EXHIBIT 10.3(a)
EXECUTION COPY
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US$ 175,000,000
C$ 40,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 24, 1999
XXXXXX XXXXX CORP.
AND
XXXXXX XXXXX COMMAND COMPANY,
AS BORROWERS
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
CANADIAN IMPERIAL BANK OF COMMERCE
AS CANADIAN ADMINISTRATIVE AGENT
AND
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY
AS US ADMINISTRATIVE AGENT
_______________
FLEET NATIONAL BANK
AS DOCUMENTATION AGENT
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS 2
1.1 DEFINED TERMS 2
1.2 OTHER DEFINITIONAL PROVISIONS 32
SECTION 2. THE US COMMITMENTS 32
2.1 THE US COMMITMENTS 32
2.2 PROCEDURE FOR US$ LOAN BORROWING 33
2.3 CONVERSION AND CONTINUATION OPTIONS 33
2.4 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EURODOLLAR TRANCHES 34
SECTION 3. THE CANADIAN COMMITMENTS 35
3.1 THE CANADIAN COMMITMENTS 35
3.2 PROCEDURE FOR C$ LOAN BORROWING 35
3.3 BANKERS' ACCEPTANCES 35
3.4 CONVERSION OPTION 39
3.5 CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE 40
SECTION 4. GENERAL PROVISIONS 40
4.1 REPAYMENT OF LOANS; EVIDENCE OF DEBT 40
4.2 COMMITMENT FEE 42
4.3 TERMINATION OR REDUCTION OF COMMITMENTS 42
4.4 OPTIONAL AND MANDATORY PREPAYMENTS 44
4.5 INTEREST RATES AND PAYMENT DATES 48
4.6 COMPUTATION OF INTEREST, FEES AND DOLLAR EQUIVALENT AMOUNTS 49
4.7 INABILITY TO DETERMINE EURODOLLAR RATE 50
4.8 PRO RATA TREATMENT AND PAYMENTS 51
4.9 ILLEGALITY 52
4.10 REQUIREMENTS OF LAW 53
4.11 TAXES 54
4.12 INDEMNITY 56
4.13 CHANGE OF LENDING OFFICE 57
SECTION 5. REPRESENTATIONS AND WARRANTIES 57
5.1 FINANCIAL CONDITION 57
5.2 NO CHANGE 58
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW 58
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS 58
5.5 NO LEGAL BAR 59
5.6 NO MATERIAL LITIGATION 59
5.7 NO DEFAULT 59
5.8 OWNERSHIP OF PROPERTY; LIENS 59
5.9 INTELLECTUAL PROPERTY 60
5.10 NO BURDENSOME RESTRICTIONS 60
5.11 TAXES 60
5.12 MARGIN REGULATIONS 60
5.13 ERISA; CANADIAN PENSION PLANS 60
5.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS 62
5.15 ENVIRONMENTAL MATTERS 62
5.16 REGULATION H 63
5.17 CAPITALIZATION 63
5.18 SUBSIDIARIES 63
5.19 RESTRICTIONS ON OR RELATING TO SUBSIDIARIES 63
- I -
5.20 SUBCHAPTER S STATUS 64
5.21 LEASES 64
5.22 RELATED AGREEMENTS 64
SECTION 6. CONDITIONS PRECEDENT 64
6.1 CONDITIONS TO EFFECTIVENESS 64
6.2 CONDITIONS TO INITIAL EXTENSION OF CREDIT 65
6.3 ADDITIONAL CONDITIONS FOR ACQUISITION LOANS 66
6.4 CONDITIONS TO EACH EXTENSION OF CREDIT 68
SECTION 7. AFFIRMATIVE COVENANTS 69
7.1 FINANCIAL STATEMENTS, ETC 69
7.2 CERTIFICATES; OTHER INFORMATION 70
7.3 BOOKS, RECORDS AND INSPECTIONS 71
7.4 MAINTENANCE OF PROPERTY, INSURANCE 71
7.5 CORPORATE FRANCHISES 72
7.6 COMPLIANCE WITH STATUTES, ETC. 72
7.7 COMPLIANCE WITH ENVIRONMENTAL LAWS 72
7.8 ERISA; CANADIAN PENSION PLANS 73
7.9 END OF FISCAL YEARS; FISCAL QUARTERS 75
7.10 PERFORMANCE OF OBLIGATIONS 75
7.11 PAYMENT OF TAXES 75
7.12 USE OF PROCEEDS 75
7.13 NOTICES 75
7.14 ADDITIONAL MORTGAGES 77
7.15 ADDITIONAL STOCK PLEDGES 77
7.16 ADDITIONAL GUARANTEE AND SECURITY AGREEMENTS 79
SECTION 8. NEGATIVE COVENANTS 79
8.1 LIENS 80
8.2 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. 81
8.3 LIMITATION ON RESTRICTED PAYMENTS. 82
8.4 INDEBTEDNESS 83
8.5 ADVANCES, INVESTMENTS AND LOANS 84
8.6 TRANSACTIONS WITH AFFILIATES 84
8.7 CAPITAL EXPENDITURES 85
8.8 FIXED CHARGE COVERAGE RATIO 86
8.9 INTEREST COVERAGE RATIO 86
8.10 LEVERAGE RATIO 86
8.11 LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF
INDEBTEDNESS AND CERTAIN OTHER AGREEMENTS, ETC. 87
8.12 LIMITATION ON ISSUANCE OF CAPITAL STOCK 88
8.13 BUSINESS 89
8.14 DESIGNATION OF 89
SECTION 9. EVENTS OF XXXXXXX 00
XXXXXXX 00. THE ADMINISTRATIVE AGENTS 93
10.1 APPOINTMENT 93
10.2 DELEGATION OF DUTIES 93
10.3 EXCULPATORY PROVISIONS 94
10.4 RELIANCE BY ADMINISTRATIVE AGENT 94
10.5 NOTICE OF DEFAULT 94
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENTS AND OTHER LENDERS 95
10.7 INDEMNIFICATION 95
10.8 ADMINISTRATIVE AGENTS IN THEIR INDIVIDUAL CAPACITY 96
10.9 SUCCESSOR ADMINISTRATIVE AGENT 96
SECTION 11. MISCELLANEOUS 96
- II -
11.1 AMENDMENTS AND WAIVERS 97
11.2 NOTICES 98
11.3 NO WAIVER; CUMULATIVE REMEDIES 99
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES 99
11.5 PAYMENT OF EXPENSES AND TAXES 100
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS 100
11.7 ADJUSTMENTS; SET-OFF 103
11.8 COUNTERPARTS 104
11.9 SEVERABILITY 104
11.10 INTEGRATION 104
11.11 GOVERNING LAW 104
11.12 SUBMISSION TO JURISDICTION; WAIVERS 105
11.13 FOREIGN CURRENCY JUDGMENTS 105
11.14 ACKNOWLEDGEMENTS 106
11.15 WAIVERS OF JURY TRIAL 106
11.16 CONFIDENTIALITY 107
11.17 CONFLICTS 107
11.18 REFERENCE TO AND EFFECT ON THE EXISTING CREDIT AGREEMENT 107
SECTION 12. LETTERS OF CREDIT 108
12.1 L/C COMMITMENT 108
12.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT 109
12.3 FEES AND OTHER CHARGES 109
12.4 L/C PARTICIPATIONS 109
12.5 REIMBURSEMENT OBLIGATION OF THE COMPANY 110
12.6 OBLIGATIONS ABSOLUTE 111
12.7 LETTER OF CREDIT PAYMENTS 111
12.8 APPLICATIONS 111
- III -
SCHEDULES:
SCHEDULE 1.1 LENDERS, COMMITMENTS AND ADDRESSES FOR NOTICES
SCHEDULE 5.1 FINANCIAL CONDITION
SCHEDULE 5.2 NO CHANGE
SCHEDULE 5.3 JURISDICTIONS
SCHEDULE 5.8 REAL PROPERTY
SCHEDULE 5.11 TAX MATTERS
SCHEDULE 5.15 ENVIRONMENTAL MATTERS
SCHEDULE 5.18 SUBSIDIARIES
SCHEDULE 6.1 EXISTING INDEBTEDNESS
SCHEDULE 7.4 INSURANCE
SCHEDULE 8.1 EXISTING LIENS
EXHIBITS:
EXHIBIT A-1 FORM OF US$ NOTE
EXHIBIT A-2 FORM OF C$ NOTE
EXHIBIT B FORM OF DRAFT
EXHIBIT C-1 FORM OF US$ BORROWING CERTIFICATE
EXHIBIT C-2 FORM OF C$ BORROWING CERTIFICATE
EXHIBIT D FORM OF AMENDED AND RESTATED US GLOBAL GUARANTEE AND
SECURITY AGREEMENT
EXHIBIT E FORM OF US MORTGAGE
EXHIBIT F-1 FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
EXHIBIT F-2 FORM OF OPINION OF CANADIAN COUNSEL TO THE CANADIAN
BORROWER
EXHIBIT G FORM OF ASSIGNMENT AND ACCEPTANCE
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF FEBRUARY 24,
1999, AMONG XXXXXX XXXXX CORP., A PENNSYLVANIA CORPORATION (THE "COMPANY"),
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XXXXXX XXXXX COMMAND COMPANY, A COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF
THE PROVINCE OF NOVA SCOTIA (THE "CANADIAN BORROWER" AND, TOGETHER WITH THE
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COMPANY, THE "BORROWERS"), THE SEVERAL BANKS AND OTHER FINANCIAL INSTITUTIONS
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FROM TIME TO TIME PARTIES TO THIS AGREEMENT (THE "LENDERS"), CANADIAN IMPERIAL
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BANK OF COMMERCE, NEW YORK AGENCY, AS US ADMINISTRATIVE AGENT (AS HEREINAFTER
DEFINED) FOR THE US$ LENDERS HEREUNDER AND CANADIAN IMPERIAL BANK OF COMMERCE,
AS CANADIAN ADMINISTRATIVE AGENT (AS HEREINAFTER DEFINED) FOR THE C$ LENDERS
HEREUNDER.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, XXXXXX XXXXX CORP., A NEW YORK CORPORATION ("PLC"), THE
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CANADIAN BORROWER, THE LENDERS, THE US ADMINISTRATIVE AGENT AND THE CANADIAN
ADMINISTRATIVE AGENT ARE PARTIES TO THE CREDIT AGREEMENT, DATED AS OF AUGUST 13,
1996 (AS HERETOFORE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED PRIOR TO THE
DATE HEREOF, THE "ORIGINAL CREDIT AGREEMENT");
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WHEREAS, THE COMPANY IS THE SUCCESSOR TO PLC BY REASON OF PLC HAVING
BEEN MERGED WITH AND INTO THE COMPANY IMMEDIATELY PRECEDING THE EQUITY OFFERINGS
(AS HEREINAFTER DEFINED);
WHEREAS, THE ORIGINAL CREDIT AGREEMENT WAS AMENDED AND RESTATED ON
AUGUST 12, 1997 (AS SO AMENDED AND RESTATED, THE "EXISTING CREDIT AGREEMENT") TO
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(A) INCREASE THE AGGREGATE PRINCIPAL AMOUNT OF THE US COMMITMENTS (AS
HEREINAFTER DEFINED) TO US$ 150,000,000, (B) REFLECT CHANGES IN THE COMPANY'S
CORPORATE STRUCTURE AND GOVERNANCE RELATED TO ITS STATUS AS A PUBLIC COMPANY
FOLLOWING THE EQUITY OFFERINGS AND (C) OTHERWISE AMEND THE ORIGINAL CREDIT
AGREEMENT AND RESTATE IT IN ITS ENTIRETY AS MORE FULLY SET FORTH THEREIN;
WHEREAS, THE BORROWERS HAVE REQUESTED THAT THE EXISTING CREDIT
AGREEMENT BE AMENDED AND RESTATED TO (A) REFLECT AMENDMENTS TO THE EXISTING
CREDIT AGREEMENT MADE ON FEBRUARY 9, 1998, APRIL 3, 1998, MAY 1, 1998 AND JUNE
12, 1998, (B) PROVIDE FOR THE ISSUANCE OF LETTERS OF CREDIT UNDER THE US
COMMITMENTS, (C) INCREASE THE AGGREGATE PRINCIPAL AMOUNT OF THE US COMMITMENTS
TO US$175,000,000 AND (D) OTHERWISE AMEND THE EXISTING CREDIT AGREEMENT AND
RESTATE IT IN ITS ENTIRETY AS MORE FULLY SET FORTH HEREIN; AND THE LENDERS, THE
US ADMINISTRATIVE AGENT AND THE CANADIAN ADMINISTRATIVE AGENT ARE WILLING, UPON
AND SUBJECT TO THE TERMS AND CONDITIONS HEREOF, SO TO AMEND AND RESTATE THE
EXISTING CREDIT AGREEMENT;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREIN SET
FORTH, THE PARTIES HERETO HEREBY AGREE THAT ON THE CLOSING DATE (AS HEREINAFTER
DEFINED) THE EXISTING CREDIT AGREEMENT SHALL BE AMENDED AND RESTATED TO READ IN
ITS ENTIRETY AS FOLLOWS:
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SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS
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SHALL HAVE THE FOLLOWING MEANINGS:
"ACCEPTANCE FEE": THE FEE PAYABLE IN C$ TO EACH C$ LENDER IN RESPECT
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OF BANKERS' ACCEPTANCES COMPUTED IN ACCORDANCE WITH SUBSECTION 3.3(E).
"ACQUISITION DOCUMENTS": IN CONNECTION WITH ANY PERMITTED ACQUISITION,
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ANY ASSET PURCHASE AGREEMENT, STOCK PURCHASE AGREEMENT, MERGER AGREEMENT OR
SIMILAR AGREEMENT AND ALL OTHER DOCUMENTS ENTERED INTO OR DELIVERED IN
CONNECTION THEREWITH.
"ACQUISITION LOAN": ANY LOAN THE PROCEEDS OF WHICH ARE USED TO
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FINANCE ALL OR ANY PORTION OF THE PURCHASE PRICE OF (AND TO PAY FEES AND
EXPENSES, AND REFINANCE EXISTING INDEBTEDNESS IN CONNECTION WITH) A
PERMITTED ACQUISITION.
"ADDITIONAL MORTGAGED PROPERTY": AS DEFINED IN SUBSECTION 7.14(A).
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"ADJUSTED EBITDA": FOR ANY PERIOD, WITH RESPECT TO THE COMPANY AND
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ITS SUBSIDIARIES ON A CONSOLIDATED BASIS, EBITDA OF THE COMPANY AND ITS
SUBSIDIARIES FOR SUCH PERIOD DETERMINED ON A PRO A BASIS AFTER GIVING
EFFECT TO THE FOLLOWING ADJUSTMENTS:
(A) ANY BUSINESS ACQUIRED DURING SUCH PERIOD PURSUANT TO A
PERMITTED ACQUISITION SHALL BE DEEMED TO HAVE BEEN ACQUIRED ON THE
FIRST DAY OF SUCH PERIOD (AND EBITDA ATTRIBUTABLE TO SUCH BUSINESS
SHALL BE CALCULATED ON THE BASIS OF THE AVAILABLE FINANCIAL STATEMENTS
OF SUCH BUSINESS);
(B) ANY BUSINESS DISPOSED OF DURING SUCH PERIOD PURSUANT TO A
DISPOSITION SHALL BE DEEMED TO HAVE BEEN DISPOSED OF ON THE FIRST DAY
OF SUCH PERIOD; AND
(C) IF, IN CONNECTION WITH ANY PERMITTED ACQUISITION, THE COMPANY
SHALL IN GOOD FAITH ADOPT A PROGRAM WHICH CAN REASONABLY BE EXPECTED
TO RESULT IN QUANTIFIABLE IMPROVEMENTS IN THE OPERATING RESULTS OF THE
ACQUIRED BUSINESS, THE COMPANY (SO LONG AS (I) IT SHALL HAVE DELIVERED
TO THE LENDERS A DESCRIPTION OF SUCH PROGRAM, SETTING FORTH IN
REASONABLE DETAIL THE TERMS AND CONDITIONS THEREOF AND (II) THE
AGGREGATE AMOUNT OF SUCH QUANTIFIABLE IMPROVEMENTS IN OPERATING
RESULTS FROM SUCH PERMITTED ACQUISITION SHALL NOT EXCEED 15% OF THE
COMPANY'S EBITDA FOR THE THEN MOST RECENTLY ENDED PERIOD OF TWELVE
CONSECUTIVE MONTHS FOR WHICH FINANCIAL STATEMENTS SHALL HAVE BEEN
DELIVERED TO THE LENDERS PURSUANT TO SUBSECTIONS 7.1(A) OR (B)) SHALL
BE ENTITLED TO ASSUME THAT THE IMPROVED OPERATING RESULTS PROJECTED TO
RESULT FROM SUCH PROGRAM SHALL HAVE OCCURRED
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FROM THE FIRST DAY OF SUCH PERIOD TO THE DATE OF SUCH PERMITTED
ACQUISITION.
"ADJUSTMENT DATE": THE SECOND BUSINESS DAY FOLLOWING RECEIPT BY THE
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US ADMINISTRATIVE AGENT OF BOTH (A) THE FINANCIAL STATEMENTS REQUIRED TO BE
DELIVERED PURSUANT TO SUBSECTION 7.1(A) OR 7.1(B), AS THE CASE MAY BE, FOR
THE MOST RECENTLY COMPLETED FISCAL PERIOD AND (B) THE RELATED COMPLIANCE
CERTIFICATE REQUIRED TO BE DELIVERED PURSUANT TO SUBSECTION 7.2(B) WITH
RESPECT TO SUCH FISCAL PERIOD.
"ADMINISTRATIVE AGENTS": THE COLLECTIVE REFERENCE TO THE US
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ADMINISTRATIVE AGENT AND THE CANADIAN ADMINISTRATIVE AGENT.
"ADMINISTRATIVE OFFICE": THE CANADIAN ADMINISTRATIVE OFFICE OR THE US
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ADMINISTRATIVE OFFICE, AS APPLICABLE.
"AFFECTED PROPERTY": AS DEFINED IN SUBSECTION 4.4(D).
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"AFFILIATE": WITH RESPECT TO ANY PERSON, ANY OTHER PERSON DIRECTLY OR
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INDIRECTLY CONTROLLING (INCLUDING BUT NOT LIMITED TO ALL DIRECTORS AND
OFFICERS OF SUCH PERSON), CONTROLLED BY, OR UNDER DIRECT OR INDIRECT COMMON
CONTROL WITH, SUCH PERSON; PROVIDED, HOWEVER, THAT FOR PURPOSES OF
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SUBSECTION 8.6, AN AFFILIATE OF THE COMPANY SHALL INCLUDE ANY PERSON THAT
DIRECTLY OR INDIRECTLY OWNS MORE THAN 5% OF THE TOTAL VOTING POWER OF THE
COMPANY'S CAPITAL STOCK. A PERSON SHALL BE DEEMED TO CONTROL ANOTHER
PERSON IF SUCH PERSON POSSESSES, DIRECTLY OR INDIRECTLY, THE POWER TO
DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF SUCH OTHER
PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES, BY CONTRACT OR
OTHERWISE.
"AFFILIATE CONTRACTS": COLLECTIVELY, ALL CONTRACTS OR AGREEMENTS
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ENTERED INTO BETWEEN THE COMPANY OR ANY OF ITS WHOLLY OWNED SUBSIDIARIES,
ON THE ONE HAND, AND ANY OF ITS AFFILIATES (OTHER THAN WHOLLY OWNED
SUBSIDIARIES), ON THE OTHER HAND.
"AGREEMENT": THIS CREDIT AGREEMENT, AS AMENDED, SUPPLEMENTED,
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RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME.
"APPLICABLE BA DISCOUNT RATE": WITH RESPECT TO ANY C$ LENDER, AS
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APPLICABLE TO A BANKERS' ACCEPTANCE BEING PURCHASED BY SUCH C$ LENDER ON
ANY DAY, THE A RATE IN EFFECT ON SUCH DAY WITH RESPECT TO SUCH BANKERS'
ACCEPTANCE.
"APPLICABLE MARGIN": THE RATE FOR THE RESPECTIVE TYPE OF LOAN SET
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FORTH OPPOSITE THE RANGE IN WHICH THE LEVERAGE RATIO IN EFFECT ON THE
CLOSING DATE (AS DETERMINED FROM THE CERTIFICATE DELIVERED ON SUCH DATE
PURSUANT TO SUBSECTION 6.2(A)) SHALL FALL, PROVIDED THAT IF ON ANY
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ADJUSTMENT DATE OCCURRING AFTER THE CLOSING DATE THE LEVERAGE RATIO
DETERMINED FROM THE FINANCIAL STATEMENTS RELATING TO SUCH ADJUSTMENT DATE
(AND BASED UPON THE TOTAL NET DEBT ON THE DATE OF THE BALANCE SHEET
INCLUDED IN SUCH
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FINANCIAL STATEMENTS) SHALL FALL WITHIN ANY OF THE RANGES SET FORTH BELOW
THEN THE APPLICABLE MARGIN FOR ALL LOANS WILL BE ADJUSTED ON SUCH
ADJUSTMENT DATE (EACH SUCH ADJUSTMENT TO BE EFFECTIVE UNTIL THE NEXT
SUCCEEDING ADJUSTMENT DATE) TO THE RATE FOR THE RESPECTIVE TYPE OF LOAN SET
FORTH OPPOSITE THE RANGE IN WHICH SUCH LEVERAGE RATIO FALLS:
APPLICABLE MARGIN (% PER ANNUM)
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BASE RATE LOANS/
EURODOLLAR LOANS/ RANGE OF C$
--
PRIME BANKERS' LEVERAGE RATIO
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LOANS ACCEPTANCES
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GREATER THAN OR EQUAL TO
5.50 TO 1.00 1.00% 2.25%
GREATER THAN OR EQUAL TO
5.00 TO 1.00 BUT LESS THAN
5.50 TO 1.00 0.75% 2.00%
GREATER THAN OR EQUAL TO
4.50 TO 1.00 BUT LESS THAN
5.00 TO 1.00 0.50% 1.75%
GREATER THAN OR EQUAL TO
4.00 TO 1.00 BUT LESS THAN
4.50 TO 1.00 0.25% 1.50%
GREATER THAN OR EQUAL TO
3.50 TO 1.00 BUT LESS THAN
4.00 TO 1.00 0.00% 1.25%
LESS THAN 3.50 TO 1.00 0.00% 1.00%
PROVIDED, HOWEVER, THAT, THE APPLICABLE MARGIN FOR ANY LOAN SHALL NOT BE
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REDUCED PURSUANT TO THE IMMEDIATELY PRECEDING PROVISO FOR ANY PERIOD DURING
WHICH A DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING;
AND PROVIDED, FURTHER THAT:
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(A) IF ON OR PRIOR TO THE THIRTIETH DAY FOLLOWING THE OCCURRENCE
OF A DEFAULT OR EVENT OF DEFAULT WHICH ARISES UNDER SUBSECTION 9(B),
(C) OR (D), SUCH DEFAULT OR EVENT OF DEFAULT HAS BEEN CURED OR WAIVED,
THEN THE APPLICABLE MARGIN DURING THE THIRTY-DAY PERIOD DURING WHICH
SUCH DEFAULT OR EVENT OF DEFAULT EXISTED SHALL BE DEEMED TO HAVE BEEN
THE APPLICABLE MARGIN WITH THE APPLICABLE REDUCTION DETERMINED IN
ACCORDANCE WITH THE TABLE SET FORTH ABOVE ABSENT SUCH DEFAULT OR EVENT
OF DEFAULT, AND ANY EXCESS PAYMENTS OF INTEREST MADE BY THE APPLICABLE
BORROWER AS A RESULT OF THE UNAVAILABILITY OF THE REDUCTION IN THE
APPLICABLE MARGIN PURSUANT TO THE IMMEDIATELY PRECEDING PROVISO, SO
LONG AS THERE EXISTS NO OTHER DEFAULT OR EVENT OF
5
DEFAULT, SHALL BE CREDITED BY THE APPLICABLE LENDERS TO THE NEXT
INTEREST PAYMENT DUE FROM SUCH BORROWER IN THE AMOUNT OF SUCH EXCESS;
AND
(B) IF ANY DEFAULT OR EVENT OF DEFAULT REFERRED TO IN PARAGRAPH
(A) ABOVE SHALL NOT HAVE BEEN CURED OR WAIVED PRIOR TO THE THIRTIETH
DAY FOLLOWING ITS OCCURRENCE, THEN, FOR THE PERIOD FROM THE DATE UPON
WHICH SUCH DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED UNTIL TWO
BUSINESS DAYS FOLLOWING THE DATE UPON WHICH SUCH DEFAULT OR EVENT OF
DEFAULT IS CURED OR WAIVED, THE APPLICABLE MARGIN IN RESPECT OF LOANS
SHALL BE 1.00% PER ANNUM, IN THE CASE OF BASE RATE LOANS AND C$ PRIME
LOANS, AND 2.25% PER ANNUM, IN THE CASE OF EURODOLLAR LOANS AND
BANKERS' ACCEPTANCES.
"APPLICATION": AN APPLICATION, IN SUCH FORM AS THE ISSUING LENDER MAY
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SPECIFY FROM TIME TO TIME, REQUESTING THE ISSUING LENDER TO OPEN A LETTER
OF CREDIT.
"ASSIGNEE": AS DEFINED IN SUBSECTION 11.6(C).
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"ASSIGNMENT AND ACCEPTANCE": AS DEFINED IN SUBSECTION 11.6(C).
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"AVAILABLE CANADIAN COMMITMENT": AS TO ANY C$ LENDER, AT A PARTICULAR
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TIME, AN AMOUNT EQUAL TO THE EXCESS, IF ANY, OF (A) THE AMOUNT OF SUCH
LENDER'S CANADIAN COMMITMENT AT SUCH TIME OVER (B) THE AGGREGATE PRINCIPAL
----
AMOUNT OF ALL C$ LOANS MADE BY SUCH LENDER THEN OUTSTANDING.
"AVAILABLE US COMMITMENT": AS TO ANY US$ LENDER, AT A PARTICULAR
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TIME, AN AMOUNT EQUAL TO THE EXCESS, IF ANY, OF (A) THE AMOUNT OF SUCH US$
LENDER'S US COMMITMENT AT SUCH TIME OVER (B) SUCH US$ LENDER'S US
----
EXTENSIONS OF CREDIT THEN OUTSTANDING.
"BA DISCOUNT PROCEEDS": IN RESPECT OF ANY BANKERS' ACCEPTANCE TO BE
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PURCHASED BY A C$ LENDER ON ANY DAY UNDER SUBSECTION 3.3, AN AMOUNT
(ROUNDED TO THE NEAREST WHOLE CANADIAN CENT, AND WITH ONE-HALF OF ONE
CANADIAN CENT BEING ROUNDED UP) CALCULATED ON SUCH DAY BY DIVIDING:
(A) THE FACE AMOUNT OF SUCH BANKERS' ACCEPTANCE; BY
(B) THE SUM OF ONE PLUS THE PRODUCT OF:
(I) THE APPLICABLE BA DISCOUNT RATE (EXPRESSED AS A DECIMAL)
APPLICABLE TO SUCH BANKERS' ACCEPTANCE; AND
(II) A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS
REMAINING IN THE TERM OF SUCH BANKERS' ACCEPTANCE AND THE
DENOMINATOR OF WHICH IS 365;
6
WITH SUCH PRODUCT BEING ROUNDED UP OR DOWN TO THE FIFTH
DECIMAL PLACE AND .000005 BEING ROUNDED UP.
"BANKERS' ACCEPTANCE": A XXXX OF EXCHANGE DENOMINATED IN C$ DRAWN BY
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THE CANADIAN BORROWER AND ACCEPTED BY A C$ LENDER PURSUANT TO SUBSECTION
3.3.
"BASE RATE": ON ANY PARTICULAR DATE, A RATE OF INTEREST PER ANNUM
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EQUAL TO THE HIGHER OF: (A) THE RATE OF INTEREST MOST RECENTLY ANNOUNCED
BY A AS ITS PRIME RATE (WHICH RATE IS NOT NECESSARILY INTENDED TO BE THE
LOWEST RATE OF INTEREST CHARGED BY CIBC IN CONNECTION WITH EXTENSIONS OF
CREDIT) FOR LOANS DENOMINATED IN US DOLLARS; AND (B) THE FEDERAL FUNDS RATE
FOR SUCH DATE PLUS .50%.
"BASE RATE LOANS": US$ LOANS THE RATE OF INTEREST APPLICABLE TO WHICH
---------------
IS BASED UPON THE BASE RATE.
