges made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, old age or other
similar obligations;
(f) Liens incurred in connection with or deposits or pledges made in the
ordinary course of business to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money) (collectively, the "BONDING
OBLIGATIONS") but not exceeding an aggregate amount outstanding at any time of
$75,000,000;
(g) minor irregularities in title, easements, rights-of-way, restrictions,
servitudes, permits, reservations, exceptions, conditions, covenants and other
similar charges or encumbrances not materially interfering with the occupation,
use and enjoyment by any Borrower of any of their respective Real Property in
the normal course of business or materially impairing the value thereof;
(h) any obligations or duties affecting any of the Real Property of any
Credit Party to any municipality or public authority with respect to any
franchise, grant, license or permit which do not materially impair the use of
such Real Property for the purposes for which it is held;
(i) Liens securing Indebtedness permitted by Section 7.2(g) provided that
(1) such Liens cover only the Property (which, for purposes of this Section
7.3(i), shall not include inventory) being leased or acquired, (2) the creation
of such Lien or the incurrence of the Indebtedness secured by such Lien does not
violate this Agreement or any of the other Financing Documents and (3) in the
case of any such Lien securing purchase money Indebtedness, the principal amount
of the purchase money Indebtedness being secured does not exceed 80% of the
total purchase price of the Property being leased or acquired;
(j) exceptions, qualifications and reservations in respect of title to Real
Property under applicable federal, state, provincial, territorial, municipal and
local statutes, regulations, laws, by-laws and ordinances but only to the extent
of the general application of such matters and not arising as a result of the
failure of Borrowers to comply with such matters;
(k) Liens on assets not forming part of the Collateral, securing
Indebtedness permitted by Section 7.2(l) or Section 7.2(m);
(l) Liens in favor of PASUG pursuant to the Intercompany Security
Agreement, provided that at all times such Liens shall be subject and
subordinate to the Liens of the Administrative Agent pursuant to the terms of
the Intercompany Lien Subordination Agreement; and
(m) deposits or pledges made to secure operating leases of real property or
newly acquired equipment entered into on a commercially reasonable basis and on
commercially reasonable terms and conditions;
provided, however, that the foregoing list of Permitted Liens is not intended
to, and shall not be construed as, subordinating or postponing, or as an
agreement to subordinate or postpone, any Lien created by any of the Financing
Documents to any such Permitted Lien.
SECTION 7.4 MERGERS, SALES, ETC. Merge into or with or consolidate or
amalgamate with, or permit any other Credit Party to merge into or with or
consolidate or amalgamate with, any other Person, or sell, lease or otherwise
dispose of, or permit any other Credit Party to sell, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or any part
of its Property to any other
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Person. Notwithstanding the foregoing limitation: (a) the Credit Parties may
sell inventory in the ordinary course of business; (b) any Credit Party may
sell, redeem or trade cash equivalent investments permitted under Section 7.6;
(c) any US Credit Party shall be permitted to consolidate, amalgamate or merge
into or with any US Operating Borrower, and any Canadian Credit Party may
consolidate, amalgamate or merge into or with any other Canadian Credit Party;
(d) any US Operating Borrower shall be permitted to sell, assign or convey all
or any part of its Property to any other US Operating Borrower, but only so long
as any such sale, assignment or conveyance is made for reasonably equivalent
value, provided that this clause (d) shall not be interpreted to permit any US
Operating Borrower Advance, other than as permitted under Section 7.2(i); (e)
GANS shall be permitted to consolidate, amalgamate or merge into or with any
Credit Party or to liquidate or dissolve in accordance with applicable laws
provided all of its assets are transferred to one or more Credit Parties; (f)
any Canadian Borrower shall be permitted to sell, assign or convey all or any
part of its Property to any other Canadian Borrower, but only so long as any
such sale, assignment or conveyance is made for reasonably equivalent value; (g)
the Credit Parties may sell assets which are obsolete, worn out or not necessary
to the operations and business of the Credit Parties so long as the aggregate
sale price for all assets sold in any Fiscal Year does not exceed $20,000,000;
(h) any Credit Party may sell or otherwise dispose of any of its Property (other
than, for greater certainty, any interest that any Credit Party may have in any
of NSULC, GUSAP or PASUG) provided that: (w) no Default has occurred and is
continuing or would result therefrom; (x) the applicable Credit Party has
provided at least 10 days' notice to the Administrative Agent and the Canadian
Administrative Agent of the proposed sale or other disposition together with the
material terms and conditions thereof, Borrowing Base Reports reflecting the
proposed sale or other disposition on a pro forma basis and such other
information as the Administrative Agent or the Canadian Administrative Agent,
acting reasonably, may request; (y) if any of the Property which is sold or
otherwise disposed of consists of any accounts or inventory, then an amount
equal to the book value of such accounts or inventory shall be paid to the
Administrative Agent or the Canadian Administrative Agent for application
against the outstanding principal amount of the US Revolving Loans (if such
accounts and inventory were sold or otherwise disposed of by a US Credit Party)
or the Canadian Revolving Loans (if such accounts or inventory were sold or
otherwise disposed of by a Canadian Credit Party), in each case on a pro rata
basis and in accordance with Section 2.11; and (z) any such sale or other
disposition shall require the prior written consent of the Required Lenders if
the net book value of the Property subject to such sale or other disposition,
when aggregated with the net book value of any other Property sold or otherwise
disposed of by the Credit Parties pursuant to this Section 7.4(h) in the same
Fiscal Year, would exceed $50,000,000; and (i) transfers of any or all of the
Equity of GUSA owned by GUSAP or NSULC to another Credit Party, or of any Equity
of GUSAP among the Canadian Borrowers, provided that the Borrowers shall deliver
to the Administrative Agent (y) all such Security Instruments, amendments
thereto and other items as the as the Administrative Agent may require in order
to maintain or establish the first-priority Lien of the applicable Agent in such
Equity and (z) such evidence as the Administrative Agent may request in order to
confirm that such transfer will not have any adverse Tax or other consequences
to any Agent or other Secured Party.
SECTION 7.5 EQUITY DISTRIBUTIONS. Declare or pay any dividend, make any
payment to purchase, redeem, retire or otherwise acquire any of its Equity now
or hereafter outstanding, return any capital to its stockholders, partners or
members, or make any distribution of its assets, Equity, obligations or
securities to its stockholders, partners or members (an "EQUITY DISTRIBUTION"),
except that (a) the Company may declare and pay dividends with respect to its
Equity payable solely in additional Equity, (b) PASUG may pay dividends or other
payments in respect of its Equity solely to NSULC, or redeem or repurchase its
own Equity owned by NSULC, and NSULC may pay dividends or other payments in
respect of its Equity solely to GUSAP, or redeem or repurchase its own Equity
owned by GUSAP, in each case solely in connection with a repayment of US Loans,
(c) any Credit Party other than the Company may make Equity Distributions to any
other Credit Party so long as, both before and immediately after giving effect
to the Equity Distribution, no Default has occurred and is continuing and
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the Credit Party making the Equity Distribution is Solvent, (d) this Section 7.5
shall not restrict payments or distributions made in the ordinary course of
business on account of "stock appreciation rights", "phantom stock", "profit
participations" and other similar interests, (e) the Company may make Equity
Distributions if, both before and immediately after any such Equity Distribution
(including any Loan made hereunder in connection therewith), (i) no Default has
occurred and is continuing and Excess Availability is not less than $50,000,000,
and (ii) the aggregate amount of all such Equity Distributions made by the
Company in any Fiscal Year shall not exceed an amount equal to 50% of
Consolidated Net Income of the Company and the other Credit Parties as
determined in accordance with GAAP for the immediately preceding Fiscal Year,
and (f) the Company may make Equity Distributions if, both before and
immediately after any such Equity Distribution (including any Loan made
hereunder in connection therewith), no Default has occurred and is continuing
and Excess Availability is not less than $75,000,000.
SECTION 7.6 INVESTMENTS, LOANS, ETC. Make, permit or hold any Investments
in any Person, or permit any other Credit Party to make, permit or hold any
Investments in any Person, other than:
(a) Investments listed on Schedule 7.6;
(b) Investments in direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United States of
America or Canada (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America or Canada),
in each case maturing within one year from the date of acquisition thereof;
(c) Investments in certificates with deposit of maturities less than one
year, issued by commercial banks in the United States or Canada having capital
and surplus in excess of $500,000,000 and having short-term credit ratings of at
least A1 and P1 by Standard & Poor's Ratings Group and Moody's Investors
Service, Inc., respectively;
(d) Investments in commercial paper with maturities of not more than 180
days with credit ratings of at least A1 and P1 by Standard & Poor's Ratings
Group and Moody's Investors Service, Inc., respectively;
(e) Investments in securities that are obligations of the United States or
Canadian government purchased by any Credit Party under fully collateralized
repurchase agreements pursuant to which arrangements are made with selling
financial institutions (being a financial institution having unimpaired capital
and surplus of not less than $500,000,000 and with short-term credit ratings of
at least A1 and P1 by Standard & Poor's Ratings Group and Moody's Investors
Service, Inc., respectively) for such financial institutions to repurchase such
securities within 30 days from the date of purchase by any Credit Party;
(f) Investments in money market mutual funds having assets in excess of
$2,000,000,000;
(g) Investments by any US Credit Party to or in any other US Credit Party
(subject, however, to the limitations set out in Section 7.2(i) in respect of
any such loans) and Investments by any Canadian Credit Party to or in any other
Credit Party;
(h) (1) Investments in direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the Government of
Canada or of any Canadian province (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the Government of Canada
or of such Canadian province), in each case maturing within one year from the
date of acquisition thereof; (2) Investments in commercial paper maturing within
180 days from the date
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of acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from CBRS Inc., Dominion Bond Rating Service, Moody's
Investor Service, Inc. or Standard and Poor's Corporation; (3) Investments in
certificates of deposit, banker's acceptances and time deposits maturing within
180 days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of Canada or of any
Canadian province which has a combined capital surplus and undivided profits of
not less than C$250,000,000; and (4) Investments in fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (1) above and entered into with a financial institution
satisfying the criteria described in clause (3) above;
(i) Investments comprising loans made by a Credit Party to any employee,
officer or director of such Credit Party, provided that the aggregate
outstanding principal balance of all such loans made by all of the Credit
Parties shall not at any time exceed $2,000,000;
(j) Investments constituting an Acquisition paid for solely with Equity or
the proceeds of Equity of the Company issued after the Closing Date for the
purpose of funding such Acquisition, provided that (i) such Acquisition is a
Permitted Acquisition and (ii) any such Equity is not redeemable before the
Maturity Date;
(k) other Investments not to exceed an aggregate of $30,000,000 plus 50% of
cumulative Consolidated Net Income after the Closing Date, provided that no such
Investment shall be made unless, both before and immediately after giving effect
to any such Investment (including any Loan made hereunder in connection
therewith), no Default shall have occurred and be continuing and Excess
Availability is not less than $50,000,000, it being acknowledged and agreed that
GUSAP shall be entitled to be the holder of Investments made pursuant to this
Section 7.6(k) in an amount not to exceed $10,000,000 at any time;
(l) any Investments if, both before and immediately after giving effect to
any such Investment (including any Loan made hereunder in connection therewith),
no Default shall have occurred and is continuing and Excess Availability is not
less than $75,000,000; and
(m) Investments in the nature of guarantees permitted by Section 7.2(b) or
Section 7.2(q).
Notwithstanding the foregoing, Investments of the type described in clauses
(b), (c), (d), (e), (f) and (h) shall not be permitted to be made or maintained
(1) by any Canadian Borrower at any time that the outstanding principal balance
of all Canadian Loans is $40,000,000 or greater (based on the Dollar Equivalent
of any C$ Denominated Loans on the date of determination), (2) by any US
Borrower at any time that the aggregate outstanding principal balance of all US
Loans is $40,000,000 or greater, (3) by any Borrower at any time that the
aggregate outstanding principal balance of all Loans is $60,000,000 or greater,
or (4) unless a validly perfected first-priority Lien in such Investments has
been granted by the applicable Borrower in favor of the Administrative Agent or
the Canadian Administrative Agent, as applicable.
SECTION 7.7 SALES AND LEASEBACKS. Enter into any arrangement, directly or
indirectly, with any Person whereby any Credit Party shall sell or transfer any
Property, whether now owned or hereafter acquired, and whereby any Credit Party
shall then or thereafter rent or lease as lessee such Property or any part
thereof or other Property which a Credit Party intends to use for substantially
the same purpose or purposes as the Property sold or transferred, other than
sale-leaseback transactions with respect to equipment, machinery and Real
Property with an aggregate net book value not to exceed $15,000,000 during the
term of this Agreement.
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SECTION 7.8 NATURE OF BUSINESS. Engage in, or permit any other Credit Party
to engage in, any business other than the businesses in which they are engaged
as of the Closing Date or that are related, complementary or ancillary thereto.
SECTION 7.9 ERISA/PENSION COMPLIANCE.
(a) Engage in, or permit any ERISA Affiliate to engage in, any transaction
in connection with which any US Credit Party or any ERISA Affiliate could be
subjected to either a civil penalty assessed pursuant to Sections 502(c), (i) or
(l) of ERISA or a tax imposed by Chapter 43 of Subtitle D of the Code which
could reasonably be expected to have a Material Adverse Effect;
(b) Terminate, or permit any other US Credit Party or any ERISA Affiliate
to terminate, any Plan in a manner, or take any other action with respect to any
Plan, which would reasonably be expected to result in any material liability of
any US Credit Party or any ERISA Affiliate to the PBGC or any other Governmental
Authority;
(c) Fail to make, or permit any other US Credit Party or any ERISA
Affiliate to fail to make, full payment when due of all amounts which, under the
provisions of any Plan, agreement relating thereto or applicable law, any US
Credit Party or any ERISA Affiliate is required to pay as contributions thereto
(excluding non-payment or late payment of an amount that is not material);
(d) Fail to make a required contribution to any Plan which may result in
the imposition of a Lien as described in Section 412(n) of the Code;
(e) Fail to pay, or cause to be paid, to the PBGC in a timely manner, and
without incurring any late payment or underpayment charge or penalty, all
premiums required pursuant to Sections 4006 and 4007 of ERISA, except where such
failure could not reasonably be expected to have Material Adverse Effect;
(f) Amend, or permit any other US Credit Party or any ERISA Affiliate to
amend, a Plan resulting in an increase in current liability such that any US
Credit Party or any ERISA Affiliate is required to provide security to such Plan
under Section 401(a)(29) of the Code;
(g) Incur, or permit any other US Credit Party or any ERISA Affiliate to
incur, a material liability to or on account of a Plan under Sections 515, 4062,
4063, 4064, 4201 or 4204 of ERISA; or
(h) As regards to any Canadian Credit Party:
(1) Terminate, or permit the termination of, any Plan in a manner, or take
any other action with respect to any Plan, which could reasonably be
expected to result in any material liability of such Canadian Credit
Party to any Governmental Authority;
(2) Fail to make, or permit any other Canadian Credit Party to fail to
make, full payment when due of all amounts which, under the provisions
of any Plan, agreement relating thereto or applicable law, such
Canadian Credit Party is required to pay as contributions thereto,
except where the failure to make such payments could not reasonably be
expected to have Material Adverse Effect; or
(3) contribute to or assume an obligation to contribute to, or permit any
Subsidiary to contribute to or assume an obligation to contribute to,
any "multi-employer pension plan" as such term is defined in the
Pension Benefits Act (Ontario).
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SECTION 7.10 SALE OR DISCOUNT OF RECEIVABLES. Sell, or allow any other
Credit Party to sell, with or without recourse, for discount or otherwise, any
accounts, other than in connection with a sale or other disposition permitted by
Section 7.4.
SECTION 7.11 NEGATIVE PLEDGE AGREEMENTS. Create, incur, assume or suffer to
exist any contract, agreement or understanding which in any way prohibits or
restricts the granting, conveying, creation or imposition of any Lien on any
Property of any Credit Party, or which requires the consent of or notice to
other Persons in connection therewith, other than (a) this Agreement and the
other Financing Documents, (b) any agreements governing any purchase money Liens
or Capital Lease Obligations otherwise permitted hereby provided that any such
prohibition or limitation is only effective against the Property financed
thereby, (c) the 144A Indenture, and (d) any agreements governing any
Indebtedness incurred pursuant to any of Sections 7.2(c), (j) (l), (m) or (t)
provided that any such prohibition or limitation does not apply to any of the
Collateral.
SECTION 7.12 TRANSACTIONS WITH AFFILIATES. Sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) on terms and conditions not less favorable to it
than could be obtained on an arm's-length basis from unrelated third parties,
and (b) to the extent not prohibited herein. Neither the Company nor the
Borrowers will enter into any transaction or series of transactions, or permit
any Credit Party to enter into any transaction or series of transactions, with
their respective Affiliates which involve an outflow of money or other Property
from a Credit Party to an Affiliate who is not a Credit Party, including
repayment of Indebtedness of an Affiliate who is not a Credit Party, or payment
of management fees, affiliation fees, administration fees, compensation,
salaries, asset purchase payments or any other type of fees or payments similar
in nature, other than on terms and conditions substantially as favorable to the
Credit Parties as would be obtainable by the Credit Parties in a reasonably
comparable arm's-length transaction with a Person not an Affiliate, provided,
however, that, in any event, the aggregate amount of all management fees,
affiliation fees, administration fees and other similar fees (i) paid by the
Credit Parties in any Fiscal Year to an Affiliate who is not a Credit Party
shall not exceed $2,000,000, and (ii) paid by the US Credit Parties in any
Fiscal Year to the Canadian Credit Parties shall not exceed $10,000,000
(excluding reasonable allocations of overhead costs and other shared expenses
among Credit Parties). The foregoing restrictions shall not apply to: (i) the
payment of reasonable and customary fees to directors of a Credit Party who are
not employees of such Credit Party, (ii) any other transaction with any
employee, officer or director of a Credit Party pursuant to employee profit
sharing and/or benefit plans and compensation and non-competition arrangements
in amounts customary for corporations similarly situated to such Credit Party
and entered into in the ordinary course of business and approved, in respect of
officers and directors, by the board of directors of such Credit Party, or (iii)
any reimbursement of reasonable out-of-pocket costs incurred by an Affiliate of
a Credit Party on behalf of or for the account of such Credit Party.
SECTION 7.13 UNCONDITIONAL PURCHASE OBLIGATIONS. Except for take-or-pay
contracts for the purchase of energy entered into the ordinary course of
business, enter into or be a party to, or permit any other Credit Party to enter
into or be a party to, any material contract for the purchase of materials,
supplies or other property or services, if such contract requires that payment
be made by it regardless of whether or not delivery is ever made of such
materials, supplies or other property or services.
SECTION 7.14 EQUITY. After the Closing Date, authorize or issue, or permit
any other Credit Party to authorize or issue Equity to any Person other than (i)
issuances of Equity of the Company if no Change of Control results therefrom,
and (ii) issuance of Equity by any other Credit Party to any of the Borrowers or
other Credit Parties.
SECTION 7.15 [INTENTIONALLY DELETED.]
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SECTION 7.16 [INTENTIONALLY DELETED.]
SECTION 7.17 ACQUISITIONS; CREATION OF SUBSIDIARIES. (1) Make any
Acquisition, other than a Permitted Acquisition; or (2) create any subsidiary
unless (i) such subsidiary is a wholly owned subsidiary of a Credit Party and
the shares in the capital of such subsidiary have been pledged to the
Administrative Agent or the Canadian Administrative Agent, as applicable,
pursuant to the applicable Security Instruments, and (ii) such subsidiary shall
have executed and delivered a counterpart to the applicable Security Instruments
and such other agreements, documents and instruments as the Agents may
reasonably request, and shall have delivered such certificates, Lien search
reports, opinions of counsel and other items as the Administrative Agent may
reasonably require, in each case in form and substance satisfactory to the
Administrative Agent. Notwithstanding that an acquisition is a Permitted
Acquisition, the Borrowers shall not be permitted to include in the US Borrowing
Base or the Canadian Borrowing Base any components which would, but for this
Section 7.17, be included therein until the conditions set out in the last
sentence of the definition of "Permitted Acquisition" has been satisfied.
SECTION 7.18 ACCOUNTS. Neither the Borrowers nor any other Credit Parties
will maintain accounts with any bank or other depository institution or
otherwise maintain cash or cash equivalents other than (a) as permitted by
Section 7.6 hereof (which shall be subject to Liens therein in favor of the
Administrative Agent or the Canadian Administrative Agent, as applicable), (b)
the Disbursement Accounts and Blocked Accounts maintained with the Canadian
Lockbox Banks and the US Lockbox Banks, (c) those accounts identified in
Schedule 7.18 hereto on the Closing Date, (d) those accounts maintained with an
Eligible Institution (or another financial institution reasonably acceptable to
the Administrative Agent) but only so long as a first-priority Lien therein has
been perfected in favor of the Administrative Agent or the Canadian
Administrative Agent, as applicable (subject to the Borrowers' right to deliver
Lockbox Agreements and control agreements within the timeframes set forth in
Sections 4.3, 4.4 and 6.13(c)), (e) the PASUG Payment Account, the NSULC Payment
Account and the GUSAP Payment Account, and (f) payroll accounts maintained in
the ordinary course of business. In no event will the Borrowers maintain in any
payroll account permitted pursuant to this Section 7.18 funds in an amount in
excess of the aggregate payroll for one pay period for the employees of such
Borrowers paid from such accounts.
SECTION 7.19 OTHER RESTRICTIVE AGREEMENTS. Directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of any Credit
Party (other than the Company) to pay dividends or other distributions with
respect to any Equity or with respect to, or measured by, its profits or to make
or repay loans or advances to any other Credit Party or to provide a guarantee
of any Indebtedness of the Borrowers or any other Credit Party, (b) the ability
of the Borrowers to make any loan or advance to any other Borrower, or (c) the
ability of a Credit Party to sell, lease or transfer any of its property to
another Credit Party or any of the wholly-owned Subsidiaries; provided that (i)
the foregoing shall not apply to restrictions and conditions imposed by
applicable law, by this Agreement or by the 144A Indenture, (ii) the foregoing
shall not apply to restrictions and conditions imposed by any agreements
governing any Indebtedness incurred pursuant to any of Sections 7.2(c), (j), (l)
or (m), (iii) the foregoing clauses (b) and (c) shall not apply to restrictions
and conditions imposed by any agreements governing any Indebtedness incurred
pursuant to Section 7.2(t), (iv) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Credit Party pending such sale, provided such restrictions and conditions apply
only to the Credit Party that is to be sold and such sale is permitted
hereunder, (v) the foregoing clause (c) shall not apply to any agreement setting
forth customary restrictions on the subletting, assignment, or transfer of any
Property that is a lease, license, conveyance or contract of similar Property,
and (vi) the foregoing clause (c) shall not apply to any agreement, instrument
or other document evidencing a Permitted Lien from restricting on customary
terms the transfer of any Property subject to such Permitted Lien.
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SECTION 7.20 MODIFICATIONS AND PREPAYMENTS OF INDEBTEDNESS.
(a) Amend, modify, or waive any covenant contained in any instrument,
document or agreement governing the Indebtedness of the Credit Parties set forth
on Schedule 5.26 hereto if the effect of such amendment, modification, or waiver
would be to make the terms of such Indebtedness (taken as a whole) materially
more onerous to any Credit Party;
(b) Make any prepayment of, or redeem, or make any payment in defeasance
of, or repurchase, in any such case in cash, any part of the Indebtedness of the
Credit Parties (other than mandatory prepayments of Indebtedness incurred
pursuant to Section 7.2(l) or (m) and prepayments of Lender Indebtedness)
unless, immediately after giving effect to such prepayment, optional redemption,
payment in defeasance or repurchase (including any Loan made hereunder in
connection with any of the foregoing), Excess Availability is not less than
$75,000,000.
(c) Without limitation of the foregoing clause (b), at least 90 days prior
to the scheduled maturity of the Convertible Debentures, the Company shall
provide the Administrative Agent evidence of the repayment or redemption in full
of the Convertible Debentures (whether through a payment in cash permitted under
clause (b) or a conversion of the Convertible Debentures to equity) or notice of
the principal amount of the Convertible Debentures that remain outstanding on
the 90th day prior to the maturity thereof, in which event the Administrative
Agent shall have the right to establish Availability Reserves in an amount of up
to the outstanding principal amount of the Convertible Debentures, which
Availability Reserves will be released by the Administrative Agent on the date
of any repayment or redemption in full of the Convertible Debentures permitted
hereunder or on the date that the Company provides the Administrative Agent
evidence reasonably satisfactory to the Administrative Agent of the conversion
of the Convertible Debentures into Equity of the Company.
SECTION 7.21 FISCAL YEAR. Change its Fiscal Year without the prior written
consent of the Administrative Agent.
