EXHIBIT 10.1
EXECUTION COPY
================================================================================
$350,000,000
CREDIT AGREEMENT
among
SUNSHINE ACQUISITION II, INC.,
as Initial US Borrower,
SS&C TECHNOLOGIES, INC.,
as Surviving US Borrower,
SS&C TECHNOLOGIES CANADA CORP.,
as CDN Borrower,
The Several Lenders from Time to Time Parties Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
as Canadian Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Documentation Agent
Dated as of November 23, 2005
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X.X. XXXXXX SECURITIES INC. and WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 34
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 35
2.1 Term Commitments................................................ 35
2.2 Procedure for Term Loan Borrowing............................... 35
2.3 Repayment of Term Loans......................................... 36
2.4 Revolving Commitments........................................... 38
2.5 Procedure for Revolving Loan Borrowing.......................... 39
2.6 Swingline Commitment............................................ 40
2.7 Procedure for Swingline Borrowing; Refunding of Swingline
Loans........................................................ 41
2.8 Repayment of Loans.............................................. 43
2.9 Commitment Fees, etc............................................ 44
2.10 Termination or Reduction of Revolving Commitments............... 44
2.11 Optional Prepayments............................................ 44
2.12 Mandatory Prepayments and Commitment Reductions................. 45
2.13 Conversion and Continuation Options............................. 47
2.14 Minimum Amounts and Maximum Number of Eurocurrency Tranches..... 48
2.15 Interest Rates and Payment Dates................................ 49
2.16 Computation of Interest and Fees................................ 49
2.17 Inability to Determine Interest Rate............................ 50
2.18 Pro Rata Treatment and Payments................................. 50
2.19 Requirements of Law............................................. 52
2.20 Taxes........................................................... 54
2.21 Indemnity....................................................... 56
2.22 Illegality...................................................... 56
2.23 Change of Lending Office........................................ 56
2.24 Replacement of Lenders.......................................... 57
2.25 Bankers' Acceptances............................................ 57
2.26 Repayment and Renewal of Bankers' Acceptances................... 60
2.27 Circumstances Making Bankers' Acceptances Unavailable........... 60
2.28 Incremental Term Loans.......................................... 61
SECTION 3. LETTERS OF CREDIT 62
3.1 L/C Commitment.................................................. 62
3.2 Procedure for Issuance of Letter of Credit...................... 62
3.3 Fees and Other Charges.......................................... 63
3.4 L/C Participations.............................................. 63
3.5 Reimbursement Obligation of the Borrowers....................... 64
3.6 Obligations Absolute............................................ 65
3.7 Letter of Credit Payments....................................... 65
3.8 Applications.................................................... 65
i
SECTION 4. REPRESENTATIONS AND WARRANTIES 65
4.1 Financial Condition............................................. 66
4.2 No Change....................................................... 66
4.3 Existence; Compliance with Law.................................. 66
4.4 Corporate Power; Authorization; Enforceable Obligations......... 67
4.5 No Legal Bar.................................................... 67
4.6 No Material Litigation.......................................... 67
4.7 No Default...................................................... 67
4.8 Ownership of Property; Liens.................................... 67
4.9 Intellectual Property........................................... 67
4.10 Taxes........................................................... 68
4.11 Federal Regulations............................................. 68
4.12 ERISA........................................................... 68
4.13 Canadian Benefit and Pension Plans.............................. 69
4.14 Investment Company Act.......................................... 69
4.15 Subsidiaries.................................................... 69
4.16 Environmental Matters........................................... 69
4.17 Accuracy of Information, etc.................................... 70
4.18 Security Documents.............................................. 70
4.19 Solvency........................................................ 71
4.20 Regulation H.................................................... 71
4.21 Senior Indebtedness............................................. 71
SECTION 5. CONDITIONS PRECEDENT 71
5.1 Conditions to Initial Extension of Credit....................... 71
5.2 Conditions to Each Extension of Credit.......................... 73
SECTION 6. AFFIRMATIVE COVENANTS 74
6.1 Financial Statements............................................ 74
6.2 Certificates; Other Information................................. 75
6.3 Payment of Obligations.......................................... 76
6.4 Conduct of Business and Maintenance of Existence, etc;
Compliance................................................... 76
6.5 Maintenance of Property; Insurance.............................. 76
6.6 Inspection of Property; Books and Records; Discussions.......... 77
6.7 Notices......................................................... 77
6.8 Additional Collateral, etc...................................... 78
6.9 Further Assurances.............................................. 80
6.10 Use of Proceeds................................................. 81
6.11 Post Closing Leasehold Mortgages................................ 81
6.12 Completion of Company Reorganization............................ 81
SECTION 7. NEGATIVE COVENANTS 81
7.1 Financial Condition Covenants................................... 81
7.2 Indebtedness.................................................... 82
7.3 Liens........................................................... 84
7.4 Fundamental Changes............................................. 86
7.5 Dispositions of Property........................................ 87
ii
7.6 Restricted Payments............................................. 88
7.7 Capital Expenditures............................................ 89
7.8 Investments..................................................... 90
7.9 Optional Payments and Modifications of Certain Debt
Instruments.................................................. 92
7.10 Transactions with Affiliates.................................... 93
7.11 Sales and Leasebacks............................................ 93
7.12 Changes in Fiscal Periods....................................... 93
7.13 Negative Pledge Clauses......................................... 93
7.14 Clauses Restricting Subsidiary Distributions.................... 94
7.15 Lines of Business............................................... 94
7.16 Limitation on Hedge Agreements.................................. 94
7.17 Changes in Jurisdictions of Organization; Name.................. 94
SECTION 8. EVENTS OF DEFAULT 95
SECTION 9. THE AGENTS 98
9.1 Appointment..................................................... 98
9.2 Delegation of Duties............................................ 98
9.3 Exculpatory Provisions.......................................... 98
9.4 Reliance by Administrative Agent................................ 98
9.5 Notice of Default............................................... 99
9.6 Non-Reliance on Agents and Other Lenders........................ 99
9.7 Indemnification................................................. 99
9.8 Agent in Its Individual Capacity................................ 100
9.9 Successor Administrative Agent.................................. 100
9.10 Authorization to Release Liens and Guarantees................... 100
9.11 Canadian Administrative Agent................................... 100
9.12 Documentation Agent and Syndication Agent....................... 101
SECTION 10. MISCELLANEOUS 101
10.1 Amendments and Waivers.......................................... 101
10.2 Notices......................................................... 102
10.3 No Waiver; Cumulative Remedies.................................. 103
10.4 Survival of Representations and Warranties...................... 104
10.5 Payment of Expenses; Indemnification............................ 104
10.6 Successors and Assigns; Participations and Assignments.......... 105
10.7 Adjustments; Set-off............................................ 108
10.8 Counterparts.................................................... 108
10.9 Severability.................................................... 108
10.10 Integration..................................................... 108
10.11 GOVERNING LAW................................................... 108
10.12 Submission To Jurisdiction; Waivers............................. 109
10.13 Judgment Currency............................................... 109
10.14 Acknowledgments................................................. 110
10.15 Confidentiality................................................. 110
10.16 Release of Collateral and Guarantee Obligations................. 111
10.17 Accounting Changes.............................................. 112
10.18 WAIVERS OF JURY TRIAL........................................... 112
iii
10.19 USA PATRIOT ACT................................................. 112
10.20 CDN Obligations................................................. 112
10.21 CDN Amalgamation................................................ 112
iv
SCHEDULES:
1.1A Commitments
1.1B EBITDA Adjustments
4.1 Contingent Liabilities
4.4 Consents, Authorizations, Filings and Notices
4.8A Excepted Property
4.8B Owned Real Property
4.15 Subsidiaries
4.18(a) UCC Filing Jurisdictions
4.18(b) Mortgage Filing Jurisdictions
6.11 Leased Property
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.8 Existing Investments
7.13 Restrictions on Subsidiaries
EXHIBITS:
A-1 Form of Guarantee and Collateral Agreement
A-2 Form of CDN Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Assumption
E-1 Form of Legal Opinion of Xxxxxx & Xxxxxxx LLP
E-2 Form of Legal Opinion of Torys LLP
F Form of Exemption Certificate
G Form of Solvency Certificate
H Form of Discount Note
I Form of Joinder Agreement
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CREDIT AGREEMENT, dated as of November 23, 2005, among SUNSHINE
ACQUISITION II, INC., a Delaware corporation (the "Initial US Borrower"), SS&C
TECHNOLOGIES, INC., a Delaware corporation (the "Surviving US Borrower"), SS&C
Technologies Canada Corp., a Nova Scotia unlimited company (the "CDN Borrower"),
the several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), WACHOVIA BANK, NATIONAL ASSOCIATION,
as syndication agent (in such capacity, the "Syndication Agent"), BANK OF
AMERICA, N.A., as documentation agent (in such capacity, the "Documentation
Agent"), JPMORGAN CHASE BANK, N.A., as Administrative Agent, and JPMORGAN CHASE
BANK, N.A., TORONTO BRANCH, as Canadian Administrative Agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by JPMorgan Chase Bank as its prime
rate in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by JPMorgan Chase Bank
in connection with extensions of credit to debtors). Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acceptance Fee": the fee payable in CDN Dollars to the Canadian
Administrative Agent, for the ratable account of the relevant CDN B/A Lenders,
in respect of Bankers' Acceptances computed in accordance with Section 2.25.
"Accounting Changes": as defined in Section 10.17.
"Acquisition": as defined in the definition of "Permitted
Acquisition".
"Additional Senior Subordinated Notes": unsecured senior subordinated
notes issued by the US Borrower, (i) the terms of which (1) do not provide for
any scheduled repayment, mandatory redemption or sinking fund obligation prior
to the date on which the final maturity of the Senior Subordinated Notes occurs
(as in effect on the Closing Date) and (2) provide for subordination to the
Obligations under the Loan Documents to substantially the same extent as the
Senior Subordinated Note Indenture, (ii) the covenants, events of default,
Subsidiary guarantees and other terms of which (other than interest rate and
redemption premiums), taken as a whole, are not more restrictive to the US
Borrower and the Subsidiaries than those in the Senior Subordinated Note
Indenture and (iii) under or in respect of which no Subsidiary of the US
Borrower (other than any US Subsidiary Guarantor) is an obligor.
"Adjustment Date": with respect to each Pricing Grid, as defined
therein.
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"Administrative Agent": JPMorgan Chase Bank, as the administrative
agent for the Lenders under this Agreement and the other Loan Documents,
together with any of its successors and, for purposes of Section 9, shall
include affiliates of JPMorgan Chase Bank as the arranger of the Commitments.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 20% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, in either case whether
by contract or otherwise.
"Agents": the collective reference to the Syndication Agent, the
Documentation Agent, the Canadian Administrative Agent and the Administrative
Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the US
Dollar Amount of the aggregate then unpaid principal amount of such Lender's
Term Loans (including the Face Amount of all Bankers' Acceptances accepted by
such Lender then outstanding under the C$ CDN Term Facility or the CDN Revolving
Facility) and (ii) the aggregate amount of such Lender's Revolving Commitments
then in effect or, if the Revolving Commitments have been terminated, the amount
of such Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the total Aggregate Exposures of all Lenders at such time.
"Agreed Purposes": as defined in Section 10.15.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Annual Operating Budget": as defined in Section 6.2(c).
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
ABR Loans, CDN ABR Loans Eurocurrency Loans and
and CDN Prime Loans Bankers' Acceptances
------------------------ ----------------------
Revolving Loans and
Swingline Loans 1.75% 2.75%
US Term Loans and
US$ CDN Term Loans 1.50% 2.50%
C$ CDN Term Loans 1.75% 2.75%
provided, that on and after the first Adjustment Date occurring after the
completion of the fiscal quarter of the US Borrower ending March 31, 2006, the
Applicable Margins with respect to Revolving Loans, Swingline Loans and C$ CDN
Term Loans will be determined pursuant to the relevant Pricing Grid.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to open a
Letter of Credit.
3
"Approved Fund": as defined in Section 10.6(b).
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding (i) any such Disposition permitted by clause
(a), (b), (c) (except as it relates to Xxxxxxx 0.0(x)), (x), (x), (x), (x), (x),
(x), (x), (x), (x), (q) and (r) of Section 7.5 and (ii) any such Disposition
which is a Recovery Event) which yields Net Cash Proceeds to any Loan Party
(valued at the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market value in
the case of other non-cash proceeds) in excess of $1,000,000.
"Assignee": as defined in Section 10.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit E.
"Available CDN Revolving Commitment": as to any CDN Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's CDN
Revolving Commitment then in effect over (b) such Lender's CDN Revolving
Extensions of Credit then outstanding; provided, that in calculating any CDN
Revolving Lender's CDN Revolving Extensions of Credit for the purpose of
determining such CDN Revolving Lender's Available CDN Revolving Commitments
pursuant to Section 2.9(b), the aggregate principal amount of CDN Swingline
Loans then outstanding shall be deemed to be zero.
"Available US Revolving Commitment": as to any US Revolving Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's US
Revolving Commitment then in effect over (b) such Lender's US Revolving
Extensions of Credit then outstanding; provided, that in calculating any US
Revolving Lender's US Revolving Extensions of Credit for the purpose of
determining such US Revolving Lender's Available US Revolving Commitments
pursuant to Section 2.9(a), the aggregate principal amount of US Swingline Loans
then outstanding shall be deemed to be zero.
"BA Discount Proceeds": proceeds in respect of any Bankers' Acceptance
to be purchased by a CDN B/A Lender on any day under Section 2.25 in an amount
(rounded to the nearest whole Canadian cent, and with one-half of one Canadian
cent being rounded up) calculated on such day by dividing (a) the face amount of
such Bankers' Acceptance by (b) the sum of one plus the product of: (i) the
Discount Rate (expressed as a decimal) applicable to such Bankers' Acceptance
and (ii) a fraction, the numerator of which is the number of days in the term of
such Bankers' Acceptance commencing on the date of acceptance of the Bankers'
Acceptance and ending on, but excluding, the maturity date of such Bankers'
Acceptance, and the denominator of which is 365; with such product being rounded
up or down to the fifth decimal place and .000005 being rounded up.
"Bankers' Acceptance" or "B/A": a Draft denominated in CDN Dollars
drawn by the CDN Borrower and accepted by the CDN Revolving Lenders or the C$
CDN Term Lenders, as the case may be, in accordance with the provisions of
Section 2.25 hereof, and includes a depository xxxx issued in accordance with
the Depository Bills and Notes Act (Canada) or Discount Note (in the case of (x)
a CDN Revolving Lender that does not accept bankers' acceptances and (y) all C$
CDN Term Lenders as provided below); provided, that (i) notwithstanding the
foregoing, all borrowings by way of Bankers' Acceptances under the C$ CDN Term
Facility shall at all times be made (or continued or converted, as applicable)
by way of Discount Notes as contemplated by Section 2.25(p)(ii) and (ii) any
reference in this Agreement to the amount or principal amount of a Bankers'
Acceptance shall mean the full Face Amount thereof.
"Benefitted Lender": as defined in Section 10.7(a).
4
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowers": the collective reference to the US Borrower and the CDN
Borrower.
"Borrowing Date": any Business Day specified by the relevant Borrower
as a date on which such Borrower requests the relevant Lenders to make Loans
hereunder.
"Business": the provision of specialized software, outsourcing
services and application service provider solutions and various services
relating, incidental or ancillary thereto.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City (or, with respect to Loans made to the
CDN Borrower, Toronto, Ontario) are authorized or required by law to close,
provided, that with respect to notices and determinations in connection with,
and payments of principal and interest on, Eurocurrency Loans, such day is also
a day for trading by and between banks in deposits in the relevant currency in
the interbank eurocurrency market.
"Canadian Administrative Agent": JPMorgan Chase Bank, an authorized
foreign bank under the Bank Act (Canada), acting through its Toronto Branch, as
the Canadian administrative agent for the Lenders under this Agreement and the
other Loan Documents, together with any of its successors.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by either Borrower or any of its Subsidiaries that
are not Canadian Pension Plans, including, without limitation, all profit
sharing, savings, post-retirement, supplemental retirement, retiring allowance,
severance, pension, deferred compensation, welfare, bonus, incentive
compensation, phantom stock, legal services, supplementary unemployment benefit
plans or arrangements and all life, health, dental and disability plans and
arrangements, and in which the employees or former employees of either Borrower
or its Subsidiaries employed in Canada participate or are eligible to
participate.
"Canadian Pension Plans": all "registered pension plans", as defined
in the ITA, established, maintained or contributed to by either Borrower or any
of its Subsidiaries for its employees or former employees employed in Canada.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all cash expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease but excluding any amount representing
capitalized interest) of fixed or capital assets or additions to equipment
(including replacements, capitalized repairs and improvements during such
period) which are required to be capitalized under GAAP on a balance sheet of
such Person, provided, that in any event the term "Capital Expenditures" shall
exclude: (i) any Permitted Acquisition and any other Investment permitted
hereunder; (ii) any expenditures to the extent financed with any Reinvestment
Deferred Amount; (iii) expenditures for leasehold improvements for which such
Person is reimbursed or receives a credit; and (iv) expenditures to the extent
they are made with the proceeds of equity contributions (other than Specified
Equity Contributions) from Holdings to the US Borrower after the Closing Date.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
5
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation).
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of one year or less from the date of acquisition
issued by any Lender or by any commercial bank organized under the laws of the
United States or any state thereof having combined capital and surplus of not
less than $500,000,000; (c) commercial paper of an issuer rated at least A-2 by
S&P or P-2 by Xxxxx'x, or carrying an equivalent rating by a nationally
recognized rating agency if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
one year from the date of acquisition; (d) repurchase obligations of any Lender
or of any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States government; (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Xxxxx'x; (f) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition;
and (g) shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of any of clauses (a) through (f) of this
definition; or (h) money market funds that (i) purport to comply generally with
the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of
1940, as amended, (ii) are rated AAA by S&P or Aaa by Xxxxx'x or carrying an
equivalent rating by a nationally recognized rating agency, and (iii) have
portfolio assets of at least $5,000,000,000.
"CDN ABR": for any day, a rate per annum equal to the higher of (a)
the rate of interest per annum publicly announced from time to time by the
Canadian Administrative Agent as its reference rate of interest then in effect
for determining interest rates on commercial loans denominated in Dollars made
by it in Canada and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%.
"CDN ABR Loans": Loans the rate of interest applicable to which is
based upon the CDN ABR.
"CDN Amalgamation": the transactions pursuant to which NSULC 2 shall
have acquired all of the equity interests of the CDN Borrower as a result of the
amalgamation of the CDN Borrower (as such entity exists prior to such
transactions), NSULC 1 and NSULC 4 with an into NSULC 3 to form the CDN Borrower
(as such entity exists immediately following such amalgamation), pursuant to the
CDN Amalgamation Agreement.
"CDN Amalgamation Agreement": that certain Amalgamation Agreement, to
be dated on or about November 24, 2005, by and among NSULC 1, NSULC 3, NSULC 4
and the CDN Borrower.
"CDN B/A Lenders": the collective reference to the C$ CDN Term Lenders
and the CDN Revolving Lenders.
"CDN Borrower": as defined in the preamble hereto, provided that for
the avoidance of doubt, it is understood and agreed that the term "CDN Borrower"
as used in this Agreement shall mean,
6
(i) at any time prior to the consummation of the CDN Amalgamation, SS&C
Technologies Canada Corp., a Nova Scotia unlimited company, as such entity
exists at such time, and (ii) upon and at any time after the consummation of the
CDN Amalgamation, SS&C Technologies Canada Corp., a Nova Scotia unlimited
company, as such entity exists after giving effect to the CDN Amalgamation.
"CDN Borrower Subscription Agreement": the forward subscription
agreement dated as of the date hereof by and between the US Borrower and the CDN
Borrower.
"CDN Dollars" and "C$": freely transferable lawful currency of Canada
(expressed in Canadian dollars).
"CDN Funding Office": the office of the Canadian Administrative Agent
specified in Section 10.2 or such other office in Canada as may be specified
from time to time by the Canadian Administrative Agent as its funding office by
written notice to the Borrowers and the Lenders.
"CDN Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the CDN Loan Parties, substantially in
the form of Exhibit A-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"CDN Issuing Lender": (i) in the case of any CDN Letter of Credit
issued for the account of any CDN Loan Party, (A) JPMorgan Chase Bank, Toronto
Branch or (B) any other CDN Revolving Lender from time to time so designated by
the CDN Borrower with the consent of such CDN Revolving Lender and the Canadian
Administrative Agent (such consent of the Canadian Administrative Agent not to
be unreasonably withheld, conditioned or delayed) and (ii) in the case of any
CDN Letter of Credit issued for the account of any US Loan Party, (A) JPMorgan
Chase Bank or (B) any Related Affiliate of a CDN Revolving Lender designated as
such by such Lender in accordance with Section 2.4(b) and designated as CDN
Issuing Lender by the CDN Borrower with the consent of such Related Affiliate
and the Canadian Administrative Agent (such consent of the Canadian
Administrative Agent not to be unreasonably withheld, conditioned or delayed).
"CDN L/C Obligations": at any time, an amount equal to the US Dollar
Amount of the sum of (a) the aggregate then undrawn and unexpired amount of the
then outstanding CDN Letters of Credit and (b) the aggregate amount of drawings
under CDN Letters of Credit that have not then been reimbursed.
"CDN L/C Participants": the collective reference to all the CDN
Revolving Lenders other than the applicable CDN Issuing Lender.
"CDN Lenders": the collective reference to the CDN Term Lenders and
the CDN Revolving Lenders.
"CDN Letters of Credit": as defined in Section 3.1(a).
"CDN Loan Party": each of the CDN Borrower and each CDN Subsidiary
Guarantor.
"CDN Loans": the collective reference to the CDN Revolving Loans and
the CDN Term Loans.
"CDN Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans made to
the CDN Borrower and Reimbursement Obligations owing by the CDN Borrower and
interest accruing after the filing of any
7
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the CDN Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans
made to the CDN Borrower, the full Face Amount of all outstanding B/As, the
Reimbursement Obligations owing by the CDN Borrower and all other obligations
and liabilities of the CDN Borrower to the Administrative Agent, the Canadian
Administrative Agent or to any CDN Lender (or, in the case of Specified Hedge
Agreements entered into by a CDN Loan Party, of such CDN Loan Party to the
Administrative Agent, the Canadian Administrative Agent, any CDN Lender or any
affiliate of any CDN Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document, any CDN Letter of Credit, any B/A, any Specified Hedge Agreement
entered into by a CDN Loan Party or (to the extent the CDN Borrower so agrees in
the applicable agreements therefor) cash management arrangements with CDN
Lenders or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all fees,
charges and disbursements of counsel to the Administrative Agent, the Canadian
Administrative Agent or to any CDN Lender that are required to be paid by the
CDN Borrower pursuant hereto) or otherwise; provided, that (a) obligations of
the CDN Borrowers or any of the CDN Subsidiaries under any Specified Hedge
Agreement or cash management agreement (if applicable) shall be secured and
guaranteed pursuant to the relevant Security Documents only to the extent that,
and for so long as, the other CDN Obligations are so secured and guaranteed and
(b) any release of Collateral or Guarantors effected in the manner permitted by
this Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements or cash management agreement (if applicable).
Notwithstanding anything herein to the contrary, the term "CDN Obligations"
shall only refer to obligations of the CDN Loan Parties hereunder and under the
other Loan Documents and shall not refer to obligations of Holdings, the US
Borrower and the Domestic Subsidiaries.
"CDN Prime Rate": the higher of (a) the rate of interest publicly
announced by the Canadian Administrative Agent from time to time as its
reference rate then in effect for determining interest rates on CDN Dollar
denominated commercial loans made in Canada and (b) the average as determined by
the Canadian Administrative Agent of the annual rates for Bankers' Acceptances
in CDN Dollars displayed and identified as such on the "Reuters screen CDOR
page" for a one-month period at approximately 10:00 A.M. on such day, or if such
day is not a Business Day, then on the immediately preceding Business Day, plus
0.75%; provided, that if such rates do not appear on the Reuters screen CDOR
page, then the CDOR Rate for such period shall be selected as of the immediately
preceding Business Day for which such rate was available.
"CDN Prime Loans": Loans the rate of interest applicable to which is
based upon the CDN Prime Rate.
"CDN Reorganization": the series of transactions contemplated by the
CDN Reorganization Documents and any other transactions or actions incidental
thereto.
"CDN Reorganization Documents": (1) the Transfer Agreement (Step 19),
to be dated on or about November 24, 2005, by and between NSULC 2 and NSULC 3,
(2) the Transfer Agreement (Step 20), to be dated on or about November 24, 2005,
by and between NSULC 4 and Ontario LP, (3) the CDN Amalgamation Agreement, and
(4) the Forward Subscription Agreement, to be dated on or about November 24,
2005, between the Company and the CDN Borrower.
"CDN Revolving Commitment": as to any CDN Revolving Lender, the
obligation of such CDN Revolving Lender, if any, to make CDN Revolving Loans and
participate in CDN Swingline Loans and CDN Letters of Credit in an aggregate
principal and/or face amount not to exceed the amount
8
set forth under the heading "CDN Revolving Commitment" opposite such Lender's
name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such
CDN Revolving Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount of the Total CDN
Revolving Commitments is $10,000,000.
"CDN Revolving Extensions of Credit": as to any CDN Revolving Lender
at any time, an amount equal to the US Dollar Amount of the sum of (a) the
aggregate principal amount of all CDN Revolving Loans held by such Lender then
outstanding, (b) such CDN Revolving Lender's CDN Revolving Percentage of the CDN
L/C Obligations then outstanding, (c) the Face Amount of all B/As accepted by
such CDN Revolving Lender then outstanding (without duplication) under the CDN
Revolving Facility and (d) such Lender's CDN Revolving Percentage of the
aggregate principal amount of CDN Swingline Loans then outstanding.
"CDN Revolving Facility": as defined in the "Facility" definition.
"CDN Revolving Lender": each Lender that has a CDN Revolving
Commitment or that holds CDN Revolving Loans; provided, that (a) as of the
Closing Date, any such Lender shall be itself or shall operate through an
applicable lending office which is either (x) resident in Canada for the
purposes of the ITA, or (y) deemed to be resident in Canada for purposes of Part
XIII of the ITA in respect of all amounts paid or credited to such Lender under
the CDN Revolving Facility, and (b) to the extent that all or any portion of
such Loans shall be made or such Commitments shall be allocated to the US
Borrower, or any CDN Letters of Credit shall be issued for the account of any US
Loan Party, the relevant CDN Revolving Lender shall be the Related Affiliate of
such CDN Revolving Lender designated by such Lender in accordance with Section
2.4(b).
"CDN Revolving Loans": as defined in Section 2.4(b).
"CDN Revolving Percentage": as to any CDN Revolving Lender at any
time, the percentage which such CDN Revolving Lender's CDN Revolving Commitment
then constitutes of the Total CDN Revolving Commitments (or, at any time after
the CDN Revolving Commitments shall have expired or terminated, the percentage
which the aggregate principal US Dollar Amount of such Lender's CDN Revolving
Loans then outstanding constitutes of the aggregate principal US Dollar Amount
of the CDN Revolving Loans then outstanding); provided, that, in the event that
the CDN Revolving Loans are paid in full prior to the reduction to zero of the
CDN Revolving Extensions of Credit, the CDN Revolving Percentages shall be
determined in a manner designed to ensure that the other outstanding CDN
Revolving Extensions of Credit shall be held by the CDN Revolving Lenders on a
comparable basis.
"CDN Security Documents": collectively, the CDN Guarantee and
Collateral Agreement, any Mortgages executed by any CDN Loan Party and all other
security documents hereafter delivered to the Canadian Administrative Agent
granting a Lien on any Property located in Canada or on any Property of any CDN
Loan Party to secure the obligations and liabilities of any CDN Loan Party under
any Loan Document, as the same may be amended, supplemented or otherwise
modified from time to time.
"CDN Subsidiary": any Subsidiary organized under the laws of Canada or
any province thereof.
"CDN Subsidiary Guarantor": each CDN Subsidiary (other than any
Immaterial Subsidiary and any Subsidiary that will cease to exist pursuant to
the Company Reorganization) of the US Borrower.
9
"CDN Swingline Commitment": the obligation of the CDN Swingline Lender
to make CDN Swingline Loans pursuant to Section 2.6(b) in an aggregate principal
amount at any one time outstanding not to exceed C$5,000,000.
"CDN Swingline Lender": Canadian Imperial Bank of Commerce, in its
capacity as the lender of CDN Swingline Loans.
"CDN Swingline Loans": as defined in Section 2.6(b).
"CDN Term Commitments": the collective reference to the C$ CDN Term
Commitments and the US$ CDN Term Commitments.
"CDN Term Facilities": the collective reference to the C$ CDN Term
Facility and US$ CDN Term Facility.
"CDN Term Lenders": the collective reference to the C$ CDN Term
Lenders and the US$ CDN Term Lenders.
"CDN Term Loans: the collective reference to the C$ CDN Term Loans and
the US$ CDN Term Loans.
"C$ CDN Revolving Loans": as defined in Section 2.4(b).
"C$ CDN Term Commitment": as to any Lender, the obligation of such
Lender, if any, to make a C$ CDN Term Loan to the CDN Borrower in a principal
amount not to exceed the amount set forth under the heading "C$ CDN Term
Commitment" opposite such Lender's name on Schedule 1.1A. The original aggregate
amount of the C$ CDN Term Commitments is C$68,358,800.
"C$ CDN Term Facility": as defined in the definition of "Facility".
"C$ CDN Term Facility Pricing Grid": the table set forth below.
Applicable Margin for C$ CDN
Term Loans that are Bankers' Applicable Margin for C$ CDN Term
Consolidated Total Leverage Ratio Acceptances Loans that are CDN Prime Loans
--------------------------------- ---------------------------- ---------------------------------
> or = 4.50 : 1.00 2.75% 1.75%
< 4.50 : 1.00 2.50% 1.50%
Changes in the Applicable Margin with respect to C$ CDN Term Loans
resulting from changes in the Consolidated Total Leverage Ratio shall become
effective on the date (the "Adjustment Date") on which financial statements are
delivered to the Lenders pursuant to Section 6.1 and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified in Section 6.1, then, until such financial statements are delivered,
Consolidated Total Leverage Ratio as at the end of the fiscal period that would
have been covered thereby shall for the purposes of this definition be deemed to
be 4.50 to 1. In addition, at all times while an Event of Default set forth in
Section 8(a) or 8(f) shall have occurred and be continuing, the Consolidated
Total Leverage Ratio shall for the purposes of this Pricing
10
Grid be deemed to be 4.50 to 1. Each determination of the Consolidated Total
Leverage Ratio pursuant to this Pricing Grid shall be made for the periods and
in the manner contemplated by Section 7.1(a).
"C$ CDN Term Lender": each Lender that has a C$ CDN Term Commitment or
that holds a C$ CDN Term Loan.
"C$ CDN Term Loan": as defined in Section 2.1.
"C$ CDN Term Percentage": as to any C$ CDN Term Lender, (i) at any
time prior to the Closing Date, the percentage which the sum of such Lender's C$
CDN Term Commitments then constitutes of the aggregate C$ CDN Term Commitments
and (ii) at any time after the Closing Date, the percentage which the aggregate
principal amount of such Lender's C$ CDN Term Loans then outstanding constitutes
of the aggregate principal amount of the C$ CDN Term Loans then outstanding.
"CDOR Rate": on any date of determination as to any term of any
Bankers' Acceptances in CDN Dollars, the rate determined as being the arithmetic
average of the rates per annum applicable to CDN Dollar bankers' acceptances
having a comparable term to maturity as the applicable term for the requested
Bankers' Acceptances that appear on the Reuters Screen CDOR Page as at
approximately 10:00 A.M., New York City time, on the date of determination;
provided, however, that if no such rate appears on the Reuters Screen CDOR Page
as contemplated, then the CDOR Rate on any date shall be calculated as the
arithmetic mean of the rates for the term and amount referred to above
applicable to CDN Dollar bankers' acceptances quoted by the Schedule I Reference
Lenders as of 10:00 A.M., New York City time, on such date.
"Certificated Security": as defined in the Guarantee and Collateral
Agreement.
"Chattel Paper": as defined in the Guarantee and Collateral Agreement
or the CDN Guarantee and Collateral Agreement, as applicable.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied and the initial Loans hereunder shall
have been funded, which date is November 23, 2005.
"Closing Date Material Adverse Effect": any event, circumstance,
development, change or effect that is, individually or in the aggregate with all
other events, circumstances, developments, changes and effects, materially
adverse to the business, condition (financial or otherwise) or results of
operations of the Surviving US Borrower and its Subsidiaries, taken as a whole;
provided that none of the following shall constitute, or shall be considered in
determining whether there has occurred, and no change, circumstance, event or
effect resulting primarily from any of the following shall constitute, a Closing
Date Material Adverse Effect: (i) the announcement of the execution of the
Initial Merger Agreement, or the pendency of consummation of the Merger, (ii)
changes in the national or world economy or financial markets as a whole or
changes in general economic conditions that affect the industries in which the
Surviving US Borrower and its Subsidiaries conduct their business, so long as
such conditions do not adversely affect the Surviving US Borrower or its
Subsidiaries in a materially disproportionate manner relative to other similarly
situated participants in the industries or markets in which they operate, (iii)
any change in any applicable law, rule or regulation or generally accepted
accounting principles or interpretation thereof after the date hereof, (iv) any
failure by the Surviving US Borrower to meet any published or internally
prepared estimates of revenues or earnings for any period ending on or after
July 28, 2005 and prior to the Closing Date (it being understood that the facts
and circumstances giving rise to such failure may be deemed to constitute, and
may be taken into account in determining whether there has been, a Closing Date
Material Adverse Effect if such facts and
11
circumstances are not otherwise included in clauses (i)-(iii) of this
definition), and (v) a decline in the price of the Surviving US Borrower's
common stock on the NASDAQ National Market (it being understood that the facts
and circumstances giving rise to such decline may be deemed to constitute, and
may be taken into account in determining whether there has been, a Closing Date
Material Adverse Effect if such facts and circumstances are not otherwise
included in clauses (i)-(iii) of this definition).
"Closing Date Reorganization": the series of transactions contemplated
by the Closing Date Reorganization Documents and any other transactions or
actions incidental thereto.
"Closing Date Reorganization Documents": collectively, (1) the
Contribution and Subscription Agreement (Step 4), dated as of the date hereof,
by and between Holdings and the Initial US Borrower, (2) the Transfer Agreement
(Step 5), dated as of the date hereof, by and between the Initial US Borrower
and NSULC 2, (3) the Contribution and Subscription Agreement (Step 6), dated as
of the date hereof, by and between NSULC 2 and Sunshine Merger II, (4) the
Contribution Agreement, dated as of the date hereof, by and between Holdings and
Xxxxxxx X. Xxxxx, (5) the Contribution and Subscription Agreement (Step 8),
dated as of the date hereof, by and between Holdings and the Initial US
Borrower, (6) the Transfer Agreement (Step 9), dated as of the date hereof, by
and between the Initial US Borrower and NSULC 2, (7) the Contribution and
Subscription Agreement (Step 11A), dated as of the date hereof, by and between
NSULC 2 and Sunshine Merger II, (8) the Contribution and Subscription Agreement
(Step 11F), dated as of the date hereof, by and between Sunshine Merger II and
Sunshine Merger Corporation, (9) the Sale and Subscription Agreement (Step 12),
dated as of the date hereof, by and between NSULC 2 and the Initial US Borrower,
(10) the Contribution and Subscription Agreement (Step 13), dated as of the date
hereof, by and between NSULC 2 and Sunshine Merger II, (11) the Merger
Agreements, (12) the Binding Plan of Reorganization (Steps 16-18), dated as of
the date hereof, by and among the Surviving US Borrower, the Initial U.S.
Borrower, NSULC 1 and NSULC 2, (13) the Distribution Agreement, dated as of the
date hereof, between the Surviving US Borrower and NSULC 2, (14) the Sale and
Transfer Agreement (Step 17), dated as of the date hereof, by and between NSULC
2 and the Initial US Borrower and (15) the Transfer Agreement (Step 18A), dated
as of the date hereof, by and between NSULC 1 and New Canco.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Investors": any co-investors designated by the Sponsor who may
own, directly or indirectly, no more than 15%, in the aggregate, of the Capital
Stock of Holdings but excluding transferees who are not Permitted Investors.
"Collateral": all Property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": as to any Lender, the sum of the Term Commitments and
the Revolving Commitments of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum; provided, that on and
after the first Adjustment Date occurring after the completion of the fiscal
quarter of the US Borrower ending March 31, 2006, the Commitment Fee Rate will
be determined pursuant to the Revolving Facility Pricing Grid.
"Committed Reinvestment Amount": as defined in the definition of
"Reinvestment Prepayment Amount".
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with either Borrower within the meaning of Section
4001 of ERISA or is part of a group
12
that includes either Borrower and that is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code.
"Commonly Controlled Plan": as defined in Section 4.12(b).