"BENEFITTED LENDER": AS DEFINED IN SUBSECTION 11.7(A).
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"BORROWING DATE": ANY BUSINESS DAY SPECIFIED IN A NOTICE PURSUANT TO
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SUBSECTION 2.2, 3.2 OR 3.3(B)(1) AS A DATE ON WHICH A BORROWER REQUESTS THE
RELEVANT LENDERS TO MAKE LOANS HEREUNDER OR THE ISSUING LENDER TO ISSUE A
LETTER OF CREDIT HEREUNDER.
"BRITISH POUNDS" OR "(POUNDS)": POUNDS STERLING, THE LAWFUL CURRENCY
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OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND.
"BRITISH POUNDS EXCHANGE RATE": WITH RESPECT TO BRITISH POUNDS ON ANY
----------------------------
DATE, THE RATE AT WHICH BRITISH POUNDS MAY BE EXCHANGED INTO US DOLLARS, AS
SET FORTH ON SUCH DATE ON THE A SERIES REUTERS CURRENCY PAGE AT OR ABOUT
11:00 A.M. NEW YORK CITY TIME ON SUCH DATE. IN THE EVENT THAT SUCH RATE
DOES NOT APPEAR ON SUCH REUTERS PAGE, THE "BRITISH POUNDS EXCHANGE RATE"
----------------------------
SHALL BE DETERMINED BY REFERENCE TO SUCH OTHER PUBLICLY AVAILABLE SERVICE
FOR DISPLAYING EXCHANGE RATES AS MAY BE AGREED UPON BY THE US
ADMINISTRATIVE AGENT AND THE COMPANY OR, IN THE ABSENCE OF SUCH AGREEMENT,
SUCH "BRITISH POUNDS EXCHANGE RATE" SHALL INSTEAD BE THE US ADMINISTRATIVE
----------------------------
A SPOT RATE OF EXCHANGE IN THE INTERBANK MARKET WHERE ITS CURRENCY
EXCHANGE OPERATIONS IN RESPECT OF BRITISH POUNDS ARE THEN BEING CONDUCTED,
AT OR ABOUT 10:00 A.M. LOCAL TIME AT SUCH DATE FOR THE PURCHASE OF US
DOLLARS WITH BRITISH POUNDS FOR DELIVERY TWO BUSINESS DAYS LATER; PROVIDED
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THAT IF AT THE TIME OF ANY SUCH DETERMINATION NO SUCH SPOT RATE CAN
REASONABLY BE QUOTED, THE US ADMINISTRATIVE AGENT MAY USE ANY REASONABLE
METHOD (INCLUDING OBTAINING QUOTES FROM THREE OR MORE MARKET MAKERS FOR
BRITISH POUNDS) AS IT DEEMS APPROPRIATE TO DETERMINE SUCH RATE AND SUCH
DETERMINATION SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR (WITHOUT PREJUDICE
TO THE DETERMINATION OF THE REASONABLENESS OF SUCH METHOD).
7
"BUSINESS DAY": A DAY OTHER THAN A SATURDAY, SUNDAY OR OTHER DAY ON
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WHICH COMMERCIAL BANKS IN NEW YORK CITY ARE AUTHORIZED OR REQUIRED BY LAW
TO CLOSE, EXCEPT THAT (A) WHEN USED IN CONNECTION WITH A EURODOLLAR LOAN,
"BUSINESS DAY" SHALL MEAN ANY BUSINESS DAY ON WHICH DEALINGS IN FOREIGN
CURRENCIES AND EXCHANGE BETWEEN BANKS MAY BE CARRIED ON IN LONDON, ENGLAND
AND NEW YORK, NEW YORK AND (B) WHEN USED IN CONNECTION WITH A C$ LOAN,
"BUSINESS DAY" SHALL MEAN A DAY ON WHICH BANKS ARE OPEN FOR BUSINESS IN
XXXXXXX, XXXXXXX, XXXXXX BUT EXCLUDES SATURDAY, SUNDAY AND ANY OTHER DAY
WHICH IS A LEGAL HOLIDAY IN XXXXXXX, XXXXXXX, XXXXXX.
"CANADIAN ADMINISTRATIVE AGENT": CANADIAN IMPERIAL BANK OF COMMERCE,
-----------------------------
TOGETHER WITH ITS AFFILIATES, AS THE AGENT FOR THE C$ LENDERS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
"CANADIAN ADMINISTRATIVE OFFICE": THE CANADIAN ADMINISTRATIVE AGENT'S
------------------------------
XXXXXX XXXXXXX XX XXXXXXXX XXXXX XXXX 0, XXXXXXX, XXXXXXX, XXXXXX OR SUCH
OTHER OFFICE IN CANADA AS MAY BE DESIGNATED AS SUCH BY THE CANADIAN
ADMINISTRATIVE AGENT BY WRITTEN NOTICE TO THE CANADIAN BORROWER AND THE
LENDERS.
"CANADIAN COMMITMENT": AS TO ANY C$ LENDER, ITS OBLIGATION TO MAKE C$
-------------------
LOANS TO AND PURCHASE BANKERS' ACCEPTANCES FROM THE CANADIAN BORROWER
HEREUNDER IN AN AGGREGATE PRINCIPAL AMOUNT AT ANY ONE TIME OUTSTANDING NOT
TO EXCEED THE AMOUNT SET FORTH OPPOSITE SUCH LENDER'S NAME ON SCHEDULE 1.1
AS SUCH LENDER'S "CANADIAN COMMITMENT", AS SUCH AMOUNT MAY BE CHANGED FROM
TIME TO TIME AS PROVIDED HEREIN. THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT
OF THE CANADIAN COMMITMENTS IS C$40,000,000.
"CANADIAN DEBENTURE PLEDGE AGREEMENTS": THE DEBENTURE PLEDGE
------------------------------------
AGREEMENTS EXECUTED AND DELIVERED BY THE CANADIAN BORROWER ON THE ORIGINAL
CLOSING DATE, SUBSTANTIALLY IN THE FORM OF EXHIBIT E-3 TO THE ORIGINAL
CREDIT AGREEMENT, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME.
"CANADIAN DEMAND DEBENTURES": THE DEMAND DEBENTURES EXECUTED AND
--------------------------
DELIVERED BY THE CANADIAN BORROWER ON THE ORIGINAL CLOSING DATE,
SUBSTANTIALLY IN THE FORM OF EXHIBIT E-2 TO THE ORIGINAL CREDIT AGREEMENT,
AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME.
"CANADIAN DOLLARS" OR "C$": DOLLARS IN LAWFUL CURRENCY OF CANADA.
---------------- --
"CANADIAN EXCHANGE RATE": ON A PARTICULAR DATE, THE RATE AT WHICH C$
----------------------
MAY BE EXCHANGED INTO US$, DETERMINED BY REFERENCE TO THE BANK OF CANADA
NOON RATE AS PUBLISHED ON THE
8
REUTERS SCREEN PAGE A. IN THE EVENT THAT SUCH RATE DOES NOT APPEAR ON
SUCH REUTERS PAGE, THE "CANADIAN EXCHANGE RATE" SHALL BE DETERMINED BY
----------------------
REFERENCE TO ANY OTHER MEANS (AS SELECTED BY THE CANADIAN ADMINISTRATIVE
AGENT) BY WHICH SUCH RATE IS QUOTED OR PUBLISHED FROM TIME TO TIME BY THE
BANK OF CANADA (IN EACH CASE AS IN EFFECT AT OR ABOUT 12:00 NOON, TORONTO
TIME, ON THE BUSINESS DAY IMMEDIATELY PRECEDING THE RELEVANT DATE OF
DETERMINATION); PROVIDED, THAT IF AT THE TIME OF ANY SUCH DETERMINATION,
--------
FOR ANY REASON, NO SUCH EXCHANGE RATE IS BEING QUOTED OR PUBLISHED, THE
CANADIAN ADMINISTRATIVE AGENT MAY USE ANY REASONABLE METHOD AS IT DEEMS
APPLICABLE TO DETERMINE SUCH RATE, AND SUCH DETERMINATION SHALL BE PRIMA
FACIE EVIDENCE OF THE ACCURACY THEREOF.
"CANADIAN HYPOTHEC": THE MOVEABLE HYPOTHEC EXECUTED AND DELIVERED BY
-----------------
THE CANADIAN BORROWER ON THE ORIGINAL CLOSING DATE, SUBSTANTIALLY IN THE
FORM OF EXHIBIT E-4 TO THE ORIGINAL CREDIT AGREEMENT, AS THE SAME MAY BE
AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME.
"CANADIAN LENDING OFFICE": AS TO EACH C$ LENDER, THE OFFICE IN CANADA
-----------------------
SPECIFIED AS THE "CANADIAN LENDING OFFICE" OF SUCH LENDER ON SCHEDULE 1.1
OR IN AN ASSIGNMENT AND ACCEPTANCE, AS THE CASE MAY BE, OR SUCH OTHER
OFFICE IN CANADA AS MAY BE DESIGNATED BY SUCH LENDER BY WRITTEN NOTICE TO
THE COMPANY AND THE CANADIAN ADMINISTRATIVE AGENT.
"CANADIAN MORTGAGE": A MORTGAGE PROVIDED BY THE CANADIAN BORROWER OR A
-----------------
SUBSIDIARY THEREOF WITH RESPECT TO A CANADIAN MORTGAGED PROPERTY PURSUANT
TO THE PROVISIONS SET FORTH IN THE RELEVANT CANADIAN DEMAND DEBENTURE AND
CANADIAN DEBENTURE PLEDGE AGREEMENT.
"CANADIAN MORTGAGED PROPERTIES": ALL REAL PROPERTY LISTED AND
-----------------------------
IDENTIFIED AS SUCH IN PART B OF SCHEDULE 5.8 AND DESIGNATED AS SUCH.
"CANADIAN PENSION PLAN": ANY PLAN, PROGRAM, ARRANGEMENT OR
---------------------
UNDERSTANDING THAT IS A PENSION PLAN FOR THE PURPOSES OF ANY APPLICABLE
PENSION BENEFITS OR TAX LAWS OF CANADA (WHETHER OR NOT REGISTERED UNDER ANY
SUCH LAWS) WHICH IS MAINTAINED OR CONTRIBUTED TO BY (OR TO WHICH THERE IS
OR MAY BE AN OBLIGATION TO CONTRIBUTE OF), ANY BORROWER OR ANY SUBSIDIARY
OF THE COMPANY IN RESPECT OF ANY A EMPLOYMENT IN CANADA OR A
PROVINCE OR TERRITORY THEREOF WITH THE COMPANY OR ANY SUBSIDIARY OF THE
COMPANY AND ALL RELATED AGREEMENTS, ARRANGEMENTS AND UNDERSTANDINGS IN
RESPECT OF, OR RELATED TO, ANY BENEFITS TO BE PROVIDED THEREUNDER OR THE
EFFECT THEREOF ON ANY OTHER COMPENSATION OR REMUNERATION OF ANY EMPLOYEE.
"CANADIAN SECURITY AGREEMENT": THE CANADIAN SECURITY AGREEMENT
---------------------------
EXECUTED AND DELIVERED BY THE CANADIAN BORROWER ON THE ORIGINAL CLOSING
DATE,
9
SUBSTANTIALLY IN THE FORM OF EXHIBIT E-1 TO THE ORIGINAL CREDIT AGREEMENT,
AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME.
"CANADIAN SECURITY DOCUMENTS": THE COLLECTIVE REFERENCE TO THE
---------------------------
CANADIAN DEMAND DEBENTURES, CANADIAN DEBENTURE PLEDGE AGREEMENTS, THE
CANADIAN HYPOTHEC, AND THE CANADIAN SECURITY AGREEMENT AND ALL OTHER
SECURITY DOCUMENTS HEREAFTER DELIVERED TO THE CANADIAN ADMINISTRATIVE AGENT
GRANTING A LIEN ON ANY ASSET OR ASSETS OF THE CANADIAN BORROWER OR ANY
CANADIAN SUBSIDIARY TO SECURE THE OBLIGATIONS AND LIABILITIES OF THE
CANADIAN BORROWER HEREUNDER AND UNDER ANY OF THE OTHER LOAN DOCUMENTS OR TO
SECURE ANY GUARANTEE BY ANY CANADIAN SUBSIDIARY OF ANY SUCH OBLIGATIONS AND
LIABILITIES.
"CANADIAN SUBSIDIARY": ANY SUBSIDIARY THAT IS INCORPORATED OR
-------------------
ORGANIZED UNDER THE LAWS OF CANADA OR ANY PROVINCE THEREOF.
"CAPITAL EXPENDITURES": AS DEFINED IN SUBSECTION 8.7.
--------------------
"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) AND ANY AND ALL WARRANTS OR OPTIONS TO PURCHASE ANY OF THE
FOREGOING.
"CAPITALIZED LEASE OBLIGATIONS": INDEBTEDNESS REPRESENTED BY
-----------------------------
OBLIGATIONS UNDER A LEASE THAT IS REQUIRED TO BE CAPITALIZED FOR FINANCIAL
REPORTING PURPOSES IN ACCORDANCE WITH GAAP; THE AMOUNT OF SUCH INDEBTEDNESS
SHALL BE THE CAPITALIZED AMOUNT OF SUCH OBLIGATIONS DETERMINED IN
ACCORDANCE WITH GAAP.
"CASH EQUIVALENTS": (I) SECURITIES ISSUED OR DIRECTLY AND FULLY
----------------
GUARANTEED OR INSURED BY THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY
THEREOF OR CANADA OR ANY PROVINCE THEREOF (PROVIDED THAT THE FULL FAITH AND
--------
CREDIT OF THE UNITED STATES OR CANADA OR ANY PROVINCE THEREOF IS PLEDGED IN
SUPPORT THEREOF) HAVING MATURITIES OF NOT MORE THAN SIX MONTHS FROM THE
DATE OF ACQUISITION, (II) TIME DEPOSITS AND CERTIFICATES OF DEPOSIT OF ANY
LENDER OR ANY COMMERCIAL BANK INCORPORATED IN THE UNITED STATES OR CANADA
OF RECOGNIZED STANDING HAVING CAPITAL AND SURPLUS IN EXCESS OF
US$200,000,000 AND HAVING, OR WHICH IS THE PRINCIPAL BANKING SUBSIDIARY OF
A BANK HOLDING COMPANY HAVING, A LONG-TERM A DEBT RATING OF AT
LEAST "A" OR THE EQUIVALENT THEREOF FROM S&P OR "A-2" OR THE EQUIVALENT
THEREOF FROM XXXXX'X, OR AT LEAST A OR THE EQUIVALENT THEREOF BY CANADIAN
BOND RATING SERVICE LIMITED OR AT LEAST A MIDDLE OR THE EQUIVALENT THEREOF
BY DOMINION BOND RATING SERVICE LIMITED WITH MATURITIES OF NOT MORE THAN
SIX MONTHS FROM THE DATE OF ACQUISITION BY SUCH PERSON, (III) REPURCHASE
OBLIGATIONS WITH A TERM OF NOT MORE THAN SEVEN DAYS FOR UNDERLYING
SECURITIES OF
10
THE TYPES DESCRIBED IN CLAUSE (I) ABOVE ENTERED INTO WITH ANY BANK MEETING
THE QUALIFICATIONS SPECIFIED IN CLAUSE (II) ABOVE, (IV) COMMERCIAL PAPER
ISSUED BY ANY LENDER OR ANY PERSON INCORPORATED IN THE UNITED STATES OR
CANADA RATED AT LEAST A-1+ OR THE EQUIVALENT THEREOF BY S&P OR AT LEAST P-1
OR THE EQUIVALENT THEREOF BY XXXXX'X OR AT LEAST A-1+ OR THE EQUIVALENT
THEREOF BY CANADIAN BOND RATING SERVICE LIMITED OR AT LEAST R-I (MIDDLE OR
HIGH) OR THE EQUIVALENT THEREOF BY DOMINION BOND RATING SERVICE LIMITED AND
IN EACH CASE MATURING NOT MORE THAN SIX MONTHS AFTER THE DATE OF
ACQUISITION BY SUCH PERSON AND (V) INVESTMENTS IN MONEY MARKET FUNDS
SUBSTANTIALLY ALL OF THE ASSETS OF WHICH ARE COMPRISED OF SECURITIES OF THE
TYPES DESCRIBED IN CLAUSES (I) THROUGH (IV) ABOVE.
"CASUALTY EVENT": WITH RESPECT TO ANY PROPERTY OR ASSETS OF ANY
--------------
PERSON, ANY LOSS OF OR DAMAGE TO, OR ANY CONDEMNATION OR OTHER TAKING OF,
SUCH PROPERTY (OTHER THAN IN THE ORDINARY COURSE OF BUSINESS) FOR WHICH
SUCH PERSON OR ANY OF ITS SUBSIDIARIES RECEIVES INSURANCE PROCEEDS, OR
PROCEEDS OF A CONDEMNATION AWARD OR OTHER COMPENSATION.
"CASUALTY REINVESTABLE PROCEEDS": AS DEFINED IN SUBSECTION 4.4(D).
------------------------------
"C$ COMMITMENT PERCENTAGE": AS TO ANY C$ LENDER AT ANY TIME, THE
------------------------
PERCENTAGE OF THE AGGREGATE CANADIAN COMMITMENTS THEN CONSTITUTED BY SUCH
LENDER'S CANADIAN COMMITMENT.
"C$ EQUIVALENT": ON ANY DATE OF DETERMINATION, WITH RESPECT TO ANY
-------------
AMOUNT IN US$, THE EQUIVALENT IN C$ OF SUCH AMOUNT DETERMINED BY THE
CANADIAN ADMINISTRATIVE AGENT USING THE US$ EXCHANGE RATE THEN IN EFFECT.
"C$ LENDER": EACH LENDER DESIGNATED AS A "C$ LENDER" ON SCHEDULE 1.1,
---------
AS SUCH SCHEDULE MAY BE MODIFIED FROM TIME TO TIME AS PROVIDED HEREIN.
"C$ LOANS": THE COLLECTIVE REFERENCE TO C$ PRIME LOANS AND BANKERS'
--------
ACCEPTANCES; FOR THE PURPOSES OF THIS AGREEMENT, THE PRINCIPAL AMOUNT OF
ANY C$ LOAN CONSTITUTING A BANKERS' ACCEPTANCE SHALL BE DEEMED TO BE THE
A FACE AMOUNT OF SUCH BANKERS' ACCEPTANCE.
"C$ NOTE": AS DEFINED IN SUBSECTION 4.1(G).
-------
"C$ PRIME LOANS": C$ LOANS AT SUCH TIME AS THEY BEAR INTEREST AT A
--------------
RATE BASED UPON THE C$ PRIME RATE.
"C$ PRIME RATE": WITH RESPECT TO A C$ PRIME LOAN, ON ANY DAY, THE
-------------
GREATER OF (A) THE ANNUAL RATE OF INTEREST ANNOUNCED FROM TIME TO TIME BY
CIBC AS ITS REFERENCE RATE THEN IN EFFECT FOR DETERMINING INTEREST RATES ON
C$ DENOMINATED COMMERCIAL LOANS IN CANADA AND (B) THE ANNUAL RATE OF
INTEREST EQUAL TO THE SUM OF (I) THE CDOR RATE AND (II) 0.50% PER ANNUM.
11
"CDOR RATE": ON ANY DATE, THE PER ANNUM RATE OF INTEREST WHICH IS THE
---------
RATE BASED ON THE RATE APPLICABLE TO C$ BANKERS' ACCEPTANCES FOR A TERM OF
30 DAYS (IN THE CASE OF THE DEFINITION OF "C$ PRIME RATE") OR FOR A TERM
EQUIVALENT TO THE TERM OF, AND FOR AMOUNTS COMPARABLE TO THE AMOUNT OF, THE
RELEVANT BANKERS' ACCEPTANCES (IN THE CASE OF THE DEFINITION OF "APPLICABLE
BA DISCOUNT RATE") APPEARING ON THE "REUTERS SCREEN CDOR PAGE" (AS DEFINED
IN THE INTERNATIONAL SWAP DEALER ASSOCIATION, INC. DEFINITIONS, AS MODIFIED
AND AMENDED FROM TIME TO TIME) FOR ACCEPTANCES OF SCHEDULE I BANKS UNDER
THE BANK ACT (CANADA) AS OF 10:00 A.M., TORONTO TIME, ON SUCH DATE, OR IF
SUCH DATE IS NOT A BUSINESS DAY, THEN ON THE IMMEDIATELY PRECEDING BUSINESS
DAY; 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 C$ BANKERS' ACCEPTANCES QUOTED BY CIBC AS
OF 10:00 A.M., TORONTO TIME, ON SUCH DATE OR, IF SUCH DATE IS NOT A
BUSINESS DAY, THEN ON THE IMMEDIATELY PRECEDING BUSINESS DAY.
"CERCLA": THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND
------
LIABILITY ACT OF 1980, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, 42
U.S.C. (S)9601 ET SEQ.
-- ---
"CHANGE OF CONTROL": WITH RESPECT TO THE COMPANY SHALL BE DEEMED TO
-----------------
HAVE OCCURRED AT SUCH TIME AS:
(A) ANY PERSON (INCLUDING A PERSON'S AFFILIATES AND ASSOCIATES),
OTHER THAN A PERMITTED HOLDER, BECOMES THE BENEFICIAL OWNER (AS
DEFINED UNDER RULE 13D-3 OR ANY SUCCESSOR RULE OR REGULATION
PROMULGATED UNDER THE EXCHANGE ACT) OF MORE THAN 50% OF THE TOTAL
VOTING POWER OF THE COMPANY'S COMMON STOCK;
(B) ANY PERSON (INCLUDING A PERSON'S AFFILIATES AND ASSOCIATES),
OTHER THAN A PERMITTED HOLDER, BECOMES THE BENEFICIAL OWNER OF MORE
THAN 33-_% OF THE TOTAL VOTING POWER OF THE COMPANY'S COMMON STOCK,
AND THE PERMITTED HOLDERS BENEFICIALLY OWN, IN THE AGGREGATE, A LESSER
PERCENTAGE OF THE TOTAL VOTING POWER OF THE COMMON STOCK OF THE
COMPANY THAN SUCH OTHER PERSON AND DO NOT HAVE THE RIGHT OR ABILITY BY
VOTING POWER, CONTRACT OR OTHERWISE TO ELECT OR DESIGNATE FOR ELECTION
A MAJORITY OF THE BOARD OF DIRECTORS OF THE COMPANY;
(C) THERE SHALL BE CONSUMMATED ANY CONSOLIDATION OR MERGER OF
THE COMPANY IN WHICH THE COMPANY IS NOT THE CONTINUING OR SURVIVING
CORPORATION OR PURSUANT TO WHICH THE COMMON STOCK OF THE COMPANY WOULD
BE CONVERTED INTO CASH, SECURITIES OR OTHER PROPERTY, OTHER THAN A
MERGER OR CONSOLIDATION OF THE COMPANY IN WHICH THE HOLDERS OF THE
COMMON STOCK OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR TO THE
CONSOLIDATION OR MERGER HOLD, DIRECTLY OR
12
INDIRECTLY, AT LEAST A MAJORITY OF THE COMMON STOCK OF THE SURVIVING
CORPORATION IMMEDIATELY AFTER SUCH CONSOLIDATION OR MERGER; OR
(D) DURING ANY PERIOD OF TWO CONSECUTIVE YEARS, INDIVIDUALS WHO
AT THE BEGINNING OF SUCH PERIOD CONSTITUTED THE BOARD OF DIRECTORS OF
THE COMPANY (TOGETHER WITH ANY NEW DIRECTORS WHOSE ELECTION BY SUCH
BOARD OF DIRECTORS OR WHOSE NOMINATION FOR ELECTION BY THE
SHAREHOLDERS OF THE COMPANY HAS BEEN APPROVED BY A MAJORITY OF THE
DIRECTORS THEN STILL IN OFFICE WHO EITHER WERE DIRECTORS AT THE
BEGINNING OF SUCH PERIOD OR WHOSE ELECTION OR RECOMMENDATION FOR
ELECTION WAS PREVIOUSLY SO APPROVED) CEASE TO CONSTITUTE A MAJORITY OF
THE BOARD OF DIRECTORS OF THE COMPANY.
"CIBC": CANADIAN IMPERIAL BANK OF COMMERCE, A CANADIAN CHARTERED
----
BANK, OR ONE OR MORE OF ITS AGENCIES, BRANCHES OR AFFILIATES IN ITS OR
THEIR RESPECTIVE CAPACITY OR CAPACITIES, AS THE CASE MAY BE, AS A LENDER OR
LENDERS HEREUNDER.
"CLAIMS": AS DEFINED IN THE DEFINITION OF "ENVIRONMENTAL CLAIMS."
------
"CLIENT ACQUISITION COSTS": THE CAPITALIZED UNREIMBURSED COSTS OF
------------------------
ACQUIRING AND MOVING RECORDS OF NEW CLIENTS INTO THE FACILITIES OF EITHER
BORROWER OR ANY SUBSIDIARY THEREOF.
"CLOSING DATE": THE DATE ON WHICH THE CONDITIONS PRECEDENT SET FORTH
------------
IN SUBSECTION 6.1 SHALL BE SATISFIED.
"CODE": THE INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME TO
----
TIME.
"COLLATERAL": ALL ASSETS OF THE LOAN PARTIES, NOW OWNED OR
----------
HEREINAFTER ACQUIRED, UPON WHICH A LIEN IS PURPORTED TO BE CREATED BY ANY
SECURITY DOCUMENT.
"COMMITMENT": WITH RESPECT TO ANY LENDER, SUCH LENDER'S US COMMITMENT
----------
OR CANADIAN COMMITMENT, AS THE CASE MAY BE.
"COMMITMENT PERCENTAGE": AS TO ANY LENDER AT ANY TIME, THE PERCENTAGE
---------------------
WHICH SUCH LENDER'S COMMITMENT THEN CONSTITUTES OF THE AGGREGATE
COMMITMENTS (OR, AT ANY TIME AFTER THE COMMITMENTS SHALL HAVE EXPIRED OR
TERMINATED, THE PERCENTAGE WHICH (X) THE AGGREGATE PRINCIPAL AMOUNT OF SUCH
LENDER'S LOANS THEN OUTSTANDING PLUS (Y) SUCH LENDER'S INTEREST IN ALL L/C
----
OBLIGATIONS THEN OUTSTANDING CONSTITUTES OF (A) THE AGGREGATE PRINCIPAL
AMOUNT OF THE LOANS THEN OUTSTANDING PLUS (B) THE AGGREGATE AMOUNT OF ALL
----
L/C OBLIGATIONS THEN OUTSTANDING); ALL AMOUNTS DENOMINATED IN BRITISH
POUNDS OR C$ SHALL BE INCLUDED IN ANY COMPUTATIONS PURSUANT TO THIS
DEFINITION AT THE US$ EQUIVALENT THEREOF.
13
"COMMITMENT PERIOD": AS TO THE COMMITMENT OF ANY LENDER, THE PERIOD
-----------------
FROM AND INCLUDING THE CLOSING DATE TO BUT NOT INCLUDING THE TERMINATION
DATE OR SUCH EARLIER DATE AS THE COMMITMENTS SHALL TERMINATE AS PROVIDED
HEREIN.
"COMMON STOCK": ALL CAPITAL STOCK OF SUCH PERSON THAT IS GENERALLY
------------
ENTITLED TO (I) VOTE IN THE ELECTION OF DIRECTORS OF SUCH PERSON OR (II) IF
SUCH PERSON IS NOT A CORPORATION, VOTE OR OTHERWISE PARTICIPATE IN THE
SELECTION OF THE GOVERNING BODY, PARTNERS, MANAGERS OR OTHERS THAT WILL
CONTROL THE MANAGEMENT AND POLICIES OF SUCH PERSON.
"COMMONLY CONTROLLED ENTITY": AN ENTITY, WHETHER OR NOT INCORPORATED,
--------------------------
WHICH IS UNDER COMMON CONTROL WITH THE COMPANY WITHIN THE MEANING OF
SECTION 4001 OF ERISA OR IS PART OF A GROUP WHICH INCLUDES THE COMPANY AND
WHICH IS TREATED AS A SINGLE EMPLOYER UNDER SECTION 414 OF THE CODE.
"COMPLIANCE CERTIFICATE": AS DEFINED IN SUBSECTION 7.2(B).
----------------------
"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.
"CURRENT CASUALTY EVENT": AS DEFINED IN SUBSECTION 4.4(D).