SECTION 7.22 MODIFICATION OF 144A DOCUMENTS. Amend, modify or waive any
provision of any of the 144A Indenture or any other material document,
instrument or agreement entered into by any Credit Party in connection with the
144A Transaction if the effect of such amendment, modification or waiver would
be to advance the scheduled payment dates for the 144A Notes, to increase the
rate of interest payable under the 144A Notes, or to effect any other change
which could reasonably be expected to be materially adverse to the interests of
the Lenders (including granting a Lien over any Property of any Credit Party to
secure the 144A Notes).
ARTICLE 8
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "EVENT OF DEFAULT"):
SECTION 8.1 PAYMENTS. Any of the Borrowers shall fail to pay when due
(including, but not limited to, any mandatory prepayment required pursuant to
Section 2.11) any principal or any interest of any Loan or any Note, or any
Reimbursement Obligation or any fee or any other amount payable hereunder or
under the Fee Letter or any other Financing Document;
SECTION 8.2 OTHER COVENANTS. Any Borrower shall fail to observe or perform
any covenant or agreement contained in Sections 6.1(b), 6.7, 6.10(g)(1),
6.10(h)(2), 6.11, 6.12 or Article 7;
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SECTION 8.3 OTHER FINANCING DOCUMENT OBLIGATIONS. Any Borrower shall fail
to observe or perform any covenant, condition or agreement contained in this
Agreement (other than those specified in Section 8.1 or Section 8.2) or any
Credit Party shall fail to observe or perform any covenant, condition or
agreement contained any Financing Document other than this Agreement and such
failure continues unremedied, in the case of Section 6.5 or 6.10(d)(I), for a
period of five (5) days after the earlier of (i) written notice thereof from the
Administrative Agent to the Company, and (ii) the date on which a Credit Party
becomes aware of such failure, and in all other cases, for a period of ten (10)
days after the earlier of (y) written notice thereof from the Administrative
Agent to the Company, and (z) the date on which a Credit Party becomes aware of
such failure;
SECTION 8.4 REPRESENTATIONS. Any representation, warranty or statement made
or deemed to be made by any Borrower or any other Credit Party or any of any
Borrower's or any other Credit Party's officers herein or in any other Financing
Document, or in any certificate, request or other document furnished pursuant to
or under this Agreement or any other Financing Document, shall have been
incorrect in any respect as of the date when made or deemed to be made;
SECTION 8.5 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Credit Party shall fail
to make any payment or payments of principal of or interest on any Indebtedness
of such Credit Party which Indebtedness is in an aggregate amount of $10,000,000
or greater after giving effect to any applicable grace period;
SECTION 8.6 DEFAULTS UNDER OTHER AGREEMENTS. Any Credit Party shall fail to
observe or perform any covenant or agreement contained in any agreement(s) or
instrument(s) relating to Indebtedness of any Credit Party of $10,000,000 or
more in the aggregate within any applicable grace period, or any other event
shall occur, if the effect of such failure or other event is to accelerate, or
to permit the holder of such Indebtedness or any other Person to accelerate, the
maturity of $10,000,000 or more in the aggregate of such Indebtedness; or
$10,000,000 or more in the aggregate of any such Indebtedness shall be, or if as
a result of such failure or other event may be, required to be prepaid (other
than prepayments resulting from excess cash flow) in whole or in part prior to
its stated maturity;
SECTION 8.7 BANKRUPTCY UNDER US LAW. Any Credit Party shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy" as now or hereafter in effect, or any successor thereto
(the "BANKRUPTCY CODE"); or an involuntary case is commenced against any Credit
Party and the petition is not controverted within ten days, or is not stayed or
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or any
substantial part of the property of any Credit Party; or any Credit Party
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to any
Credit Party or there is commenced against any Credit Party any such proceeding
which remains unstayed or undismissed for a period of 60 days; or any Credit
Party is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or any Credit Party
suffers any appointment of any custodian or the like for it or any substantial
part of its Property to continue undischarged or unstayed for a period of 60
days; or any Credit Party makes a general assignment for the benefit of
creditors; or any Credit Party shall fail to pay, or shall state in writing that
it is unable to pay, or shall be unable to pay, its debts generally as they
become due; or any Credit Party shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or any action
is taken by any Credit Party for the purpose of effecting any of the foregoing;
SECTION 8.8 BANKRUPTCY UNDER CANADIAN LAW.
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(a) Any Canadian Credit Party (1) becomes insolvent, or generally does not
or becomes unable to pay its debts or meet its liabilities as the same become
due, or admits in writing its inability to pay its debts generally, or declares
any general moratorium on its indebtedness, or proposes a compromise or
arrangement between it and any class of its creditors; (2) commits an act of
bankruptcy under the Bankruptcy and Insolvency Act (Canada), or makes an
assignment of its property for the general benefit of its creditors under such
Act, or makes a proposal (or files a notice of its intention to do so) under
such Act; (3) institutes any proceeding seeking to adjudicate it an insolvent,
or seeking liquidation, dissolution, winding-up, reorganization, compromise,
arrangement, adjustment, protection, moratorium, relief, stay of proceedings of
creditors generally (or any class of creditors), or composition of it or its
debts or any other relief, under any federal, provincial or foreign Law now or
hereafter in effect relating to bankruptcy, winding-up, insolvency,
reorganization, receivership, plans of arrangement or relief or protection of
debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada) and any applicable corporations legislation)
or at common law or in equity, or files an answer admitting the material
allegations of a petition filed against it in any such proceeding; (4) applies
for the appointment of, or the taking of possession by, a receiver, interim
receiver, receiver/manager, sequestrator, conservator, custodian, administrator,
trustee, liquidator or other similar official for it or any substantial part of
its property; or (5) takes any action, corporate or otherwise, to approve,
effect, consent to or authorize any of the actions described in this Section
8.8, or otherwise acts in furtherance thereof or fails to act in a timely and
appropriate manner in defense thereof; or
(b) Any petition is filed, application made or other proceeding instituted
against or in respect of any Canadian Credit Party: (1) seeking to adjudicate it
an insolvent; (2) seeking a receiving order against it under the Bankruptcy and
Insolvency Act (Canada); (3) seeking liquidation, dissolution, winding-up,
reorganization, compromise, arrangement, adjustment, protection, moratorium,
relief, stay of proceedings of creditors generally (or any class of creditors),
or composition of it or its debts or any other relief under any federal,
provincial or foreign Law now or hereafter in effect relating to bankruptcy,
winding-up, insolvency, reorganization, receivership, plans of arrangement or
relief or protection of debtors (including the Bankruptcy and Insolvency Act
(Canada), the Companies' Creditors Arrangement Act (Canada) and any applicable
corporations legislation) or at common law or in equity; or (4) seeking the
entry of an order for relief or the appointment of, or the taking of possession
by, a receiver, interim receiver, receiver/manager, sequestrator, conservator,
custodian, administrator, trustee, liquidator or other similar official for it
or any substantial part of its property; and in any case describe in clause
(b)(1) through (4) such petition, application or proceeding continues
undismissed, or unstayed and in effect, for a period of 60 days after the
institution thereof, provided that if an order, decree or judgment is granted or
entered (whether or not entered or subject to appeal) against any Canadian
Credit Party thereunder in the interim, such 60-day period will cease to apply,
and provided further that if any Canadian Credit Party files an answer admitting
the material allegations of a petition filed against it in any such proceeding,
such 60-day period will cease to apply;
SECTION 8.9 MONEY JUDGMENT. Judgments or orders for the payment of money
involving in the aggregate at any time a liability (net of any insurance
proceeds or indemnity payments actually received in respect thereof prior to or
within 30 days from the entry thereof) of more than $5,000,000 (or the Dollar
Equivalent thereof), or that could reasonably be expected to have a Material
Adverse Effect, shall be rendered against any Credit Party and such judgment or
order shall continue unsatisfied in accordance with the terms of such judgment
or order and in effect for a period of 30 days during which execution shall not
be effectively discharged, stayed or deferred (whether by action of a court, by
agreement or otherwise);
SECTION 8.10 FINANCING DOCUMENTS. Any provision of any of the Financing
Documents after delivery thereof shall for any reason cease to be in full force
and effect and valid, binding and enforceable (except as enforceability may be
limited as stated in Section 5.3) in accordance with its terms, or, in the
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case of any of the Security Instruments, cease to create a valid and perfected
Lien of the priority contemplated thereby on any of the collateral purported to
be covered thereby, or any Credit Party shall so state in writing;
SECTION 8.11 NON-MONETARY JUDGMENT. One or more final judgments, not
involving the payment of money, has been rendered against any Credit Party, the
result of which could reasonably be expected to result in a Material Adverse
Effect;
SECTION 8.12 ASSET SEIZURES. Any property of any Credit Party having a fair
market value in excess of $5,000,000 (or its then equivalent in any other
currency) in the aggregate is seized (including by way of execution, attachment,
garnishment, levy or distraint), or any Lien thereon securing Indebtedness in
excess of $5,000,000 (or its then equivalent in any other currency) is enforced,
or such property has become subject to any charging order or equitable execution
of a Governmental Authority, or any writ of execution or distress warrant exists
in respect of any Credit Party or the property of any of them, or any sheriff or
other Person becomes lawfully entitled by operation of law or otherwise to seize
or distrain upon such property and in any case such seizure, enforcement,
execution, attachment, garnishment, distraint, charging order or equitable
execution, or other seizure or right, continues in effect and is not released or
discharged for more than 30 days or such longer period during which entitlement
to the use of such property continues with any Credit Party, and the Credit
Party is contesting the same in good faith and by appropriate proceedings,
provided that if the property is removed from the use of the Credit Party or is
sold in the interim, such grace period will cease to apply;
SECTION 8.13 CHANGE OF CONTROL. The occurrence of a Change of Control; or
SECTION 8.14 MATERIAL ADVERSE CHANGE. The occurrence of a Material Adverse
Change; provided that changes in general economic conditions or general industry
conditions shall not constitute a Material Adverse Change for the purposes of
this Section 8.14;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent or the Canadian
Administrative Agent, upon the written request of the Required Lenders, shall,
by written notice to the Borrowers, take any or all of the following actions,
without prejudice to the rights of the any Agent, any Lender or the holder of
any Note to enforce its claims against any Credit Party: (i) declare the
Revolving Credit Commitments, the US Swingline Commitments, the Canadian
Swingline Commitments and other lending obligations, if any, terminated,
whereupon the Revolving Credit Commitments and other lending obligations, if
any, of each Lender hereunder shall terminate immediately; (ii) declare the
entire principal amount of and all accrued interest on all Lender Indebtedness
then outstanding to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest, notice of protest or dishonor,
notice of acceleration, notice of intent to accelerate or other notice of any
kind, all of which are hereby expressly waived by each Credit Party, and
thereupon take such action as it may deem desirable under and pursuant to the
Financing Documents; provided, that, if an Event of Default specified in Section
8.7 or Section 8.8 shall occur, the result which would occur upon the giving of
written notice by the Administrative Agent or the Canadian Administrative Agent
to the Borrowers, as specified in clauses (i) and (ii) above, shall occur
automatically without the giving of any such notice; (iii) if any US Letter of
Credit shall then be outstanding, demand L/C Cover which the US Borrowers shall
immediately pay to the Administrative Agent for deposit in a cash collateral
account maintained by the Administrative Agent; and (iv) if any Canadian Letter
of Credit shall then be outstanding, demand L/C Cover which the Canadian
Borrowers shall immediately jointly and severally pay to the Canadian
Administrative Agent for deposit in a cash collateral account maintained by the
Canadian Administrative Agent. Without limiting the foregoing, if any Event of
Default shall then be continuing, the Administrative Agent or the Canadian
Administrative Agent may, and at the request of the Required Lenders, shall (A)
reduce the Commitments, (B) restrict the
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amount of further Loans or refuse to make any further Loans, or add new
limitations on the Canadian Borrowing Base and the US Borrowing Base, (C) limit
Letter of Credit availability, (D) apply the default interest rate contemplated
by Section 2.6(e), (E) exercise dominion and control over Blocked Accounts, (F)
require the establishment of new Lockboxes, one for each US Operating Borrower,
(G) require cash collateral for Letters of Credit, (H) exercise any other
remedies available in the other Financing Documents, including foreclosure upon
and sale of Collateral, and (I) exercise any other remedies as may be available
at law or in equity. Following any Event of Default, the Administrative Agent
and the Canadian Administrative Agent shall have the right, at their sole
discretion, to make Agent Advances as provided in Section 2.28(a).
ARTICLE 9
AGENTS
SECTION 9.1 APPOINTMENT OF AGENTS. Each Lender and Risk Participant (and
each Secured Affiliate and Cash Management Affiliate, by and through its
affiliated Lender or Risk Participant), and each Issuing Bank, hereby designates
Bank of America as Administrative Agent and Bank of America - Canada Branch as
Canadian Administrative Agent, as herein specified and as specified in the other
Financing Documents. Each Lender and Risk Participant (and each Secured
Affiliate and Cash Management Affiliate by and through its affiliated Lender or
Risk Participant), and each Issuing Bank, hereby irrevocably authorizes each of
the respective Agents to take such action on its behalf under the provisions of
this Agreement, the Notes, and the other Financing Documents and to exercise
such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the respective Agents by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
Bank of America agrees to act as Administrative Agent hereunder and Bank of
America - Canada Branch agrees to act as Canadian Administrative Agent
hereunder, in each case on the express terms and conditions contained in this
Article 9. Each of the Agents may perform any of its duties hereunder by or
through its agents, employees or attorneys-in-fact, and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
provisions of this Article 9 are solely for the benefit of the Agents, the
Lenders, the Risk Participants and the Lenders' and Risk Participant's
Affiliates. The Borrowers and the other Credit Parties shall have no rights as
third party beneficiaries of any of the provisions contained herein. Except as
expressly otherwise provided in this Agreement and the other Financing
Documents, the Agents shall have and may use their sole discretion with respect
to exercising or refraining from exercising any discretionary rights or taking
or refraining from taking any actions which any of the Agents is entitled to
take or assert under this Agreement and the other Financing Documents, including
the determination of the applicability of ineligibility criteria with respect to
calculation of any portion of the US Borrowing Base or the Canadian Borrowing
Base, the making of Agent Advances pursuant to Section 2.28, and the exercise of
remedies hereunder and under the other Financing Documents. Any action so taken
or not taken shall be deemed to be consented to by the Lenders and Risk
Participants.
SECTION 9.2 LIMITATION OF DUTIES OF AGENTS AND FUNDING BANKS.
Notwithstanding anything to the contrary contained in this Agreement or any of
the other Financing Documents, neither of the Agents shall have any duties or
responsibilities except those expressly set forth in this Agreement and as
specified in the other Financing Documents. Neither of the Agents nor any
Funding Bank nor any of their respective officers, directors, employees or
agents shall be liable for any action taken or omitted by it as such hereunder
or in connection herewith, unless caused by its or their gross negligence or
willful misconduct. The duties of each of the Agents and Funding Banks shall be
mechanical and administrative in nature; no Agent or Funding Bank shall have by
reason of this Agreement a fiduciary relationship in respect of any Lender or
Risk Participant; and nothing in this Agreement, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent or Funding Bank
any obligations in respect of this Agreement except as expressly set forth
herein.
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SECTION 9.3 LACK OF RELIANCE ON THE AGENTS.
(a) INDEPENDENT INVESTIGATION. Independently and without reliance upon
either of the Agents or Funding Banks, each Lender and Risk Participant hereby
acknowledges that, by becoming a party to this Agreement as a Lender or Risk
Participant hereunder, to the extent it deems appropriate, it has made and shall
continue to make its own independent investigation of the financial condition
and affairs of the Credit Parties in connection with the taking or not taking of
any action in connection herewith, and its own appraisal of the creditworthiness
of the Credit Parties, and, except as expressly provided in this Agreement, and
the other Financing Documents, neither of the Agents nor any Funding Bank shall
have any responsibility, either initially or on a continuing basis, to provide
any Lender or Risk Participant with any credit or other information with respect
thereto, whether coming into its possession before the consummation of the
transactions contemplated herein or at any time or times thereafter.
(b) AGENTS NOT RESPONSIBLE. Neither of the Agents nor any Funding Bank
shall be responsible to any Lender, Risk Participant or any Issuing Bank for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, the Notes, the
Letters of Credit or the other Financing Documents or the financial condition of
any Credit Party or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement, the Notes or the other Financing Documents, or the financial
condition of any Credit Party, or the existence or possible existence of any
Default.
SECTION 9.4 CERTAIN RIGHTS OF THE AGENTS. If either of the Agents shall
request instructions from the Required Lenders with respect to any act or action
(including the failure to act) in connection with this Agreement, the Notes and
the other Financing Documents, then it shall be entitled to refrain from such
act or taking such action unless and until it shall have received instructions
from the Required Lenders; and neither of the Agents shall incur such liability
to any Person by reason of so refraining. Without limiting the foregoing, no
Lender or Risk Participant shall have any right of action whatsoever against
either of the Agents as a result of either Agent, as applicable, acting or
refraining from acting under this Agreement, the Notes and the other Financing
Documents in accordance with the instructions of the Required Lenders, or to the
extent required by Section 10.2, all of the Lenders and Risk Participants.
SECTION 9.5 RELIANCE BY AGENTS AND FUNDING BANKS. Each of the Agents and
Funding Banks shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cablegram, radiogram, order or other
documentary teletransmission, telephone message or other communication believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person. Each of the Agents may consult with legal counsel (including
counsel for any Credit Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts. Each of the Agents shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any of the
other Financing Documents in accordance with a request or consent of the
Required Lenders (or all or any portion of the Lenders and Risk Participants, as
required under Section 10.2) and such request and any action taken or any
failure to act pursuant thereto shall be binding upon all of the Lenders and
Risk Participants.
SECTION 9.6 NOTICE OF DEFAULT. Neither of the Agents nor the Funding Banks
shall be deemed to have knowledge or notice of the occurrence of any Default,
unless the Agents shall have received written notice from a Lender, Risk
Participant or a Borrower referring to this Agreement, describing such
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Default and stating that such notice is a "notice of Default". The Agents will
notify the Lenders and Risk Participants of their receipt of any such notice,
and the Agents shall take such action with respect to such Default as may be
requested by the Required Lenders in accordance with Article 8 hereof; provided,
however, that unless and until the Agents have received any such request, the
Agents, or either of them, may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as the Agents,
or either of them, shall deem advisable.
SECTION 9.7 INDEMNIFICATION OF AGENTS. To the extent either of the Agents
is not reimbursed and indemnified by the Borrowers, each Lender and Risk
Participant will reimburse and indemnify each of the Agents in accordance with
its Pro Rata Share for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
reasonable counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent, or either of them, in performing its duties hereunder, in any way
relating to or arising out of this Agreement; provided that no Lender or Risk
Participant shall be liable to the Agents for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from, as to such Agents, such Agents' gross
negligence or willful misconduct. The undertakings in this Section 9.7 shall
survive the payment of all Lender Indebtedness hereunder and the resignation or
replacement of either or both of the Agents.
SECTION 9.8 AGENTS IN THEIR INDIVIDUAL CAPACITY. With respect to its
obligations under this Agreement, the Loans made by it and the Notes issued to
it, each of the Agents and its Affiliates shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though it were not performing the duties, if any, specified herein; and the
terms "Required Lenders," "holders of Notes" or any similar terms shall, unless
the context clearly otherwise indicates, include each of the Agents in its
individual capacity. Each of the Agents may accept deposits from, lend money to,
and generally engage in any kind of banking, trust, financial advisory or other
business with any Credit Party or any Affiliate of any Credit Party as if it
were not performing the duties, if any, specified herein, and may accept fees
and other consideration from any Credit Party for services in connection with
this Agreement and otherwise without having to account for the same to the
Lenders.
SECTION 9.9 TREATMENT OF LENDERS AND RISK PARTICIPANTS. Each Borrower, each
Agent and each Issuing Bank may deem and treat each Lender as the owner of such
Lender's Commitments, Loans, Notes and other interests hereunder for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Administrative Agent and the Canadian
Administrative Agent. Each Borrower, each Agent, each Issuing Bank and each
Funding Bank may deem and treat each Risk Participant as the party having the
rights and obligations relating to such Risk Participant's Applicable Risk
Participation Commitment for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Administrative Agent, the Canadian Administrative Agent and the Applicable Fund.
SECTION 9.10 PAYMENTS BY AGENTS AND FUNDING BANKS TO LENDERS AND RISK
PARTICIPANTS.
(a) For ease of administration of this Agreement, each Funding Bank directs
the applicable Agent to pay to each applicable Risk Participant (and each Agent
agrees to pay to each applicable Risk Participant), from amounts actually
received by such Agent on behalf of such Funding Bank, such Risk Participant's
Canadian Risk Participation Fee, Canadian Revolving Credit Loan Commitment Fee,
US Risk Participation Fee and US Revolving Credit Loan Commitment Fee, as
applicable, as and when due and payable hereunder. For greater certainty, the
provisions of Section 2.21 shall apply in respect of any such payments as if
made directly by the Applicable Funding Bank and the applicable Agent shall be
entitled to debit the applicable Borrowers' accounts for any amounts payable by
the Borrowers as provided in Section 2.21.
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(b) All payments to be made by either of the Agents and Funding Banks to
the Lenders and Risk Participants shall be made by bank wire transfer or
internal transfer of immediately available funds to each Lender and Risk
Participants pursuant to wire transfer instructions delivered in writing to the
Administrative Agent or the Canadian Administrative Agent, as applicable, on or
prior to the Closing Date (or if such Lender or Risk Participant has become a
Lender or Risk Participant hereunder pursuant to Section 10.7(b), in the
applicable Assignment and Acceptance), or pursuant to such other wire transfer
instructions as each party may designate for itself by written notice to the
Administrative Agent or the Canadian Administrative Agent, as applicable.
Concurrently with each such payment, the Administrative Agent or the Canadian
Administrative Agent, as applicable, shall identify whether such payment (or any
portion thereof) represents principal, premium or interest on the Loans or
otherwise and the Funding Banks shall identify the nature of any payment made by
them. Unless the Agents (or Funding Banks, as applicable) receive notice from
the Company prior to the date on which any payment is due to the Lenders or Risk
Participants, as applicable, that the Borrowers will not make such payment in
full as and when required, the Agents and Funding Banks may assume that the
Borrowers have made such payment in full to the applicable Agent or Applicable
Funding Bank on such date in immediately available funds and the Agents or
Applicable Funding Bank may (but shall not be so required), in reliance upon
such assumption, distribute to each Lender or, in accordance with the direction
set forth in Section 9.10(a), to each Risk Participant, as applicable, on such
due date an amount equal to the amount then due such Lender or Risk Participant,
as applicable. If and to the extent the Borrowers have not made such payment in
full to the Agents or Funding Banks, each Lender or Risk Participant, as
applicable, shall repay to the Agents or Funding Banks, as applicable, on demand
such amount distributed to such Lender or Risk Participant, as applicable,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Lender or Risk Participant, as
applicable, until the date repaid.
SECTION 9.11 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS.
(a) Each of the Lenders agrees that it shall not, unless it is specifically
requested to do so by the Agents, set off against the Lender Indebtedness, any
amounts owing by such Lender to any Borrower or any other Credit Party, or any
accounts of any Borrower or any other Credit Party, in any such case whether now
or hereafter maintained with such Lender. Each of the Lenders further agrees
that it shall not, unless specifically requested to do so by the Agents, take or
cause to be taken any action to enforce its rights under this Agreement or
against the Borrowers and the other Credit Parties, including the commencement
of any legal or equitable proceedings, to foreclose any Lien on, or otherwise
enforce any security interest in, any of the Collateral.
(b) If at any time or times any Lender shall receive (i) by payment,
foreclosure, setoff or otherwise, any proceeds of Collateral or any payments
with respect to the Lender Indebtedness owing to such Lender arising under, or
relating to, this Agreement or the other Financing Documents, except for any
such proceeds or payments received by such Lender from the Agents pursuant to
the terms of this Agreement, or (ii) payments from the Agents in excess of such
Lender's ratable portion of all such distributions by the Agents, such Lender
shall promptly (1) turn the same over to the Agents, in kind, and with such
endorsements as may be required to negotiate the same to the Agents, or in same
day funds, as applicable, for the account of all of the Lenders and for
application to the Lender Indebtedness in accordance with the applicable
provisions of this Agreement, or (2) purchase, without recourse or warranty, an
undivided interest and participation in the Lender Indebtedness owed to the
other Lenders so that such excess payment received shall be applied ratably as
among the Lenders in accordance with their Applicable Percentages; provided,
however, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases of participations shall
be rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party, but
without interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.
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SECTION 9.12 SUCCESSOR AGENT.