"Company Reorganization": the collective reference to the Closing Date
Reorganization and the CDN Reorganization.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
"Confidential Information": as defined in Section 10.15.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the US Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of the US
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Indebtedness of the US Borrower and its Subsidiaries and (b)
without duplication, all Indebtedness consisting of Revolving Loans or Swingline
Loans, to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
Consolidated Net Interest Expense of such Person and its Subsidiaries,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including commitment and administrative fees and charges with respect to the
Facilities), (c) depreciation and amortization expense, (d) amortization or
impairment of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring expenses or
losses (including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), (f) any other non-cash
charges, expenses or losses, including in relation to earn-outs and similar
obligations (except to the extent such charges, expenses or losses represent an
accrual of or reserve for cash expenses in any future period or an amortization
of a prepaid cash expense paid in a prior period), (g) restructuring and
integration costs, (h) stock-option based compensation expenses, (i) transaction
costs, fees and expenses (including those relating to the Merger), (j) all fees
and expenses paid pursuant to the Management Agreement, (k) the non-cash portion
of straight-line rent expense, (l) proceeds from any business interruption
insurance (in the case of this clause (l) to the extent not reflected as revenue
or income in such statement of such Consolidated Net Income), (m) losses
recognized and expenses incurred in connection with the effect of currency and
exchange rate fluctuations on intercompany balances and other balance sheet
items and (n) cash expenses relating to earn-outs and similar obligations and
minus, to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (a) interest income (except to the extent deducted
in determining Consolidated Net Interest Expense), (b) any extraordinary,
unusual or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business), (c) any other non-cash income or gains (other than the accrual of
revenue in the ordinary course), all as determined on a consolidated basis, (d)
cash payments in connection with "straight-line" rent expense which exceed the
13
amount expensed in respect of such rent expense and (e) gains realized and
income accrued in connection with the effect of currency and exchange rate
fluctuations on intercompany balances and other balance sheet items; provided,
that (i) Consolidated EBITDA of the US Borrower and its Subsidiaries shall be
calculated giving effect to the adjustments set forth on Schedule 1.1B and (ii)
for purposes of calculating Consolidated EBITDA of the US Borrower and its
Subsidiaries for any period, (A) the Consolidated EBITDA (determined in
accordance with GAAP) of any Person acquired by the US Borrower or its
Subsidiaries during such period shall be included on a pro forma basis for such
period (but assuming the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period, and assuming any synergies and cost savings to the extent
certified by the US Borrower as having been determined in good faith to be
reasonably anticipated to be realizable within 12 months following such
acquisition and (B) the Consolidated EBITDA of any Person Disposed of by the US
Borrower or its Subsidiaries during such period shall be excluded for such
period (assuming the consummation of such Disposition and the repayment of any
Indebtedness in connection therewith occurred on the first day of such period).
For purposes of determining compliance with the financial covenants set forth in
Section 7.1, any equity contribution made to the US Borrower by Holdings on or
after the first day of any fiscal quarter and prior to the day that is 10 days
after the day on which financial statements are required to be delivered for
such fiscal quarter (it being understood that each such contribution shall be
credited with respect to only one fiscal quarter, provided that such credit
shall be effective as to such fiscal quarter for all periods in which such
fiscal quarter is included) will, at the request of the US Borrower, be deemed
to increase, dollar for dollar, Consolidated EBITDA for such fiscal quarter for
the purposes of determining compliance with such financial covenants at the end
of such fiscal quarter and applicable subsequent periods (any such equity
contribution so included in the calculation of Consolidated EBITDA, a "Specified
Equity Contribution"), provided that (a) in each four fiscal quarter period
there shall be a period of at least two fiscal quarters in which no Specified
Equity Contribution is made and (b) the amount of any Specified Equity
Contribution shall be no greater than the amount required to cause the US
Borrower to be in compliance with the financial covenants set forth in Section
7.1. Notwithstanding the forgoing, Consolidated EBITDA shall be calculated
without giving effect to the non-cash effects of purchase accounting or similar
adjustments required or permitted by GAAP in connection with the Merger or any
Permitted Acquisition
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of the US Borrower and its
consolidated Subsidiaries for any period, there shall be excluded (a) the income
(or deficit) of any Person accrued prior to the date it becomes a Subsidiary of
the US Borrower or is merged into or consolidated with the US Borrower or any of
its Subsidiaries and (b) the income (or deficit) of any Person (other than a
Subsidiary of the US Borrower) in which the US Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the US Borrower or such Subsidiary in the form of
dividends or similar distributions.
"Consolidated Net Interest Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA of the US Borrower and its Subsidiaries for such
period to (b) Consolidated Net Interest Expense of the US Borrower and its
Subsidiaries for such period.
"Consolidated Net Interest Expense": of any Person for any period, (a)
total cash interest expense (including that attributable to Capital Lease
Obligations) of such Person and its Subsidiaries for such period with respect to
all outstanding Indebtedness of such Person and its Subsidiaries, minus (b)
total cash interest income of such Person and its Subsidiaries for such period,
in each case determined in accordance with GAAP.
14
"Consolidated Total Leverage": at any date, the aggregate principal
amount of all Funded Debt of the US Borrower and its Subsidiaries at such date,
minus the amount, up to a maximum amount of $30,000,000, of cash and Cash
Equivalents (other than any restricted cash or Cash Equivalents) held by the US
Borrower and its Subsidiaries on such date, in each case determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio": as at the last day of any period
of four consecutive fiscal quarters of the US Borrower, the ratio of (a)
Consolidated Total Leverage on such day to (b) Consolidated EBITDA of the US
Borrower and its Subsidiaries for such period.
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets on such date less (b) Consolidated Current
Liabilities on such date.
"Continuing Directors": the directors of Holdings on the Closing Date
and each other director of Holdings, if, in each case, such other director's
nomination for election to the board of directors of Holdings is recommended by
at least 51% of the then Continuing Directors or such other director receives
the vote of the Sponsor and its Affiliates (excluding any portfolio companies of
the Sponsor) in his or her election by the shareholders of Holdings.
"Contract Period": the term of a Bankers' Acceptance selected by the
CDN Borrower in accordance with Section 2.25 commencing on the borrowing date,
rollover date or conversion date of such Bankers' Acceptance, as the case may
be, of such Bankers' Acceptance and expiring on a Business Day which shall be
either 30 days, 60 days, 90 days or 180 days thereafter, in all cases subject to
availability; provided, that no Contract Period shall extend beyond the
Revolving Termination Date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Differential Amount": as defined in Section 7.5(l).
"Discount Note": as defined in Section 2.25.
"Discount Note Lender": as defined in Section 2.25.
"Discount Rate": with respect to any Bankers' Acceptance, (a) for a
Lender which is a Schedule I bank under the Bank Act (Canada), the CDOR Rate
(for the applicable term) and (b) for other Lenders, the rate determined by the
Canadian Administrative Agent as being the arithmetic average (rounded upwards
to the nearest multiple of 0.01%) of the discount rates, calculated on the basis
of a year of 365 days, of the Schedule II/III Reference Lenders established in
accordance with their normal practices at or about 10:00 A.M. (New York City
time) on the issuance date of such Bankers' Acceptance, provided, that the
Discount Rate of such other Lenders shall not exceed for any issue the Discount
Rate established pursuant to (a) above plus 0.10% per annum.
15
"Disposition": with respect to any Property, any sale, sale and
leaseback, assignment, conveyance, transfer or other effectively complete
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Disqualified Capital Stock": Capital Stock that (a) requires the
payment of any dividends (other than dividends payable solely in shares of
Qualified Capital Stock), (b) matures or is mandatorily redeemable or subject to
mandatory repurchase or redemption or repurchase at the option of the holders
thereof, in each case in whole or in part and whether upon the occurrence of any
event, pursuant to a sinking fund obligation on a fixed date or otherwise
(including as the result of a failure to maintain or achieve any financial
performance standards), prior to the date that is 91 days after the final
scheduled maturity date of the Term Loans (other than (i) upon payment in full
of the Obligations and termination of the Commitments or (ii) upon a "change in
control", provided, that any payment required pursuant to this clause (ii) is
contractually subordinated in right of payment to the Obligations on terms
reasonably satisfactory to the Administrative Agent and such requirement is not
applicable in more circumstances than pursuant to the change of control
provisions in the Senior Subordinated Note Indenture or in any indenture with
respect to any Additional Senior Subordinated Notes) or (c) are convertible or
exchangeable, automatically or at the option of any holder thereof, into any
Indebtedness, Capital Stock or other assets other than Qualified Capital Stock.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the US Borrower organized
under the laws of any jurisdiction within the United States.
"Draft": at any time a xxxx of exchange within the meaning of the
Bills of Exchange Act (Canada), drawn by the CDN Borrower on a CDN B/A Lender,
denominated in CDN Dollars and bearing such distinguishing letters and numbers
as such CDN B/A Lender may determine, but which at such time has not been
completed or accepted by such CDN B/A Lender.
"Environmental Laws": any and all applicable laws, rules, orders,
regulations, statutes, ordinances, codes or decrees (including, without
limitation, common law) of any international authority, foreign government, the
United States, or any state, provincial, local, municipal or other governmental
authority, regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment, as has been, is now, or at any time
hereafter is, in effect.
"Environmental Liability": any liability, claim, action, suit,
judgment or order under or relating to any Environmental Law for any damages,
injunctive relief, losses, fines, penalties, fees, expenses (including
reasonable fees and expenses of attorneys and consultants) or costs, whether
contingent or otherwise, including those arising from or relating to: (a)
compliance or non-compliance with any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Materials
of Environmental Concern, (c) exposure to any Materials of Environmental
Concern, (d) the Release of any Materials of Environmental Concern or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, exemptions and other authorizations required under any
Environmental Law.
16
"Equity Issuance": any issuance by any Group Member of its Capital
Stock in a public offering.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum determined
on the basis of the rate for deposits in the relevant currency for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In the
event that such rate does not appear on Page 3750 of the Telerate screen (or
otherwise on such screen), the "Eurocurrency Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying
eurocurrency rates as may be selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the
Administrative Agent is offered deposits in the relevant currency at or about
11:00 A.M., local time, two Business Days prior to the beginning of such
Interest Period in the interbank eurocurrency market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein.
"Eurocurrency Loans": Loans the rate of interest applicable to which
is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Tranche": the collective reference to Eurocurrency Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excess Amount": as defined in Section 7.4(c).
"Excess Cash Flow": for any fiscal year of the US Borrower, the
difference, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) the amount of all non-cash charges (including
depreciation, amortization and deferred tax expense) deducted in arriving at
such Consolidated Net Income, (iii) the amount of the decrease, if any, in
Consolidated Working Capital for such fiscal year and (iv) the aggregate net
amount of non-cash loss on the Disposition of Property by
17
the US Borrower and its Subsidiaries during such fiscal year (other than sales
of inventory in the ordinary course of business), to the extent deducted in
arriving at such Consolidated Net Income minus, (b) the sum, without duplication
(including, in the case of clauses (ii) and (viii) below, duplication across
periods; provided, that all or any portion of the amounts referred to in clauses
(ii) and (viii) below with respect to a period may be applied in the
determination of Excess Cash Flow for any subsequent period to the extent such
amounts did not previously result in a reduction of Excess Cash Flow in any
prior period), of (i) the amount of all non-cash credits included in arriving at
such Consolidated Net Income (including, without limitation, deferred tax
credits), (ii) the aggregate amount (A) actually paid by the US Borrower and its
Subsidiaries in cash during such fiscal year on account of Capital Expenditures
permitted under this Agreement and Permitted Acquisitions and (B) committed
during such fiscal year to be used to make Capital Expenditures permitted under
this Agreement or Permitted Acquisitions which in either case have been actually
made or consummated or for which a binding agreement exists as of the time of
determination of Excess Cash Flow for such fiscal year (in each case under this
clause (ii) other than to the extent any such Capital Expenditure or Permitted
Acquisition is made (or, in the case of the preceding clause (B), is expected to
be made) with the proceeds of new long-term Indebtedness or an Equity Issuance
or with the proceeds of any Reinvestment Deferred Amount), (iii) the aggregate
amount of all regularly scheduled principal payments of Indebtedness (including,
without limitation, the Term Loans) of the US Borrower and its Subsidiaries made
during such fiscal year (other than in respect of any revolving credit facility
to the extent there is not an equivalent permanent reduction in commitments
thereunder), (iv) the amount of the increase, if any, in Consolidated Working
Capital for such fiscal year, (v) the aggregate net amount of non-cash gain on
the Disposition of Property by the US Borrower and its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent included in arriving at such Consolidated Net Income, (vi) fees
and expenses incurred in connection with the closing of the Merger, the Senior
Subordinated Notes or the Loan Documents, (vii) purchase price adjustments paid
or received in connection with the Merger or any Permitted Acquisition, (viii)
the net amount of Investments made during such period pursuant to paragraphs
(d), (f), (g), (h), (p) and (r) of Section 7.8 or committed during such period
to be used to make Investments pursuant to such paragraphs of Section 7.8 which
have been actually made or for which a binding agreement exists as of the time
of determination of Excess Cash Flow for such period and (ix) the amount
(determined by the US Borrower) of such Consolidated Net Income which is
mandatorily prepaid or reinvested pursuant to Section 2.12(b) (or as to which a
waiver of the requirements of such Section applicable thereto has been granted
under Section 10.1) prior to the date of determination of Excess Cash Flow for
such fiscal year as a result of any Asset Sale or Recovery Event.
"Excess Cash Flow Application Date": as defined in Section 2.12(d).
"Excess Cash Flow Percentage": 50%; provided, that the Excess Cash
Flow Percentage shall be reduced to 25% if the Consolidated Total Leverage Ratio
as of the last day of such fiscal year is not greater than 4.0 to 1.0 and
reduced further to 0% if the Consolidated Total Leverage Ratio as of the last
day of such fiscal year is not greater than 3.0 to 1.0.
"Existing CDN Credit Agreement": the Credit Agreement, dated October
5, 2001, as amended, between Financial Models Company, Inc. and the Canadian
Imperial Bank of Commerce.
"Existing Letter of Credit": that certain Letter of Credit No.
SBTG724743, issued under (and as defined in) the Existing CDN Credit Agreement,
in favor of J.A.B. Xxxxxxxx Holdings, Inc., in an aggregate face amount of
$123,750.
"Existing US Credit Agreement": the Credit Agreement, dated as of
April 13, 2005, between the Surviving US Borrower and Bank of America, N.A., as
amended by Amendment No. 1 to
18
Credit Agreement dated as of May 27, 2005, and by Amendment No. 2 of the Credit
Agreement dated as of July 27, 2005.
"Facility": each of (a) the US Term Commitments and the US Term Loans
made thereunder (the "US Term Facility"), (b) the C$ CDN Term Commitments and
the C$ CDN Term Loans made thereunder (the "C$ CDN Term Facility"), (c) the US$
CDN Term Commitments and the US$ CDN Term Loans made thereunder (the "US$ CDN
Term Facility" and, together with the US Term Facility and the C$ CDN Term
Facilty, the "Term Facility"), (d) the US Revolving Commitments and the
extensions of credit made thereunder (the "US Revolving Facility") and (e) the
CDN Revolving Commitments and the extensions of credit made thereunder (the "CDN
Revolving Facility" and, together with the US Revolving Facility, the "Revolving
Facility").
"Federal Funds Effective Rate": for any day, 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 on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank from
three federal funds brokers of recognized standing selected by it.
"Fee Payment Date": (a) the third Business Day following the last day
of each March, June, September and December and (b) the last day of the
Revolving Commitment Period.
"Foreign Cash Equivalents": (a) certificates of deposit or bankers
acceptances of, and bank deposits with, any bank organized under the laws of any
country that is a member of the European Economic Community or Canada or any
subdivision thereof, whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof, in each case with maturities of not more than six months
from the date of acquisition, (b) commercial paper maturing not more than one
year from the date of creation thereof and, at the time of acquisition, having
the highest rating obtainable from either S&P's or Moody's and (c) shares of any
money market mutual fund that has its assets invested continuously in the types
of investments referred to in clauses (a) and (b) above.
"Foreign Subsidiary": any Subsidiary of the US Borrower that is not a
Domestic Subsidiary.
"Funded Debt": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a), (c) and (e) of the definition of
"Indebtedness".
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in effect on the date hereof
and consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 4.1(b).
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any governmental entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and, as to any Lender, any securities
exchange and any self regulatory organization (including the National
Association of Insurance Commissioners).
"Group Members": the collective reference to Holdings, the Borrowers
and their respective Subsidiaries.
19
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Holdings, the Initial US Borrower, the
Surviving US Borrower and each US Subsidiary Guarantor, substantially in the
form of Exhibit A-1, as the same may be amended, supplemented or otherwise
modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a guarantee, reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or by which
such Person becomes contingently liable for any Indebtedness, net worth, working
capital earnings, leases, dividends or other distributions upon the stock or
equity interests (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to purchase
Property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the US Borrower in good faith.
"Guarantors": the collective reference to Holdings and the Subsidiary
Guarantors.
"Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements entered into by either Borrower or its Subsidiaries
providing for protection against fluctuations in interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Holdings": Sunshine Acquisition Corporation, a Delaware corporation.
"Immaterial Subsidiary": on any date, any Subsidiary of the US
Borrower that (i) had less than $5,000,000 of annual revenues as reflected on
the most recent financial statements delivered pursuant to Section 6.1 prior to
such date and (ii) has been designated as such by the US Borrower in a written
notice delivered to the Administrative Agent (other than any such Subsidiary as
to which the US Borrower has revoked such designation by written notice to the
Administrative Agent); provided that at no time shall the Immaterial
Subsidiaries so designated by the US Borrower have annual revenues (as reflected
on the most recent financial statements delivered pursuant to Section 6.1 prior
to such time) in excess of $10,000,000 in the aggregate.
"Increased Amount Date": as defined in Section 2.28.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than (i)
trade payables, current accounts and similar obligations incurred in the
ordinary course of such Person's business and (ii) earn-outs and other
contingent payments in respect of acquisitions except to the extent that the
liability on account of any such earn-out or contingent payment becomes fixed),
(c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar
20
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to Property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
Property, in which case only the lesser of the amount of such obligation and the
fair market value of such Property shall constitute Indebtedness), (e) all
Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under acceptance,
letter of credit or similar facilities, (g) all obligations of such Person in
respect of Disqualified Capital Stock, except for agreements with directors,
officers and employees to acquire such Capital Stock upon the death or
termination of employment of such director, officer or employee, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above, and (i) all obligations of the
kind referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation (and in the event such Person
has not assumed or become liable for payment of such obligation, only the lesser
of the amount of such obligation and the fair market value of such Property
shall constitute Indebtedness).
"Indebtedness for Borrowed Money": to the extent the following would
be reflected on a consolidated balance sheet of the US Borrower and its
Subsidiaries prepared in accordance with GAAP, the principal amount of all
Indebtedness of the US Borrower and its Subsidiaries with respect to (i)
borrowed money, evidenced by debt securities, debentures, acceptances, notes or
other similar instruments, (ii) obligations under Capital Leases, (iii)
reimbursement obligations for letters of credit and financial guarantees
(without duplication) (other than ordinary course of business contingent
reimbursement obligations) and (iv) the deferred purchase price of property or
services (except for accounts payable, deferred compensation arrangements and
accrued expenses and receipt of progress and advance payments related to such
purchase price, in each case arising in the ordinary course of business).
"Initial Merger Agreement": the Agreement and Plan of Merger, dated as
of July 28, 2005, as amended by Amendment No. 1 to Agreement and Plan of Merger,
dated as of August 25, 2005, by and among Holdings, the Surviving US Borrower
and Sunshine Merger Corporation.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Instrument": as defined in the Guarantee and Collateral Agreement or
the CDN Guarantee and Collateral Agreement, as applicable.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, domain names, patents,
patent licenses, trademarks, trademark licenses, trade names, technology,
know-how and processes, and all rights to xxx at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan (other than any
Swingline Loan), CDN ABR Loan (other than any Swingline Loan) or CDN Prime Loan,
the third Business Day following the last day of each March, June, September and
December to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Eurocurrency Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to any Eurocurrency
Loan having an Interest
21
Period longer than three months, each day that is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period, (d) as to any Loan (other than any Revolving Loan that
is an ABR Loan, CDN ABR Loan or CDN Prime Loan and any Swingline Loan), the date
of any repayment or prepayment made in respect thereof and (e) as to any
Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period": as to any Eurocurrency Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurocurrency Loan and ending one, two, three or six or (if
available to all Lenders under the relevant Facility) nine or twelve months
thereafter, as selected by the relevant Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurocurrency Loan and ending one, two, three
or six or (with the consent of each affected Lender under the relevant Facility)
nine or twelve months thereafter, as selected by the relevant Borrower by
irrevocable notice to the Administrative Agent or the Canadian Administrative
Agent, as applicable, not later than 1:00 P.M., New York City time, on the date
that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
scheduled Revolving Termination Date or beyond the date final payment is
due on the Term Loans shall end on the Revolving Termination Date or such
due date, as applicable; and
(iii) any Interest Period that 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 end on
the last Business Day of a calendar month.
"Investments": as defined in Section 7.8.
"Issuing Lenders": the collective reference to each US Issuing Lender
and each CDN Issuing Lender.
"ITA": the Income Tax Act (Canada), as amended.
"Joinder Agreement": an agreement substantially in the form of Exhibit
I.
"JPMorgan Chase Bank": JPMorgan Chase Bank, N.A.
"Judgment Conversion Date": as defined in Section 10.13(a).
"Judgment Currency": as defined in Section 10.13(a).
"L/C Commitment": $50,000,000.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
US L/C Obligations then outstanding and (b) the CDN L/C Obligations then
outstanding.
22
"L/C Participants": the collective reference to the US L/C
Participants and the CDN L/C Participants applicable Issuing Lender.
"Lead Arrangers": the collective reference to X.X. Xxxxxx Securities
Inc. and Wachovia Capital Markets, LLC.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, collateral assignment,
encumbrance, lien (statutory or other), charge or other security interest or any
other security agreement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing). For the
avoidance of doubt, it is understood and agreed that any Group Member may, as
part of its business, grant licenses to third parties to use Intellectual
Property owned or developed by, or licensed to, such Group Member. For purposes
of this Agreement and the other Loan Documents, such licensing activity shall
not constitute a "Lien" on such Intellectual Property. Each of the
Administrative Agent, the Canadian Administrative Agent and each Lender
understands that any such licenses may be exclusive to the applicable licensees,
and such exclusivity provisions may limit the ability of the Administrative
Agent or the Canadian Administrative Agent to utilize, sell, lease, license or
transfer the related Intellectual Property or otherwise realize value from such
Intellectual Property pursuant hereto.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": the collective reference to this Agreement, the
Security Documents, the Applications and the Notes and any amendment, waiver,
supplement or other modification to any of the foregoing.
"Loan Parties": Holdings, the Borrowers and each Subsidiary Guarantor.
"Majority Facility Lenders": with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the US Term Loans
and/or CDN Term Loans, or the Total US Revolving Extensions of Credit and/or
Total CDN Revolving Extensions of Credit, as the case may be, outstanding under
such Facility (or, in the case of either Revolving Facility, prior to any
termination of the Revolving Commitments under such Facility, the holders of
more than 50% of the Total Revolving Commitments under such Facility).
"Majority Revolving Facility Lenders": the Majority Facility Lenders
in respect of the Revolving Facility.
"Majority Term Facility Lenders": the Majority Facility Lenders in
respect of the Term Facility.
"Management Agreement": the Management Agreement, dated as of the date
hereof, by and among Holdings, Xxxxxxx X. Xxxxx and T.C. Group, LLC, as in
effect on the Closing Date and as modified from time to time with the consent of
the Administrative Agent.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or financial condition of the US Borrower and its
subsidiaries taken as a whole, or (b) the validity or enforceability of the Loan
Documents or the material rights and remedies of the
23
Administrative Agent, the Canadian Administrative Agent and the Lenders
thereunder, in each case, taken as a whole.
"Material Subsidiary": any Subsidiary that is not an Immaterial
Subsidiary.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
contaminants, radioactivity and any other substances that is defined as
hazardous or toxic under any Environmental Law, that is regulated pursuant to,
or that could give rise to liability under, any Environmental Law.
"Merger": the collective reference to the transactions pursuant to the
Company Reorganization.
"Merger Agreements": collectively, (a) the Initial Merger Agreement,
(b) the Second Merger Agreement and (c) the Third Merger Agreement.
"Xxxxx'x": Xxxxx'x Investors Service.
"Mortgage": any mortgage, deed of trust, hypothec or other similar
document made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent (or the Canadian Administrative Agent, as the case may be)
for the benefit of the relevant Lenders, in form and substance reasonably
satisfactory to the Administrative Agent and the US Borrower (taking into
account the law of the jurisdiction in which such mortgage, deed of trust,
hypothec or similar document is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, consulting fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset which
is the subject of such Asset Sale or Recovery Event (other than any Lien
pursuant to a Security Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably estimated
to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements) and (b) in connection
with any issuance or sale of debt securities or instruments or the incurrence of
Funded Debt, the cash proceeds received from such issuance or incurrence, net of
attorneys' fees, investment banking fees, accountants' fees, consulting fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
"New Canco": 3112755 Nova Scotia Company, a Nova Scotia unlimited
company.
"New Term Loans": as defined in Section 2.28.
"New Term Loan Commitments": as defined in Section 2.28.
"Non-Excluded Taxes": as defined in Section 2.20(a).
24
"Non-Guarantor Subsidiary": any Subsidiary of either Borrower which is
not a Subsidiary Guarantor.
"Non-US Lender": as defined in Section 2.20(d).
"Note": any promissory note evidencing any Loan.
"NSULC 1": 3098593 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 2": 3105198 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 3": 3112753 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 4": 3112754 Nova Scotia Company, a Nova Scotia unlimited
company.
"Obligation Currency": as defined in Section 10.13(a).
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to either Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations, the full Face Amount of all outstanding B/As and all
other obligations and liabilities of the Borrowers to the Administrative Agent,
the Canadian Administrative Agent or to any Lender (or, in the case of Specified
Hedge Agreements, of either Borrower or any of its Subsidiaries to the
Administrative Agent, the Canadian Administrative Agent, any Lender or any
affiliate of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan Document,
the Letters of Credit, any B/A, any Specified Hedge Agreement or (to the extent
the applicable Borrower so agrees in the applicable agreements therefor) cash
management arrangements with Lenders or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Administrative Agent, the Canadian Administrative Agent or any Lender
that are required to be paid by either Borrower pursuant hereto) or otherwise;
provided, that (a) obligations of either Borrower or any of its Subsidiaries
under any Specified Hedge Agreement or cash management agreement (if applicable)
shall be secured and guaranteed pursuant to the Security Documents only to the
extent that, and for so long as, the other Obligations are so secured and
guaranteed and (b) any release of Collateral or Guarantors effected in the
manner permitted by this Agreement shall not require the consent of holders of
obligations under Specified Hedge Agreements or cash management agreements (if
applicable).
"Ontario LP": SS&C 1656866 Limited Partnership, a limited partnership
formed under the laws of Ontario.
"Other Taxes": 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 or any other Loan Document.
"Payment Amount": as defined in Section 3.5.
"Participant": as defined in Section 10.6(c).
25
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": (i) any acquisition (including, if
applicable, in the case of any Intellectual Property, by way of license)
approved by the Required Lenders or (ii) any acquisition by either Borrower or
any of its Subsidiaries of all or substantially all of the Capital Stock, or all
or substantially all of the assets, of any Person, or of all or substantially
all of the assets constituting a division, product line or business line of any
Person (each, an "Acquisition"), if such Acquisition described in this clause
(ii) complies with the following criteria:
(a) No Default or Event of Default shall be in effect immediately
prior or after giving effect to such Acquisition.
(b) After giving effect to the consummation of such Acquisition and to
the incurrence of any Indebtedness associated therewith, the US Borrower
shall be in pro forma compliance with Section 7.1 (calculated as of the
last day of the fiscal quarter immediately preceding the fiscal quarter in
which such acquisition is consummated, giving pro forma effect to such
Acquisition and the issuance of the related Indebtedness).
(c) At least five Business Days prior to the consummation of such
Acquisition (i) the Administrative Agent shall have received the then
current financial projections in respect of the Person, division, product
line or line of business acquired in such Acquisition for the one-year
period following the consummation of such acquisition, (ii) the
Administrative Agent shall have received the then current drafts of the
documentation to be executed in connection with such Acquisition (with
final copies of such documentation to be delivered to the Administrative
Agent promptly upon becoming available), including all schedules and
exhibits thereto and (iii) the Administrative Agent shall have received
notice of the closing date for such Acquisition; provided, that, such
notice shall be given unless doing so would materially interfere with, or
would cause materially adverse economic consequences with respect to, the
consummation of such Acquisition.
"Permitted Investors": the collective reference to the Sponsor, any
Co-Investors, Xxxxxxx X. Xxxxx and their respective Affiliates (but excluding,
for purposes of Section 8(k) only, any portfolio companies of the foregoing) and
the directors, officers and other employees of Holdings and its Subsidiaries.
"Permitted Seller Note": a promissory note containing subordination
and other related provisions reasonably acceptable to the Administrative Agent,
representing Indebtedness of either Borrower or any of its Subsidiaries incurred
in connection with any acquisition permitted under Section 7.8(f) and payable to
the seller in connection therewith.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan as defined in
Section 3(3) of ERISA and in respect of which either Borrower or any of its
Subsidiaries is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
26
"Pledged Securities": as defined in the Guarantee and Collateral
Agreement or the CDN Guarantee and Collateral Agreement, as applicable.
"Pledged Stock": as defined in the Guarantee and Collateral Agreement
or the CDN Guarantee and Collateral Agreement, as applicable.
"Pricing Grid": the Revolving Facility Pricing Grid or the C$ CDN Term
Facility Pricing Grid, as the context requires.
"Prime Rate": as defined in the definition of "ABR".
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Qualified Capital Stock": any Capital Stock that is not Disqualified
Capital Stock.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the US Borrower or any of its Subsidiaries, in an amount for each
such event exceeding $1,000,000.
"Refunded CDN Swingline Loans": as defined in Section 2.7(b)(ii).
"Refunded US Swingline Loans": as defined in Section 2.7(b)(i).
"Register": as defined in Section 10.6(b)(iv).
"Regulation H": Regulation H of the Board as in effect from time to
time.
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the relevant Borrower to
reimburse an Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Loan Party for its own
account in connection therewith that are not applied to prepay the Term Loans or
reduce the Revolving Commitments pursuant to Section 2.12 as a result of the
delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which either Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice signed on behalf of the US
Borrower by a Responsible Officer stating that the US Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire
assets useful in its (or such Subsidiary's) business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
committed to be expended prior to the relevant Reinvestment Prepayment Date (a
"Committed Reinvestment Amount"), or actually expended
27
expended prior to such date, in each case to acquire assets useful in the US
Borrower's or any Subsidiary's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (i) the date occurring 15 months after such Reinvestment
Event and (ii) with respect to any portion of a Reinvestment Deferred Amount,
the date on which the relevant Borrower shall have determined not to acquire
assets useful in either Borrower's business with such portion of such
Reinvestment Deferred Amount.
"Related Affiliate": with respect to any CDN Revolving Lender, an
Affiliate or lending office of such CDN Revolving Lender designated by it to
make its CDN Revolving Commitment and CDN Revolving Loans available to the US
Borrower under this Agreement.
"Release": any actual or threatened release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into or through the environment or within or upon any building,
structure or facility.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Replacement Canadian Indebtedness Amount": at any time, an aggregate
amount equal to the sum of (i) the aggregate amount of the CDN Term Loan repaid
or prepaid pursuant to Sections 2.3(b), 2.11(b) and 2.12(d) prior to such time
and (ii) the aggregate amount of all reductions of the CDN Revolving Commitment
pursuant to Section 2.10 prior to such time.
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived.
"Representatives": as defined in Section 10.15.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the US Dollar Amount of the aggregate unpaid principal amount of the
Term Loans then outstanding and (ii) the Total Revolving Commitments then in
effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of the Term Facility.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer (or similar title) or treasurer (or similar title) of Holdings
or the US Borrower, and, with respect to financial matters, the chief financial
officer (or similar title) or treasurer (or similar title) of Holdings or the US
Borrower.
"Restricted Payments": as defined in Section 7.6.
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"Revolving Commitments": the collective reference to the US Revolving
Commitments and the CDN Revolving Commitments.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": the collective reference to the US
Revolving Extensions of Credit and CDN Revolving Extensions of Credit.
"Revolving Facility": as defined in the definition of "Facility".
"Revolving Facility Pricing Grid": the table set forth below.
Applicable Margin for
Applicable Margin for Revolving Loans that are
Revolving Loans that are ABR Loans, CDN ABR Loans
Consolidated Total Eurocurrency Loans or or CDN Prime Loans and Commitment
Leverage Ratio Bankers' Acceptances for Swingline Loans Fee Rate
------------------ ------------------------ ------------------------ ----------
> or = 5.50 : 1.00 2.75% 1.75% 0.50%
4.50 : 1.00 < and < 5.50 : 1.00 2.50% 1.50% 0.50%
3.50 : 1.00 < and < or = 4.50 : 1.00 2.25% 1.25% 0.375%
< or = 3.50 : 1.00 2.00% 1.00% 0.375%
Changes in the Applicable Margin with respect to Revolving Loans and
Swingline Loans resulting from changes in the Consolidated Total Leverage Ratio
shall become effective on the date (the "Adjustment Date") on which financial
statements are delivered to the Lenders pursuant to Section 6.1 and shall remain
in effect until the next change to be effected pursuant to this paragraph. If
any financial statements referred to above are not delivered within the time
periods specified in Section 6.1, then, until such financial statements are
delivered, the Consolidated Total Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
definition be deemed to be greater than 5.50 to 1. In addition, at all times
while an Event of Default set forth in Section 8(a) or 8(f) shall have occurred
and be continuing, the Consolidated Total Leverage Ratio shall for the purposes
of this Pricing Grid be deemed to be greater than 5.50 to 1. Each determination
of the Consolidated Total Leverage Ratio pursuant to this Pricing Grid shall be
made for the periods and in the manner contemplated by Section 7.1(a).
"Revolving Lenders": the collective reference to the US Revolving
Lenders and the CDN Revolving Lenders.
"Revolving Loans": the collective reference to the US Revolving Loans
and the CDN Revolving Loans.
"Revolving Termination Date": November 23, 2011.
"S&P": Standard & Poor's Ratings Group.
29
"Schedule I Reference Lenders": Canadian Imperial Bank of Commerce and
The Bank of Nova Scotia.
"Schedule II/III Reference Lenders": JPMorgan Chase Bank, N.A.,
Toronto Branch and Bank of America, National Association, Canada Branch.
"SEC": the Securities and Exchange Commission (or successors thereto
or an analogous Governmental Authority).
"Second Merger Agreement": the Agreement and Plan of Merger (Step 15),
dated as of the date hereof, by and between Sunshine Merger II and the Surviving
US Borrower, as amended, supplemented or otherwise modified from time to time
with the consent of the Administrative Agent.
"Securities": as defined in the CDN Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the CDN Security Documents and all other security
documents (including any Mortgages) hereafter delivered to the Administrative
Agent or the Canadian Administrative Agent purporting to xxxxx x Xxxx on any
Property of any Loan Party to secure the obligations and liabilities of any Loan
Party under any Loan Document.
"Senior Subordinated Note Indenture": the Indenture entered into by
the Initial US Borrower and certain of its Subsidiaries in connection with the
issuance of the Senior Subordinated Notes as the same may be amended,
supplemented or otherwise modified from time to time.
"Senior Subordinated Notes": the subordinated notes of the US Borrower
issued on the Closing Date and any exchange notes issued in replacement thereof,
in each case pursuant to the Senior Subordinated Note Indenture.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (I) with respect to any US Loan Party, (a) the amount of the
"present fair saleable value" of the assets of such Person will, as of such
date, exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets of such
Person will, as of such date, be greater than the amount that will be required
to pay the liability of such Person on its debts as such debts become absolute
and matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business and (d) such Person
will be able to pay its debts as they mature; and (II) with respect to any CDN
Loan Party, (a) the property of each such Person is, at a fair valuation,
greater than the total amount of liabilities, including contingent liabilities,
of such Person, (b) each such Person has not ceased paying its current
obligations in the ordinary course of business as they generally become due and
(c) each such Person is not for any reason unable to meet its obligations as
they generally become due. For purposes of this definition, (i) "debt" means
liability on a "claim", (ii) "claim" means any (x) right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured and (iii) except as
otherwise provided by applicable law, the amount of "contingent liabilities" at
any time shall be the
30
amount thereof which, in light of all the facts and circumstances existing at
such time, can reasonably be expected to become actual or matured liabilities.
"Specified Cash Management Arrangement": as defined in the Guarantee
and Collateral Agreement or the CDN Guarantee and Collateral Agreement, as
applicable.
"Specified Change of Control": a "Change of Control" (or any other
defined term having the same purpose) as defined in the Senior Subordinated Note
Indenture.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into by
(i) either Borrower or any of its Subsidiaries and (ii) any Lender or any
affiliate thereof at the time such Hedge Agreement was entered into, as
counterparty and (b) that has been designated by such Lender and the relevant
Borrower, by notice to the Administrative Agent (and, if entered into by a CDN
Loan Party, the Canadian Administrative Agent), as a Specified Hedge Agreement.
The designation of any Hedge Agreement as a Specified Hedge Agreement shall not
create in favor of the Lender or affiliate thereof that is a party thereto any
rights in connection with the management or release of any Collateral or of the
obligations of any Guarantor under the Guarantee and Collateral Agreement or the
CDN Guarantee and Collateral Agreement, as the case may be. For the avoidance of
doubt, all Hedge Agreements in existence on the Closing Date between either
Borrower or any of its Subsidiaries and any Lender shall constitute Specified
Hedge Agreements.
"Specified Representations": (a) the representations made by SS&C
Technologies, Inc. in the Initial Merger Agreement, but only to the extent that
the Sponsor, Holdings or Sunshine Merger Corporation has the right to terminate
its obligations under the Initial Merger Agreement in the event that any such
representations are not true and (b) the representations and warranties set
forth in Sections 4.2(a), 4.4, 4.11 and 4.14.