----------------------
"CURRENT DISPOSITION": AS DEFINED IN SUBSECTION 4.4(B).
-------------------
"DATAVAULT TRANSACTION": THE PROPOSED ACQUISITION BY A SUBSIDIARY OF
---------------------
THE COMPANY OF ALL THE CAPITAL STOCK OF DATAVAULT LIMITED, DATAVAULT
HOLDINGS LIMITED AND SILVER SKY LIMITED FOR A PURCHASE PRICE NOT TO EXCEED
(POUNDS)23,000,000.
"DEFAULT": ANY OF THE EVENTS SPECIFIED IN SECTION 9, WHETHER OR NOT
-------
ANY REQUIREMENT FOR THE GIVING OF NOTICE, THE LAPSE OF TIME, OR BOTH, OR
ANY OTHER CONDITION, HAS BEEN SATISFIED.
"DISPOSITION": ANY TRANSACTION, OR SERIES OF RELATED TRANSACTIONS,
-----------
PURSUANT TO WHICH EITHER BORROWER AND/OR ANY OF ITS SUBSIDIARIES SELLS,
ASSIGNS, TRANSFERS OR OTHERWISE DISPOSES (OTHER THAN SALES OF EQUIPMENT OR
INVENTORY IN THE ORDINARY COURSE OF BUSINESS) OF ANY PROPERTY (WHETHER NOW
OWNED OR HEREAFTER ACQUIRED) TO ANY OTHER PERSON, IN EACH CASE WHETHER OR
NOT THE CONSIDERATION THEREFOR TO BE RECEIVED BY SUCH BORROWER OR A
SUBSIDIARY CONSISTS OF CASH, SECURITIES OR THE SWAP OR EXCHANGE OF ASSETS
OWNED BY THE ACQUIRING PERSON, EXCEPT ANY SUCH TRANSACTION BETWEEN OR AMONG
THE BORROWERS AND THEIR SUBSIDIARIES OR BETWEEN OR AMONG ANY SUCH
SUBSIDIARIES OF THE BORROWERS.
"DOLLAR EQUIVALENT AMOUNT": WITH RESPECT TO (I) ANY AMOUNT OF BRITISH
------------------------
POUNDS OR C$ ON ANY DATE, THE EQUIVALENT
14
AMOUNT OF US DOLLARS OF SUCH AMOUNT OF BRITISH POUNDS OR C$, AS THE CASE
MAY BE, AS DETERMINED BY THE US ADMINISTRATIVE AGENT IN ACCORDANCE WITH
SUBSECTION 4.6(D) USING THE BRITISH POUNDS EXCHANGE RATE OR THE CANADIAN
EXCHANGE RATE, AS THE CASE MAY BE, AND (II) ANY AMOUNT IN DOLLARS, SUCH
AMOUNT.
"DOMESTIC SUBSIDIARY": WITH RESPECT TO ANY PERSON, ANY SUBSIDIARY OF
-------------------
SUCH PERSON THAT IS INCORPORATED OR ORGANIZED UNDER THE LAWS OF THE UNITED
STATES OR ANY STATE THEREOF.
"DRAFT": A XXXXX XXXX OF EXCHANGE, WITHIN THE MEANING OF THE BILLS OF
-----
EXCHANGE ACT (CANADA), IN SUBSTANTIALLY THE FORM SET FORTH IN EXHIBIT B,
DRAWN BY THE CANADIAN BORROWER ON A C$ LENDER, DENOMINATED IN C$ AND
BEARING SUCH DISTINGUISHING LETTERS AND NUMBERS AS SUCH LENDER MAY
DETERMINE, BUT WHICH AT SUCH TIME, EXCEPT AS OTHERWISE PROVIDED HEREIN, HAS
NOT BEEN COMPLETED OR ACCEPTED BY SUCH LENDER.
"DRAWING": THE CREATION AND PURCHASE OF BANKERS' ACCEPTANCES AND/OR
-------
THE PURCHASE OF COMPLETED DRAFTS, BY THE C$ LENDERS PURSUANT TO SUBSECTION
3.2.
"EBITDA": FOR ANY PERIOD FOR ANY PERSON, THE CONSOLIDATED NET INCOME
------
OF SUCH PERSON AND ITS SUBSIDIARIES, PLUS, TO THE EXTENT DEDUCTED IN
DETERMINING SUCH NET INCOME FOR SUCH PERIOD, (A) INTEREST EXPENSE, (B)
AMORTIZATION OF INTANGIBLES AND DEFERRED FINANCING FEES, (C) DEPRECIATION,
(D) PROVISIONS FOR TAXES, AND IN THE CASE OF THE COMPANY, ALL TAX
DISTRIBUTIONS, (E) ANY EXTRAORDINARY, UNUSUAL OR NON-RECURRING GAINS OR
LOSSES OR CHARGES, AND (F) ANY OTHER NON-CASH ITEMS REDUCING SUCH NET
INCOME, ALL AS DETERMINED ON A CONSOLIDATED BASIS IN ACCORDANCE WITH GAAP;
PROVIDED THAT, FOR ANY PERIOD DURING WHICH THE COMPANY OR ANY SUBSIDIARY
--------
SHALL PURCHASE OR OTHERWISE ACQUIRE ANY REAL PROPERTY WHICH THE COMPANY OR
SUCH SUBSIDIARY SHALL HAVE BEEN LEASING AS LESSEE DURING SUCH PERIOD, THE
COMPANY OR SUCH SUBSIDIARY, AS THE CASE MAY BE, SHALL BE DEEMED TO HAVE
ACQUIRED SUCH REAL PROPERTY ON THE FIRST DAY OF SUCH PERIOD AND ANY RENTAL
EXPENSE OF THE COMPANY OR SUCH SUBSIDIARY DURING SUCH PERIOD IN RESPECT OF
SUCH REAL PROPERTY SHALL BE DISREGARDED.
"ENVIRONMENTAL CLAIMS": ANY AND ALL ADMINISTRATIVE, REGULATORY OR
--------------------
JUDICIAL ACTIONS, SUITS, WRITTEN DIRECTIVES, CLAIMS, LIENS, NOTICES OF
NONCOMPLIANCE OR VIOLATION, INVESTIGATIONS OR PROCEEDINGS RELATING IN ANY
WAY TO ANY ENVIRONMENTAL LAW OR ANY PERMIT ISSUED, OR ANY APPROVAL GIVEN,
UNDER ANY SUCH ENVIRONMENTAL LAW (HEREAFTER, "CLAIMS"), INCLUDING, WITHOUT
------
LIMITATION, (A) ANY AND ALL CLAIMS BY GOVERNMENTAL AUTHORITIES FOR
ENFORCEMENT, CLEANUP, REMOVAL, RESPONSE, REMEDIAL OR OTHER ACTIONS OR
DAMAGES PURSUANT TO ANY APPLICABLE ENVIRONMENTAL LAWS AND (B) CLAIMS BY ANY
THIRD PARTY PURSUANT TO ENVIRONMENTAL LAWS SEEKING DAMAGES, CONTRIBUTIONS,
INDEMNIFICATION, COST RECOVERY, COMPENSATION OR INJUNCTIVE RELIEF RESULTING
FROM HAZARDOUS MATERIALS OR ARISING FROM
15
ALLEGED INJURY OR THREAT OF INJURY TO HEALTH, SAFETY OR THE ENVIRONMENT.
"ENVIRONMENTAL COSTS": ANY AND ALL COSTS, FINES, PENALTIES, EXPENSES,
-------------------
DAMAGES AND LIABILITIES, INCLUDING, WITHOUT LIMITATION, THE FEES OF
ATTORNEYS AND ENVIRONMENTAL CONSULTANTS, ARISING DIRECTLY UNDER
ENVIRONMENTAL LAWS.
"ENVIRONMENTAL LAW": ANY FEDERAL, STATE, PROVINCIAL, FOREIGN OR LOCAL
-----------------
STATUTE, LAW, RULE, REGULATION, ORDINANCE OR RULE OF COMMON LAW NOW OR
HEREAFTER IN EFFECT AND IN EACH CASE AS AMENDED, AND ANY JUDICIAL OR
ADMINISTRATIVE INTERPRETATION THEREOF, INCLUDING ANY JUDICIAL OR
ADMINISTRATIVE ORDER, CONSENT DECREE OR JUDGMENT, RELATING TO THE
ENVIRONMENT, OR HAZARDOUS MATERIALS, INCLUDING, WITHOUT LIMITATION, A;
RCRA; THE HAZARDOUS MATERIALS TRANSPORTATION ACT, AS AMENDED, 49 U.S.C. (S)
1801 ET SEQ.; THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED, 33
-- ---
U.S.C. (S) 1251 ET SEQ.; THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C. (S)
-- ---
2601 ET SEQ.; THE CLEAN AIR ACT, 42 U.S.C. (S) 7401 ET SEQ.; THE SAFE
-- --- -- ---
DRINKING WATER ACT, 42 U.S.C. (S) 3808 ET SEQ.; THE OIL POLLUTION ACT OF
-- ---
1990, 33 U.S.C. (S) 2701 ET SEQ.; THE EMERGENCY PLANNING AND COMMUNITY
-- ---
RIGHT-TO-KNOW-ACT OF 1986, 42 U.S.C. (S) 11001 ET SEQ.; ANY APPLICABLE
-- ---
STATE AND LOCAL OR FOREIGN COUNTERPARTS OR EQUIVALENTS; AND ANY CANADIAN
FEDERAL, PROVINCIAL, MUNICIPAL OR LOCAL COUNTERPARTS OR EQUIVALENTS
THEREOF, INCLUDING THE CANADIAN ENVIRONMENTAL PROTECTION ACT, AS AMENDED,
THE ENVIRONMENTAL PROTECTION ACT (ONTARIO), AS AMENDED, AND THE ONTARIO
WATER RESOURCES ACT AND ANY FOREIGN COUNTERPARTS OR EQUIVALENTS THEREOF;
AND THE TERMS AND CONDITIONS OF ANY ENVIRONMENTAL PERMIT ISSUED PURSUANT TO
ANY ENVIRONMENTAL LAW TO EITHER BORROWER OR ITS SUBSIDIARIES OR ANY
FACILITY OWNED OR OPERATED BY SUCH BORROWER OR ITS SUBSIDIARIES.
"ERISA": THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
-----
AMENDED FROM TIME TO TIME.
"EQUITY OFFERINGS": THE COLLECTIVE REFERENCE TO THE CONCURRENT PUBLIC
----------------
OFFERINGS BY THE COMPANY CONSUMMATED IN JULY, 1997 OF SHARES OF THE
COMPANY'S COMMON STOCK (I) IN THE UNITED STATES OF AMERICA AND CANADA AND
(II) INTERNATIONALLY.
"A RESERVE REQUIREMENTS": FOR ANY DAY AS APPLIED TO A
---------------------------------
EURODOLLAR LOAN, THE AGGREGATE (WITHOUT DUPLICATION) OF THE RATES
(EXPRESSED AS A DECIMAL FRACTION) OF RESERVE REQUIREMENTS IN EFFECT ON SUCH
DAY (INCLUDING, WITHOUT LIMITATION, BASIC, SUPPLEMENTAL, MARGINAL AND
EMERGENCY RESERVES UNDER ANY REGULATIONS OF THE BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM 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 SUCH BOARD) MAINTAINED BY A MEMBER BANK OF SUCH SYSTEM.
16
"EURODOLLAR BASE RATE": WITH RESPECT TO EACH DAY DURING EACH INTEREST
--------------------
PERIOD PERTAINING TO A EURODOLLAR LOAN, THE RATE PER ANNUM DETERMINED BY
THE US ADMINISTRATIVE AGENT TO BE THE ARITHMETIC MEAN (ROUNDED TO THE
NEAREST 1/100TH OF 1%) OF THE OFFERED RATES FOR DEPOSITS IN US DOLLARS WITH
A TERM COMPARABLE TO SUCH INTEREST PERIOD THAT APPEARS ON THE TELERATE
BRITISH BANKERS ASSOC. INTEREST SETTLEMENT RATES PAGE (AS DEFINED BELOW) AT
APPROXIMATELY 11:00 A.M., LONDON TIME, ON THE SECOND FULL BUSINESS DAY
PRECEDING THE FIRST DAY OF SUCH INTEREST PERIOD; PROVIDED, HOWEVER, THAT IF
-------- -------
THERE SHALL AT ANY TIME NO LONGER EXIST A TELERATE BRITISH BANKERS ASSOC.
INTEREST SETTLEMENT RATES PAGE, "EURODOLLAR BASE RATE" SHALL MEAN, WITH
--------------------
RESPECT TO EACH DAY DURING EACH INTEREST PERIOD PERTAINING TO A EURODOLLAR
LOAN, THE RATE PER ANNUM EQUAL TO THE RATE AT WHICH CIBC IS OFFERED US
DOLLAR DEPOSITS AT OR ABOUT 10:00 A.M., NEW YORK CITY TIME, TWO BUSINESS
DAYS PRIOR TO THE BEGINNING OF SUCH INTEREST PERIOD IN THE INTERBANK
EURODOLLAR MARKET WHERE THE EURODOLLAR AND FOREIGN CURRENCY AND EXCHANGE
OPERATIONS IN RESPECT OF ITS EURODOLLAR LOANS ARE THEN BEING CONDUCTED FOR
DELIVERY ON THE FIRST DAY OF SUCH INTEREST PERIOD FOR THE NUMBER OF DAYS
COMPRISED THEREIN AND IN AN AMOUNT COMPARABLE TO THE AMOUNT OF ITS
EURODOLLAR LOAN TO BE OUTSTANDING DURING SUCH INTEREST PERIOD. "TELERATE
--------
BRITISH BANKERS ASSOC. INTEREST SETTLEMENT RATES PAGE" SHALL MEAN THE
-----------------------------------------------------
DISPLAY DESIGNATED AS PAGE 3750 ON THE TELERATE SYSTEM INCORPORATED SERVICE
(OR SUCH OTHER PAGE AS MAY REPLACE SUCH PAGE ON SUCH SERVICE FOR THE
PURPOSE OF DISPLAYING THE RATES AT WHICH US DOLLAR DEPOSITS ARE OFFERED BY
LEADING BANKS IN THE LONDON INTERBANK DEPOSIT MARKET).
"EURODOLLAR LOANS": US$ LOANS THE RATE OF INTEREST APPLICABLE TO
----------------
WHICH IS BASED UPON THE EURODOLLAR RATE.
"EURODOLLAR RATE": WITH RESPECT TO EACH DAY DURING EACH INTEREST
---------------
PERIOD PERTAINING TO A EURODOLLAR LOAN, A RATE PER ANNUM DETERMINED FOR
SUCH DAY IN ACCORDANCE WITH THE FOLLOWING FORMULA (ROUNDED UPWARD TO THE
NEAREST 1/100TH OF 1%):
EURODOLLAR BASE RATE
-----------------------------------------------
1.00 - EUROCURRENCY RESERVE REQUIREMENTS
"EURODOLLAR TRANCHE": THE COLLECTIVE REFERENCE TO EURODOLLAR LOANS
------------------
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 9,
----------------
PROVIDED THAT ANY REQUIREMENT FOR THE GIVING OF NOTICE, THE LAPSE OF TIME,
--------
OR BOTH, OR ANY OTHER CONDITION, HAS BEEN SATISFIED.
17
"EXCHANGE ACT": THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND
------------
THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
"EXISTING CREDIT AGREEMENT": AS DEFINED IN THE RECITALS TO THIS
-------------------------
AGREEMENT.
"FEDERAL FUNDS RATE": FOR ANY PARTICULAR DATE, AN INTEREST RATE PER
------------------
ANNUM EQUAL TO THE INTEREST RATE (ROUNDED UPWARD TO THE NEAREST 1/16TH OF
1%) OFFERED IN THE INTERBANK MARKET TO CIBC AS THE OVERNIGHT FEDERAL FUNDS
RATE AT OR ABOUT 10:00 A.M., NEW YORK CITY TIME, ON SUCH DAY (OR, IF SUCH
DAY IS NOT A BUSINESS DAY, FOR THE NEXT PRECEDING BUSINESS DAY).
"FIXED CHARGE COVERAGE RATIO": FOR ANY PERIOD, THE RATIO OF (A)
---------------------------
EBITDA OF THE COMPANY FOR SUCH PERIOD TO (B) FIXED CHARGES FOR SUCH PERIOD.
"FIXED CHARGES": FOR ANY PERIOD, THE SUM OF THE FOLLOWING FOR SUCH
-------------
PERIOD: (A) INTEREST EXPENSE, (B) THE EXCESS, IF ANY, OF THE DOLLAR
EQUIVALENT AMOUNT OF THE AGGREGATE PRINCIPAL AMOUNT OF LOANS AND L/C
OBLIGATIONS OUTSTANDING ON THE FIRST DAY OF SUCH PERIOD OVER THE MAXIMUM
AGGREGATE AMOUNT OF THE COMMITMENTS ON THE LAST DAY OF SUCH PERIOD, GIVING
EFFECT TO THE SCHEDULED REDUCTIONS REQUIRED UNDER SUBSECTION 4.3(A) AND
4.3(B), (C) INCOME TAXES PAID BY THE COMPANY AND ITS SUBSIDIARIES, (D) TAX
DISTRIBUTIONS AND (E) THE AMOUNT OF CAPITAL EXPENDITURES RELATING TO THE
COMPANY'S NORMAL MAINTENANCE PROGRAM.
"FOREIGN SUBSIDIARY": ANY SUBSIDIARY ORGANIZED UNDER THE LAWS OF ANY
------------------
JURISDICTION OUTSIDE THE UNITED STATES OF AMERICA.
"GAAP": GENERALLY ACCEPTED ACCOUNTING PRINCIPLES IN THE UNITED STATES
----
OF AMERICA IN EFFECT FROM TIME TO TIME.
"GOVERNMENTAL AUTHORITY": ANY NATION OR GOVERNMENT, ANY STATE OR
----------------------
OTHER POLITICAL SUBDIVISION THEREOF AND ANY ENTITY EXERCISING EXECUTIVE,
LEGISLATIVE, JUDICIAL, REGULATORY OR ADMINISTRATIVE FUNCTIONS OF OR
PERTAINING TO GOVERNMENT.
"GUARANTEE OBLIGATION": AS TO ANY PERSON (THE "GUARANTEEING PERSON"),
-------------------- -------------------
WITHOUT DUPLICATION, 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 REIMBURSEMENT, COUNTERINDEMNITY OR SIMILAR OBLIGATION, IN EITHER CASE
GUARANTEEING OR IN EFFECT GUARANTEEING ANY INDEBTEDNESS, LEASES, DIVIDENDS
OR OTHER OBLIGATIONS (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
18
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 THE LOWER OF (A) AN AMOUNT EQUAL TO THE STATED
OR DETERMINABLE AMOUNT OF THE PRIMARY OBLIGATION IN RESPECT OF WHICH SUCH
GUARANTEE OBLIGATION IS MADE AND (B) THE MAXIMUM AMOUNT FOR WHICH SUCH
GUARANTEEING PERSON MAY BE LIABLE PURSUANT TO THE TERMS OF THE INSTRUMENT
EMBODYING SUCH GUARANTEE OBLIGATION, UNLESS SUCH PRIMARY OBLIGATION AND THE
MAXIMUM AMOUNT FOR WHICH SUCH GUARANTEEING PERSON MAY BE LIABLE ARE NOT
STATED OR DETERMINABLE, IN WHICH CASE THE AMOUNT OF SUCH GUARANTEE
OBLIGATION SHALL BE SUCH GUARANTEEING PERSON'S MAXIMUM REASONABLY
ANTICIPATED LIABILITY IN RESPECT THEREOF AS DETERMINED BY THE COMPANY IN
GOOD FAITH.
"HAZARDOUS MATERIALS": (A) ANY PETROLEUM OR PETROLEUM PRODUCTS,
-------------------
RADIOACTIVE MATERIALS, ASBESTOS IN ANY FORM THAT IS FRIABLE, UREA
FORMALDEHYDE FOAM INSULATION, TRANSFORMERS OR OTHER EQUIPMENT THAT CONTAIN
DIELECTRIC FLUID CONTAINING LEVELS OF POLYCHLORINATED BIPHENYLS, AND RADON
GAS IN EXCESS OF FOUR PICOCURIES PER LITER; (B) ANY CHEMICALS, MATERIALS OR
SUBSTANCES DEFINED AS OR INCLUDED IN THE DEFINITION OF "HAZARDOUS
SUBSTANCES," "HAZARDOUS WASTE," "HAZARDOUS MATERIALS," "EXTREMELY HAZARDOUS
WASTE," "RESTRICTED HAZARDOUS WASTE," "TOXIC SUBSTANCES," "TOXIC
POLLUTANTS," "CONTAMINANTS," OR "POLLUTANTS," OR WORDS OF SIMILAR IMPORT,
UNDER ANY APPLICABLE ENVIRONMENTAL LAW; AND (C) ANY OTHER CHEMICAL,
MATERIAL OR SUBSTANCE, EXPOSURE TO WHICH IS PROHIBITED, LIMITED OR
REGULATED BY ANY GOVERNMENTAL AUTHORITY.
"INDEBTEDNESS": OF ANY PERSON AT ANY DATE, WITHOUT DUPLICATION, (A)
------------
ALL INDEBTEDNESS OF SUCH PERSON FOR BORROWED MONEY OR FOR THE DEFERRED
PURCHASE PRICE OF PROPERTY OR SERVICES (OTHER THAN ACCOUNTS PAYABLE OR
TRADE PAYABLES AND OTHER ACCRUED LIABILITIES INCURRED IN THE ORDINARY
COURSE OF BUSINESS AND PAYABLE IN ACCORDANCE WITH CUSTOMARY PRACTICES),
PROVIDED THAT AMOUNTS DEFERRED AND OWING WITH RESPECT TO NON-COMPETITION OR
--------
CONSULTING AGREEMENTS WITH RESPECT TO PERMITTED ACQUISITIONS OR EXISTING ON
THE CLOSING DATE UP TO AN AGGREGATE AMOUNT OF $5,000,000 AT ANY ONE TIME
OUTSTANDING SHALL NOT CONSTITUTE INDEBTEDNESS, (B) ANY OTHER INDEBTEDNESS
OF SUCH PERSON WHICH IS EVIDENCED BY A NOTE, BOND, DEBENTURE OR SIMILAR
INSTRUMENT, (C) ALL OBLIGATIONS OF SUCH PERSON IN RESPECT OF ACCEPTANCES
ISSUED OR CREATED FOR THE ACCOUNT OF SUCH PERSON,
19
(D) ALL CAPITALIZED LEASE OBLIGATIONS OF SUCH PERSON, (E) ALL UNREIMBURSED
OBLIGATIONS OF SUCH PERSON, IN RESPECT OF AMOUNTS DRAWN UNDER ACCEPTANCE,
LETTER OF CREDIT OR SIMILAR FACILITIES, (F) FOR PURPOSES OF SUBSECTION 8.4
AND SECTION 9(E), ALL OBLIGATIONS OF SUCH PERSON IN RESPECT OF ANY INTEREST
RATE PROTECTION AGREEMENTS, AND (G) ALL LIABILITIES SECURED BY ANY LIEN ON
ANY PROPERTY OWNED BY SUCH PERSON IN CIRCUMSTANCES WHERE SUCH PERSON HAS
NOT ASSUMED OR OTHERWISE BECOME LIABLE FOR THE PAYMENT THEREOF, WHICH
INDEBTEDNESS SHALL BE LIMITED TO THE LESSER OF THE VALUE OF THE PROPERTY OR
THE AMOUNT OF THE LIABILITY.
"INDEMNIFIED LIABILITIES": AS DEFINED IN SUBSECTION 11.5.
-----------------------
"INSOLVENCY": WITH RESPECT TO ANY MULTIEMPLOYER PLAN, THE CONDITION
----------
THAT SUCH PLAN IS INSOLVENT WITHIN THE MEANING OF SECTION 4245 OF ERISA.
"INSOLVENT": PERTAINING TO A CONDITION OF INSOLVENCY.
---------
"INTELLECTUAL PROPERTY": AS DEFINED IN SUBSECTION 5.9.
---------------------
"INTEREST EXPENSE": FOR ANY PERIOD FOR ANY PERSON, THE TOTAL
----------------
CONSOLIDATED INTEREST EXPENSE OF SUCH PERSON AND ITS SUBSIDIARIES FOR SUCH
PERIOD (CALCULATED ON AN ACCRUAL BASIS WITHOUT REGARD TO ANY LIMITATIONS ON
THE PAYMENT THEREOF AND EXCLUDING AMORTIZATION OF DEFERRED FINANCING COSTS)
IN RESPECT OF ALL INDEBTEDNESS OF SUCH PERSON FOR SUCH PERIOD PLUS, WITHOUT
DUPLICATION, THAT PORTION OF CAPITALIZED LEASE OBLIGATIONS OF SUCH PERSON
AND ITS SUBSIDIARIES REPRESENTING THE INTEREST FACTOR FOR SUCH PERIOD.
"INTEREST PAYMENT DATE": (A) AS TO ANY BASE RATE LOAN OR C$ PRIME
---------------------
LOAN, THE LAST DAY OF EACH MARCH, JUNE, SEPTEMBER AND DECEMBER, (B) AS TO
ANY EURODOLLAR LOAN HAVING AN INTEREST PERIOD OF THREE MONTHS OR LESS, THE
LAST DAY OF SUCH INTEREST PERIOD AND (C) AS TO ANY EURODOLLAR LOAN HAVING
AN INTEREST PERIOD LONGER THAN THREE MONTHS, THE DAY WHICH IS THREE MONTHS
AFTER THE FIRST DAY OF SUCH INTEREST PERIOD AND THE LAST DAY OF SUCH
INTEREST PERIOD.
"INTEREST PERIOD": WITH RESPECT TO ANY EURODOLLAR LOAN:
---------------
(A) INITIALLY, THE PERIOD COMMENCING ON THE BORROWING OR
CONVERSION DATE, AS THE CASE MAY BE, WITH RESPECT TO SUCH EURODOLLAR
LOAN AND ENDING ONE, TWO, THREE OR SIX MONTHS THEREAFTER, AS SELECTED
BY THE COMPANY 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 EURODOLLAR LOAN
AND ENDING ONE, TWO, THREE OR SIX MONTHS THEREAFTER, AS SELECTED BY
THE COMPANY BY
20
IRREVOCABLE NOTICE TO THE US ADMINISTRATIVE AGENT NOT LESS THAN 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 PERTAINING TO A EURODOLLAR LOAN
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
TERMINATION DATE SHALL END ON THE TERMINATION DATE;
(III) ANY INTEREST PERIOD PERTAINING TO A EURODOLLAR LOAN 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; AND
(IV) THE COMPANY SHALL SELECT INTEREST PERIODS SO AS NOT TO
REQUIRE A PAYMENT OR PREPAYMENT OF ANY EURODOLLAR LOAN DURING AN
INTEREST PERIOD FOR SUCH LOAN.
"INTEREST RATE PROTECTION AGREEMENT": ANY INTEREST RATE PROTECTION
----------------------------------
AGREEMENT, INTEREST RATE FUTURE, INTEREST RATE OPTION, INTEREST RATE CAP OR
COLLAR OR OTHER INTEREST RATE HEDGE ARRANGEMENT, TO OR UNDER WHICH THE
COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY OR A BENEFICIARY.
"ISSUING LENDER": CIBC, IN ITS CAPACITY AS ISSUER OF ANY LETTER OF
--------------
CREDIT.
"XXXXX TRANSACTION": THE ACQUISITION OF THE 60% PARTNERSHIP INTEREST
-----------------
IN XXXXX XXXXXX LIMITED PARTNERSHIP NOT CURRENTLY OWNED BY THE COMPANY.
"L/C COMMITMENT": US$20,000,000.
--------------
"L/C FEE PAYMENT DATE": THE LAST DAY OF EACH MARCH, JUNE, SEPTEMBER
--------------------
AND DECEMBER AND THE LAST DAY OF THE COMMITMENT PERIOD.
"L/C OBLIGATIONS": AT ANY TIME, AN AMOUNT EQUAL TO THE SUM OF (A) THE
---------------
AGGREGATE THEN UNDRAWN AND UNEXPIRED DOLLAR EQUIVALENT AMOUNT OF THE THEN
OUTSTANDING LETTERS OF CREDIT AND (B) THE AGGREGATE DOLLAR EQUIVALENT
AMOUNT OF DRAWINGS
21
UNDER LETTERS OF CREDIT THAT HAVE NOT THEN BEEN REIMBURSED PURSUANT TO
SECTION 12.5.