(a) RESIGNATION. Either of the Agents may resign at any time by giving
written notice thereof to the Lenders, the Risk Participants, the Issuing Banks
and the Borrowers. Upon any such resignation, the Required Lenders shall have
the right, upon five days' notice to the Borrowers, to appoint a successor
Administrative Agent or Canadian Administrative Agent, as applicable (to act in
the same capacity as the resigning Agent), subject to the prior written approval
of the Borrowers, such approval not to be unreasonably withheld and not to be
required during the existence of a Default. If no successor Administrative Agent
or Canadian Administrative Agent, as applicable, shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the resigning Agent's giving of notice of resignation then, upon five
days' notice to the Borrowers, the resigning Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent or Canadian Administrative
Agent, as applicable (subject to approval of the Borrowers, such approval not to
be unreasonably withheld and not to be required during the existence of a
Default), which, if the resigning Agent was the Canadian Administrative Agent,
shall be an entity that is not a non-resident of Canada for purposes of the
Income Tax Act (Canada) and if the resigning Agent was the Administrative Agent,
shall be a bank or finance company which maintains an office in the United
States, or a commercial bank organized under the laws of the United States of
America or of any State thereof, or any Affiliate of such bank or finance
company, having a combined capital and surplus of at least $250,000,000.
(b) RIGHTS, POWERS, ETC. Upon the acceptance of any appointment as an 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
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement.
SECTION 9.13 COLLATERAL AGENTS, DOCUMENTATION AGENTS AND ARRANGERS.
Notwithstanding anything contained in this Article 9 or any other Financing
Document to the contrary, neither the Collateral Agent, the Canadian Collateral
Agent nor either of the Co-Documentation Agents shall have any right, power,
obligation, liability, responsibility or duty under this Agreement or any other
Financing Document other than those applicable to all Lenders as such.
Notwithstanding anything contained in this Article 9 or any other Financing
Document to the contrary, neither of the Arrangers shall have any obligation,
liability, responsibility or duty under this Agreement or any other Financing
Document.
SECTION 9.14 FIELD AUDIT AND EXAMINATION REPORTS. By signing this
Agreement, each Lender and Risk Participant:
(a) is deemed to have requested that the Agents furnish such Lender or Risk
Participant, promptly after it becomes available, a copy of each field audit or
examination report (each a "Report" and collectively, "Reports") prepared by or
on behalf of either Agent;
(b) expressly agrees and acknowledges that none of the Agents nor any
Lender or Risk Participant (i) makes any representation or warranty as to the
accuracy of any Report, or (ii) shall be liable for any information contained in
any Report;
(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that each of the Agents, any Lender, any
Risk Participant or any other party performing any audit or examination will
inspect only specific information regarding the Credit Parties and will rely
significantly upon the Credit Parties' books and records, as well as on
representations of the Credit Parties' personnel;
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(d) agrees to keep all Reports confidential and strictly for its internal
use, and not to distribute except to its Participants or otherwise as permitted
under Section 10.12, or use any Report in any other manner; and
(e) without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold each of the Agents, any such
Lender, any such Risk Participant or such other party preparing a Report
harmless from any action the indemnifying Lender or Risk Participant may take or
conclusion the indemnifying Lender or Risk Participant may reach or draw from
any Report in connection with any Loans or other credit accommodations that the
indemnifying Lender has made or may make to the Borrowers and the other Credit
Parties, or the indemnifying Lender's participation in, or the indemnifying
Lender's purchase of, a Loan or Loans of the Borrowers, or the indemnifying Risk
Participant's Risk Participation in any Loans or other obligations of the
Borrowers; and (ii) to pay and protect, and indemnify, defend and hold the
Agents, any such other Lender or Risk Participant, and any such other party
preparing a Report harmless from and against, the claims, actions, proceedings,
damages, costs, expenses and other amounts (including reasonable legal fees and
disbursements) incurred by the Agents, any such other Lender or Risk
Participant, or any such other party preparing a Report as the direct or
indirect result of any third parties who might obtain all or part of any Report
through the indemnifying Lender or Risk Participant.
SECTION 9.15 AGENCY FOR PERFECTION. Each Lender and Risk Participant hereby
appoints each other Lender and Risk Participant as agent for the purpose of
perfecting the Secured Parties' security interest in assets which, in accordance
with Article 9 of the UCC can be perfected only by possession. Should any Lender
(other than the Administrative Agent) or Risk Participant obtain possession of
any such Collateral, such Lender or Risk Participant shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent's
request therefor shall deliver such Collateral to the Administrative Agent or in
accordance with the Administrative Agent's instructions.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including, telecopy or similar
teletransmission or writing) and shall be given to such party at its address or
telecopy number set forth on the signature pages hereof (or, in the case of any
Person that becomes a Lender or Risk Participant after the date hereof, at the
address shown in the Assignment and Acceptance pursuant to which such Person
became a Lender or Risk Participant) or such other address or telecopy number as
such party may hereafter specify by notice to the Canadian Administrative Agent,
the Administrative Agent and the Company. Each such notice, request or other
communication shall be effective (a) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (b) if given by any other means (including by air
courier), when delivered at the address specified on the signature pages hereto;
provided that notices to any Agent, any Lender, any Risk Participant or any
Credit Party shall not be effective until actually and physically received. Any
notice to be given to any Borrower or to all Borrowers pursuant to this
Agreement or any of the other Financing Documents may be given to the Company or
to any other Borrower, and if given to the Company or to any Borrower in the
manner set forth in this Section 10.1, such notice shall be deemed to be
effective notice to all Borrowers for purposes of this Agreement.
SECTION 10.2 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Financing Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.2. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent and the Canadian Administrative Agent
may, from time to time, (x) enter into with the Borrowers, written amendments,
supplements or modifications
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hereto and to the other Financing Documents for the purpose of adding any
provisions to this Agreement or to the other Financing Documents or changing in
any manner the rights or obligations of the Lenders, the Risk Participants or
the Borrowers hereunder or thereunder, or (y) waive at the Borrowers' request,
on such terms and conditions as the Required Lenders or the Administrative Agent
and the Canadian Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Financing
Documents or any Default and its consequences; provided, however, that no such
waiver and no such amendment, supplement or modification shall:
(a) reduce the amount or extend the scheduled date of maturity of any Loan
or any Reimbursement Obligation or of any scheduled installment thereof or
reduce the stated rate of any interest or fee payable hereunder or extend the
date of any payment thereof or modify any provision that provides for the
ratable sharing by the Lenders (or any sub-set of the Lenders) of any payment or
prepayment of Lender Indebtedness to provide for a non-ratable sharing thereof
or increase the amount or extend the expiration date of any Lender's Revolving
Credit Commitment or amend, modify or waive any provision of Section 2.11(f),
(g), (h) or (i) or Section 2.20, in each case without the prior written consent
of each Lender directly affected thereby and each and Risk Participant directly
affected thereby through its Applicable Risk Participation;
(b) change the currency in which any Loan or Reimbursement Obligation is
payable or amend, modify or waive any provision of this Section 10.2 or reduce
the percentage specified in the definition of Required Lenders without the
written consent of all of the Lenders and Risk Participants;
(c) release any Guarantee or part of the Collateral having a value
(determined at the lesser of market or book value) in excess of $10,000,000
without the written consent of all of the Lenders and Risk Participants, except
as expressly permitted hereby, provided that the applicable Agent may release
(without consent from the Lenders and Risk Participants) any Collateral, and may
release a Credit Party from the Guarantees, if such Collateral or Credit Party,
as applicable, is sold, transferred or otherwise disposed of as permitted by
Section 7.4;
(d) amend, modify or waive any provision of Article 9 without the written
consent of the Agent directly affected thereby;
(e) amend, modify or waive (1) any Letter of Credit Liability without the
written consent of the applicable Issuing Bank or (2) any Letter of Credit
without the consent of each Lender and Risk Participant if such Letter of
Credit, after giving effect to such amendment, modification or waiver, would no
longer satisfy the requirements hereof if such Letter of Credit was being issued
ab initio at such time, provided that in all cases other than clauses (1) or
(2), only the consent of the applicable Issuing Bank shall be required to amend,
modify or waive any Letter of Credit;
(f) amend or modify the definitions of Canadian Borrowing Base, US
Borrowing Base, Eligible Account Advance Percentage, Eligible Inventory Advance
Percentage, Eligible Accounts or Eligible Inventory or any of the defined terms
used in such definitions, without the written consent of the Administrative
Agent and all of the Lenders and Risk Participants;
(g) amend or modify the definition of Block Event or any term or condition
of this Agreement where such definition is referred to, without the written
consent of all of the Lenders and Risk Participants;
(h) amend or modify the definition of Pro Rata Share without the written
consent of all of the Lenders and Risk Participants;
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(i) amend or modify Section 2.26 or Section 2.27 without the consent of the
US Swingline Lender and the Canadian Swingline Lender, respectively; or
(j) amend, modify or waive any of the (A) rights or obligations of either
Funding Bank without the consent of such Funding Bank, (B) any of the provisions
of Section 2.8(a) without the consent of the Canadian Funding Bank and each
Canadian Risk Participant, or (C) any of the provisions of Section 2.8(b)
without the consent of the US Funding Bank and each US Risk Participant.
In addition, neither the Administrative Agent nor the Canadian
Administrative Agent shall realize on any pledge of shares or stock forming part
of the Collateral if such realization would result in the Lenders having
beneficial ownership, control or title of any such pledged shares or stock,
without the prior written consent of each Lender and Risk Participant.
No consent of the Lenders or any Risk Participant shall be required
hereunder in connection with any waiver or amendment of the Fee Letter or any
Swap Agreement or Cash Management Agreement. The Agents may, in their sole
discretion in accordance with Section 2.28 and the other terms of this
Agreement, make Agent Advances without the consent of any Revolving Lender or
Risk Participant. Any waiver and any amendment, supplement or modification
pursuant to this Section 10.2 shall apply to each of the Lenders and Risk
Participants and shall be binding upon each Borrower, the Lenders, the Risk
Participants, the Agents and all future holders of the Loans. In the case of any
waiver, the Borrowers, the other Credit Parties, the Lenders, the Risk
Participants and the Agents shall be restored to their former position and
rights hereunder and under the other Financing Documents, and any Default waived
shall be deemed to be cured and not continuing, but no such waiver shall extend
to any subsequent or other Default, or impair any right consequent thereon.
If, in connection with any proposed amendment, waiver or consent (a
"PROPOSED CHANGE") requiring the consent of all Lenders and Risk Participants,
the consent of Required Lenders is obtained, but the consent of other Lenders or
Risk Participants is not obtained (any such Lender or Risk Participant whose
consent is not obtained as described in this paragraph being referred to as a
"NON-CONSENTING PARTY"), then, so long as the Administrative Agent is not a
Non-Consenting Party, at the Borrowers' request, the Administrative Agent, or an
assignee that is acceptable to the Administrative Agent, shall have the right
(but not the obligation) to purchase from the Non-Consenting Parties (and their
Related Affiliates), and the Non-Consenting Parties (and their Related
Affiliates) agree that they shall sell, all the Non-Consenting Parties' (and
their Related Affiliates') Commitments, Loans and, if applicable, Risk
Participations, without premium or discount, in accordance with the provisions
of Section 10.7 as if each such Non-Consenting Party (and Related Affiliate) is
an assignor Lender or Risk Participant under Section 10.7.
SECTION 10.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of any Borrower, any Agent, any Issuing Bank, any Lender, any Risk
Participant or any holder of any Note in exercising any right or remedy under
this Agreement or any other Financing Document and no course of dealing between
any Borrower and any Agent, any Issuing Bank, any Lender, any Risk Participant
or any holder of any Note shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy under the Notes, this
Agreement or any other Financing Document preclude any other or further exercise
thereof or the exercise of any other right or remedy under the Notes, this
Agreement or any other Financing Document. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which any Borrower, any Agent, any Issuing Bank, any Lender or any Risk
Participant would otherwise have. No notice to or demand on any Borrower not
required under the Notes, this Agreement or any other Financing Document in any
case shall entitle any Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of
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any Agent, any Issuing Bank, the Lenders or the Risk Participants to any other
or further action in any circumstances without notice or demand.
SECTION 10.4 PAYMENT OF EXPENSES, INDEMNITIES, ETC. Each Borrower agrees to
(and shall be jointly and severally liable for):
(a) EXPENSES. Whether or not the transactions hereby contemplated are
consummated, pay all out-of-pocket costs and expenses of the Agents and each
Issuing Bank in the administration (both before and after the execution hereof
and including advice of Canadian and US counsel for all Agents as to the rights
and duties of such Agents with respect thereto) of, and in connection with the
preparation, execution and delivery of, recording or filing of, preservation of
rights under, enforcement of, interpretation of, and, during the continuance of
a Default, refinancing, renegotiation or restructuring of, this Agreement, the
Notes, and the other Financing Documents and any amendment, waiver or consent
relating thereto (including, but not limited to, the fees and disbursements, for
such purposes, of counsel for each Agent and, after Default, for any of the
Lenders and Risk Participants) and promptly reimburse each Agent for all amounts
expended, advanced, or incurred by such Agent to satisfy any obligation of any
Borrower under this Agreement or any other Financing Document; provided that,
before the occurrence of a Default, all reimbursable out-of-pocket costs and
expenses in connection with the preparation, execution and delivery of, and
recording or filing of this Agreement, the Notes, and the other Financing
Documents, or in connection with any amendment, waiver or consent relating
thereto, shall be reasonable and, in the case of out-of-pocket legal fees and
expenses, shall be limited to one Canadian law firm (and its local counsel in
provinces where Collateral may be located) and one US law firm acting on behalf
of both Agents. Without limiting the foregoing, the Borrowers shall pay to the
Administrative Agent (i) all fees and expenses incurred by the Administrative
Agent or the Canadian Administrative Agent in connection with any collateral
audits permitted hereunder, (ii) all fees and/or verification costs incurred by
the Administrative Agent or the Canadian Administrative Agent in connection with
audits conducted against the Borrowers' property and assets, up to a maximum of
$850 per person, per day, (iii) all inventory appraisal costs and expenses
permitted to be incurred hereunder, and (iv) any other out-of-pocket expenses
related to any of the foregoing.
(b) INDEMNIFICATION. INDEMNIFY EACH AGENT, EACH ISSUING BANK, EACH LENDER,
EACH RISK PARTICIPANT AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES FROM, HOLD EACH OF THEM
HARMLESS AGAINST, AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR,
ANY AND ALL ACTIONS, SUITS, PROCEEDINGS (INCLUDING ANY INVESTIGATIONS,
LITIGATION OR INQUIRIES), CLAIMS, COSTS, LOSSES, LIABILITIES, DAMAGES OR
EXPENSES OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE INCURRED BY OR ASSERTED
AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY
THERETO) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (1) ANY ACTUAL
OR PROPOSED USE BY ANY BORROWER OF THE PROCEEDS OF ANY OF THE LOANS; OR (2) ANY
OTHER ASPECT OF THIS AGREEMENT, THE NOTES, AND THE FINANCING DOCUMENTS,
INCLUDING BUT NOT LIMITED TO THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
(INCLUDING ALLOCATED COSTS OF INTERNAL COUNSEL) AND ALL OTHER EXPENSES INCURRED
IN CONNECTION WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH
ACTION, SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES)
OR CLAIM, AND INCLUDING ALL ACTIONS, SUITS, PROCEEDINGS (INCLUDING ANY
INVESTIGATIONS, LITIGATION OR INQUIRIES), CLAIMS, COSTS, LOSSES, LIABILITIES,
DAMAGES OR EXPENSES ARISING BY REASON OF ORDINARY NEGLIGENCE OF EACH AGENT, EACH
ISSUING BANK, EACH LENDER AND EACH RISK PARTICIPANT, EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES,
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AGENTS AND AFFILIATES; PROVIDED, HOWEVER, THE PROVISIONS OF THIS SECTION 10.4(b)
SHALL NOT APPLY TO ANY ACTION, SUITS, PROCEEDINGS, CLAIMS, COSTS, LOSSES,
LIABILITIES, DAMAGES, OR EXPENSES TO THE EXTENT, BUT ONLY TO THE EXTENT,
DETERMINED BY A FINAL AND NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT
JURISDICTION TO HAVE BEEN CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF THE PARTY SEEKING INDEMNIFICATION;
(c) ENVIRONMENTAL INDEMNIFICATION. INDEMNIFY AND HOLD HARMLESS FROM TIME TO
TIME EACH AGENT, THE ISSUING BANKS, THE LENDERS AND THE RISK PARTICIPANTS, EACH
PERSON CLAIMING BY, THROUGH, UNDER OR ON ACCOUNT OF ANY OF THE FOREGOING AND THE
RESPECTIVE DIRECTORS, OFFICERS, COUNSEL, EMPLOYEES, AGENTS, AFFILIATES,
SUCCESSORS AND ASSIGNS OF EACH OF THE FOREGOING FROM AND AGAINST ANY AND ALL
LOSSES, CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS,
DAMAGES AND LIABILITIES (WHICH RELATE TO OR ARISE AS A RESULT OF THE LOANS, THE
LETTERS OF CREDIT OR ANY FINANCING DOCUMENT) TO WHICH ANY SUCH PERSON MAY BECOME
SUBJECT AND INCLUDING ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS,
ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES (WHICH RELATE TO
OR ARISE AS A RESULT OF THE LOANS, THE LETTERS OF CREDIT OR ANY FINANCING
DOCUMENT) ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF EACH AGENT, THE
ISSUING BANKS, THE LENDERS AND RISK PARTICIPANTS, EACH PERSON CLAIMING BY,
THROUGH, UNDER OR ON ACCOUNT OF ANY OF THE FOREGOING AND THE RESPECTIVE
DIRECTORS, OFFICERS, COUNSEL, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND
ASSIGNS OF EACH OF THE FOREGOING UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO ANY
BORROWER OR ANY OF THEIR RESPECTIVE PROPERTIES, INCLUDING WITHOUT LIMITATION,
THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF THEIR RESPECTIVE
PROPERTIES, AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY ANY CREDIT PARTY WITH
ANY ENVIRONMENTAL LAW APPLICABLE TO ANY CREDIT PARTY, DUE TO PAST OWNERSHIP BY
ANY CREDIT PARTY OF ANY OF THEIR RESPECTIVE PROPERTIES OR PAST ACTIVITY ON ANY
OF THEIR RESPECTIVE PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE
TIME, COULD RESULT IN PRESENT LIABILITY, THE PRESENCE, USE, RELEASE, STORAGE,
TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF THE PROPERTIES
OWNED OR OPERATED BY ANY CREDIT PARTY, OR ANY OTHER ENVIRONMENTAL, HEALTH OR
SAFETY CONDITION IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OTHER
FINANCING DOCUMENT; PROVIDED, HOWEVER, NO INDEMNITY SHALL BE AFFORDED UNDER THIS
SECTION 10.4(C) IN RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE ARISING PRIMARILY
FROM THE ACTS OR OMISSIONS OF AN AGENT OR ANY LENDER DURING THE PERIOD AFTER
WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED ACTUAL PHYSICAL
POSSESSION OF SUCH PROPERTY (WHETHER BY FORECLOSURE OR DEED IN LIEU OF
FORECLOSURE, AS MORTGAGEE-IN-POSSESSION OR OTHERWISE); AND
(d) ENVIRONMENTAL WAIVER. WITHOUT LIMITING THE FOREGOING PROVISIONS, EACH
BORROWER HEREBY DOES WAIVE, RELEASE AND COVENANT NOT TO BRING AGAINST ANY OF THE
PERSONS INDEMNIFIED IN THIS SECTION 10.4 ANY DEMAND, CLAIM, COST RECOVERY ACTION
OR LAWSUIT THEY MAY NOW OR HEREAFTER HAVE OR ACCRUE (WHICH RELATE TO OR ARISE AS
A RESULT OF THE LOANS, THE LETTERS OF CREDIT OR ANY FINANCING DOCUMENT) ARISING
FROM ANY ENVIRONMENTAL LAW NOW OR HEREAFTER ENACTED (INCLUDING THOSE APPLICABLE
TO ANY BORROWER) UNLESS THE ACTS OR OMISSIONS OF ANY SUCH PERSON OR THEIR
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RESPECTIVE SUCCESSORS AND ASSIGNS ARE THE PRIMARY CAUSE OF THE CIRCUMSTANCES
GIVING RISE TO SUCH DEMAND, COST RECOVERY ACTION OR LAWSUIT, THE PRESENCE, USE,
RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF
THE PROPERTIES OWNED OR OPERATED BY ANY CREDIT PARTY, OR THE BREACH OR
NON-COMPLIANCE BY ANY CREDIT PARTY WITH ANY ENVIRONMENTAL LAW OR ENVIRONMENTAL
COVENANT APPLICABLE TO ANY BORROWER, UNLESS THE ACTS OR OMISSIONS OF SUCH
PERSON, ITS SUCCESSORS AND ASSIGNS ARE THE PRIMARY CAUSE OF THE CIRCUMSTANCES
GIVING RISE TO SUCH DEMAND, CLAIM, COST RECOVERY ACTION OR LAWSUIT.
Each Borrower's obligations under this Section 10.4 shall survive any
termination of this Agreement and the payment of the Notes.
SECTION 10.5 RIGHT OF SETOFF. Subject to the rights of the Agents, the
Lenders and the Risk Participants contained in Section 9.11 hereof, in addition
to and not in limitation of all rights of offset that any Lender, Risk
Participant, any Issuing Bank or any of their Affiliates may have under
applicable law, each Lender, each Risk Participant and their Affiliates shall,
upon the occurrence of any Event of Default and at any time during the
continuance thereof and whether or not such Lender, Risk Participant or
Affiliate has made any demand or any of the Borrowers' obligations are matured,
have the right at any time and from time to time, without notice to any Credit
Party (any such notice being expressly waived by each Borrower) to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by any such
Lender, Risk Participant or Affiliate to or for the credit or the account of the
applicable Borrower against any and all of the Lender Indebtedness owing by such
Borrower then outstanding, subject to the provisions of Section 2.11(f), (g),
(h) and (i).
SECTION 10.6 BENEFIT OF AGREEMENT. The Notes, this Agreement and the other
Financing Documents shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and permitted assigns of the parties
hereto, provided that no Borrower may assign or transfer any of its interest
hereunder or thereunder without the prior written consent of each Lender and
Risk Participant.