"Sponsor": Carlyle Partners IV, L.P. and XX XX Coinvestment, L.P., and
any Affiliates thereof (but excluding, for purposes of Section 8(k) only, any
portfolio companies of the foregoing).
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the US Borrower.
"Subsidiary Guarantors": the collective reference to the US Subsidiary
Guarantors and the CDN Subsidiary Guarantors.
"Sunshine Merger II": Sunshine Merger II, Inc., a Delaware
corporation.
"Sunshine Merger Corporation": Sunshine Merger Corporation, a Delaware
corporation.
"Swingline Commitment": the collective reference to the US Swingline
Commitment and the CDN Swingline Commitment.
"Swingline Lenders": the collective reference to the US Swingline
Lender and the CDN Swingline Lender.
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"Swingline Loans": the collective reference to the US Swingline Loans
and the CDN Swingline Loans.
"Swingline Participation Amount": as defined in Section 2.7(c).
"Syndication Agent": as defined in the preamble hereto.
"Term Commitments": the collective reference to the US Term
Commitments and the CDN Term Commitments.
"Term Facility": as defined in the definition of "Facility".
"Term Lender": the collective reference to the US Term Lenders and the
CDN Term Lenders.
"Term Loans" the collective reference to the US Term Loans and the CDN
Term Loans.
"Third Merger Agreement": the Agreement and Plan of Merger (Step 18),
dated as of the date hereof, by and between the Initial US Borrower and the
Surviving US Borrower, as amended, supplemented or otherwise modified from time
to time with the consent of the Administrative Agent.
"Total CDN Revolving Commitments": at any time, the aggregate amount
of the CDN Revolving Commitments then in effect.
"Total CDN Revolving Extensions of Credit": at any time, the aggregate
amount of the CDN Revolving Extensions of Credit then outstanding.
"Total Revolving Commitments": at any time, the sum of the Total US
Revolving Commitments then in effect and the Total CDN Revolving Commitments
then in effect.
"Total Revolving Extensions of Credit": at any time, the sum of the
Total US Revolving Extensions of Credit then outstanding and the Total CDN
Revolving Extensions of Credit then outstanding.
"Total US Revolving Commitments": at any time, the aggregate amount of
the US Revolving Commitments then in effect.
"Total US Revolving Extensions of Credit": at any time, the aggregate
amount of the US Revolving Extensions of Credit then outstanding.
"Tranche": as defined in Section 2.28.
"Transaction": as defined in Section 5.1(b).
"Transferee": any Assignee or Participant.
"Type": (i) as to any Loan denominated in Dollars, its nature as an
ABR Loan, CDN ABR Loan or Eurocurrency Loan, and (ii) as to any Loan denominated
in CDN Dollars, its nature as a CDN Prime Loan, a Bankers' Acceptance or a
Eurocurrency Loan.
"United States": the United States of America.
32
"US Borrower": (a) at any time prior to the consummation of the US
Merger Transactions, the Initial US Borrower, and (b) upon and at any time after
the consummation of the US Merger Transactions, the Surviving US Borrower.
"US Dollar Amount": in respect of any amount, the sum of (a) the
portion thereof denominated in Dollars (if any), plus (b) the US Dollar
Equivalent of the portion thereof denominated in CDN Dollars (if any).
"US$ CDN Revolving Loans": as defined in Section 2.4(b).
"US$ CDN Term Commitment": as to any Lender, the obligation of such
Lender, if any, to make a US$ CDN Term Loan to the CDN Borrower in a principal
amount not to exceed the amount set forth under the heading "US$ CDN Term
Commitment" opposite such Lender's name on Schedule 1.1A. The original aggregate
amount of the US$ CDN Term Commitments is $17,000,000
"US$ CDN Term Facility": as defined in the definition of "Facility".
"US$ CDN Term Lender": each Lender that has a US$ CDN Term Commitment
or that holds a US$ CDN Term Loan.
"US$ CDN Term Loan": as defined in Section 2.1.
"US$ CDN Term Percentage": as to any US$ CDN Term Lender, (i) at any
time prior to the Closing Date, the percentage which the sum of such Lender's
US$ CDN Term Commitments then constitutes of the aggregate US$ CDN Term
Commitments and (ii) at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's US$ CDN Term Loans then
outstanding constitutes of the aggregate principal amount of the US$ CDN Term
Loans then outstanding
"US Dollar Equivalent": at any time for the determination thereof, the
amount of Dollars which could be purchased with the amount of CDN Dollars
involved in such computation at the spot rate of exchange therefor as quoted by
the Canadian Administrative Agent as of 12:00 noon. (New York City time) on the
date of any determination thereof for purchase on such date.
"US Funding Office": the office of the Administrative Agent specified
in Section 10.2 or such other office as may be specified from time to time by
the Administrative Agent as its funding office by written notice to the
Borrowers and the Lenders.
"US Issuing Lender": (a) JPMorgan Chase Bank or (b) any other US
Revolving Lender from time to time designated by the US Borrower as a US Issuing
Lender with the consent of such other US Revolving Lender and the Administrative
Agent (such consent of the Administrative Agent not to be unreasonably withheld,
conditioned or delayed).
"US L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding US
Letters of Credit and (b) the aggregate amount of drawings under US Letters of
Credit that have not then been reimbursed.
"US L/C Participants": the collective reference to all the US
Revolving Lenders other than the applicable US Issuing Lender.
"US Lender": as defined in Section 2.20(e).
33
"US Letters of Credit": as defined in Section 3.1(a).
"US Loan Party": each of Holdings, the US Borrower and the US
Subsidiary Guarantors.
"US Merger Transactions": as defined in Section 5.1(b).
"US Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make US Revolving Loans and participate in US Swingline Loans
and US Letters of Credit in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "US Revolving Commitment" opposite
such Lender's name on Schedule 1.1A or in the Assignment and Assumption pursuant
to which such Lender became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount of the Total US
Revolving Commitments is $65,000,000.
"US Revolving Extensions of Credit": as to any US Revolving Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all US Revolving Loans held by such Lender then outstanding, (b) such Lender's
US Revolving Percentage of the US L/C Obligations then outstanding and (c) such
Lender's US Revolving Percentage of the aggregate principal amount of US
Swingline Loans then outstanding.
"US Revolving Facility": as defined in the definition of "Facility".
"US Revolving Lender": each Lender that has a US Revolving Commitment
or that holds US Revolving Loans.
"US Revolving Loans": as defined in Section 2.4(a).
"US Revolving Percentage": as to any US Revolving Lender at any time,
the percentage which such Lender's US Revolving Commitment then constitutes of
the Total US Revolving Commitments or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's US Revolving Loans then outstanding
constitutes of the aggregate principal amount of the US Revolving Loans then
outstanding, provided, that, in the event that the US Revolving Loans are paid
in full prior to the reduction to zero of the Total US Revolving Extensions of
Credit, the US Revolving Percentages shall be determined in a manner designed to
ensure that the other outstanding US Revolving Extensions of Credit shall be
held by the Revolving Lenders on a comparable basis.
"US Subsidiary Guarantor": each wholly owned Domestic Subsidiary
(other than Subsidiary Sunshine Merger II, Sunshine Merger Corporation and any
Immaterial Subsidiary) of the US Borrower.
"US Swingline Commitment": the obligation of the US Swingline Lender
to make US Swingline Loans pursuant to Section 2.6(a) in an aggregate principal
amount at any one time outstanding not to exceed $5,000,000.
"US Swingline Lender": JPMorgan Chase Bank, in its capacity as the
lender of US Swingline Loans.
"US Swingline Loans": as defined in Section 2.6(a).
34
"US Term Commitment": as to any Lender, the obligation of such Lender,
if any, to make a US Term Loan to the US Borrower in a principal amount not to
exceed the amount set forth under the heading "US Term Commitment" opposite such
Lender's name on Schedule 1.1A. The original aggregate amount of the US Term
Commitments is $200,000,000.
"US Term Facility": as defined in the definition of "Facility".
"US Term Lender": each Lender that has a US Term Commitment or that
holds a US Term Loan.
"US Term Loan": as defined in Section 2.1.
"US Term Percentage": as to any US Term Lender at any time, the
percentage which the sum of such Lender's US Term Commitments then constitutes
of the aggregate US Term Commitments (or, at any time after the Closing Date,
the percentage which the aggregate principal amount of such Lender's US Term
Loans then outstanding constitutes of the aggregate principal amount of the US
Term Loans then outstanding).
"Vehicles": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any state
or province.
"WCS Employment Agreement": the Employment Agreement, dated as of the
date hereof, entered into by and between Xxxxxxx X. Xxxxx and Holdings, as in
effect on the Closing Date and as may be modified from time to time with the
consent of the Administrative Agent.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the US Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation", and (iii) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Annex, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The term "license" shall include sub-license.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
35
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. (a) Subject to the terms and conditions hereof,
each US Term Lender severally agrees to make a term loan (a "US Term Loan") in
Dollars to the Initial US Borrower on the Closing Date in an amount not to
exceed the amount of the US Term Commitment of such Lender. The US Term Loans
may from time to time be Eurocurrency Loans or ABR Loans, as determined by the
US Borrower and notified to the Administrative Agent in accordance with Sections
2.2(a) and 2.13.
(b) Subject to the terms and conditions hereof, each C$ CDN Term
Lender severally agrees to make a term loan in CDN Dollars to the CDN Borrower
on the Closing Date and, thereafter, to the extent of any conversion or renewal
of a C$ CDN Term Loan in accordance with Sections 2.13(c) and/or 2.25, as
applicable, to accept and, at the option of the CDN Borrower, purchase Bankers'
Acceptances from the CDN Borrower (such term loan and the full Face Amount of
any such B/A, a "C$ CDN Term Loan") in an amount not to exceed the amount of the
C$ CDN Term Commitment of such Lender. The C$ CDN Term Loans may from time to
time be CDN Prime Loans or Bankers' Acceptances, as determined by the CDN
Borrower and notified to the Canadian Administrative Agent in accordance with
Sections 2.2(b), 2.13(c) and/or 2.25, as applicable.
(c) Subject to the terms and conditions hereof, each US$ CDN Term
Lender severally agrees to make a term loan (a "US$ CDN Term Loan") in Dollars
to the CDN Borrower on the Closing Date in an amount not to exceed the amount of
the US$ CDN Term Commitment of such Lender. The US$ CDN Term Loans may from time
to time be Eurocurrency Loans or ABR Loans, as determined by the CDN Borrower
and notified to the Canadian Administrative Agent in accordance with Sections
2.2(b) and 2.13.
2.2 Procedure for Term Loan Borrowing. (a) The Initial US Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time, on
the day of the anticipated Closing Date) requesting that the US Term Lenders
make the US Term Loans on the Closing Date and specifying the amount to be
borrowed. The US Term Loans made on the Closing Date shall initially be ABR
Loans. Upon receipt of such notice the Administrative Agent shall promptly
notify each US Term Lender thereof. Not later than 1:00 P.M., New York City
time, on the Closing Date each US Term Lender shall make available to the
Administrative Agent at the US Funding Office an amount in immediately available
funds equal to the US Term Loan or US Term Loans to be made by such Lender. The
Administrative Agent shall credit the account designated in writing by the
Initial US Borrower to the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the US Term Lenders in
immediately available funds.
(b) The CDN Borrower shall give the Canadian Administrative Agent
irrevocable notice (which notice must be received by the Canadian Administrative
Agent prior to 12:00 Noon, New York City time, on the day of the anticipated
Closing Date) requesting that the CDN Term Lenders make the CDN Term Loans on
the Closing Date and specifying the amount to be borrowed. The CDN Term Loans
made on the Closing Date shall initially be (i) in the case of C$ CDN Term
Loans, CDN Prime Loans, and (ii) in the case of US$ CDN Term Loans, ABR Loans.
Upon receipt of such notice the Canadian Administrative Agent shall promptly
notify each CDN Term Lender thereof. Not later than 1:00 P.M., New York City
time, on the Closing Date each CDN Term Lender shall make available to the
Canadian Administrative Agent at the Canadian Funding Office an amount in
immediately available funds equal to the CDN Term Loan or CDN Term Loans to be
made by such Lender. The Canadian Administrative Agent shall credit the account
designated in writing by the CDN Borrower to the Canadian Administrative Agent
with the aggregate of the amounts made available to the Canadian Administrative
Agent by the CDN Term Lenders in immediately available funds.
36
2.3 Repayment of Term Loans. (a) The US Term Loan of each US Term
Lender shall mature in consecutive quarterly installments, commencing on March
31, 2006, each of which shall be in an amount equal to such Lender's US Term
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 2006 $500,000
June 30, 2006 $500,000
September 30, 2006 $500,000
December 31, 2006 $500,000
March 31, 2007 $500,000
June 30, 2007 $500,000
September 30, 2007 $500,000
December 31, 2007 $500,000
March 31, 2008 $500,000
June 30, 2008 $500,000
September 30, 2008 $500,000
December 31, 2008 $500,000
March 31, 2009 $500,000
June 30, 2009 $500,000
September 30, 2009 $500,000
December 31, 2009 $500,000
March 31, 2010 $500,000
June 30, 2010 $500,000
September 30, 2010 $500,000
December 31, 2010 $500,000
March 31, 2011 $500,000
June 30, 2011 $500,000
September 30, 2011 $500,000
December 31, 2011 $500,000
March 31, 2012 $500,000
June 30, 2012 $500,000
September 30, 2012 $500,000
November 23, 2012 All outstanding
principal in
respect of the
US Term Loans
(b) The C$ CDN Term Loan of each C$ CDN Term Lender shall mature in
consecutive quarterly installments, commencing on March 31, 2006, each of which
shall be in an amount equal to such Lender's C$ CDN Term Percentage multiplied
by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 2006 C$170,897
June 30, 2006 C$170,897
September 30, 2006 C$170,897
December 31, 2006 C$170,897
March 31, 2007 C$170,897
June 30, 2007 C$170,897
September 30, 2007 C$170,897
37
Installment Principal Amount
----------- ----------------
December 31, 2007 C$170,897
March 31, 2008 C$170,897
June 30, 2008 C$170,897
September 30, 2008 C$170,897
December 31, 2008 C$170,897
March 31, 2009 C$170,897
June 30, 2009 C$170,897
September 30, 2009 C$170,897
December 31, 2009 C$170,897
March 31, 2010 C$170,897
June 30, 2010 C$170,897
September 30, 2010 C$170,897
December 31, 2010 C$170,897
March 31, 2011 C$170,897
June 30, 2011 C$170,897
September 30, 2011 C$170,897
December 31, 2011 C$170,897
March 31, 2012 C$170,897
June 30, 2012 C$170,897
September 30, 2012 C$170,897
November 23, 2012 All outstanding
principal in
respect of the
C$ CDN Term
Loans
(c) The US$ CDN Term Loan of each US$ CDN Term Lender shall mature in
consecutive quarterly installments, commencing on March 31, 2006, each of which
shall be in an amount equal to such Lender's US$ CDN Term Percentage multiplied
by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
March 31, 2006 $42,500
June 30, 2006 $42,500
September 30, 2006 $42,500
December 31, 2006 $42,500
March 31, 2007 $42,500
June 30, 2007 $42,500
September 30, 2007 $42,500
December 31, 2007 $42,500
March 31, 2008 $42,500
June 30, 2008 $42,500
September 30, 2008 $42,500
December 31, 2008 $42,500
March 31, 2009 $42,500
June 30, 2009 $42,500
September 30, 2009 $42,500
December 31, 2009 $42,500
March 31, 2010 $42,500
June 30, 2010 $42,500
38
Installment Principal Amount
----------- ----------------
September 30, 2010 $42,500
December 31, 2010 $42,500
March 31, 2011 $42,500
June 30, 2011 $42,500
September 30, 2011 $42,500
December 31, 2011 $42,500
March 31, 2012 $42,500
June 30, 2012 $42,500
September 30, 2012 $42,500
November 23, 2012 All outsanding
principal in
respect of the
US$ CDN Term
Loans
2.4 Revolving Commitments. (a) Subject to the terms and conditions
hereof, each US Revolving Lender severally agrees to make revolving credit loans
("US Revolving Loans") in Dollars to the US Borrower from time to time during
the Revolving Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's US Revolving Percentage of the
sum of (i) the US L/C Obligations then outstanding and (ii) the aggregate
principal amount of the US Swingline Loans then outstanding, does not exceed the
amount of such Lender's US Revolving Commitment. During the Revolving Commitment
Period the US Borrower may use the US Revolving Commitments by borrowing,
prepaying the US Revolving Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. The US Revolving Loans may from
time to time be Eurocurrency Loans or ABR Loans, as determined by the US
Borrower and notified to the Administrative Agent in accordance with Sections
2.5(a) and 2.13.
(b) Subject to the terms and conditions hereof, each CDN Revolving
Lender severally agrees (i) to make revolving credit loans to the CDN Borrower
in Dollars (US$ CDN Revolving Loans") from time to time during the Revolving
Commitment Period, and (ii) to make revolving credit loans to the US Borrower
and the CDN Borrower in CDN Dollars and to accept and, at the option of the CDN
Borrower, purchase Bankers' Acceptances from the CDN Borrower (such revolving
credit loans and the full Face Amount of all such B/As, the "C$ CDN Revolving
Loans" and, together with the US$ CDN Revolving Loans, collectively, the "CDN
Revolving Loans") from time to time during the Revolving Commitment Period, in
an aggregate principal amount for all such CDN Revolving Loans at any one time
outstanding such that (i) such CDN Revolving Lender's CDN Revolving Extensions
of Credit for the account of the CDN Borrower does not exceed the portion of
such CDN Revolving Lender's CDN Revolving Commitment then allocated to the CDN
Borrower in accordance with this Section 2.4(b) and (ii) such CDN Revolving
Lender's CDN Revolving Extensions of Credit for the account of the US Borrower
does not exceed the portion of such CDN Revolving Lender's CDN Revolving
Commitment then allocated to the US Borrower in accordance with this Section
2.4(b). The allocation of the CDN Revolving Commitments as between the US
Borrower on the one hand and the CDN Borrower on the other hand shall be fixed
by the US Borrower at the beginning of each fiscal quarter of the US Borrower;
provided, that the US Borrower may revise such allocations at the beginning of
each such fiscal quarter or more often by providing written notice to the
Administrative Agent and the Canadian Administrative Agent (which notice must be
received by each agent prior to 1:00 P.M., New York City time, three Business
Days before the date on which such allocations shall be revised) specifying the
revised allocation of the CDN Revolving Commitments as between the US Borrower
and the CDN Borrower, respectively. As of the Closing Date, none of the CDN
Revolving Commitments are allocated to the US Borrower and $10,000,000 of the
CDN Revolving Commitments are allocated to the CDN Borrower. To
39
the extent that the CDN Revolving Commitment of a CDN Revolving Lender may be
allocated to the US Borrower from time to time, such CDN Revolving Lender, if it
is not a "United States person" (as such term is defined in Section 7701(a)(30)
of the Code), shall designate by notice in writing to the Administrative Agent
on the Closing Date, and otherwise from time to time, a Related Affiliate of
such Lender which is either a "United States person" (as such term is defined in
Section 7701(a)(30) of the Code) or is a Non-US Lender that has fulfilled the
requirements of Section 2.20(d) or (e), as applicable.
(c) During the Revolving Commitment Period, each Borrower may use the
CDN Revolving Commitments by borrowing, prepaying (other than Bankers'
Acceptances) or repaying the CDN Revolving Loans, in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(d) The C$ CDN Revolving Loans shall be denominated in CDN Dollars and
may from time to time be (i) if borrowed by the CDN Borrower, (A) CDN Prime
Loans or (B) Bankers' Acceptances, as determined by the CDN Borrower and
notified to the Canadian Administrative Agent (with a copy to the Administrative
Agent) pursuant to Section 2.5(b) and Section 2.13 and (ii) if borrowed by the
US Borrower, Eurocurrency Loans, as notified to the Administrative Agent
pursuant to Section 2.5(a). The US$ CDN Revolving Loans shall be denominated in
Dollars and may from time to time be (A) CDN ABR Loans or (B) Eurocurrency
Loans, as determined by the CDN Borrower and notified to the Canadian
Administrative Agent (with a copy to the Administrative Agent) pursuant to
Section 2.5(b) and Section 2.13.
(e) Each Borrower shall repay all outstanding Revolving Loans made to
it on the Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. (a) The US Borrower may
borrow under the US Revolving Commitments or the CDN Revolving Commitments
during the Revolving Commitment Period on any Business Day, provided that the US
Borrower shall give the Administrative Agent (and the Canadian Administrative
Agent, in the case of borrowings under the CDN Revolving Commitments)
irrevocable notice (which notice must be received by the Administrative Agent
prior to 1:00 P.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurocurrency Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of ABR Loans), specifying
(i) whether such borrowing is of the US Revolving Commitments or the CDN
Revolving Commitments (or in the event that the US Borrower is borrowing under
both facilities, specifying the principal amount to be borrowed under each
thereof), (ii) the amount, currency (if applicable) and Type of Revolving Loans
to be borrowed, (iii) the requested Borrowing Date and (iv) in the case of
Eurocurrency Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Any US Revolving
Loans made on the Closing Date shall initially be ABR Loans, and the aggregate
principal amount of all Revolving Loans made on the Closing Date shall not
exceed $10,010,000. Each borrowing by the US Borrower under the US Revolving
Commitments or the CDN Revolving Commitments shall be in an amount equal to (x)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available US Revolving Commitments or
Available CDN Revolving Commitments, respectively, are less than $500,000, such
lesser amount) and (y) in the case of Eurocurrency Loans, (I) in the case of
Dollar-denominated Loans, $3,000,000 or a whole multiple of $500,000 in excess
thereof and (II) in the case of CDN Dollar-denominated Loans, C$3,000,000 or a
whole multiple of C$500,000 in excess thereof; provided, that the US Swingline
Lender may request, on behalf of the US Borrower, borrowings under the US
Revolving Commitments that are ABR Loans in other amounts pursuant to Section
2.7(b)(i). Upon receipt of any such notice from the US Borrower, the
Administrative Agent shall promptly notify each US Revolving Lender or CDN
Revolving Lender, as applicable, thereof. Each US Revolving Lender or CDN
Revolving Lender, as applicable, will make the amount of its pro rata share of
each borrowing available
40
to the Administrative Agent for the account of the US Borrower at the US Funding
Office prior to 2:00 P.M., New York City time, on the Borrowing Date requested
by the US Borrower in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the US Borrower by the
Administrative Agent crediting the account of the US Borrower on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent by the US Revolving Lenders and/or the CDN Revolving
Lenders, as the case may be, and in like funds as received by the Administrative
Agent.
(b) The CDN Borrower may borrow under the CDN Revolving Commitments
during the Revolving Commitment Period on any Business Day, provided that the
CDN Borrower shall give the Canadian Administrative Agent (with a copy to the
Administrative Agent) irrevocable notice (which notice must be received by the
Canadian Administrative Agent prior to 1:00 P.M., New York City time, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurocurrency
Loans or Bankers' Acceptances, or (b) one Business Day prior to the requested
Borrowing Date, in the case of CDN Prime Loans or CDN ABR Loans), specifying (i)
the amount, currency and Type of Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Bankers' Acceptances or Eurocurrency
Loans, the respective Contract Periods therefor or the respective amounts
thereof and lengths of the initial Interest Periods therefor, respectively. Any
CDN Revolving Loans made to the CDN Borrower on the Closing Date shall initially
be CDN Prime Loans (if denominated in CDN Dollars) or CDN ABR Loans (if
denominated in Dollars), and the aggregate principal amount of all Revolving
Loans made on the Closing Date shall not exceed $10,010,000. Each borrowing by
the CDN Borrower under the CDN Revolving Commitments shall be in an amount equal
to (i) in the case of CDN Prime Loans, C$1,000,000 or a whole multiple of
C$100,000 in excess thereof (or, if the then aggregate Available CDN Revolving
Commitments are less than the US Dollar Equivalent of C$1,000,000 at such time,
such lesser amount), (ii) in the case of CDN ABR Loans, $1,000,000 or a whole
multiple of $100,000 in excess thereof (or, if the then aggregate Available CDN
Revolving Commitments are less than $1,000,000, such lesser amount), (iii) in
the case of Bankers' Acceptances, an amount as set forth in Section 2.25 and
(iv) in the case of Eurocurrency Loans, $1,000,000 or a whole multiple of
$100,000 in excess thereof; provided, that the CDN Swingline Lender may request,
on behalf of the CDN Borrower, borrowings under the CDN Revolving Commitments
that are CDN ABR Loans in other amounts pursuant to Section 2.7(b)(ii). Upon
receipt of any such notice from the CDN Borrower, the Canadian Administrative
Agent shall promptly notify each CDN Revolving Lender thereof. Each CDN
Revolving Lender will make the amount of its pro rata share of each such
borrowing available to the Canadian Administrative Agent for the account of the
CDN Borrower at the CDN Funding Office prior to 2:00 P.M., New York City time,
on the Borrowing Date requested by the CDN Borrower in funds immediately
available to the Canadian Administrative Agent. Such borrowing will then be made
available on such date to the CDN Borrower by the Canadian Administrative Agent
crediting the account designated in writing by the CDN Borrower to the Canadian
Administrative Agent with the aggregate of the amounts made available to the
Canadian Administrative Agent by the CDN Revolving Lenders and in like funds as
received by the Canadian Administrative Agent.
2.6 Swingline Commitment. (a) Subject to the terms and conditions
hereof, the US Swingline Lender agrees to make a portion of the credit otherwise
available to the US Borrower under the US Revolving Commitments from time to
time during the Revolving Commitment Period by making swing line loans ("US
Swingline Loans") in Dollars to the US Borrower; provided that (i) the aggregate
principal amount of US Swingline Loans outstanding at any time shall not exceed
the US Swingline Commitment then in effect (notwithstanding that the US
Swingline Loans outstanding at any time, when aggregated with the US Swingline
Lender's other outstanding US Revolving Loans, may exceed the US Swingline
Commitment then in effect) and (ii) the US Borrower shall not request, and the
US Swingline Lender shall not make, any US Swingline Loan if, after giving
effect to the making of such US Swingline Loan, the aggregate amount of the
Available US Revolving Commitments would be less than zero.
41
During the Revolving Commitment Period, the US Borrower may use the US Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. US Swingline Loans shall be ABR Loans only.
(b) Subject to the terms and conditions hereof, the CDN Swingline
Lender agrees to make a portion of the credit otherwise available to the CDN
Borrower under the CDN Revolving Commitments from time to time during the
Revolving Commitment Period by making swing line loans ("CDN Swingline Loans")
in CDN Dollars to the CDN Borrower; provided that (i) the aggregate principal
amount of CDN Swingline Loans outstanding at any time shall not exceed the CDN
Swingline Commitment then in effect (notwithstanding that the CDN Swingline
Loans outstanding at any time, when aggregated with the CDN Swingline Lender's
other outstanding CDN Revolving Loans, may exceed the CDN Swingline Commitment
then in effect) and (ii) the CDN Borrower shall not request, and the CDN
Swingline Lender shall not make, any CDN Swingline Loan if, after giving effect
to the making of such CDN Swingline Loan, the aggregate amount of the Available
CDN Revolving Commitments would be less than zero. During the Revolving
Commitment Period, the CDN Borrower may use the CDN Swingline Commitment by
borrowing, repaying and reborrowing, all in accordance with the terms and
conditions hereof. CDN Swingline Loans shall be CDN ABR Loans only.
(c) The US Borrower shall repay to the US Swingline Lender the then
unpaid principal amount of each US Swingline Loan on the Revolving Termination
Date. The CDN Borrower shall repay to the CDN Swingline Lender the then unpaid
principal amount of each CDN Swingline Loan on the Revolving Termination Date.
2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans.
(a) Whenever either Borrower desires that the relevant Swingline Lender make
Swingline Loans it shall give such Swingline Lender and the Administrative Agent
(or the Canadian Administrative Agent, in the case of CDN Swingline Loans)
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by such Swingline Lender and the Administrative Agent
(or the Canadian Administrative Agent, in the case of CDN Swingline Loans) not
later than 12:00 Noon, New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date
(which shall be a Business Day during the Revolving Commitment Period). Each
borrowing under either Swingline Commitment shall be in an amount equal to
$100,000 or a whole multiple of $50,000 in excess thereof. Not later than 3:00
P.M., New York City time, on the Borrowing Date specified in a notice in respect
of Swingline Loans, the relevant Swingline Lender shall make available to the
Administrative Agent at the US Funding Office or the Canadian Administrative
Agent at the CDN Funding Office, as applicable, an amount in immediately
available funds equal to the amount of the Swingline Loan to be made by such
Swingline Lender. The Administrative Agent or the Canadian Administrative Agent,
as applicable, shall make the proceeds of such Swingline Loan available to the
relevant Borrower on such Borrowing Date by depositing such proceeds in the
account of such Borrower with the Administrative Agent or the Canadian
Administrative Agent, as applicable, or as otherwise directed by such Borrower
on such Borrowing Date in immediately available funds.
(b) (i) The US Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the US Borrower (which hereby
irrevocably directs the US Swingline Lender to act on its behalf), on one
Business Day's notice given by the US Swingline Lender no later than 12:00 Noon,
New York City time, request each US Revolving Lender to make, and each US
Revolving Lender hereby agrees to make, a US Revolving Loan, in an amount equal
to such US Revolving Lender's US Revolving Percentage of the aggregate amount of
the US Swingline Loans (the "Refunded US Swingline Loans") outstanding on the
date of such notice, to repay the US Swingline Lender. Each US Revolving Lender
shall make the amount of such US Revolving Loan available to the Administrative
Agent at the US Funding Office in immediately available funds, not later than
10:00
42
A.M., New York City time, one Business Day after the date of such notice. The
proceeds of such US Revolving Loans shall be immediately made available by the
Administrative Agent to the US Swingline Lender for application by the US
Swingline Lender to the repayment of the Refunded US Swingline Loans.
(ii) The CDN Swingline Lender, at any time and from time to time in
its sole and absolute discretion may direct the Canadian Administrative
Agent to, and the Canadian Administrative Agent shall use commercially
reasonable efforts to, on behalf of the CDN Borrower (which hereby
irrevocably directs the CDN Swingline Lender to act on its behalf), on one
Business Day's notice given by the Canadian Administrative Agent no later
than 12:00 Noon, New York City time, request each CDN Revolving Lender to
make, and each CDN Revolving Lender hereby agrees to make, a CDN Revolving
Loan, in an amount equal to such CDN Revolving Lender's CDN Revolving
Percentage of the aggregate amount of the CDN Swingline Loans (the
"Refunded CDN Swingline Loans") outstanding on the date of such notice, to
repay the CDN Swingline Lender. Each CDN Revolving Lender shall make the
amount of such CDN Revolving Loan available to the Canadian Administrative
Agent at the CDN Funding Office in immediately available funds, not later
than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such CDN Revolving Loans shall be immediately
made available by the Canadian Administrative Agent to the CDN Swingline
Lender for application by the CDN Swingline Lender to the repayment of the
Refunded CDN Swingline Loans
(c) If prior to the time a US Revolving Loan or CDN Revolving Loan
would have otherwise been made pursuant to Section 2.7(b), one of the events
described in Section 8(f) shall have occurred and be continuing with respect to
the US Borrower or the CDN Borrower, respectively, or if for any other reason,
as determined by the relevant Swingline Lender in its sole discretion, US
Revolving Loans or CDN Revolving Loans, as applicable, may not be made as
contemplated by Section 2.7(b), each US Revolving Lender or CDN Revolving
Lender, as applicable, shall, on the date such US Revolving Loan or CDN
Revolving Loan, as applicable, was to have been made pursuant to the notice
referred to in Section 2.7(b), purchase for cash an undivided participating
interest in the then outstanding US Swingline Loans or CDN Swingline Loans,
respectively, by paying to the relevant Swingline Lender an amount (the
"Swingline Participation Amount") equal to (i) in the case of US Swingline
Loans, (A) such US Revolving Lender's US Revolving Percentage times (B) the sum
of the aggregate principal amount of US Swingline Loans then outstanding that
were to have been repaid with such US Revolving Loans and (ii) in the case of
CDN Swingline Loans, (A) such CDN Revolving Lender's CDN Revolving Percentage
times (B) the sum of the aggregate principal amount of CDN Swingline Loans then
outstanding that were to have been repaid with such CDN Revolving Loans.
(d) Whenever, at any time after a Swingline Lender has received from
any Revolving Lender such Lender's Swingline Participation Amount with respect
to any Swingline Loans, such Swingline Lender receives any payment on account of
such Swingline Loans, such Swingline Lender will distribute to such Lender its
Swingline Participation Amount with respect thereto (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender's pro rata portion of
such payment if such payment is not sufficient to pay the principal of and
interest on all such Swingline Loans then due); provided, however, that in the
event that such payment received by such Swingline Lender is required to be
returned, such Lender will return to such Swingline Lender any portion thereof
previously distributed to it by such Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans referred to
in Section 2.7(b) and to purchase participating interests pursuant to Section
2.7(c) shall be absolute and unconditional and
43
shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Revolving Lender or
either Borrower may have against either Swingline Lender, either Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition
(financial or otherwise) of either Borrower, (iv) any breach of this Agreement
or any other Loan Document by either Borrower, any other Loan Party or any other
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
2.8 Repayment of Loans. (a) The US Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of the appropriate
Revolving Lender or Term Lender, as the case may be, (i) the then unpaid
principal amount of each Revolving Loan of such Revolving Lender made to the US
Borrower outstanding on the Revolving Termination Date (or on such earlier date
on which the Loans become due and payable pursuant to Section 8) and (ii) the
principal amount of each outstanding Term Loan of such Term Lender made to the
US Borrower in installments according to the relevant amortization schedule set
forth in Section 2.3 (or on such earlier date on which the Loans become due and
payable pursuant to Section 8). The US Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans made to the US Borrower
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 2.15.
(b) The CDN Borrower hereby unconditionally promises to pay to the
Canadian Administrative Agent for the account of the appropriate Revolving
Lender or Term Lender, as the case may be, (i) the then unpaid principal amount
of each CDN Revolving Loan of such Revolving Lender made to the CDN Borrower
outstanding on the Revolving Termination Date (or on such earlier date on which
the Loans become due and payable pursuant to Section 8) and (ii) the principal
amount of each outstanding Term Loan of such Term Lender made to the CDN
Borrower in installments according to the relevant amortization schedule set
forth in Section 2.3 (or on such earlier date on which the Loans become due and
payable pursuant to Section 8). The CDN Borrower hereby further agrees to pay
interest and fees, as applicable on the unpaid principal amount of the Loans
(including the Face Amount of all B/As) made to such CDN Borrower 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 2.15 and Section 2.25.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal (including the Face Amount of all B/As) and interest payable and
paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent, on behalf of the applicable Borrower,
shall maintain the Register pursuant to Section 10.6(b)(iv), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period or Contract Period applicable thereto, (ii) the amount of any
principal (including the Face Amount of all B/As), interest and fees, as
applicable, due and payable or to become due and payable from the relevant
Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent and the Canadian Administrative Agent hereunder from
the relevant Borrower and each Lender's share thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the relevant Borrower therein recorded; provided, however, that
the failure of the Administrative Agent or any Lender to maintain the Register
or any such account, or any error therein, shall not in any manner affect the
obligation of the relevant Borrower to repay (with
44
applicable interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
2.9 Commitment Fees, etc. (a) The US Borrower agrees to pay to the
Administrative Agent for the account of each US Revolving Lender a commitment
fee for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available US Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on each Fee
Payment Date, commencing on the first such date to occur after the date hereof.
(b) The CDN Borrower agrees to pay to the Canadian Administrative
Agent for the account of each CDN Revolving Lender a commitment fee for the
period from and including the Closing Date to the last day of the Revolving
Commitment Period, computed at the Commitment Fee Rate on the average daily
amount of the portion of the Available CDN Revolving Commitment of such Lender
made available to the CDN Borrower during the period for which payment is made,
payable quarterly in arrears on each Fee Payment Date, commencing on the first
such date to occur after the date hereof.
(c) The US Borrower agrees to pay to the Administrative Agent for the
account of each CDN Revolving Lender a commitment fee for the period from and
including the Closing Date to the last day of the Revolving Commitment Period,
computed at the Commitment Fee Rate on the average daily amount of the portion
of the Available CDN Revolving Commitment of such Lender made available to the
US Borrower (without duplication of Section 2.9(b) above) during the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date,
commencing on the first such date to occur after the date hereof.
(d) The US Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates as set forth in any fee agreements with the
Administrative Agent.
2.10 Termination or Reduction of Revolving Commitments. The US
Borrower (and, with respect to the CDN Revolving Commitments only, the CDN
Borrower) shall have the right, upon not less than two Business Days' notice to
the Administrative Agent (and the Canadian Administrative Agent, in the case of
the CDN Revolving Commitments), to terminate the US Revolving Commitments and/or
the CDN Revolving Commitments, as the case may be, or, from time to time, to
reduce the amount of the US Revolving Commitments and/or CDN Revolving
Commitments, as the case may be; provided that no such termination or reduction
of such Revolving Commitments shall be permitted if, after giving effect thereto
and to any prepayments of the US Revolving Loans or the CDN Revolving Loans, as
the case may be, made on the effective date thereof, the Total US Revolving
Extensions of Credit or the Total CDN Revolving Extensions of Credit, as
applicable, would exceed the Total US Revolving Commitments or the Total CDN
Revolving Commitments, respectively. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the US Revolving Commitments or CDN Revolving Commitments, as the case may be,
then in effect.