"L/C PARTICIPANTS": THE COLLECTIVE REFERENCE TO ALL THE US$ LENDERS
----------------
OTHER THAN THE ISSUING LENDER.
"LENDERS": AS DEFINED IN THE PREAMBLE HERETO.
-------
"LETTERS OF CREDIT": AS DEFINED IN SECTION 12.1(A).
-----------------
"LEVERAGE RATIO": AT ANY DATE OF DETERMINATION THEREOF, THE RATIO OF
--------------
(A) TOTAL NET DEBT AT SUCH DATE TO (B) ADJUSTED EBITDA FOR THE THEN MOST
RECENTLY ENDED PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS, FOR WHICH
FINANCIAL STATEMENTS SHALL HAVE BEEN DELIVERED TO THE LENDERS PURSUANT TO
SUBSECTION 5.1, 7.1(A) OR 7.1(B), AS THE CASE MAY BE.
"LIEN": ANY MORTGAGE OR DEED OF TRUST, PLEDGE, HYPOTHECATION,
----
ASSIGNMENT, DEPOSIT ARRANGEMENT, SECURITY INTEREST, LIEN, CHARGE, EASEMENT,
ENCUMBRANCE, PREFERENCE, PRIORITY, OR OTHER SECURITY AGREEMENT OR
PREFERENTIAL ARRANGEMENT OF ANY KIND OR NATURE WHATSOEVER ON OR WITH
RESPECT TO SUCH PROPERTY OR ASSETS (INCLUDING WITHOUT LIMITATION, ANY
CAPITALIZED LEASE OBLIGATION, CONDITIONAL SALE, OR OTHER TITLE RETENTION
AGREEMENT HAVING SUBSTANTIALLY THE SAME ECONOMIC EFFECT AS ANY OF THE
FOREGOING).
"LIMITED PARTNERSHIP": COLLECTIVELY, PLC COMMAND I, L.P. AND PLC
-------------------
COMMAND II, L.P., EACH A LIMITED PARTNERSHIP ORGANIZED AND EXISTING UNDER
THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
"LOAN DOCUMENTS": THIS AGREEMENT, EACH DRAFT, EACH BANKERS'
--------------
ACCEPTANCE, ANY NOTES, THE SECURITY DOCUMENTS, EACH APPLICATION AND ANY
DOCUMENT, AGREEMENT OR CERTIFICATE EXECUTED OR DELIVERED IN CONNECTION
HEREWITH.
"LOAN PARTIES": EACH BORROWER AND EACH SUBSIDIARY OF THE COMPANY AND
------------
ANY OTHER PERSON (OTHER THAN THE LENDERS AND THE ADMINISTRATIVE AGENTS)
WHICH IS A PARTY TO A LOAN DOCUMENT.
"LOANS": THE COLLECTIVE REFERENCE TO THE US$ LOANS AND THE C$ LOANS.
-----
"LOCAL TIME": (A) IN THE CASE OF MATTERS RELATING TO US$ LOANS, NEW
----------
YORK CITY TIME, AND (B) IN THE CASE OF MATTERS RELATING TO C$ LOANS,
TORONTO TIME.
"MATERIAL ADVERSE EFFECT": A MATERIAL ADVERSE EFFECT ON (A) THE
-----------------------
BUSINESS, OPERATIONS, PROPERTY, CONDITION (FINANCIAL OR OTHERWISE) OR
PROSPECTS OF THE COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE OR (B) THE
VALIDITY OR ENFORCEABILITY OF THIS OR ANY OF THE OTHER LOAN DOCUMENTS OR
THE RIGHTS OR REMEDIES OF THE ADMINISTRATIVE AGENTS OR THE LENDERS
HEREUNDER OR THEREUNDER.
22
"MOODY'S": XXXXX'X INVESTORS SERVICE, INC.
-------
"MORTGAGES": THE COLLECTIVE REFERENCE TO ALL US MORTGAGES AND ALL
---------
CANADIAN MORTGAGES.
"MULTIEMPLOYER PLAN": A PLAN WHICH IS A MULTIEMPLOYER PLAN AS DEFINED
------------------
IN SECTION 4001(A)(3) OF ERISA.
"NET INCOME": WITH RESPECT TO ANY PERSON FOR ANY PERIOD, THE
----------
CONSOLIDATED NET INCOME OF SUCH PERSON AND ITS SUBSIDIARIES FOR SUCH PERIOD
DETERMINED IN ACCORDANCE WITH GAAP, EXCLUDING ANY FOREIGN CURRENCY
TRANSLATION GAINS OR LOSSES ADDED OR DEDUCTED, AS APPLICABLE, IN THE
COMPUTATION OF NET INCOME.
"NET PROCEEDS":
------------
(A) IN THE CASE OF ANY DISPOSITION, THE AGGREGATE AMOUNT OF ALL
CASH PAYMENTS RECEIVED BY THE RELEVANT BORROWER AND ITS SUBSIDIARIES
DIRECTLY OR INDIRECTLY IN CONNECTION WITH SUCH DISPOSITION; PROVIDED
--------
THAT (I) NET PROCEEDS SHALL BE NET OF (X) THE AMOUNT OF ANY LEGAL,
TITLE AND RECORDING TAX EXPENSES, COMMISSIONS AND OTHER FEES AND
EXPENSES PAID BY SUCH BORROWER AND ITS SUBSIDIARIES IN CONNECTION WITH
SUCH DISPOSITION AND (Y) ANY FEDERAL, STATE, PROVINCIAL AND LOCAL
INCOME OR OTHER TAXES ESTIMATED TO BE PAYABLE BY SUCH BORROWER AND ITS
SUBSIDIARIES (OR, IN THE CASE OF THE COMPANY, BY THE COMPANY AND/OR
THE SUBCHAPTER S SHAREHOLDERS RESULTING FROM THE COMPANY'S STATUS AS
AN S CORPORATION AS DEFINED IN SECTION 1361 OF THE CODE PRIOR TO THE
EQUITY OFFERINGS) AS A RESULT OF SUCH DISPOSITION (BUT ONLY TO THE
EXTENT THAT SUCH ESTIMATED TAXES ARE IN FACT PAID TO THE RELEVANT
FEDERAL, STATE, PROVINCIAL OR LOCAL GOVERNMENTAL AUTHORITY) AND (II)
NET PROCEEDS SHALL BE NET OF ANY REPAYMENTS BY SUCH BORROWER OR ANY OF
ITS SUBSIDIARIES OF INDEBTEDNESS TO THE EXTENT THAT (X) SUCH
INDEBTEDNESS IS SECURED BY A LIEN ON THE PROPERTY THAT IS SUBJECT TO
SUCH DISPOSITION (WHICH INDEBTEDNESS SHALL BE VALUED AT THE LESSER OF
THE VALUE OF THE PROPERTY OR THE AMOUNT OF THE INDEBTEDNESS) AND (Y)
THE TRANSFEREE OF (OR HOLDER OF A LIEN ON) SUCH PROPERTY REQUIRES THAT
SUCH INDEBTEDNESS BE REPAID AS A CONDITION TO THE PURCHASE OF SUCH
PROPERTY; AND
(B) IN THE CASE OF ANY CASUALTY EVENT, THE AGGREGATE AMOUNT OF
PROCEEDS OF INSURANCE (OTHER THAN BUSINESS INTERRUPTION INSURANCE),
CONDEMNATION AWARDS AND OTHER COMPENSATION RECEIVED BY THE RELEVANT
BORROWER AND ITS SUBSIDIARIES IN RESPECT OF SUCH CASUALTY EVENT NET OF
(I) REASONABLE EXPENSES INCURRED BY SUCH BORROWER AND ITS SUBSIDIARIES
IN CONNECTION THEREWITH, (II) CONTRACTUALLY REQUIRED REPAYMENTS ON
INDEBTEDNESS (OTHER THAN INDEBTEDNESS HEREUNDER) TO THE EXTENT SECURED
BY A LIEN
23
ON SUCH PROPERTY, (III) ANY INCOME AND TRANSFER TAXES PAYABLE BY SUCH
BORROWER OR ANY OF ITS SUBSIDIARIES (OR, IN THE CASE OF THE COMPANY,
BY THE COMPANY AND/OR THE SUBCHAPTER S SHAREHOLDERS RESULTING FROM THE
COMPANY'S STATUS AS AN S CORPORATION AS DEFINED IN SECTION 1361 OF THE
CODE PRIOR TO THE EQUITY OFFERINGS) IN RESPECT OF SUCH CASUALTY EVENT
AND (IV) COSTS RESULTING FROM THE USE OF ALTERNATE FACILITIES OR
WAREHOUSES BY SUCH BORROWER AND/OR ANY SUBSIDIARIES AS A RESULT OF
SUCH CASUALTY EVENT.
"1996 SENIOR SUBORDINATED NOTES": THE 11-/1/8/% SENIOR SUBORDINATED
------------------------------
NOTES DUE 2006 OF THE COMPANY IN AN AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF
US$200,000,000 ISSUED PURSUANT TO THE 1996 SENIOR SUBORDINATED NOTES
INDENTURE, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH SUBSECTION 8.11.
"1997 SENIOR SUBORDINATED NOTES": THE 9-/1/8/% SENIOR SUBORDINATED
------------------------------
NOTES DUE 2007 OF THE COMPANY IN AN AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF
US$120,000,000 ISSUED PURSUANT TO THE 1997 SENIOR SUBORDINATED NOTES
INDENTURE, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH SUBSECTION 8.11.
"1998 SENIOR NOTES": THE SENIOR NOTES DUE 2008 OF THE CANADIAN
-----------------
BORROWER IN AN AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF US$135,000,000 ISSUED
PURSUANT TO THE 1998 SENIOR NOTES INDENTURE, AS THE SAME MAY BE AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH
SUBSECTION 8.11(B) OR (C).
"1999 SENIOR SUBORDINATED NOTES": THE SENIOR SUBORDINATED NOTES DUE
------------------------------
2009 OF THE COMPANY IN AN AGGREGATE ORIGINAL PRINCIPAL AMOUNT NOT TO EXCEED
US$175,000,000 TO BE ISSUED PURSUANT TO THE 1999 SENIOR SUBORDINATED NOTES
INDENTURE, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH SUBSECTION 8.11(B) OR (C).
"1996 SENIOR SUBORDINATED NOTES INDENTURE": THE SENIOR SUBORDINATED
----------------------------------------
NOTES INDENTURE, DATED AS OF JULY 15, 0000, XXXXXXX XXX XXXXXXX XXX XXXXXX
XXXXXX TRUST COMPANY OF NEW YORK, AS TRUSTEE, AS AMENDED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH SUBSECTION 8.11.
"1997 SENIOR SUBORDINATED NOTES INDENTURE": THE SENIOR SUBORDINATED
----------------------------------------
NOTES INDENTURE, DATED AS OF JULY 7, 1997 BETWEEN THE COMPANY AND THE BANK
OF NEW YORK, AS TRUSTEE, AS AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME IN ACCORDANCE WITH SUBSECTION 8.11.
"1998 SENIOR NOTES INDENTURE": THE SENIOR NOTES INDENTURE, DATED AS
---------------------------
OF APRIL 7, 1998 BETWEEN THE CANADIAN
24
BORROWER, THE COMPANY AND THE BANK OF NEW YORK, AS TRUSTEE, AS AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME IN ACCORDANCE WITH
SUBSECTION 8.11(B) OR (C).
"1999 SENIOR SUBORDINATED NOTES INDENTURE": THE INDENTURE PROPOSED TO
----------------------------------------
BE ENTERED INTO ON OR BEFORE AUGUST 1, 1999 BETWEEN THE COMPANY AND A
TRUSTEE TO BE NAMED CONTAINING SUBSTANTIALLY THE SAME TERMS AND CONDITIONS
AS THE 1997 SENIOR SUBORDINATED NOTES INDENTURE (EXCEPT THAT THE INTEREST
RATE PAYABLE THEREUNDER SHALL BE CONSISTENT WITH RATES FOR SIMILAR
INDEBTEDNESS PREVAILING IN THE MARKET FOR SUCH TYPE OF INDEBTEDNESS AT THE
TIME OF THE ISSUANCE OF THE 1999 SENIOR SUBORDINATED NOTES), AS SUCH
INDENTURE MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED IN ACCORDANCE
WITH SUBSECTION 8.11(B) OR (C).
"NON-EXCLUDED TAXES": AS DEFINED IN SUBSECTION 4.11.
------------------
"NOTES": THE COLLECTIVE REFERENCE TO THE US$ NOTES AND C$ NOTES.
-----
"ORIGINAL CLOSING DATE": THE CLOSING DATE, AS DEFINED IN THE EXISTING
---------------------
CREDIT AGREEMENT.
"ORIGINAL CREDIT AGREEMENT": AS DEFINED IN THE RECITALS TO THIS
-------------------------
AGREEMENT.
"PARTICIPANT": AS DEFINED IN SUBSECTION 11.6(B).
-----------
"PARTNERSHIP AGREEMENT": THE PLC COMMAND I, L.P. LIMITED PARTNERSHIP
---------------------
AGREEMENT DATED AS OF OCTOBER 23, 1995 BETWEEN PLC COMMAND I, INC. AS
GENERAL PARTNER AND THE COMPANY AS LIMITED PARTNER, AS AMENDED,
SUPPLEMENTED OR MODIFIED THERETO, AND THE PLC COMMAND II, L.P. LIMITED
PARTNERSHIP AGREEMENT DATED AS OF OCTOBER 23, 1995 BETWEEN PLC COMMAND II,
INC. AS GENERAL PARTNER AND THE COMPANY AS LIMITED PARTNER, AS AMENDED,
SUPPLEMENTED OR MODIFIED THERETO.
"PBGC": THE PENSION BENEFIT GUARANTY CORPORATION ESTABLISHED PURSUANT
----
TO SUBTITLE A OF TITLE IV OF ERISA.
"PERMITTED ACQUISITION": ANY ACQUISITION BY THE COMPANY OR ANY WHOLLY
---------------------
OWNED SUBSIDIARY, ON OR AFTER THE CLOSING DATE, WHETHER THROUGH A PURCHASE
OF CAPITAL STOCK OR ASSETS OR THROUGH A MERGER, CONSOLIDATION OR
AMALGAMATION, OF ANOTHER PERSON OR THE ASSETS CONSTITUTING AN ENTIRE
BUSINESS OR OPERATING BUSINESS UNIT OF ANOTHER PERSON, PROVIDED THAT:
--------
(A) THE ASSETS SO ACQUIRED OR, AS THE CASE MAY BE, THE ASSETS OF THE
PERSON SO ACQUIRED SHALL BE IN OR RELATED TO THE ARCHIVES RECORDS
MANAGEMENT BUSINESS;
25
(B) NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING AT THE TIME THEREOF OR WOULD RESULT THEREFROM;
(C) THE COMPANY SHALL HAVE DELIVERED TO THE US ADMINISTRATIVE AGENT,
AS SOON AS AVAILABLE BUT IN NO EVENT LATER THAN THE EARLIER OF (I) 10
DAYS AFTER THE EXECUTION THEREOF AND (II) 3 BUSINESS DAYS PRIOR THE
CLOSING OF SUCH ACQUISITION, A COPY OF THE EXECUTED PURCHASE AGREEMENT
WITH RESPECT THERETO (WITHOUT EXHIBITS, EXCEPT TO THE EXTENT AVAILABLE
AND REQUESTED BY THE US ADMINISTRATIVE AGENT) OR THE MOST RECENT DRAFT
THEREOF;
(D) IF THE PURCHASE PRICE OF SUCH PERMITTED ACQUISITION WOULD EXCEED
US$30,000,000 (OR THE EQUIVALENT THEREOF IN OTHER CURRENCIES), THE
REQUIRED LENDERS SHALL HAVE CONSENTED IN WRITING TO SUCH PERMITTED
ACQUISITION;
(E) IF, AFTER GIVING EFFECT TO SUCH ACQUISITION, THE AGGREGATE AMOUNT
OF THE PROCEEDS OF ACQUISITION LOANS MADE (X) DURING THE PERIOD FROM
THE CLOSING DATE TO AND INCLUDING DECEMBER 31, 1997 OR (Y) IN ANY
FISCAL YEAR OF THE COMPANY THEREAFTER THAT ARE USED TO FUND PERMITTED
ACQUISITIONS SHALL EXCEED US$85,000,000, (I) THE REQUIRED LENDERS
SHALL HAVE CONSENTED IN WRITING TO SUCH PERMITTED ACQUISITION AND (II)
THE COMPANY SHALL, NOT LESS THAN FIVE BUSINESS DAYS PRIOR TO THE
CLOSING OF SUCH PERMITTED ACQUISITION, HAVE PROVIDED UPDATED FINANCIAL
PROJECTIONS FOR THE THEN REMAINING LIFE OF THIS AGREEMENT AND
DELIVERED A COMPLIANCE CERTIFICATE OF A RESPONSIBLE OFFICER
DEMONSTRATING PRO FORMA COMPLIANCE WITH SUBSECTIONS 8.8, 8.9 AND 8.10
FOR THE THEN REMAINING LIFE OF THIS AGREEMENT; AND
(F) SUCH ACQUISITION SHALL BE EFFECTED IN SUCH MANNER SO THAT THE
ACQUIRED CAPITAL STOCK OR ASSETS ARE OWNED EITHER BY THE COMPANY OR A
WHOLLY OWNED SUBSIDIARY AND, IF EFFECTED BY MERGER, CONSOLIDATION OR
AMALGAMATION, THE COMPANY OR A WHOLLY OWNED SUBSIDIARY SHALL BE THE
CONTINUING, SURVIVING OR RESULTING ENTITY.
NOTWITHSTANDING THE FOREGOING, EACH OF THE XXXXX TRANSACTION AND THE
DATAVAULT TRANSACTION (PROVIDED THAT IT SHALL BE COMPLETED ON OR PRIOR TO
MARCH 15, 1999) SHALL BE A PERMITTED ACQUISITION.
"PERMITTED HOLDERS": COLLECTIVELY, XXX X. XXXXXX, XX., HIS CHILDREN
-----------------
OR OTHER LINEAL DESCENDANTS (WHETHER ADOPTIVE OR BIOLOGICAL), THE SPOUSES
OF ANY OF THE FOREGOING AND ANY PROBATE ESTATE OF ANY SUCH INDIVIDUAL AND
ANY TRUST, SO LONG AS ONE OR MORE OF THE FOREGOING INDIVIDUALS IS THE
PRINCIPAL BENEFICIARY OF SUCH TRUST, AND ANY PARTNERSHIP, CORPORATION OR
OTHER ENTITY ALL OF THE PARTNERS, SHAREHOLDERS, MEMBERS OR OWNERS OF WHICH
ARE ANY ONE OR MORE OF THE FOREGOING.
26
"PERMITTED INTERCOMPANY INDEBTEDNESS": (A) LOANS AND ADVANCES FROM
-----------------------------------
THE COMPANY TO ANY SUBSIDIARY OF THE COMPANY, (B) LOANS AND ADVANCES FROM
ANY SUBSIDIARY OF THE COMPANY TO THE COMPANY OR ANY OTHER SUBSIDIARY OF THE
COMPANY, AND (C) ACCRUED BUT UNPAID FEES OWING BY THE COMPANY TO ANY
SUBSIDIARY OF THE COMPANY OR BY ANY SUBSIDIARY OF THE COMPANY TO THE
COMPANY OR ANY OTHER SUBSIDIARY OF THE COMPANY.
"PERMITTED INTERCOMPANY INVESTMENT": THE EQUITY CAPITAL INVESTMENT BY
---------------------------------
THE COMPANY INTO THE CANADIAN BORROWER IN THE AMOUNT OF APPROXIMATELY
US$6,200,000 ON OR ABOUT DECEMBER 31, 1997, THROUGH THE PURCHASE OF
ADDITIONAL SHARES OF CAPITAL STOCK OF THE CANADIAN BORROWER WITH A
CORRESPONDING AMOUNT OF PERMITTED INTERCOMPANY INDEBTEDNESS OUTSTANDING ON
SUCH DATE.
"PERMITTED MORTGAGE DEBT": INDEBTEDNESS OF THE COMPANY PERMITTED BY
-----------------------
SUBSECTION 8.4(C).
"PERMITTED PREFERRED STOCK": ANY PAY-IN-KIND PREFERRED STOCK ISSUED
-------------------------
AND SOLD BY THE COMPANY DURING THE COMMITMENT PERIOD HAVING AN AGGREGATE
LIQUIDATION PREFERENCE NOT TO EXCEED US$20,000,000 (PLUS THE AGGREGATE
LIQUIDATION PREFERENCE OF ADDITIONAL SHARES OF SUCH PREFERRED STOCK ISSUED
IN LIEU OF PAYING CASH DIVIDENDS THEREON).
"PERSON": AN INDIVIDUAL, PARTNERSHIP, CORPORATION, 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 WHICH IS
----
COVERED BY ERISA AND IN RESPECT OF WHICH THE COMPANY OR A COMMONLY
CONTROLLED ENTITY 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.
"PLC": AS DEFINED IN THE RECITALS TO THIS AGREEMENT.
---
"PPSA": THE PERSONAL PROPERTY SECURITY ACT (ONTARIO).
----
"PREFERRED STOCK": AS DEFINED IN SUBSECTION 5.17.
---------------
"PURCHASE PRICE": WITH RESPECT TO ANY PERMITTED ACQUISITION, AN
--------------
AMOUNT EQUAL TO THE SUM OF (I) THE AGGREGATE CONSIDERATION, WHETHER CASH,
PROPERTY (AT THE FAIR MARKET VALUE THEREOF DETERMINED IN GOOD FAITH BY THE
BOARD OF DIRECTORS) OR SECURITIES (INCLUDING, WITHOUT LIMITATION, ANY
INDEBTEDNESS INCURRED PURSUANT TO SUBSECTION 8.4(F) AND THE FAIR MARKET
VALUE OF ANY CAPITAL STOCK OF THE COMPANY ISSUED TO THE SELLER IN SUCH
PERMITTED ACQUISITION), PAID OR DELIVERED BY THE COMPANY AND ITS
SUBSIDIARIES IN CONNECTION WITH SUCH PERMITTED ACQUISITION PLUS (II) THE
AGGREGATE AMOUNT OF LIABILITIES OF THE ACQUIRED BUSINESS (NET OF CURRENT
ASSETS OF THE ACQUIRED BUSINESS) THAT WOULD BE REFLECTED ON A BALANCE
27
SHEET (IF SUCH WERE TO BE PREPARED) OF THE COMPANY AND ITS SUBSIDIARIES
AFTER GIVING EFFECT TO SUCH PERMITTED ACQUISITION.
"QUALIFIED ASSETS": AS DEFINED IN SUBSECTION 4.4(B).
----------------
"RCRA": SHALL MEAN THE RESOURCE CONSERVATION AND RECOVERY ACT, AS THE
----
SAME MAY BE AMENDED FROM TIME TO TIME, 42 U.S.C. (S) 6901 ET SEQ.
-- ---
"REDUCE L/C EXPOSURE" OR "REDUCTION OF L/C EXPOSURE": THE ACT OF
------------------- -------------------------
REDUCING OR, AS THE CASE MAY BE, THE RESULTANT REDUCTION BY THE COMPANY OF
ITS L/C OBLIGATIONS BY REPLACING OR REDUCING OUTSTANDING LETTERS OF CREDIT
AND/OR BY DEPOSITING AN AMOUNT IN CASH IN A CASH COLLATERAL ACCOUNT
ESTABLISHED WITH THE US ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE US$
LENDERS ON TERMS AND CONDITIONS SATISFACTORY TO THE US ADMINISTRATIVE
AGENT.
"REFUNDING BANKERS' ACCEPTANCE": AS DEFINED IN SUBSECTION 3.3(D).
-----------------------------
"REGISTERS": AS DEFINED IN SUBSECTION 11.6(D).
---------
"REGULATION D, G, T, U OR X": REGULATION D, G, T, U OR X OF THE BOARD
--------------------------
OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM AS IN EFFECT FROM TIME TO TIME.
"REIMBURSEMENT OBLIGATION": THE OBLIGATION OF THE COMPANY TO
------------------------
REIMBURSE THE ISSUING LENDER PURSUANT TO SUBSECTION 12.5 FOR AMOUNTS DRAWN
UNDER LETTERS OF CREDIT.
"REINVESTABLE PROCEEDS": AS DEFINED IN SUBSECTION 4.4(B).
---------------------
"RELEASE": DISPOSING, DISCHARGING, INJECTING, SPILLING, PUMPING,
-------
LEAKING, LEACHING, DUMPING, EMITTING, ESCAPING, EMPTYING, SEEPING, PLACING,
POURING AND THE LIKE, INTO OR UPON ANY LAND OR WATER OR AIR, OR OTHERWISE
ENTERING INTO THE ENVIRONMENT.
"RELEVANT PERMITTED ACQUISITION": AS DEFINED IN SUBSECTION 6.3(A).
------------------------------
"REORGANIZATION": WITH RESPECT TO ANY MULTIEMPLOYER PLAN, THE
--------------
CONDITION THAT SUCH PLAN IS IN REORGANIZATION WITHIN THE MEANING OF SECTION
4241 OF ERISA.
"REPORTABLE EVENT": ANY OF THE EVENTS SET FORTH IN SECTION 4043(B) OF
----------------
ERISA, OTHER THAN THOSE EVENTS AS TO WHICH THE THIRTY DAY NOTICE PERIOD IS
WAIVED UNDER SUBSECTIONS .13, .14, .16, .18, .19 OR .20 OF PBGC REG. (S)
2615.
"REQUIRED C$ LENDERS": AT ANY DATE, C$ LENDERS THE C$ COMMITMENT
-------------------
PERCENTAGES OF WHICH AGGREGATE AT LEAST 51% AT SUCH DATE.
28
"REQUIRED LENDERS": AT ANY DATE, LENDERS THE COMMITMENT PERCENTAGES
----------------
OF WHICH AGGREGATE AT LEAST 51% AT SUCH DATE.
"REQUIRED US$ LENDERS": AT ANY DATE, US$ LENDERS THE US COMMITMENT
--------------------
PERCENTAGES OF WHICH AGGREGATE AT LEAST 51% AT SUCH DATE.
"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": WITH RESPECT TO EITHER BORROWER, THE CHIEF
-------------------
EXECUTIVE OFFICER, THE PRESIDENT, THE CHIEF FINANCIAL OFFICER OR THE
TREASURER OF SUCH BORROWER.
"SECURITY DOCUMENTS": THE COLLECTIVE REFERENCE TO THE US SECURITY
------------------
DOCUMENTS AND THE CANADIAN SECURITY DOCUMENTS.
"SINGLE EMPLOYER PLAN": ANY PLAN WHICH IS COVERED BY TITLE IV OF
--------------------
ERISA, BUT WHICH IS NOT A MULTIEMPLOYER PLAN.
"S&P": STANDARD & POOR'S RATINGS SERVICES.
---
"STOCK RECAPITALIZATION": THE COLLECTIVE REFERENCE TO THE STOCK SPLIT
----------------------
AND RECAPITALIZATION EFFECTED BY PLC IMMEDIATELY PRIOR TO PLC'S
REDOMESTICATION INTO PENNSYLVANIA PURSUANT TO PLC'S MERGER WITH AND INTO
THE COMPANY, IN WHICH EACH OUTSTANDING SHARE OF CLASS A AND CLASS B COMMON
STOCK OF PLC WAS CONVERTED INTO SHARES OF VOTING COMMON STOCK OF THE
COMPANY.
"SUBSIDIARY": AS TO ANY PERSON, A CORPORATION, PARTNERSHIP 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 COMPANY.
"SUBCHAPTER S SHAREHOLDERS": THE COLLECTIVE REFERENCE TO THE
-------------------------
SHAREHOLDERS OF THE COMPANY DURING THE PERIOD IN WHICH THE COMPANY WAS
TAXED AS AN S CORPORATION AS DEFINED IN SECTION 1361 OF THE CODE, TO WHOM
THE COMPANY MAY MAKE TAX DISTRIBUTIONS.