SECTION 10.7 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Bank that issues any
Letter of Credit), except that no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each
Lender and Risk Participant (and any attempted assignment or transfer by any
Borrower without such consent shall be null and void). Except as otherwise
expressly provided herein, nothing in this Agreement shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender or Risk Participant may assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it, in the
case of any Lender, and Risk Participations and amounts owing to it in
connection therewith, in the case of any Risk Participant) by executing, and
causing the assignee thereof to execute, an assignment and acceptance in the
form attached hereto as Exhibit H ("ASSIGNMENT AND ACCEPTANCE"); provided, that:
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(1) the prior written consent (which consent shall not be unreasonably
withheld) of each of the Borrowers and the Administrative Agent (and any Issuing
Bank which has any Letters of Credit outstanding) shall be required as a
condition to the effectiveness of any assignment; provided, that (A) no such
consent of the Borrowers, the Administrative Agent or any Issuing Bank shall be
required in the case of an assignment to a Lender or an Affiliate of a Lender,
except that the consent of the Borrowers and Administrative Agent shall be
required in the case of (y) an assignment by a Canadian Revolving Lender or
Canadian Risk Participant to an assignee Canadian Revolving Lender that is not
an Exempt Canadian Lender or an assignee Canadian Risk Participant that has not
given a Risk Participant Certification or (z) an assignment by a US Revolving
Lender or US Risk Participant to an assignee US Revolving Lender that is not an
Exempt US Lender or an assignee US Risk Participant that has not given a Risk
Participant Certification, and (B) in the case of an assignment to an assignee
that will become a Risk Participant and has given a Risk Participant
Certification, the Borrowers shall not be permitted to withhold their consent to
such assignment on the basis that Indemnified Participation Taxes may arise or
result from payments to such assignee;
(2) notwithstanding any provision contained herein to the contrary, the
prior written consent of the Applicable Funding Bank shall be required as a
condition to the effectiveness of any assignment whereby the assignee would be a
Risk Participant;
(3) except in the case of an assignment of the entire remaining Combined
Interests of an assignor and its Related Affiliate, the aggregate amount of the
Combined Interests assigned to an assignee and its Related Affiliate and the
aggregate amount of the Combined Interests retained by the assignor and its
Related Affiliate, after giving effect to such assignment, shall be not less
than $10,000,000 (provided that if the Revolving Credit Commitments have expired
or terminated, such limits shall apply to the amount of Voting Revolving Credit
Exposure assigned and retained);
(4) no US Revolving Lender shall assign all or any part of its US Revolving
Credit Commitment or US Revolving Credit Loans unless such US Revolving Lender
(or its Related Affiliate, if applicable) assigns the same percentage of its
Canadian Revolving Credit Commitment and Canadian Revolving Credit Loans (or
Canadian Risk Participant Commitment and Canadian Risk Participation, as the
case may be) to the same assignee (or Related Affiliate of the same assignee);
(5) no Canadian Revolving Lender shall assign all or any part of its
Canadian Revolving Credit Commitment or Canadian Revolving Credit Loans unless
such Canadian Revolving Lender (or its Related Affiliate, if applicable) assigns
the same percentage of its US Revolving Credit Commitment and US Revolving
Credit Loans (or US Risk Participant Commitment and US Risk Participation, as
the case may be) to the same assignee (or Related Affiliate of the same
assignee);
(6) no US Risk Participant shall assign all or any part of its US Risk
Participant Commitment or US Risk Participation unless such Risk Participant (or
its Related Affiliate, if applicable) assigns the same percentage of its
Canadian Risk Participant Commitment and Canadian Risk Participation (or
Canadian Revolving Credit Commitment and Canadian Revolving Credit Loans, as the
case may be) to the same assignee (or Related Affiliate of the same assignee);
(7) no Canadian Risk Participant shall assign all or any part of its
Canadian Risk Participant Commitment or Canadian Risk Participation unless such
Risk Participant (or its Related Affiliate, if applicable) assigns the same
percentage of its US Risk Participant Commitment and US Risk Participation (or
US Revolving Credit Commitment and US Revolving Credit Loans, as the case may
be) to the same assignee (or Related Affiliate of the same assignee);
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(8) if a Canadian Revolving Lender assigns all or a portion of its Canadian
Revolving Credit Commitment and Canadian Revolving Credit Loans (or if a
Canadian Risk Participant assigns all or a portion of its Canadian Risk
Participant Commitment and Canadian Risk Participation) to an assignee (A) that
is an Exempt Canadian Lender on the effective date of the assignment, (B)
pursuant to Section 2.8(a)(ii) (in the case of an assignment by the Canadian
Funding Bank), or (C) at a time when an Event of Default exists, then in any
such case such assignee shall become a party hereto as a Canadian Revolving
Lender; provided, that, in connection with any assignment from an assignor that
is a Canadian Risk Participant to an assignee that will be a Canadian Revolving
Lender, the assignor Canadian Risk Participant shall cause the Canadian Funding
Bank to assign to the assignee a portion of the Canadian Funding Bank's Canadian
Revolving Credit Commitment in an amount equal to the amount of the Canadian
Risk Participant Commitment being assigned by the Canadian Risk Participant and
a portion of the Canadian Funding Bank's Canadian Revolving Credit Loans in an
amount equal to the amount of the Canadian Risk Participation being assigned by
the assignor Canadian Risk Participant;
(9) except as set forth in clause (8) above, any assignee that is not an
Exempt Canadian Lender on the effective date of the assignment to it by a
Canadian Revolving Lender of an interest in its Canadian Revolving Credit
Commitment and Canadian Revolving Credit Loans (or by a Canadian Risk
Participant of an interest in its Canadian Risk Participant Commitment and
Canadian Risk Participation) shall become a party hereto as a Canadian Risk
Participant; provided, that, in connection with any assignment from an assignor
that is a Canadian Revolving Lender to an assignee that will be a Canadian Risk
Participant, the assignor Canadian Revolving Lender shall cause the Canadian
Funding Bank to purchase from the assignor Canadian Revolving Lender the
Canadian Revolving Credit Commitment and Canadian Revolving Credit Loans being
assigned and to issue a Canadian Risk Participation to the assignee in
accordance with Section 2.8(a)(i), whereby such assignee shall have a Canadian
Risk Participant Commitment in an amount equal to the Canadian Revolving Credit
Commitment being assigned;
(10) if a US Revolving Lender assigns all or a portion of its US Revolving
Credit Commitment and US Revolving Credit Loans (or if a US Risk Participant
assigns all or a portion of its US Risk Participant Commitment and US Risk
Participation) to an assignee (A) that is an Exempt US Lender on the effective
date of the assignment, (B) pursuant to Section 2.8(b)(ii) (in the case of an
assignment by the US Funding Bank), or (C) at a time when an Event of Default
exists, then in any such case such assignee shall become a party hereto as a US
Revolving Lender; provided, that, in connection with any assignment from an
assignor that is a US Risk Participant to an assignee that will be a US
Revolving Lender, the assignor US Risk Participant shall cause the US Funding
Bank to assign to the assignee a portion of the US Funding Bank's US Revolving
Credit Commitment in an amount equal to the amount of the US Risk Participant
Commitment being assigned by the US Risk Participant and a portion of the US
Funding Bank's US Revolving Credit Loans in an amount equal to the amount of the
US Risk Participation being assigned by the assignor US Risk Participant;
(11) except as set forth in clause (10) above, any assignee that is not an
Exempt US Lender on the effective date of the assignment to it by a US Revolving
Lender of an interest in its US Revolving Credit Commitment and US Revolving
Credit Loans (or by a US Risk Participant of an interest in its US Risk
Participant Commitment and US Risk Participation) shall become a party hereto as
a US Risk Participant; provided, that, in connection with any assignment from an
assignor that is a US Revolving Lender to an assignee that will be a US Risk
Participant, the assignor US Revolving Lender shall cause the US Funding Bank to
purchase from the assignor US Revolving Lender the US Revolving Credit
Commitment and US Revolving Credit Loans being assigned and to issue a US Risk
Participation to the assignee in accordance with Section 2.8(b)(i), whereby such
assignee shall have a US Risk Participant Commitment in an amount equal to the
US Revolving Credit Commitment being assigned;
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(12) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $2,500;
(13) the assignee, if it shall not already be a Lender or Risk Participant,
shall deliver to the Administrative Agent an Administrative Questionnaire
containing such information as the Administrative Agent may require, and, in the
case of any assignee Risk Participant, a Risk Participant Certification; and
(14) notwithstanding anything in this Agreement to the contrary, any
consent of the Borrowers otherwise required under this paragraph shall not be
required if a Default has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to Section 10.7(d), from
and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender or Risk Participant, as the case may be, under this Agreement, and the
assignor thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
except as otherwise expressly provided herein to the contrary (and, in the case
of an Assignment and Acceptance covering all of the assignor's rights and
obligations under this Agreement, such assignor shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.17 and 2.19 (in
the case of any assignor that was a Lender) and Sections 2.21 and 10.4 (in the
case of any assignor that was a Lender or Risk Participant), and shall continue
to be bound by all provisions contained herein providing for indemnification or
reimbursement of the Agents (and, in the case of any assignor that was a Risk
Participant, of the Applicable Funding Bank), to the extent the event or
condition giving rise to such indemnification or reimbursement arose or existed
while the assignor was a party hereto as a Lender or Risk Participant). Any
assignment or transfer by a Lender or Risk Participant of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender or Risk Participant of a
participation in such rights and obligations in accordance with this Section
10.7(b). Notwithstanding the foregoing, the US Swingline Lender shall not be
permitted to make a partial assignment of the US Swingline Commitment and the
Canadian Swingline Lender shall not be permitted to make a partial assignment of
the Canadian Swingline Commitment. Notwithstanding anything contained in this
Agreement to the contrary, (i) no assignee of a Canadian Revolving Lender or
Canadian Risk Participant shall be permitted to seek any indemnification for, or
the payment of, any Indemnified Taxes or Other Taxes described in Section 2.21
hereof or any penalties, interest and reasonable expenses arising therefrom or
with respect thereto from the Canadian Borrowers, unless (a) an Event of Default
exists at the time of such assignment (regardless if an Event of Default exists
at the time amounts are payable) or (b) amounts payable to the Canadian
Revolving Lender or Canadian Risk Participant (or the Canadian Funding Bank in
respect of a Canadian Risk Participant's Canadian Risk Participation) from which
the assignee received its assignment (the "assignor") would have also been
subject to, or such assignor (or the Canadian Funding Bank in respect of a
Canadian Risk Participant's Canadian Risk Participation) would have also been
required to pay, such Indemnified Taxes or Other Taxes, except that any assignee
that is a Canadian Risk Participant (and the Canadian Funding Bank) may obtain
indemnification and payment from the Canadian Borrowers in respect of
Indemnified Participation Taxes, and (ii) no assignee of a US Revolving Lender
or US Risk Participant shall be permitted to seek any indemnification for, or
the payment of, any Indemnified Taxes or Other Taxes described in Section 2.21
hereof or any penalties, interest and reasonable expenses arising therefrom or
with respect thereto from the US Borrowers, unless (a) an Event of Default
exists at the time of such assignment (regardless if an Event of Default exists
at the time amounts are payable) or (b) amounts payable to the US Revolving
Lender or US Risk Participant (or the US Funding Bank in respect of a US Risk
Participant's US Risk Participation) from which the assignee received its
assignment (the "assignor") would have also been subject to, or such assignor
(or the US Funding Bank in respect of a US Risk Participant's US Risk
Participation) would have also been required to pay, such Indemnified Taxes or
Other Taxes, except that any assignee that is a US Risk Participant (and the US
Funding Bank) may
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obtain indemnification and payment from the US Borrowers in respect of
Indemnified Participation Taxes.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in Atlanta, Georgia a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and Risk Participants, and
the Commitment of, and principal amount of the Loans and Reimbursement
Obligations owing to, each Lender pursuant to the terms hereof from time to
time, and the Canadian Risk Participation (or US Risk Participation, as the case
may be) and amounts owing by the Funding Banks to each Risk Participant from
time to time (the "REGISTER"). The entries in the Register shall be conclusive,
and the Borrowers, the Administrative Agent, the Issuing Banks, the Risk
Participants and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender or a Risk Participant
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each Borrower, any
Issuing Bank, any Risk Participant and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender or Risk Participant and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender or Risk Participant hereunder), the processing and recordation fee
referred to in Section 10.7(b) and any written consent to such assignment
required by Section 10.7(b), the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Without limitation of Section 2.8, any Lender or Risk Participant may,
without the consent of any Borrower, the Administrative Agent or any Issuing
Bank, sell participations to one or more banks or other entities (a
"PARTICIPANT") in all or a portion of such Lender's or Risk Participant's rights
and obligations under this Agreement (including, in the case of any Lender, all
or a portion of its Commitment and the Loans and Reimbursement Obligations owing
to it, and in the case of any Risk Participant, all or a portion of its Risk
Participant Commitment and Revolving Credit Loan Risk Participation); provided
that (i) such Lender's or Risk Participant's obligations under this Agreement
shall remain unchanged, (ii) such Lender or Risk Participant shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) each Borrower, the Agents, the Issuing Banks and the other Lenders and
Risk Participants shall continue to deal solely and directly with such Lender or
Risk Participant in connection with such Lender's or Risk Participant's rights
and obligations under this Agreement, (iv) any Canadian Revolving Lender or
Canadian Risk Participant that intends to sell a participation to a Person which
is not an Exempt Canadian Lender shall give prior written notice thereof to the
Borrowers, and (v) any US Revolving Lender or US Risk Participant that intends
to sell a participation to a Person which is not an Exempt US Lender shall give
prior written notice thereof to the Borrowers. Any agreement or instrument
pursuant to which a Lender or Risk Participant sells such a participation shall
provide that such Lender or Risk Participant shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that (A) such agreement or instrument
may provide that such Lender or Risk Participant will not, without the consent
of the Participant, agree to any amendment, modification or waiver described in
Section 10.2(a) or Section 10.2(b) that affects such Participant, (B) no US
Revolving Lender or US Risk Participant shall sell any participation in its US
Revolving Credit Commitment or US Revolving Credit Loans (or, in the case of any
US Risk Participant, its US Risk Participant Commitment or US Risk
Participation) unless such Lender (or its Related Affiliate) sells a
participation interest of an equal percentage of its Canadian Revolving Credit
Commitment and Canadian Revolving Credit Loans (or, in the case of any Canadian
Risk Participant, its Canadian Risk Participant Commitment and Canadian Risk
Participation) to the same Participant or a Related Affiliate of such
Participant, and (C) no Canadian
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Revolving Lender or Canadian Risk Participant shall sell any participation in
its Canadian Revolving Credit Commitment or Canadian Revolving Credit Loans (or,
in the case of any Canadian Risk Participant, its Canadian Risk Participant
Commitment or Canadian Risk Participation) unless such Lender (or its Related
Affiliate) sells an equal percentage of its US Revolving Credit Commitment and
US Revolving Credit Loans (or, in the case of any US Risk Participant, its US
Risk Participant Commitment and US Risk Participation) to the same Participant
or a Related Affiliate of such Participant. Subject to this Section 10.7(e),
each Borrower agrees that each Participant shall be entitled to the benefits of
Section 2.17, Section 2.19 and Section 2.21 to the same extent as the Lender or
Risk Participant from which it acquired the participation. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.5 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.20 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.19 or Section 2.21 than the applicable Lender or Risk
Participant would have been entitled to receive with respect to the
participation sold to such Participant.
(g) Any Lender or Risk Participant may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender or Risk Participant, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
10.7 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender or Risk Participant from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender or Risk Participant as a party
hereto.
(h) Subject to Section 10.12, each Borrower authorizes each Lender and Risk
Participant to disclose to any Participant or assignee (each, a "TRANSFEREE")
and any prospective Transferee any and all information in such Lender's or Risk
Participant's possession concerning the Borrowers and their Affiliates which has
been delivered to such Lender or Risk Participant by or on behalf of any
Borrower pursuant to this Agreement or which has been delivered to such Lender
or Risk Participant by or on behalf of any Borrower in connection with such
Lender's or Risk Participant's credit evaluation of the Borrowers and their
Affiliates prior to becoming a party to this Agreement. No assignment or
participation made or purported to be made to any Transferee shall be effective
without the prior written consent of the Borrowers if it would require it to
make any filing with any Governmental Authority or qualify any Loan or Note
under the laws of any jurisdiction, and the Company shall be entitled to request
and receive such information and assurances as it may reasonably request from
any Lender or Risk Participant or any Transferee to determine whether any such
filing or qualification is required or whether any assignment or participation
is otherwise in accordance with applicable law.
(i) Notwithstanding the foregoing, Bank of America shall not assign all of
its Commitments and Revolving Credit Loans at a time when no Default exists
unless (A) the assignee Revolving Lender is an Exempt Canadian Lender and Exempt
US Lender which agrees to assume all of the obligations of Bank of America -
Canada Branch in its capacity as the Canadian Funding Bank and US Funding Bank
or (B) one or more Canadian Revolving Lenders agree to assume the obligations of
Bank of America - Canada Branch in its capacity as the Canadian Funding Bank and
one or more US Revolving Lenders agree to assume the obligations of Bank of
America - Canada Branch in its capacity as the US Funding Bank.
SECTION 10.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; ETC.
(a) GOVERNING LAW; SUBMISSION TO JURISDICTION; ETC. This Agreement shall be
construed in accordance with and governed by the laws of the State of New York.
Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the non-exclusive jurisdiction of the courts of
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the State of New York and any federal court sitting in the Southern District of
New York, and any appellate court thereof, in any action or proceeding arising
out of or relating to this Agreement, or any other Financing Document or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in the State of New York.
Each of the parties hereto 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 applicable law. Nothing
in this Agreement shall affect any right that any Agent, any Issuing Bank, any
Risk Participant or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Financing Document against a
Borrower or any other Credit Party or its properties in the courts of any other
jurisdiction. Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in this Section 10.8(a). Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by applicable law, any forum non conveniens
defense to the maintenance of such action or proceeding in any such court. Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by applicable law.
(b) WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW,
EACH OF THE BORROWERS, THE AGENTS, THE ISSUING BANKS, THE RISK PARTICIPANTS AND
THE LENDERS (i) IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO ANY FINANCING DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN; (ii) IRREVOCABLY WAIVE ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFY THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (iv)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
FINANCING DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BASED
UPON, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN
THIS SECTION 10.8.
(c) WAIVER OF CONSEQUENTIAL DAMAGES. To the maximum extent allowed by
applicable law, each Borrower, each Agent, the Issuing Banks, the Risk
Participants and the Lenders (1) irrevocably waive any right each may have to
claim or recover in any such litigation any special, exemplary, punitive or
consequential damages, or damages other than, or in addition to, actual damages;
(2) certifies that no party hereto nor any representative or counsel for any
party hereto has represented, expressly or otherwise, or implied that such party
would not, in the event of litigation, seek to enforce the foregoing waiver; and
(3) acknowledges that it has been induced to enter into this Agreement, the
other Financing Documents and the transactions contemplated hereby and thereby
based upon, among other things, the mutual waivers and certifications contained
in this Section 10.8.
(d) Judgment Currency.
(A) If, for the purpose of obtaining or enforcing any judgment against
any Borrowers or any Credit Party in any court in any jurisdiction, it
becomes necessary to convert into any other currency (such other currency
being hereinafter in this Section 10.8(d) referred to as the "JUDGMENT
CURRENCY") an amount due under any Financing Document in any currency (the
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"OBLIGATION CURRENCY") other than the Judgment Currency, the conversion
shall be made at the rate of exchange prevailing on the Business Day
immediately preceding (i) the date of actual payment of the amount due, in
the case of any proceeding in the courts of any jurisdiction that will give
effect to such conversion being made on such date, or (ii) the date on
which the judgment is given, in the case of any proceeding in the courts of
any other jurisdiction (the applicable date as of which such conversion is
made pursuant to this Section 10.8(d) being hereinafter in this Section
10.8(d) referred to as the "JUDGMENT CONVERSION DATE ").
(B) If, in the case of any proceeding in the court of any jurisdiction
referred to in Section 10.8(d)(i), there is a change in the rate of
exchange prevailing between the Judgment Conversion Date and the date of
actual receipt for value of the amount due, the applicable Borrower or
Credit Party shall pay such additional amount (if any, but in any event not
lesser amount) as may be necessary to ensure that the amount actually
received in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of the
Judgment Currency stipulated in the judgment or judicial order at the rate
of exchange prevailing on the Judgment Conversion Date. Any amount due from
a Borrower or Credit Party under Section 10.8(d)(ii) shall be due as a
separate debt and shall not be affected by judgment being obtained for any
other amounts due under or in respect of any of the Financing Documents.
(C) The term "RATE OF EXCHANGE" in this Section 10.8(d) means the rate
of exchange at which the Administrative Agent would, on the relevant date
at or about 12:00 noon (Eastern Time), be prepared to sell the Obligation
Currency against the Judgment Currency.
SECTION 10.9 INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights arising out of
this Agreement, and it shall not be necessary for any other Lender to be joined
as an additional party in any proceeding for such purpose.
SECTION 10.10 INVALIDITY. In the event that any one or more of the
provisions contained in the Notes, this Agreement or in any other Financing
Document shall, for any reason, be held invalid, illegal or unenforceable in any
respect, (a) each Borrower agrees that such invalidity, illegality or
unenforceability shall not affect any other provision of the Notes, this
Agreement or any other Financing Document and (b) each Borrower and the
Administrative Agent (acting on behalf and at the direction of the Lenders) and
the Canadian Administrative Agent (acting on behalf and at the direction of the
Canadian Revolving Lenders) will negotiate in good faith to amend such provision
so as to be legal, valid, and enforceable.
SECTION 10.11 RENEWAL, EXTENSION OR REARRANGEMENT. All provisions of this
Agreement and of any other Financing Documents relating to the Notes or other
Lender Indebtedness shall apply with equal force and effect to each and all
promissory notes hereafter executed which in whole or in part represent a
renewal, extension for any period, increase or rearrangement of any part of the
Lender Indebtedness originally represented by the Notes, or of any part of such
other Lender Indebtedness.
SECTION 10.12 CONFIDENTIALITY. Each Agent, Issuing Bank, Risk Participant
and Lender agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by
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applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) to any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement (provided that prior to such disclosure, such
Person has agreed in favor of the Borrowers to be bound by this Section 10.12),
(g) with the written consent of the Borrowers or (h) to the extent such
Information (1) becomes publicly available other than as a result of a breach of
this Section 10.12 or (2) becomes available to any Agent, any Issuing Bank, any
Risk Participant or any Lender on a non-confidential basis from a source other
than a Borrower. For the purposes of this Section 10.12, "Information" means all
information marked "Confidential" that is received from any Borrower relating to
a Borrower or its business, other than any such information that is available to
any Agent, any Issuing Bank, any Risk Participant or any Lender on a
non-confidential basis prior to disclosure by a Borrower. Any Person required to
maintain the confidentiality of Information as provided in this Section 10.12
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each Borrower acknowledges that the Agents, Risk Participants and Lenders may be
providing debt financing, equity capital or other services (including financial
advisory services) to other companies in respect of which a Credit Party may
have conflicting interests regarding the transactions contemplated by this
Agreement or the other Financing Documents. Each Borrower also acknowledges that
the Agents have no obligation to use in connection with the transactions
contemplated by this Agreement or the other Financing Documents, or to furnish
to any Credit Party, confidential information obtained from other companies.
SECTION 10.13 INTEREST. It is the intention of the parties hereto to
conform strictly to usury laws applicable to each Agent, the Issuing Banks and
the Lenders (collectively, the "FINANCING PARTIES") and the Transactions.
Accordingly, if the Transactions would be usurious as to any Financing Party
under laws applicable to it, then, notwithstanding anything to the contrary in
the Notes, this Agreement or in any other Financing Document or agreement
entered into in connection with the Transactions or as security for the Notes,
it is agreed as follows: (a) the aggregate of all consideration which
constitutes interest under law applicable to any Financing Party that is
contracted for, taken, reserved, charged or received by such Financing Party
under the Notes, this Agreement or under any of such other Financing Documents
or agreements or otherwise in connection with the Transactions shall under no
circumstances exceed the maximum amount allowed by such applicable law, (b) in
the event that the maturity of the Notes is accelerated for any reason, or in
the event of any required or permitted prepayment, then such consideration that
constitutes interest under law applicable to any Financing Party may never
include more than the maximum amount allowed by such applicable law, and (c)
excess interest, if any, provided for in this Agreement or otherwise in
connection with the Transactions shall be canceled automatically by such
Financing Party and, if theretofore paid, shall be credited by such Financing
Party on the principal amount of the Borrowers' Indebtedness to such Financing
Party (or, to the extent that the principal amount of the Borrowers'
Indebtedness to such Financing Party shall have been or would thereby be paid in
full, refunded by such Financing Party to the Borrowers). The right to
accelerate the maturity of the Notes does not include the right to accelerate
any interest which has not otherwise accrued on the date of such acceleration,
and the Financing Parties do not intend to collect any unearned interest in the
event of acceleration. All sums paid or agreed to be paid to the Financing
Parties for the use, forbearance or detention of sums included in the Lender
Indebtedness shall, to the extent permitted by law applicable to such Financing
Party, be amortized, prorated, allocated and spread throughout the full term of
the Notes until payment in full so that the rate or amount of interest on
account of the Lender Indebtedness does not exceed the applicable usury ceiling,
if any. As used in this Section 10.13, the terms "APPLICABLE LAW" or "LAWS
APPLICABLE TO ANY FINANCING PARTY" means the law of any jurisdiction whose laws
may be mandatorily applicable notwithstanding other provisions of this
Agreement, or law of the United States of America or Canada applicable to any
Financing Party and the Transactions which would permit such
-148-
Financing Party to contract for, charge, take, reserve or receive a greater
amount of interest than under such jurisdiction's law.
SECTION 10.14 ENTIRE AGREEMENT. The Notes, this Agreement and the other
Financing Documents embody the entire agreement and understanding among the
Agents, the Issuing Banks, the Risk Participants and the Lenders and other
respective parties hereto and thereto and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and
thereof and may not be contradicted by evidence of prior or contemporaneous
agreements of the parties. There are no unwritten oral agreements between the
parties.
SECTION 10.15 ATTACHMENTS. The exhibits, schedules and annexes attached to
this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein, except that in the event of any
conflict between any of the provisions of such exhibits and the provisions of
this Agreement, the provisions of this Agreement shall prevail.
SECTION 10.16 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original but all of which shall together constitute one and the same instrument.
This Agreement and the other Financing Documents may be executed by facsimile
and the effectiveness of this Agreement and the other Financing Documents and
signatures thereon shall have the same force and effect as manually signed
originals and shall be binding on all parties thereto. The Administrative Agent
may require that any such documents and signatures be confirmed by a
manually-signed original thereof, provided that the failure to request or
deliver the same shall not limit the effectiveness of any facsimile signature.
SECTION 10.17 SURVIVAL OF INDEMNITIES. The Borrowers' obligations under
Section 2.17, Section 2.19, Section 2.21 and Section 10.4, and the Lenders' and
Risk Participants' obligations under Section 9.7, shall survive the payment in
full of the Loans and the Letter of Credit Liabilities and the termination of
this Agreement.
SECTION 10.18 HEADINGS DESCRIPTIVE. The headings of the several sections
and subsections of this Agreement, and the table of contents, are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 10.19 EXCULPATION PROVISIONS. Each of the parties hereto
specifically agrees that it has a duty to read this Agreement and the other
Financing Documents and agrees that it is charged with notice and knowledge of
the terms of this Agreement and the other Financing Documents; that it has in
fact read this Agreement and is fully informed and has full notice and knowledge
of the terms, conditions and effects of this Agreement; that it has been
represented by legal counsel of its choice throughout the negotiations preceding
its execution of this Agreement and the other Financing Documents; and has
received the advice of its attorneys in entering into this Agreement and the
other Financing Documents; and that it recognizes that certain of the terms of
this Agreement and the other Financing Documents result in one party assuming
the liability inherent in some aspects of the transaction and relieving the
other party of its responsibility for such liability. Each party hereto agrees
and covenants that it will not contest the validity or enforceability of any
exculpatory provision of this Agreement and the other Financing Documents on the
basis that the party had no notice or knowledge of such provision or that the
provision is not "conspicuous."