2.11 Optional Prepayments. (a) The US Borrower may at any time and
from time to time prepay the US Revolving Loans or the US Term Loans, in whole
or in part, without premium or penalty, upon irrevocable notice delivered to the
Administrative Agent no later than 1:00 P.M., New York City time, three Business
Days prior thereto, in the case of Eurocurrency Loans, and no later than 1:00
P.M., New York City time, one Business Day prior thereto, in the case of ABR
Loans, which notice shall specify (i) the date and amount of prepayment, (ii)
whether the prepayment is of US Revolving Loans or US Term Loans and (iii)
whether the prepayment is of Eurocurrency Loans or ABR Loans; provided, that if
a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the US Borrower shall also pay any amounts
owing pursuant to Section 2.21. Upon receipt of
45
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except in
the case of Revolving Loans that are ABR Loans and US Swingline Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of US Term
Loans and US Revolving Loans shall be in an aggregate principal amount of (i)
$1,000,000 or a whole multiple of $100,000 in excess thereof (in the case of
prepayments of ABR Loans) or (ii) $1,000,000 or a whole multiple of $500,000 in
excess thereof (in the case of prepayments of Eurocurrency Loans), and in each
case shall be subject to the provisions of Section 2.18. Partial prepayments of
US Swingline Loans shall be in an aggregate principal amount of $50,000 or a
whole multiple of $50,000 in excess thereof.
(b) The CDN Borrower and the US Borrower may at any time and from time
to time prepay the CDN Revolving Loans (other than Bankers' Acceptances) or the
CDN Term Loans (other than Bankers' Acceptances), in whole or in part, without
premium or penalty, upon irrevocable notice delivered to the Canadian
Administrative Agent and the Administrative Agent no later than 1:00 P.M., New
York City time, three Business Days prior thereto (in the case of Eurocurrency
Loans) or one Business Day prior thereto (in the case of ABR Loans, CDN ABR
Loans and CDN Prime Loans), which notice shall specify (i) the date and amount
of prepayment, (ii) whether the prepayment is of CDN Revolving Loans, C$ CDN
Term Loans or US$ CDN Term Loans and (iii) whether the prepayment is of
Eurocurrency Loans, CDN Prime Loans, CDN ABR Loans or ABR Loans; provided, that
if a Eurocurrency Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the relevant Borrower shall also pay any
amounts owing pursuant to Section 2.21. Upon receipt of any such notice the
Canadian Administrative Agent (or, if such notice is received from the US
Borrower, the Administrative Agent) shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of CDN Swingline Loans and CDN Revolving Loans that are ABR Loans, CDN ABR
Loans or CDN Prime Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of C$ CDN Term Loans and C$ CDN Revolving Loans shall be in
an aggregate principal amount of C$1,000,000 or a whole multiple of C$100,000 in
excess thereof (in the case of prepayments of CDN Prime Loans) or C$1,000,000 or
a whole multiple of C$500,000 in excess thereof (in the case of prepayments of
Eurocurrency Loans) and shall be subject to the provisions of Section 2.18.
Partial prepayments of US$ CDN Revolving Loans and US$ CDN Term Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple of $100,000
in excess thereof (in the case of prepayments of ABR Loans or CDN ABR Loans) or
$1,000,000 or a whole multiple of $500,000 in excess thereof (in the case of
prepayments of Eurocurrency Loans) and shall be subject to the provisions of
Section 2.18. Partial prepayments of CDN Swingline Loans shall be in an
aggregate principal amount of C$50,000 or a whole multiple of C$50,000 in excess
thereof.
(c) Notwithstanding the foregoing, any voluntary prepayment of Term
Loans (other than in connection with a refinancing of all Loans under the US
Term Facility and the Revolving Facility (including any refinancing of all Loans
hereunder)) that results in the prepayment of all or any portion of the
outstanding Term Loans on or prior to the first anniversary of the Closing Date
with the proceeds of new term loans that have an applicable margin that is less
than the Applicable Margin for the Term Loans may only be made if each Term
Lender is paid a prepayment premium of 1% of the principal amount of such
Lender's Term Loans being prepaid on the date of such prepayment.
2.12 Mandatory Prepayments and Commitment Reductions. (a) Unless the
Required Prepayment Lenders shall otherwise agree, (i) if any Indebtedness
(excluding any Indebtedness incurred in accordance with Section 7.2) shall be
incurred by any US Loan Party an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of receipt of such Net Cash Proceeds toward
the prepayment of the US Term Loans as set forth in Section 2.12(e) and (ii) if
any Indebtedness (excluding Indebtedness incurred in accordance with Section
7.2) shall be incurred by the CDN Borrower or any
46
CDN Subsidiary Guarantor, an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of receipt of such Net Cash Proceeds toward
the prepayment of the CDN Term Loans as set forth in Section 2.12(e).
(b) Unless the Required Lenders shall otherwise agree, (i) if on any
date any US Loan Party shall for its own account receive Net Cash Proceeds from
any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, such Net Cash Proceeds shall be applied on such
date toward the prepayment of the US Term Loans and the reduction of the US
Revolving Commitments as set forth in Section 2.12(e) and (ii) if on any date
the CDN Borrower or any CDN Subsidiary Guarantor shall for its own account
receive Net Cash Proceeds from any Asset Sale or Recovery Event (a "CDN
Reinvestment Event") then, unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied on such date toward the
prepayment of the CDN Term Loans and the reduction of the CDN Revolving
Commitments as set forth in Section 2.12(e); provided, that, notwithstanding the
foregoing, (x) on each Reinvestment Prepayment Date, the US Term Loans shall be
prepaid and/or the US Revolving Commitments shall be reduced (or, with respect
to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid and/or the
CDN Revolving Commitments shall be reduced) as set forth in Section 2.12(e) by
an amount equal to the Reinvestment Prepayment Amount with respect to the
relevant Reinvestment Event and (y) on the date (the "Trigger Date") that is six
months after any such Reinvestment Prepayment Date, the US Term Loans shall be
prepaid and/or the US Revolving Commitments shall be reduced (or, with respect
to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid and/or the
CDN Revolving Commitments shall be reduced) as set forth in Section 2.12(e) by
an amount equal to the portion of any Committed Reinvestment Amount with respect
to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Lenders shall otherwise agree, if on any date
Holdings or any of its Subsidiaries shall receive for its own account proceeds
from any tax refund with respect to any period ending on or prior to the first
anniversary of the Closing Date to the extent resulting from the redemption of
stock options on the Closing Date, an amount equal to (i) the amount of such
proceeds minus (ii) the amount of cash on hand of the US Borrower on the Closing
Date after giving effect to the Transaction, shall be applied on the date of
such receipt toward the prepayment of the Revolving Loans or the Term Loans as
set forth in Section 2.12(e).
(d) Unless the Required Prepayment Lenders shall otherwise agree, if,
for any fiscal year of the US Borrower commencing with the fiscal year ending
December 31, 2006, there shall be Excess Cash Flow, the US Borrower shall, on
the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the
Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate
amount of all prepayments of Revolving Loans and Swingline Loans during such
fiscal year to the extent accompanied by permanent optional reductions of the
Revolving Commitments and all optional prepayments of the Term Loans during such
fiscal year, in each case other than to the extent any such prepayment is funded
with the proceeds of new long-term Indebtedness, toward the prepayment of the US
Term Loans as set forth in Section 2.12(e). Each such prepayment shall be made
on a date (an "Excess Cash Flow Application Date") no later than ten days after
the date on which the financial statements of the US Borrower referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders.
(e) Amounts to be applied in connection with prepayments pursuant to
paragraphs (a) and (d) above shall be applied to the prepayment of the US Term
Loans (or the CDN Term Loans, as applicable) in accordance with Section 2.18(b)
until paid in full. Amounts to be applied in connection with prepayments and
Commitment reductions pursuant to paragraph (b) above shall be applied, first,
to the prepayment of the US Term Loans (or the CDN Term Loans, as applicable) in
accordance with
47
Section 2.18(b) until paid in full and, second, to reduce permanently the US
Revolving Credit Commitments (or the CDN Revolving Commitments, as applicable)
on a ratable basis. Amounts to be applied in connection with prepayments
pursuant to paragraph (c) above shall be applied, at the US Borrower's option,
either (x) to the prepayment of the Term Loans in accordance with Section
2.18(b) or (y) solely to the prepayment of the Revolving Credit Loans (without
any corresponding permanent reduction of the related Revolving Commitments) in
accordance with Section 2.18(c). Any reduction of the Revolving Commitments
shall be accompanied by prepayment of the Revolving Loans to the extent, if any,
that the Total US Revolving Extensions of Credit exceed the amount of the Total
US Revolving Commitments as so reduced or the Total CDN Revolving Extensions of
Credit exceed the amount of the Total CDN Revolving Commitments as so reduced,
as applicable, provided that if the aggregate principal amount of US Revolving
Loans or CDN Revolving Loans (other than B/As), respectively, then outstanding
is less than the amount of such excess (because L/C Obligations and/or B/As
constitute a portion thereof), the relevant Borrower shall, to the extent of the
balance of such excess, replace outstanding Letters of Credit and/or deposit an
amount in cash in a cash collateral account established with the Administrative
Agent (or the Canadian Administrative Agent, in the case of CDN Letters of
Credit or B/As) for the benefit of the relevant Lenders on terms and conditions
reasonably satisfactory to the Administrative Agent (or the Canadian
Administrative Agent, in the case of Letters of Credit issued for the account of
the CDN Borrower or B/As). The application of any prepayment pursuant to Section
2.12 shall be made, first, to ABR Loans, CDN ABR Loans or CDN Prime Loans, as
the case may be, and, second, to Eurocurrency Loans. Each prepayment of the
Loans under Section 2.12 shall be accompanied by accrued interest to the date of
such prepayment on the amount prepaid.
(f) If at any time the Revolving Extensions of Credit of any Lender
exceeds 105% of the Revolving Commitments of such Lender, as a result of the
fluctuation of currency values, the relevant Borrower shall immediately repay
the aggregate outstanding CDN Revolving Loans (other than Bankers' Acceptances)
to the extent required to eliminate such excess. If any such excess remains
after repayment in full of the aggregate outstanding CDN Revolving Loans (other
than Bankers' Acceptances), the relevant Borrower shall provide cash collateral
for CDN L/C Obligations or the B/As, as applicable, to the extent required to
eliminate such excess, in form and substance reasonably satisfactory to the
Canadian Administrative Agent.
(g) Notwithstanding anything to the contrary in this Agreement, the
aggregate principal amount of all prepayments of the CDN Term Loans required to
be made pursuant to any provisions of this Section 2.12, together with the
aggregate principal amount of all payments of the CDN Term Loans required to be
made pursuant to Section 2.3(b) prior to the day that is one day after the fifth
anniversary of the Closing Date, shall not, at any time prior to the date that
is one day after the fifth anniversary of the Closing Date, exceed in the
aggregate an amount equal to 25% of the initial principal amount of the CDN Term
Loans (the "Maximum Amount"); provided that the foregoing shall not preclude a
CDN Term Lender from receiving principal payments in excess of the foregoing
amounts upon or in connection with any Event of Default pursuant to Section 8(f)
or in connection with any voluntary prepayment. Any prepayment amount required
to be made in respect of the CDN Term Loans (or portion thereof) in excess of
the Maximum Amount shall be reallocated to the prepayment of the US Term Loans
(until repaid in full) to the extent that such prepayment amount represents Net
Cash Proceeds or proceeds received by the US Borrower or its Subsidiaries (other
than any CDN Loan Party) or is attributable to Excess Cash Flow.
2.13 Conversion and Continuation Options. (a) Each Borrower may elect
from time to time to convert Eurocurrency Loans made to such Borrower (other
than C$ CDN Revolving Loans made to the US Borrower) to ABR Loans (or CDN ABR
Loans, in the case of US$ CDN Revolving Loans made to the CDN Borrower) by
giving the Administrative Agent (or the Canadian Administrative Agent, in the
case of the CDN Borrower) prior irrevocable notice of such election no later
than 1:00 P.M., New York City time, on the Business Day preceding the proposed
conversion date, provided, that if any
48
Eurocurrency Loan is so converted on any day other than the last day of the
Interest Period applicable thereto, the relevant Borrower shall also pay any
amounts owing pursuant to Section 2.21. Each Borrower may elect from time to
time to convert ABR Loans (or CDN ABR Loans, in the case of the CDN Borrower)
made to such Borrower to Eurocurrency Loans by giving the Administrative Agent
(or the Canadian Administrative Agent, in the case of the CDN Borrower) prior
irrevocable notice of such election no later than 1:00 P.M., New York City time,
on the third Business Day preceding the proposed conversion date (which notice
shall specify the length of the initial Interest Period therefor), provided that
no ABR Loan or CDN ABR Loans, as the case may be, under a particular Facility
may be converted into a Eurocurrency Loan when any Event of Default has occurred
and is continuing and the Administrative Agent (or the Canadian Administrative
Agent, in the case of each CDN Term Facility and the CDN Revolving Facility) or
the Majority Facility Lenders in respect of such Facility have determined in its
or their sole discretion not to permit such conversions. Upon receipt of any
such notice the Administrative Agent (or the Canadian Administrative Agent, as
applicable) shall promptly notify each relevant Lender thereof.
(b) Any Eurocurrency Loan may be continued as such by the relevant
Borrower giving irrevocable notice to the Administrative Agent (or the Canadian
Administrative Agent, with respect to the CDN Term Loans or CDN Revolving
Loans), in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1 and no later than 1:00 P.M., New York City
time, on the third Business Day preceding the proposed continuation date, of the
length of the next Interest Period to be applicable to such Loans, provided,
that if any Eurocurrency Loan is so continued on any day other than the last day
of the Interest Period applicable thereto, the relevant Borrower shall also pay
any amounts owing pursuant to Section 2.21, and provided, further, that no
Eurocurrency Loan under a particular Facility may be continued as such when any
Event of Default has occurred and is continuing and the Administrative Agent (or
the Canadian Administrative Agent, if applicable) has or the Majority Facility
Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if the
relevant Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR Loans (or
CDN ABR Loans, in the case of US$ CDN Revolving Loans made to the CDN Borrower)
on the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent (or the Canadian Administrative Agent, as the
case may be) shall promptly notify each relevant Lender thereof.
(c) The CDN Borrower may elect to convert any CDN Prime Loan to B/As,
subject to the provisions of Section 2.25, by giving the Canadian Administrative
Agent irrevocable notice no later than 2:00 P.M., New York City time, three (3)
Business Days prior to the date of conversion (which notice shall specify the
amount to be converted and the length of the Contract Period therefor);
provided, that no such conversion shall be permitted when an Event of Default
has occurred and is continuing.
2.14 Minimum Amounts and Maximum Number of Eurocurrency Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurocurrency Loans, B/As
and all selections of Interest Periods, and Contract Periods applicable to B/As,
shall be in such amounts and be made pursuant to such elections so that (a)
after giving effect thereto, the aggregate principal amount of the Eurocurrency
Loans comprising each Eurocurrency Tranche shall be equal to a minimum of
$3,000,000 or a whole multiple of $500,000 in excess thereof, (b) no more than
ten Eurocurrency Tranches shall be outstanding at any one time and (c) no more
than six Contract Periods in respect of Bankers' Acceptances shall be
outstanding at any one time.
49
2.15 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin, and each CDN ABR Loan shall bear interest at a
rate per annum equal to the CDN ABR plus the Applicable Margin.
(c) Each CDN Prime Loan shall bear interest at a rate per annum equal
to the CDN Prime Rate plus the Applicable Margin.
(d) Each Bankers' Acceptance shall be subject to an Acceptance Fee
payable as set forth in Section 2.25.
(e) (i) If all or a portion of the principal amount of any Loan
(including the Face Amount of any outstanding B/A) or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
(x) in the case of the Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus 2% or (y) in
the case of Reimbursement Obligations, the rate applicable to ABR Loans under
the US Revolving Facility (or, with respect to Letters of Credit denominated in
CDN Dollars, the rate applicable to CDN Prime Loans under the CDN Revolving
Facility) plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to ABR Loans, CDN ABR Loans or CDN
Prime Loans, as applicable, under the relevant Facility plus 2% (or, in the case
of any such other amounts that do not relate to a particular Facility, the rate
then applicable to ABR Loans under the Revolving Facility plus 2%), in each
case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(f) Interest shall be payable by the relevant Borrower in arrears on
each Interest Payment Date, provided that interest accruing pursuant to
paragraph (e) of this Section shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to CDN Prime Loans, CDN ABR Loans
and ABR Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed and Acceptance
Fees and commitment fees and interest calculated on the basis of the CDOR Rate
shall be calculated on the basis of a 365- day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the relevant
Borrower and the relevant Lenders of each determination of a Eurocurrency Rate.
Any change in the interest rate on a Loan resulting from a change in the ABR,
the CDN ABR, the CDN Prime Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent or the Canadian Administrative
Agent, as applicable, shall as soon as practicable notify the relevant Borrower
and the relevant Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
or the Canadian Administrative Agent, as applicable, pursuant to any provision
of this Agreement shall be presumptively correct in the absence of manifest
error. The Administrative Agent or the Canadian Administrative
50
Agent, as applicable, shall, at the request of the relevant Borrower, deliver to
such Borrower a statement showing the quotations used by the Administrative
Agent or the Canadian Administrative Agent, as applicable, in determining any
interest rate pursuant to Section 2.15(a).
(c) For the purposes of the Interest Act (Canada), in any case in
which an interest or fee rate is stated in this Agreement to be calculated on
the basis of a number of days that is other than the number in a calendar year,
the yearly rate, to which such interest or fee rate is equivalent, is equal to
such interest or fee rate multiplied by the actual number of days in the year in
which the relevant interest or fee payment accrues and divided by the number of
days used as the basis for such calculation.
2.17 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent or the Canadian Administrative Agent
(with respect to US$ CDN Revolving Loans and US$ CDN Term Loans only) shall
have determined (which determination shall be presumptively correct absent
manifest error) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurocurrency Rate for such Interest Period, or
(b) the Administrative Agent or the Canadian Administrative Agent
(with respect to US$ CDN Revolving Loans and US$ CDN Term Loans only) shall
have received notice from the Majority Facility Lenders in respect of the
relevant Facility that by reason of any changes arising after the date of
this Agreement the Eurocurrency Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent or the Canadian Administrative Agent, as applicable,
shall give telecopy or telephonic notice thereof to the relevant Borrower and
the relevant Lenders as soon as practicable thereafter. If such notice is given
(x) any Eurocurrency Loans under the relevant Facility requested to be made on
the first day of such Interest Period shall be made as ABR Loans or CDN ABR
Loans, as applicable, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurocurrency
Loans shall be continued as ABR Loans or CDN ABR Loans, as applicable and (z)
any outstanding Eurocurrency Loans under the relevant Facility shall be
converted, on the last day of the then-current Interest Period with respect
thereto, to ABR Loans or CDN ABR Loans, as applicable. Until such notice has
been withdrawn by the Administrative Agent or the Canadian Administrative Agent,
as applicable (which action such Administrative Agent or the Canadian
Administrative Agent, as applicable, will take promptly after the conditions
giving rise to such notice no longer exist), no further Eurocurrency Loans under
the relevant Facility shall be made or continued as such, nor shall the relevant
Borrower have the right to convert Loans under the relevant Facility to
Eurocurrency Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrowers from the Lenders hereunder, each payment by the Borrowers on account
of any commitment fee and any reduction of the Revolving Commitments of the
Lenders shall be made pro rata according to the respective US Term Percentages,
C$ CDN Term Percentages, US$ CDN Term Percentages, US Revolving Percentages or
CDN Revolving Percentages, as the case may be, of the relevant Lenders. Each
payment (other than prepayments) in respect of principal (or the Face Amount in
respect of B/As) or interest in respect of the US Term Loans or CDN Term Loans
and each payment in respect of fees payable hereunder shall be applied to the
amounts of such obligations owing to the US Term Lenders or CDN Term Lenders, as
applicable, pro rata according to the respective amounts then due and owing to
such Lenders.
51
(b) Each optional prepayment of the Term Loans and each mandatory
prepayment of the Term Loans pursuant to paragraph (c) of Section 2.12 shall be
applied to the remaining installments thereof as specified by the relevant
Borrower. Each mandatory prepayment on account of principal of and interest on
the US Term Loans pursuant to paragraph (a), (b) or (d) of Section 2.12 shall be
applied first, to any installments thereof coming due within 24 months of the
date of such prepayment in direct order of maturity and, second, ratably to the
respective remaining installments thereof. Each mandatory prepayment on account
of principal of and interest on the CDN Term Loans pursuant to paragraph (a) or
(b) of Section 2.12 shall be applied first, to any installments thereof coming
due within 24 months of the date of such prepayment in direct order of maturity
and, second, ratably to the respective remaining installments thereof. Amounts
repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the US Borrower on
account of principal of and interest on the US Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the US
Revolving Loans then held by the US Revolving Lenders. Each payment (including
each prepayment) by the relevant Borrower on account of principal of (including
the Face Amount of B/As) and fees and interest on the CDN Revolving Loans shall
be made pro rata according to the respective outstanding principal amounts of
the CDN Revolving Loans then held by the relevant CDN Revolving Lenders. Each
payment in respect of Reimbursement Obligations in respect of any Letter of
Credit shall be made to the Issuing Lender that issued such Letter of Credit
(d) (i) All payments (including prepayments) to be made by the US
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 2:00 P.M., New York City time, on the due date thereof to the Administrative
Agent, for the account of the relevant Lenders, at the US Funding Office, in
immediately available funds. The Administrative Agent shall distribute such
payments to the relevant Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurocurrency
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a
Eurocurrency Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(ii) All payments (including prepayments) to be made by the CDN
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made
prior to 2:00 P.M., New York City time, on the due date thereof to the
Canadian Administrative Agent, for the account of the relevant Lenders, at
the CDN Funding Office, in immediately available funds. The Canadian
Administrative Agent shall distribute such payments to the relevant Lenders
promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the Eurocurrency Loans) becomes due and payable on
a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurocurrency Loan becomes due
and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable
at the then applicable rate during such extension
(e) Unless the Administrative Agent or the Canadian Administrative
Agent, as applicable, shall have been notified in writing by any Lender prior to
a borrowing that such Lender will
52
not make the amount that would constitute its share of such borrowing available
to the Administrative Agent or the Canadian Administrative Agent, as applicable,
such agent may assume that such Lender is making such amount available to such
agent, and such agent may, in reliance upon such assumption, make available to
the relevant Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent or the Canadian Administrative Agent, as
applicable, by the required time on the Borrowing Date therefor, such Lender
shall pay to the Administrative Agent or the Canadian Administrative Agent, as
applicable, on demand, such amount with interest thereon, at a rate equal to the
greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation (or, in the case of the Canadian Administrative Agent, the rate as
determined by it to be its cost of funds), for the period until such Lender
makes such amount immediately available to the Administrative Agent or the
Canadian Administrative Agent, as applicable. A certificate of the
Administrative Agent or the Canadian Administrative Agent, as applicable,
submitted to any Lender with respect to any amounts owing under this paragraph
shall be presumptively correct in the absence of manifest error. If such
Lender's share of such borrowing is not made available to the Administrative
Agent or the Canadian Administrative Agent, as applicable, by such Lender within
three Business Days after such Borrowing Date, the Administrative Agent or the
Canadian Administrative Agent, as applicable, shall give notice of such fact to
the relevant Borrower and the Administrative Agent or the Canadian
Administrative Agent, as applicable, shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, CDN
ABR Loans or CDN Prime Loans, as applicable, under the relevant Facility, on
demand, from the relevant Borrower. Nothing herein shall be deemed to limit the
rights of the Administrative Agent, the Canadian Administrative Agent or the
Borrowers against any defaulting Lender.
(f) Unless the Administrative Agent or the Canadian Administrative
Agent, as applicable, shall have been notified in writing by the relevant
Borrower prior to the date of any payment due to be made by such Borrower
hereunder that such Borrower will not make such payment to the Administrative
Agent or the Canadian Administrative Agent, as applicable, such agent may assume
that such Borrower is making such payment, and such agent may, but shall not be
required to, in reliance upon such assumption, make available to the relevant
Lenders their respective pro rata shares of a corresponding amount. If such
payment is not made to the Administrative Agent or the Canadian Administrative
Agent, as applicable, by such Borrower within three Business Days after such due
date, the Administrative Agent or the Canadian Administrative Agent, as
applicable, shall be entitled to recover, on demand, from each relevant Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate (or, in the case of the Canadian
Administrative Agent, the rate as determined by it to be its cost of funds,
which determination shall be presumptively correct in the absence of manifest
error). Nothing herein shall be deemed to limit the rights of the Administrative
Agent, the Canadian Administrative Agent or any Lender against any Borrower.
(g) Each obligation of the Loan Parties under the Loan Documents
related to any Loans or Letter of Credit denominated in Dollars shall be paid in
Dollars. Each obligation of the Loan Parties related to any Loans or Letters of
Credit denominated in CDN Dollars shall be paid in CDN Dollars; provided, that
fees payable pursuant to Section 3.3 shall be payable in Dollars. All commitment
fees payable pursuant to Section 2.9 shall be calculated and payable in Dollars.
2.19 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority first made, in each
case, subsequent to the date hereof:
53
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurocurrency Loan made by it or any Bankers' Acceptance purchased or
accepted by it, or change the basis of taxation of payments to such Lender
in respect thereof (except for Non-Excluded Taxes and changes in the rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurocurrency Rate or the Discount Rate hereunder; or
(iii) shall impose on such Lender any other condition not otherwise
contemplated hereunder;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender reasonably deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans, issuing or
participating in Letters of Credit or purchasing or accepting Bankers'
Acceptances (in each case hereunder), or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the relevant Borrower, as
the case may be, shall promptly pay such Lender, within ten Business Days after
such Borrower's receipt of a reasonably detailed invoice therefor (showing with
reasonable detail the calculations thereof), any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the relevant Borrower (with a copy to the
Administrative Agent or the Canadian Administrative Agent, as the case may be)
of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority first made, in each case, subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under or in respect of
any Letter of Credit or Bankers' Acceptance to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
relevant Borrower (with a copy to the Administrative Agent or the Canadian
Administrative Agent, as the case may be) of a reasonably detailed written
request therefor (consistent with the detail provided by such Lender to
similarly situated borrowers), the relevant Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the relevant Borrower (with a copy to
the Administrative Agent or the Canadian Administrative Agent, as the case may
be) shall be presumptively correct in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, no Borrower shall be
required to compensate a Lender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies such
Borrower of such Lender's intention to claim compensation therefor; provided
that, if the circumstances giving rise to such claim have a retroactive effect,
then such nine-month period shall be extended to include the period of such
retroactive effect. The obligations of the relevant
54
Borrowers pursuant to this Section shall survive the termination of this
Agreement and the payment of the Obligations.
2.20 Taxes. (a) Except as otherwise provided in this Agreement, all
payments made by the Borrowers under this Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income taxes, levies, imposts, duties, charges, fees, deductions,
withholdings or Other Taxes, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding (i) net income
taxes, net profits or capital taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent, the Canadian Administrative
Agent or any Lender as a result of a present or former connection between the
Administrative Agent, the Canadian Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent, the Canadian
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document) and (ii) any branch profits taxes imposed by the United
States or any similar tax imposed by any other jurisdiction in which either
Borrower is located (including the branch interest tax imposed under Part XIII
of the ITA (or any successor or similar provision), the branch tax imposed under
Part XIV of the ITA (or any successor or similar provision) and any similar
taxes imposed under the laws of any province or territory of Canada). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable by the relevant Borrower to the Administrative Agent,
the Canadian Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent, the Canadian Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent, the Canadian Administrative Agent or such Lender (after deduction or
withholding of all Non-Excluded Taxes and Other Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that no Borrower shall be required to increase any
such amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the requirements
of paragraph (d) or (e), as applicable, of this Section, (ii) that are United
States withholding taxes imposed on amounts payable under the US Term Facility,
US Revolving Facility or CDN Revolving Facility to such Lender at the time such
Lender becomes a US Term Lender, US Revolving Lender or CDN Revolving Lender,
except to the extent that such Lender's assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the relevant Borrower
with respect to such Non-Excluded Taxes pursuant to this paragraph or (iii) that
are imposed by Canada on any amount paid or credited under the CDN Revolving
Facility to any Lender (x) that is not a resident in Canada for purposes of the
ITA or (y) that is not otherwise deemed to be a resident in Canada for purposes
of Part XIII of the ITA in respect of any amounts paid or credited to such
Lender under the CDN Revolving Facility, except to the extent that such Lender
acquired its interest in the CDN Revolving Facility following the occurrence of
and during the continuance of an Event of Default under Section 8(a) or 8(f)
pursuant to Section 10.6(b)(ii)(D) (in which case the requirement to increase
any such amounts shall apply).
(b) In addition, the relevant Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any
Borrower, as promptly as possible thereafter the relevant Borrower shall send to
the Administrative Agent or the Canadian Administrative Agent for the account of
the Administrative Agent, the Canadian Administrative Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
relevant Borrower showing payment thereof if such receipt is obtainable, or, if
not, such other evidence of payment as may reasonably be required by the
Administrative Agent, the Canadian Administrative Agent
55
or such Lender. If any Borrower fails to pay any Non-Excluded Taxes or Other
Taxes that such Borrower is required to pay pursuant to this Section 2.20 (or in
respect of which such Borrower would be required to pay increased amounts
pursuant to Section 2.20(a) if such Non-Excluded Taxes or Other Taxes were
withheld) when due to the appropriate taxing authority or fails to remit to the
Administrative Agent or the Canadian Administrative Agent, as the case may be,
the required receipts or other required documentary evidence, such Borrower
shall indemnify the Administrative Agent, the Canadian Administrative Agent and
the Lenders for any payments by them of such Non-Excluded Taxes or Other Taxes
and for any incremental taxes, interest or penalties that become payable by the
Administrative Agent, the Canadian Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender that is a US Term Lender or US Revolving Lender or
that is a CDN Revolving Lender or a Related Affiliate that is making CDN
Revolving Loans to the US Borrower or participating in CDN Letters of Credit
issued for the account of the US Borrower that in any case is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) (a
"Non-US Lender") shall deliver to the US Borrower and the Administrative Agent
(or, in the case of a Participant, to the US Borrower and to the Lender from
which the related participation shall have been purchased) (i) two accurate and
complete copies of IRS Form W-8ECI or W-8BEN, or, (ii) in the case of a Non-US
Lender claiming exemption from United States federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement substantially in the form of Exhibit F and two accurate
and complete copies of IRS Form W-8BEN, or any subsequent versions or successors
to such forms, in each case properly completed and duly executed by such Non-US
Lender claiming complete exemption from, or a reduced rate of, United States
federal withholding tax on all payments by the US Borrower or any US Loan Party
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Non-US Lender on or before the date it becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-US Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-US Lender. Each Non-US Lender shall (i)
promptly notify the US Borrower at any time it determines that it is no longer
in a position to provide any previously delivered certificate to the US Borrower
(or any other form of certification adopted by the United States taxing
authorities for such purpose) and (ii) take such steps as shall not be
disadvantageous to it, in its reasonable judgment, and as may be reasonably
necessary (including the re-designation of its lending office pursuant to
Section 2.23) to avoid any requirement of applicable laws of any such
jurisdiction that any Borrower make any deduction or withholding for taxes from
amounts payable to such Lender. Notwithstanding any other provision of this
paragraph, a Non-US Lender shall not be required to deliver any form pursuant to
this paragraph that such Non-US Lender is not legally able to deliver.
(e) Each Lender that is a US Term Lender or US Revolving Lender or
that is a CDN Revolving Lender or a Related Affiliate that is making CDN
Revolving Loans to the US Borrower or participating in CDN Letters of Credit
issued for the account of the US Borrower that is a United States person (as
such term is defined in Section 7701(a)(30) of the Code) (a "US Lender") shall
deliver to the US Borrower and the Administrative Agent two accurate and
complete copies of IRS Form W-9, or any subsequent versions or successors to
such form. Such forms shall be delivered by each US Lender on or before the date
it becomes a party to this Agreement. In addition, each US Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such US Lender. Each US Lender shall promptly notify the US
Borrower at any time it determines that it is no longer in a position to provide
any previously delivered certifications to the US Borrower (or any other form of
certification adopted by the United States taxing authorities for such purpose).
(f) If the Administrative Agent, the Canadian Administrative Agent or
any Lender determines, in good faith, that it has received a refund of any
Non-Excluded Taxes or Other Taxes as to
56
which it has been indemnified by any Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section 2.20, it shall
promptly pay over such refund to such Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by such Borrower under this
Section 2.20 with respect to the Non-Excluded Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the Administrative Agent,
the Canadian Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that such Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, the Canadian
Administrative Agent or such Lender in the event the Administrative Agent, the
Canadian Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority; provided, further, that such Borrower shall not be
required to repay to the Administrative Agent, the Canadian Administrative Agent
or the Lender an amount in excess of the amount paid over by such party to such
Borrower pursuant to this Section. This paragraph shall not be construed to
require the Administrative Agent, the Canadian Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to any Borrower or any other Person. The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Obligations.
2.21 Indemnity. Each Borrower agrees to indemnify each Lender for, and
to hold each Lender harmless from, any loss or expense (other than lost profits,
including the loss of Applicable Margin) that such Lender may actually sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or continuation of Eurocurrency Loans after such Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment of or
conversion from Eurocurrency Loans after such Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment, conversion or continuation of Eurocurrency Loans on a day that is
not the last day of an Interest Period with respect thereto. A reasonably
detailed certificate as to (showing in reasonable detail the calculation of) any
amounts payable pursuant to this Section submitted to such Borrower by any
Lender shall be presumptively correct in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Obligations.
2.22 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof, in each case, first made after the date hereof, shall make
it unlawful for any Lender to make or maintain Eurocurrency Loans as
contemplated by this Agreement, such Lender shall promptly give notice thereof
to the Administrative Agent (or the Canadian Administrative Agent, as
applicable) and the relevant Borrower, and (a) the commitment of such Lender
hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such and
convert ABR Loans and/or CDN ABR Loans, as applicable, to Eurocurrency Loans
shall be suspended during the period of such illegality and (b) such Lender's
Loans then outstanding as Eurocurrency Loans, if any, shall be converted
automatically to ABR Loans (or CDN ABR Loans, in the case of US$ CDN Revolving
Loans made to the CDN Borrower) on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurocurrency Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the relevant Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to Section 2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or
2.22 with respect to such Lender, it will, if requested by the Borrowers, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of
57
avoiding the consequences of such event; provided, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no material economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders. The relevant Borrower shall be permitted
to replace with a financial institution any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.19, 2.20 or 2.21 (to the
extent a request made by a Lender pursuant to the operation of Section 2.21 is
materially greater than requests made by other Lenders) or gives a notice of
illegality pursuant to Section 2.22, (b) defaults in its obligation to make
Loans hereunder, or (c) that has refused to consent to any waiver or amendment
with respect to any Loan Document that requires such Lender's consent and has
been consented to by the Required Lenders, provided, that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default shall
have occurred and be continuing at the time of such replacement, (iii) prior to
the relevant Borrower having taken any steps to effect such replacement, such
Lender shall not have taken action, under Section 2.23 (within the requirements
of Section 2.23) or otherwise, necessary to eliminate the continued need for
payment of amounts owing pursuant to Section 2.19, 2.20 or 2.21 or to eliminate
such illegality pursuant to Section 2.22, (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the relevant
Borrower shall be liable to such replaced Lender under Section 2.21 (as though
Section 2.21 were applicable) if any Eurocurrency Loan owing to such replaced
Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a
Lender, shall be reasonably satisfactory to the Administrative Agent to the
extent that an assignment to such replacement financial institution of the
rights and obligations being acquired by it would otherwise require the consent
of the Administrative Agent pursuant to Section 10.6(c), (vii) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 10.6, (viii) the relevant Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.19 or 2.20, as the
case may be, in respect of any period prior to the date on which such
replacement shall be consummated, (ix) the replacement financial institution
shall consent to such amendment or waiver and (x) any such replacement shall not
be deemed to be a waiver of any rights that the relevant Borrower, the
Administrative Agent, the Canadian Administrative Agent or any other Lender
shall have against the replaced Lender.