29
"TAX DISTRIBUTIONS": WITH RESPECT TO ANY PERIOD IN WHICH THE COMPANY
-----------------
WAS TAXED AS AN S CORPORATION AS DEFINED IN SECTION 1361 OF THE CODE OR
OTHER PASS-THROUGH ENTITY FOR FEDERAL INCOME TAX PURPOSES, DISTRIBUTIONS TO
THE SUBCHAPTER S SHAREHOLDERS BASED ON ESTIMATES OF THE HIGHEST AMOUNT OF
FEDERAL, STATE AND LOCAL INCOME TAX PER SHARE OF CAPITAL STOCK OF THE
COMPANY OUTSTANDING PRIOR TO THE STOCK RECAPITALIZATION THAT ANY SUBCHAPTER
S SHAREHOLDER WOULD BE REQUIRED TO PAY AS A RESULT OF THE COMPANY'S BEING
TREATED AS A PASS-THROUGH ENTITY FOR INCOME TAX PURPOSES OR PURSUANT TO A
TAX INDEMNITY AGREEMENT.
"TAX INDEMNITY AGREEMENT": COLLECTIVELY, (A) THE TAX INDEMNIFICATION
-----------------------
AGREEMENT, DATED JUNE 24, 1997, ENTERED INTO BY THE COMPANY AND CERTAIN
SUBCHAPTER S SHAREHOLDERS WITH RESPECT TO THE INDEMNITY BY THE COMPANY FOR
TAXES OWING BY SUCH SHAREHOLDERS AS A RESULT OF THE COMPANY'S OPERATIONS
DURING THE PERIOD IN WHICH THE COMPANY WAS TAXED AS AN S CORPORATION AND
(B) THE AGREEMENT WITH ONE OF THE SUBCHAPTER S SHAREHOLDERS RELATING TO
SUCH MATTERS THAT IS DESCRIBED IN THE LETTER FROM THE COMPANY TO THE US
ADMINISTRATIVE AGENT DATED AUGUST 12, 1997.
"TAX REFUND": WITH RESPECT TO EITHER BORROWER, ANY CASH PAYMENT
----------
RECEIVED BY SUCH BORROWER AS A REBATE OR REFUND OF ANY FEDERAL, STATE,
PROVINCIAL OR LOCAL INCOME TAXES PAID BY SUCH BORROWER OR OF ANY TAXES WITH
RESPECT TO THE ASSETS OR PROPERTIES OF SUCH BORROWER.
"TAX SHARING AGREEMENTS": COLLECTIVELY, ALL TAX SHARING, TAX
----------------------
ALLOCATION AND OTHER SIMILAR AGREEMENTS ENTERED INTO BY THE COMPANY OR ANY
OF ITS SUBSIDIARIES.
"TERMINATION DATE": JUNE 30, 2004.
----------------
"TEXAS AVENUE PROPERTY": THAT CERTAIN REAL PROPERTY LEASED BY THE
---------------------
COMPANY PURSUANT TO A GROUND LEASE, DATED AS OF AUGUST 1, 1922, BETWEEN THE
COMPANY AND S. XXXXXXX XXXXX, AS TRUSTEE, LOCATED AT 0000 XXXXX XXXXXX,
XXXXXXX, XXXXX.
"TOTAL NET DEBT": AT ANY DATE OF DETERMINATION, WITHOUT DUPLICATION,
--------------
THE EXCESS, IF ANY, OF ALL INDEBTEDNESS OF THE COMPANY AND ITS SUBSIDIARIES
(EXCLUDING (A) ALL INDEBTEDNESS OF THE TYPE DESCRIBED IN CLAUSE (E) OF THE
DEFINITION THEREOF, EXCEPT TO THE EXTENT AMOUNTS ARE OWING WITH RESPECT
THERETO UPON THE TERMINATION OF THE RESPECTIVE AGREEMENT CONSTITUTING SUCH
INDEBTEDNESS) AND ALL GUARANTEE OBLIGATIONS OF THE COMPANY AND ITS
SUBSIDIARIES IN RESPECT OF INDEBTEDNESS OF THIRD PERSONS OVER (B) ANY CASH
BALANCES IN EXCESS OF US$500,000 THEN STANDING TO THE CREDIT OF THE COMPANY
AND ITS SUBSIDIARIES IN THEIR RESPECTIVE OPERATING ACCOUNTS AND THE
AGGREGATE AMOUNT OF CASH EQUIVALENTS THEN OWNED BY THE COMPANY AND ITS
SUBSIDIARIES.
30
"TRANSFEREE": AS DEFINED IN SUBSECTION 11.6(F).
----------
"TRAVELERS CORPORATION BUILDING ARCHIVES": THE REAL PROPERTY LOCATED
---------------------------------------
AT 0000 XXXXXXX XXXXXXXXX, XXXXXXX, XXXXXXXXXXX.
"TYPE": (A) AS TO ANY US$ LOAN, ITS NATURE AS A BASE RATE LOAN OR A
----
EURODOLLAR LOAN AND (B) AS TO ANY C$ LOAN, ITS NATURE AS A C$ PRIME LOAN OR
A BANKERS' ACCEPTANCE.
"US ADMINISTRATIVE AGENT": CANADIAN IMPERIAL BANK OF COMMERCE, NEW
-----------------------
YORK AGENCY, TOGETHER WITH ITS AFFILIATES, AS THE AGENT FOR THE US$ LENDERS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
"US ADMINISTRATIVE OFFICE": THE US ADMINISTRATIVE AGENT'S OFFICE
------------------------
LOCATED AT 000 XXXXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, OR SUCH OTHER
OFFICE IN THE UNITED STATES AS MAY BE DESIGNATED BY THE US ADMINISTRATIVE
AGENT BY WRITTEN NOTICE TO THE COMPANY AND THE LENDERS.
"US COMMITMENT": AS TO ANY US$ LENDER, ITS OBLIGATION TO MAKE US$
-------------
LOANS TO AND/OR ISSUE OR PARTICIPATE IN LETTERS OF CREDIT ISSUED ON BEHALF
OF THE COMPANY HEREUNDER IN AN AGGREGATE PRINCIPAL AND/OR FACE DOLLAR
EQUIVALENT AMOUNT AT ANY ONE TIME OUTSTANDING NOT TO EXCEED THE AMOUNT SET
FORTH OPPOSITE SUCH LENDER'S NAME ON SCHEDULE 1.1 AS SUCH LENDER'S "US
COMMITMENT", AS SUCH AMOUNT MAY BE CHANGED FROM TIME TO TIME AS PROVIDED
HEREIN. THE ORIGINAL AGGREGATE PRINCIPAL AMOUNT OF THE US COMMITMENTS IS
US$ 175,000,000.
"US COMMITMENT PERCENTAGE": AS TO ANY US$ LENDER AT ANY TIME, THE
------------------------
PERCENTAGE OF THE AGGREGATE US COMMITMENTS THEN CONSTITUTED BY SUCH
LENDER'S US COMMITMENT.
"US$ EQUIVALENT": ON ANY DATE OF DETERMINATION, WITH RESPECT TO ANY
--------------
AMOUNT IN BRITISH POUNDS OR C$, THE EQUIVALENT IN US DOLLARS OF SUCH
AMOUNT, DETERMINED BY THE US ADMINISTRATIVE AGENT USING THE BRITISH POUNDS
EXCHANGE RATE OR THE CANADIAN EXCHANGE RATE, RESPECTIVELY, THEN IN EFFECT.
"US$ EXCHANGE RATE": ON A PARTICULAR DATE, THE RATE AT WHICH US$ MAY
-----------------
BE EXCHANGED INTO C$, DETERMINED BY REFERENCE TO THE BANK OF CANADA NOON
RATE AS PUBLISHED ON THE REUTERS SCREEN PAGE BOFC ON THE IMMEDIATELY
PRECEDING BUSINESS DAY. IN THE EVENT THAT SUCH RATE DOES NOT APPEAR ON
SUCH REUTERS PAGE, THE "US$ EXCHANGE RATE" SHALL BE DETERMINED BY REFERENCE
-----------------
TO ANY OTHER MEANS (AS SELECTED BY THE RELEVANT ADMINISTRATIVE AGENT) BY
WHICH SUCH RATE IS QUOTED OR PUBLISHED FROM TIME TO TIME BY THE BANK OF
CANADA (IN EACH CASE AS IN EFFECT AT OR ABOUT 12:00 NOON, TORONTO TIME, ON
THE BUSINESS DAY IMMEDIATELY PRECEDING THE RELEVANT DATE OF DETERMINATION);
PROVIDED, THAT IF AT THE TIME OF ANY SUCH DETERMINATION, FOR ANY REASON, NO
--------
SUCH EXCHANGE RATE IS BEING QUOTED OR PUBLISHED, THE
31
RELEVANT ADMINISTRATIVE AGENT MAY USE ANY REASONABLE METHOD AS IT DEEMS
APPLICABLE TO DETERMINE SUCH RATE, AND SUCH DETERMINATION SHALL BE
CONCLUSIVE ABSENT MANIFEST ERROR.
"US$ LENDER": EACH LENDER DESIGNATED AS A "US$ LENDER" ON SCHEDULE
----------
1.1, AS SUCH SCHEDULE MAY BE MODIFIED FROM TIME TO TIME AS PROVIDED HEREIN.
"US$ LOANS": AS DEFINED IN SUBSECTION 2.1(A).
---------
"US DOLLARS" AND "US$": DOLLARS IN LAWFUL CURRENCY OF THE UNITED
---------- ---
STATES OF AMERICA.
"US EXTENSIONS OF CREDIT": AS TO ANY US$ LENDER AT ANY TIME, AN
-----------------------
AMOUNT EQUAL TO THE SUM OF (A) THE AGGREGATE PRINCIPAL AMOUNT OF ALL US$
LOANS HELD BY SUCH US$ LENDER THEN OUTSTANDING AND (B) SUCH US$ LENDER'S US
COMMITMENT PERCENTAGE OF THE L/C OBLIGATIONS THEN OUTSTANDING.
"US GLOBAL GUARANTEE AND SECURITY AGREEMENT": THE AMENDED AND
------------------------------------------
RESTATED US GLOBAL GUARANTEE AND SECURITY AGREEMENT EXECUTED AND DELIVERED
BY THE PARTIES THERETO SUBSTANTIALLY IN THE FORM OF EXHIBIT D TO THE
EXISTING CREDIT AGREEMENT, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR
OTHERWISE MODIFIED FROM TIME TO TIME.
"US LENDING OFFICE": AS TO EACH US$ LENDER, THE OFFICE IN THE UNITED
-----------------
STATES SPECIFIED AS THE "US LENDING OFFICE" OF SUCH LENDER ON SCHEDULE 1.1
OR IN AN ASSIGNMENT AND ACCEPTANCE, AS THE CASE MAY BE, OR SUCH OTHER
OFFICE IN THE UNITED STATES AS MAY BE DESIGNATED BY SUCH LENDER BY WRITTEN
NOTICE TO COMPANY AND THE US ADMINISTRATIVE AGENT.
"US MORTGAGE": A MORTGAGE EXECUTED AND DELIVERED PURSUANT TO THE
-----------
ORIGINAL CREDIT AGREEMENT OR TO BE EXECUTED AND DELIVERED PURSUANT HERETO
BY A DOMESTIC LOAN PARTY, WITH RESPECT TO A US MORTGAGED PROPERTY,
SUBSTANTIALLY IN THE FORM OF EXHIBIT E TO THE EXISTING CREDIT AGREEMENT, AS
THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME.
"US MORTGAGED PROPERTIES": ALL REAL PROPERTY LISTED AND IDENTIFIED AS
-----------------------
SUCH IN PART B OF SCHEDULE 5.8 AND DESIGNATED AS SUCH.
"US$ NOTES": AS DEFINED IN SUBSECTION 4.1(F).
---------
"US SECURITY DOCUMENTS": THE COLLECTIVE REFERENCE TO THE US GLOBAL
---------------------
GUARANTEE AND SECURITY AGREEMENT, THE US MORTGAGES, AND ALL OTHER SECURITY
DOCUMENTS HEREAFTER DELIVERED TO THE US ADMINISTRATIVE AGENT GRANTING A
LIEN ON ANY ASSET OR ASSETS OF THE COMPANY OR ANY DOMESTIC SUBSIDIARY TO
SECURE THE OBLIGATIONS AND LIABILITIES OF THE COMPANY HEREUNDER AND UNDER
ANY OF THE OTHER LOAN DOCUMENTS OR TO
32
SECURE ANY GUARANTEE BY ANY SUBSIDIARY OF ANY SUCH OBLIGATIONS AND
LIABILITIES.
"WHOLLY OWNED SUBSIDIARY": ANY SUBSIDIARY, 99% OR MORE OF THE
-----------------------
OUTSTANDING CAPITAL STOCK (OTHER THAN DIRECTORS' QUALIFYING SHARES OR
SHARES HELD PURSUANT TO SIMILAR REQUIREMENTS OF LAW IN RESPECT OF FOREIGN
SUBSIDIARIES) OF WHICH ARE OWNED, DIRECTLY OR INDIRECTLY, BY THE COMPANY.
1.2 OTHER DEFINITIONAL PROVISIONS. (A) UNLESS OTHERWISE SPECIFIED
-----------------------------
THEREIN, ALL TERMS DEFINED IN THIS AGREEMENT SHALL HAVE THE DEFINED MEANINGS
WHEN USED IN ANY NOTES OR ANY CERTIFICATE OR OTHER DOCUMENT MADE OR DELIVERED
PURSUANT HERETO.
(B) AS USED HEREIN AND IN ANY NOTES, AND ANY CERTIFICATE OR OTHER
DOCUMENT MADE OR DELIVERED PURSUANT HERETO, ACCOUNTING TERMS RELATING TO THE
COMPANY AND ITS SUBSIDIARIES NOT DEFINED IN SUBSECTION 1.1 AND ACCOUNTING TERMS
PARTLY DEFINED IN SUBSECTION 1.1, TO THE EXTENT NOT DEFINED, SHALL HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM UNDER GAAP.
(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 SECTION, SUBSECTION,
SCHEDULE AND EXHIBIT REFERENCES ARE TO THIS AGREEMENT UNLESS OTHERWISE
SPECIFIED.
(D) THE MEANINGS GIVEN TO TERMS DEFINED HEREIN SHALL BE EQUALLY
APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS OF SUCH TERMS.
SECTION 2. THE US COMMITMENTS
2.1 THE US COMMITMENTS. (A) SUBJECT TO THE TERMS AND CONDITIONS
------------------
HEREOF, EACH US$ LENDER SEVERALLY AGREES TO MAKE REVOLVING CREDIT LOANS ("US$
---
LOANS") TO THE COMPANY FROM TIME TO TIME DURING THE COMMITMENT PERIOD IN AN
-----
AGGREGATE PRINCIPAL AMOUNT AT ANY ONE TIME OUTSTANDING WHICH, WHEN ADDED TO SUCH
US$ LENDER'S US COMMITMENT PERCENTAGE OF THE L/C OBLIGATIONS THEN OUTSTANDING,
DOES NOT EXCEED THE AMOUNT OF SUCH LENDER'S US COMMITMENT. DURING THE
COMMITMENT PERIOD THE COMPANY MAY USE THE US COMMITMENTS BY (I) BORROWING,
PREPAYING OR REPAYING THE US$ LOANS OF SUCH US$ LENDER IN WHOLE OR IN PART, AND
REBORROWING, AND/OR (II) CAUSING THE ISSUING LENDER TO ISSUE LETTERS OF CREDIT
IN ACCORDANCE WITH SECTION 12, ALL IN ACCORDANCE WITH THE TERMS AND CONDITIONS
HEREOF.
(B) THE US$ LOANS MAY FROM TIME TO TIME BE (I) EURODOLLAR LOANS, (II)
BASE RATE LOANS OR (III) A COMBINATION THEREOF, AS DETERMINED BY THE COMPANY AND
NOTIFIED TO THE US ADMINISTRATIVE AGENT IN ACCORDANCE WITH SUBSECTIONS 2.2 AND
2.3, PROVIDED THAT NO US$ LOAN SHALL BE MADE AS A EURODOLLAR LOAN AFTER THE DAY
--------
THAT IS ONE MONTH PRIOR TO THE TERMINATION DATE.
33
2.2 PROCEDURE FOR US$ LOAN BORROWING. THE COMPANY MAY BORROW UNDER
--------------------------------
THE US COMMITMENTS DURING THE COMMITMENT PERIOD ON ANY BUSINESS DAY, PROVIDED
--------
THAT THE COMPANY SHALL GIVE THE US ADMINISTRATIVE AGENT IRREVOCABLE WRITTEN OR
TELEPHONIC NOTICE (IN THE CASE OF TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN
WRITING) (WHICH NOTICE MUST BE RECEIVED BY THE US ADMINISTRATIVE AGENT PRIOR TO
10:00 A.M., NEW YORK CITY TIME, (A) THREE BUSINESS DAYS PRIOR TO THE REQUESTED
BORROWING DATE, IF ALL OR ANY PART OF THE REQUESTED US$ LOANS ARE TO BE
INITIALLY EURODOLLAR LOANS, OR (B) ONE BUSINESS DAY PRIOR TO THE REQUESTED
BORROWING DATE, IN THE CASE OF BASE RATE LOANS), SPECIFYING (I) THE AMOUNT TO BE
BORROWED, (II) THE REQUESTED BORROWING DATE, (III) WHETHER THE BORROWING IS TO
BE OF EURODOLLAR LOANS, BASE RATE LOANS OR A COMBINATION THEREOF AND (IV) IF THE
BORROWING IS TO BE ENTIRELY OR PARTLY OF EURODOLLAR LOANS, THE AMOUNT OF SUCH
TYPE OF LOAN AND THE LENGTH OF THE INITIAL INTEREST PERIOD OR INTEREST PERIODS
THEREFOR. EACH BORROWING UNDER THE US COMMITMENTS SHALL BE IN AN AMOUNT EQUAL
TO (X) IN THE CASE OF BASE RATE LOANS, US$300,000 OR A WHOLE MULTIPLE OF
US$100,000 IN EXCESS THEREOF (OR, IF THE THEN AVAILABLE COMMITMENTS ARE LESS
THAN US$300,000, SUCH LESSER AMOUNT) AND (Y) IN THE CASE OF EURODOLLAR LOANS,
US$1,000,000 OR A WHOLE MULTIPLE OF US$100,000 IN EXCESS THEREOF (OR, IF THE
THEN AVAILABLE COMMITMENTS ARE LESS THAN US$1,000,000, SUCH LESSER AMOUNT).
UPON RECEIPT OF ANY SUCH NOTICE FROM THE COMPANY, THE US ADMINISTRATIVE AGENT
SHALL PROMPTLY NOTIFY EACH US$ LENDER THEREOF. EACH US$ LENDER WILL MAKE THE
AMOUNT OF ITS PRO RATA SHARE OF EACH BORROWING AVAILABLE TO THE US
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE COMPANY AT THE US ADMINISTRATIVE
OFFICE PRIOR TO 11:00 A.M., NEW YORK CITY TIME, ON THE BORROWING DATE REQUESTED
BY THE COMPANY IN FUNDS IMMEDIATELY AVAILABLE TO THE US ADMINISTRATIVE AGENT.
SUCH BORROWING WILL THEN BE MADE AVAILABLE TO THE COMPANY BY THE US
ADMINISTRATIVE AGENT CREDITING THE ACCOUNT OF THE COMPANY ON THE BOOKS OF SUCH
OFFICE WITH THE AGGREGATE OF THE AMOUNTS MADE AVAILABLE TO THE US ADMINISTRATIVE
AGENT BY THE US$ LENDERS AND IN LIKE FUNDS AS RECEIVED BY THE US ADMINISTRATIVE
AGENT.
2.3 CONVERSION AND CONTINUATION OPTIONS. (A) THE COMPANY MAY ELECT
-----------------------------------
FROM TIME TO TIME TO CONVERT EURODOLLAR LOANS TO BASE RATE LOANS BY GIVING THE
US ADMINISTRATIVE AGENT AT LEAST ONE BUSINESS DAY'S PRIOR IRREVOCABLE WRITTEN OR
TELEPHONIC NOTICE (IN THE CASE OF TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN
WRITING) OF SUCH ELECTION, PROVIDED THAT IF ANY SUCH CONVERSION OF EURODOLLAR
--------
LOANS OCCURS ON A DAY OTHER THAN THE LAST DAY OF AN INTEREST PERIOD WITH RESPECT
THERETO THE COMPANY SHALL PAY ANY BREAKAGE COSTS IN CONNECTION WITH SUCH
CONVERSION. THE COMPANY MAY ELECT FROM TIME TO TIME TO CONVERT BASE RATE LOANS
TO EURODOLLAR LOANS BY GIVING THE US ADMINISTRATIVE AGENT AT LEAST THREE
BUSINESS DAYS' PRIOR IRREVOCABLE WRITTEN OR TELEPHONIC NOTICE (IN THE CASE OF
TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN WRITING) OF SUCH ELECTION. ANY
SUCH NOTICE OF CONVERSION TO EURODOLLAR LOANS SHALL SPECIFY THE LENGTH OF THE
INITIAL INTEREST PERIOD OR INTEREST PERIODS THEREFOR. UPON RECEIPT OF ANY SUCH
NOTICE THE US ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH US$ LENDER
THEREOF. ALL OR ANY PART OF OUTSTANDING EURODOLLAR LOANS AND BASE RATE LOANS
MAY BE CONVERTED
34
AS PROVIDED HEREIN, PROVIDED THAT (I) NO BASE RATE LOAN MAY BE CONVERTED INTO A
--------
EURODOLLAR LOAN WHEN ANY EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND THE
US ADMINISTRATIVE AGENT HAS OR THE REQUIRED US$ LENDERS HAVE DETERMINED THAT
SUCH A CONVERSION IS NOT APPROPRIATE AND (II) NO BASE RATE LOAN MAY BE CONVERTED
INTO A EURODOLLAR LOAN AFTER THE DATE THAT IS ONE MONTH PRIOR TO THE TERMINATION
DATE.
(B) ANY EURODOLLAR LOANS MAY BE CONTINUED AS SUCH UPON THE EXPIRATION
OF THE THEN CURRENT INTEREST PERIOD WITH RESPECT THERETO BY THE COMPANY GIVING,
AT LEAST THREE BUSINESS DAYS' PRIOR, IRREVOCABLE WRITTEN OR TELEPHONIC NOTICE
(IN THE CASE OF TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN WRITING) TO THE
US ADMINISTRATIVE AGENT, IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE
TERM "INTEREST PERIOD" SET FORTH IN SUBSECTION 1.1, OF THE LENGTH OF THE NEXT
INTEREST PERIOD TO BE APPLICABLE TO SUCH LOANS, PROVIDED THAT NO EURODOLLAR LOAN
--------
MAY BE CONTINUED AS SUCH (I) WHEN ANY EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING AND THE US ADMINISTRATIVE AGENT HAS OR THE REQUIRED US$ LENDERS HAVE
DETERMINED THAT SUCH A CONTINUATION IS NOT APPROPRIATE OR (II) AFTER THE DATE
THAT IS ONE MONTH PRIOR TO THE TERMINATION DATE IN ACCORDANCE WITH THE TERMS
DESCRIBED ABOVE AND PROVIDED, FURTHER, THAT IF THE COMPANY SHALL FAIL TO GIVE
-------- -------
SUCH NOTICE OR IF SUCH CONTINUATION IS NOT PERMITTED SUCH LOANS SHALL BE
AUTOMATICALLY CONVERTED TO BASE RATE LOANS ON THE LAST DAY OF SUCH THEN EXPIRING
INTEREST PERIOD. UPON RECEIPT OF ANY NOTICE GIVEN BY THE COMPANY PURSUANT TO
THIS SUBSECTION 2.3(B), THE US ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH
US$ LENDER THEREOF.
2.4 MINIMUM AMOUNTS AND MAXIMUM NUMBER OF EURODOLLAR TRANCHES.
---------------------------------------------------------
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ALL BORROWINGS,
PAYMENTS, PREPAYMENTS, CONVERSIONS AND CONTINUATIONS OF US$ LOANS HEREUNDER AND
ALL SELECTIONS OF INTEREST PERIODS HEREUNDER SHALL BE IN SUCH AMOUNTS AND BE
MADE PURSUANT TO SUCH ELECTIONS SO THAT, AFTER GIVING EFFECT THERETO, THE
AGGREGATE PRINCIPAL AMOUNT OF THE LOANS COMPRISING EACH EURODOLLAR TRANCHE SHALL
BE EQUAL TO US$1,000,000 OR A WHOLE MULTIPLE OF US$100,000 IN EXCESS THEREOF.
MORE THAN ONE BORROWING MAY OCCUR ON THE SAME DATE, BUT IN NO EVENT SHALL THERE
BE MORE THAN FIVE EURODOLLAR TRANCHES OUTSTANDING AT ANY TIME.
35
SECTION 3. THE CANADIAN COMMITMENTS
3.1 THE CANADIAN COMMITMENTS. SUBJECT TO THE TERMS AND CONDITIONS
------------------------
HEREOF, EACH C$ LENDER SEVERALLY AGREES TO MAKE REVOLVING CREDIT LOANS (WHICH
SHALL BE C$ PRIME LOANS) TO, AND TO ACCEPT AND, AT THE OPTION OF THE CANADIAN
BORROWER, PURCHASE BANKERS' ACCEPTANCES FROM, THE CANADIAN BORROWER FROM TIME TO
TIME DURING THE COMMITMENT PERIOD IN AN AGGREGATE PRINCIPAL AMOUNT AT ANY ONE
TIME OUTSTANDING NOT TO EXCEED SUCH LENDER'S CANADIAN COMMITMENT. DURING THE
COMMITMENT PERIOD, THE CANADIAN BORROWER MAY USE THE CANADIAN COMMITMENTS BY
BORROWING, PREPAYING OR REPAYING THE C$ PRIME LOANS OR BANKERS' ACCEPTANCES, IN
WHOLE OR IN PART, AND REBORROWING, ALL IN ACCORDANCE WITH THE TERMS AND
CONDITIONS HEREOF.
3.2 PROCEDURE FOR C$ LOAN BORROWING. THE CANADIAN BORROWER MAY
-------------------------------
BORROW C$ PRIME LOANS DURING THE COMMITMENT PERIOD ON ANY BUSINESS DAY, PROVIDED
--------
THAT THE CANADIAN BORROWER SHALL GIVE THE CANADIAN ADMINISTRATIVE AGENT
IRREVOCABLE WRITTEN OR TELEPHONIC NOTICE (IN THE CASE OF TELEPHONIC NOTICE, TO
BE PROMPTLY CONFIRMED IN WRITING) (WHICH NOTICE MUST BE RECEIVED BY THE CANADIAN
ADMINISTRATIVE AGENT PRIOR TO 10:00 A.M., TORONTO TIME, ONE BUSINESS DAY PRIOR
TO THE REQUESTED BORROWING DATE), SPECIFYING (A) THE AMOUNT TO BE BORROWED AND
(B) THE REQUESTED BORROWING DATE. EACH BORROWING OF C$ PRIME LOANS SHALL BE IN
AN AMOUNT EQUAL TO C$300,000 OR A WHOLE MULTIPLE OF C$100,000 IN EXCESS THEREOF.
UPON RECEIPT OF ANY SUCH IRREVOCABLE NOTICE FROM THE CANADIAN BORROWER, THE
CANADIAN ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH C$ LENDER THEREOF.
EACH C$ 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 CANADIAN
BORROWER AT THE CANADIAN ADMINISTRATIVE OFFICE PRIOR TO 11:00 A.M., TORONTO
TIME, ON THE BORROWING DATE REQUESTED BY THE CANADIAN BORROWER IN FUNDS
IMMEDIATELY AVAILABLE TO THE CANADIAN ADMINISTRATIVE AGENT. SUCH BORROWING WILL
THEN BE MADE AVAILABLE ON SUCH BORROWING DATE TO THE CANADIAN BORROWER BY THE
CANADIAN ADMINISTRATIVE AGENT CREDITING THE ACCOUNT OF THE CANADIAN BORROWER ON
THE BOOKS OF THE CANADIAN ADMINISTRATIVE OFFICE WITH THE AGGREGATE OF THE
AMOUNTS MADE AVAILABLE TO THE CANADIAN ADMINISTRATIVE AGENT BY THE C$ LENDERS
AND IN LIKE FUNDS AS RECEIVED BY THE CANADIAN ADMINISTRATIVE AGENT.
3.3 BANKERS' ACCEPTANCES. (A) THE CANADIAN BORROWER MAY ISSUE
--------------------
BANKERS' ACCEPTANCES DENOMINATED IN C$, FOR ACCEPTANCE AND, AT THE CANADIAN
BORROWER'S OPTION, PURCHASE BY THE C$ LENDERS, EACH IN ACCORDANCE WITH THE
PROVISIONS OF THIS SUBSECTION 3.3.
36
(B PROCEDURES.