SECTION 10.20 NO FIDUCIARY RELATIONSHIP. Each Borrower acknowledges and
agrees that, in connection with all aspects of each transaction contemplated by
this Agreement, the Borrowers and the other Credit Parties, on the one hand, and
Xxxx xx Xxxxxxx, Xxxx xx Xxxxxxx - Xxxxxx Branch, Banc of
-149-
America Securities LLC and each of their Affiliates through which they may be
acting (collectively, the "Bank of America Entities"), on the other hand, have
an arms-length business relationship that creates no fiduciary duty on the part
of any Bank of America Entity and each Borrower expressly disclaims any
fiduciary relationship.
SECTION 10.21 SECURED AFFILIATE; CASH MANAGEMENT AFFILIATE. For purposes of
this Agreement and all other Financing Documents (other than applicable Swap
Agreements and Cash Management Agreements), if a Secured Affiliate or Cash
Management Affiliate of a Lender or Risk Participant has entered into one or
more Swap Agreements or Cash Management Agreements with any Credit Party, then
to the extent that such Secured Affiliate or Cash Management Affiliate has
rights against or is owed obligations by (or if the affiliated Lender or Risk
Participant , rather than the Secured Affiliate or Cash Management Affiliate,
were the counter-party to the applicable Swap Agreement or the other party to
the applicable Cash Management Agreement, such rights or obligations that such
Lender or Risk Participant has) the Borrowers hereunder or under any other
Financing Document (other than applicable Swap Agreements and Cash Management
Agreements), such affiliated Lender or Risk Participant shall be the agent and
attorney-in-fact for such Secured Affiliate or Cash Management Affiliate with
regard to any such rights and obligations, or deemed rights and obligations, as
if such Lender or Risk Participant were the counter-party to the applicable Swap
Agreement or the other party to the applicable Cash Management Agreement
including, but not limited to, the following: (a) all distributions or payments
in respect of Collateral owing to such Secured Affiliate or Cash Management
Affiliate shall be distributed or paid to such Lender or Risk Participant , (b)
all representations, statements or disclaimers made herein or in any Financing
Document by or to such Lender or Risk Participant shall be deemed to have been
made by or to such Secured Affiliate or Cash Management Affiliate, and (c) all
obligations incurred by such Lender or Risk Participant that would have been
incurred by the Secured Affiliate or Cash Management Affiliate if it were a
party hereto (including, but not limited to, obligations under Section 9.7)
shall be the obligations of such Lender or Risk Participant , and such Lender or
Risk Participant , as the agent and attorney-in-fact of its Secured Affiliate or
Cash Management Affiliate, will make any and all payments owing to the Agents
with respect to such obligations or deemed obligations of its Secured Affiliate
or Cash Management Affiliate. Each such Lender and Risk Participant represents,
warrants and covenants to and with the Agents that such Lender or Risk
Participant has, or at all applicable times will have, full power and authority
to act as agent and attorney-in-fact for its Secured Affiliates or Cash
Management Affiliates. Under no circumstance shall any Secured Affiliate or Cash
Management Affiliate have any voting rights hereunder and the voting rights of
any affiliated Lender or Risk Participant shall not be increased by virtue of
the obligations owing to any such Secured Affiliate or Cash Management
Affiliate.
SECTION 10.22 AMENDMENT AND RESTATEMENT.
(a) This Agreement and the other Financing Documents amend and restate the
Existing Credit Agreement and the "Financing Documents" (as defined in the
Existing Credit Agreement). All rights, benefits, indebtedness, interests,
liabilities and obligations of the parties to the Existing Credit Agreement and
the agreements, documents and instruments executed and delivered in connection
with the Existing Credit Agreement (collectively, the "EXISTING FINANCING
DOCUMENTS") are hereby renewed, amended, restated and superseded in their
entirety according to the terms and provisions set forth herein and in the other
Financing Documents. This Agreement does not constitute, nor shall it result in,
a waiver of or release, discharge or forgiveness of any amount payable pursuant
to the Existing Financing Documents or any indebtedness, liabilities or
obligations of the Credit Parties thereunder, all of which are renewed and
continued and are hereafter payable and to be performed in accordance with this
Agreement and the other Financing Documents. Neither this Agreement nor any
other Financing Document extinguishes the indebtedness or liabilities
outstanding in connection with the Existing Financing Documents, nor do they
constitute a novation with respect thereto.
-150-
(b) All security interests, pledges, assignments, hypothecs and other Liens
previously granted by any Credit Party pursuant to the Existing Financing
Documents are hereby renewed and continued, and all such security interests,
pledges, assignments and other Liens shall remain in full force and effect as
security for the Lender Indebtedness.
(c) Amounts in respect of interest, fees, and other amounts payable to or
for the account of the Agents, any Issuing Bank and the Lenders shall be
calculated (i) in accordance with the provisions of the Existing Credit
Agreement with respect to any period (or a portion of any period) ending prior
to the Closing Date, and (ii) in accordance with the provisions of this
Agreement with respect to any period (or a portion of any period) commencing on
or after the Closing Date.
(d) Upon the effectiveness of this Agreement, none of the "Lenders" party
to the Existing Credit Agreement shall have a Commitment except as expressly set
forth on Annex I to this Agreement, as any such Commitments may hereafter be
increased, adjusted and modified as described in Sections 2.1(c) and (d).
[THIS PAGE INTENTIONALLY LEFT BLANK.]
-151-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first above written.
US BORROWERS:
GUSAP PARTNERS, by its partners
GERDAU AMERISTEEL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President, General
Counsel, Corporate Secretary
------------------------------------
and
GERDAU AMERISTEEL MRM SPECIAL
SECTIONS INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
------------------------------------
Title: Secretary, Treasurer
------------------------------------
PASUG LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
GERDAU AMERISTEEL SAYREVILLE INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
GERDAU AMERISTEEL PERTH AMBOY INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
GERDAU AMERISTEEL US INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau XxxxxXxxxx
XXXXXX AMERISTEEL LAKE ONTARIO INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
XXXXXX BROS. CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
MFT ACQUISITION, CORP.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel and
Secretary
-------------------------------------
CANADIAN BORROWERS:
GERDAU AMERISTEEL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President, General Counsel,
Corporate Secretary
-------------------------------------
GERDAU AMERISTEEL MRM SPECIAL
SECTIONS INC.
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
--------------------------------------
Title: Secretary, Treasurer
-------------------------------------
ADDRESS FOR NOTICE FOR ALL
BORROWERS: 0000 Xxxx Xxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
LENDERS, AGENTS, RISK
PARTICIPANTS AND
FUNDING BANKS:
Notice Address: BANK OF AMERICA, N.A.,
-------------- as the Administrative Agent
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Portfolio Manager By: /s/ Xxxxxx Xxxxxx
Fax: (000) 000-0000 ---------------------------------
Name: Xxxxxx Xxxxxx
---------------------------------
Title: SVP
---------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: BANK OF AMERICA, N.A.
----------------------- (ACTING THROUGH ITS CANADA BRANCH),
000 Xxxxx Xxxxxx Xxxx as the Canadian Xxxxxxxxxxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 Agent, a US Revolving Lender, a
Canada Canadian Revolving Lender, US
Attention: Funding Bank, Canadian Funding
Fax: 000-000-0000 Bank, US Swingline Lender and
Canadian Swingline Lender
By: /s/ X. X. Xxxxxx XxxXxxxxx
-------------------------------
Notice Address: Name: X. X. Xxxxxx XxxXxxxxx
-------------- -----------------------------
000 Xxxxxxxx Xxxxxxx, Xxxxx 000 Title:Senior Vice President
Xxxxxxx, Xxxxxxx 00000 ----------------------------
Attention: Portfolio Manager
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: GE CANADA FINANCE HOLDING CO., as
----------------------- a US Revolving Lender and a
0000 Xxxxxxxxxx Xxxx. Xxxxxxxx Revolving Lender
Mississauga, Canada L5N 5P9
By: /s/ XXXX X. XXXXXXX
-----------------------------
Name: XXXX X. XXXXXXX
---------------------------
Notice Address: Title: Senior Vice President,
-------------- GE Canada Finance Holding
000 Xxxx Xxxxxx Company
Xxxxxxx, Xxxxxxxx 00000 ---------------------------
Attention: Gerdau Account Manager
Fax: 000-000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: JPMORGAN CHASE BANK, N.A., TORONTO
----------------------- BRANCH, as a US Revolving
000 Xxx Xxxxxx, Xxxxx 0000 Lender and a Canadian Revolving Lender
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 By: /s/ XXXXX X. XXXXXX
Canada ---------------------------------
Attention: Name: XXXXX X. XXXXXX
Fax: -------------------------------
Title: MANAGING DIRECTOR
------------------------------
Notice Address:
--------------
000 Xxx Xxxxxx, Xxxxx Tower
Suite 1800
Toronto, Ontario M5J 2J5 Canada
Attention: Xxxx XxXxxxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: CIT FINANCIAL LTD., as a US
----------------------- Revolving Lender and a Canadian
000 Xxxxxx Xxxx Xxxx, Xxxxx 000 Revolving Lender
Toronto, Xxxxxxx X0X 0X0
Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
Attention: --------------------------------
Fax: Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President, Legal
------------------------------
Notice Address:
--------------
000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: K.B. Xxxxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: CONGRESS FINANCIAL CORPORATION
----------------------- (CANADA), as a US Revolving
Congress Financial Corporation Lender and a Canadian Revolving
(Canada) Lender
000 Xxxxxxxx Xxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 -------------------------------
Canada Name: XXXXX X. XXXXXXXX
Attention: Xx. Xxxxx X. Xxxxxxx ------------------------------
Fax: 000-000-0000 Title:SENIOR VICE PRESIDENT
CONGRESS FINANCIAL
CORPORATION (CANADA)
Executed this 28 day of October
2005, in Xxxxxxx, Xxxxxxx, Xxxxxx
Notice Address:
--------------
Wachovia Capital Finance Corporation
(Central)
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Portfolio Manager
Fax: 000-000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: CITIBANK, N.A., CANADIAN BRANCH,
----------------------- as a US Revolving Lender and
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000 a Canadian Revolving Lender
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx By: /s/ Niyousha Zarinpour
Attention: Relationship Manager -------------------------------
Fax: Name: Niyousha Zarinpour
----------------------------
Title: Authorised Signer
----------------------------
Notice Address:
--------------
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: Relationship Manager/R.A.
Fax:000-000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: BANK OF MONTREAL, as a US Revolving
----------------------- Lender
Notice Address:
--------------
000 X. Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
5C ----------------------------------
Xxxxxxx, Xxxxxxxx 00000 Name: Xxxxx Xxxxxxx
Attention: Xxxx Xxxx ---------------------------------
Fax: (000) 000-0000 Title: Director
--------------------------------
Notice Address:
--------------
000 X. Xxxxxx Xxxxxx
0X
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: BANK OF MONTREAL, as a Canadian
----------------------- Revolving Lender
First Canadian Place
19th Floor By: /s/ Xxx Xxxxxxxxx
Toronto, Ontario M5X 1Al ---------------------------------
Name: Xxx Xxxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
Notice Address:
--------------
000 X. Xxxxxx Xxxxxx
0X
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: HSBC BANK USA, N.A., TORONTO BRANCH,
----------------------- as a US Revolving Lender
0xx Xxxxx, 00 Xxxx Xxxxxx and a Canadian Revolving Lender
Toronto, Ontario X0X 0X0
Xxxxxx By: /s/ Xxxx Xxxx
---------------------------------
Attention: Xxxxxxxxx Xxxx Name: Xxxx Xxxx
Fax: (000) 000-0000 ---------------------------------
Notice Address:
--------------
4th Floor, 00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: Xxxxxxxxx Xxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: LASALLE BANK MIDWEST,
-------------- NATIONAL ASSOCIATION, as a
2600 W. Big Beaver Rd. US Risk Participant and a
MO900-235 Canadian Risk Participant
Xxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
--------------------------
Fax: 000-000-0000 Name: Xxxx X. Xxxxx
--------------------------
Title: Vice President
--------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: NATIONAL CITY BANK (ACTING THROUGH
----------------------- ITS CANADA BRANCH), as a US
000 Xxxx Xxxxxx Xxxx, Xxxxx 0000 Revolving Lender and a Xxxxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0 Revolving Lender
Canada
Attention: Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
Fax: 000 000-0000 -------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
Notice Address:
--------------
National City Business Credit, Inc.
0000 X. 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Fax: 000-000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: BANCO SANTANDER CENTRAL HISPANO S.A.,
-------------- NEW YORK BRANCH, as a XX
00 Xxxx 00xx Xxxxxx Risk Participant and a Canadian Risk
Xxx Xxxx, Xxx Xxxx 00000 Participant
Attention: Xxxxxx Xxxxxx Xxxxxxx
Fax: 000-000-0000
E-mail:xxxxxxx@xxxxx.xxx &
------------------- By: /s/ Xxxxx Xxxxx Xxxx
xxxxxxx@xxxxx.xxx ----------------------------------
----------------- Name: Xxxxx Xxxxx Xxxx
----------------------------------
Title: Vice President
----------------------------------
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
----------------------------------
Title: Managing Director
Head of U.S. Global Corporate
Banking
----------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: XXXXX FARGO FOOTHILL, LLC,
-------------- as a US Risk Participant and a
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 X. Xxxxxxxx Risk Participant
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000 By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
-----------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: SUNTRUST BANK, as a US Risk Participant
-------------- and a Canadian Risk Participant
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Fax: 000-000-0000 ----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: CALYON NEW YORK BRANCH, as a US Risk
-------------- Participant and a
1301 Avenue of the Americas Canadian Risk Participant
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000 By: /s/ Xxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx
--------------------------------------
Title: Director Director
--------------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: XXXXXXX XXXXX CAPITAL CANADA INC.,
----------------------- as a Canadian Revolving Lender
BCE Plaza
000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0 By: /s/ Xxxxxxx Xxxxx
Canada ------------------------------
Attention: Office of General Counsel Name: Xxxxxxx Xxxxx
Fax: 000-000-0000 ------------------------------
Title: Vice President
------------------------------
Notice Address:
--------------
4 World Financial Center
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxxx/
Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: XXXXXXX XXXXX CAPITAL CORPORATION,
-------------- as a US Risk Participant
4 World Financial Center, Fl. 22
Xxx Xxxx, XX 00000 By: /s/ Xxxxxx XxXxxxxxxxxx
Attention: Xxxxxx XxXxxxxxxxxx --------------------------------------
Fax: 000-000-0000 Name: Xxxxxx XxXxxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Notice Address: UPS CAPITAL CORPORATION, as a US
-------------- Risk Participant and a Canadian
00 Xxxxxxxx Xxxxxxx, XX Risk Participant
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx By: /s/ Xxxx X.
Fax: 000-000-0000 ----------------------------------
Name: Xxxx X.
---------------------------------
Title: Director of Portfolio Management
---------------------------------
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
Lending Office Address: COMERICA BANK, A MICHIGAN BANKING
----------------------- CORPORATION AND AN AUTHORIZED FOREIGN
Suite 2210, South Tower BANK UNDER THE BANK ACT (CANADA), as
Royal Bank Plaza a US Revolving Lender and a Canadian
X.X. Xxx 00 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X0X0
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000 By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------
Title Vice President
--------------------------------
Notice Address:
--------------
Xxxxx 0000, Xxxxx Xxxxx, Xxxxx Xxxx
Xxxxx, X.X. Xxx 00
Xxxxxxx, Xxxxxxx X0X0X0
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
and
000 Xxxxxxxx Xxxxxx
0xx Xxxxx XX 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
Signature Page - Amended and Restated Credit Agreement
Bank of America - Gerdau AmeriSteel
ANNEX I
CANADIAN TOTAL
US REVOLVING REVOLVING REVOLVING
CREDIT CREDIT CREDIT
LENDER COMMITMENTS COMMITMENTS COMMITMENTS
--------------------------------------- ------------ ------------ ------------
Bank of America, N.A. (acting through $ 63,750,000 $ 21,250,000 $ 85,000,000
its Canada Branch)
GE Canada Finance Holding Company $ 75,000,000 $ 25,000,000 $100,000,000
XXXxxxxx Xxxxx Xxxx, X.X., Xxxxxxx $ 45,000,000 $ 15,000,000 $ 60,000,000
Branch
CIT Financial Ltd. $ 52,500,000 $ 17,500,000 $ 70,000,000
Congress Financial Corporation (Canada) $ 30,000,000 $ 10,000,000 $ 40,000,000
Citibank, N.A., Canadian Branch $ 22,500,000 $ 7,500,000 $ 30,000,000
Bank of Montreal $ 22,500,000 $ 7,500,000 $ 30,000,000
HSBC Bank USA, N.A., Toronto Branch $ 22,500,000 $ 7,500,000 $ 30,000,000
National City Bank (acting through its $ 22,500,000 $ 7,500,000 $ 30,000,000
Canada branch)
Xxxxxxx Xxxxx Capital Canada Inc.(1) N/A $ 3,750,000 $ 3,750,000
Comerica Bank, Canadian Branch $ 9,375,000 $ 3,125,000 $ 12,500,000
Bank of America, N.A. (acting through $121,875,000 N/A $121,875,000
its Canada branch), as US Funding Bank
Bank of America, N.A. (acting through N/A $ 36,875,000 $ 36,875,000
its Canada branch), as Canadian
Funding Bank
------------ ------------ ------------
Total $487,500,000 $162,500,000 $650,000,000
============ ============ ============
----------
(1) Related Affiliate of ML Capital Corp.
US RISK PARTICIPANT US RISK PARTICIPANT COMMITMENT
----------------------------------------------------- ------------------------------
LaSalle Bank Midwest, National Association $22,500,000
Banco Santander Central Hispano S.A., New York Branch $22,500,000
Xxxxx Fargo Foothill, LLC $22,500,000
SunTrust Bank $18,375,000
Calyon New York Branch $13,500,000
UPS Capital Corporation $11,250,000
ML Capital Corp.(2) $11,250,000
CANADIAN
CANADIAN RISK PARTICIPANT RISK PARTICIPANT COMMITMENT
----------------------------------------------------- ---------------------------
LaSalle Bank Midwest, National Association $7,500,000
Banco Santander Central Hispano S.A., New York Branch $7,500,000
Xxxxx Fargo Foothill, LLC $7,500,000
SunTrust Bank $6,125,000
Calyon New York Branch $4,500,000
UPS Capital Corporation $3,750,000
US SWINGLINE LENDER US SWINGLINE COMMITMENT
---------------------------------- -----------------------
Bank of America, N.A. $25,000,000
(acting through its Canada branch)
CANADIAN SWINGLINE LENDER CANADIAN SWINGLINE COMMITMENT
---------------------------------- -----------------------------
Bank of America, N.A. $15,000,000
(acting through its Canada branch)
----------
(2) Related Affiliate of Xxxxxxx Xxxxx Capital Canada Inc.