2.25 Bankers' Acceptances. To the extent provided for in Section
2.1(b) or 2.4(b), as applicable, the CDN Borrower may issue Bankers' Acceptances
denominated in CDN Dollars for acceptance and purchase by the C$ CDN Term
Lenders or the CDN Revolving Lenders, as applicable, subject to the following
provisions:
(a) Bankers' Acceptances shall be denominated in CDN Dollars, for
acceptance and purchase by the C$ CDN Term Lenders or the CDN Revolving
Lenders, as applicable, at the Discount Rate;
(b) Each utilization by way of Bankers' Acceptances shall be for a
minimum aggregate face amount (the "Face Amount") of C$500,000 or any
greater amount which is a whole multiple of C$100,000;
(c) The Contract Period for each Bankers' Acceptance shall be a term
of 30, 60, 90 or 180 days, subject to availability;
(d) Each Bankers' Acceptance will mature on a Business Day on or
before the Revolving Termination Date or the scheduled maturity date of the
C$ CDN Term Loans, as applicable;
58
(e) The Canadian Administrative Agent shall have been notified of a
borrowing by way of B/As in accordance with Section 2.5(b) or pursuant to a
notice of conversion under Section 2.13(c) or of rollover under Section
2.26;
(f) An Acceptance Fee shall be payable by the CDN Borrower to the
Canadian Administrative Agent, for the ratable account of the CDN Revolving
Lenders or the C$ CDN Term Lenders, as applicable, in advance upon the
issuance of a Bankers' Acceptance to be accepted by the CDN Revolving
Lenders or the C$ CDN Term Lenders, as the case may be, calculated at the
rate per annum (based on a 365-day year) equal to the Applicable Margin for
Bankers' Acceptances, such Acceptance Fee to be calculated on the Face
Amount of such Bankers' Acceptance and to be computed on the basis of the
number of days in the Contract Period for such Bankers' Acceptance;
(g) The Face Amount of Bankers' Acceptances shall be used when
calculations are made to determine the amount of the CDN Revolving Loans
and the C$ CDN Term Loans, as applicable;
(h) To facilitate availment of the CDN Loans by way of Bankers'
Acceptances, the CDN Borrower hereby appoints each CDN B/A Lender as its
attorney to sign and endorse on its behalf (for the purpose of acceptance
and purchase of Bankers' Acceptances pursuant to this Agreement), in
handwriting or by facsimile or mechanical signature as and when deemed
necessary by such CDN B/A Lender, blank forms of Bankers' Acceptances. In
this respect, it is each CDN B/A Lender's responsibility to maintain an
adequate supply of blank forms of Bankers' Acceptances for acceptance under
this Agreement. The CDN Borrower recognizes and agrees that all Bankers'
Acceptances signed and/or endorsed on its behalf by a CDN B/A Lender shall
bind the CDN Borrower as fully and effectually as if signed in the
handwriting of and duly issued by the proper signing officers of the CDN
Borrower. Each CDN B/A Lender is hereby authorized (for the purpose of
acceptance and purchase of Bankers' Acceptances pursuant to this Agreement)
to issue such Bankers' Acceptances endorsed in blank in such Face Amounts
as may be determined by such CDN B/A Lender; provided, that the aggregate
amount thereof is equal to the aggregate amount of Bankers' Acceptances
required to be accepted and purchased by such CDN B/A Lender. No CDN B/A
Lender shall be liable for any damage, loss or other claim arising by
reason of any loss or improper use of any such instrument except the gross
negligence or willful misconduct of such CDN B/A Lender or its officers,
employees, agents or representatives. On request by the CDN Borrower, a CDN
B/A Lender shall cancel all forms of Bankers' Acceptances which have been
pre-signed or pre-endorsed by or on behalf of the CDN Borrower and which
are held by such CDN B/A Lender and have not yet been issued in accordance
herewith. Each CDN B/A Lender further agrees to retain such records in the
manner and for the statutory periods provided in the various Canadian
provincial or federal statutes and regulations which apply to such CDN B/A
Lender. Each CDN B/A Lender shall maintain a record with respect to
Bankers' Acceptances held by it in blank hereunder, voided by it for any
reason, accepted and purchased by it hereunder, and cancelled at their
respective maturities. Each CDN B/A Lender agrees to provide such records
to the CDN Borrower at the CDN Borrower's expense upon request;
(i) Bankers' Acceptance shall be signed by a duly authorized officer
or officers of the CDN Borrower or by its attorneys, including its
attorneys appointed pursuant to subsection (h) above. Notwithstanding that
any person whose signature appears on any Bankers' Acceptance as a
signatory for the CDN Borrower may no longer be an authorized signatory for
the CDN Borrower at the date of issuance of a Bankers' Acceptance, such
signature shall nevertheless be
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valid and sufficient for all purposes as if such authority had remained in
force at the time of such issuance, and any such Bankers' Acceptance so
signed shall be binding on the CDN Borrower;
(j) Promptly following receipt of a notice of borrowing under Section
2.5(b), notice of conversion under Section 2.13(c) or notice of rollover
under Section 2.26, the Canadian Administrative Agent shall advise the
relevant CDN B/A Lenders of the contents thereof and shall advise each CDN
B/A Lender of the aggregate Face Amount of Bankers' Acceptances to be
accepted by it, the terms thereof, and the BA Discount Proceeds in respect
thereof. The aggregate Face Amount of Bankers' Acceptances to be accepted
by a CDN B/A Lender in respect of any CDN Loan by way of Bankers'
Acceptances shall be equal to (i) such CDN B/A Lender's CDN Revolving
Percentage of the aggregate Face Amount of all Bankers' Acceptances to be
accepted pursuant to such CDN Loan (in the case of a CDN Revolving Loan) or
(ii) such CDN B/A Lender's C$ CDN Term Percentage of the aggregate Face
Amount of all Bankers' Acceptances to be accepted pursuant to such CDN Loan
(in the case of a C$ CDN Term Loan), except, in each case, that if the Face
Amount of a Bankers' Acceptance which would otherwise be accepted by a CDN
B/A Lender would not be C$100,000 or larger multiple thereof, such Face
Amount shall be increased or reduced by the Canadian Administrative Agent
in its discretion to the nearest multiple of C$100,000;
(k) On the date of each issuance of Bankers' Acceptances in accordance
with this Section, each CDN B/A Lender shall purchase from the CDN Borrower
each Bankers' Acceptance accepted by it for a purchase price equal to the
applicable BA Discount Proceeds determined on the basis of the Discount
Rate, and (except to the extent such BA Discount Proceeds are being applied
to repay maturing Bankers' Acceptances in accordance with Section 2.26 or
CDN Prime Loans to be converted in accordance with Section 2.13(c)) shall
remit not later than 2:00 P.M. (New York City time) in immediately
available funds to the Canadian Administrative Agent for the account of the
CDN Borrower at the CDN Funding Office the BA Discount Proceeds so
determined less the Acceptance Fee payable by the CDN Borrower to such CDN
B/A Lender under this Section 2.25 in respect of such Bankers' Acceptances.
The Canadian Administrative Agent will make the funds so received from the
CDN B/A Lenders available to the CDN Borrower at the CDN Funding Office;
(l) Each CDN B/A Lender may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all Bankers' Acceptances
accepted and purchased by it;
(m) The CDN Borrower waives presentment for payment and any other
defense to payment of any amounts then due to a CDN B/A Lender in respect
of Bankers' Acceptance accepted by it pursuant to this Agreement which
might exist solely by reason of such Bankers' Acceptance being held, at the
maturity thereof, by such CDN B/A Lender in its own right, and the CDN
Borrower agrees not to claim any days of grace if such CDN B/A Lender as
holder sues the CDN Borrower on the Bankers' Acceptances for payment of the
amount payable by the CDN Borrower hereunder;
(n) Each Bankers' Acceptance shall mature, and the Face Amount thereof
shall be due and payable by the CDN Borrower, on the maturity date
specified in such Bankers' Acceptance. Any overdue amount of any Bankers'
Acceptance shall bear interest, payable on demand, calculated as set forth
in Section 2.15(e). Any payment of a maturing Bankers' Acceptance shall be
made as provided in Section 2.18 (notwithstanding that any CDN B/A Lender
or any other Person may be the holder thereof at maturity) or Section 2.26,
as applicable. Any such payment shall be made by deposit at the CDN Funding
Office and shall satisfy the CDN Borrower's obligations under the maturing
Bankers' Acceptance to which it relates, and the CDN B/A Lender
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accepting and purchasing the applicable Bankers' Acceptance shall
thereafter be solely responsible for the payment of such Bankers'
Acceptance;
(o) Bankers' Acceptances issued by the CDN Borrower hereunder and
outstanding at any particular time may not be repaid prior to the
respective scheduled maturity thereof except with the prior consent of the
Canadian Administrative Agent, which consent shall only be granted upon
such terms and conditions with respect to timing or otherwise as the
Canadian Administrative Agent shall alone determine in its reasonable
discretion;
(p) Discount Notes.
(i) It is understood that from time to time certain CDN B/A
Lenders may not be authorized to or may, as a matter of general corporate
policy, elect not to accept Bankers' Acceptances (each, a "Discount Note
Lender"); accordingly, any Discount Note Lender may instead purchase
Discount Notes of the CDN Borrower in accordance with the provisions of
this Section 2.25 in lieu of accepting and purchasing Bankers' Acceptances
for its account;
(ii) In connection with any request by the CDN Borrower for the
creation of Bankers' Acceptances, the CDN Borrower shall deliver to each
Discount Note Lender non-interest bearing promissory notes (each, a
"Discount Note") of the CDN Borrower, substantially in the form of Exhibit
H, having the same maturity as the Bankers' Acceptances to be created and
in an aggregate principal amount equal to the Face Amount of the Bankers'
Acceptances that would otherwise have been required to be accepted by such
Discount Note Lender. Each Discount Note Lender hereby agrees to purchase
Discount Notes from the CDN Borrower at the Discount Rate which would have
been applicable if a Bankers' Acceptance had been accepted by it (less any
Acceptance Fee which would have been paid pursuant to this Section 2.25 if
such Discount Note Lender had accepted and purchased a Bankers'
Acceptance), and such Discount Notes shall be governed by the provisions of
this Section 2.25 as if they were Bankers' Acceptances; and
(q) Depository Bills and Notes Act. At the option of any CDN B/A
Lender, Bankers' Acceptances under this Agreement to be accepted and
purchased by such CDN B/A Lender may be issued in the form of depository
bills for deposit with The Canadian Depository for Securities Limited
pursuant to the Depository Bills and Notes Act (Canada). All depository
bills so issued shall be governed by the provisions of Section 2.25 and
Section 2.26.
2.26 Repayment and Renewal of Bankers' Acceptances. With respect to
each CDN Revolving Loan or C$ CDN Term Loan which is outstanding as a Bankers'
Acceptance, at or before 2:00 P.M. (New York City time) three (3) Business Days
prior to the maturity date of such Bankers' Acceptance, the CDN Borrower shall
notify the Canadian Administrative Agent verbally of its intention to reissue
Bankers' Acceptances on such maturity date to provide for the payment of such
maturing Bankers' Acceptance, such verbal notice to be followed by written
confirmation not later than 3:00 P.M. (New York City time) on the same day. The
provisions of Section 2.26 shall apply mutatis mutandis to each such renewal or
conversion of Bankers' Acceptances. If the CDN Borrower fails to give such
notices (or, at the option of the Canadian Administrative Agent, if an Event of
Default has occurred and is continuing), such Bankers' Acceptance so maturing
shall be automatically converted on its maturity date into a CDN Prime Loan.
2.27 Circumstances Making Bankers' Acceptances Unavailable.
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(a) If the Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon the CDN
Borrower, and notifies the CDN Borrower that, by reason of circumstances
affecting the money market, there is no market for Bankers' Acceptances, then:
(i) the right of the CDN Borrower to request a borrowing by way
of Bankers' Acceptances or to convert CDN Prime Loans into Bankers'
Acceptances shall be suspended until the Canadian Administrative Agent
determines that the circumstances causing such suspension no longer exist
and the Canadian Administrative Agent so notifies the CDN Borrower; and
(ii) any notice relating to a borrowing by way of Bankers'
Acceptances which is outstanding at such time shall be deemed to be a
notice requesting a borrowing by way of CDN Prime Loans (all as if it were
a notice given pursuant to Section 2.5).
(b) The Canadian Administrative Agent shall promptly notify the CDN
Borrower and the CDN B/A Lenders of the suspension of the CDN Borrower's right
to request a borrowing by way of Bankers' Acceptance and of the termination of
such suspension.
2.28 Incremental Term Loans. The US Borrower may by written notice to
the Administrative Agent elect to request the establishment of one or more new
term loan commitments (the "New Term Loan Commitments") hereunder, in an
aggregate amount for all such New Term Loan Commitments not in excess of
$100,000,000. Each such notice shall specify the date (each, an "Increased
Amount Date") on which the US Borrower proposes that the New Term Loan
Commitments shall be effective, which shall be a date not less than 10 Business
Days after the date on which such notice is delivered to Administrative Agent;
provided that any Lender offered or approached to provide all or a portion of
any New Term Loan Commitments may elect or decline, in its sole discretion, to
provide such New Term Loan Commitment. Such New Term Loan Commitments shall
become effective as of such Increased Amount Date; provided that (1) no Default
or Event of Default shall exist on such Increased Amount Date before or after
giving effect to such New Term Loan Commitments and to the making of any Tranche
of New Term Loans pursuant thereto; (2) the proceeds of any New Term Loans shall
be used for general corporate purposes of the US Borrower and its Subsidiaries
(including Permitted Acquistions); (3) the New Term Loans shall share ratably in
the Collateral and in any mandatory prepayments of the existing Term Loans; (4)
all terms and documentation with respect to any New Term Loans which differ from
those with respect to the Term Loans under the Term Loan Facility shall be
reasonably satisfactory to the Administrative Agent; (5) such New Term Loan
Commitments shall be effected pursuant to one or more Joinder Agreements
executed and delivered by the US Borrower or the CDN Borrower, as applicable,
the Administrative Agent and one or more New Term Loan Lenders; and (6) the US
Borrower or the CDN Borrower, as applicable, shall deliver or cause to be
delivered any customary legal opinions or other documents reasonably requested
by Administrative Agent in connection with any such transaction. Any New Term
Loans made on an Increased Amount Date that have terms and provisions that
differ from those of the Term Loans outstanding on the date on which such New
Term Loans are made shall be designated as a separate tranche (a "Tranche") of
Term Loans for all purposes of this Agreement.
On any Increased Amount Date on which any New Term Loan Commitments
become effective, subject to the foregoing terms and conditions, each lender
with a New Term Loan Commitment (each, a "New Term Loan Lender") shall make a
loan to the US Borrower or the CDN Borrower, as applicable (a "New Term Loan"),
in an amount equal to its New Term Loan Commitment, and shall become a Lender
hereunder with respect to such New Term Loan Commitment and the New Term Loan
made pursuant thereto.
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The terms and provisions of the New Term Loans and New Term Loan
Commitments of any Tranche shall be, except as otherwise set forth in the
relevant Joinder Agreement, identical to those of the applicable Term Loans.
Each Joinder Agreement may, without the consent of any other Lenders, effect
such amendments to this Agreement and the other Loan Documents as may be
necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of this Section 2.28.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
each US Issuing Lender, in reliance on the agreements of the other US Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("US
Letters of Credit") for the account of the US Borrower or any US Subsidiary
Guarantor on any Business Day during the Revolving Commitment Period in such
form as may be approved from time to time by such Issuing Lender; provided that
no Issuing Lender shall have any obligation to issue any US Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the
L/C Commitment or (ii) the aggregate amount of the Available US Revolving
Commitments would be less than zero. Each US Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
first anniversary of its date of issuance and (y) the date that is three
Business Days prior to the Revolving Termination Date, provided that any US
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) Subject to the terms and conditions hereof, each CDN Issuing
Lender, in reliance on the agreements of the other CDN Revolving Lenders set
forth in Section 3.4(b), agrees to issue letters of credit ("CDN Letters of
Credit") for the account of either Borrower or any Subsidiary Guarantor on any
Business Day during the Revolving Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that no Issuing
Lender shall have any obligation to issue any CDN Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available CDN Revolving
Commitments would be less than zero. Each CDN Letter of Credit shall (i) be
denominated in Dollars or CDN Dollars and (ii) expire no later than the earlier
of (x) the first anniversary of its date of issuance and (y) the date that is
three Business Days prior to the Revolving Termination Date, provided that any
CDN Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above)
(c) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit if such issuance would conflict with, or cause such Issuing
Lender to exceed any limits imposed by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. Each Borrower may from
time to time request that the relevant Issuing Lender issue a Letter of Credit
by delivering to such Issuing Lender at its address for notices specified to
such Borrower by such Issuing Lender an Application therefor, completed to the
reasonable satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may reasonably
request. Upon receipt of any Application, the relevant Issuing Lender will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall any Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the relevant Borrower. Such Issuing Lender shall furnish a
copy of such Letter of Credit to the relevant Borrower promptly following the
issuance thereof. Each Issuing Lender shall
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promptly furnish to the Administrative Agent (in the case of US Letters of
Credit) or the Canadian Administrative Agent (in the case of CDN Letters of
Credit), which shall in turn promptly furnish to the relevant Lenders, notice of
the issuance of each Letter of Credit issued by it (including the amount
thereof).
3.3 Fees and Other Charges. (a) Each Borrower will pay a fee on each
outstanding Letter of Credit requested by it, at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurocurrency Loans under the
Revolving Facility (minus the fronting fee referred to below), on the face
amount of such Letter of Credit, which fee shall be shared ratably among the US
Revolving Lenders (in the case of any US Letter of Credit) or the CDN Revolving
Lenders (in the case of any CDN Letter of Credit) and payable quarterly in
arrears on each Fee Payment Date after the issuance date. In addition, each
Borrower shall pay to each Issuing Lender for its own account a fronting fee on
the aggregate face amount of all outstanding Letters of Credit issued by it to
such Borrower of (i) 0.125% per annum, in the case of Letters of Credit issued
by JPMorgan Chase Bank and (ii) a rate per annum to be agreed, in the case of
Letters of Credit issued by any other Issuing Lender, payable quarterly in
arrears on each Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, each Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by such Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit requested by such Borrower.
3.4 L/C Participations. (a) Each US Issuing Lender irrevocably agrees
to grant and hereby grants to each US L/C Participant, and, to induce such US
Issuing Lender to issue US Letters of Credit, each US L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
such US Issuing Lender, on the terms and conditions set forth below, for such US
L/C Participant's own account and risk an undivided interest equal to such US
L/C Participant's US Revolving Percentage in such US Issuing Lender's
obligations and rights under and in respect of each US Letter of Credit issued
by it and the amount of each draft paid by such US Issuing Lender thereunder.
Each US L/C Participant agrees with each US Issuing Lender that, if a draft is
paid under any US Letter of Credit issued by it for which such US Issuing Lender
is not reimbursed in full by the US Borrower in accordance with the terms of
this Agreement, such US L/C Participant shall pay to such US Issuing Lender upon
demand at such US Issuing Lender's address for notices specified herein an
amount equal to such US L/C Participant's US Revolving Percentage of the amount
of such draft, or any part thereof, that is not so reimbursed. Each US L/C
Participant's obligation to pay such amount shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such US L/C Participant
may have against any US Issuing Lender, the US Borrower or any other Person for
any reason whatsoever, (ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other conditions specified
in Section 5, (iii) any adverse change in the financial condition of the US
Borrower, (iv) any breach of this Agreement or any other Loan Document by the US
Borrower, any other Loan Party or any other US L/C Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing
(b) Each CDN Issuing Lender irrevocably agrees to grant and hereby
grants to each CDN L/C Participant, and, to induce such CDN Issuing Lender to
issue CDN Letters of Credit, each CDN L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from such CDN Issuing
Lender, on the terms and conditions set forth below, for such CDN L/C
Participant's own account and risk an undivided interest equal to such CDN L/C
Participant's CDN Revolving Percentage in such CDN Issuing Lender's obligations
and rights under and in respect of each CDN Letter of Credit issued by it and
the amount of each draft paid by such CDN Issuing Lender thereunder. Each CDN
L/C
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Participant agrees with each CDN Issuing Lender that, if a draft is paid under
any CDN Letter of Credit issued by it for which such CDN Issuing Lender is not
reimbursed in full by the relevant Borrower in accordance with the terms of this
Agreement, such CDN L/C Participant shall pay to such CDN Issuing Lender upon
demand at such CDN Issuing Lender's address for notices specified herein an
amount equal to such CDN L/C Participant's CDN Revolving Percentage of the
amount of such draft, or any part thereof, that is not so reimbursed. Each CDN
L/C Participant's obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such CDN L/C
Participant may have against any CDN Issuing Lender, either Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the financial
condition of either Borrower, (iv) any breach of this Agreement or any other
Loan Document by either Borrower, any other Loan Party or any other CDN L/C
Participant or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(c) If any amount required to be paid by any L/C Participant to any
Issuing Lender pursuant to Section 3.4(a) or 3.4(b), as applicable, in respect
of any unreimbursed portion of any payment made by such Issuing Lender under any
Letter of Credit is paid to such Issuing Lender within three Business Days after
the date such payment is due, such L/C Participant shall pay to such Issuing
Lender on demand an amount equal to the product of (i) such amount, times (ii)
the daily average Federal Funds Effective Rate during the period from and
including the date such payment is required to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) or 3.4(b), as applicable, is not made
available to the relevant Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, such Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans under the US Revolving Facility (or, with respect to any such
amounts in respect of a CDN Letter of Credit, the rate applicable to CDN Prime
Loans under the CDN Revolving Facility). A certificate of the relevant Issuing
Lender submitted to any relevant L/C Participant with respect to any amounts
owing under this Section shall be presumptively correct in the absence of
manifest error.
(d) Whenever, at any time after any Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a) or 3.4(b), as
applicable, such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from a Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrowers. Each Borrower agrees to
reimburse each Issuing Lender on the Business Day following the date on which
such Issuing Lender notifies such Borrower of the date and amount of a draft
presented under any Letter of Credit issued by such Issuing Lending at such
Borrower's request and paid by such Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Lender at its address for notices specified to such Borrower in the
currency in which such Letter of Credit
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is denominated (except that, in the case of any Letter of Credit denominated in
CDN Dollars, in the event that such payment is not made to the relevant Issuing
Lender within three Business Days of when such payment is due, upon notice by
such Issuing Lender to the relevant Borrower, such payment shall be made in
Dollars, in an amount equal to the US Dollar Amount of the amount of such
payment) and in immediately available funds. Interest shall be payable on any
such amounts from the date on which the relevant draft is paid until payment in
full at a rate equal to (i) until the second Business Day next succeeding the
date of the relevant notice, (A) the rate applicable to ABR Loans under the
Revolving Facility (in the case of Letters of Credit denominated in Dollars) or
(B) the rate applicable to CDN Prime Loans under the Revolving Facility (in the
case of Letters of Credit denominated in CDN Dollars) and (ii) thereafter, the
rate set forth in Section 2.15(e).
3.6 Obligations Absolute. Each Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that such
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. Each Borrower also agrees with each
Issuing Lender that such Issuing Lender shall not be responsible for, and such
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among such Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of such Borrower against
any beneficiary of such Letter of Credit or any such transferee, or any other
events or circumstances that, pursuant to applicable law or the applicable
customs and practices promulgated by the International Chamber of Commerce, are
not within the responsibility of such Issuing Lender, except for errors or
omissions resulting from the gross negligence or willful misconduct of such
Issuing Lender or its employees or agents. No Issuing Lender shall be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions resulting from the gross negligence or
willful misconduct of such Issuing Lender or its employees or agents. Each
Borrower agrees that any action taken or omitted by any Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards or care specified in the Uniform Commercial Code of the State
of New York, shall be binding on such Borrower and shall not result in any
liability of such Issuing Lender to such Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the relevant Borrower of the date and amount thereof. The responsibility
of such Issuing Lender to such Borrower in connection with any draft presented
for payment under any Letter of Credit issued by such Issuing Lender shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Canadian Administrative Agent
and the Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the US Borrower and, to the extent such
representations and warranties are applicable to it or its Subsidiaries, the CDN
Borrower hereby represent and warrant to the Administrative Agent, the Canadian
66
Administrative Agent and each Lender, which representations and warranties shall
be deemed made on the Closing Date (immediately before and immediately after
giving effect to the Transaction) and on the date of each borrowing of Loans or
issuance of a Letter of Credit hereunder that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Surviving US Borrower and its consolidated Subsidiaries as
at June 30, 2005 (the "Pro Forma Balance Sheet"), copies of which have
heretofore been furnished to each Lender, has been prepared giving effect (as if
such events had occurred on such date) to (i) the consummation of the
Transaction, (ii) the Loans to be made on the Closing Date and the use of
proceeds thereof, (iii) the payment of fees and expenses in connection with the
foregoing and (iv) any other Acquisition that as of the Closing Date has been
consummated or the consummation of which is probable. The Pro Forma Balance
Sheet has been prepared in good faith by the US Borrower as of the date of
delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of the Surviving US Borrower and its consolidated
Subsidiaries as at June 30, 2005, assuming that the events specified in the
preceding sentence had actually occurred at such date subject to normal year-end
adjustments and the absence of footnotes.
(b) The audited consolidated balance sheets of the Surviving US
Borrower as at December 31, 2002, December 31, 2003 and December 31, 2004, and
the related consolidated statements of income and of cash flows for the fiscal
years ended on such dates, reported on by and accompanied by an unqualified
report from PricewaterhouseCoopers LLP, present fairly in all material respects
the consolidated financial condition of the Surviving US Borrower, as at such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Surviving US Borrower as at June 30, 2005, and the related
unaudited consolidated statements of income and cash flows for the six-month
period ended on such date, present fairly in all material respects the
consolidated financial condition of the Surviving US Borrower, as at such date,
and the consolidated results of its operations and its consolidated cash flows
for the six-month period then ended (subject to normal year-end audit
adjustments and the absence of notes). All such financial statements have been
prepared in accordance with GAAP. Except as set forth on Schedule 4.1, the
Surviving US Borrower and its Subsidiaries do not have, as of June 30, 2005, any
material Guarantee Obligations, contingent liabilities or liabilities for taxes
that are not reflected in the most recent financial statements referred to in
this paragraph.
4.2 No Change. (a) As of the Closing Date, there has been no event,
circumstance, development, change or effect since March 31, 2005 that has had or
would reasonably be expected to have a Closing Date Material Adverse Effect.
(b) At any time after the Closing Date as of which this representation
and warranty is made or deemed made, there has been no event, development or
circumstance since December 31, 2004 that has had or will have a Material
Adverse Effect.
4.3 Existence; Compliance with Law. Each of the Borrowers and their
respective Subsidiaries (other than any Immaterial Subsidiaries) (a) is duly
organized, validly existing and in good standing (or, if applicable, the
equivalent status in any foreign jurisdiction) under the laws of the
jurisdiction of its organization, (b) has the corporate or organizational power
and authority, and the legal right, to own and operate its Property, to lease
the Property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation or limited
liability company and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of Property or the conduct of its business
requires such qualification except to the extent that the failure to be so
qualified or in good standing would not have a Material Adverse Effect and (d)
is in compliance with all Requirements of Law except to the extent that any such
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.
67
4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority to make, deliver and perform the
Loan Documents to which it is a party and, in the case of each Borrower, to
borrow or have Letters of Credit issued hereunder. Each Loan Party has taken all
necessary corporate or other action to authorize the execution, delivery and
performance of the Loan Documents to which it is a party and, in the case of
each Borrower, to authorize the extensions of credit on the terms and conditions
of this Agreement. Except as would not have a Material Adverse Effect, no
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority is required in connection with the
Transaction, the extensions of credit hereunder or the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents, except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and notices
have been obtained or made and are in full force and effect or the failure to
obtain which could not reasonably be expected to have a Material Adverse Effect
and (ii) the filings referred to in Section 4.18. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party that is a party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party that
is a party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and the implied
covenants of good faith and fair dealing.
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not (a) violate
the organizational or governing documents of any of the Loan Parties, (b) except
as would not have a Material Adverse Effect, violate any Requirement of Law or
any Contractual Obligation of either Borrower or any of its Subsidiaries or (c)
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
4.6 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the US Borrower, likely to be commenced within a reasonable time
period against the US Borrower or any of its Subsidiaries or against any of
their Properties or revenues which, taken as a whole, (a) are material with
respect to any of the Loan Documents or (b) would reasonably be expected to have
a Material Adverse Effect.
4.7 No Default. No Default or Event of Default has occurred and is
continuing.
4.8 Ownership of Property; Liens. Except as set forth in Schedule
4.8A, each of the Borrowers and their respective Subsidiaries has title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other Property (other than
Intellectual Property), in each case, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect, and none of such
Property is subject to any Lien except as permitted by the Loan Documents.
Schedule 4.8B lists all real property which is owned or leased by any Loan Party
as of the Closing Date.
4.9 Intellectual Property. Each of the Borrowers and their respective
Subsidiaries owns, or has a valid license to use, all Intellectual Property
necessary for the conduct of its business as currently conducted free and clear
of all Liens, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect. To each Borrower's knowledge, no holding,
injunction, decision or judgment has been rendered by any Governmental Authority
and neither Borrower nor any of its
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Subsidiaries has entered into any settlement stipulation or other agreement
(except license agreements in the ordinary course of business) which would
limit, cancel or question the validity of, or any Loan Party's rights in, any
Intellectual Property in any respect that would reasonably be expected to have a
Material Adverse Effect. To each Borrower's knowledge, no claim has been
asserted or threatened or is pending by any Person challenging or questioning
the use by either Borrower or its Subsidiaries of any Intellectual Property or
the validity or effectiveness of any Intellectual Property, except as would not
reasonably be expected to have a Material Adverse Effect. The use of
Intellectual Property by the Borrowers and their respective Subsidiaries does
not infringe on the rights of any Person in a manner that would reasonably be
expected to have a Material Adverse Effect. The Borrowers and their respective
Subsidiaries take all reasonable actions that in the exercise of their
reasonable business judgment should be taken to protect their Intellectual
Property, including Intellectual Property that is confidential in nature, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
4.10 Taxes. Each of the Borrowers and their respective Subsidiaries
(i) has filed or caused to be filed all federal, state, provincial and other tax
returns that are required to be filed and (ii) has paid all taxes shown to be
due and payable on said returns and all other taxes, fees or other charges
imposed on it or any of its Property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which any reserves required in
conformity with GAAP have been provided on the books of such Borrower or such
Subsidiary, as the case may be), except in each case where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
4.11 Federal Regulations. No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will be used for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the regulations of the Board. If
requested by any Lender (through the Administrative Agent) or the Administrative
Agent, the Borrowers will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
4.12 ERISA. (a) Except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect: neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412(a) of the Code or Section 302(a)(2) of ERISA) has occurred during
the five-year period prior to the date on which this representation is made with
respect to any Plan, and each Plan has complied with the applicable provisions
of ERISA and the Code; no termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period; the present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits; neither Borrower nor any of its Subsidiaries has had a
complete or partial withdrawal from any Multiemployer Plan that has resulted or
would reasonably be expected to result in a liability under ERISA; neither
Borrower nor any of its Subsidiaries would become subject to any liability under
ERISA if such Borrower or such Subsidiary were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made; and no Multiemployer Plan is in
Reorganization or Insolvent.
(b) The Borrowers and their respective Subsidiaries have not incurred,
and do not reasonably expect to incur, any liability under ERISA or the Code
with respect to any plan within the meaning of Section 3(3) of ERISA which is
subject to Title IV of ERISA that is maintained by a Commonly Controlled Entity
(other than Borrower and its Subsidiaries) (a "Commonly Controlled Plan") merely
by virtue of being treated as a single employer under Title IV of ERISA with the
sponsor of such
69
plan that would reasonably be likely to have a Material Adverse Effect and
result in a direct obligation of the Borrowers and their respective Subsidiaries
to pay money.
4.13 Canadian Benefit and Pension Plans. Except as could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect: (i) the Canadian Pension Plans are duly registered under all
applicable provincial pension benefits legislation; (ii) all material
obligations of the Borrowers and their respective Subsidiaries (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with the Canadian Pension Plans, the Canadian Benefit
Plans and the funding agreements therefor have been performed in a timely
fashion; (iii) there are no outstanding disputes concerning the assets held
pursuant to any such funding agreement; (iv) all contributions or premiums
required to be made by either Borrower or any of its Subsidiaries to the
Canadian Pension Plans and the Canadian Benefit Plans have been made in a timely
fashion in accordance with the terms of such plans and applicable laws and
regulations; (v) all employee contributions to the Canadian Pension Plans and
the Canadian Benefit Plans required to be made by way of authorized payroll
deduction have been properly withheld and fully paid into such plans in a timely
fashion; (vi) all reports and disclosures relating to the Canadian Pension Plans
and Canadian Benefit Plans required by any applicable laws or regulations have
been filed or distributed in a timely fashion; (vii) to the knowledge of the
Borrowers, there have been no improper withdrawals, or applications of, the
assets of any of the Canadian Pension Plans; (viii) there have been no partial
terminations of any Canadian Pension Plan and, to the knowledge of the
Borrowers, no circumstances exist or have existed that could result, or be
reasonably anticipated to result, in the declaration of a partial termination of
any Canadian Pension Plan under applicable laws; (ix) no amount is owing by or
in respect of any of the Canadian Pension Plans under the ITA or any provincial
taxation statute; (x) each of the Canadian Pension Plans which is a defined
benefit registered pension plan is fully funded both on an ongoing basis and on
a solvency basis pursuant to actuarial assumptions and methods which are
utilized in the valuation last filed with the applicable governmental
authorities for such plan and which are consistent with generally accepted
actuarial principles; and (xi) the Borrowers, after diligent enquiry, have
neither any knowledge, nor any grounds for believing, that any of the Canadian
Pension Plans is the subject of an investigation, any other proceeding, an
action or a claim.
4.14 Investment Company Act. No Loan Party is an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the Borrowers at the date of this Agreement
(and after giving effect to the Company Reorganization). Schedule 4.15 sets
forth as of the Closing Date the name and jurisdiction of incorporation of each
Subsidiary and, as to each Subsidiary, the percentage of each class of Capital
Stock owned by each Loan Party (and after giving effect to the Company
Reorganization).
(b) As of the Closing Date (and after giving effect to the Company
Reorganization), except as set forth on Schedule 4.15, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to officers, employees or
directors and directors' qualifying shares) of any nature relating to any
Capital Stock of Holdings, the Borrowers or any of their respective
Subsidiaries.
4.16 Environmental Matters. Other than exceptions to any of the
following that would not reasonably be expected to have a Material Adverse
Effect: none of the US Borrower or any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law; (ii) has
become subject to
70
any Environmental Liability; or (iii) knows of any facts or circumstances which
are reasonably likely to form the basis for any Environmental Liability.
4.17 Accuracy of Information, etc. No statement or information
(excluding the projections and pro forma financial information referred to
below) contained in this Agreement, any other Loan Document or any certificate
furnished to the Administrative Agent, the Canadian Administrative Agent or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or the other Loan Documents
when taken as a whole, contained as of the date such statement, information, or
certificate was so furnished, any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements contained
herein or therein not materially misleading. The projections and pro forma
financial information contained in the materials referenced above are based upon
good faith estimates and assumptions believed by management of the Borrowers to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
4.18 Security Documents. (a) Each of the Guarantee and Collateral
Agreement and the CDN Guarantee and Collateral Agreement is effective to create
in favor of the Administrative Agent or the Canadian Administrative Agent, as
the case may be, for the benefit of the relevant Lenders, a legal, valid and
enforceable security interest in the Collateral described therein (including any
proceeds of any item of Collateral). In the case of (i) the Pledged Securities
described in the Guarantee and Collateral Agreement and the CDN Guarantee and
Collateral Agreement, when any stock certificates or notes, as applicable,
representing such Pledged Securities are delivered to the Administrative Agent
or the Canadian Administrative Agent, as applicable, and (ii) the other
Collateral described in the Guarantee and Collateral Agreement and the CDN
Guarantee and Collateral Agreement, when financing statements and similar
Canadian filings in appropriate form are filed in the offices specified on
Schedule 4.18(a) (which financing statements have been duly completed and
executed (as applicable) and delivered to the Administrative Agent or the
Canadian Administrative Agent, as applicable) and such other filings as are
specified on Schedule 3 to each of the Guarantee and Collateral Agreement and
the CDN Guarantee and Collateral Agreement are made, the Administrative Agent or
the Canadian Administrative Agent, as the case may be, shall have a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral (including any proceeds of any item of
Collateral) (to the extent a security interest in such Collateral can be
perfected through the filing of financing statements and other similar Canadian
filings in the offices specified on Schedule 4.18(a) and the filings specified
on Schedule 3 to each of the Guarantee and Collateral Agreement and the CDN
Guarantee and Collateral Agreement, and through the delivery of the Pledged
Securities required to be delivered on the Closing Date), as security for the
Obligations (or the CDN Obligations, in the case of the CDN Guarantee and
Collateral Agreement), in each case prior and superior in right to any other
Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 7.3 and Liens having priority by operation of law) to the
extent required by the Guarantee and Collateral Agreement or the CDN Guarantee
and Collateral Agreement, as applicable.
(b) Upon the execution and delivery of any Mortgage to be executed and
delivered pursuant to Section 6.8(b), such Mortgage shall be effective to create
in favor of the Administrative Agent or the Canadian Administrative Agent, as
the case may be, for the benefit of the relevant Lenders a legal, valid and
enforceable Lien on the mortgaged property described therein and proceeds
thereof; and when such Mortgage is filed in the recording office designated by
the relevant Borrower, such Mortgage shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such mortgaged property and the proceeds thereof, as security for the
Obligations (or the CDN Obligations, in the case of any Mortgage executed and
delivered by a CDN Loan Party) (as defined in the
71
relevant Mortgage), in each case prior and superior in right to any other Person
(other than Liens permitted by Section 7.3 or other encumbrances or rights
permitted by the relevant Mortgage).
4.19 Solvency. Each Loan Party is, and after giving effect to the
Transaction and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be, Solvent.
4.20 Regulation H. No Mortgage encumbers improved real property which
is located in an area that has been identified by the Secretary of Housing and
Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of 1968
(except any mortgaged properties as to which such flood insurance as required by
Regulation H has been obtained and is in full force and effect).