----------
(1 NOTICE. THE CANADIAN BORROWER SHALL NOTIFY THE CANADIAN
------
ADMINISTRATIVE AGENT BY IRREVOCABLE WRITTEN OR TELEPHONIC NOTICE (IN THE
CASE OF TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN WRITING) BY 10:00
A.M., TORONTO TIME, ONE BUSINESS DAY PRIOR TO THE BORROWING DATE IN RESPECT
OF ANY BORROWING BY WAY OF BANKERS' ACCEPTANCES.
(2 MINIMUM BORROWING AMOUNT. EACH BORROWING BY WAY OF BANKERS'
------------------------
ACCEPTANCES SHALL BE IN A MINIMUM AGGREGATE FACE AMOUNT OF C$1,000,000 OR A
WHOLE MULTIPLE OF C$100,000 IN EXCESS THEREOF.
(3 FACE AMOUNTS. THE FACE AMOUNT OF EACH BANKERS' ACCEPTANCE SHALL
------------
BE C$100,000 OR ANY WHOLE MULTIPLE THEREOF.
(4 TERM. BANKERS' ACCEPTANCES SHALL BE ISSUED AND SHALL MATURE ON A
----
BUSINESS DAY. EACH BANKERS' ACCEPTANCE SHALL HAVE A TERM OF 30, 60, 90 OR
180 DAYS (OR SUCH SHORTER OR LONGER TERM AS SHALL BE AGREED TO BY ALL OF
THE C$ LENDERS), SHALL MATURE ON OR BEFORE THE TERMINATION DATE AND SHALL
BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO EACH C$ LENDER.
(5 BANKERS' ACCEPTANCES IN BLANK. TO FACILITATE THE ACCEPTANCE OF
-----------------------------
BANKERS' ACCEPTANCES UNDER THIS AGREEMENT, THE CANADIAN BORROWER SHALL,
FROM TIME TO TIME AS REQUIRED, PROVIDE TO THE CANADIAN ADMINISTRATIVE AGENT
DRAFTS DULY EXECUTED AND ENDORSED IN BLANK BY THE CANADIAN BORROWER IN
QUANTITIES SUFFICIENT FOR EACH C$ LENDER TO FULFILL ITS OBLIGATIONS
HEREUNDER. EACH C$ LENDER IS HEREBY AUTHORIZED TO ACCEPT SUCH DRAFTS
ENDORSED IN BLANK IN SUCH FACE AMOUNTS AS MAY BE DETERMINED BY SUCH C$
LENDER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, PROVIDED THAT THE
--------
AGGREGATE AMOUNT THEREOF IS LESS THAN OR EQUAL TO THE AGGREGATE AMOUNT OF
BANKERS' ACCEPTANCES REQUIRED TO BE ACCEPTED BY SUCH C$ LENDER. NO C$
LENDER SHALL BE RESPONSIBLE OR LIABLE FOR ITS FAILURE TO ACCEPT A BANKERS'
ACCEPTANCE IF THE CAUSE OF SUCH FAILURE IS, IN WHOLE OR IN PART, DUE TO THE
FAILURE OF THE CANADIAN BORROWER TO PROVIDE DULY EXECUTED AND ENDORSED
DRAFTS TO THE CANADIAN ADMINISTRATIVE AGENT ON A TIMELY BASIS, NOR SHALL
ANY C$ LENDER BE LIABLE FOR ANY DAMAGE, LOSS OR OTHER CLAIM ARISING BY
REASON OF ANY LOSS OR IMPROPER USE OF ANY SUCH INSTRUMENT EXCEPT LOSS OR
IMPROPER USE ARISING BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH C$ LENDER, ITS OFFICERS, EMPLOYEES, AGENTS OR
REPRESENTATIVES. THE CANADIAN ADMINISTRATIVE AGENT AND EACH C$ LENDER
SHALL EXERCISE SUCH CARE IN THE CUSTODY AND SAFEKEEPING OF DRAFTS AS IT
WOULD EXERCISE IN THE CUSTODY AND SAFEKEEPING OF SIMILAR PROPERTY OWNED BY
IT. EACH C$ LENDER WILL, UPON THE REQUEST OF THE CANADIAN BORROWER,
PROMPTLY ADVISE THE CANADIAN BORROWER OF THE NUMBER AND DESIGNATION, IF
ANY, OF DRAFTS THEN HELD BY IT FOR THE CANADIAN BORROWER. EACH C$ LENDER
SHALL MAINTAIN A RECORD WITH RESPECT TO DRAFTS AND BANKERS' ACCEPTANCES (I)
RECEIVED BY IT FROM THE CANADIAN ADMINISTRATIVE AGENT IN BLANK HEREUNDER,
(II) VOIDED BY IT FOR
37
ANY REASON, (III) ACCEPTED BY IT HEREUNDER, (IV) PURCHASED BY IT HEREUNDER
AND (V) CANCELED AT THEIR RESPECTIVE MATURITIES. EACH C$ 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 C$ LENDER.
(6 EXECUTION OF BANKERS' ACCEPTANCES. DRAFTS OF THE CANADIAN
---------------------------------
BORROWER TO BE ACCEPTED AS BANKERS' ACCEPTANCES HEREUNDER SHALL BE DULY
EXECUTED ON BEHALF OF THE CANADIAN BORROWER. NOTWITHSTANDING THAT ANY
PERSON WHOSE SIGNATURE APPEARS ON ANY BANKERS' ACCEPTANCE AS A SIGNATORY
FOR THE CANADIAN BORROWER MAY NO LONGER BE AN AUTHORIZED SIGNATORY FOR THE
CANADIAN BORROWER AT THE DATE OF ISSUANCE OF A BANKERS' ACCEPTANCE, SUCH
SIGNATURE SHALL NEVERTHELESS BE 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 CANADIAN
BORROWER.
(7 ISSUANCE OF BANKERS' ACCEPTANCES. PROMPTLY FOLLOWING RECEIPT OF
--------------------------------
A NOTICE OF BORROWING BY WAY OF BANKERS' ACCEPTANCES, THE CANADIAN
ADMINISTRATIVE AGENT SHALL SO ADVISE THE C$ LENDERS AND SHALL ADVISE EACH
C$ LENDER OF THE FACE AMOUNT OF EACH DRAFT TO BE ACCEPTED BY IT AND THE
TERM THEREOF. THE AGGREGATE FACE AMOUNT OF DRAFTS TO BE ACCEPTED BY A C$
LENDER SHALL BE DETERMINED BY THE CANADIAN ADMINISTRATIVE AGENT ON A PRO
RATA BASIS BY REFERENCE TO THE RESPECTIVE CANADIAN COMMITMENTS OF THE C$
LENDERS, EXCEPT THAT, IF THE FACE AMOUNT OF A DRAFT WHICH WOULD OTHERWISE
BE ACCEPTED BY A C$ LENDER WOULD NOT BE C$100,000 OR A WHOLE MULTIPLE
THEREOF, SUCH FACE AMOUNT SHALL BE INCREASED OR REDUCED BY THE CANADIAN
ADMINISTRATIVE AGENT IN ITS SOLE AND UNFETTERED DISCRETION TO THE NEAREST
WHOLE MULTIPLE OF C$100,000.
(8 ACCEPTANCE OF BANKERS' ACCEPTANCES. EACH DRAFT TO BE ACCEPTED BY
----------------------------------
A C$ LENDER SHALL BE ACCEPTED AT SUCH C$ LENDER'S CANADIAN LENDING OFFICE.
(9 PURCHASE OF BANKERS' ACCEPTANCES. EACH C$ LENDER SHALL BE
--------------------------------
REQUIRED TO PURCHASE (SUBJECT TO THE COMMERCIAL AVAILABILITY OF A RESALE
MARKET IN THE CASE OF BANKERS' ACCEPTANCES WITH A TERM OF APPROXIMATELY 30,
60, 90 OR 180 DAYS, AS THE CASE MAY BE) FROM THE CANADIAN BORROWER ON SUCH
BORROWING DATE, AT THE APPLICABLE BA DISCOUNT RATE, THE BANKERS'
ACCEPTANCES ACCEPTED BY IT ON SUCH BORROWING DATE AND TO PROVIDE TO THE
CANADIAN ADMINISTRATIVE AGENT THE BA DISCOUNT PROCEEDS THEREOF NOT LATER
THAN 12:00 NOON, TORONTO TIME, ON SUCH BORROWING DATE FOR THE ACCOUNT OF
THE CANADIAN BORROWER. THE ACCEPTANCE FEE PAYABLE BY THE CANADIAN BORROWER
TO SUCH C$ LENDER UNDER SUBSECTION 3.3(E) IN RESPECT OF EACH BANKERS'
ACCEPTANCE ACCEPTED AND PURCHASED BY SUCH C$ LENDER FROM THE CANADIAN
BORROWER SHALL BE SET OFF AGAINST THE BA DISCOUNT PROCEEDS PAYABLE BY SUCH
C$ LENDER UNDER THIS
38
SUBSECTION 3.3(B)(9). NOT LATER THAN 2:00 P.M., TORONTO TIME, ON SUCH
BORROWING DATE, THE CANADIAN ADMINISTRATIVE AGENT SHALL MAKE SUCH BA
DISCOUNT PROCEEDS AVAILABLE TO THE CANADIAN BORROWER BY CREDITING THE
ACCOUNT OF THE CANADIAN BORROWER ON THE BOOKS OF THE CANADIAN
ADMINISTRATIVE OFFICE WITH THE AGGREGATE OF THE AMOUNTS MADE AVAILABLE TO
THE CANADIAN ADMINISTRATIVE AGENT BY THE C$ LENDERS AND IN LIKE FUNDS AS
RECEIVED BY THE CANADIAN ADMINISTRATIVE AGENT.
(10 SALE OF BANKERS' ACCEPTANCES. EACH C$ 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.
(11 WAIVER OF PRESENTMENT AND OTHER CONDITIONS. TO THE EXTENT
------------------------------------------
PERMITTED BY APPLICABLE LAW, THE CANADIAN BORROWER WAIVES PRESENTMENT FOR
PAYMENT AND ANY OTHER DEFENSE TO PAYMENT OF ANY AMOUNTS DUE TO A C$ LENDER
IN RESPECT OF A 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 C$ LENDER IN ITS OWN RIGHT,
AND THE CANADIAN BORROWER AGREES NOT TO CLAIM ANY DAYS OF GRACE IF SUCH C$
LENDER AS HOLDER SUES THE CANADIAN BORROWER ON THE BANKERS' ACCEPTANCES FOR
PAYMENT OF THE AMOUNT PAYABLE BY THE CANADIAN BORROWER THEREUNDER.
(C THE CANADIAN BORROWER SHALL REIMBURSE A C$ LENDER FOR, AND THERE
SHALL BECOME DUE AND PAYABLE AT 10:00 A.M., TORONTO TIME, ON THE CONTRACT
MATURITY DATE FOR EACH BANKERS' ACCEPTANCE, AN AMOUNT IN CANADIAN DOLLARS IN
SAME DAY FUNDS EQUAL TO THE FACE AMOUNT OF SUCH BANKERS' ACCEPTANCE. THE
CANADIAN BORROWER SHALL MAKE EACH SUCH REIMBURSEMENT PAYMENT (I) BY CAUSING ANY
PROCEEDS OF A REFUNDING BANKERS' ACCEPTANCE ISSUED IN ACCORDANCE WITH SUBSECTION
3.3(D) OR CONVERSION OF SUCH BANKERS' ACCEPTANCE IN ACCORDANCE WITH SUBSECTION
3.4 TO BE APPLIED IN REDUCTION OF SUCH REIMBURSEMENT PAYMENT; AND (II) BY
DEPOSITING THE AMOUNT OF SUCH REIMBURSEMENT PAYMENT (OR ANY PORTION THEREOF
REMAINING UNPAID AFTER APPLICATION OF ANY PROCEEDS REFERRED TO IN CLAUSE (I))
WITH THE CANADIAN ADMINISTRATIVE OFFICE IN ACCORDANCE WITH SUBSECTION 4.8. THE
CANADIAN BORROWER'S PAYMENT IN ACCORDANCE WITH THIS SECTION SHALL SATISFY ITS
OBLIGATIONS UNDER ANY BANKERS' ACCEPTANCE TO WHICH IT RELATES, AND THE C$ LENDER
WHICH HAS ACCEPTED SUCH BANKERS' ACCEPTANCE SHALL THEREAFTER BE SOLELY
RESPONSIBLE FOR THE PAYMENT OF SUCH BANKERS' ACCEPTANCE.
(D THE CANADIAN BORROWER SHALL GIVE IRREVOCABLE WRITTEN OR
TELEPHONIC NOTICE (IN THE CASE OF TELEPHONIC NOTICE, TO BE PROMPTLY CONFIRMED IN
WRITING) (OR SUCH OTHER METHOD OF NOTIFICATION AS MAY BE AGREED UPON BETWEEN THE
CANADIAN ADMINISTRATIVE AGENT AND THE CANADIAN BORROWER) TO THE CANADIAN
ADMINISTRATIVE AGENT AT OR BEFORE 10:00 A.M., TORONTO TIME, ONE BUSINESS DAY
PRIOR TO THE MATURITY DATE OF EACH BANKERS' ACCEPTANCE OF THE CANADIAN
BORROWER'S INTENTION TO ISSUE A BANKERS' ACCEPTANCE ON SUCH MATURITY DATE (A
"REFUNDING BANKERS' ACCEPTANCE") TO PROVIDE FOR THE
------------------------------
39
PAYMENT OF SUCH MATURING BANKERS' ACCEPTANCE (IT BEING UNDERSTOOD THAT PAYMENTS
BY THE CANADIAN BORROWER AND FUNDINGS BY THE C$ LENDERS IN RESPECT OF EACH
MATURING BANKERS' ACCEPTANCE AND THE RELATED REFUNDING BANKERS' ACCEPTANCE SHALL
BE MADE ON A NET BASIS REFLECTING THE DIFFERENCE BETWEEN THE FACE AMOUNT OF SUCH
MATURING BANKERS' ACCEPTANCE AND THE BA DISCOUNT PROCEEDS (NET OF THE APPLICABLE
ACCEPTANCE FEE) OF SUCH REFUNDING BANKERS' ACCEPTANCE). IF THE CANADIAN BORROWER
FAILS TO GIVE SUCH NOTICE OR DOES NOT HAVE SUFFICIENT FUNDS ON DEPOSIT IN THE
AMOUNT OF REIMBURSEMENT PAYMENT IN ACCORDANCE WITH SUBSECTION 3.3(C)(II), THE
CANADIAN BORROWER SHALL BE DEEMED TO HAVE REQUESTED THAT SUCH MATURING BANKERS'
ACCEPTANCES BE REPAID WITH THE PROCEEDS OF C$ PRIME LOANS (WITHOUT ANY
REQUIREMENT TO GIVE NOTICE WITH RESPECT THERETO), COMMENCING ON THE MATURITY
DATE OF SUCH MATURING BANKERS' ACCEPTANCES.
(E AN ACCEPTANCE FEE SHALL BE PAYABLE BY THE CANADIAN BORROWER TO
EACH C$ LENDER IN ADVANCE (IN THE MANNER SPECIFIED IN SUBSECTION 3.3(B)(9)) UPON
THE ISSUANCE OF A BANKERS' ACCEPTANCE TO BE ACCEPTED BY SUCH C$ LENDER
CALCULATED AT THE RATE PER ANNUM EQUAL TO THE APPLICABLE MARGIN, 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 TERM OF SUCH BANKERS'
ACCEPTANCE.
(F UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT WHICH IS CONTINUING,
AND IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES OF ANY C$ LENDER AND THE
CANADIAN ADMINISTRATIVE AGENT HEREUNDER, ANY C$ LENDER OR THE CANADIAN
ADMINISTRATIVE AGENT (OR SUCH ALTERNATE ARRANGEMENT AS MAY BE AGREED UPON BY THE
CANADIAN BORROWER AND SUCH C$ LENDER OR THE CANADIAN ADMINISTRATIVE AGENT, AS
APPLICABLE) SHALL BE ENTITLED TO DEPOSIT AND RETAIN IN AN ACCOUNT TO BE
MAINTAINED BY THE CANADIAN ADMINISTRATIVE AGENT (BEARING INTEREST AT THE
CANADIAN ADMINISTRATIVE AGENT'S RATES AS MAY BE APPLICABLE IN RESPECT OF OTHER
DEPOSITS OF SIMILAR AMOUNTS FOR SIMILAR TERMS), FOR THE RATABLE BENEFIT OF THE
C$ LENDERS, AMOUNTS WHICH ARE RECEIVED BY SUCH C$ LENDER OR THE CANADIAN
ADMINISTRATIVE AGENT FROM THE CANADIAN BORROWER HEREUNDER OR AS PROCEEDS OF THE
EXERCISE OF ANY RIGHTS OR REMEDIES OF ANY C$ LENDER OR THE CANADIAN
ADMINISTRATIVE AGENT HEREUNDER AGAINST THE CANADIAN BORROWER, TO THE EXTENT SUCH
AMOUNTS MAY BE REQUIRED TO SATISFY ANY CONTINGENT OR UNMATURED OBLIGATIONS OR
LIABILITIES OF THE CANADIAN BORROWER TO THE C$ LENDERS OR THE CANADIAN
ADMINISTRATIVE AGENT, OR ANY OF THEM HEREUNDER.
3.4 CONVERSION OPTION. SUBJECT TO THE PROVISIONS OF THIS AGREEMENT,
-----------------
THE CANADIAN BORROWER MAY, PRIOR TO THE TERMINATION DATE, EFFECTIVE ON ANY
BUSINESS DAY, CONVERT, IN WHOLE OR IN PART, C$ PRIME LOANS INTO BANKERS'
ACCEPTANCES OR VICE VERSA UPON GIVING TO THE CANADIAN ADMINISTRATIVE AGENT PRIOR
IRREVOCABLE WRITTEN OR TELEPHONIC NOTICE (IN THE CASE OF TELEPHONIC NOTICE, TO
BE PROMPTLY CONFIRMED IN WRITING) WITHIN THE NOTICE PERIOD AND IN THE FORM WHICH
WOULD BE REQUIRED TO BE GIVEN TO THE CANADIAN ADMINISTRATIVE AGENT IN RESPECT OF
THE CATEGORY OF C$ LOAN INTO WHICH THE OUTSTANDING C$
40
LOAN IS TO BE CONVERTED IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 3.2 OR
3.3, AS APPLICABLE, PROVIDED THAT:
--------
(A) NO C$ PRIME LOAN MAY BE CONVERTED INTO A BANKERS' ACCEPTANCE WHEN
ANY EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING;
(B) EACH CONVERSION TO BANKERS' ACCEPTANCES SHALL BE FOR AN AGGREGATE
AMOUNT OF C$1,000,000 (AND WHOLE MULTIPLES OF C$100,000 IN EXCESS
THEREOF), AND EACH CONVERSION TO C$ PRIME LOANS SHALL BE IN A MINIMUM
AGGREGATE AMOUNT OF C$100,000; AND
(C) BANKERS' ACCEPTANCES MAY BE CONVERTED ONLY ON THE MATURITY DATE OF
SUCH BANKERS' ACCEPTANCES AND, PROVIDED THAT, IF LESS THAN ALL BANKERS'
--------
ACCEPTANCES ARE CONVERTED, THEN AFTER SUCH CONVERSION NOT LESS THAN
C$1,000,000 (AND WHOLE MULTIPLES OF C$100,000 IN EXCESS THEREOF) SHALL
REMAIN AS BANKERS' ACCEPTANCES.
3.5 CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE. (A) IF
-----------------------------------------------------
THE CANADIAN ADMINISTRATIVE AGENT DETERMINES IN GOOD FAITH, WHICH DETERMINATION
SHALL BE FINAL, CONCLUSIVE AND BINDING UPON THE CANADIAN BORROWER, AND NOTIFIES
THE CANADIAN BORROWER THAT, BY REASON OF CIRCUMSTANCES AFFECTING THE MONEY
MARKET, THERE IS NO MARKET FOR BANKERS' ACCEPTANCES, THEN:
(I) THE RIGHT OF THE CANADIAN BORROWER TO REQUEST A BORROWING BY WAY
OF BANKERS' ACCEPTANCE SHALL BE SUSPENDED UNTIL THE CANADIAN ADMINISTRATIVE
AGENT DETERMINES THAT THE CIRCUMSTANCES CAUSING SUCH SUSPENSION NO LONGER
EXIST AND THE CANADIAN ADMINISTRATIVE AGENT SO NOTIFIES THE CANADIAN
BORROWER; AND
(II) ANY NOTICE RELATING TO A BORROWING BY WAY OF BANKERS' ACCEPTANCE
WHICH IS OUTSTANDING AT SUCH TIME SHALL BE DEEMED TO BE A NOTICE REQUESTING
A BORROWING BY WAY OF C$ PRIME LOANS (ALL AS IF IT WERE A NOTICE GIVEN
PURSUANT TO SUBSECTION 3.2).
(B THE CANADIAN ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY THE
CANADIAN BORROWER AND THE C$ LENDERS OF THE SUSPENSION OF THE CANADIAN
BORROWER'S RIGHT TO REQUEST A BORROWING BY WAY OF BANKERS' ACCEPTANCE AND OF THE
TERMINATION OF SUCH SUSPENSION.
SECTION 4. GENERAL PROVISIONS
4.1 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (A) THE COMPANY HEREBY
------------------------------------
UNCONDITIONALLY PROMISES TO PAY TO THE US ADMINISTRATIVE AGENT FOR THE ACCOUNT
OF EACH US$ LENDER THE THEN UNPAID PRINCIPAL AMOUNT OF EACH US$ LOAN OF SUCH US$
LENDER ON THE TERMINATION DATE (OR SUCH EARLIER DATE ON WHICH THE US$ LOANS
BECOME DUE AND PAYABLE PURSUANT TO SECTION 9). THE COMPANY HEREBY FURTHER
AGREES TO PAY INTEREST ON THE UNPAID PRINCIPAL AMOUNT OF THE US$ LOANS FROM TIME
TO TIME OUTSTANDING FROM THE DATE HEREOF UNTIL
41
PAYMENT IN FULL THEREOF AT THE RATES PER ANNUM, AND ON THE DATES, SET FORTH IN
SUBSECTION 4.5.
(B) THE CANADIAN BORROWER HEREBY UNCONDITIONALLY PROMISES TO PAY TO
THE CANADIAN ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH C$ LENDER THE THEN
UNPAID PRINCIPAL AMOUNT OF EACH C$ LOAN OF SUCH C$ LENDER ON THE TERMINATION
DATE (OR SUCH EARLIER DATE ON WHICH THE C$ LOANS BECOME DUE AND PAYABLE PURSUANT
TO SECTION 9). THE CANADIAN BORROWER HEREBY FURTHER AGREES TO PAY INTEREST ON
THE UNPAID PRINCIPAL AMOUNT OF THE C$ LOANS 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 SUBSECTION 4.5.
(C) EACH LENDER SHALL MAINTAIN IN ACCORDANCE WITH ITS USUAL PRACTICE
AN ACCOUNT OR ACCOUNTS EVIDENCING INDEBTEDNESS OF THE RELEVANT BORROWER TO SUCH
LENDER RESULTING FROM EACH LOAN OF SUCH LENDER FROM TIME TO TIME, INCLUDING THE
AMOUNTS OF PRINCIPAL AND INTEREST PAYABLE AND PAID TO SUCH LENDER FROM TIME TO
TIME UNDER THIS AGREEMENT.
(D) EACH ADMINISTRATIVE AGENT SHALL MAINTAIN THE REGISTER PURSUANT TO
SUBSECTION 11.6(D), AND A SUBACCOUNT THEREIN FOR EACH RELEVANT LENDER, IN WHICH
SHALL BE RECORDED (I) THE AMOUNT OF EACH RELEVANT LOAN MADE HEREUNDER, WHETHER
SUCH LOAN IS, AS APPLICABLE, A US$ LOAN, A C$ PRIME LOAN OR A BANKERS'
ACCEPTANCE, THE TYPE OF EACH US$ LOAN MADE AND EACH INTEREST PERIOD APPLICABLE
TO ANY EURODOLLAR LOAN, (II) THE AMOUNT OF ANY PRINCIPAL OR INTEREST DUE AND
PAYABLE OR TO BECOME DUE AND PAYABLE FROM THE RELEVANT BORROWER TO EACH RELEVANT
LENDER HEREUNDER AND (III) BOTH THE AMOUNT OF ANY SUM RECEIVED BY SUCH
ADMINISTRATIVE AGENT HEREUNDER FROM THE RELEVANT BORROWER AND EACH RELEVANT
LENDER'S SHARE THEREOF.
(E) THE ENTRIES MADE IN THE REGISTERS AND THE ACCOUNTS OF EACH LENDER
MAINTAINED PURSUANT TO SUBSECTION 4.1(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 ANY LENDER OR EITHER ADMINISTRATIVE AGENT TO MAINTAIN SUCH
REGISTER OR ANY SUCH ACCOUNT, OR ANY ERROR THEREIN, SHALL NOT IN ANY MANNER
AFFECT THE OBLIGATION OF EACH BORROWER TO REPAY (WITH APPLICABLE INTEREST AND
ALL OTHER AMOUNTS OWING WITH RESPECT THERETO) THE LOANS MADE TO SUCH BORROWER BY
SUCH LENDER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
(F) THE COMPANY AGREES THAT, UPON THE REQUEST TO THE US ADMINISTRATIVE
AGENT BY ANY US$ LENDER, THE COMPANY WILL EXECUTE AND DELIVER TO SUCH LENDER A
PROMISSORY NOTE OF THE COMPANY EVIDENCING THE US$ LOANS OF SUCH LENDER,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A-1 WITH APPROPRIATE INSERTIONS AS TO DATE
AND PRINCIPAL AMOUNT (A "US$ NOTE"), AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR
--------
OTHERWISE MODIFIED FROM TIME TO TIME.
(G) THE CANADIAN BORROWER AGREES THAT, UPON THE REQUEST TO THE
CANADIAN ADMINISTRATIVE AGENT BY ANY C$ LENDER, THE CANADIAN BORROWER WILL
EXECUTE AND DELIVER TO SUCH LENDER A PROMISSORY NOTE
42
OF THE CANADIAN BORROWER EVIDENCING THE C$ PRIME LOANS OF SUCH LENDER,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A-2 WITH APPROPRIATE INSERTIONS AS TO DATE
AND PRINCIPAL AMOUNT (A "C$ NOTE"), AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR
-------
OTHERWISE MODIFIED FROM TIME TO TIME.
4.2 COMMITMENT FEE. (A) THE COMPANY AGREES TO PAY TO THE US
--------------
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH US$ LENDER A COMMITMENT FEE FOR THE
PERIOD FROM AND INCLUDING THE FIRST DAY OF THE COMMITMENT PERIOD TO THE
TERMINATION DATE, COMPUTED AT THE RATE OF 3/8THS OF 1% PER ANNUM ON THE AVERAGE
DAILY AMOUNT OF THE AVAILABLE US COMMITMENT OF SUCH US$ LENDER DURING THE PERIOD
FOR WHICH PAYMENT IS MADE, PAYABLE QUARTERLY IN ARREARS ON THE LAST DAY OF EACH
MARCH, JUNE, SEPTEMBER AND DECEMBER AND ON THE TERMINATION DATE OR SUCH EARLIER
DATE AS THE US COMMITMENTS SHALL TERMINATE AS PROVIDED HEREIN, COMMENCING ON THE
FIRST OF SUCH DATES TO OCCUR AFTER THE DATE HEREOF.
(B THE CANADIAN BORROWER AGREES TO PAY TO THE CANADIAN
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF EACH C$ LENDER A COMMITMENT FEE FOR THE
PERIOD FROM AND INCLUDING THE FIRST DAY OF THE COMMITMENT PERIOD TO THE
TERMINATION DATE, COMPUTED AT THE RATE OF 3/8THS OF 1% PER ANNUM ON THE AVERAGE
DAILY AMOUNT OF THE AVAILABLE CANADIAN COMMITMENT OF SUCH C$ LENDER DURING THE
PERIOD FOR WHICH PAYMENT IS MADE, PAYABLE QUARTERLY IN ARREARS ON THE LAST DAY
OF EACH MARCH, JUNE, SEPTEMBER AND DECEMBER AND ON THE TERMINATION DATE OR SUCH
EARLIER DATE AS THE CANADIAN COMMITMENTS SHALL TERMINATE AS PROVIDED HEREIN,
COMMENCING ON THE FIRST OF SUCH DATES TO OCCUR AFTER THE DATE HEREOF.