SCHEDULES
---------
Schedule 1.1(A) Projections
Schedule 2.3 Existing Letters of Credit
Schedule 3.1(f) List of Stock Certificates
Schedule 3.1(g) List of Regulatory Approvals, Consents and Waivers
Schedule 5.7 Litigation
Schedule 5.9 US Employee Benefits Disclosures
Schedule 5.10 Canadian Employee Benefits Disclosures
Schedule 5.15 Compliance with Laws
Schedule 5.19 Capital Structure
Schedule 5.20 Insurance
Schedule 5.21 Environmental Matters
Schedule 5.23 Employee Matters
Schedule 5.24 Real Property Locations
Schedule 5.26 Indebtedness
Schedule 6.5 Insurance
Schedule 6.13 Bank Accounts to be Closed
Schedule 7.3 Permitted Liens
Schedule 7.6 Permitted Investments
Schedule 7.18 Bank Accounts
EXHIBITS
--------
Exhibit A Form of Bailee's Letter
Exhibit B-1 Form of US Borrowing Base Report
Exhibit B-2 Form of Canadian Borrowing Base Report
Exhibit C-1 Form of Borrowing Request (US Revolving Credit Loan)
Exhibit C-2 Form of Borrowing Request (Canadian Revolving Credit Loans)
Exhibit C-3 Form of Request for US Letters of Credit
Exhibit C-4 Form of Request for Canadian Letters of Credit
Exhibit C-5 Form of Borrowing Request (US Swingline Loans)
Exhibit D-1 Form of Canadian Revolving Credit Note (C$)
Exhibit D-2 Form of Canadian Revolving Credit Note (US$)
Exhibit E Form of Perfection Certificate and Perfection Certificate Update
Exhibit F Form of US Revolving Credit Note
Exhibit G Form of No Default/Compliance Certificate
Exhibit H Form of Assignment and Acceptance
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS; CONSTRUCTION............................................... 2
SECTION 1.1 DEFINITIONS....................................................... 2
SECTION 1.2 Terms Generally................................................... 44
SECTION 1.3 ACCOUNTING TERMS; GAAP............................................ 44
ARTICLE 2 AMOUNT AND TERMS OF LOANS............................................... 45
SECTION 2.1 LOANS AND COMMITMENTS............................................. 45
SECTION 2.2 BORROWING REQUESTS................................................ 48
SECTION 2.3 LETTERS OF CREDIT................................................. 51
SECTION 2.4 DISBURSEMENT OF FUNDS............................................. 57
SECTION 2.5 NOTES AND MATURITY................................................ 59
SECTION 2.6 INTEREST.......................................................... 59
SECTION 2.7 INTEREST PERIODS.................................................. 61
SECTION 2.8 RISK PARTICIPATIONS............................................... 61
SECTION 2.9 REPAYMENT OF LOANS................................................ 70
SECTION 2.10 VOLUNTARY ADJUSTMENT, TERMINATION OR REDUCTION OF REVOLVING
CREDIT COMMITMENTS; EXTENSIONS.................................... 72
SECTION 2.11 MANDATORY PREPAYMENTS; VOLUNTARY PREPAYMENTS; ORDER OF
APPLICATION....................................................... 73
SECTION 2.12 CONTINUATION AND CONVERSION OPTIONS............................... 77
SECTION 2.13 FEES.............................................................. 78
SECTION 2.14 PAYMENTS, ETC..................................................... 79
SECTION 2.15 INTEREST RATE NOT ASCERTAINABLE, ETC.............................. 80
SECTION 2.16 ILLEGALITY........................................................ 80
SECTION 2.17 INCREASED COSTS................................................... 81
SECTION 2.18 CHANGE OF LENDING OFFICE.......................................... 82
SECTION 2.19 FUNDING LOSSES.................................................... 83
SECTION 2.20 SHARING OF PAYMENTS, ETC.......................................... 83
SECTION 2.21 TAXES............................................................. 84
SECTION 2.22 PRO RATA TREATMENT................................................ 85
SECTION 2.23 REPLACEMENT OF LENDERS............................................ 85
SECTION 2.24 BANK CHARGES; ADVANCES OF REVOLVING CREDIT LOANS TO SATISFY
LENDER INDEBTEDNESS............................................... 86
SECTION 2.25 JOINT AND SEVERAL LIABILITY OF US BORROWERS AND OF CANADIAN
BORROWERS; RIGHTS OF CONTRIBUTION AMONG US BORROWERS.............. 86
SECTION 2.26 PARTICIPATIONS IN US SWINGLINE LOANS.............................. 88
SECTION 2.27 PARTICIPATIONS IN CANADIAN SWINGLINE LOANS........................ 88
SECTION 2.28 AGENT ADVANCES; PARTICIPATIONS.................................... 89
SECTION 2.29 NEW APPRAISALS.................................................... 90
SECTION 2.30 FINANCING STRUCTURE AVAILABILITY.................................. 91
ARTICLE 3 CONDITIONS TO BORROWINGS................................................ 93
SECTION 3.1 CLOSING........................................................... 93
SECTION 3.2 CONDITIONS PRECEDENT TO ALL LOANS AND LETTERS OF CREDIT........... 97
ARTICLE 4 SECURITY................................................................ 97
SECTION 4.1 SECURITY GRANTED BY US CREDIT PARTIES............................. 97
SECTION 4.2 SECURITY GRANTED BY CANADIAN CREDIT PARTIES....................... 98
SECTION 4.3 ESTABLISHMENT OF US LOCKBOXES..................................... 98
SECTION 4.4 ESTABLISHMENT OF CANADIAN LOCKBOXES............................... 98
SECTION 4.5 ESTABLISHMENT OF US BLOCKED ACCOUNT; DOMINION AND CONTROL;
OPERATION OF US BLOCKED ACCOUNT AND PASUG OPERATING ACCOUNT....... 99
SECTION 4.6 ESTABLISHMENT OF CANADIAN BLOCKED ACCOUNT; DOMINION AND CONTROL... 99
ARTICLE 5 REPRESENTATIONS AND WARRANTIES.......................................... 100
SECTION 5.1 CORPORATE EXISTENCE............................................... 100
SECTION 5.2 CORPORATE POWER AND AUTHORIZATION................................. 100
SECTION 5.3 BINDING OBLIGATIONS............................................... 100
SECTION 5.4 NO LEGAL BAR OR RESULTANT LIEN.................................... 101
SECTION 5.5 NO CONSENT........................................................ 101
SECTION 5.6 FINANCIAL INFORMATION............................................. 101
SECTION 5.7 LITIGATION........................................................ 101
SECTION 5.8 USE OF PROCEEDS; DISTRIBUTION OF PROCEEDS......................... 101
SECTION 5.9 US EMPLOYEE BENEFITS.............................................. 102
SECTION 5.10 CANADIAN EMPLOYEE BENEFITS........................................ 103
SECTION 5.11 TAXES; GOVERNMENTAL CHARGES....................................... 103
SECTION 5.12 TITLES, ETC....................................................... 103
SECTION 5.13 DEFAULTS.......................................................... 103
SECTION 5.14 CASUALTIES; TAKING OF PROPERTIES.................................. 103
SECTION 5.15 COMPLIANCE WITH THE LAW........................................... 103
SECTION 5.16 NO MATERIAL MISSTATEMENTS......................................... 104
SECTION 5.17 INVESTMENT COMPANY ACT............................................ 104
SECTION 5.18 MARGIN STOCK; PUBLIC UTILITY HOLDING COMPANY ACT.................. 104
SECTION 5.19 CAPITAL STRUCTURE................................................. 104
SECTION 5.20 INSURANCE......................................................... 104
SECTION 5.21 ENVIRONMENTAL MATTERS............................................. 105
SECTION 5.22 SOLVENCY.......................................................... 106
SECTION 5.23 EMPLOYEE MATTERS.................................................. 106
SECTION 5.24 REAL PROPERTY..................................................... 106
SECTION 5.25 PERFECTION CERTIFICATE; SCHEDULES TO OTHER FINANCING DOCUMENTS.... 106
SECTION 5.26 EXISTING INDEBTEDNESS............................................. 106
SECTION 5.27 144A INDENTURE.................................................... 106
SECTION 5.28 MATERIAL CONTRACTS................................................ 106
SECTION 5.29 ACCOUNTS.......................................................... 106
SECTION 5.30 REPRESENTATIONS WITH RESPECT TO CERTAIN CREDIT PARTIES............ 107
SECTION 5.31 ANTI-TERRORISM LAWS............................................... 107
ARTICLE 6 AFFIRMATIVE COVENANTS................................................... 108
SECTION 6.1 MAINTENANCE AND COMPLIANCE, ETC................................... 108
SECTION 6.2 PAYMENT OF TAXES AND CLAIMS, ETC.................................. 108
SECTION 6.3 FURTHER ASSURANCES................................................ 108
SECTION 6.4 BANK ACCOUNTS..................................................... 108
SECTION 6.5 INSURANCE......................................................... 108
SECTION 6.6 ACCOUNTS AND RECORDS.............................................. 109
SECTION 6.7 RIGHT OF INSPECTION............................................... 109
SECTION 6.8 [INTENTIONALLY DELETED.].......................................... 109
SECTION 6.9 COLLATERAL REPORTS................................................ 109
SECTION 6.10 REPORTING COVENANTS............................................... 110
SECTION 6.11 FINANCING ENTITIES................................................ 113
SECTION 6.12 FIXED CHARGE COVERAGE RATIO....................................... 115
SECTION 6.13 POST CLOSING OBLIGATIONS.......................................... 115
ARTICLE 7 NEGATIVE COVENANTS...................................................... 116
SECTION 7.1 ANTI-TERRORISM LAWS............................................... 116
SECTION 7.2 INDEBTEDNESS...................................................... 116
SECTION 7.3 LIENS............................................................. 118
SECTION 7.4 MERGERS, SALES, ETC............................................... 119
SECTION 7.5 EQUITY DISTRIBUTIONS.............................................. 120
SECTION 7.6 INVESTMENTS, LOANS, ETC........................................... 121
SECTION 7.7 SALES AND LEASEBACKS.............................................. 122
SECTION 7.8 NATURE OF BUSINESS................................................ 123
SECTION 7.9 ERISA/PENSION COMPLIANCE.......................................... 123
SECTION 7.10 SALE OR DISCOUNT OF RECEIVABLES................................... 124
SECTION 7.11 NEGATIVE PLEDGE AGREEMENTS........................................ 124
SECTION 7.12 TRANSACTIONS WITH AFFILIATES...................................... 124
SECTION 7.13 UNCONDITIONAL PURCHASE OBLIGATIONS................................ 124
SECTION 7.14 EQUITY............................................................ 124
SECTION 7.15 [INTENTIONALLY DELETED.].......................................... 124
SECTION 7.16 [INTENTIONALLY DELETED.].......................................... 125
SECTION 7.17 ACQUISITIONS; CREATION OF SUBSIDIARIES............................ 125
SECTION 7.18 ACCOUNTS.......................................................... 125
SECTION 7.19 OTHER RESTRICTIVE AGREEMENTS...................................... 125
SECTION 7.20 MODIFICATIONS AND PREPAYMENTS OF INDEBTEDNESS..................... 126
SECTION 7.21 FISCAL YEAR....................................................... 126
SECTION 7.22 MODIFICATION OF 144A DOCUMENTS.................................... 126
ARTICLE 8 EVENTS OF DEFAULT....................................................... 126
SECTION 8.1 PAYMENTS.......................................................... 126
SECTION 8.2 OTHER COVENANTS................................................... 126
SECTION 8.3 OTHER FINANCING DOCUMENT OBLIGATIONS.............................. 127
SECTION 8.4 REPRESENTATIONS................................................... 127
SECTION 8.5 NON-PAYMENTS OF OTHER INDEBTEDNESS................................ 127
SECTION 8.6 DEFAULTS UNDER OTHER AGREEMENTS................................... 127
SECTION 8.7 BANKRUPTCY UNDER US LAW........................................... 127
SECTION 8.8 BANKRUPTCY UNDER CANADIAN LAW..................................... 127
SECTION 8.9 MONEY JUDGMENT.................................................... 128
SECTION 8.10 FINANCING DOCUMENTS............................................... 128
SECTION 8.11 NON-MONETARY JUDGMENT............................................. 129
SECTION 8.12 ASSET SEIZURES.................................................... 129
SECTION 8.13 CHANGE OF CONTROL................................................. 129
SECTION 8.14 MATERIAL ADVERSE CHANGE........................................... 129
ARTICLE 9 AGENTS.................................................................. 130
SECTION 9.1 APPOINTMENT OF AGENTS............................................. 130
SECTION 9.2 LIMITATION OF DUTIES OF AGENTS AND FUNDING BANKS.................. 130
SECTION 9.3 LACK OF RELIANCE ON THE AGENTS.................................... 131
SECTION 9.4 CERTAIN RIGHTS OF THE AGENTS...................................... 131
SECTION 9.5 RELIANCE BY AGENTS AND FUNDING BANKS.............................. 131
SECTION 9.6 NOTICE OF DEFAULT................................................. 131
SECTION 9.7 INDEMNIFICATION OF AGENTS......................................... 132
SECTION 9.8 AGENTS IN THEIR INDIVIDUAL CAPACITY............................... 132
SECTION 9.9 TREATMENT OF LENDERS AND RISK PARTICIPANTS........................ 132
SECTION 9.10 PAYMENTS BY AGENTS AND FUNDING BANKS TO LENDERS AND RISK
PARTICIPANTS...................................................... 132
SECTION 9.11 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS........... 133
SECTION 9.12 SUCCESSOR AGENT................................................... 134
SECTION 9.13 COLLATERAL AGENTS, DOCUMENTATION AGENTS AND ARRANGERS............. 134
SECTION 9.14 FIELD AUDIT AND EXAMINATION REPORTS............................... 134
SECTION 9.15 AGENCY FOR PERFECTION............................................. 135
ARTICLE 10 MISCELLANEOUS........................................................... 135
SECTION 10.1 NOTICES........................................................... 135
SECTION 10.2 AMENDMENTS AND WAIVERS............................................ 135
SECTION 10.3 NO WAIVER; REMEDIES CUMULATIVE.................................... 137
SECTION 10.4 PAYMENT OF EXPENSES, INDEMNITIES, ETC............................. 138
SECTION 10.5 RIGHT OF SETOFF................................................... 140
SECTION 10.6 BENEFIT OF AGREEMENT.............................................. 140
SECTION 10.7 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS............ 140
SECTION 10.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; ETC.................... 145
SECTION 10.9 INDEPENDENT NATURE OF LENDERS' RIGHTS............................. 147
SECTION 10.10 INVALIDITY........................................................ 147
SECTION 10.11 RENEWAL, EXTENSION OR REARRANGEMENT............................... 147
SECTION 10.12 CONFIDENTIALITY................................................... 147
SECTION 10.13 INTEREST.......................................................... 148
SECTION 10.14 ENTIRE AGREEMENT.................................................. 149
SECTION 10.15 ATTACHMENTS....................................................... 149
SECTION 10.16 COUNTERPARTS; FACSIMILE SIGNATURES................................ 149
SECTION 10.17 SURVIVAL OF INDEMNITIES........................................... 149
SECTION 10.18 HEADINGS DESCRIPTIVE.............................................. 149
SECTION 10.19 EXCULPATION PROVISIONS............................................ 149
SECTION 10.20 NO FIDUCIARY RELATIONSHIP......................................... 149
SECTION 10.21 SECURED AFFILIATE; CASH MANAGEMENT AFFILIATE...................... 150
SECTION 10.22 AMENDMENT AND RESTATEMENT......................................... 150
SCHEDULES
INDEX OF SCHEDULES
Schedule 1.1(A) Projections
Schedule 2.3 Letters of Credit
Schedule 3.1(f) List of Stock Certificates
Schedule 3.1(g) List of Regulatory Approvals, Consents and Waivers
Schedule 5.7 Litigation
Schedule 5.9 US Employee Benefits Disclosures
Schedule 5.10 Canadian Employee Benefits Disclosures
Schedule 5.15 Compliance with Laws
Schedule 5.19 Capital Structure
Schedule 5.20 Insurance
Schedule 5.21 Environmental Matters
Schedule 5.23 Employee Matters
Schedule 5.24 Real Property Locations
Schedule 5.26 Indebtedness
Schedule 6.5 Insurance
Schedule 6.13 Bank Accounts to be Closed
Schedule 7.3 Permitted Liens
Schedule 7.6 Permitted Investments
Schedule 7.18 Bank Accounts
SCHEDULE 1.1(A) PROJECTIONS
Intentionally omitted.
SCHEDULE 2.3 LETTERS OF CREDIT
Intentionally omitted.
SCHEDULE 3.1(F) - LIST OF STOCK CERTIFICATES
SHARE
HOLDER ISSUER CERTIFICATE NO. NUMBER OF SHARES
------ ------ --------------- ----------------
Gerdau Ameristeel Corporation 1062316 Ontario Limited C-6 95,726,738 common shares
Gerdau Ameristeel Corporation 1300554 Ontario Limited C-6 1,468 common shares
Gerdau Ameristeel Corporation 1551533 Ontario Limited CBC-3 27,475,198 Class B Common Shares
Gerdau Ameristeel Corporation Gerdau Ameristeel MRM C-6 128,395 common shares
Special Sections Inc.
Gerdau Ameristeel Corporation Gerdau USA Inc. A-20 3,921 Class A Common Stock
15 750 Common Shares
3038482 Nova Scotia Company Gerdau USA Inc. 16 20 shares of common stock
GUSAP Partners Gerdau USA Inc. A-18 2 shares of Class A Common Stock
17 230 shares of common stock
Gerdau Ameristeel Corporation GUSAP Partners 3 21% of the partnership interests
Gerdau Ameristeel MRM Special GUSAP Partners 4 79% of the partnership interests
Sections Inc.
Gerdau Ameristeel MRM Special XXXX LLC 1 10 Membership Interests
Sections Inc.
GNA Financing, Inc. MFT Acquisition, Corp. 4 1 share of common stock
GNA Financing, Inc. Gerdau Ameristeel 5051 9,000,000 shares of
SHARE
HOLDER ISSUER CERTIFICATE NO. NUMBER OF SHARES
------ ------ --------------- ----------------
US Inc. common stock
GNA Financing, Inc. Co-Steel C.S.M. Corp. 5 501 shares of common stock
GNA Financing, Inc. Gerdau Ameristeel Lake 2 1,000 shares of common stock
Ontario Inc.
GNA Financing, Inc. Co-Steel Benefit Plans 2 100 shares of common stock
USA Inc.
GNA Financing, Inc. Gerdau Ameristeel Perth 2 100 shares of common stock
Amboy Inc.
GNA Financing, Inc. Gerdau Ameristeel C-2 100 shares of common stock
Sayreville Inc.
GNA Financing, Inc. Xxxxxx Bros. Corporation C-2 100,000 shares of common stock
Gerdau Ameristeel Perth Amboy Inc. Raritan River Urban 3 370 shares of common stock
Renewal Corporation
3038482 Nova Scotia Company PASUG LLC 5 5671.92835 common shares
GUSAP Partners 3038482 Nova Scotia 8 625,320,651 common shares
Company
3100361 Nova Scotia Company GNA Financing, Inc. 2 351 shares of Preferred Stock
Gerdau USA Inc. GNA Financing, Inc. 1 1 share of common stock
2 99 shares of common stock
Gerdau Ameristeel Corporation 3100361 Nova Scotia 2 1 common share
Company
3 99 common shares
Gerdau Ameristeel Sayreville Inc. N.J.S.C. Investment Co., 3 1,000 shares of common stock
Inc.
SHARE
HOLDER ISSUER CERTIFICATE NO. NUMBER OF SHARES
------ ------ --------------- ----------------
Gerdau Ameristeel US Inc. AmeriSteel Bright Bar, 7 800 shares of common stock
Inc.
SCHEDULE 3.1(G) - REGULATORY APPROVAL, CONSENTS AND WAIVERS
None
SCHEDULE 5.7 - LITIGATION
Except as set forth in Schedules 5.15 and 5.21, there is no action, suit, claim,
grievance or proceeding, or any governmental investigation or any arbitration
proceeding, in each case pending (including any unsatisfied settlement, judgment
decree or order) or, to the knowledge of any Borrower, threatened against any
Credit Party or any Property of any Credit Party before any court or arbitrator
or any Governmental Authority, or pursuant to any collective bargaining
agreement, which (a) challenges the validity of this Agreement, any Note, any
Application, any Security Instrument or any of the other Financing Documents or
(b) could reasonably be expected to have a Material Adverse Effect.
SCHEDULE 5.9 US EMPLOYEE BENEFITS DISCLOSURES
Intentionally omitted.
SCHEDULE 5.10 CANADIAN EMPLOYEE BENEFITS DISCLOSURES
Intentionally omitted.
SCHEDULE 5.15 - COMPLIANCE WITH LAWS
The Company is a defendant in an action brought by the U.S. Environmental
Protection Agency (the "EPA") in connection with a Superfund Site in Pelham,
Georgia. The Company has had settlement discussions with the EPA and, based on
these discussions, the Company believes that the EPA has a settlement range of
$8.0 to $10.0 million. The Company does not accept this liability and has been
considering legal alternatives including pursuing other contributing parties'
insurance carriers. On March 16, 2005, the EPA filed a motion for summary
judgment against the Company. In its motion, the EPA asked the court to rule
that the Company is jointly and severally liable for all cleanup costs incurred
by the EPA in responding to the cleanup of the Pelham site. On June 10, 2005,
the EPA filed a motion for summary judgment against the Company in which the EPA
asked the court to rule that the Company's statute of limitations defense is not
valid and that the EPA filed its suit on a timely basis. The Company has opposed
the EPA's motions. At this time, the Company's ultimate liability is not
estimable (the "EPA DISPUTE").
SCHEDULE 5.19 - CAPITAL STRUCTURE
JURISDICTION OF QUALIFICATION ISSUED AND OUTSTANDING
ENTITY ORGANIZATION TO DO BUSINESS AUTHORIZED SHARE CAPITAL SHARE CAPITAL AND BENEFICIAL HOLDER
------ --------------- -------------- ---------------------------- ------------------------------------------
Gerdau Ameristeel Ontario Ontario Quebec Unlimited number of special Gerdau Steel Inc. - 66.5% (202,135,900
Corporation shares, issuable in series, Common Shares as of August 31, 2005)
designated as Preferred Publicly Traded - 33.5%
Shares and unlimited number
of shares, designated Common
Shares
1062316 Ontario Limited Ontario Ontario Unlimited number of Common Gerdau Ameristeel Corporation -
Shares 95,726,738 Common Shares
1300554 Ontario Limited Ontario Ontario Unlimited number of Common Gerdau Ameristeel Corporation - 1,468
Shares Common Shares
1551533 Ontario Limited Ontario Ontario Unlimited number of Class A Gerdau Ameristeel Corporation -
Preferred Shares and 27,475,198 Class B Common Shares
unlimited number of Class B
Common Shares
Gerdau Ameristeel MRM Saskatchewan Saskatchewan Unlimited number of Common Gerdau Ameristeel Corporation - 128,395
Special Sections Inc. Manitoba Shares Common Shares
3100361 Nova Scotia Nova Scotia Nova Scotia 500,000,000 Common Shares Gerdau Ameristeel Corporation - 100
Company Common Shares
GUSAP Partners Delaware Delaware N/A Gerdau Ameristeel Corporation - 21% of
the Partnership Interest Gerdau
Ameristeel MRM Special Sections Inc. -
79% of the Partnership Interest
3038482 Nova Scotia Nova Scotia Nova Scotia 5,000,000,000 Common Shares GUSAP Partners - 625,320,651 Common Shares
Company Ontario
JURISDICTION OF QUALIFICATION ISSUED AND OUTSTANDING
ENTITY ORGANIZATION TO DO BUSINESS AUTHORIZED SHARE CAPITAL SHARE CAPITAL AND BENEFICIAL HOLDER
------ --------------- -------------- ---------------------------- ------------------------------------------
PASUG LLC Delaware Delaware Unlimited Common Shares 3038482 Nova Scotia Company - 5671.92835
Common Shares
Gerdau USA Inc. Delaware Delaware 1,000 Common Stock, 5,000 Gerdau Ameristeel Corporation - 3,921
Florida Class A Common Stock, 2,500 Class A Common Shares and 750 Common Shares
Preferred Stock 3038482 Nova Scotia Company - 20 Common
Shares
GUSAP Partners - 2 Class A Common Shares
and 230 Common Shares
GNA Financing, Inc. Delaware Delaware 1,000 Common Shares and Gerdau USA Inc. - 100 Common Shares
1,000 Preferred Shares 3100361 Nova Scotia Company - 351
Preferred Shares
Xxxxxx Bros. North Dakota North Dakota 200,000 Common Shares GNA Financing, Inc. - 100,000 Common
Corporation Shares
MFT Acquisition, Corp. Delaware Delaware 1,000 Common Shares GNA Financing, Inc. - 1 Common Share
Tennessee
JURISDICTION OF QUALIFICATION ISSUED AND OUTSTANDING
ENTITY ORGANIZATION TO DO BUSINESS AUTHORIZED SHARE CAPITAL SHARE CAPITAL AND BENEFICIAL HOLDER
------ --------------- -------------- ---------------------------- ------------------------------------------
Gerdau Ameristeel US Florida Florida 100,000,000 Common Shares GNA Financing, Inc. - 9,000,000 Common
Inc. Alabama and 10,000,000 Preferred Shares
Arkansas Shares
Delaware
District of
Columbia
Georgia
Illinois
Indiana
Iowa
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Mississippi
Missouri
New Jersey
New York
North Carolina
Ohio
Pennsylvania
South Carolina
Tennessee
Texas
Virginia
West Virginia
Wisconsin
JURISDICTION OF QUALIFICATION ISSUED AND OUTSTANDING
ENTITY ORGANIZATION TO DO BUSINESS AUTHORIZED SHARE CAPITAL SHARE CAPITAL AND BENEFICIAL HOLDER
------ --------------- -------------- ---------------------------- ------------------------------------------
Co-Steel C.S.M. Corp. Delaware Delaware 1,000 Common Shares and GNA Financing, Inc. - 501 Common Shares
Kentucky 2,000 Preferred Shares
Gerdau Ameristeel New Jersey New Jersey 1,000 Common Shares GNA Financing, Inc. - 100 Common Shares
Perth Amboy Inc. Illinois
Gerdau Ameristeel Lake Delaware Delaware 1,000 Common Shares GNA Financing, Inc. - 1,000 Common Shares
Ontario Inc. Illinois
New York
Gerdau Ameristeel Delaware Delaware 100 Common Shares GNA Financing, Inc. - 100 Common Shares
Sayreville Inc. New Jersey
Raritan River Urban New Jersey New Jersey 2,500 Common Shares Gerdau Ameristeel Perth Amboy Inc. - 370
Renewal Corporation Common Shares
Co-Steel Benefit Plans Delaware Delaware 1,500 Common Shares GNA Financing, Inc. - 100 Common Shares
USA Inc.
XXXX LLC Delaware Delaware 10 Interests Gerdau Ameristeel MRM Special Sections
Inc. - 10 Interests
UNANIMOUS SHAREHOLDER AGREEMENTS AND SIMILAR AGREEMENTS:
GUSAP Partners - General Partnership Agreement dated December 21, 1999 between
Gerdau Ameristeel MRM Special Sections Inc. (formerly known as Gerdau MRM Steel
Inc.) and Gerdau Ameristeel Corporation. (formerly known as Gerdau Courtice
Steel Inc.).
PASUG LLC - Limited Liability Company Agreement dated September 29, 2002.
SCHEDULE 5.20 - INSURANCE
Most employees of the U.S. operations are self-insured for health care and
dental assistance. The Company pays for certain expenses related to health care
and dental covered by the self-insured plan, which is provided and administered
by a third-party provider.
SCHEDULE 5.21 ENVIRONMENTAL MATTERS
Intentionally omitted.
SCHEDULE 5.23 - EMPLOYEE MATTERS
Except as disclosed below there are no strikes, slow downs, work stoppages,
union organizing campaigns or representative petitions, unfair labor practices
or labor disputes pending or threatened against any Credit Party or their
respective employees which would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
- On May 26, 2005, the Company ceased operations at its Beaumont facility
pending the labor union's response to the Company's agreement offer.
Negotiations with the union are ongoing.
- The collective bargaining agreement at the Company's St. Xxxx and Wilton
facilities expired on July 31, 2005 and September 30, 2005, respectively.
Negotiations with each union are ongoing.
SCHEDULE 5.24 REAL PROPERTY LOCATIONS
Intentionally omitted.
SCHEDULE 5.26 - INDEBTEDNESS
Intentionally omitted.
SCHEDULE 6.5 - INSURANCE
Intentionally omitted.
SCHEDULE 6.13 BANK ACCOUNTS TO BE CLOSED
Intentionally omitted.
SCHEDULE 7.3 - PERMITTED LIENS
- Liens evidenced by filings as summarized in the attached Exhibits A and B.
SCHEDULE 7.6 - PERMITTED INVESTMENTS
Intentionally omitted.
SCHEDULE 7.18 BANK ACCOUNTS
Intentionally omitted.
EXHIBIT A: U.S. LIEN SUMMARY
LIEN SEARCH RESULTS
GERDAU AMERISTEEL CORPORATION
(FLORIDA)
*State Filings
Secured Party: CitiCapital Technology Finance, Inc.
Filing Date: 6/02/04
Filing Number: 200407072517
Collateral: Equipment
Secured Party: ICX Corporation
Filing Date: 6/21/04
Filing Number: 20040721849X
Collateral: Telescopic Boom Lift
Secured Party: ICX Corporation
Filing Date: 6/09/03
Filing Number: 200304160561
Collateral: Rail King Model Diesel Engine Rail Car Mover
LIEN SEARCH RESULTS
GERDAU AMERISTEEL PERTH AMBOY INC.
(NEW JERSEY)
*State Filings
Secured Party: Herc Exchange
Filing Date: 5/24/05
Filing Number: 22985323
Collateral: Equipment
LIEN SEARCH RESULTS
GERDAU AMERISTEEL SAYREVILLE INC.
(DELAWARE)
*State Filings
Secured Party: General Electric Capital Corporation
Filing Date: 5/17/05
Filing Number: 51526491
Collateral: Equipment (In-lieu filing from State of New Jersey)
LIEN SEARCH RESULTS
GERDAU AMERISTEEL US INC.
(FLORIDA)
*State Filings
Secured Party: Key Equipment Finance Inc.