4.21 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" and "Designated Senior Indebtedness" of the US Borrower under and
as defined in the Senior Subordinated Note Indenture. The obligations of each US
Subsidiary Guarantor under the Guarantee and Collateral Agreement constitute
"Guarantor Senior Indebtedness" of such Subsidiary Guarantor under and as
defined in the Senior Subordinated Note Indenture. To the extent required for
the Obligations to constitute "Designated Senior Indebtedness" under the Senior
Subordinated Notes Indenture, the US Borrower hereby designates the Obligations
as such.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction (or waiver), prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement; Security Documents. The Administrative Agent
shall have received (i) this Agreement, executed and delivered by the
Administrative Agent, the Canadian Administrative Agent, the Borrowers and
each Person listed on Schedule 1.1A, (ii) the Guarantee and Collateral
Agreement, executed and delivered by Holdings, the US Borrower and each US
Subsidiary Guarantor, (iii) the CDN Guarantee and Collateral Agreement,
executed and delivered by each CDN Loan Party, and (iv) an Acknowledgement
and Consent in the form attached to the Guarantee and Collateral Agreement
or the CDN Guarantee and Collateral Agreement, as applicable, executed and
delivered by each Issuer (as defined therein), if any, that is not a Loan
Party.
(b) Transaction, etc. The following transactions shall be consummated
(the events described in clauses (i) through (iv) below, the
"Transaction"):
(i) (A) Sunshine Merger II shall have acquired all of the issued
and outstanding common stock or other equity interests of the Surviving US
Borrower as a result of the merger of Sunshine Merger Corporation with and
into the Surviving US Borrower pursuant to the Initial Merger Agreement,
(B) NSULC 2 shall have acquired all of the issued and outstanding common
stock or other equity interests of the Surviving US Borrower as a result of
the merger of Sunshine Merger II with and into the Surviving US Borrower
pursuant to the Second Merger Agreement, (C) NSULC 2 shall have sold all of
the issued and outstanding common stock of the Surviving US Borrower to the
Initial US Borrower in exchange for the elimination of certain indebtedness
owed by NSULC 2 to the Initial US Borrower and (D) Holdings shall have
acquired all of the issued and outstanding common stock or other equity
interests of the Surviving US Borrower as a
72
result of the merger of the Initial US Borrower with and into the Surviving
US Borrower pursuant to the Third Merger Agreement (collectively, the "US
Merger Transactions");
(ii) Holdings shall have received (and shall have contributed to
the Initial US Borrower) cash from the proceeds of equity issued by
Holdings to funds managed by the Sponsor, and rollover equity contributed
by Xxxxxxx X. Xxxxx in an amount which, when added to the amount of such
cash equity proceeds, equals at least 45% of the pro forma capitalization
of the US Borrower after giving effect to the Transaction;
(iii) the Initial US Borrower shall have received at least
$205,000,000 in gross cash proceeds from the issuance of the Senior
Subordinated Notes; and
(iv) The Administrative Agent shall have received satisfactory
evidence that (A) in the case of the Existing US Credit Agreement, it shall
have been terminated and all amounts thereunder shall have been paid in
full and reasonably satisfactory arrangements shall have been made for the
termination of all Liens granted in connection therewith and (B) in the
case of the Existing CDN Credit Agreement, all commitments thereunder shall
have been terminated and all amounts thereunder (other than in respect of
the Existing Letter of Credit) shall have been paid in full and reasonably
satisfactory arrangements shall have been made for the termination of all
Liens granted in connection therewith (other than Liens on cash collateral
in respect of the Existing Letter of Credit in an amount not exceeding the
face amount thereof).
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Surviving US Borrower for the 2002, 2003 and
2004 fiscal years and (iii) unaudited interim consolidated financial
statements of the Surviving US Borrower for each fiscal quarter ended after
the date of the latest applicable financial statements delivered pursuant
to clause (ii) of this paragraph and at least 40 days prior to the Closing
Date.
(d) Approvals. All material governmental approvals and shareholder
approvals of the US Borrower necessary in connection with the Transaction,
and the transactions contemplated hereby to be entered into as of the
Closing Date shall have been obtained and be in full force and effect, and
all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority which would restrain or
prevent the Transaction or the financing contemplated hereby.
(e) Fees. The Agents shall have received all fees required to be paid
(including those to be passed on to the Lenders), and all reasonable
out-of-pocket expenses for which reasonably detailed invoices have been
presented (including reasonable fees, disbursements and other charges of
counsel to the Administrative Agent and the Canadian Administrative Agent),
on or before the Closing Date. All such amounts will be paid with proceeds
of Loans made on the Closing Date and will be reflected in the funding
instructions given by the Initial US Borrower to the Administrative Agent
on or before the Closing Date.
(f) Solvency Certificate. The Administrative Agent shall have received
a solvency certificate signed by the chief financial officer on behalf of
the US Borrower, substantially in the form of Exhibit G hereto.
(g) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions in which
Uniform Commercial Code financing statements, Personal Property Security
Act financing statements, or other filings or recordations should be
73
made to evidence or perfect security interests in all assets of the Loan
Parties, and such search shall reveal no liens on any of the assets of the
Loan Party, except for Liens permitted by Section 7.3 or liens to be
discharged on or prior to the Closing Date.
(h) Closing Certificate. The Administrative Agent shall have received
a certificate of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions and attachments.
(i) Legal Opinions. The Administrative Agent and the Canadian
Administrative Agent shall have received the following executed legal
opinions:
(i) the legal opinion of Xxxxxx & Xxxxxxx LLP, counsel to
Holdings, the US Borrower and its Subsidiaries, substantially in the
form of Exhibit E-1;
(ii) the legal opinion of Torys LLP, counsel to the CDN Borrower
and its Subsidiaries, substantially in the form of Exhibit E-2; and
(iii) the legal opinion of such special and local counsel as may
be reasonably required by the Administrative Agent.
(j) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
Agent or the Canadian Administrative Agent, as applicable, shall have
received (i) the certificates representing the shares, if any, of Capital
Stock pledged pursuant to the Guarantee and Collateral Agreement and the
CDN Guarantee and Collateral Agreement, together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof and (ii) each promissory note (if any),
excluding promissory notes issued by directors, officers and employees of
any Loan Party, pledged to the Administrative Agent or the Canadian
Administrative Agent, as applicable, pursuant to the Guarantee and
Collateral Agreement and the CDN Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank) by the pledgor thereof.
(k) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code or Personal Property
Security Act financing statement) required by the Security Documents to be
filed, registered or recorded in order to create in favor of the
Administrative Agent or the Canadian Administrative Agent, as applicable,
for the benefit of the relevant Lenders, a perfected Lien on the Collateral
described therein with the priority provided for in the Security Documents,
shall have been delivered to the Administrative Agent or the Canadian
Administrative Agent, as applicable, in proper form for filing,
registration or recordation.
(l) Insurance. The Administrative Agent and the Canadian
Administrative Agent shall have received insurance certificates satisfying
the requirements of Section 6.5(c).
(m) Ratings. The Facilities shall have received a rating from each of
Xxxxx'x and S&P.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any Loan or to issue or participate in any Letter of Credit
hereunder on any date (including, without limitation, its initial extension of
credit) is subject to the satisfaction of the following conditions precedent:
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(a) Representations and Warranties. (i) With respect to any extension
of credit made on the Closing Date, the Specified Representations shall be
true and correct in all material respects and (ii) with respect to any
extension of credit made after the Closing Date, each of the
representations and warranties made by any Loan Party in or pursuant to the
Loan Documents shall be true and correct in all material respects, in each
case on and as of such date as if made on and as of such date except to the
extent that such representations and warranties relate to an earlier date,
in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of either
Borrower hereunder shall constitute a representation and warranty by such
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The US Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or any Agent hereunder (other than contingent or
indemnification obligations not then due), the US Borrower shall and shall cause
each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent for
delivery to each Lender (which may be delivered via posting on Intralinks):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the US Borrower, a copy of (i) the audited
consolidated balance sheet of the US Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures as of the end of and for
the previous year, reported on without qualification arising out of the
scope of the audit, by PricewaterhouseCoopers LLP or other independent
certified public accountants of nationally recognized standing and (ii) the
unaudited consolidated balance sheet of the consolidated CDN Subsidiaries
of the US Borrower as at the end of such fiscal year and the related
unaudited consolidated statement of operation for such year, setting forth
in each case in comparative form the figures as of the end of and for the
previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to the lack of notes); and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the US Borrower, (i) the unaudited consolidated balance sheet of
the US Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the
end of such quarter and (ii) the unaudited consolidated balance sheet of
the consolidated CDN Subsidiaries of the US Borrower as at the end of such
quarter and the related unaudited consolidated statement of operation for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures as of
the end of and for the corresponding period in the previous year, certified
by a Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments and the lack of notes);
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all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
Documents required to be delivered pursuant to this Section 6.1 (to the extent
any such documents are included in materials otherwise filed with the SEC) may
be delivered by posting such documents electronically with notice of such
posting to the Administrative Agent and each Lender and if so posted, shall be
deemed to have been delivered on the date (i) on which the US Borrower posts
such documents, or provides a link thereto on the US Borrower's website on the
Internet at xxx.xxxxxxx.xxx, or (ii) on which such documents are posted on the
US Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent for delivery to each Lender, or, in the case of clause (g), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer on
behalf of the US Borrower stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) (x) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the US Borrower and its Subsidiaries with the provisions of
Section 7.1 as of the last day of the fiscal quarter or fiscal year of the
US Borrower, as the case may be, and (y) to the extent not previously
disclosed to the Administrative Agent, a description of any new Subsidiary
and of any change in the jurisdiction of organization of any other Loan
Party and a listing of any material Intellectual Property filings by any
Loan Party since the date of the most recent list delivered pursuant to
this clause (y) (or, in the case of the first such list so delivered, since
the Closing Date), together with such documents, if any, required to be
filed or recorded pursuant to Section 6.8 in order to perfect the security
interest of the Administrative Agent or the Canadian Administrative Agent,
as applicable, therein;
(c) as soon as available, and in any event no later than 45 days after
the end of each fiscal year of the US Borrower, a detailed consolidated
budget for the following fiscal year (including a projected consolidated
balance sheet of the US Borrower and its Subsidiaries as of the end of the
following fiscal year, the related consolidated statements of projected
cash flow, projected changes in financial position and projected income)
(collectively, the "Annual Operating Budget");
(d) promptly after the same are sent, copies of all financial
statements and reports that Holdings or the US Borrower sends to the
holders of any class of its debt securities or public equity securities
(except for Permitted Investors) and, promptly after the same are filed,
copies of all financial statements and reports that Holdings or the US
Borrower may make to, or file with, the SEC, in each case to the extent not
already provided pursuant to Section 6.1 or any other clause of this
Section 6.2;
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(e) promptly upon delivery thereof to the US Borrower and to the
extent permitted, copies of any accountants' letters addressed to its Board
of Directors (or any committee thereof);
(f) prior to the effectiveness thereof, copies of substantially final
drafts of any proposed material amendment, supplement, waiver or other
modification with respect to the Senior Subordinated Note Indenture; and
(g) promptly, such additional financial and other information as the
Administrative Agent (for its own account or upon the request from any
Lender) may from time to time reasonably request.
Documents required to be delivered pursuant to this Section 6.2 (to the extent
any such documents are included in materials otherwise filed with the SEC) may
be delivered by posting such documents electronically with notice of such
posting to the Administrative Agent and each Lender and if so posted, shall be
deemed to have been delivered on the date (i) on which the US Borrower posts
such documents, or provides a link thereto on the US Borrower's website on the
Internet at xxx.xxxxxxx.xxx, or (ii) on which such documents are posted on the
US Borrower's behalf on IntraLinks/IntraAgency or another relevant website, if
any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent).
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material taxes, assessments and governmental charges (other than Indebtedness),
except (a) where the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and reserves required in conformity with
GAAP with respect thereto have been provided on the books of the US Borrower or
its Subsidiaries, as the case may be, or (b) to the extent that failure to pay
or satisfy such obligations could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence, etc; Compliance.
(a) Preserve, renew and keep in full force and effect its corporate or other
existence and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 7.4 and except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property useful
and necessary in its business in reasonably good working order and condition,
ordinary wear and tear excepted, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Take all reasonable and necessary steps, including, without
limitation, in any proceeding before the United States Patent and Trademark
Office, the United States Copyright Office or the Canadian Intellectual Property
Office, to maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the material Intellectual
Property, including, without limitation, filing of applications for renewal,
affidavits of use and affidavits of incontestability, except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect.
(c) Maintain insurance with financially sound and reputable insurance
companies insurance on all its material Property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.
All such insurance shall,
77
to the extent customary (but in any event, not including business interruption
insurance and personal injury insurance) (i) provide that no cancellation
thereof shall be effective until at least 10 days after receipt by the
Administrative Agent or the Canadian Administrative Agent, as applicable, of
written notice thereof and (ii) name the Administrative Agent or the Canadian
Administrative Agent, as applicable, as insured party or loss payee.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all material
dealings and transactions in relation to its business and activities, (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records upon reasonable
notice and during normal business hours (provided that such visits shall be
coordinated by the Administrative Agent, and in no event shall there be more
than one such visit per year except during the continuance of an Event of
Default), (c) permit representatives of any Lender to have reasonable
discussions regarding the business, operations, properties and financial and
other condition of Holdings, the US Borrower and its Subsidiaries with officers
and employees of Holdings, the US Borrower and its Subsidiaries and (d) permit
representatives of the Administrative Agent and the Canadian Administrative
Agent to have reasonable discussions regarding the business, operations,
properties and financial and other condition of the US Borrower and its
Subsidiaries with its independent certified public accountants; provided, that
any such discussions with the US Borrower's independent certified public
accountants at the US Borrower's expense shall, except while an Event of Default
has occurred and is continuing, be limited to one meeting per calendar year.
6.7 Notices. Promptly upon a Responsible Officer of any Loan Party
obtaining knowledge thereof, give notice to the Administrative Agent (who shall
promptly notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, investigation or proceeding which may exist at any
time between Holdings, the US Borrower or any of its Subsidiaries and any
other Person, that in either case, could reasonably be expected to have a
Material Adverse Effect;
(c) the following events, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, as soon as
possible and in any event within 30 days after the US Borrower or any
Subsidiary knows thereof: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a Plan,
Canadian Benefit Plan or Canadian Pension Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, (ii) the
institution of proceedings or the taking of any other action by the PBGC or
either Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan, (iii) the occurrence of any similar events with
respect to a Commonly Controlled Plan, Canadian Benefit Plan or Canadian
Pension Plan, that would reasonably be likely to result in a direct
obligation of the US Borrower or any of its Subsidiaries to pay money, (iv)
the occurrence of an unfunded liability on a solvency or a going concern
basis in any Canadian Pension Plan, or (v) the termination or partial
termination of a Canadian Pension Plan or the occurrence of any event that
could result in the full or partial termination of any Canadian Pension
Plan;
(d) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect; and
78
(e) the acquisition of any Property after the Closing Date in which a
security interest is required to be created or perfected pursuant to
Section 6.8.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the US Borrower or the relevant Subsidiary proposes to
take with respect thereto.
6.8 Additional Collateral, etc. (a) With respect to any Property
(other than Vehicles, bank accounts, cash, Cash Equivalents, Foreign Cash
Equivalents and other assets expressly excluded from the Collateral pursuant to
the Security Documents) located in the United States or Canada having a value,
individually or in the aggregate of at least $1,000,000 acquired after the
Closing Date by any Loan Party other than Holdings (other than (x) any interests
in real property and any Property described in paragraph (c) or paragraph (d) of
this Section, (y) any Property subject to a Lien expressly permitted by Section
7.3(g) and (z) Instruments, Certificated Securities, Securities and Chattel
Paper, which are referred to in the last sentence of this paragraph (a)) as to
which the Administrative Agent or the Canadian Administrative Agent, as
applicable, for the benefit of the relevant Lenders does not have a perfected
Lien, promptly (i) give notice of such Property to the Administrative Agent (and
the Canadian Administrative Agent, if applicable) and execute and deliver to the
Administrative Agent or the Canadian Administrative Agent, as applicable, such
amendments to the Guarantee and Collateral Agreement or the CDN Guarantee and
Collateral Agreement, as applicable, or such other documents as the
Administrative Agent or the Canadian Administrative Agent, as the case may be,
reasonably requests to grant to the Administrative Agent or the Canadian
Administrative Agent, as applicable, for the benefit of the relevant Lenders a
security interest in such Property and (ii) take all actions reasonably
requested by the Administrative Agent or the Canadian Administrative Agent, as
the case may be, to grant to the Administrative Agent or the Canadian
Administrative Agent, as applicable, for the benefit of the relevant Lenders a
perfected security interest (to the extent required by the Security Documents
and with the priority required by Section 4.18) in such Property (with respect
to Property of a type owned by a Loan Party as of the Closing Date to the extent
the Administrative Agent or the Canadian Administrative Agent, as the case may
be, for the benefit of the relevant Lenders, has a perfected security interest
in such Property as of the Closing Date), including, without limitation, the
filing of Uniform Commercial Code or Personal Property Security Act financing
statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or the CDN Guarantee and Collateral Agreement, as the case
may be, or by law or as may be requested by the Administrative Agent or the
Canadian Administrative Agent, as the case may be. If any amount in excess of
$1,000,000 payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument, Certificated Security, Security or Chattel
Paper (or, if more than $1,000,000 in the aggregate payable under or in
connection with the Collateral shall become evidenced by Instruments,
Certificated Securities, Securities or Chattel Paper), such Instrument,
Certificated Security, Security or Chattel Paper shall be promptly delivered to
the Administrative Agent or the Canadian Administrative Agent, as applicable,
duly indorsed in a manner reasonably satisfactory to the Administrative Agent or
the Canadian Administrative Agent, as applicable, to be held as Collateral
pursuant to this Agreement; provided, however, that in no event shall any
Pledged Notes issued by directors, officers or employees of any Loan Party be
required to be delivered to the Administrative Agent or the Canadian
Administrative Agent.
(b) With respect to any fee interest in any real property located in
the United States or Canada having a value (together with improvements thereof)
of at least $1,000,000 acquired after the Closing Date by any Loan Party other
than Holdings (other than any such real property subject to a Lien expressly
permitted by Section 7.3(g)), (i) give notice of such acquisition to the
Administrative Agent (and the Canadian Administrative Agent, in the case of any
such Canadian property) and, if requested by the Administrative Agent or the
Canadian Administrative Agent, as applicable, execute and deliver a first
priority Mortgage (subject to liens permitted by Section 7.3) in favor of the
Administrative Agent or the
79
Canadian Administrative Agent, as applicable, for the benefit of the relevant
Lenders, covering such real property (provided, that no Mortgage nor survey
shall be obtained if the Administrative Agent or the Canadian Administrative
Agent, as applicable, determines in consultation with the US Borrower that the
costs of obtaining such Mortgage or survey are excessive in relation to the
value of the security to be afforded thereby), (ii) if reasonably requested by
the Administrative Agent or the Canadian Administrative Agent, as applicable,
(A) provide the Lenders with title and extended coverage insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the
Administrative Agent or the Canadian Administrative Agent, as applicable) as
well as a current ALTA survey (or with respect to any Canadian real property, a
survey prepared by a certified land surveyor reasonably acceptable to the
Canadian Administrative Agent) thereof, together with a surveyor's certificate
and (B) use commercially reasonable efforts to obtain any consents or estoppels
reasonably deemed necessary by the Administrative Agent or the Canadian
Administrative Agent, as applicable, in connection with such Mortgage, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
(iii) if requested by the Administrative Agent or the Canadian Administrative
Agent, as applicable, deliver to the Administrative Agent or the Canadian
Administrative Agent, as applicable, legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent or the Canadian
Administrative Agent, as applicable.
(c) With respect to any new Domestic Subsidiary that is a Material
Subsidiary created or acquired (other than any such Subsidiary acquired and
subsequently Disposed of by such Loan Party pursuant to the Company
Reorganization) after the Closing Date (which, for the purposes of this
paragraph, shall include (x) any previously non-wholly owned Domestic Subsidiary
that becomes wholly owned and is a Material Subsidiary and (y) any Domestic
Subsidiary that was previously an Immaterial Subsidiary and becomes a Material
Subsidiary) by any Loan Party other than Holdings, promptly (i) give notice of
such acquisition or creation to the Administrative Agent and, if requested by
the Administrative Agent, execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Administrative Agent reasonably deems necessary to grant to the
Administrative Agent for the benefit of the Lenders a perfected security
interest (to the extent required by the Security Documents and with the priority
required by Section 4.18) in the Capital Stock of such new Subsidiary that is
owned by such Loan Party, (ii) deliver to the Administrative Agent the
certificates, if any, representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
such Loan Party, and (iii) if such new Subsidiary is a wholly owned Domestic
Subsidiary, cause such new Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement and (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
security interest (to the extent required by the Security Documents and with the
priority required by Section 4.18) in the Collateral described in the Guarantee
and Collateral Agreement with respect to such new Subsidiary (to the extent the
Administrative Agent, for the benefit of the Lenders, has a perfected security
interest in the same type of Collateral as of the Closing Date), including,
without limitation, the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be required by the Guarantee and Collateral
Agreement or by law or as may be reasonably requested by the Administrative
Agent.
(d) With respect to any new wholly owned CDN Subsidiary that is a
Material Subsidiary created or acquired (other than any such Subsidiary acquired
and subsequently Disposed of by such Loan Party pursuant to the Company
Reorganization) after the Closing Date (which, for the purposes of this
paragraph, shall include (x) any previously non-wholly owned CDN Subsidiary that
becomes wholly owned and is a Material Subsidiary and (y) any CDN Subsidiary
that was previously an Immaterial Subsidiary and becomes a Material Subsidiary)
by any Loan Party other than Holdings, promptly (in addition to the actions
taken with respect to such CDN Subsidiary with respect to the Guarantee and
80
Collateral Agreement pursuant to paragraph (e) below) cause such new Subsidiary
(A) to become a party to the CDN Guarantee Collateral Agreement and (B) to take
such actions necessary or advisable to grant to the Canadian Administrative
Agent for the benefit of the relevant Lenders a perfected security interest (to
the extent required by the Security Documents and with the priority required by
Section 4.18) in the Collateral described in the CDN Guarantee and Collateral
Agreement with respect to such new Subsidiary (to the extent the Canadian
Administrative Agent, for the benefit of the relevant Lenders, has a perfected
security interest in the same type of Collateral as of the Closing Date),
including, without limitation, the filing of Personal Property Security Act
financing statements and related filings in such jurisdictions as may be
required by the CDN Guarantee and Collateral Agreement, or by law or as may be
reasonably requested by the Canadian Administrative Agent.
(e) With respect to any new first tier Foreign Subsidiary that is a
Material Subsidiary (including any CDN Subsidiary) created or acquired (other
than any such Subsidiary acquired and subsequently Disposed of by such Loan
Party pursuant to the Company Reorganization) after the Closing Date (which, for
the purposes of this paragraph, shall include any Foreign Subsidiary that
previously was an Immaterial Subsidiary and becomes a Material Subsidiary) by
any Loan Party other than Holdings, promptly (i) give notice of such acquisition
or creation to the Administrative Agent (and the Canadian Administrative Agent,
if applicable) and, if requested by the Administrative Agent (or the Canadian
Administrative Agent, if applicable), execute and deliver to the Administrative
Agent (or the Canadian Administrative Agent, as applicable) such amendments to
the Guarantee and Collateral Agreement (or the CDN Guarantee and Collateral
Agreement, as applicable) or such other documents as the Administrative Agent
(or the Canadian Administrative Agent, as applicable) deems necessary or
reasonably advisable in order to grant to the Administrative Agent (or the
Canadian Administrative Agent, as applicable), for the benefit of the relevant
Lenders, a perfected security interest (to the extent required by the Security
Documents and with the priority required by Section 4.18) in the Capital Stock
of such new Subsidiary that is owned by such Loan Party (provided, that in no
event shall more than 65% of the total outstanding voting Capital Stock of any
Foreign Subsidiary (other than any CDN Subsidiary owned by a CDN Loan Party) be
required to be so pledged), and (ii) deliver to the Administrative Agent (or the
Canadian Administrative Agent, as applicable) the certificates, if any,
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of such Loan Party, and take
such other action as may be necessary or, in the reasonable opinion of the
Administrative Agent (or the Canadian Administrative Agent, if applicable),
necessary to perfect or ensure appropriate priority the Lien of the
Administrative Agent (or the Canadian Administrative Agent, as applicable)
thereon.
6.9 Further Assurances. Maintain the security interest created by the
Security Documents as a perfected security interest having at least the priority
described in Section 4.18 (to the extent such security interest can be perfected
through the filing of UCC-1 or Personal Property Security Act financing
statements or similar Canadian filings, the Intellectual Property filings to be
made pursuant to Schedule 3 of the Guarantee and Collateral Agreement or the CDN
Guarantee and Collateral Agreement, as applicable, or the delivery of Pledged
Securities required to be delivered under the Guarantee and Collateral Agreement
or the CDN Guarantee and Collateral Agreement, as applicable), subject to the
rights of the Loan Parties under the Loan Documents to dispose of the
Collateral. From time to time the Loan Parties shall execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take all such actions, as the Administrative Agent (or the
Canadian Administrative Agent, as the case may be) may reasonably request for
the purposes of implementing or effectuating the provisions of this Agreement
and the other Loan Documents, or of renewing the rights of the Administrative
Agent, the Canadian Administrative Agent and the Lenders with respect to the
Collateral as to which the Administrative Agent (or the Canadian Administrative
Agent, as the case may be), for the ratable benefit of the relevant Lenders, has
a perfected Lien pursuant hereto or thereto, including, without limitation,
filing any financing or continuation statements or
81
financing change statements under the Uniform Commercial Code or Personal
Property Security Act (or other similar laws) in effect in any jurisdiction with
respect to the security interests created hereby.
6.10 Use of Proceeds. The proceeds of the Term Loans shall be used to
effect the Transaction and to pay related fees and expenses. The proceeds of the
Revolving Loans, the Swingline Loans and the Letters of Credit shall be used to
finance a portion of the Transaction (including purchase price adjustments), to
finance Permitted Acquisitions and for other general corporate purposes of
Holdings and its Subsidiaries not prohibited by this Agreement.
6.11 Post Closing Leasehold Mortgages. Use commercially reasonable
efforts (a) to deliver, as soon as reasonably possible after the Closing Date,
(i) a perfected first priority leasehold mortgage in favor of the Administrative
Agent for the benefit of the Lenders with respect to each of the leased
properties listed on Schedule 6.11 and (ii) a valid landlord's consent and lien
waiver with respect to each thereof, in each case on terms and pursuant to
documentation reasonably satisfactory to the Administrative Agent and (b) to the
extent that the representation in Section 4.18(a) shall not have been true and
correct in all material respects as of the Closing Date, to cause such
representation to be true and correct in all material respects promptly
thereafter.
6.12 Completion of Company Reorganization. Cause (a) the Closing Date
Reorganization to be consummated in all material respects on the Closing Date
and (b) the CDN Reorganization to be consummated in all material respects
promptly thereafter.
SECTION 7. NEGATIVE COVENANTS
The US Borrower hereby agrees that, so long as the Commitments remain
in effect, any Letter of Credit remains outstanding or any Loan or other amount
is owing to any Lender or any Agent hereunder (other than contingent or
indemnification obligations not then due), the US Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio of the US Borrower as at the last day of any period of four
consecutive fiscal quarters of the US Borrower ending during any period set
forth below to exceed the ratio set forth below opposite such period:
Consolidated
Period Leverage Ratio
------ --------------
Q2 2006 - Q4 2006 7.50 : 1.00
Q1 2007 - Q4 2007 6.75 : 1.00
Q1 2008 - Q4 2008 6.00 : 1.00
Q1 2009 - Q4 2009 5.50 : 1.00
Q1 2010 and thereafter 5.00 : 1.00
(b) Consolidated Net Interest Coverage Ratio. Permit the Consolidated
Net Interest Coverage Ratio of the US Borrower for any period of four
consecutive fiscal quarters of the US Borrower ending during any period set
forth below to be less than the ratio set forth below opposite such period:
Consolidated
Interest
Period Coverage Ratio
------ --------------
Q2 2006 - Q4 2006 1.40 : 1.00
Q1 2007 - Q4 2007 1.50 : 1.00
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Consolidated
Interest
Period Coverage Ratio
------ --------------
Q1 2008 - Q4 2008 1.70 : 1.00
Q1 2009 - Q4 2009 2.00 : 1.00
Q1 2010 and thereafter 2.25 : 1.00
7.2 Indebtedness. Create, issue, incur, assume, or suffer to exist any
Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document or
Hedge Agreements;
(b) Indebtedness (i) of either Borrower to any of its Subsidiaries,
(ii) of any US Subsidiary Guarantor to the US Borrower or any other
Subsidiary of the US Borrower, (iii) of the CDN Borrower or any CDN
Subsidiary Guarantor to the CDN Borrower, any CDN Subsidiary Guarantor or
any other Foreign Subsidiary, (iv) of any Non-Guarantor Subsidiary that is
a Domestic Subsidiary to any other Non-Guarantor Subsidiary, (v) of any
Non-Guarantor Subsidiary that is a Foreign Subsidiary to any other
Non-Guarantor Subsidiary that is a Foreign Subsidiary and (vi) of one Group
Member to any other Group Member issued pursuant to the Company
Reorganization or in respect of the CDN Borrower Subscription Agreement and
any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity
of any principal amount thereof);
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate
principal amount not to exceed $5,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof or any shortening of
the maturity of any principal amount thereof);
(e) Guarantee Obligations (i) by the US Borrower or any of its
Subsidiaries of obligations of the US Borrower or any US Subsidiary
Guarantor, (ii) by the CDN Borrower, any of its Subsidiaries or any other
Foreign Subsidiary of obligations of the CDN Borrower or any CDN Subsidiary
Guarantor, (iii) by any Non-Guarantor Subsidiary of obligations of any
Non-Guarantor Subsidiary that is a Domestic Subsidiary and (iv) by any
Non-Guarantor Subsidiary that is a Foreign Subsidiary of obligations of any
other Non-Guarantor Subsidiary that is a Foreign Subsidiary;
(f) Indebtedness of CDN Loan Parties and Non-Guarantor Subsidiaries in
respect of local lines of credit, letters of credit, bank guarantees,
factoring arrangements, sale/leaseback transactions and similar extensions
of credit in the ordinary course of business not to exceed at any time an
aggregate principal amount equal to the sum of (i) $20,000,000 and (ii) the
Replacement Canadian Indebtedness Amount at such time;
(g) Indebtedness of the US Borrower or any of its Subsidiaries arising
from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn by the US Borrower or such
Subsidiary in the ordinary course of business against insufficient funds,
so long as such Indebtedness is promptly repaid;
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(h) (i) Indebtedness of any Non-Guarantor Subsidiary to a Loan Party
and (ii) Guarantee Obligations of the Loan Parties of obligations of the
Non-Guarantor Subsidiaries, in an aggregate principal amount for all such
Indebtedness and Guarantee Obligations, taken together, not to exceed
$20,000,000 at any time;
(i) Indebtedness in the form of earn-outs, indemnification, incentive,
non-compete, consulting or other similar arrangements and other contingent
payments in respect of acquisitions or Investments permitted by Section 7.8
(both before or after any liability associated therewith becomes fixed);
(j) (i) (A) Indebtedness of the US Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$205,000,000, (B) Indebtedness of the US Borrower in respect of Additional
Senior Subordinated Notes in an aggregate principal amount not to exceed
$100,000,000 and (C) in each case, Guarantee Obligations of any Subsidiary
Guarantor in respect of such Indebtedness, provided that such Guarantee
Obligations are subordinated to the same extent as the obligations of the
US Borrower in respect of the Senior Subordinated Notes and (ii) any
refinancings, refundings, renewals or extensions of any Indebtedness
described in the foregoing clause (i); provided that (A) the principal
amount thereof (including accrued interest and the amount of reasonable
fees and expenses incurred and premiums paid in connection therewith) is
not increased, (B) the weighted average life to maturity of the principal
amount thereof has not decreased, nor the final maturity thereof shortened,
(C) the obligations of the Borrowers and the Subsidiary Guarantors in
respect of such Indebtedness are subordinated to the Obligations to the
same extent as the obligations of the US Borrower and the US Subsidiary
Guarantors in respect of the Senior Subordinated Notes and (D) such
Indebtedness otherwise contains terms (including subordination terms) which
are, when taken as a whole, at least as favorable to the Borrowers and the
Subsidiary Guarantors as the terms of the Indebtedness described in the
foregoing clause (i);
(k) additional unsecured Indebtedness of the US Borrower or any of its
Subsidiaries in an aggregate principal amount (for the US Borrower and all
Subsidiaries) not to exceed $15,000,000 at any one time outstanding;
(l) (i) Indebtedness of the US Borrower or any of its Subsidiaries
pursuant to the agreement for any other acquisition permitted under Section
7.8(f) and (ii) Indebtedness of either Borrower under a Permitted Seller
Note issued as consideration in connection with an acquisition permitted
under Section 7.8(f), in an aggregate amount for clauses (i) and (ii)
hereof not to exceed $15,000,000;
(m) Indebtedness of the US Borrower or any of its Subsidiaries in
respect of workers' compensation claims, property casualty or liability
insurance, take-or-pay obligations in supply arrangements, self-insurance
obligations, performance, bid and surety bonds and completion guaranties,
in each case in the ordinary course of business;
(o) Indebtedness incurred by the US Borrower or any of its
Subsidiaries arising from agreements providing for indemnification related
to sales or goods or adjustment of purchase price or similar obligations in
any case incurred in connection with the disposition of any business,
assets or Subsidiary of the US Borrower;
(p) Indebtedness supported by a Letter of Credit, in a principal
amount not in excess of the stated amount of such Letter of Credit;
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(q) Indebtedness issued in lieu of cash payments of Restricted
Payments permitted by Section 7.6(b), provided that such Indebtedness is
subordinated to the Obligations on terms reasonably satisfactory to the
Administrative Agent;
(r) (i) Indebtedness of any CDN Loan Party to any US Loan Party and
(ii) Guarantee Obligations of the US Loan Parties of obligations of the CDN
Loan Parties in an aggregate principal amount for all such Indebtedness and
Guarantee Obligations, taken together, not to exceed $25,000,000 at any
time; and
(t) Indebtedness of the US Borrower or any of its Subsidiaries
incurred to finance any acquisition permitted under Section 7.8(f) in an
aggregate amount for all such Indebtedness not to exceed $50,000,000 plus
50% of any increase in Consolidated EBITDA of the US Borrower since the
Closing Date up to the date of such Permitted Acquisition, with
Consolidated EBITDA as of the Closing Date being deemed to be $70,300,000
and Consolidated EBITDA as of the date of such Permitted Acquisition being
deemed to be Consolidated EBITDA for the most recent four fiscal quarters
for which financial statements are available without giving effect to any
pro forma treatment of such Permitted Acquisition, provided, that,
notwithstanding anything to the contrary in the foregoing, the aggregate
outstanding amount of all Indebtedness of US Loan Parties incurred pursuant
to this paragraph (t) shall not at any time exceed $15,000,000.
7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided, that adequate reserves with
respect thereto are maintained on the books of the US Borrower or its
Subsidiaries, as the case may be, to the extent required by GAAP;
(b) landlords', carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges, deposits or statutory trusts in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits and other Liens to secure the performance of bids, trade
contracts (other than for borrowed money), leases, subleases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements, zoning restrictions, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business
that, in the aggregate, do not materially detract from the value of the
Property subject thereto or materially interfere with the ordinary conduct
of the business of the US Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d) and Liens created after
the date hereof in connection with any refinancing, refundings, or renewals
or extensions thereof permitted by Section 7.2(d), provided, that no such
Lien is spread to cover any additional Property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
85
(g) Liens securing Indebtedness of the US Borrower or any Subsidiary
incurred pursuant to Section 7.2(c), 7.2(f) or 7.2(t), provided, that, in
the case of any such Liens securing Indebtedness incurred pursuant to
Section 7.2(c) or 7.2(t) or incurred by any CDN Loan Party pursuant to
Section 7.2(f), (i) such Liens shall be created substantially concurrently
with the acquisition of the assets financed by such Indebtedness, (ii) such
Liens do not at any time encumber any Property other than the Property
financed by such Indebtedness and the proceeds thereof and (iii) the
principal amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by
the US Borrower or any Subsidiary in the ordinary course of its business
and covering only the assets so leased, and any financing statement filed
in connection with any such lease;
(j) (i) inchoate Liens arising from judgments in circumstances not
constituting an Event of Default under Section 8(h) and (ii) Liens (other
than inchoate Liens) arising from judgments in circumstances not
constituting an Event of Default under Section 8(h) for a period not in
excess of sixty (60) days after such Lien attaches to specific assets of a
Loan Party;
(k) Liens on property or assets acquired pursuant to an acquisition
permitted under Section 7.8(f) (and the proceeds thereof) or assets of a
Subsidiary of the US Borrower in existence at the time such Subsidiary is
acquired pursuant to an acquisition permitted under Section 7.8(f) and not
created in contemplation thereof;
(l) Liens on Property of Non-Guarantor Subsidiaries securing
Indebtedness permitted by this Agreement to be incurred by such
Non-Guarantor Subsidiaries;
(m) receipt of progress payments and advances from customers in the
ordinary course of business to the extent same creates a Lien on the
related inventory and proceeds thereof;
(n) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs duties in connection with
the importation of goods;
(o) other Liens with respect to obligations that do not exceed
$5,000,000 at any one time outstanding;
(p) Liens on assets of any CDN Loan Party securing Indebtedness
permitted by Section 7.2(f); provided that prior to the incurrence of such
Liens, the Canadian Administrative Agent shall have entered into an
intercreditor agreement and any amendments to the CDN Guarantee and
Collateral Agreement providing for the sharing of the Collateral of such
CDN Loan Party on an equal and ratable basis, on terms and conditions
reasonably satisfactory to the Canadian Administrative Agent;
(q) Liens arising out of consignment or similar arrangements for the
sale by the US Borrower and its Subsidiaries of goods through third parties
in the ordinary course of business;
(r) Liens upon specific items of inventory or other goods and proceeds
of the US Borrower or any of its Subsidiaries securing such Person's
obligations in respect of bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;
86
(s) Liens solely on any xxxx xxxxxxx money deposits made by the US
Borrower or any of its Subsidiaries in connection with an Investment
permitted by Section 7.8; and
(t) Liens deemed to exist in connection with Investments permitted by
Section 7.8(b) that constitute repurchase obligations.