(C THE COMPANY AGREES TO PAY TO THE US ADMINISTRATIVE AGENT AND THE
CANADIAN BORROWER AGREES TO PAY TO THE CANADIAN ADMINISTRATIVE AGENT, FOR THEIR
OWN ACCOUNTS, THE FEES IN THE AMOUNTS AND ON THE DATES PREVIOUSLY AGREED TO IN
THE FEE LETTER DATED MARCH 28, 1997, AMONG THE BORROWERS, THE US ADMINISTRATIVE
AGENT AND THE CANADIAN ADMINISTRATIVE AGENT.
4.3 TERMINATION OR REDUCTION OF COMMITMENTS. (A) THE AGGREGATE
---------------------------------------
AMOUNT OF THE US COMMITMENTS SHALL BE AUTOMATICALLY REDUCED TO ZERO ON THE
TERMINATION DATE. THE AGGREGATE AMOUNT OF THE US COMMITMENTS SHALL ALSO REDUCE
ON THE LAST DAY OF MARCH, JUNE, SEPTEMBER AND DECEMBER OF EACH YEAR, COMMENCING
MARCH 31, 2001, EACH OF WHICH REDUCTIONS ON ANY SUCH DATE SHALL BE IN AN AMOUNT
EQUAL TO THE AMOUNT SET FORTH BELOW OPPOSITE SUCH DATE:
DATE AMOUNT
---- ------
MARCH 31, 2001 $ 6,562,500
JUNE 30, 2001 6,562,500
SEPTEMBER 30, 2001 6,562,500
DECEMBER 31, 2001 6,562,500
MARCH 31, 2002 8,750,000
JUNE 30, 2002 8,750,000
43
DATE AMOUNT
---- ------
SEPTEMBER 30, 2002 8,750,000
DECEMBER 31, 2002 8,750,000
MARCH 31, 2003 13,125,000
JUNE 30, 2003 13,125,000
SEPTEMBER 30, 2003 13,125,000
DECEMBER 31, 2003 13,125,000
MARCH 31, 2004 30,625,000
JUNE 30, 2004 30,625,000
(B THE AGGREGATE AMOUNT OF THE CANADIAN COMMITMENTS SHALL BE
AUTOMATICALLY REDUCED TO ZERO ON THE TERMINATION DATE. THE AGGREGATE AMOUNT OF
THE CANADIAN COMMITMENTS SHALL ALSO REDUCE ON THE LAST DAY OF MARCH, JUNE,
SEPTEMBER AND DECEMBER OF EACH YEAR, COMMENCING MARCH 31, 2001, EACH OF WHICH
REDUCTIONS ON ANY SUCH DATE SHALL BE IN AN AMOUNT EQUAL TO THE AMOUNT SET FORTH
BELOW OPPOSITE SUCH DATE:
DATE AMOUNT
---- ------
MARCH 31, 2001 C$1,312,500
JUNE 30, 2001 1,312,500
SEPTEMBER 30, 2001 1,312,500
DECEMBER 31, 2001 1,312,500
MARCH 31, 2002 1,750,000
JUNE 30, 2002 1,750,000
SEPTEMBER 30, 2002 1,750,000
DECEMBER 31, 2002 1,750,000
MARCH 31, 2003 2,625,000
JUNE 30, 2003 2,625,000
SEPTEMBER 30, 2003 2,625,000
DECEMBER 31, 2003 2,625,000
MARCH 31, 2004 8,625,000
JUNE 30, 2004 8,625,000
(C THE COMPANY SHALL HAVE THE RIGHT, UPON NOT LESS THAN TWO BUSINESS
DAYS' NOTICE TO THE APPLICABLE ADMINISTRATIVE AGENT, WITHOUT PREMIUM OR PENALTY,
TO TERMINATE THE COMMITMENTS OR, FROM TIME TO TIME, TO REDUCE THE AMOUNT OF THE
US COMMITMENTS (SO LONG AS, AFTER GIVING EFFECT THERETO AND TO ANY
CONTEMPORANEOUS PREPAYMENT OF THE LOANS OR REDUCTION OF L/C EXPOSURE, THE THEN
OUTSTANDING US EXTENSIONS OF CREDIT OF EACH US$ LENDER SHALL BE NO GREATER THAN
SUCH LENDER'S US COMMITMENT) OR REDUCE THE AMOUNT OF THE CANADIAN COMMITMENTS
(SO LONG AS, AFTER GIVING EFFECT THERETO AND TO ANY CONTEMPORANEOUS PREPAYMENT
OF THE C$ LOANS, THE THEN OUTSTANDING C$ LOANS OF EACH C$ LENDER SHALL BE NO
GREATER THAN SUCH LENDER'S CANADIAN COMMITMENT). UPON RECEIPT OF SUCH NOTICE
THE APPLICABLE ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY EACH RELEVANT LENDER
THEREOF. ANY SUCH REDUCTION SHALL BE IN AN AMOUNT OF AT LEAST
44
US$500,000 AND, IF GREATER, IN INTEGRAL MULTIPLES OF US$100,000 (IN THE CASE OF
THE US COMMITMENTS) OR C$500,000 AND, IF GREATER, IN INTEGRAL MULTIPLES OF
C$100,000 (IN THE CASE OF THE CANADIAN COMMITMENTS) AND SHALL REDUCE PERMANENTLY
THE AMOUNT OF THE AFFECTED COMMITMENTS THEN IN EFFECT. ANY TERMINATION OF THE
COMMITMENTS SHALL BE ACCOMPANIED BY PREPAYMENT IN FULL OF THE LOANS, TOGETHER
WITH ACCRUED INTEREST THEREON TO THE DATE OF SUCH PREPAYMENT, AND CANCELLATION
OF ALL LETTERS OF CREDIT.
4.4 OPTIONAL AND MANDATORY PREPAYMENTS. (A) EACH BORROWER MAY AT
----------------------------------
ANY TIME AND FROM TIME TO TIME PREPAY THE RELEVANT LOANS, IN WHOLE OR IN PART,
WITHOUT PREMIUM OR PENALTY, UPON AT LEAST THREE BUSINESS DAYS' IRREVOCABLE
NOTICE TO THE RELEVANT ADMINISTRATIVE AGENT (IN THE CASE OF EURODOLLAR LOANS),
OR ONE BUSINESS DAY'S IRREVOCABLE NOTICE TO THE RELEVANT ADMINISTRATIVE AGENT
(OTHERWISE), SPECIFYING THE DATE AND AMOUNT OF PREPAYMENT, AND THE TYPE OF LOAN
TO BE PREPAID, AND, IF OF A COMBINATION THEREOF, THE AMOUNT ALLOCABLE TO EACH.
UPON RECEIPT OF ANY SUCH NOTICE THE RELEVANT 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, IN THE CASE OF EURODOLLAR LOANS, ANY INTEREST ACCRUED THEREON,
AND IN THE CASE OF ALL LOANS, ANY AMOUNTS PAYABLE PURSUANT TO SUBSECTION 4.12.
PARTIAL PREPAYMENTS SHALL BE IN AN AGGREGATE PRINCIPAL AMOUNT OF US$1,000,000 OR
C$1,000,000, AS THE CASE MAY BE, OR A WHOLE MULTIPLE OF US$100,000 OR C$100,000,
AS THE CASE MAY BE, IN EXCESS THEREOF. NOTWITHSTANDING ANYTHING TO THE CONTRARY
ABOVE, C$ LOANS CONSISTING OF BANKERS' ACCEPTANCES MAY NOT BE PREPAID PURSUANT
TO THIS SUBSECTION.
(B WITHOUT LIMITING THE OBLIGATION OF THE COMPANY TO OBTAIN THE
CONSENT OF THE REQUIRED LENDERS PURSUANT TO SUBSECTION 8.2 TO ANY DISPOSITION
NOT OTHERWISE PERMITTED HEREUNDER, IN THE EVENT THAT THE NET PROCEEDS OF ANY
DISPOSITION BY EITHER BORROWER OR ANY OF ITS SUBSIDIARIES (THE "CURRENT
-------
DISPOSITION"), AND OF ALL PRIOR DISPOSITIONS OF THE BORROWERS AND THEIR
-----------
SUBSIDIARIES AS TO WHICH A PREPAYMENT HAS NOT YET BEEN MADE UNDER THIS
SUBSECTION 4.4(B), BUT EXCLUDING ANY REINVESTABLE PROCEEDS (AS DEFINED BELOW),
SHALL EXCEED US$2,500,000 THEN, NO LATER THAN FIVE BUSINESS DAYS AFTER THE
OCCURRENCE OF THE CURRENT DISPOSITION, THE RELEVANT BORROWER WILL DELIVER TO THE
US ADMINISTRATIVE AGENT A STATEMENT, CERTIFIED BY A RESPONSIBLE OFFICER OF SUCH
BORROWER, IN FORM AND DETAIL REASONABLY SATISFACTORY TO THE US ADMINISTRATIVE
AGENT, OF THE AMOUNT OF THE NET PROCEEDS OF THE CURRENT DISPOSITION AND OF ALL
SUCH PRIOR DISPOSITIONS AND SHALL PREPAY ITS LOANS AND/OR REDUCE L/C EXPOSURE,
AND ITS COMMITMENTS SHALL BE SUBJECT TO AUTOMATIC REDUCTION (AND, IF REQUIRED,
SUCH BORROWER SHALL PROVIDE CASH COLLATERAL IN CONNECTION WITH SUCH REDUCTION,
WHICH CASH COLLATERAL SHALL BE INVESTED IN CASH EQUIVALENTS), IN AN AGGREGATE
AMOUNT EQUAL TO THE EXCESS OF 100% OF THE NET PROCEEDS OF THE CURRENT
DISPOSITION AND SUCH PRIOR DISPOSITIONS (BUT EXCLUDING THE AMOUNT OF ANY
REINVESTABLE PROCEEDS) OVER US$2,500,000 (OR THE C$ EQUIVALENT THEREOF, AS THE
CASE MAY BE), SUCH PREPAYMENT, REDUCTION IN L/C EXPOSURE AND REDUCTION TO BE
EFFECTED IN EACH CASE IN THE MANNER AND ORDER
45
SPECIFIED IN SUBSECTION 4.4(I); PROVIDED THAT, AT THE OPTION OF SUCH BORROWER
--------
AND SO LONG AS NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD BE CAUSED THEREBY AND SUBJECT TO THE CONSENT OF THE REQUIRED
LENDERS IN CONNECTION WITH ANY DISPOSITION NOT OTHERWISE PERMITTED HEREUNDER,
SUCH NET PROCEEDS SHALL NOT BE REQUIRED TO BE APPLIED ON SUCH DATE SO LONG AS
SUCH BORROWER DELIVERS A CERTIFICATE OF A RESPONSIBLE OFFICER TO THE US
ADMINISTRATIVE AGENT PRIOR TO SUCH DATE STATING THAT SUCH BORROWER INTENDS TO
USE ALL OR A PORTION OF THE NET PROCEEDS OF ANY DISPOSITION (THE "REINVESTABLE
------------
PROCEEDS" OF SUCH DISPOSITION) TO PURCHASE ASSETS TO BE USED BY SUCH BORROWER OR
--------
SUCH SUBSIDIARY IN ITS BUSINESS (THE "QUALIFIED ASSETS") WITHIN 270 DAYS AFTER
----------------
RECEIPT OF SUCH PROCEEDS AND SETTING FORTH AN ESTIMATE OF THE REINVESTABLE
PROCEEDS TO BE SO EXPENDED. AFTER SUCH ELECTION TO USE THE REINVESTABLE
PROCEEDS, ON THE DATE WHICH IS 270 DAYS AFTER THE RELEVANT DISPOSITION, SUCH
BORROWER SHALL (I) DELIVER A CERTIFICATE OF A RESPONSIBLE OFFICER TO THE US
ADMINISTRATIVE AGENT CERTIFYING AS TO THE AMOUNT AND USE OF SUCH REINVESTABLE
PROCEEDS ACTUALLY USED TO PURCHASE QUALIFIED ASSETS AND (II) DELIVER TO THE US
ADMINISTRATIVE AGENT, FOR APPLICATION IN ACCORDANCE WITH THIS SUBSECTION 4.4(B),
AN AMOUNT EQUAL TO THE REMAINING UNUSED REINVESTABLE PROCEEDS.
(C ON THE DATE OF THE RECEIPT THEREOF BY EITHER BORROWER OR ANY OF
ITS SUBSIDIARIES, SUCH BORROWER SHALL PREPAY ITS LOANS AND/OR REDUCE L/C
EXPOSURE (BUT THE COMMITMENTS SHALL NOT BE SUBJECT TO ANY REDUCTION) IN AN
AGGREGATE AMOUNT EQUAL TO (I) 100% OF THE PROCEEDS (NET OF UNDERWRITING
DISCOUNTS AND COMMISSIONS AND OTHER COSTS ASSOCIATED THEREWITH) FROM ANY SALE OR
ISSUANCE OF EQUITY (OTHER THAN PERMITTED PREFERRED STOCK) OF SUCH BORROWER OR
ANY OF ITS SUBSIDIARIES (OTHER THAN ANY PORTION OF SUCH PROCEEDS APPLIED TO
REDEEM THE 1997 SENIOR SUBORDINATED NOTES, THE 1998 SENIOR NOTES AND/OR THE 1999
SENIOR SUBORDINATED NOTES AS PERMITTED BY SUBSECTION 8.11(A)) OTHER THAN TO
EITHER BORROWER OR ANY OF ITS SUBSIDIARIES AND (II) 100% OF THE PROCEEDS (NET OF
UNDERWRITING DISCOUNTS AND COMMISSIONS AND OTHER COSTS ASSOCIATED THEREWITH)
FROM ANY INCURRENCE OF ANY INDEBTEDNESS FOR BORROWED MONEY BY SUCH BORROWER OR
ANY OF ITS SUBSIDIARIES (OTHER THAN INDEBTEDNESS PERMITTED BY SUBSECTION 8.4),
SUCH PREPAYMENT AND REDUCTION TO BE EFFECTED IN EACH CASE IN THE MANNER AND
ORDER SPECIFIED IN SUBSECTION 4.4(I). THE PROVISIONS OF THIS PARAGRAPH SHALL
NOT LIMIT THE OBLIGATION OF THE COMPANY TO OBTAIN THE CONSENT OF THE REQUIRED
LENDERS TO ANY ACTION REFERRED TO IN THIS PARAGRAPH THAT IS NOT OTHERWISE
PERMITTED HEREUNDER.
(D IN THE EVENT THAT THE NET PROCEEDS OF ANY CASUALTY EVENT OF
EITHER BORROWER OR ANY OF ITS SUBSIDIARIES (THE "CURRENT CASUALTY EVENT"), AND
----------------------
OF ALL PRIOR CASUALTY EVENTS OF THE BORROWERS AND THEIR SUBSIDIARIES AS TO WHICH
A PREPAYMENT HAS NOT YET BEEN MADE UNDER THIS SUBSECTION 4.4(D), BUT EXCLUDING
ANY CASUALTY REINVESTABLE PROCEEDS (AS DEFINED BELOW), SHALL EXCEED
US$2,500,000, THEN, NO LATER THAN FIVE BUSINESS DAYS AFTER THE OCCURRENCE OF THE
CURRENT CASUALTY EVENT, THE RELEVANT BORROWER WILL DELIVER TO THE US
ADMINISTRATIVE AGENT A STATEMENT, CERTIFIED BY A RESPONSIBLE OFFICER OF SUCH
BORROWER, IN FORM AND DETAIL
46
REASONABLY SATISFACTORY TO THE RELEVANT ADMINISTRATIVE AGENT, OF THE AMOUNT OF
THE NET PROCEEDS OF THE CURRENT CASUALTY EVENT AND OF ALL SUCH PRIOR CASUALTY
EVENTS AND SHALL PREPAY ITS LOANS AND/OR REDUCE L/C EXPOSURE, AND ITS
COMMITMENTS SHALL BE SUBJECT TO AUTOMATIC REDUCTION (AND, IF REQUIRED, SUCH
BORROWER SHALL PROVIDE CASH COLLATERAL IN CONNECTION WITH SUCH REDUCTION, WHICH
CASH COLLATERAL SHALL BE INVESTED IN CASH EQUIVALENTS), IN AN AGGREGATE AMOUNT
EQUAL TO THE EXCESS OF 100% OF THE NET PROCEEDS OF THE CURRENT CASUALTY EVENT
AND SUCH PRIOR CASUALTY EVENTS (BUT EXCLUDING THE AMOUNT OF ANY CASUALTY
REINVESTABLE PROCEEDS) OVER US$2,500,000 (OR THE C$ EQUIVALENT THEREOF, AS THE
CASE MAY BE), SUCH PREPAYMENT, REDUCTION IN L/C EXPOSURE AND REDUCTION TO BE
EFFECTED IN EACH CASE IN THE MANNER AND ORDER SPECIFIED IN SUBSECTION 4.4(I);
PROVIDED, THAT SUCH NET PROCEEDS SHALL NOT BE REQUIRED TO BE APPLIED ON SUCH
--------
DATE (OTHER THAN IF SUCH NET PROCEEDS ARE REQUIRED TO BE APPLIED PURSUANT TO THE
TERMS OF ANY MORTGAGE OR LEASE) SO LONG AS (I) SUCH BORROWER DELIVERS A
CERTIFICATE OF A RESPONSIBLE OFFICER TO THE US ADMINISTRATIVE AGENT PRIOR TO
SUCH DATE STATING THAT SUCH BORROWER INTENDS TO USE OR CAUSE THE APPROPRIATE
SUBSIDIARY TO USE SUCH NET PROCEEDS (THE "CASUALTY REINVESTABLE PROCEEDS" OF
------------------------------
SUCH CASUALTY EVENT) TO REPAIR OR REPLACE THE PROPERTY AFFECTED BY SUCH CASUALTY
EVENT (THE "AFFECTED PROPERTY") WITHIN 270 DAYS AFTER RECEIPT OF SUCH NET
-----------------
PROCEEDS AND SETTING FORTH AN ESTIMATE OF THE CASUALTY REINVESTABLE PROCEEDS TO
BE SO EXPENDED AND (II) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING OR WOULD BE CAUSED THEREBY. AFTER SUCH ELECTION TO REINVEST, ON THE
DATE WHICH IS 270 DAYS AFTER THE RELEVANT CASUALTY EVENT, SUCH BORROWER SHALL
(I) DELIVER A CERTIFICATE OF A RESPONSIBLE OFFICER TO THE RELEVANT
ADMINISTRATIVE AGENT CERTIFYING AS TO THE AMOUNT AND USE OF SUCH CASUALTY
REINVESTABLE PROCEEDS ACTUALLY USED TO PURCHASE OR REPLACE THE AFFECTED PROPERTY
AND (II) DELIVER TO THE RELEVANT ADMINISTRATIVE AGENT, FOR APPLICATION IN
ACCORDANCE WITH THIS SUBSECTION 4.4(D), AN AMOUNT EQUAL TO THE REMAINING UNUSED
CASUALTY REINVESTABLE PROCEEDS.
(E ON THE DATE OF THE RECEIPT THEREOF BY EITHER BORROWER OR ANY OF
ITS SUBSIDIARIES, SUCH BORROWER SHALL PREPAY ITS LOANS AND/OR REDUCE L/C
EXPOSURE (BUT ITS COMMITMENTS SHALL NOT BE SUBJECT TO ANY REDUCTION) IN AN
AGGREGATE AMOUNT EQUAL TO 100% OF THE PROCEEDS OF ANY TAX REFUND (NET OF ANY
MARGINAL INCREASE IN INCOME TAXES PAYABLE AS A RESULT OF THE RECEIPT BY SUCH
BORROWER AND/OR ANY OF ITS SUBSIDIARIES OF SUCH TAX REFUND, SUCH PREPAYMENT
AND/OR REDUCTION IN L/C EXPOSURE TO BE EFFECTED IN EACH CASE IN THE MANNER AND
ORDER SPECIFIED IN SUBSECTION 4.4(I).
(F ON THE DATE OF THE RECEIPT THEREOF BY EITHER BORROWER OR ANY OF
ITS SUBSIDIARIES, SUCH BORROWER SHALL PREPAY ITS LOANS AND/OR REDUCTION IN L/C
EXPOSURE (BUT ITS COMMITMENTS SHALL NOT BE SUBJECT TO ANY REDUCTION) IN AN
AGGREGATE AMOUNT EQUAL TO 100% OF THE NET PROCEEDS OF ANY DISPOSITION OF
PROPERTY ACQUIRED AS PART OF A PERMITTED ACQUISITION BUT NOT USED OR USEFUL TO
THE BUSINESS OF SUCH BORROWER OR SUCH SUBSIDIARY SO LONG AS SUCH DISPOSITION IS
MADE WITHIN 270 DAYS OF THE DATE OF THE CONSUMMATION OF SUCH PERMITTED
ACQUISITION, SUCH PREPAYMENT AND/OR REDUCTION IN L/C EXPOSURE TO BE
47
EFFECTED IN EACH CASE IN THE MANNER AND ORDER SPECIFIED IN SUBSECTION 4.4(I).
(G IF, AT ANY TIME DURING THE COMMITMENT PERIOD, THE US EXTENSIONS
OF CREDIT WITH RESPECT TO ALL US$ LENDERS EXCEEDS THE AGGREGATE US COMMITMENTS
THEN IN EFFECT, THE COMPANY SHALL, WITHOUT NOTICE OR DEMAND, IMMEDIATELY REPAY
THE US$ LOANS AND/OR REDUCE L/C EXPOSURE IN AN AGGREGATE PRINCIPAL AMOUNT EQUAL
TO SUCH EXCESS. ON THE BUSINESS DAY NEXT SUCCEEDING THE DATE ON WHICH A PAYMENT
HAS CAUSED THE US EXTENSIONS OF CREDIT WITH RESPECT TO ALL US$ LENDERS TO BE
EQUAL TO OR LESS THAN THE US COMMITMENTS THEN IN EFFECT, THE US ADMINISTRATIVE
AGENT SHALL RETURN TO THE COMPANY ANY CASH USED TO CASH COLLATERALIZE THE THEN
OUTSTANDING L/C OBLIGATIONS PURSUANT TO THE PRECEDING SENTENCE.
(H IF, AT ANY TIME DURING THE COMMITMENT PERIOD, THE AGGREGATE
PRINCIPAL AMOUNT OF C$ LOANS OUTSTANDING WITH RESPECT TO ALL C$ LENDERS EXCEEDS
THE AGGREGATE CANADIAN COMMITMENTS THEN IN EFFECT, THE CANADIAN BORROWER SHALL,
WITHOUT NOTICE OR DEMAND, IMMEDIATELY REPAY THE C$ LOANS IN AN AGGREGATE
PRINCIPAL AMOUNT EQUAL TO SUCH EXCESS, TOGETHER WITH INTEREST ACCRUED TO THE
DATE OF SUCH PAYMENT OR PREPAYMENT AND ANY AMOUNTS PAYABLE UNDER SUBSECTION
4.12.
(I PREPAYMENTS OF THE LOANS PURSUANT TO SUBSECTIONS 4.4(B), (C),
(D), (E), (F), (G) AND (H) AND PERMANENT REDUCTIONS OF COMMITMENTS PURSUANT TO
SUBSECTIONS 4.4(B) AND (D) SHALL BE APPLIED IN THE FOLLOWING MANNER:
(I) TO THE EXTENT SUCH PREPAYMENT IS REQUIRED TO BE MADE BY THE
COMPANY, SUCH PREPAYMENT SHALL BE APPLIED TO REDUCE (RATABLY AMONG THE US$
LENDERS) SUCH OF THE THEN OUTSTANDING US$ LOANS AS THE COMPANY SHALL
DETERMINE IN ITS SOLE DISCRETION, AND ANY REDUCTION OF THE COMMITMENTS
REQUIRED PURSUANT THERETO SHALL BE APPLIED RATABLY AMONG THE US LENDERS TO
REDUCE RATABLY THEIR RESPECTIVE US COMMITMENTS (WHICH REDUCTION OF US
COMMITMENTS SHALL REDUCE THE REMAINING SCHEDULED COMMITMENT REDUCTIONS
THEREOF IN INVERSE ORDER OF MATURITY); AND
(II) TO THE EXTENT THAT SUCH PREPAYMENT IS REQUIRED TO BE MADE BY THE
CANADIAN BORROWER, SUCH PREPAYMENT SHALL BE APPLIED TO REDUCE (RATABLY
AMONG THE CANADIAN LENDERS) SUCH OF THE THEN OUTSTANDING C$ LOANS (OR, IN
THE CASE OF BANKERS' ACCEPTANCES, CASH COLLATERALIZATION OF SUCH BANKERS'
ACCEPTANCES ON TERMS SATISFACTORY TO THE CANADIAN ADMINISTRATIVE AGENT,
WHICH CASH COLLATERAL SHALL BE INVESTED IN CASH EQUIVALENTS) AS THE
CANADIAN BORROWER SHALL DETERMINE IN ITS SOLE DISCRETION, AND ANY REDUCTION
OF THE CANADIAN COMMITMENTS REQUIRED PURSUANT THERETO SHALL BE APPLIED
RATABLY AMONG THE CANADIAN LENDERS TO REDUCE RATABLY THEIR RESPECTIVE
CANADIAN COMMITMENTS (WHICH REDUCTION OF CANADIAN COMMITMENTS SHALL REDUCE
THE REMAINING SCHEDULED COMMITMENT REDUCTIONS THEREOF IN INVERSE ORDER OF
MATURITY).
48
(J NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED ABOVE, (I) ALL
PREPAYMENTS OF LOANS SHALL BE MADE IN THE CURRENCY IN WHICH SUCH LOANS WERE
MADE, (II) ALL CASH COLLATERALIZATION OF BANKERS ACCEPTANCES SHALL BE MADE IN
CANADIAN DOLLARS AND (III) ALL CASH COLLATERALIZATION OF LETTERS OF CREDIT SHALL
BE IN US$ OR BRITISH POUNDS, AS THE CASE MAY BE. FOR PURPOSES OF DETERMINING
THE AMOUNTS REQUIRED TO BE APPLIED, CONVERSIONS OF ONE CURRENCY TO ANOTHER ARE
ASSUMED TO BE MADE BY USING THE C$ EQUIVALENT OR US$ EQUIVALENT, AS THE CASE MAY
BE, OF AMOUNTS RECEIVED IN THE OTHER CURRENCY. HOWEVER, IT SHALL REMAIN THE
RESPONSIBILITY OF THE RESPECTIVE BORROWER TO CONVERT AMOUNTS RECEIVED IN ONE
CURRENCY INTO THE OTHER TO THE EXTENT NEEDED TO REPAY, OR CASH COLLATERALIZE,
LOANS, BANKERS ACCEPTANCES OR LETTERS OF CREDIT MAINTAINED IN THE OTHER SUCH
CURRENCY.
4.5 INTEREST RATES AND PAYMENT DATES. (A) EACH EURODOLLAR LOAN
--------------------------------
SHALL BEAR INTEREST FOR EACH DAY DURING EACH INTEREST PERIOD WITH RESPECT
THERETO AT A RATE PER ANNUM EQUAL TO THE EURODOLLAR RATE DETERMINED FOR SUCH
INTEREST PERIOD PLUS THE APPLICABLE MARGIN.
(B EACH BASE RATE LOAN SHALL BEAR INTEREST FOR EACH DAY ON THE
UNPAID PRINCIPAL AMOUNT THEREOF, AT A RATE PER ANNUM EQUAL TO THE BASE RATE
DETERMINED FOR SUCH DAY PLUS THE APPLICABLE MARGIN.
(C EACH C$ PRIME LOAN SHALL BEAR INTEREST FOR EACH DAY ON THE UNPAID
PRINCIPAL AMOUNT THEREOF, AT A RATE PER ANNUM EQUAL TO THE C$ PRIME RATE
DETERMINED FOR SUCH DAY PLUS THE APPLICABLE MARGIN.
(D IF ALL OR A PORTION OF (I) ANY PRINCIPAL OF ANY LOAN OR
REIMBURSEMENT OBLIGATION, (II) ANY INTEREST PAYABLE THEREON, (III) ANY
ACCEPTANCE FEE OR ANY COMMITMENT FEE OR (IV) ANY 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 WHICH IS
(X) IN THE CASE OF PRINCIPAL, THE RATE THAT WOULD OTHERWISE BE APPLICABLE
THERETO PURSUANT TO THE FOREGOING PROVISIONS OF THIS SUBSECTION PLUS 2% OR (Y)
IN THE CASE OF ANY SUCH OVERDUE REIMBURSEMENT OBLIGATION, INTEREST, ACCEPTANCE
FEE OR COMMITMENT FEE OR OTHER AMOUNT, THE RATE DESCRIBED IN PARAGRAPH (B) OF
THIS SUBSECTION (IN THE CASE OF AMOUNTS PAYABLE IN US DOLLARS) OR PARAGRAPH (C)
OF THIS SUBSECTION (IN THE CASE OF AMOUNTS PAYABLE IN CANADIAN DOLLARS) PLUS 2%,
IN EACH CASE FROM THE DATE OF SUCH NON-PAYMENT UNTIL SUCH OVERDUE PRINCIPAL,
INTEREST, ACCEPTANCE FEE OR COMMITMENT FEE OR OTHER AMOUNT IS PAID IN FULL
(AFTER AS WELL AS BEFORE JUDGMENT).