Filing Date: 9/1/05
Filing Number: 200500580462
Collateral: Equipment
Secured Party: Citibank, N.A.
Filing Date: 8/15/05
Filing Number: 200500446774
Collateral: Accounts Receivable from Xxxxxxx Incorporated purchased by Citibank
Secured Party: Key Equipment Finance Inc.
Filing Date: 8/04/05
Filing Number: 200500353504
Collateral: Equipment
Secured Party: The CIT Group/Equipment Financing, Inc.
Filing Date: 5/27/05
Filing Number: 200509797634
Collateral: Equipment
Secured Party: The CIT Group/Equipment Financing, Inc.
Filing Date: 4/20/05
Filing Number: 200509475491
Collateral: Xxxxxx Model T-520M Industrial Lift Truck
Secured Party: The CIT Group/Equipment Financing, Inc.
Filing Date: 3/08/05
Filing Number: 200509137979
Collateral: Xxxxxx Industrial Lift Truck
Secured Party: ORIX Financial Services, Inc.
Filing Date: 3/08/05
Filing Number: 20050913872X
Collateral: Equipment
Secured Party: The CIT Group/Equipment Financing, Inc.
Filing Date: 2/23/05
Filing Number: 200509035009
Collateral: Linde Model H45D Forklift
Secured Party: NMHG Financial Services, Inc.
Filing Date: 2/18/05
Filing Number: 200509007668
Collateral: Equipment
Secured Party: Network Appliance, Inc.
Filing Date: 1/19/05
Filing Number: 200508778911
Collateral:
Equipment subject to Debtor's obligations with respect to any present or future
leases, loans or conditional sales agreements, or supporting obligations, to or
with Secured Party, or obligations otherwise funded by Secured Party on behalf
of or at the direction of Debtor, together with all of Debtor's right, title and
interest in or to the following to the extent relating to or arising from such
equipment as applicable, wherever located and whether now or hereafter acquired
or existing: (a) software licenses, equipment and other goods (including,
without limitation, all attachment, accessories, accessions, substitutions and
replacements), (b) related documents of title, licenses, investment property,
chattel property, notes and instruments, (c) related accounts, contract rights
and general intangibles, (d) related records, date, information and other such
property, (e) all rights, claims and remedies of Debtor in connection with any
of the foregoing, and(f) all cash and non-cash proceeds, and all products of the
forgoing in any form.
Secured Party: Mi-Xxxx Products Inc.
Filing Date: 8/02/04
Filing Number: 200407559645
Collateral: Mi-Xxxx machine
Secured Party: CIT Technology Financing Services, Inc.
Filing Date: 7/28/04
Filing Number: 200407520498
Collateral: Equipment
Secured Party: Mi-Xxxx Products Inc.
Filing Date: 3/15/04
Filing Number: 200406391449
Collateral: Mi-Xxxx Machine
Secured Party: ICX Corporation
Filing Date: 11/13/03
Filing Number: 200305435017
Collateral: Xxxxxx Model T-250m 2003 forklifts
Secured Party: ICX Corporation
Filing Date: 11/13/03
Filing Number: 200305435009
Collateral: Yale Forklifts
Secured Party: The CIT Group/Equipment Financing, Inc.
Filing Date: 67/31/03
Filing Number: 200304594871
Collateral: Xxxxxx Diesel Lift Truck
Secured Party: XXX America, Inc.
Filing Date: 7/14/03
Filing Number: 200304450136
Collateral: Equipment
Secured Party: Xxxxxx-Xxxxxxx, Incorporated
Filing Date: 6/23/03
Filing Number: 200304276535
Collateral: Equipment
LIEN SEARCH RESULTS
XXXXXX BROS. CORPORATION
(NORTH DAKOTA)
*State Filings
Secured Party: NMHG Financial Services, Inc.
Filing Date: 11/20/03
Filing Number: 03-000146056-0
Collateral: Equipment
Secured Party: NMHG Financial Services, Inc.
Filing Date: 12/31/03
Filing Number: 03-000153106-6
Collateral: Equipment
EXHIBIT B: CANADIAN LIEN SUMMARY
We made searches or inquiries for:
ONTARIO
1. security or other interests in the personal property registered under the
Personal Property Security Act (Ontario) for the following:
- ******Gerdau Ameristeel Corporation - SEE ATTACHED SCHEDULE A
- ***Co-Steel Inc. - SEE ATTACHED SCHEDULE B
- *877449 Ontario Limited - CLEAR
- *Gerdau Ameristeel Cambridge Inc. - CLEAR
- ***Gerdau Courtice Steel Inc. - SEE ATTACHED SCHEDULE C
- *Courtice Steel Inc. - CLEAR
- ******Gerdau Ameristeel MRM Special Sections Inc. - CLEAR
- *MRM Steel Inc. - CLEAR
- *Gerdau Ameristeel MRM Inc. - CLEAR
- *Gerdau MRM Steel Inc. - CLEAR
- *3072011 Canada Limited - CLEAR
- *Gerdau Nova Scotia Holding Company - CLEAR
- *Gerdau Nova Scotia Holding Company Limited - CLEAR
- *2017387 Ontario Limited - CLEAR
- *Gerdau Ameristeel Distribution Canada Ltd. - CLEAR
- *Gerdau Ameristeel Distribution Canada Limited CLEAR
- *Co-Steel Distribution Canada Limited - CLEAR
- *1159044 Ontario Limited - CLEAR
- **Gerdau MRM Holdings Inc. -CLEAR
- *3116867 Canada Limited - CLEAR
- *1102590 Ontario Limited - CLEAR
- *1585947 Ontario Limited - CLEAR
- *Xxxxxx X.X. - CLEAR
- *Lake Ontario Steel Company Limited - CLEAR
- *Co-Steel International Limited - CLEAR
- *Co-Steel Benefit Plans Inc. - CLEAR
- ******1062316 Ontario Limited - CLEAR
- ******1300554 Ontario Limited - CLEAR
- ******1551533 Ontario Limited - CLEAR
- *Cansteel Antilles N.V. - CLEAR
- ******3100361 Nova Scotia Company - CLEAR
- ******3038482 Nova Scotia Company - CLEAR
- **GUSAP Partners - CLEAR
- ***Gerdau Ameristeel Distribution US Inc. - CLEAR
- ****GNA Financing, Inc. - CLEAR
- ****PASUG LLC - CLEAR
- ****Co-Steel C.S.M. Corp. - CLEAR
- *****PASUG Inc. - CLEAR
- *****Co-Steel Recycling Inc. - CLEAR
- *****Co-Steel Raritan, Inc. - CLEAR
- *****Raritan River Steel Company - CLEAR
- *****Gerdau Ameristeel Perth Amboy Inc. - CLEAR
- *****Co-Steel Benefit Plans USA Inc. - CLEAR
* current to July 27, 2005
** current to September 25, 2005
*** current to September 28, 2005
**** current to October 19, 2005
***** current to October 23, 2005
******current to October 25, 2005
2. notices of intention to give security under Section 427 of the Bank Act
(Canada) registered in the Bank of Canada at Xxxxxxx, Xxxxxxx:
- *Gerdau Ameristeel Corporation - CLEAR
- *Co-Steel Inc. - CLEAR
- *877449 Ontario Limited - CLEAR
- *Gerdau Ameristeel Cambridge Inc. - CLEAR
- *Gerdau Courtice Steel Inc. - CLEAR
- *Courtice Steel Inc. - CLEAR
- *MRM Steel Inc. - CLEAR
- *Gerdau Ameristeel MRM Special Sections Inc. - CLEAR
- **Gerdau Ameristeel MRM Inc. - CLEAR
- **Gerdau MRM Steel Inc. - CLEAR
- **3072011 Canada Limited - CLEAR
- *Gerdau Nova Scotia Holding Company - CLEAR
- *Gerdau Nova Scotia Holding Company Limited - CLEAR
- *2017387 Ontario Limited - CLEAR
- *Gerdau Ameristeel Distribution Canada Ltd. - CLEAR
- *Gerdau Ameristeel Distribution Canada Limited - CLEAR
- *Co-Steel Distribution Canada Limited - CLEAR
- *1159044 Ontario Limited - CLEAR
- *Gerdau MRM Holdings Inc. - CLEAR
- *3116867 Canada Limited - CLEAR
- *1102590 Ontario Limited - CLEAR
- *1585947 Ontario Limited - CLEAR
- *Xxxxxx X.X. - CLEAR
- *Lake Ontario Steel Company Limited - CLEAR
- *Co-Steel International Limited - CLEAR
- ***Co-Steel Benefit Plans Inc. - CLEAR
- ***1062316 Ontario Limited - CLEAR
- ***1300554 Ontario Limited - CLEAR
- ***1551533 Ontario Limited - CLEAR
- ***Cansteel Antilles N.V. - CLEAR
- ****3100361 Nova Scotia Company - CLEAR
- ****3038482 Nova Scotia Company - CLEAR
- *****GUSAP Partners - CLEAR
- *****Gerdau Ameristeel Distribution US Inc. -CLEAR
* current to July 29, 2005
** current to August 2, 2005
*** current to August 31, 2005
**** current to September 9, 2005
*****current to September 26, 2005
3. Judgements or Executions filed in the City of Toronto as of July 26, 2005,
August 8, 2005 or August 31, 0000, Xxxxxxxxxxxx xx Xxxxxx as of August 31,
2005, United Counties of Stormont, Dundas and Glengarry (Cornwall) as of
August 31, 2005, County of Middlesex London as of August 31, 2005, Regional
Municipality of Waterloo (Kitchener) as of September 26, 2005:
- **Gerdau Ameristeel Corporation - CLEAR
- **Co-Steel Inc. - CLEAR
- **877449 Ontario Limited - CLEAR
- **Gerdau Ameristeel Cambridge Inc. - CLEAR
- *Gerdau Courtice Steel Inc. - CLEAR
- *Courtice Steel Inc. - CLEAR
- *MRM Steel Inc. - CLEAR
- *Gerdau Ameristeel MRM Special Sections Inc. - CLEAR
- *Gerdau Ameristeel MRM Inc. - CLEAR
- *Gerdau MRM Steel Inc. - CLEAR
- *3072011 Canada Limited - CLEAR
- **Gerdau Nova Scotia Holding Company - CLEAR
- *Gerdau Nova Scotia Holding Company Limited - CLEAR
- **2017387 Ontario Limited - CLEAR
- **Gerdau Ameristeel Distribution Canada Ltd. - CLEAR
- **Gerdau Ameristeel Distribution Canada Limited - CLEAR
- *Co-Steel Distribution Canada Limited - CLEAR
- *1159044 Ontario Limited - CLEAR
- **Gerdau MRM Holdings Inc. - CLEAR
- **3116867 Canada Limited - CLEAR
- **1102590 Ontario Limited - CLEAR
- **1585947 Ontario Limited - CLEAR
- *Xxxxxx X.X. - CLEAR
- **Lake Ontario Steel Company Limited - CLEAR
- **Co-Steel International Limited - CLEAR
- *Co-Steel Benefit Plans Inc. - CLEAR
- *1062316 Ontario Limited - CLEAR
- *1300554 Ontario Limited - CLEAR
- *1551533 Ontario Limited - CLEAR
- *Cansteel Antilles N.V. - CLEAR
- *3100361 Nova Scotia Company - CLEAR
- *3038482 Nova Scotia Company - CLEAR
- ***GUSAP Partners -CLEAR
- ***Gerdau Ameristeel Distribution US Inc.- CLEAR
* searches were conducted in Toronto only
** searches were conducted in Toronto, Whitby, Cornwall and London
*** searches were conducted in Toronto and Kitchener
4. Insolvency search in the public record of the Superintendent of Bankruptcy
for all the Districts and Divisions of Canada recorded in the office of the
Official Receiver:
- *Gerdau Ameristeel Corporation - CLEAR
- *Co-Steel Inc. - CLEAR
- *877449 Ontario Limited - CLEAR
- *Gerdau Ameristeel Cambridge Inc. - CLEAR
- *Gerdau Courtice Steel Inc. - CLEAR
- *Courtice Steel Inc. - CLEAR
- *MRM Steel Inc. - CLEAR
- *Gerdau Ameristeel MRM Special Sections Inc. - CLEAR
- Gerdau Ameristeel MRM Inc. - CLEAR
- **Gerdau MRM Steel Inc. - CLEAR
- **3072011 Canada Limited - CLEAR
- *Gerdau Nova Scotia Holding Company - CLEAR
- *Gerdau Nova Scotia Holding Company Limited - CLEAR
- *2017387 Ontario Limited - CLEAR
- *Gerdau Ameristeel Distribution Canada Ltd. - CLEAR
- *Gerdau Ameristeel Distribution Canada Limited - CLEAR
- *Co-Steel Distribution Canada Limited - CLEAR
- *1159044 Ontario Limited - CLEAR
- *Gerdau MRM Holdings Inc. - CLEAR
- *3116867 Canada Limited - CLEAR
- *1102590 Ontario Limited - CLEAR
- *1585947 Ontario Limited - CLEAR
- *Xxxxxx X.X. - CLEAR
- *Lake Ontario Steel Company Limited - CLEAR
- *Co-Steel International Limited - CLEAR
- ***Co-Steel Benefit Plans Inc. - CLEAR
- ***1062316 Ontario Limited - CLEAR
- ***1300554 Ontario Limited - CLEAR
- ***1551533 Ontario Limited - CLEAR
- ***Cansteel Antilles N.V. - CLEAR
- ****3100361 Nova Scotia Company - CLEAR
- ****3038482 Nova Scotia Company - CLEAR
- ***** GUSAP Partners - CLEAR
- *****Gerdau Ameristeel Distribution US Inc. -CLEAR
* current to July 26, 2005
** current to July 27, 2005
*** current to August 26, 2005
**** current to September 6, 2005
***** current to September 21, 2005.
SCHEDULE A
PERSONAL PROPERTY SECURITY ACT (ONTARIO) ("PPSA")
We obtained a certificate from the Registrar of Personal Property Security with
respect to GERDAU AMERISTEEL CORPORATION (file currency: October 25, 2005) which
discloses the following financing statements and financing change statements
filed under the PPSA.
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
1 2 GERDAU XXX XXXX MOTORS 615723435 5 YEARS EQUIPMENT, N/A
AMERISTEEL LTD. 20050602180980286082 OTHER, MOTOR
CORPORATION 0000 XXXXX XXXXXX (JUNE 2, 2005) VEHICLE
1802 XXXXXXX XXXXXXXXX, ONTARIO
STREET L4J 1V8
XXXXX
XXXXXX,
XXXXXXX
X0X 0X0
2 3-4 GERDAU RYDER FINANCE 615183237 4 YEARS EQUIPMENT, YEAR: 2005
AMERISTEEL CORPORATION 20050517105215299271 OTHER, MOTOR MAKE: CROWN
CORPORATION 000 XXXXXXX XXXX. (MAY 17, 2005) VEHICLE MODEL: WP2335-45
XXXXXXX MISSISSAUGA, V.I.N.: 0X000000
XXXXXX XXXXX XXXXXXX
XXXXXX, X0X 0X0 YEAR: 2005
ONTARIO MAKE: CROWN
X0X 0X0 MODEL: WP2335-45
V.I.N.: 5A339004
YEAR: 2005
MAKE: CROWN
MODEL: SX3000-30
V.I.N.: 5A502094
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
3 5 GERDAU WAJAX INDUSTRIES 614555424 1 YEAR MOTOR VEHICLE AMOUNT SECURED: $4,437
AMERISTEEL LTD. 20050426174518751376 YEAR: 2002
CORPORATION 16745 111 AVENUE (APRIL 26, 2005) MAKE: HYSTER
000 XXXXX XXXXXXXX, XXXXXXX MODEL: X000XX
XXXXX X0X 0X0 V.I.N.: K005V03887Z
CAMBRIDGE,
ONTARIO INCLUDING ALL PARTS,
N1R 7G8 COMPONENTS, ATTACHMENTS,
ACCESSORIES, REPLACEMENTS,
SUBSTITUTIONS, ADDITIONS,
IMPROVEMENTS AND PROCEEDS
THEREOF.
4 6-7 GERDAU EQUIPMENT SALES & 613643247 1 YEAR EQUIPMENT, ONE YOUNG LMG200, 2 CU YD
AMERISTEEL SERVICE (0000) 00000000000000000000 OTHER FOUR TINE HYDRAULIC
1801 XXXXXXX LIMITED (MARCH 29, 2005) COMBINATION MAGNET WITH 280
STREET 1030 XXXXXX XXXXX DEGREE ROTATION, S/N
WHITBY, ROAD TORONTO, LMG200-59, COMPLETE WITH
ONTARIO ONTARIO XXXXXX 50" MAGNET.
L1N 5T1 X0X 0X0
AMENDMENT AMENDED TO REMOVE INVENTORY
20050920194815310269 AND ACCOUNTS FROM THE
(SEPTEMBER 20, 2005) COLLATERAL CLASSIFICATION.
5 8-9 GERDAU EQUIPMENT SALES & 613643283 1 YEAR EQUIPMENT, ONE NEW 2005 LINK-BELT 600LX
AMERISTEEL SERVICE (0000) 00000000000000000000 OTHER MH MATERIAL HANDLER, S/N
1801 XXXXXXX LIMITED (MARCH 29, 2005) K8J5-9188 COMPLETE WITH ALL
STREET 1030 XXXXXX XXXXX STANDARD EQUIPMENT AND AS PER
WHITBY, ROAD TORONTO, ESS RENTAL AGREEMENT.
ONTARIO ONTARIO
L1N 5T1 X0X 0X0
AMENDMENT AMENDED TO REMOVE INVENTORY
20050920194815310270 AND ACCOUNTS FROM THE
(SEPTEMBER 20, 2005) COLLATERAL CLASSIFICATION.
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
6 00-00 XXXXXX XX XXXX XXXXXX 612038169 3 YEARS EQUIPMENT, ALL GOODS SUPPLIED BY THE
AMERISTEEL FINANCIAL SERVICES 20050117120570291658 OTHER SECURED PARTY PURSUANT TO A
CORPORATION CANADA INC. (JANUARY 17, 2005) LEASE BETWEEN THE DEBTOR AND
1801 XXXXXXX 100, 1235 NORTH THE SECURED PARTY, TOGETHER
STREET SERVICE ROAD WEST WITH ALL PARTS AND
WHITBY, OAKVILLE, ONTARIO ACCESSORIES THERETO AND
ONTARIO L6M 2W2 ACCESSION THERETO AND ALL
L1N 5T1 REPLACEMENTS OR SUBSTITUTIONS
FOR SUCH GOODS AND PROCEEDS
THEREOF (PROCEEDS AS DEFINED
IN THE PERSONAL PROPERTY
SECURITY ACT (ONTARIO) AND
ANY INSURANCE PROCEEDS
RESULTING THEREFROM.
7 14-15 GERDAU RICOH CANADA INC. 611959338 3 YEARS EQUIPMENT, ALL GOODS SUPPLIED BY THE
AMERISTEEL 100, 1235 NORTH 20050112152070291579 OTHER SECURED PARTY PURSUANT TO A
CORPORATION SERVICE ROAD WEST (JANUARY 12, 2005) LEASE BETWEEN THE DEBTOR AND
000 XXXXX XXXXXXXX, XXXXXXX THE SECURED PARTY, TOGETHER
PLACE RM L6M 2W2 WITH ALL PARTS AND
(ROLLING ACCESSORIES THERETO AND
XXXXX) ACCESSION THERETO AND ALL
CAMBRIDGE, REPLACEMENTS OR SUBSTITUTIONS
ONTARIO FOR SUCH GOODS AND PROCEEDS
N1T 1R9 THEREOF (PROCEEDS AS DEFINED
IN THE PERSONAL PROPERTY
SECURITY ACT (ONTARIO) AND
ANY INSURANCE PROCEEDS
RESULTING THEREFROM.
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
8 16-18 XXXXXX XX CANADA LEASING 611179947 4 YEARS INVENTORY, N/A
AMERISTEEL SERVICES COMPANY 20041207105430650682 EQUIPMENT,
CORPORATION 2300 MEADOWVALE (DECEMBER 7, 2004) ACCOUNTS,
0000 XXXXXXX XXXX., XXXXX 000 XXXXX
XXXXXX XXXXXXXXXXX, AMENDMENT ADDITIONAL XXXXXX XXXXXXX
XXXXXX, XXXXXXX 00000000000000000000
XXXXXXX X0X 0X0 (JANUARY 17, 2005)
X0X 0X0
500 WATERLOO ABN AMRO LEASING A AMENDMENT ADDITIONAL SECURED PARTY
STREET DIVISION OF ABN 20050805104230651068
OSHAWA, AMRO BANK N.V. (AUGUST 5, 2005)
ONTARIO CANADA BRANCH
L1H 3X1 0000 XXXXX XXXXXXX
XXXX XXXXXXXXXX,
XXXXXXX
X0X 0X0
9 19 GERDAU STRONGCO INC 610628454 1 YEAR EQUIPMENT, DATE OF MATURITY: NOVEMBER
AMERISTEEL 1640 ENTERPRISE 20041116181614617396 MOTOR VEHICLE 16, 0000
XXXX XXXXXXX XXXX XXXXXXXXXXX, (NOVEMBER 16, 2004) MAKE: VOLVO
STREET SOUTH ONTARIO MODEL: X000X
XXXXXX, X0X 0X0 V.I.N.: X000XX00000
XXXXXXX
X0X 0X0
ONE VOLVO WHEEL LOADER MODEL
L180E SERIAL #L180EV62506 TAG
#49785
10 20-21 XXXXXX XX CANADA LEASING 610557183 5 YEARS INVENTORY, N/A
AMERISTEEL SERVICES COMPANY 20041112145330650671 EQUIPMENT,
CORPORATION 2300 MEADOWVALE (NOVEMBER 12, 2004) ACCOUNTS,
0000 XXXXXXX XXXX., XXXXX 000 XXXXX
XXXXXX XXXXXXXXXXX, AMENDMENT ADDITIONAL SECURED PARTY
WHITBY, ONTARIO 20050805104230651072
ONTARIO L5N 5P9 (AUGUST 5, 2005)
X0X 0X0
BAL GLOBAL FINANCE
CANADA
CORPORATION
000 XXX XXXX XXXX
XXXXX 000
XXXXXXX, XXXXXXX
X0X 0X0
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
11 22-24 XXXXXX XX CANADA LEASING 609668955 4 YEARS INVENTORY, N/A
AMERISTEEL SERVICES COMPANY 20041007194830650641 EQUIPMENT,
CORPORATION 2300 MEADOWVALE (OCTOBER 7, 2004) ACCOUNTS,
0000 XXXXXXX XXXX., XXXXX 000 XXXXX
XXXXXX XXXXXXXXXXX, AMENDMENT XXXXXXXXXX XXXXXXX
XXXXXX, XXXXXXX 00000000000000000000
XXXXXXX X0X 0X0 (JANUARY 17, 2005)
X0X 0X0
55 A FENMAR ABN AMRO LEASING A AMENDMENT ADDITIONAL SECURED PARTY
DRIVE DIVISION OF ABN 20050805104230651069
NORTH YORK, AMRO BANK N.V. (AUGUST 5, 2005)
ONTARIO CANADA BRANCH
M9L 1M3 0000 XXXXX XXXXXXX
XXXX
XXXXXXXXXX, XXXXXXX
X0X 0X0
12 25 GERDAU NATIONAL LEASING 605983455 2 YEARS EQUIPMENT, YEAR: 1997
AMERISTEEL GROUP INC. 20040601133760050105 MOTOR VEHICLE MAKE: HYSTER LIFT TRUCK
CORPORATION L#2260454 (JUNE 1, 2004) MODEL: H155XL
160 ORION 0000 XXXXXXX XXXXX V.I.N.: F006A09383U
PLACE WINNIPEG, MANITOBA
CAMBRIDGE, R3T 0Y4
XXXXXXX
X0X 0X0
13 26 GERDAU XXXXXXX FINANCIAL 601198776 4 YEARS EQUIPMENT, ALL GOODS WHICH ARE XXXXXXX
XXXXXXXXXX SERVICES 20031121145315300756 OTHER SWEEPERS AND SCRABBERS
CORPORATION 2300 MEADOWVALE (NOVEMBER 21, 2003) TOGETHER WITH ALL
0000 XXXXXXX XXXX., XXXXX 000 REPLACEMENTS AND
STREET SOUTH MISSISSAUGA, AMENDMENT SUBSTITUTIONS THEREOF AND ALL
WHITBY, ONTARIO 20051007145615302307 PARTS, XXXXXXXXXXX,
XXXXXXX X0X 0X0 (OCTOBER 7, 2005) ACCESSIONS AND ATTACHMENTS
L1N 5T1 THERETO AND ALL IDENTIFIABLE
AND TRACEABLE PROCEEDS
THEREOF.