7.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
Property or business, except that:
(a) (i) any Subsidiary of the US Borrower (other than the CDN
Borrower) may be merged, amalgamated or consolidated with or into the US
Borrower (provided, that the US Borrower shall be the continuing or
surviving corporation) or with or into any US Subsidiary Guarantor
(provided, that (A) such US Subsidiary Guarantor shall be the continuing or
surviving corporation or (B) simultaneously with such transaction, the
continuing or surviving corporation shall become a US Subsidiary Guarantor
and the US Borrower shall comply with Section 6.8 in connection therewith)
and (ii) any Foreign Subsidiary (other than the CDN Borrower) may be
merged, amalgamated or consolidated with or into the CDN Borrower
(provided, that the CDN Borrower shall be, if applicable, the continuing or
surviving corporation) or with or into any CDN Subsidiary Guarantor
(provided, that simultaneously with such transaction, the continuing or
surviving corporation, if applicable, shall become a CDN Subsidiary
Guarantor and the US Borrower shall comply with Section 6.8 in connection
therewith);
(b) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may be
merged or consolidated with or into, or be liquidated into, any other
Non-Guarantor Subsidiary, and any Non-Guarantor Subsidiary that is a
Domestic Subsidiary may be merged or consolidated with or into, or be
liquidated into, any other Non-Guarantor Subsidiary that is a Domestic
Subsidiary;
(c) (i) any Subsidiary of the US Borrower (other than the CDN
Borrower) may Dispose of all or substantially all of its assets (upon
voluntary liquidation or otherwise) to the US Borrower or any US Subsidiary
Guarantor and (ii) any Foreign Subsidiary may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise)
to the CDN Borrower or any CDN Subsidiary Guarantor; provided, that, with
respect to any such Dispositions (x) by any Non-Guarantor Subsidiary to any
Loan Party, or by any CDN Loan Party to any US Loan Party, and (y) for
consideration in excess of the fair value of such assets (such Excess, the
"Excess Amount"), the sum of, without duplication, (A) the aggregate amount
of all such Excess Amounts, (B) the aggregate book value of all Property
transferred pursuant to Section 7.5(h), (C) the aggregate amount of all
Differential Amounts in respect of Dispositions made pursuant to Section
7.5(l) and (D) the aggregate amount of all Investments made pursuant to
Sections 7.8(h) and 7.8(r), shall not exceed 5% of consolidated total
assets of the US Borrower (at the time of any transfer giving rise to any
such amount or any such Investment) while this Agreement is in effect;
(d) any Non-Guarantor Subsidiary that is a Foreign Subsidiary may
Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to any other Non-Guarantor Subsidiary, and any
Non-Guarantor Subsidiary that is a Domestic Subsidiary may Dispose of all
or substantially all of its assets (upon voluntary liquidation or
otherwise) to any other Non-Guarantor Subsidiary that is a Domestic
Subsidiary;
(e) Dispositions permitted by Section 7.5 may be consummated;
87
(f) any Investment expressly permitted by Section 7.8 may be
structured as a merger, consolidation or amalgamation; and
(g) the Company Reorganization may be consummated.
7.5 Dispositions of Property. Dispose of any of its owned Property
(including, without limitation, receivables) or its leased real property listed
on Schedule 6.11, whether now owned or hereafter acquired, or, in the case of
any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to
any Person, except:
(a) the Disposition of surplus, obsolete or worn out property in the
ordinary course of business;
(b) (i) the sale of inventory in the ordinary course of business, (ii)
the cross-licensing or non-exclusive licensing of Intellectual Property, in
the ordinary course of business and (iii) the contemporaneous exchange, in
the ordinary course of business, of Property for Property of a like kind
(other than as set forth in clause (ii)), to the extent that the Property
received in such exchange is of a value equivalent to the value of the
Property exchanged (provided, that after giving effect to such exchange,
the value of the Property of the Loan Parties subject to perfected first
priority Liens in favor of the Administrative Agent or the Canadian
Administrative Agent, as the case may be, under the Security Documents is
not materially reduced);
(c) Dispositions permitted by Section 7.4;
(d) the sale or issuance of (i) any Subsidiary's Capital Stock to the
US Borrower or any US Subsidiary Guarantor and (ii) any Foreign
Subsidiary's Capital Stock to the CDN Borrower or any CDN Subsidiary
Guarantor;
(e) the Disposition of other assets having a fair market value not to
exceed 5% of consolidated total assets of the US Borrower in the aggregate
for any fiscal year of the US Borrower, provided, that the requirements of
Section 2.12(b), to the extent applicable, are complied with in connection
therewith;
(f) any Recovery Event, provided, that the requirements of Section
2.12(b) are complied with in connection therewith;
(g) the leasing, occupancy agreements or sub-leasing of Property that
would not materially interfere with the required use of such Property by
the US Borrower or its Subsidiaries;
(h) the transfer for fair value of Property (including Capital Stock
of Subsidiaries) to another Person in connection with a joint venture
arrangement with respect to the transferred Property; provided, that the
sum of, without duplication, (A) the aggregate book value of all Property
so transferred, (B) the aggregate amount of all Excess Amounts in respect
of Dispositions made pursuant to Section 7.4(c), (C) the aggregate amount
of all Differential Amounts in respect of Dispositions made pursuant to
Section 7.5(l) and (D) the aggregate amount of all Investments made
pursuant to Sections 7.8(h) and 7.8(r), shall not exceed 5% of consolidated
total assets of the US Borrower (at the time of any transfer giving rise to
any such amount or any such Investment) while this Agreement is in effect;
(i) the sale or discount, in each case without recourse and in the
ordinary course of business, of overdue accounts receivable arising in the
ordinary course of business, but only in
88
connection with the compromise or collection thereof consistent with
customary industry practice (and not as part of any bulk sale or financing
of receivables);
(j) transfers of condemned property as a result of the exercise of
"eminent domain" or other similar policies to the respective Governmental
Authority or agency that has condemned same (whether by deed in lieu of
condemnation or otherwise), and transfers of properties that have been
subject to a casualty to the respective insurer of such property as part of
an insurance settlement;
(k) the Disposition of any Immaterial Subsidiary;
(l) the transfer of Property (including Capital Stock of Subsidiaries)
for less than fair value (such difference, the "Differential Amount") of
(i) any US Loan Party to any CDN Loan Party and (ii) of any Loan Party to
any Non-Guarantor Subsidiary; provided, that the sum of, without
duplication, (A) the aggregate amount of all such Differential Amounts, (B)
the aggregate amount of all Excess Amounts in respect of Dispositions made
pursuant to Section 7.4(c), (C) the aggregate book value of all Property
transferred pursuant to Section 7.5(h) and (D) the aggregate amount of all
Investments made pursuant to Sections 7.8(h) and 7.8(r), shall not exceed
5% of consolidated total assets of the US Borrower (at the time of any
transfer giving rise to any such amount or any such Investment) while this
Agreement is in effect;
(m) the transfer for fair value of Property by any Loan Party to any
other Loan Party.
(n) the sale of Cash Equivalents and Foreign Cash Equivalents in the
ordinary course of business;
(o) sale and leaseback transactions permitted by Section 7.11;
(p) Liens permitted by Section 7.3;
(q) Restricted Payments permitted by Section 7.6; and
(r) Investments permitted by Section 7.8.
7.6 Restricted Payments. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any Capital Stock of the US Borrower or any Subsidiary, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the US Borrower
or any Subsidiary, or enter into any derivatives or other transaction with any
financial institution, commodities or stock exchange or clearinghouse (a
"Derivatives Counterparty") obligating the US Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of any such Capital Stock (collectively, "Restricted Payments"), except
that:
(a) (i) any Subsidiary may make Restricted Payments to the US Borrower
or any US Subsidiary Guarantor and (ii) any Foreign Subsidiary may make
Restricted Payments to the CDN Borrower or any CDN Subsidiary Guarantor;
(b) (i) the US Borrower may pay dividends to Holdings to permit
Holdings to purchase Holdings' common stock or common stock options from
present or former officers or employees (or their estates, family members
or former spouses) of Holdings, the US Borrower or any
89
Subsidiary upon the death, disability, retirement or termination of
employment of such officer or employee, provided, that the aggregate amount
of payments under this clause (i) in any fiscal year (net of any proceeds
received by Holdings and contributed to the US Borrower subsequent to the
date hereof in connection with sales of any common stock or common stock
options sold in connection with permitted employee compensation and
incentive arrangements) shall not exceed the lesser of (A) the sum of (1)
$5,000,000 and (2) any Restricted Payments permitted (but not made)
pursuant to this clause (i) in prior fiscal years and (B) $10,000,000, in
each case plus any amounts received by the US Borrower in such fiscal year
and (to the extent not used pursuant to this clause (i)) any prior fiscal
years pursuant to key man life insurance policies, and (ii) the US Borrower
may pay dividends to Holdings to permit Holdings to pay management fees to
the Sponsor pursuant to the terms of the Management Agreement and to
compensate Xxxxxxx X. Xxxxx pursuant to the terms of the WCS Employment
Agreement;
(c) the US Borrower may pay dividends to Holdings to permit Holdings
to (A) pay general and administrative expenses incurred in the ordinary
course of business not to exceed $1,000,000 in any fiscal year and (B) pay
any taxes to the extent Holdings is liable for such taxes and such taxes
are attributable to the operations of the US Borrower and its Subsidiaries;
provided, however, that the US Borrower shall not make any such tax
distributions in excess of its and its Subsidiaries stand-alone tax
liability in respect of such taxes;
(d) the US Borrower may make Restricted Payments to Holdings to the
extent necessary to effect the Transaction;
(e) (i) Non-Guarantor Subsidiaries that are Domestic Subsidiaries may
make Restricted Payments to other Non-Guarantor Subsidiaries that are
Domestic Subsidiaries and (ii) Non-Guarantor Subsidiaries that are Foreign
Subsidiaries may make Restricted Payments to other Non-Guarantor
Subsidiaries;
(f) the US Borrower may purchase fractional shares of its common stock
arising out of stock dividends, splits or combinations or business
combinations;
(g) Restricted Payments to the extent made with proceeds of equity
contributions (other than Specified Equity Contributions) from Holdings to
the US Borrower after the Closing Date;
(h) Restricted Payments made to Holdings to make payments provided for
in the Management Agreement;
(i) Restricted Payments by the US Borrower and its Subsidiaries
pursuant to the Company Reorganization and the CDN Borrower Subscription
Agreement, including, without limitation, in respect of Indebtedness issued
in connection with the Company Reorganization; and
(j) Investments permitted by Section 7.8.
7.7 Capital Expenditures. Make any Capital Expenditure, except Capital
Expenditures of the US Borrower and its Subsidiaries in the ordinary course of
business not to exceed in any period set forth below the amount set forth below
opposite such period:
Period Amount
------ -----------
Closing Date - 12/31/05 $ 3,000,000
2006 $10,000,000
2007 $10,000,000
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2008 $10,000,000
2009 and each year thereafter $12,500,000
provided, that (A) up to 100% of any such amount referred to above, if not so
expended in the fiscal year for which it is permitted, may be carried over for
expenditure in the next succeeding fiscal year, (B) the amounts referred to
above for each year commencing with 2006 shall be automatically deemed to be
increased by an amount equal to 15.0% of pro forma acquired EBITDA (calculated
in a manner consistent with the definition of "Consolidated EBITDA") in respect
of any Acquisition consummated after the Closing Date and (C) Capital
Expenditures made during any fiscal year shall be deemed made, first, in respect
of amounts permitted for such fiscal year as provided above and second, in
respect of amounts carried over from the prior fiscal year as provided above.
7.8 Investments. Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or all or
substantially all of the assets constituting an ongoing business from, or make
any other investment in, any other Person (all of the foregoing, "Investments"),
except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents and Foreign Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Sections 7.2(b), (e), (h) and (r);
(d) loans and advances to employees of Holdings, the US Borrower or
any of its Subsidiaries in the ordinary course of business in an aggregate
amount (for the US Borrowers and all Subsidiaries) not to exceed $1,000,000
(excluding (for purposes of such cap) travel and entertainment expenses,
but including relocation expenses) at any one time outstanding;
(e) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) (i) by the US Borrower or any of
its Subsidiaries in the US Borrower or any Person that, prior to such
Investment, is a US Subsidiary Guarantor or is a Domestic Subsidiary that
becomes a US Subsidiary Guarantor at the time of such Investment, or (ii)
by the CDN Borrower, any of its Subsidiaries or any other Foreign
Subsidiary in the CDN Borrower or any Person that, prior to such
Investment, is a CDN Subsidiary Guarantor or is a CDN Subsidiary that
becomes a CDN Subsidiary Guarantor at the time of such Investment;
(f) (i) Permitted Acquisitions to the extent that any Person acquired
in such acquisition becomes a part of the US Borrower or any Subsidiary
Guarantor or becomes (whether or not such Person is a wholly owned
Subsidiary) a Subsidiary Guarantor in the manner contemplated by Section
6.8(c) and (ii) other Permitted Acquisitions in an aggregate purchase price
(other than purchase price paid through the issuance of equity by Holdings
with the proceeds thereof, including (x) whether or not any equity is
issued, capital contributions (other than Specified Equity Contributions)
and (y) equity issued to the seller) amount not to exceed in any fiscal
year an amount equal to $50,000,000 plus 50% of any increase in
Consolidated EBITDA of the US Borrower since the Closing Date up to the
date of such Permitted Acquisition, with Consolidated EBITDA as of the
Closing Date being deemed to be $70,300,000 and Consolidated EBITDA as of
the date of such Permitted Acquisition being deemed to be Consolidated
EBITDA for the most recent four fiscal quarters for which financial
statements are available without giving effect to any pro forma treatment
of such Permitted Acquisition;
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(g) loans by the US Borrower to the officers and directors of Holdings
or the US Borrower or any of its Subsidiaries in connection with management
incentive plans in an aggregate amount not to exceed $1,000,000 in any
fiscal year and not to exceed $2,000,000 at any one time outstanding,
provided that such officers and directors invest such loans in the Capital
Stock of Holdings;
(h) Investments by the US Borrower and its Subsidiaries in joint
ventures or similar arrangements; provided, that the sum of, without
duplication, (A) the aggregate amount of all such Investments, (B) the
aggregate amount of all Excess Amounts in respect of Dispositions made
pursuant to Section 7.4(c), (C) the aggregate book value of all Property
transferred pursuant to Section 7.5(h), (D) the aggregate amount of all
Differential Amounts in respect of Dispositions made pursuant to Section
7.5(l) and (E) the aggregate amount of all Investments made pursuant to
Section 7.8(r), shall not exceed 5% of consolidated total assets of the US
Borrower (at the time of any transfer giving rise to any such amount or any
such Investment) while this Agreement is in effect;
(i) Investments (including debt obligations) received in the ordinary
course of business by the US Borrower or any Subsidiary in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising out of the ordinary course of business;
(j) Investments (i) by any Non-Guarantor Subsidiary that is a Domestic
Subsidiary in any other Non-Guarantor Subsidiary that is a Domestic
Subsidiary and (i) by any Non-Guarantor Subsidiary that is a Foreign
Subsidiary in any other Non-Guarantor Subsidiary;
(k) Investments in existence on the Closing Date and listed on
Schedule 7.8;
(l) Investments of the US Borrower or any Subsidiary under Hedge
Agreements permitted hereunder;
(m) Investments of any Person in existence at the time such Person
becomes a Subsidiary of the US Borrower; provided such Investment was not
made in connection with or anticipation of such Person becoming a
Subsidiary of the US Borrower;
(n) Investments by the Borrowers and the Subsidiary Guarantors in the
form of loans and advances to Non-Guarantor Subsidiaries permitted to be
incurred by the Non-Guarantor Subsidiaries under Section 7.2(h);
(o) the acquisition pursuant to the Merger;
(p) Investments so long as the aggregate amount thereof (determined as
the amount originally advanced, loaned or otherwise invested, less any
returns on the respective Investment not to exceed the original amount
invested) at no time exceeds $20,000,000 at the time made;
(q) Subsidiaries may be established or created, if (i) to the extent
such new Subsidiary is a Domestic Subsidiary, the US Borrower and such
Subsidiary comply with the provisions of Section 6.8(c), (ii) to the extent
such new Subsidiary is a CDN Subsidiary, the US Borrower and such
Subsidiary comply with the provisions of Section 6.8(d) and (iii) to the
extent such new Subsidiary is a Foreign Subsidiary, the US Borrower
complies with the provisions of Section 6.8(e), provided, that, in each
case, to the extent such new Subsidiary is created solely for the purpose
of consummating a merger transaction pursuant to an acquisition permitted
by Section
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7.8(f), and such new Subsidiary at no time holds any assets or liabilities
other than any merger consideration contributed to it contemporaneously
with the closing of such merger transactions, such new Subsidiary shall not
be required to take the actions set forth in Section 6.8(c), 6.8(d) or
6.8(e), as applicable, until the respective acquisition is consummated (at
which time the surviving entity of the respective merger transaction shall
be required to so comply within ten Business Days);
(r) Investments by (i) any US Loan Party in any CDN Loan Party and
(ii) any Loan Party in any Non-Guarantor Subsidiary; provided, that the sum
of, without duplication, (A) the aggregate amount of all such Investments,
(B) the aggregate amount of all Excess Amounts in respect of Dispositions
made pursuant to Section 7.4(c), (C) the aggregate book value of all
Property transferred pursuant to Section 7.5(h), (D) the aggregate amount
of all Differential Amounts in respect of Dispositions made pursuant to
Section 7.5(l) and (E) the aggregate amount of all Investments made
pursuant to Section 7.8(h), shall not exceed 5% of consolidated total
assets of the US Borrower (at the time of any transfer giving rise to any
such amount or any such Investment) while this Agreement is in effect;
(s) Investments by the US Borrower and its Subsidiaries made pursuant
to the Company Reorganization and the CDN Borrower Subscription Agreement;
(t) Investments arising out of the receipt by the US Borrower or any
Subsidiary of non-cash consideration for any sale of assets permitted under
Section 7.5, provided, that such non-cash consideration shall in no event
exceed 25% of the total consideration received for such sale;
(u) Investments resulting from pledges and deposits referred to in
Sections 7.3(c) and (d);
(v) the forgiveness or conversion to equity of any Indebtedness
permitted by Section 7.2(b);
(w) Investments (other than Permitted Acquisitions) made with the
proceeds of Equity Contributions (other than Specified Equity
Contributions) from Holdings to the US Borrower after the Closing Date; and
(x) any Investment in a Foreign Subsidiary to the extent such
Investment is substantially contemporaneously repaid with a dividend or
other distribution from such Foreign Subsidiary.
7.9 Optional Payments and Modifications of Certain Debt Instruments.
(a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease, any
Senior Subordinated Notes or Additional Senior Subordinated Notes, as the case
may be, or segregate funds for any such payment, prepayment, repurchase,
redemption or defeasance (except, in each case, in connection with any
refinancing permitted under Section 7.2(j)), or enter into any derivative or
other transaction with any Derivatives Counterparty obligating the US Borrower
or any Subsidiary to make payments to such Derivatives Counterparty as a result
of any change in market value of any Senior Subordinated Notes or Additional
Senior Subordinated Notes, as the case may be, (b) amend, modify or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of any Senior Subordinated Notes or Additional
Senior Subordinated Notes, as the case may be, if such modification would (i)
increase the principal amount thereof (other than any such increase in principal
amount arising from interest payments paid in kind), (ii) increase the interest
rate payable in cash, (iii) reduce the ability of the US Borrower to pay
interest in kind, (iv) shorten the maturity thereof, (v) make the subordination
terms thereof less favorable to the
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Lenders, (vi) require the US Borrower to maintain compliance with any financial
covenants, whether compliance with such covenants is required at all times or is
tested only at the end of any fiscal period, (vii) provide for any default under
such Senior Subordinated Notes or Additional Senior Subordinated Notes, as the
case may be, in the case of a Default or Event of Default under this Agreement
or (viii) prohibit, restrict or limit the ability of the US Borrower to act, or
refrain from acting, in a manner permitted by this Agreement, or (c) designate
any Indebtedness (other than obligations of the Loan Parties pursuant to the
Loan Documents) as "Designated Senior Indebtedness" (or any other defined term
having a similar purpose) for the purposes of the Senior Subordinated Note
Indenture.
7.10 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
Property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than any Group Member)
unless such transaction is (a) otherwise not prohibited under this Agreement and
(b) upon fair and reasonable terms no less favorable to the US Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate. Notwithstanding the
foregoing, the US Borrower and its Subsidiaries may (i) pay to Xxxxxxx X. Xxxxx,
the Sponsor and its Affiliates fees, indemnities and expenses pursuant to the
Management Agreement, (ii) enter into any transaction with an Affiliate that is
expressly permitted by the terms of this Agreement to be entered into by the US
Borrower or such Subsidiary with an Affiliate and (iii) without being subject to
the terms of this Section 7.10, enter into any transaction with any Person which
is an Affiliate of the US Borrower only by reason of such Person and the US
Borrower having common directors. For the avoidance of doubt, this Section 7.10
shall not apply to employment arrangements with, and payments of compensation or
benefits to or for the benefit of, management, including, without limitation,
Xxxxxxx X. Xxxxx in his capacity as an officer.
7.11 Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by the US Borrower or any Subsidiary of real or
personal property which is to be sold or transferred by the US Borrower or such
Subsidiary (a) to such Person or (b) to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the US Borrower or such Subsidiary, except for (i) sales or
transfers that do not exceed $20,000,000 in the aggregate at any time
outstanding and (ii) sales or transfers (A) by either Borrower or any Subsidiary
Guarantor to the US Borrower or any US Subsidiary Guarantor or (B) by the CDN
Borrower or any CDN Subsidiary Guarantor to the CDN Borrower or any CDN
Subsidiary Guarantor; provided that in the case of any such sale or transfer
pursuant to this clause (ii) made by any CDN Loan Party to any US Loan Party,
the consideration for such sale or transfer shall not exceed the fair value of
such assets.
7.12 Changes in Fiscal Periods. Permit the fiscal year of the US
Borrower to end on a day other than December 31.
7.13 Negative Pledge Clauses. Enter into any agreement that prohibits
or limits the ability of the US Borrower or any of its Subsidiaries to create,
incur, assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, to secure the Obligations (or the CDN
Obligations, as applicable) or, in the case of any Guarantor, its obligations
under the Guarantee and Collateral Agreement or the CDN Guarantee and Collateral
Agreement, as the case may be, other than (a) this Agreement and the other Loan
Documents, (b) any agreements governing any purchase money Liens or Capital
Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby and the
proceeds thereof), (c) software and other Intellectual Property licenses
pursuant to which the US Borrower or such Guarantor is the licensee of the
relevant software or Intellectual Property, as the case may be, (in which case,
any prohibition or limitation shall relate only to the assets subject of the
applicable license), (d)
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Contractual Obligations incurred in the ordinary course of business and on
customary terms which limit Liens on the assets subject of the applicable
Contractual Obligation, (e) the Senior Subordinated Note Indenture (and the
instruments or agreements governing any Indebtedness permitted pursuant to
Section 7.2(j)(ii)), (f) any agreements regarding Indebtedness of any
Non-Guarantor Subsidiary that is a Foreign Subsidiary (in which case, any
prohibition or limited shall only be effective against the assets of such
Non-Guarantor Subsidiary and its Subsidiaries), (g) prohibitions and limitations
in effect on the date hereof and listed on Schedule 7.13, (h) customary
provisions contained in joint venture agreements and other similar agreements
applicable to joint ventures entered into in the ordinary course of business,
(i) customary provisions restricting the subletting or assignment of any lease
governing a leasehold interest, (j) customary restrictions and conditions
contained in any agreement relating to an asset sale permitted by Section 7.4 or
7.5 and (k) any agreement in effect at the time any Person becomes a Subsidiary,
so long as such agreement was not entered into in contemplation of such Person
becoming a Subsidiary.
7.14 Clauses Restricting Subsidiary Distributions. Enter into any
consensual encumbrance or restriction on the ability of any Subsidiary to (a)
make Restricted Payments in respect of any Capital Stock of such Subsidiary held
by, or pay any Indebtedness owed to, the US Borrower or any other Subsidiary or
(b) make Investments in the US Borrower or any other Subsidiary, except for such
encumbrances or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents, (ii) any restrictions with respect to such
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock
or assets of such Subsidiary, (iii) any restrictions set forth in the Senior
Subordinated Note Indenture (and the instruments or agreements governing any
Indebtedness permitted pursuant to Section 7.2(j)(ii)), (iv) any restrictions
contained in agreements related to Indebtedness of any Non-Guarantor Subsidiary
that is a Foreign Subsidiary (in which case such restriction shall relate only
to such Non-Guarantor Subsidiary and its Subsidiaries), (v) any restrictions
regarding licenses or sublicenses by the US Borrower and its Subsidiaries of
Intellectual Property in the ordinary course of business (in which case such
restriction shall relate only to such Intellectual Property), (vi) Contractual
Obligations incurred in the ordinary course of business which include customary
provisions restricting the assignment of any agreement relating thereto, (vii)
customary provisions contained in joint venture agreements and other similar
agreements applicable to joint ventures entered into in the ordinary course of
business, (viii) customary provisions restricting the subletting or assignment
of any lease governing a leasehold interest, (ix) customary restrictions and
conditions contained in any agreement relating to an asset sale permitted by
Section 7.4 or 7.5 and (x) any agreement in effect at the time any Person
becomes a Subsidiary, so long as such agreement was not entered into in
contemplation of such Person becoming a Subsidiary.
7.15 Lines of Business. Enter into any business, either directly or
through any of its Subsidiaries, except for the Business or a business
reasonably related thereto or that are reasonable extensions thereof.
7.16 Limitation on Hedge Agreements. Enter into any Hedge Agreement
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates or
foreign exchange rates.
7.17 Changes in Jurisdictions of Organization; Name. Other than
pursuant to the Company Reorganization, in the case of any Loan Party, change
its name or change its jurisdiction of organization, in either case except upon
prompt written notice to the Administrative Agent and the Canadian
Administrative Agent, if applicable, and delivery to the Administrative Agent or
the Canadian Administrative Agent, as applicable, of all additional executed
financing statements, financing change statements and other documents reasonably
requested by the Administrative Agent or the Canadian Administrative Agent, as
applicable, to maintain the validity, perfection and priority of the security
interests provided for in the Security Documents.
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SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Loan
(including the Face Amount of any Bankers' Acceptance) made to such
Borrower when due in accordance with the terms hereof; or either Borrower
shall fail to pay any Reimbursement Obligation owed by such Borrower or
interest owed by such Borrower on any Loan or Reimbursement Obligation, or
any other amount payable by such Borrower hereunder or under any other Loan
Document, within three Business Days after any such Reimbursement
Obligation, interest or other amount becomes due in accordance with the
terms hereof; or
(b) (i) On the Closing Date, any Specified Representation, and (ii) at
any time after the Closing Date, any representation or warranty made or
deemed made by any Loan Party herein or in any other Loan Document or that
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document, shall in either case prove to have been
inaccurate in any material respect on or as of the date made or deemed made
or furnished; or
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in Section 6.7(a) or Section 7; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days after such
Loan Party receives from the Administrative Agent, the Canadian
Administrative Agent or any Lender notice of the existence of such default;
or
(e) Either Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness for Borrowed Money
(excluding the Loans and Reimbursement Obligations) on the scheduled or
original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness for Borrowed Money beyond
the period of grace, if any, provided in the instrument or agreement under
which such Indebtedness for Borrowed Money was created; or (iii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness for Borrowed Money or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
of default shall occur, the effect of which payment or other default or
other event of default is to cause, or to permit the holder or beneficiary
of such Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness for Borrowed Money to become due prior to its stated maturity
or to become subject to a mandatory offer to purchase by the obligor
thereunder or to become payable; provided, that (A) a default, event or
condition described in this paragraph shall not at any time constitute an
Event of Default unless, at such time, one or more defaults or events of
default of the type described in this paragraph shall have occurred and be
continuing with respect to Indebtedness for Borrowed Money the outstanding
principal amount of which individually exceeds $10,000,000, and in the case
of Indebtedness for Borrowed Money of the types described in clauses (i)
and (ii) of the definition thereof, with respect to such Indebtedness which
exceeds such amount either individually or in the aggregate and (B) this
paragraph (e) shall not apply to (i) secured Indebtedness that becomes due
as a result of the sale, transfer, destruction or other disposition of the
Property or assets securing such Indebtedness for Borrowed Money if such
sale, transfer, destruction or other disposition is not prohibited
hereunder and under the documents providing
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for such Indebtedness or (ii) any Guarantee Obligations except to the
extent such Guarantee Obligations shall become due and payable by either
Borrower or any of its Subsidiaries and remain unpaid after any applicable
grace period or period permitted following demand for the payment thereof;
or
(f) (i) Holdings, either Borrower or any of its Material Subsidiaries
shall commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or Holdings,
either Borrower or any of its Subsidiaries (other than any Immaterial
Subsidiary) shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Holdings, either
Borrower or any of its Subsidiaries (other than any Immaterial Subsidiary)
any case, proceeding or other action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
Holdings, either Borrower or any of its Subsidiaries (other than any
Immaterial Subsidiary) any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against substantially all of its assets that results in the entry
of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) Holdings, either Borrower or any of its Subsidiaries
(other than any Immaterial Subsidiary) shall consent to or approve of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) Holdings, either Borrower or any of its Subsidiaries (other
than any Immaterial Subsidiary) shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become
due; or
(g) (i) Either Borrower or any of its Subsidiaries shall incur any
liability in connection with any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in
favor of the PBGC or a Plan shall arise on the assets of either Borrower or
any of its Subsidiaries, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title
IV of ERISA, (v) either Borrower or any of its Subsidiaries shall, or in
the reasonable opinion of the Required Lenders is likely to, incur any
liability as a result of a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition (other than one which could not reasonably be expected to result
in a violation of any applicable law or of the qualification requirements
of the Code) shall occur or exist with respect to a Plan or a Commonly
Controlled Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if
any, could reasonably be expected to result in a direct obligation of
either Borrower or any of its Subsidiaries to pay money that could have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against either
Borrower or any of its Material Subsidiaries involving for the Borrowers
and their Material Subsidiaries taken as a
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whole a liability (not paid or fully covered by insurance or effective
indemnity) of $10,000,000 or more, and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason (other
than by reason of the express release thereof pursuant to Section 10.16),
to be in full force and effect in any material respect, or any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease in any material respect to be enforceable and of the same effect and
priority purported to be created thereby; provided, that there shall be no
Event of Default under this clause (i) to the extent such Event of Default
arises from (A) the resignation of the Administrative Agent or the Canadian
Administrative Agent or (B) the negligence or willful misconduct of the
Administrative Agent or the Canadian Administrative Agent following a
reasonable request from the relevant Borrower to execute any document or
take any other action relating to such Security Document or the Liens
granted thereunder; or
(k) (i) Holdings shall cease to own 100% of the Capital Stock of the
US Borrower (other than in connection with the Company Reorganization); or
(ii) if Holdings' Capital Stock is not traded on a nationally-recognized
stock exchange, the Permitted Investors shall cease to own, free and clear
of all Liens, at least 50.1% of the Capital Stock of Holdings; or (iii) if
Holdings' Capital Stock is traded on a nationally-recognized stock
exchange, the Permitted Investors shall cease to own, free and clear of all
Liens, at least 30% of the Capital Stock of Holdings and any other
shareholder shall own a greater amount, or (iv) at any time and for any
reason whatsoever, a majority of the Board of Directors of Holdings shall
not be Continuing Directors, or (v) a Specified Change of Control shall
occur; or
(l) the Senior Subordinated Notes or any Additional Senior
Subordinated Notes or the guarantees of either thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the obligations of
the Subsidiary Guarantors under the Guarantee and Collateral Agreement or
the CDN Guarantee and Collateral Agreement, as the case may be, as provided
in the Senior Subordinated Note Indenture, or any Loan Party shall so
assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to either Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Revolving
Commitments to be terminated forthwith, whereupon the Revolving Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable. In the case of all
Letters of Credit with respect to which presentment for honor shall not have
occurred, and all unmatured B/As, at the time of an acceleration pursuant to
this paragraph, the relevant Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent (or the Canadian
Administrative Agent in the case of CDN Letters of Credit issued for the account
of the CDN Borrower and B/As) an amount equal to the Face Amount of such B/As
and the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent or the Canadian Administrative Agent, as applicable, to the
payment of B/As upon maturity and drafts drawn under such Letters of Credit, and
the
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unused portion thereof after all such B/As have matured and all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the relevant Borrower hereunder and under the other
Loan Documents. After all such B/As have matured, all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the relevant Borrower then due
and owing hereunder and under the other Loan Documents shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the relevant Borrower (or such other Person as may be lawfully entitled
thereto). Except as expressly provided above in this Section or otherwise in any
Loan Document, presentment, demand and protest of any kind are hereby expressly
waived by the Borrowers.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Holdings or
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either Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders or the
Majority Facility Lenders in respect of any Facility) as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders or the Majority
Facility Lenders in respect of any Facility), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent has received notice from a Lender, Holdings or
either Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders or the Majority Facility Lenders in respect of any Facility); provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
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indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrowers effective upon appointment of a successor Agent. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to either Borrower shall
have occurred and be continuing) be subject to approval by the Borrowers (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor Administrative Agent shall have been so
appointed by the Required Lenders with such consent of the Borrowers and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and with the consent of the Borrowers (such
consent not to be unreasonably withheld or delayed), appoint a successor
Administrative Agent, that shall be a bank that has an office in New York, New
York with a combined capital and surplus of at least $500,000,000. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
9.10 Authorization to Release Liens and Guarantees. The Administrative
Agent is hereby irrevocably authorized by each of the Lenders to effect any
release of Liens or Guarantee Obligations contemplated by Section 10.16.
9.11 Canadian Administrative Agent. Each of the Lenders hereby agrees
and confirms that the provisions of this Article IX shall apply to JPMorgan
Chase Bank, Toronto Branch, as Canadian Administrative Agent with respect to the
CDN Revolving Loans and the CDN Term Loans,
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upon the same terms and subject to the same conditions as provided in this
Article IX, mutatis mutandis; provided, that any successor Canadian
Administrative Agent shall be a bank with an office in Toronto, Canada or
Montreal, Canada having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank which is also a bank.
9.12 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agents shall have any duties or
responsibilities hereunder in their respective capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Subject to Section 2.28, neither this
Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 10.1. The Required Lenders and each Loan Party party to the
relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and/or the Canadian Administrative Agent, as
applicable, and each Loan Party party to the relevant Loan Document may, from
time to time, (a) enter into written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights or obligations of the Administrative Agent, the Canadian Administrative
Agent, the Swingline Lenders, the Issuing Lenders, the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent and/or the Canadian
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) forgive or reduce
the principal amount or extend the final scheduled date of maturity of any Loan,
extend the scheduled date of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable hereunder (except
(A) in connection with the waiver of applicability of any post-default increase
in interest rates (which waiver shall be effective (x) as to the Revolving
Facility, with the consent of the Majority Revolving Facility Lenders and (y) as
to the Term Facility, with the consent of the Majority Term Facility Lenders)
and (B) that any amendment or modification of defined terms used in the
financial covenants in this Agreement shall not constitute a reduction in the
rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Revolving Commitment, in each case without the
written consent of each Lender directly and adversely affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 10.1
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or
transfer by either Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of the
Collateral or release all or substantially all of the Guarantors from their
obligations under the Guarantee and Collateral Agreement or the CDN Guarantee
and Collateral Agreement, as applicable, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any provision of paragraph
(a), (b) or (c) of Section 2.18 without the written consent of the Majority
Facility Lenders in respect of each Facility adversely affected thereby; (v)
reduce the percentage specified in the definition of Majority Facility Lenders
with respect to any Facility without the written consent of all Lenders under
such Facility; (vi) amend, modify or waive any provision of Section 9 without
the written consent of the Administrative Agent and the Canadian Administrative
Agent; (vii) amend, modify or waive any provision of Section 2.6 or 2.7 without
the written consent of each affected Swingline Lender; or (viii) amend, modify
or waive any provision of Section 3 without the written consent of the Issuing
Lenders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent, the Canadian Administrative
Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the
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Lenders, the Administrative Agent and the Canadian Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing unless limited by the terms of such waiver; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent, the Canadian Administrative Agent and the Borrowers (a) to
add one or more additional credit facilities to this Agreement (it being
understood that no Lender shall have any obligation to provide or to commit to
provide all or any portion of any such additional credit facility) and to permit
the extensions of credit from time to time outstanding thereunder and the
accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the Term Loans and Revolving
Extensions of Credit and the accrued interest and fees in respect thereof and
(b) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders and Majority Facility Lenders.
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Canadian
Administrative Agent, the Borrowers and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all
outstanding Term Loans ("Refinanced Term Loans") with a replacement term loan
tranche hereunder ("Replacement Term Loans"), provided that (a) the aggregate
principal amount of such Replacement Term Loans shall not exceed the aggregate
principal amount of such Refinanced Term Loans, (b) the Applicable Margin for
such Replacement Term Loans shall not be higher than the Applicable Margin for
such Refinanced Term Loans, (c) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (d)
all other terms applicable to such Replacement Term Loans shall be substantially
identical to, or less favorable to the Lenders providing such Replacement Term
Loans than, those applicable to such Refinanced Term Loans, except to the extent
necessary to provide for covenants and other terms applicable to any period
after the latest final maturity of the Term Loans in effect immediately prior to
such refinancing.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrowers, the Administrative
Agent and the Canadian Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the case
of the Lenders, or to such other address as may be hereafter notified by the
respective parties hereto:
Each Borrower: SS&C Technologies, Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. X. Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
in each case with a copy to:
The Carlyle Group
000 Xxxxx Xxxxx Xxxxxx
000
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy to: Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Administrative Agent: JPMorgan Chase Bank, N.A.
0000 Xxxxxx, 00xx Xxxxx
Loan and Agency Services Group
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy to: JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Canadian Administrative Agent JPMorgan Chase Bank, N.A., Toronto Branch
000 Xxx Xxxxxx
Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J2
Attention: Funding Office
Telecopy: 000-000-0000
Telephone: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent,
the Canadian Administrative Agent, the Lenders or the Borrowers shall not be
effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent or the Canadian Administrative Agent, as
applicable; provided that the foregoing shall not apply to notices pursuant to
Section 2 unless otherwise agreed by the Administrative Agent or the Canadian
Administrative Agent, as applicable, and the applicable Lender. The
Administrative Agent, the Canadian Administrative Agent or either Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or
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under the other Loan Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses; Indemnification. Subject to Section 10.20,
the Borrowers agree (a) to pay or reimburse the Administrative Agent, the
Canadian Administrative Agent and the Lead Arrangers for all their respective
reasonable out-of-pocket costs and expenses incurred in connection with the
syndication of the Facilities (other than fees payable to syndicate members) and
the development, preparation, execution and delivery of this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith and any amendment, supplement or modification thereto, and, as to the
Administrative Agent and the Canadian Administrative Agent only, the
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements and other charges of
counsel to the Administrative Agent and the Canadian Administrative Agent
(including one primary counsel and such local counsel as the Administrative
Agent or the Canadian Administrative Agent may reasonably require in connection
with collateral matters, but no more than one counsel in any jurisdiction) in
connection with all of the foregoing, (b) to pay or reimburse each Lender, each
Issuing Lender, the Administrative Agent and the Canadian Administrative Agent
for all their documented out-of-pocket costs and expenses incurred in connection
with the enforcement of any rights under this Agreement, the other Loan
Documents and any such other documents, including, without limitation, the
documented fees and disbursements of counsel (including the allocated fees and
expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent and the Canadian Administrative Agent, (c) to pay,
indemnify, or reimburse each Lender, each Issuing Lender, the Administrative
Agent and the Canadian Administrative Agent for, and hold each Lender, each
Issuing Lender, the Administrative Agent and the Canadian Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and
similar other taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents and (d) to pay,
indemnify or reimburse each Lender, each Agent, their respective affiliates, and
their respective officers, directors, trustees, employees, advisors, agents and
controlling Persons (each, an "Indemnitee") for, and hold each Indemnitee
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, costs, expenses or disbursements arising out of any actions,
judgments or suits of any kind or nature whatsoever, arising out of or in
connection with any claim, action or proceeding relating to or otherwise with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of either Borrower,
any of its Subsidiaries or any of the Properties and the fees and disbursements
and other charges of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against either Borrower hereunder (all the
foregoing in this clause (d), collectively, the "Indemnified Liabilities"),
provided, that neither Borrower shall have any obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a court of competent jurisdiction to have
resulted from the gross negligence, bad faith or willful
105
misconduct of, or breach of this Agreement by, such Indemnitee or its
affiliates, officers, directors, trustees, employees, advisors, agents or
controlling Persons. All amounts due under this Section 10.5 shall be payable
promptly after receipt of a reasonably detailed invoice therefor. Statements
payable by either Borrower pursuant to this Section shall be submitted to such
Borrower at the address thereof set forth in Section 10.2, or to such other
Person or address as may be hereafter designated by such Borrower in a written
notice to the Administrative Agent and the Canadian Administrative Agent. The
agreements in this Section 10.5 shall survive repayment of the Obligations.
10.6 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 Lender that issues any Letter of
Credit), except that (i) neither Borrower may assign or otherwise transfer any
of its rights or obligations hereunder (other than pursuant to the Company
Reorganization) without the prior written consent of each Lender (and any
attempted assignment or transfer by such Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees (each, an "Assignee"), but in any
event not to any competitor of the Borrowers, 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) with the prior written consent (such
consent not to be unreasonably withheld or delayed) of:
(A) the US Borrower (and the CDN Borrower, in the case of any
assignment by a CDN Lender), provided that no consent of either Borrower
shall be required for an assignment to a Lender, an affiliate of a Lender,
an Approved Fund (as defined below) or, if an Event of Default under
Section 8(a) or (f) has occurred and is continuing, any other Person; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of all or any
portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved
Fund.
(C) (I) in the case of an assignment under the US Revolving Facility,
each US Issuing Lender and (II) in the case of an assignment under the CDN
Revolving Facility, each CDN Issuing Lender.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender's Commitments or Loans under any Facility, the
amount of the Commitments or Loans of the assigning Lender subject to each
such assignment (determined as of (I) the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent or (II) if earlier, the "trade date" (if any)
specified in such Assignment and Assumption) shall not be less than (x)
$5,000,000, in the case of the US Revolving Facility, (y) $1,000,000, in
the case of the CDN Revolving Facility or (z) $1,000,000, in the case of
either Term Facility, unless each Borrower in respect of such Facility and
the Administrative Agent otherwise consent, provided that (1) no such
consent of the Borrowers shall be required if an Event of Default under
Section 8(a) or (f) has occurred and is continuing and (2) such amounts
shall be aggregated in respect of each Lender and its affiliates or
Approved Funds, if any;
106
(B) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; provided that only one such fee
shall be payable in the case of contemporaneous assignments to or by two or
more related Approved Funds;
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire;
(D) so long as no Event of Default under Section 8(a) or 8(f) has
occurred and is continuing, with respect to any assignment of the CDN
Revolving Commitments of any Lender which are allocated to the CDN Borrower
in accordance with 2.4(b), (I) the Assignee shall be either (x) a resident
in Canada for purposes of the ITA or (y) deemed to be a resident in Canada
for purposes of Part XIII of the ITA in respect of all amounts to be paid
or credited to such Assignee and owing by the CDN Borrower under the CDN
Revolving Facility and (II) a pro rata portion of the CDN Revolving
Commitments of such Lender or its Related Affiliate, as applicable,
allocated to the US Borrower in accordance with Section 2.4(b) shall be
assigned to such Assignee or a Related Affiliate of such Assignee, if
applicable, that is either a "United States person" (as such term is
defined in Section 7701(a)(30) of the Code) or a Non-US Lender that has
fulfilled the requirements of Section 2.20(d) or (e), as applicable; and
(E) (I) with respect to any assignment of US Revolving Commitments of
any Lender that holds (or has an affiliate that holds) CDN Revolving
Commitments, a pro rata portion of such CDN Revolving Commitments shall
also be assigned to the relevant Assignee or an affiliate thereof (which
assignment of CDN Revolving Commitments shall be subject to the
requirements of the preceding paragraph (D)) and (II) with respect to any
assignment of CDN Revolving Commitments of any Lender that holds (or has an
affiliate that holds) US Revolving Commitments, a pro rata portion of such
US Revolving Commitments shall also be assigned to the relevant Assignee or
an affiliate thereof.
For the purposes of this Section 10.6, "Approved Fund" means any
Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c)(i) an entity or an Affiliate of an entity that
administers or manages a Lender or (ii) an entity or an Affiliate of an entity
that is the investment advisor to a Lender. Notwithstanding the foregoing, no
Lender shall be permitted to assign or transfer any portion of its rights and
obligations under this Agreement to any entity previously identified in that
certain letter dated as of the date hereof from the US Borrower to the
Administrative Agent and available to any Lender upon request.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.19, 2.20, 2.21 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
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(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amount of
the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The Borrowers, the Administrative Agent, the
Canadian Administrative Agent, the Issuing Lenders and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement (and the entries in the
Register shall be conclusive for such purposes), notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers, the
Issuing Lenders and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption 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.
(c)(i) Any Lender may, without the consent of either Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant"), but in any event not to any competitor of the Borrowers, in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Administrative Agent, the Canadian Administrative Agent, the Issuing Lenders and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender 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 such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly and adversely
affected thereby pursuant to the proviso to the second sentence of Section 10.1
and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.19, 2.20 and 2.21 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.19 or 2.20 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent to such greater amounts. No Participant shall
be entitled to the benefits of Section 2.20 unless such Participant complies
with Section 2.20(d) or (e), as (and to the extent) applicable, as if such
Participant were a Lender.
(d) Any Lender may, without the consent of the Administrative Agent or
either Borrower, 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,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section 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 from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.
108
(e) Each Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by setoff, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise) in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of
such other Lender's Obligations, such Benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each such
other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrowers,
any such notice being expressly waived by the Borrowers to the extent permitted
by applicable law, upon any amount becoming due and payable by either Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) after
the expiration of any cure or grace periods, to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final but excluding trust accounts), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of such Borrower. Each Lender agrees promptly to notify
the relevant Borrower and the Administrative Agent (and the Canadian
Administrative, in the case of any setoff with respect to amounts owing by the
CDN Borrower) after any such setoff and application made by such Lender,
provided, that the failure to give such notice shall not affect the validity of
such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the US Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrowers, the Administrative Agent, the
Canadian Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,
109
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
10.12 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to it at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.13 Judgment Currency.
(a) If, for the purpose of obtaining or enforcing judgment against
either Borrower in any court in any jurisdiction, it becomes necessary to
convert into any other currency (the "Judgment Currency") an amount due under
this Agreement or any other Loan Document in any currency (the "Obligation
Currency") other than the Judgment Currency, the conversion shall be made at the
rate of exchange prevailing on the Business Day immediately preceding the date
of actual payment of the amount due, in the case of any proceeding in the courts
of the State of New York or in the courts of any other jurisdiction that will
give effect to such conversion being made on such date, or 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 being
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 10.13(a), there is a change in the rate of exchange
prevailing between the Judgment Conversion Date and the date of actual receipt
of the amount due in immediately available funds, the relevant Borrower shall
pay such additional amount (if any, but in any event not a 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 either Borrower under this Section 10.13
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 this Agreement. The
term "rate
110
of exchange" in this Section means the rate of exchange at which the
Administrative Agent, on the relevant date at or about 12:00 noon (New York
time), would be prepared to sell, in accordance with its normal course foreign
currency exchange practices, the Obligation Currency against the Judgment
Currency.
10.14 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent, the Canadian Administrative
Agent nor any Lender has any fiduciary relationship with or duty to such
Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent,
the Canadian Administrative Agent and Lenders, on one hand, and such
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
10.15 Confidentiality. The Agents and the Lenders agree to treat any
and all information, regardless of the medium or form of communication, that is
disclosed, provided or furnished, directly or indirectly, by or on behalf of
either Borrower or any of its affiliates, whether in writing, orally, by
observation or otherwise and whether furnished before or after the Closing Date
("Confidential Information"), strictly confidential and not to use Confidential
Information for any purpose other than evaluating the Transaction and
negotiating, making available, syndicating and administering the Credit
Agreement (the "Agreed Purposes"). Without limiting the foregoing, each Agent
and each Lender agrees to treat any and all Confidential Information with no
less than adequate means to preserve its confidentiality, and each Agent and
each Lender agrees not to disclose Confidential Information, at any time, in any
manner whatsoever, directly or indirectly, to any other Person whomsoever,
except (1) to its directors, officers, employees, counsel, trustees and other
representatives (collectively, the "Representatives"), to the extent necessary
to permit such Representatives to assist in connection with the Agreed Purposes,
(2) to prospective Lenders and participants in connection with the syndication
(including secondary trading) of the Facilities and Commitments and Loans
hereunder, in each case who are informed of the confidential nature of the
information and agree to observe and be bound by standard confidentiality terms,
(3) upon the request or demand of any Governmental Authority having jurisdiction
over it, (4) in response to any order of any Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (5) to the extent
reasonably required or necessary, in connection with any litigation or similar
proceeding relating to the Facilities, (6) that has been publicly disclosed
other than in breach of this Section 10.15, (7) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender or (8)
to the extent reasonably required or necessary, in connection with the exercise
of any remedy under the Loan Documents. Each Agent and each Lender acknowledges
that (i) Confidential Information includes information that is not otherwise
publicly available and that such non-public information may constitute
confidential business information which is proprietary to the Borrowers and (ii)
each Borrower has advised the Agents and the Lenders that it is relying on the
Confidential Information for its success and would not disclose the Confidential
Information to the Agents and the Lenders without the confidentiality provisions
of this Agreement.
111
10.16 Release of Collateral and Guarantee Obligations. (a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the relevant Borrower in connection with any
Disposition of Property permitted by the Loan Documents, the Administrative
Agent or the Canadian Administrative Agent, as applicable, shall (without notice
to, or vote or consent of, any Lender, or any affiliate of any Lender that is a
party to any Specified Hedge Agreement, Specified Cash Management Agreement or
contingent or indemnification obligations not then due) take such actions as
shall be required to release its security interest in any Collateral being
Disposed of in such Disposition, and to release any Guarantee Obligations under
any Loan Document of any Person being Disposed of in such Disposition, to the
extent necessary to permit consummation of such Disposition in accordance with
the Loan Documents. Any representation, warranty or covenant contained in any
Loan Document relating to any such Property so Disposed of (other than Property
Disposed of to any Group Member) shall no longer be deemed to be repeated once
such Property is so Disposed of.
(b) (i) Notwithstanding anything to the contrary contained herein or
any other Loan Document, when all Obligations (other than (x) obligations in
respect of any Specified Hedge Agreement or any Specified Cash Management
Arrangement and (y) any contingent or indemnification obligations not then due)
have been paid in full, all Commitments have terminated or expired and no Letter
of Credit shall be outstanding, upon request of the US Borrower, the
Administrative Agent and the Canadian Administrative Agent shall (without notice
to, or vote or consent of, any Lender, or any affiliate of any Lender that is a
party to any Specified Hedge Agreement or Specified Cash Management Arrangement)
take such actions as shall be required to release its security interest in all
Collateral, and to release all Guarantee Obligations under any Loan Document,
whether or not on the date of such release there may be outstanding Obligations
in respect of Specified Hedge Agreements, Specified Cash Management Arrangements
or contingent or indemnification obligations not then due. Any such release of
Guarantee Obligations shall be deemed subject to the provision that such
Guarantee Obligations shall be reinstated if after such release any portion of
any payment in respect of the Obligations guaranteed thereby shall be rescinded
or must otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Borrower or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, either Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payment had not been made.
(ii) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when all CDN Obligations (other than (x) obligations in
respect of any Specified Hedge Agreement or any Specified Cash Management
Arrangement and (y) any contingent or indemnification obligations not then due)
have been paid in full, all CDN Term Commitments and CDN Revolving Commitments
have terminated or expired and no B/A or CDN Letter of Credit shall be
outstanding, upon request of the CDN Borrower, the Canadian Administrative Agent
shall (without notice to, or vote or consent of, any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement, Specified Cash
Management Arrangement or contingent or indemnification obligations not then
due) take such actions as shall be required to release its security interest in
all Collateral, and to release all Guarantee Obligations in favor of it under
any Loan Document, whether or not on the date of such release there may be
outstanding CDN Obligations in respect of Specified Hedge Agreements, Specified
Cash Management Arrangements or contingent or indemnification obligations not
then due. Any such release of Guarantee Obligations shall be deemed subject to
the provision that such Guarantee Obligations shall be reinstated if after such
release any portion of any payment in respect of the Obligations guaranteed
thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the CDN
Borrower or any CDN Subsidiary Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the CDN Borrower or any CDN Subsidiary Guarantor or any substantial
part of its property, or otherwise, all as though such payment had not been
made.
112
10.17 Accounting Changes. In the event that any Accounting Change (as
defined below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then
the Borrowers and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating the
Borrowers' financial condition shall be the same after such Accounting Changes
as if such Accounting Changes had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrowers, the
Administrative Agent, the Canadian Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
10.18 WAIVERS OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT,
THE CANADIAN ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.19 USA PATRIOT ACT. Each Lender hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Publ. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrowers, which information
includes the name and address of the Borrowers and other information that will
allow such Lender to identify the Borrowers in accordance with the Act.
10.20 CDN Obligations. Notwithstanding anything in any Loan Document
to the contrary, the parties hereto acknowledge that (a) the CDN Loan Parties
are only obligated with respect to the CDN Obligations and costs and expenses
associated therewith, (b) the CDN Lenders (together with the Administrative
Agent, the Canadian Administrative Agent and certain Affiliates of the CDN
Lenders) shall be the only secured parties under the CDN Security Documents and
(c) any realization of collateral under the CDN Security Documents shall only be
with respect to the CDN Obligations (with the application of funds as set forth
in such CDN Security Documents.
10.21 CDN Amalgamation. Each Lender hereby agrees that, to the extent
that such Lender's consent to, or approval of, the CDN Amalgamation is necessary
or appropriate under applicable law, such Lender hereby irrevocably authorizes
the Administrative Agent to give such consent and approval on behalf of such
Lender, and to take such other actions in furtherance thereof as may be
reasonably related thereto, and that any such consent or approval given on
behalf of such Lender shall be effective against such Lender to the same extent
as if originally given thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SUNSHINE ACQUISITION II, as Initial US
Borrower
By: /s/ Xxxxxxxx X. Xxxxx, XX
------------------------------------
Name: Xxxxxxxx X. Xxxxx, XX
Title: President
SS&C TECHNOLOGIES CANADA CORP., as CDN
Borrower
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH, as Canadian Administrative Agent
and as a Lender
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
Signature Page to Credit Agreement
By executing and delivering this counterpart, the Surviving US Borrower hereby
assumes all rights, title, interests, obligations and liabilities of all and
whatever nature of the Initial US Borrower hereunder (in furtherance of and in
addition to, and not in lieu of, any assumption or deemed assumption by
operation of law) from and after the date hereof with the same force and effect
as if originally the "Initial US Borrower". Without limiting the generality of
the foregoing, the Surviving US Borrower hereby expressly agrees to observe and
perform and be bound by all of the terms, covenants, representations,
warranties, and agreements contained herein which are binding upon, and to be
observed or performed by, the Initial US Borrower or the Surviving US Borrower.
SS&C TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
Signature Page to Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to Credit Agreement
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: SVP
Signature Page to Credit Agreement
THE NORINCHUKIN TRUST & BANKING CO.,
LTD., acting as trustee for Trust
Account No. 430000-77
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Manager
Signature Page to Credit Agreement
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Deputy General Manager
Signature Page to Credit Agreement
BANK OF AMERICA, N.A., CANADA BRANCH
By: /s/ Xxxxxx Sales xx Xxxxxxx
------------------------------------
Name: Xxxxxx Sales xx Xxxxxxx
Title: Assistant Vice President
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered to you pursuant to Section
6.2 of the Credit Agreement, dated as of November 23, 2005 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Sunshine Acquisition II, Inc., as Initial US Borrower, SS&C Technologies,
Inc., a Delaware corporation (the "Surviving US Borrower"), SS&C Technologies
Canada Corp., as CDN Borrower, the several banks and other financial
institutions or entities from time to time parties to the Credit Agreement as
lenders, Wachovia Bank, National Association, as Syndication Agent, JPMorgan
Chase Bank, N.A., as administrative agent (in such capacity, the "Administrative
Agent") and JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian
Administrative Agent. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
1. At the end of the accounting period, for the accounting period
ended _________, covered by the financial statements attached hereto as
Attachment 1, the Surviving US Borrower has no knowledge of any Default or Event
of Default[, except as set forth below].
2. Attached hereto as Attachment 2 are information and calculations
showing compliance with the covenants set forth in Section 7.1 of the Credit
Agreement.
[3. Include description of any new Subsidiary, any change in
jurisdiction of organization of any Loan Party and a listing of any material
Intellectual Property filings by any Loan Party, to the extent not previously
disclosed to the Administrative Agent.]
IN WITNESS WHEREOF, the Surviving US Borrower has caused this
Certificate to be executed as of this _____ day of ____, 200_.
SS&C TECHNOLOGIES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attachment 1
to Compliance Certificate
[Financial Statements]
Attachment 2
to Compliance Certificate
The information described herein is as of ______, 200_, and pertains
to the period from _________, 200_ to ________ __, 200_.
[Covenant Calculations]
EXHIBIT C
FORM OF CLOSING CERTIFICATE
Pursuant to section 5.1(h) of the Credit Agreement, dated as of
November 23, 2005 (the "Credit Agreement"; unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement), among Sunshine Acquisition II, Inc., as
Initial US Borrower, SS&C Technologies, Inc., as Surviving US Borrower, SS&C
Technologies Canada Corp., as CDN Borrower, the several banks and other
financial institutions or entities from time to time parties to the Credit
Agreement as lenders, Wachovia Bank, National Association, as Syndication Agent,
JPMorgan Chase Bank, N.A., as Administrative Agent, and JPMorgan Chase Bank,
N.A., Toronto Branch, as Canadian Administrative Agent, the undersigned [Insert
name of officer] [Insert title of officer] of _____________ (the "Company"),
hereby certifies on behalf of the Company as follows:
1. The Specified Representations of the Company set forth in each of
the Loan Documents to which it is a party or which are contained
in any certificate furnished by or on behalf of the Company
pursuant to any of the Loan documents to which it is a party are
true and correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof, except
for representations and warranties expressly stated to relate to
a specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of
such earlier date.
2. ___________________ is the duly elected and qualified Corporate
Secretary of the Company and the signature set forth for such
officer below is such officer's true and genuine signature.
3. No Default or Event of Default has occurred and is continuing as
of the date hereof or after giving effect to the Loans and other
extensions of credit to be made on the date hereof [Surviving US
Borrower only].
The undersigned Corporate Secretary of the Company hereby certifies as
follows:
1. Attached hereto as Annex 1 is a true and complete copy of a
Certificate of Good Standing or the equivalent from the Company's
jurisdiction of organization dated as of a recent date prior to
the date hereof.
2. Attached hereto as Annex 2 is a true and complete copy of
resolutions/unanimous written consent duly adopted by the Board
of Directors of the Company on _________ __, 2005, such
resolutions have not in any way been amended, modified, revoked
or rescinded, have been in full force and effect since their
adoption to and including the date hereof and are now in full
force and effect and are the only corporate proceedings of the
Company now in force relating to or affecting the matters
referred to therein.
3. Attached hereto as Annex 3 is a true and complete copy of the
Bylaws/Memorandum of Association of the Company as in effect on
the date hereof.
4. Attached hereto as Annex 4 is a true and complete certified copy
of the Articles of Incorporation/Association of the Company as in
effect on the date hereof, and
such Articles of Incorporation have not been amended, repealed,
modified or restated.
5. The persons listed on Schedule I hereto are now duly elected and
qualified officers of the Company holding the offices indicated
next to their respective names on Schedule I hereto, and the
signatures appearing opposite their respective names on Schedule
I hereto are the true and genuine signatures of such officers,
and each of such officers is duly authorized to execute and
deliver on behalf of the Company each of the Loan Documents to
which it is a party and any certificate or other document to be
delivered by the Company pursuant to the Loan Documents to which
it is a party.
6. Xxxxxx & Xxxxxxx LLP may rely on this certificate in rendering
its opinion.
IN WITNESS WHEREOF, the undersigned have hereunto set our names as of
the date set forth below.
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: November 23, 2005
Schedule I
to Closing Certificate
NAME OFFICE SIGNATURE
---- ------ ---------
---------------------------
---------------------------
Annex 1
to Closing Certificate
[Certificate of Good Standing]
Annex 2
to Closing Certificate
[Board Resolutions/Unanimous Written Consent]
Annex 3
to Closing Certificate
[Bylaws/Memorandum of Association]
Annex 4
to Closing Certificate
[Articles of Incorporation/Association]
EXHIBIT D
FORM OF
ASSIGNMENT AND ASSUMPTION
Reference is made to the Credit Agreement, dated as of November 23,
2005 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Sunshine Acquisition II, Inc., a Delaware
corporation, as Initial US Borrower, SS&C Technologies, Inc., a Delaware
corporation (the "Surviving US Borrower"), SS&C Technologies Canada Corp., a
Nova Scotia unlimited company (the "CDN Borrower" and together with the
Surviving US Borrower, the "Borrowers"), the several banks and other financial
institutions or entities from time to time parties to the Credit Agreement as
lenders (the "Lenders"), Wachovia Bank, National Association, as Syndication
Agent, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
"Administrative Agent"), and JPMorgan Chase Bank, N.A., Toronto Branch, as
Canadian Administrative Agent. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor is the legal
and beneficial owner of the Assigned Interest and that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of either Borrower, any of its Affiliates or any other
obligor or the performance or observance by either Borrower, any of its
Affiliates or any other obligor of any of their respective obligations under the
Credit Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Assumption; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Section 4.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agents or any Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform
in accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender including, if
applicable, its obligation pursuant to Section 2.20(d) or 2.20(e) of the Credit
Agreement.
4. The effective date of this Assignment and Assumption shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Assumption, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Assumption, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Assumption,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Assumption shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
to Assignment and Assumption with respect to the Credit Agreement, dated as of
November 23, 2005 among Sunshine Acquisition II, Inc., as Initial US Borrower,
SS&C Technologies, Inc. a Delaware corporation (the "Surviving US Borrower"),
SS&C Technologies Canada Corp., a Nova Scotia unlimited company (the "CDN
Borrower"), the several banks and other financial institutions or entities from
time to time parties to the Credit Agreement as lenders (the "Lenders"),
JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
"Administrative Agent") and the other parties thereto
Name of Assignor: _______________________
Name of Assignee: _______________________
[and is an Affiliate/Approved Fund of [identify Lender]
Effective Date of Assignment: _________________
[Trade Date of Assignment: _________________]
Principal
Credit Facility Assigned Amount Assigned Commitment Percentage Assigned
------------------------ --------------- ------------------------------
[US Term Facility][US Revolving $__________ _____.__________%
Facility][CDN Term Facility][CDN
Revolving Facility]
------------------------------------- ----------------------------------------
[Name of Assignee] [Name of Assignor]
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
Accepted for Recordation in the [Required Consents (if any):
Register:
JPMorgan Chase Bank, N.A., as JPMorgan Chase Bank, N.A., as
Administrative Agent Administrative Agent
By: By:
--------------------------------- ------------------------------------
Title: Title:
------------------------------ ---------------------------------
JPMorgan Chase Bank, N.A.,
as US Issuing Lender
By:
------------------------------------
Title:
---------------------------------
JPMorgan Chase Bank, N.A., Toronto
Branch, as CDN Issuing Lender
By:
------------------------------------
Title:
---------------------------------
[signature page for additional required consents (if any) follows]
[Required Consents (if any):
SS&C Technologies, Inc., as
Surviving US Borrower
By:
------------------------------------
Title:
---------------------------------
SS&C Technologies Canada Corp., as
CDN Borrower
By:
------------------------------------
Title: ]
--------------------------------
EXHIBIT F
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of November 23,
2005 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Sunshine Acquisition II, Inc., as Initial US
Borrower, SS&C Technologies, Inc., a Delaware corporation (the "Surviving US
Borrower"), SS&C Technologies Canada Corp., as CDN Borrower, the several banks
and other financial institutions or entities from time to time parties to the
Credit Agreement as lenders, Wachovia Bank, National Association, as Syndication
Agent, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
"Administrative Agent") and JPMorgan Chase Bank, N.A., Toronto Branch, as
Canadian Administrative Agent. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
______________________ (the "Non-U.S. Lender") is providing this
certificate pursuant to Section 2.20(d) of the Credit Agreement. The Non-U.S.
Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner of the
Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Code. In this regard, the Non-U.S. Lender further represents
and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other legal
requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the US
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
-------------------------------
EXHIBIT G
FORM OF SOLVENCY CERTIFICATE
Pursuant to Section 5.1(f) of the Credit Agreement, dated as of
November 23, 2005 (the "Credit Agreement"; unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement), among Sunshine Acquisition II, Inc., as
Initial US Borrower, SS&C Technologies, Inc., a Delaware corporation, as
Surviving US Borrower, SS&C Technologies Canada Corp., as CDN Borrower, the
several banks and other financial institutions or entities from time to time
parties to the Credit Agreement as lenders, Wachovia Bank, National Association,
as Syndication Agent, JPMorgan Chase Bank, N.A., as Administrative Agent and
JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Administrative Agent, the
undersigned hereby certifies that he is the duly elected and acting Chief
Financial Officer of the Surviving US Borrower, and that as such he is
authorized to execute and deliver this Solvency Certificate on behalf of the
Surviving US Borrower.
The Surviving US Borrower further certifies that the US Borrower and
its Subsidiaries, on a consolidated basis, are Solvent after giving effect to
the initial extensions of credit to be made on the Closing Date and the
consummation of the Transaction on the Closing Date.
IN WITNESS WHEREOF, the undersigned Surviving US Borrower has caused this
Solvency Certificate to be executed as of this 23rd day of November, 2005.
SS&C TECHNOLOGIES, INC.
By:
------------------------------------
Name:
----------------------------------
Title: Chief Financial Officer
EXHIBIT H
FORM OF DISCOUNT NOTE
CDN$________________ Date: _________________
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay on
____________, 20__, to or to the order of ______________________ (the "Holder"),
the sum of CDN$____________ with no interest thereon.
The undersigned hereby waives presentment, protest and notice of every
kind and waives any defences based upon indulgences which may be granted by the
holder hereof to any party liable hereon and any days of grace.
This promissory note is a Discount Note, as defined in the credit
agreement made as of the 23rd day of November, 2005 (as amended, the "Credit
Agreement") among Sunshine Acquisition II, Inc., as Initial US Borrower, SS&C
Technologies, Inc., as Surviving US Borrower, SS&C Technologies Canada Corp., as
CDN Borrower, the several banks and other financial institutions or entities
from time to time parties to the Credit Agreement as lenders, Bank of America,
N.A., as documentation agent, Wachovia Bank, National Association, as
syndication agent, JPMorgan Chase Bank, N.A., as administration agent and
JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian administrative agent (in
such capacity, the "Canadian Administrative Agent"), and constitutes
indebtedness to the Holder arising under such Discount Note as contemplated
under the Credit Agreement. Payment of this note shall be made at the offices of
the Canadian Administrative Agent at 000 Xxx Xxxxxx, Xxxxx Xxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxx, Xxxxxxx.
[OBLIGOR]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT I
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of [____________, 200__] (the "Joinder
Agreement" or this "Agreement"), by and among [NEW LOAN LENDERS] (each, a "New
Loan Lender" and, collectively, the "New Loan Lenders"), [SS&C TECHNOLOGIES,
INC., a Delaware corporation (the "Applicable Borrower")](1) [SS&C TECHNOLOGIES
CANADA CORP., a Nova Scotia unlimited company (the "Applicable Borrower")](2),
and JPMORGAN CHASE BANK, N.A. (the "Administrative Agent").
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of
November 23, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Sunshine Acquisition II, Inc. as Initial US
Borrower, SS&C Technologies, Inc., a Delaware corporation (the "Surviving US
Borrower"), SS&C Technologies Canada Corp., a Nova Scotia unlimited company (the
"CDN Borrower"), the lending institutions from time to time parties thereto
(each a "Lender" and, collectively, the "Lenders"), the Administrative Agent,
JPMorgan Chase Bank, N.A., Toronto Branch, as the Canadian Administrative Agent
(the "Canadian Administrative Agent" and, together with the Administrative
Agent, the "Administrative Agents") and the other parties thereto (capitalized
terms used but not defined herein having the meaning provided in the Credit
Agreement); and
WHEREAS, subject to the terms and conditions of the Credit Agreement,
the Borrowers may establish New Term Loan Commitments by, among other things,
entering into one or more Joinder Agreements with New Term Loan Lenders;
NOW, THEREFORE, in consideration of the premises and agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
I. Each New Loan Lender party hereto hereby agrees to commit to
provide its New Term Loan Commitment, as set forth on Schedule A annexed hereto,
on the terms and subject to the conditions set forth below:
II. Each New Loan Lender (i) confirms that it has received a copy of
the Credit Agreement and the other Loan Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement; (ii) agrees
----------
(1) In the case of a request by the US Borrower for the establishment of New
Term Loan Commitments.
(2) In the case of a request by the Canadian Borrower for the establishment of
New Term Loan Commitments.
that it will, independently and without reliance upon the Administrative Agent,
the Canadian Administrative Agent or any other New Loan Lender or any other
Lender or Agent and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) appoints and authorizes the
Administrative Agent and/or the Canadian Administrative Agent, as applicable, to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent and/or the Canadian Administrative Agent, respectively, by
the terms thereof, together with such powers as are reasonably incidental
thereto; and (iv) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement are required to be
performed by it as a New Term Loan Lender.
III. Each New Loan Lender hereby agrees to make its respective
Commitment on the following terms and conditions:
1. APPLICABLE MARGIN. The Applicable Margin for each Tranche [_] New Term
Loan shall mean, as of any date of determination, a percentage per annum as set
forth below:
[INSERT PRICING]
2. PRINCIPAL PAYMENTS. The Applicable Borrower shall make principal
payments on the Tranche [__] New Term Loans in installments on the dates and in
the amounts set forth below:
(A) (B) SCHEDULED
PAYMENT REPAYMENT OF SERIES
DATE [__] NEW TERM LOANS
------- -------------------
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
C$/$____________
3. VOLUNTARY AND MANDATORY PREPAYMENTS. Scheduled installments of principal
of the Tranche [__] New Term Loans set forth above shall be reduced in
connection with any optional or mandatory prepayments of the Tranche [__] New
Term Loans in accordance with Sections 2.11 and 2.12 of the Credit Agreement
respectively.
4. PROPOSED BORROWING. This Agreement represents the Applicable Borrower's
request to borrow Tranche [ ] New Term Loans from the New Term Loan Lenders as
follows (the "PROPOSED BORROWING"):
SECTION 1. Business Day of Proposed Borrowing: ____________, ___
SECTION 2. Amount of Proposed Borrowing: C$/$___________________
SECTION 3. Interest rate option:
a. ABR Loan(s)
b. CDN ABR Loan(s)
c. CDN Prime Loan(s)
d. Eurocurrency Loan(s) with an initial Interest Period of __ months
e. Bankers' Acceptance(s) with a maturity of __ months
5. [NEW LOAN LENDERS. Each New Loan Lender acknowledges and agrees that
upon its execution of this Agreement and the making of Tranche [___] New Term
Loans, such New Loan Lender shall become a "Lender" under, and for all purposes
of, the Credit Agreement and the other Loan Documents, and shall be subject to
and bound by the terms thereof, and shall perform all the obligations of and
shall have all rights of a Lender thereunder.](3)
6. CREDIT AGREEMENT GOVERNS. Except as set forth in this Agreement, the
Tranche [___] New Term Loans shall otherwise be subject to the provisions of the
Credit Agreement and the other Loan Documents.
7. APPLICABLE BORROWER'S CERTIFICATIONS. By its execution of this
Agreement, the undersigned officer, to the best of his or her knowledge, and the
Applicable Borrower hereby certify that:
i. The representations and warranties in or pursuant to the Loan
Documents are true and correct in all material respects on and as of the
date hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and
----------
(3) Insert bracketed language if the lending institution is not already a
Lender.
warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all material
respects on and as of such earlier date;
ii. No Default or Event of Default has occurred and is continuing as
of the date hereof after giving effect to the proposed Borrowing
contemplated hereby; and
8. NOTICE. For purposes of the Credit Agreement, the initial notice address
of each New Loan Lender shall be as set forth below its signature below.
9. NON-US LENDERS. For each New Loan Lender that is a Non-US Lender,
delivered herewith to Administrative Agent are such forms, certificates or other
evidence with respect to United States federal income tax withholding matters as
such New Loan Lender may be required to deliver to Administrative Agent pursuant
to subsection 2.20(d) or 2.20(e) of the Credit Agreement.
10. RECORDATION OF THE NEW LOANS. Upon execution and delivery hereof,
Administrative Agent will record the Tranche [___] New Term Loans made by each
New Loan Lender in the Register.
11. AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be amended,
modified or waived except as provided by Section 10.1 of the Credit Agreement.
12. ENTIRE AGREEMENT. This Agreement, the Credit Agreement and the other
Loan Documents constitute the entire agreement among the parties with respect to
the subject matter hereof and thereof and supersede all other prior agreements
and understandings, both written and verbal, among the parties or any of them
with respect to the subject matter hereof.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. SEVERABILITY. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as would be enforceable.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized
officer to execute and deliver this Joinder Agreement as of [___________, ___].
[NAME OF NEW LOAN LENDER],
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Notice Address:
------------------------
Attention:
-----------------------------
Telephone:
-----------------------------
Facsimile:
-----------------------------
[SS&C TECHNOLOGIES, INC.]
[SS&C TECHNOLOGIES CANADA CORP.]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONSENTED TO BY:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE A
TO JOINDER AGREEMENT
NAME OF NEW LOAN LENDER TYPE OF COMMITMENT AMOUNT
----------------------- ------------------------ --------------
[__________________] New Term Loan Commitment C$/$__________