AMENDMENT
20051012194215319683 ADD COLLATERAL DESCRIPTION
(OCTOBER 12, 2005)
AMEND COLLATERAL DESCRIPTION
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
14 27 GERDAU XXXXXXX FINANCIAL 897385923 4 YEARS EQUIPMENT, ALL GOODS WHICH ARE XXXXXXX
XXXXXXXXXX SERVICES 20030819153715300904 OTHER SWEEPERS AND SCRABBERS
CORP 2300 MEADOWVALE (AUGUST 19, 2003) TOGETHER WITH ALL
0000 XXXXXXX XXXX., XXXXX 000 REPLACEMENTS AND
STREET SOUTH MISSISSAUGA, AMENDMENT SUBSTITUTIONS THEREOF AND ALL
WHITBY, ONTARIO 20051007145615302306 PARTS, XXXXXXXXXXX,
XXXXXXX X0X 0X0 (OCTOBER 7, 2005) ACCESSIONS AND ATTACHMENTS
L1N 5T1 THERETO AND ALL IDENTIFIABLE
AND TRACEABLE PROCEEDS
THEREOF.
AMENDMENT
20051012194215319682 ADD COLLATERAL DESCRIPTION
(OCTOBER 12, 2005)
AMEND COLLATERAL DESCRIPTION
15 72-75 XXXXXX XX CANADA LEASING 891787743 5 YEARS INVENTORY, YEAR: 2002
AMERISTEEL SERVICES COMPANY 20030218155960935717 EQUIPMENT, MAKE: L330E
CORPORATION 2300 MEADOWVALE (FEBRUARY 18, 2003) ACCOUNTS, MODEL: VOLVO
XXXXXXX XXXX., XXXXX 000 OTHER, V.I.N.: X000XX00000
XXXXXX XXXXX XXXXXXXXXXX, MOTOR VEHICLE
WHITBY, ONTARIO
ONTARIO L5N 5P9
L1N 5T1
AMENDMENT AMEND MODEL YEAR FOR MOTOR
ABN AMRO LEASING A 20050615145430651007 VEHICLE COLLATERAL
DIVISION OF ABN (JUNE 15, 2005)
AMRO BANK N.V.
CANADA BRANCH AMENDMENT
5515 NORTH SERVICE 20050615193130651009 AMEND MODEL YEAR FOR MOTOR
ROAD BURLINGTON, (JUNE 15, 2005) VEHICLE XXXXXXXXXX
XXXXXXX
X0X 0X0 AMENDMENT
20050805104230651071 ADDITIONAL SECURED PARTY
(AUGUST 5, 2005)
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
16 76-78 XXXXX X. XXXX XXXXXXXXXX 891405495 3 YEARS CONSUMER AMOUNT SECURED: $32,530
JOHANNPETER MOTOR SALES 20030204101350414034 GOODS, MOTOR YEAR: 2003
86 LYNDHURST LIMITED (FEBRUARY 4, 2003) VEHICLE MAKE: XXXXXXX
XXXXXX 0 XXXXXXX XXXX MODEL: GRAND PRIX
TORONTO, BOX 5004 V.I.N.: 0X0XX00X00X000000
ONTARIO UXBRIDGE, ONTARIO
M5R 2Z7 X0X 0X0
DATE OF
BIRTH: XXXXX
00, 0000
XXXXXX AMENDMENT TO ADD ADDITIONAL DEBTOR
AMERISTEEL 20031106082750414609
CORPORATION (NOVEMBER 6, 2003)
1601 XXXXXXX
STREET SOUTH RENEWAL RENEWED FOR A PERIOD OF 1
WHITBY, 20050131140250415508 YEAR
ONTARIO (JANUARY 31, 2005)
X0X 0X0
17 79-80 XXXXXX XX CANADA LEASING 890907039 5 YEARS INVENTORY, YEAR: 2002
AMERISTEEL SERVICES COMPANY 20030115160260935547 EQUIPMENT, MAKE: VOLVO
CORPORATION 2300 MEADOWVALE (JANUARY 15, 2003) ACCOUNTS, MODEL: L330E
0000 XXXXXXX XXXX., XXXXX 000 OTHER, MOTOR V.I.N.: X000XX00000
XXXXXX XXXXX XXXXXXXXXXX, VEHICLE
WHITBY, ONTARIO
ONTARIO L5N 5P9
X0X 0X0
AMENDMENT AMENDED TO ADD A SECURED
ABN AMRO LEASING A 20050805104230651070 PARTY.
DIVISION OF ABN (AUGUST 5, 2005)
AMRO BANK N.V.
CANADA BRANCH
0000 XXXXX XXXXXXX
XXXX XXXXXXXXXX,
XXXXXXX
X0X 0X0
FILE NO. AND REGISTRATION/
PAGE REGISTRATION NO./ RENEWAL PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ------ ------------- ------------------ -------------------- -------------- -------------- -----------------------------
18 81-86 GERDAU IBM CANADA LIMITED 823209282 11 YEARS EQUIPMENT, N/A
AMERISTEEL - ATTN. XXXXX 19960704193315291164 ACCOUNTS,
CORPORATION PAGET (JULY 4, 1996) OTHER
160 ORION 3600 STEELES
PLACE AVENUE EAST, F4 RENEWAL RENEWED FOR A PERIOD XX 0
XXXXXXXXX, XXXXXXX, XXXXXXX 19990624143415308329 YEARS.
XXXXXXX X0X 0X0 (JUNE 24, 1999)
X0X 0X0
RENEWAL RENEWED FOR A PERIOD OF 1
20010622144815309859 YEAR.
(JUNE 22, 2001)
RENEWAL RENEWED FOR A PERIOD OF 2
20020625145615305911 YEARS.
(JUNE 25, 2002)
RENEWAL RENEWED FOR A PERIOD OF 3
20040611145415301538 YEARS.
(JUNE 11, 2004)
AMENDMENT AMENDED TO CHANGE DEBTOR NAME
20050930104915294501 TO GERDAU AMERISTEEL
(SEPTEMBER 30, 2005) CORPORATION.
SCHEDULE B
PERSONAL PROPERTY SECURITY ACT (ONTARIO) ("PPSA")
We obtained a certificate from the Registrar of Personal Property Security with
respect to CO-STEEL INC. (file currency: September 28, 2005) which discloses the
following financing statements and financing change statements filed under the
PPSA.
REGISTRATION/
FILE NO. AND RENEWAL
PAGE REGISTRATION NO./ PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ---- -------------------- ---------------------- -------------------- ------------- --------------- ---------------------
1 2 STEEL CORP. VW CREDIT CANADA INC. 602135865 3 YEARS CONSUMER GOODS, AMOUNT
0000 XXXXXXXX XXXX 0000 XXXX XXXXX 20031230145315307520 EQUIPMENT, SECURED: $89,830
DRIVE BURLINGTON, SUITE 500 (DECEMBER 30, 2003) OTHER, MOTOR YEAR: 0000
XXXXXXX X0X 0X0 XX. XXXXXXX, XXXXXX VEHICLE MAKE: AUDI
H4R 2N1 MODEL: A6 4.2 SDN Q
PRECISION ROLLS INC. V.I.N.:
649, SOUTH SERVICE XXXXX00X00X000000
XXXX XXXXXXX,
XXXXXXX X0X 0X0
2 3 CO-STEEL INC. GE CAPITAL CANADA 867581613 5 YEARS EQUIPMENT N/A
XXXXXXX STREET SOUTH LEASING SERVICES INC. 20001115171160932705
WHITBY, ONTARIO 0000 XXXXXXXXXX XXXX., (NOVEMBER 15, 2000)
L1N 5T1 XXXXX 000
XXXXXXXXXXX, XXXXXXX
X0X 0X0
3 4 CO-STEEL INC. GE CAPITAL CANADA 866940876 5 YEARS EQUIPMENT N/A
XXXXXXX STREET SOUTH LEASING SERVICES INC. 20001024170460932650
WHITBY, ONTARIO 0000 XXXXXXXXXX XXXX., (OCTOBER 24, 2000)
L1N 5T1 XXXXX 000
XXXXXXXXXXX, XXXXXXX
X0X 0X0
REGISTRATION/
FILE NO. AND RENEWAL
PAGE REGISTRATION NO./ PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ---- -------------------- ---------------------- -------------------- ------------- --------------- ---------------------
4 5 CO-STEEL INC. GE CAPITAL CANADA 866583432 5 YEARS EQUIPMENT N/A
XXXXXXX STREET SOUTH LEASING SERVICES INC. 20001012165160922823
WHITBY, ONTARIO 0000 XXXXXXXXXX XXXX., (OCTOBER 12, 2000)
L1N 5T1 XXXXX 000
XXXXXXXXXXX, XXXXXXX
X0X 0X0
5 6-7 CO-STEEL INC. GE CAPITAL CANADA 860877738 6 YEARS EQUIPMENT N/A
XXXXXXX STREET SOUTH LEASING SERVICES INC. 20000412162260922391
WHITBY, ONTARIO 0000 XXXXXXXXXX XXXX., (APRIL 12, 2000)
L1N 5T1 XXXXXXXXXXX, XXXXXXX
X0X 0X0
RENEWAL
20010309164260861707
(MARCH 9, 2001) RENEWED FOR A PERIOD
OF 2 YEARS
6 8-9 CO-STEEL INC. THE BANK OF NOVA 837919251 00 XXXXX XXXXXXXXX, X/X
XXXXXXX XXXXXX XXXXX XXXXXX - XXXXXX 19980129173215135879 OTHER
WHITBY, ONTARIO LEASING 00 XXXX XXXXXX (JANUARY 29, 1998)
X0X 0X0 XXXX 00XX XXXXX
XXXXXXX, XXXXXXX
X0X 0X0 RENEWAL
INVERPOWER CONTROLS 20021230144315308423
LTD. 000 XXXXXXXXXX (DECEMBER 30, 2002) RENEWED FOR A PERIOD
COURT BURLINGTON, OF 5 YEARS
ONTARIO L7N 3P3
SCHEDULE C
PERSONAL PROPERTY SECURITY ACT (ONTARIO) ("PPSA")
We obtained a certificate from the Registrar of Personal Property Security with
respect to GERDAU COURTICE STEEL INC. (file currency: September 28, 2005) which
discloses the following financing statements and financing change statements
filed under the PPSA.
REGISTRATION/
FILE NO. AND RENEWAL
PAGE REGISTRATION NO./ PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ---- ---------------- ---------------------- -------------------- ------------- --------------- -------------------------
1 2 GERDAU COURTICE WAJAX INDUSTRIES 892724598 3 YEARS EQUIPMENT H120XM HYSTER
STEEL INC. LIMITED 20030325102116166965 S/N K00503948Z
160 ORION 000 XXXXXXX XXXXXX (MARCH 25, 2003)
PL. CAMBRIDGE, EAST MILTON, ONTARIO
ONTARIO N1R 7G8 L9T 5H3
2 0 XXXXXX XXXXXXXX XXXXX XXXXXX INC. 890879328 4 YEARS EQUIPMENT, N/A
STEEL LTD. 100-1235 NORTH SERVICE 20030115151770298822 OTHER
000 XXXXX XXXX XXXX (JANUARY 15, 0000)
XXXXX XXXXXXXXX, XXXXXXXX, XXXXXXX
XXXXXXX X0X 0X0 X0X 0X0
3 4 GERDAU COURTICE WAJAX INDUSTRIES 890209332 3 YEARS EQUIPMENT TWO (2) H120XM HYSTER
STEEL INC. LIMITED 20021218142416168373 FROK LIFTS
000 XXXXX XXXX 000 XXXXXXX (DECEMBER 18, 2002) S/N'S K005V03933Z,
XX. XXXXXXXXX, XXXXXX XXXXXX, XXXXXXX K005V03887Z
ONTARIO N1R 7G8 X0X 0X0
REGISTRATION/
FILE NO. AND RENEWAL
PAGE REGISTRATION NO./ PERIOD COLLATERAL
NO. NO. DEBTOR(S) SECURED PARTY(IES) DATE OF REGISTRATION (YEARS) CLASSIFICATION COMMENTS
--- ---- ---------------- ---------------------- -------------------- ------------- --------------- -------------------------
4 5-9 GERDAU COURTICE IBM CANADA LIMITED 823209282 11 YEARS EQUIPMENT, N/A
STEEL INC. ATTN. XXXXX XXXXX 19960704193315291164 ACCOUNTS, OTHER
160 ORION 0000 XXXXXXX XXXXXX (JULY 4, 0000)
XXXXX XXXXXXXXX, XXXX, X0
XXXXXXX X0X 0X0 XXXXXXX, XXXXXXX
X0X 0X0 RENEWAL
19990624143415308329
(JUNE 24, 1999) RENEWED FOR A PERIOD OF
2 YEARS
RENEWAL
20010622144815309859
(JUNE 22, 2001)
RENEWED FOR A PERIOD OF
1 YEAR
RENEWAL
20020625145615305911
(JUNE 25, 2002)
RENEWED FOR A PERIOD OF
2 YEARS
RENEWAL
20040611145415301538 RENEWED FOR A PERIOD OF
(JUNE 11, 2004) 3 YEARS
MANITOBA SEARCHES
MANITOBA
SUMMARY OF SEARCHES
1. ***GERDAU AMERISTEEL CORPORATION.
2. ***GERDAU AMERISTEEL MRM SPECIAL SECTIONS INC.
3. ***GERDAU MRM HOLDINGS INC.
4. ***GERDAU AMERISTEEL CAMBRIDGE INC.
5. ***GERDAU AMERISTEEL DISTRIBUTION CANADA LTD.
6. ***1102590 ONTARIO LIMITED
7. ***2017387 ONTARIO LIMITED
8. ***GERDAU NOVA SCOTIA HOLDING COMPANY
9. **1585947 ONTARIO LIMITED
10. **CO-STEEL INC.
11. **877449 ONTARIO LIMITED
12. **3116867 CANADA LIMITED
13. **LAKE ONTARIO STEEL COMPANY LIMITED
14. **CO-STEEL INTERNATIONAL LIMITED
15. **GERDAU AMERISTEEL MRM INC.
16. **GERDAU MRM STEEL INC.
17. **3072011 CANADA LIMITED
18. *MRM STEEL INC.
Bank Act
* Searches current to August 3, 2005 under Section 427 of The Bank Act reveal
that no matches were found for any of these names.
**Searches current to September 6, 2005 under Section 427 of The Bank Act reveal
that no matches were found for any of these names.
***Searches current to October 5, 2005 under Section 427 of The Bank Act reveal
that no matches were found for any of these names.
Executions/Sheriff's Certificates
*Searches current to August 3, 2005 reveal no executions or attachments filed in
the Sheriff's Office against these names.
** Searches current to September 6, 2005 reveal no executions or attachments
filed in the Sheriff's Office against these names.
*** Searches current to October 4, 2005 reveal no executions or attachments
filed in the Sheriff's Office against these names.
PERSONAL PROPERTY SECURITY ACT
Gerdau Ameristeel Corporation (October 5, 2005)
Clear
Gerdau Ameristeel MRM Special Section Inc. (October 5, 2005)
Registration no. 200416387701, being a security agreement relating to equipment
in favour of Ikon Office Solutions Inc., which registration expires September
10, 2010.
Gerdau Ameristeel MRM Special Sections Inc. (October 5, 2005)
Registration no. 200517956405, being a security agreement relating to equipment
in favour of Steelcase Financial Services Ltd. as Secured Party, which
registration expires October 4, 2010.
Registration no. 200517730903, being a security agreement relating to equipment
in favour of GE VFS Canada Limited Partnership as Secured Party, which
registration expires on September 26, 2010.
Registration no. 200502365508 (as amended by 200503177616), registered jointly
with Mandak Metal Processors, being a security agreement relating to a motor
vehicle in favour of Caterpillar Financial Services Limited as Secured Party,
which registration expires on February 14, 2011.
Registration no. 200322926706, being a security agreement relating to equipment
in favour of GE VFS Canada Limited Partnership as Secured Party, which
registration expires on November 4, 2009.
Registration no. 200323114306 (as amended by 200323392411), being a security
agreement relating to equipment in favour of GE Canada Equipment Financing G.P.
as Secured Party, which registration expires on November 10, 2009.
Registration no. 200314730606, being a security agreement relating to equipment
in favour of GE Capital Canada Leasing Trust as Secured Party, which
registration expires on July 10, 2007.
Gerdau MRM Holdings Inc. (October 5, 2005)
Registration no. 200001692800, being a collateral agreement in favour of CIBC
Equipment Finance Limited as Secured Party, which registration expires on
September 27, 2006.
Gerdau Ameristeel Cambridge Inc. (October 5, 2005)
Clear
Gerdau Ameristeel Distribution Canada Ltd. (October 5, 2005)
Clear
1102590 Ontario Limited (October 5, 2005)
Clear
2017387 Ontario Limited (October 5, 2005)
Clear
Gerdau Nova Scotia Holding Company (October 5, 2005)
Clear
1585947 Ontario Limited (September 6, 2005)
Clear
Co-Steel Inc. (September 6, 2005)
Clear
877449 Ontario Limited (September 6, 2005)
Clear
3116867 Canada Limited (September 6, 2005)
Clear
Lake Ontario Steel Company Limited (September 6, 2005)
Clear
Co-Steel International Limited (September 6, 2005)
Clear
Gerdau Ameristeel MRM Inc. (September 6, 2005)
Clear
3072011 Canada Limited (September 9, 2005)
Clear
Gerdau MRM Steel Inc. (August 10, 2005)
Registration no. 200212622302 (as amended by 200311113118, 200215715212 and
200214911816), being a collateral agreement favour of Praxair Canada Inc. as
Secured Party, which registration expires on June 13, 2013.
Registration no. 200209368705 (as amended by 200209971819), being a collateral
agreement in favour of GE Capital Canada Leasing Trust, which registration
expires on May 6, 2008.
Registration no. 200209366400 (as amended by 200214339217 and 200210345514),
being a collateral agreement in favour of GE Capital Canada Leasing Trust, which
registration expires on May 6, 2008.
Registration no. 200126677005 (as amended by 200128876218), being a collateral
agreement in favour of GE Capital Canada Leasing Trust (registered jointly with
Mandak Metal Processors Ltd.), which registration expires on August 16, 2007.
Registration no. 200123136402, being a collateral agreement in favour of
Caterpillar Financial Services Ltd., which registration expires on June 29,
2007.
MRM Steel Inc. (July 28, 2005)
Clear
NOVA SCOTIA SEARCHES
SCHEDULE OF SEARCHES
PART A - NAMES SEARCHED (THE "COMPANIES")
1. Gerdau MRM Holdings Inc.
2. Gerdau Nova Scotia Holding Company
3. 3100361 Nova Scotia Company
4. 3038482 Nova Scotia Company
PART B - SEARCHES CONDUCTED AND INQUIRIES MADE
1. Indices maintained under the Personal Property Security Act ("PPSA") to
October 4, 2005 which revealed the following exact or close matches,
(summarized below), all as described in the PPSA report which can be
provided:
- N/A.
2. Certificates from the Sheriff for Halifax County dated October 6, 2005
advising that the Sheriff holds no writs, executions, Originating Notices
or any other process in the Sheriff's hands against any of the Companies,
and has not held any of same within the last 12 months.
3. The Bank Act, at the office of the Bank of Canada at Halifax, to October 4,
2005 which revealed no outstanding filings pursuant to s.427 of the Bank
Act against any of the Companies.
SASKATCHEWAN SEARCHES
SUMMARY OF SEARCHES CONDUCTED IN SASKATCHEWAN
1. GERDAU AMERISTEEL MRM SPECIAL SECTIONS INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -------------------------------------
Saskatchewan Corporations Branch Status: Active as of October 3, 2005
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to October 3, 2005)
Writ Registry (current to October 3, 2005) No Matches
Bankruptcy and Insolvency (current to No Matches
September 29, 2005)
Bank Act Security (current to No Matches
October 4, 2005)
Personal Property Registry (current to
October 3, 2005):
REGISTRATION REGISTRATION
REGISTRATION NO. DATE EXPIRY SECURED PARTY COLLATERAL DESCRIPTION
---------------- ------------ ------------ -------------- -----------------------------
119687080 July 14/03 July 14/07 GE Capital 2002 Liebherr Excavator Model
Canada Leasing R974HDSL, and all present and
Trust c/o after-acquired intellectual
GECLSC property, intangibles,
attachments, accessories,
accessions thereto and spare
parts, replacements,
substitutions, etc. and
proceeds
2. GERDAU AMERISTEEL CORPORATION
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ ----------------------------------------------
Saskatchewan Corporations Branch Status: In-Active (struck-off) October 3, 2003
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to October 3, 2005)
Writ Registry (current to October 3, 2005) No Matches
Bankruptcy and Insolvency (current to No Matches
September 29, 2005)
Bank Act Security (current to No Matches
October 4, 2005)
Personal Property Registry (current to No Registrations
October 3, 2005).
3. GERDAU AMERISTEEL CAMBRIDGE INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ ----------------------------------------------
Saskatchewan Corporations Branch Status: In-Active (struck-off) October 3, 2003
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
4. GERDAU COURTICE STEEL INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ --------------------------------------------
Saskatchewan Corporations Branch Status: Historic - Current Name: Gerdau
Ameristeel Cambridge Inc. (which was struck-
off Oct. 3, 2003)
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
5. GERDAU AMERISTEEL MRM INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ --------------------------------------------
Saskatchewan Corporations Branch Status: Historic - Current Name: Gerdau
Ameristeel MRM Special Sections Inc. (which
is active)
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
6. GERDAU MRM STEEL INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ --------------------------------------------
Saskatchewan Corporations Branch Status: Historic - Current Name: Gerdau
Ameristeel MRM Special Sections Inc. (which
is active)
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
7. 3072011 CANADA LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ --------------------------------------------
Saskatchewan Corporations Branch No Matches Found
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
8. GERDAU MRM HOLDINGS INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to July 27, 2005)
Writ Registry (current to July 28, 2005) No Matches
Bank Act Security (current to No Matches
July 28, 2005)
Personal Property Registry (current to No Registrations
July 29, 2005).
9. GERDAU AMERISTEEL DISTRIBUTION CANADA LTD.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to No Matches
September 6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
10. 1102590 ONTARIO LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -------------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to No Matches
September 6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
11. 2017387 ONTARIO LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to No Matches
September 6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
12. 1585947 ONTARIO LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to No Matches
September 6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
13. CO-STEEL INC.
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
14. 877449 ONTARIO LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
15. 3116867 CANADA LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
16. GERDAU NOVA SCOTIA HOLDING COMPANY
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
17. LAKE ONTARIO STEEL COMPANY LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
18. CO-STEEL INTERNATIONAL LIMITED
TYPE OF SEARCH CONDUCT SEARCH RESULT
------------------------------------------ -----------------------------------
Court of Queen's Bench, Judicial Centre of 0 Actions for past 5 years
Regina (current to September 5, 2005)
Writ Registry (current to September No Matches
6, 2005)
Bank Act Security (current to No Matches
September 6, 2005)
Personal Property Registry (current to No Registrations
September 6, 2005)
BRITISH COLUMBIA SEARCHES
SCHEDULE A
List of Names Searched
1. *Gerdau Ameristeel Corporation
2. **Gerdau MRM Holdings Inc.
3. **Gerdau Ameristeel Cambridge Inc.
4. **Gerdau Ameristeel Distribution Canada Ltd.
5. **1102590 Ontario Limited
6. **2017387 Ontario Limited
7. **1585947 Ontario Limited
8. **Co-Steel Inc.
9. **877449 Ontario Limited
10. **3116867 Canada Limited
11. **Gerdau Nova Scotia Holding Company
12. **Lake Ontario Steel Company Limited
13. **Co-Steel International Limited
14. *Gerdau Ameristeel MRM Special Sections Inc.
15. **Gerdau Ameristeel MRM Inc.
16. **Gerdau MRM Steel Inc.
17. **3072011 Canada Limited
* PPR searches current to October 6, 2005
Bank Act searches current to October 6, 2005
Execution searches current to October 6, 2005
** PPR searches current to September 12, 2005
Bank Act searches current to September 12, 2005
Execution searches current to September 13, 2005
PPR
B.C. OnLine searches conducted of the records of the PPR in respect of each
of the Names listed in Schedule A and advise that such searches indicate
that no financing statements had been registered in the PPR against any of
the Names listed Schedule A
BC BANK ACT REGISTRAR
Searches conducted in respect of each of the Names listed in Schedule A
with the authorized BC Bank Act Registrar, which searches indicate that no
notice of intention to give security pursuant to Section 427 of the Bank
Act (Canada) had been filed with the BC Bank Act Registrar against any of
the Names listed in Schedule A.
SHERIFF'S OFFICE/WRITS OF EXECUTION
Searches conducted for writs of execution filed in respect of the Names
listed in Schedule A with all court bailiffs operating in the areas
encompassing the greater Vancouver, New Westminster and Fraser Valley
regions. Such searches indicate no outstanding writs of execution or
attachments to have been filed in respect of any Name listed in Schedule A
with any of the bailiffs operating in these areas.
QUEBEC SEARCHES