(E INTEREST SHALL BE PAYABLE IN ARREARS ON EACH INTEREST PAYMENT
DATE, PROVIDED THAT INTEREST ACCRUING PURSUANT TO PARAGRAPH (D) OF THIS
--------
SUBSECTION SHALL BE PAYABLE FROM TIME TO TIME ON DEMAND. INTEREST IN RESPECT OF
US$ LOANS OR REIMBURSEMENT OBLIGATIONS (AND ALL OTHER AMOUNTS DENOMINATED IN
US$) SHALL BE PAYABLE IN US$, AND INTEREST IN RESPECT OF C$ LOANS (AND ALL OTHER
AMOUNTS DENOMINATED IN C$) SHALL BE PAYABLE IN C$.
49
(F (I) IF ANY PROVISION OF THIS AGREEMENT WOULD OBLIGATE ANY LOAN
PARTY TO MAKE ANY PAYMENT OF INTEREST OR OTHER AMOUNT PAYABLE TO ANY C$ LENDER
IN AN AMOUNT OR CALCULATED AT A RATE WHICH WOULD BE PROHIBITED BY LAW OR WOULD
RESULT IN A RECEIPT BY SUCH C$ LENDER OF INTEREST AT A CRIMINAL RATE (AS SUCH
TERMS ARE CONSTRUED UNDER THE CRIMINAL CODE (CANADA)), THEN NOTWITHSTANDING SUCH
-------------
PROVISION, SUCH AMOUNT OR RATE SHALL BE DEEMED TO HAVE BEEN ADJUSTED WITH
RETROACTIVE EFFECT TO THE MAXIMUM AMOUNT OR RATE OF INTEREST, AS THE CASE MAY
BE, AS WOULD NOT BE SO PROHIBITED BY LAW OR SO RESULT IN A RECEIPT BY SUCH C$
LENDER OF INTEREST AT A CRIMINAL RATE, SUCH ADJUSTMENT TO BE EFFECTED, TO THE
EXTENT NECESSARY, AS FOLLOWS:
(X) FIRST, BY REDUCING THE AMOUNT OR RATES OF INTEREST REQUIRED
TO BE PAID UNDER THIS SUBSECTION 4.5; AND
(Y) THEREAFTER, BY REDUCING ANY FEES, COMMISSIONS, PREMIUMS AND
OTHER AMOUNTS WHICH WOULD CONSTITUTE INTEREST FOR PURPOSES
OF SECTION 347 OF THE CRIMINAL CODE (CANADA).
-------------
(II) IF, NOTWITHSTANDING THE PROVISIONS OF CLAUSE (I) OF THIS
SUBSECTION 4.5.(F), AND AFTER GIVING EFFECT TO ALL ADJUSTMENTS CONTEMPLATED
THEREBY, ANY C$ LENDER SHALL HAVE RECEIVED AN AMOUNT IN EXCESS OF THE MAXIMUM
PERMITTED BY SUCH CLAUSE, THEN THE APPLICABLE LOAN PARTY SHALL BE ENTITLED, BY
NOTICE IN WRITING TO SUCH C$ LENDER, TO OBTAIN REIMBURSEMENT FROM SUCH C$ LENDER
OF AN AMOUNT EQUAL TO SUCH EXCESS, AND, PENDING SUCH REIMBURSEMENT, SUCH AMOUNT
SHALL BE DEEMED TO BE AN AMOUNT PAYABLE BY SUCH C$ LENDER TO SUCH LOAN PARTY.
(III) ANY AMOUNT OR RATE OF INTEREST REFERRED TO IN THIS SUBSECTION
4.5(F) SHALL BE DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED ACTUARIAL
PRACTICES AND PRINCIPLES AS AN EFFECTIVE ANNUAL RATE OF INTEREST OVER THE TERM
OF ANY C$ LOAN ON THE ASSUMPTION THAT ANY CHARGES, FEES OR EXPENSES THAT FALL
WITHIN THE MEANING OF "INTEREST" (AS DEFINED IN THE CRIMINAL CODE (CANADA))
-------------
SHALL, IF THEY RELATE TO A SPECIFIC PERIOD OF TIME, BE PRORATED OVER THAT PERIOD
OF TIME AND OTHERWISE BE PRORATED OVER THE PERIOD FROM THE CLOSING DATE TO THE
TERMINATION DATE AND, IN THE EVENT OF DISPUTE, A CERTIFICATE OF A FELLOW OF THE
CANADIAN INSTITUTE OF ACTUARIES APPOINTED BY THE CANADIAN ADMINISTRATIVE AGENT
SHALL BE CONCLUSIVE FOR THE PURPOSES OF SUCH DETERMINATION ABSENT MANIFEST
ERROR.
4.6 COMPUTATION OF INTEREST, FEES AND DOLLAR EQUIVALENT AMOUNTS. (A)
-----------------------------------------------------------
INTEREST CALCULATED ON THE BASIS OF THE EURODOLLAR RATE AND FEDERAL FUNDS RATE
SHALL BE CALCULATED ON THE BASIS OF A 360-DAY YEAR FOR THE ACTUAL DAYS ELAPSED;
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; AND INTEREST CALCULATED ON ANY OTHER BASIS SHALL BE CALCULATED ON THE
BASIS OF A 365- OR 366- DAY YEAR, AS THE CASE MAY BE, FOR THE ACTUAL DAYS
ELAPSED. THE RELEVANT ADMINISTRATIVE AGENT SHALL AS SOON AS PRACTICABLE NOTIFY
THE
50
RELEVANT BORROWER AND THE RELEVANT LENDERS OF EACH DETERMINATION OF EURODOLLAR
RATES OR THE APPLICABLE BA DISCOUNT RATE. ANY CHANGE IN THE INTEREST RATE ON A
LOAN RESULTING FROM A CHANGE IN THE BASE RATE, THE C$ PRIME RATE OR THE
APPLICABLE MARGIN SHALL BECOME EFFECTIVE AS OF THE OPENING OF BUSINESS ON THE
DAY ON WHICH SUCH CHANGE BECOMES EFFECTIVE. THE RELEVANT ADMINISTRATIVE AGENT
SHALL AS SOON AS PRACTICABLE NOTIFY THE RELEVANT LENDERS AND THE RELEVANT
BORROWER OF THE EFFECTIVE DATE AND THE AMOUNT OF EACH SUCH CHANGE IN INTEREST
RATE.
(B EACH DETERMINATION OF AN INTEREST RATE BY THE RELEVANT
ADMINISTRATIVE AGENT PURSUANT TO ANY PROVISION OF THIS AGREEMENT SHALL BE PRIMA
FACIE EVIDENCE OF THE ACCURACY THEREOF ON THE BORROWERS AND THE LENDERS IN THE
ABSENCE OF MANIFEST ERROR. WHEN APPLICABLE, EACH DETERMINATION BY CIBC OF A
RATE TO BE NOTIFIED TO THE RELEVANT ADMINISTRATIVE AGENT PURSUANT TO THE
DEFINITION OF "CDOR RATE" SHALL BE PRIMA FACIE EVIDENCE OF THE ACCURACY THEREOF.
THE RELEVANT ADMINISTRATIVE AGENT SHALL, AT THE REQUEST OF THE RELEVANT
BORROWER, DELIVER TO SUCH BORROWER A STATEMENT SHOWING ANY QUOTATIONS AND THE
COMPUTATIONS USED BY THE RELEVANT ADMINISTRATIVE AGENT IN DETERMINING ANY CDOR
RATE.
(C FOR THE PURPOSES OF THE INTEREST ACT (CANADA), IN ANY CASE IN
------------
WHICH AN INTEREST RATE IS STATED IN THIS AGREEMENT TO BE CALCULATED ON THE BASIS
OF A YEAR OF 360 DAYS OR 365 DAYS, AS THE CASE MAY BE, THE YEARLY RATE OF
INTEREST TO WHICH SUCH INTEREST RATE IS EQUIVALENT IS EQUAL TO SUCH INTEREST
RATE MULTIPLIED BY THE NUMBER OF DAYS IN THE YEAR IN WHICH THE RELEVANT INTEREST
PAYMENT ACCRUES AND DIVIDED BY 360 OR 365, RESPECTIVELY. IN ADDITION, THE
PRINCIPLES OF DEEMED INVESTMENT OF INTEREST DO NOT APPLY TO ANY INTEREST
CALCULATIONS UNDER THIS AGREEMENT AND THE RATES OF INTEREST STIPULATED IN THIS
AGREEMENT ARE INTENDED TO BE NOMINAL RATES AND NOT EFFECTIVE RATES OR YIELDS.
(D) FOR PURPOSES OF CALCULATING THE AMOUNT OF THE US EXTENSIONS OF
CREDIT AT ANY TIME, THE US ADMINISTRATIVE AGENT WILL DETERMINE THE DOLLAR
EQUIVALENT AMOUNT WITH RESPECT TO ANY LETTERS OF CREDIT DENOMINATED IN BRITISH
POUNDS ON (I) THE DATE OF EACH ISSUANCE OF SUCH A LETTER OF CREDIT, (II) THE
DATE OF EACH LOAN UNDER THE US COMMITMENTS, (III) THE DATE OF EACH REDUCTION OF
THE US COMMITMENTS AND (IV) THE FIRST BUSINESS DAY OF EACH CALENDAR MONTH, AND
THE BRITISH POUNDS EXCHANGE RATE IN EFFECT ON THE DATE OF EACH SUCH
DETERMINATION SHALL BE DEEMED TO REMAIN IN EFFECT FOR ALL PURPOSES OF THIS
AGREEMENT UNTIL THE NEXT SUCH DETERMINATION DESCRIBED IN CLAUSES (I) THROUGH
(IV) ABOVE.
4.7 INABILITY TO DETERMINE EURODOLLAR RATE. IF PRIOR TO THE
--------------------------------------
FIRST DAY OF ANY INTEREST PERIOD:
(A THE US ADMINISTRATIVE AGENT SHALL HAVE DETERMINED (WHICH
DETERMINATION SHALL BE PRIMA FACIE EVIDENCE OF THE ACCURACY THEREOF) THAT,
BY REASON OF CIRCUMSTANCES AFFECTING THE RELEVANT MARKET, ADEQUATE AND
REASONABLE MEANS DO NOT
51
EXIST FOR ASCERTAINING THE EURODOLLAR RATE FOR SUCH INTEREST PERIOD, OR
(B THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED NOTICE FROM
THE REQUIRED US$ LENDERS THAT THE EURODOLLAR RATE DETERMINED OR TO BE
DETERMINED FOR SUCH INTEREST PERIOD WILL NOT ADEQUATELY AND FAIRLY REFLECT
THE COST TO SUCH US$ LENDERS (AS CONCLUSIVELY CERTIFIED BY SUCH US$
LENDERS) OF MAKING OR MAINTAINING THEIR AFFECTED LOANS DURING SUCH INTEREST
PERIOD,
THE US ADMINISTRATIVE AGENT SHALL GIVE TELECOPY OR TELEPHONIC NOTICE (TO BE
CONFIRMED IN WRITING) THEREOF TO THE COMPANY AND THE US$ LENDERS AS SOON AS
PRACTICABLE THEREAFTER. IF SUCH NOTICE IS GIVEN (X) ANY EURODOLLAR LOANS
REQUESTED TO BE MADE ON THE FIRST DAY OF SUCH INTEREST PERIOD SHALL BE MADE AS
BASE RATE LOANS, (Y) ANY BASE RATE LOANS THAT WERE TO HAVE BEEN CONVERTED ON THE
FIRST DAY OF SUCH INTEREST PERIOD TO EURODOLLAR LOANS SHALL BE CONVERTED TO OR
CONTINUED AS BASE RATE LOANS AND (Z) ANY OUTSTANDING EURODOLLAR LOANS SHALL BE
CONVERTED, ON THE FIRST DAY OF SUCH INTEREST PERIOD, TO BASE RATE LOANS. UNTIL
SUCH NOTICE HAS BEEN WITHDRAWN BY THE US ADMINISTRATIVE AGENT, NO FURTHER
EURODOLLAR LOANS SHALL BE MADE OR CONTINUED AS SUCH, NOR SHALL THE COMPANY HAVE
THE RIGHT TO CONVERT LOANS TO EURODOLLAR LOANS.
4.8 PRO RATA TREATMENT AND PAYMENTS. (A) EACH BORROWING BY EACH
-------------------------------
BORROWER FROM THE LENDERS HEREUNDER, EACH PAYMENT BY EACH BORROWER ON ACCOUNT OF
ANY COMMITMENT FEE OR ACCEPTANCE FEE HEREUNDER AND ANY REDUCTION OF THE US
COMMITMENTS OR THE CANADIAN COMMITMENTS OF THE LENDERS SHALL BE MADE PRO RATA
ACCORDING TO THE RESPECTIVE US COMMITMENT PERCENTAGES, IN THE CASE OF THE US$
LENDERS, AND THE RESPECTIVE C$ COMMITMENT PERCENTAGES, IN THE CASE OF THE C$
LENDERS. EACH PAYMENT (EXCLUDING PREPAYMENTS PURSUANT TO SUBSECTION 4.4(I)) BY
EACH BORROWER ON ACCOUNT OF PRINCIPAL OF AND INTEREST ON THE LOANS SHALL BE MADE
PRO RATA ACCORDING TO THE RESPECTIVE OUTSTANDING PRINCIPAL AMOUNTS OF THE
RELEVANT LOANS THEN HELD BY THE RELEVANT LENDERS. ALL PAYMENTS (INCLUDING
PREPAYMENTS) TO BE MADE BY EACH BORROWER HEREUNDER, WHETHER ON ACCOUNT OF
PRINCIPAL, INTEREST, FEES OR OTHERWISE, SHALL BE MADE WITHOUT SET OFF OR
COUNTERCLAIM AND SHALL BE MADE PRIOR TO 11:00 A.M., LOCAL TIME, ON THE DUE DATE
THEREOF TO THE RELEVANT ADMINISTRATIVE AGENT, FOR THE ACCOUNT OF THE LENDERS, AT
THE RELEVANT ADMINISTRATIVE OFFICE, IN US$ OR C$, AS THE CASE MAY BE, AND IN
IMMEDIATELY AVAILABLE FUNDS. THE RELEVANT ADMINISTRATIVE AGENT SHALL DISTRIBUTE
SUCH PAYMENTS TO THE RELEVANT LENDERS PROMPTLY UPON RECEIPT IN LIKE FUNDS AS
RECEIVED, BUT THE RELEVANT BORROWER SHALL HAVE SATISFIED ITS PAYMENT OBLIGATION
HEREUNDER UPON PAYMENT TO THE RELEVANT ADMINISTRATIVE AGENT, REGARDLESS OF
WHETHER SUCH ADMINISTRATIVE AGENT DISTRIBUTES SUCH PAYMENTS AS REQUIRED
HEREUNDER. IF ANY PAYMENT HEREUNDER BECOMES DUE AND PAYABLE ON A DAY OTHER THAN
A BUSINESS DAY, SUCH PAYMENT SHALL BE EXTENDED TO THE NEXT SUCCEEDING BUSINESS
DAY, AND, WITH RESPECT TO PAYMENTS OF PRINCIPAL, INTEREST THEREON SHALL BE
PAYABLE AT THE THEN APPLICABLE RATE DURING SUCH EXTENSION.
52
(B) UNLESS THE RELEVANT ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
NOTICE FROM A LENDER PRIOR TO 11:00 A.M., LOCAL TIME, ON ANY BORROWING DATE THAT
SUCH LENDER WILL NOT MAKE AVAILABLE TO SUCH ADMINISTRATIVE AGENT SUCH LENDER'S
SHARE OF THE BORROWING REQUESTED TO BE MADE ON SUCH BORROWING DATE, SUCH
ADMINISTRATIVE AGENT MAY ASSUME THAT SUCH LENDER HAS MADE ITS SHARE OF SUCH
BORROWING AVAILABLE TO SUCH ADMINISTRATIVE AGENT ON SUCH BORROWING DATE, AND
SUCH ADMINISTRATIVE AGENT MAY, IN RELIANCE UPON SUCH ASSUMPTION, MAKE AVAILABLE
TO THE RELEVANT BORROWER ON SUCH BORROWING DATE A CORRESPONDING AMOUNT. IF SUCH
ADMINISTRATIVE AGENT DOES, IN SUCH CIRCUMSTANCES, MAKE AVAILABLE TO SUCH
BORROWER SUCH AMOUNT, SUCH LENDER SHALL WITHIN THREE BUSINESS DAYS FOLLOWING
SUCH BORROWING DATE MAKE ITS SHARE OF SUCH BORROWING AVAILABLE TO SUCH
ADMINISTRATIVE AGENT, TOGETHER WITH INTEREST THEREON FOR EACH DAY FROM AND
INCLUDING SUCH BORROWING DATE THAT ITS SHARE OF SUCH BORROWING WAS NOT MADE
AVAILABLE, TO BUT EXCLUDING THE DATE SUCH LENDER MAKES ITS SHARE OF SUCH
BORROWING AVAILABLE TO SUCH ADMINISTRATIVE AGENT, AT THE FEDERAL FUNDS RATE (IN
THE CASE OF US$ LOANS) OR AT THE THEN EFFECTIVE CDOR RATE (IN THE CASE OF C$
LOANS). IF SUCH AMOUNT IS SO MADE AVAILABLE, SUCH PAYMENT TO SUCH
ADMINISTRATIVE AGENT SHALL CONSTITUTE SUCH LENDER'S LOAN ON SUCH BORROWING DATE
FOR ALL PURPOSES OF THIS AGREEMENT. A CERTIFICATE OF SUCH ADMINISTRATIVE AGENT
SUBMITTED TO ANY LENDER WITH RESPECT TO ANY AMOUNTS OWING UNDER THIS SUBSECTION
SHALL BE PRIMA FACIE EVIDENCE OF SUCH AMOUNTS. IF SUCH AMOUNT IS NOT SO MADE
AVAILABLE TO SUCH ADMINISTRATIVE AGENT BY SUCH LENDER WITHIN THREE BUSINESS DAYS
OF SUCH BORROWING DATE, SUCH ADMINISTRATIVE AGENT SHALL ALSO BE ENTITLED TO
RECOVER SUCH AMOUNT WITH INTEREST THEREON AT THE RATE PER ANNUM APPLICABLE TO
BASE RATE LOANS HEREUNDER, ON DEMAND, FROM THE RELEVANT LENDER. NOTHING
CONTAINED IN THIS SUBSECTION 4.8(B) SHALL RELIEVE ANY LENDER WHICH HAS FAILED TO
MAKE AVAILABLE ITS SHARE OF ANY BORROWING HEREUNDER FROM ITS OBLIGATION TO DO SO
IN ACCORDANCE WITH THE TERMS HEREOF OR PREJUDICE ANY RIGHTS WHICH THE RELEVANT
BORROWER MAY HAVE AGAINST ANY LENDER AS A RESULT OF ANY DEFAULT BY SUCH LENDER
TO MAKE LOANS.
(C) THE FAILURE OF ANY LENDER TO MAKE THE LOAN TO BE MADE BY IT ON
ANY BORROWING DATE SHALL NOT RELIEVE ANY OTHER LENDER OF ITS OBLIGATION, IF ANY,
HEREUNDER TO MAKE ITS LOAN ON SUCH BORROWING DATE, BUT NO LENDER SHALL BE
RESPONSIBLE FOR THE FAILURE OF ANY OTHER LENDER TO MAKE THE LOAN TO BE MADE BY
SUCH OTHER LENDER ON SUCH BORROWING DATE.
4.9 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 SHALL MAKE IT UNLAWFUL FOR ANY LENDER TO MAKE OR MAINTAIN
EURODOLLAR LOANS AS CONTEMPLATED BY THIS AGREEMENT, (A) THE COMMITMENT OF SUCH
LENDER HEREUNDER TO MAKE EURODOLLAR LOANS, CONTINUE EURODOLLAR LOANS AS SUCH AND
CONVERT BASE RATE LOANS TO EURODOLLAR LOANS SHALL FORTHWITH BE CANCELED AND (B)
SUCH LENDER'S LOANS THEN OUTSTANDING AS EURODOLLAR LOANS, IF ANY, SHALL BE
CONVERTED AUTOMATICALLY TO BASE RATE LOANS ON THE RESPECTIVE LAST DAYS OF THE
THEN CURRENT
53
INTEREST PERIODS WITH RESPECT TO SUCH LOANS OR WITHIN SUCH EARLIER PERIOD AS
REQUIRED BY LAW. IF ANY SUCH CONVERSION OF A EURODOLLAR LOAN OCCURS ON A DAY
WHICH IS NOT THE LAST DAY OF THE THEN CURRENT INTEREST PERIOD WITH RESPECT
THERETO, THE COMPANY SHALL PAY TO SUCH LENDER SUCH AMOUNTS, IF ANY, AS MAY BE
REQUIRED PURSUANT TO SUBSECTION 4.12.
4.10 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 MADE
SUBSEQUENT TO THE DATE HEREOF:
(I) SHALL SUBJECT ANY LENDER TO, OR CAUSE THE WITHDRAWAL OR
TERMINATION OF A PREVIOUSLY GRANTED EXEMPTION WITH RESPECT TO, ANY TAX OF
ANY KIND WHATSOEVER, OR CHANGE THE BASIS OF TAXATION OF, OR INCREASE ANY
EXISTING TAX ON, PAYMENTS OF PRINCIPAL, INTEREST, FEES OR OTHER AMOUNTS
PAYABLE BY EITHER BORROWER TO SUCH LENDER UNDER THIS AGREEMENT OR ANY
LETTER OF CREDIT (EXCEPT FOR TAXES ON THE OVERALL RECEIPTS OR OVERALL NET
INCOME OR CAPITAL OF SUCH LENDER, AND ANY RELATED SURTAXES, OR TAXES FOR
WHICH SUCH LENDER IS BEING FULLY COMPENSATED UNDER SUBSECTION 4.11);
(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 WHICH IS NOT OTHERWISE INCLUDED IN THE DETERMINATION
OF THE EURODOLLAR RATE HEREUNDER; OR
(III) SHALL IMPOSE ON SUCH LENDER ANY OTHER CONDITION;
AND THE RESULT OF ANY OF THE FOREGOING IS TO INCREASE THE COST TO SUCH LENDER,
BY AN AMOUNT WHICH SUCH LENDER DEEMS TO BE MATERIAL, OF MAKING, CONVERTING INTO,
CONTINUING OR MAINTAINING EURODOLLAR LOANS OR TO REDUCE ANY AMOUNT RECEIVABLE
HEREUNDER OR IN RESPECT THEREOF OR UNDER OR IN RESPECT OF ANY LETTER OF CREDIT,
THEN, IN ANY SUCH CASE, THE RELEVANT BORROWER SHALL PROMPTLY PAY SUCH LENDER,
UPON WRITTEN DEMAND THEREFOR, SUCH ADDITIONAL AMOUNT OR AMOUNTS AS WILL
COMPENSATE SUCH LENDER FOR SUCH INCREASED COST OR REDUCED AMOUNT RECEIVABLE;
PROVIDED, THAT SUCH BORROWER SHALL NOT BE REQUIRED TO PAY ANY LENDER ANY SUCH
--------
ADDITIONAL AMOUNT IF SUCH ADDITIONAL AMOUNT ARISES (X) IN THE CASE OF US$ LOANS
MADE TO THE COMPANY, AS A CONSEQUENCE OF SUCH LENDER'S FAILURE TO MEET THE
REQUIREMENTS OF SUBSECTION 4.11(B) OR (Y) IN THE CASE OF C$ LOANS MADE TO THE
CANADIAN BORROWER, AS A RESULT OF SUCH LENDER'S FAILURE TO BE A PERSON RESIDENT
IN CANADA FOR THE PURPOSES OF THE INCOME TAX ACT (CANADA).
--------------
54
(B) IF THE ADOPTION OF OR ANY CHANGE IN ANY REQUIREMENT OF LAW
REGARDING CAPITAL ADEQUACY OR IN THE INTERPRETATION OR APPLICATION THEREOF BY
ANY GOVERNMENTAL AUTHORITY OR COMPLIANCE BY ANY 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 MADE
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 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, THE BORROWERS SHALL PROMPTLY PAY TO SUCH LENDER, UPON
WRITTEN DEMAND THEREFOR, SUCH ADDITIONAL AMOUNT OR AMOUNTS AS WILL COMPENSATE
SUCH LENDER FOR SUCH REDUCED RATE OF RETURN. IN DETERMINING SUCH ADDITIONAL
AMOUNTS, EACH LENDER WILL ACT REASONABLY AND IN GOOD FAITH AND WILL USE
AVERAGING AND ATTRIBUTION METHODS WHICH ARE REASONABLE AND WHICH WILL, TO THE
EXTENT THE REDUCED RATE OF RETURN RELATES TO SUCH LENDER'S LOANS OR COMMITMENTS
IN GENERAL AND ARE NOT SPECIFICALLY ATTRIBUTABLE TO LOANS OR COMMITMENTS
HEREUNDER, BE CALCULATED WITH RESPECT TO ALL LOANS OR COMMITMENTS SIMILAR TO THE
LOANS OR COMMITMENTS MADE BY SUCH LENDER HEREUNDER WHETHER OR NOT THE LOAN
DOCUMENTATION FOR SUCH OTHER LOANS OR COMMITMENTS PERMITS THE LENDER TO CHARGE
THE RESPECTIVE BORROWER ON A BASIS SIMILAR TO THAT PROVIDED IN THIS SUBSECTION
4.10.
(C) IF ANY LENDER BECOMES ENTITLED TO CLAIM ANY ADDITIONAL AMOUNTS
PURSUANT TO THIS SUBSECTION, IT SHALL PROMPTLY NOTIFY THE RELEVANT BORROWER
(WITH A COPY TO THE RELEVANT ADMINISTRATIVE AGENT) OF THE EVENT BY REASON OF
WHICH IT HAS BECOME SO ENTITLED. A CERTIFICATE AS TO ANY ADDITIONAL AMOUNTS
PAYABLE PURSUANT TO THIS SUBSECTION SUBMITTED BY SUCH LENDER TO SUCH BORROWER
(WITH A COPY TO THE RELEVANT ADMINISTRATIVE AGENT), SHOWING IN REASONABLE DETAIL
THE BASIS FOR THE CALCULATION THEREOF, SHALL BE PRIMA FACIE EVIDENCE OF SUCH
ADDITIONAL AMOUNTS PAYABLE. THE AGREEMENTS IN THIS SUBSECTION SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER.
4.11 TAXES. (A) ALL PAYMENTS MADE BY ANY LOAN PARTY UNDER THIS
-----
AGREEMENT AND ANY NOTES SHALL BE MADE FREE AND CLEAR OF, AND WITHOUT DEDUCTION
OR WITHHOLDING FOR OR ON ACCOUNT OF, ANY PRESENT OR FUTURE INCOME, STAMP OR
OTHER TAXES, LEVIES, IMPOSTS, DUTIES, CHARGES, FEES, DEDUCTIONS OR WITHHOLDINGS,
NOW OR HEREAFTER IMPOSED, LEVIED, COLLECTED, WITHHELD OR ASSESSED BY ANY
GOVERNMENTAL AUTHORITY, EXCLUDING GROSS OR NET INCOME OR GROSS RECEIPTS TAXES,
AD VALOREM TAXES, PERSONAL PROPERTY AND/OR SALES TAXES AND FRANCHISE TAXES
(IMPOSED IN LIEU OF NET INCOME TAXES) IMPOSED ON EITHER ADMINISTRATIVE AGENT OR
ANY LENDER AS A RESULT OF A PRESENT OR FORMER CONNECTION BETWEEN EITHER
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 SUCH
55
ADMINISTRATIVE AGENT OR SUCH LENDER HAVING EXECUTED, DELIVERED OR PERFORMED ITS
OBLIGATIONS OR RECEIVED A PAYMENT UNDER, OR ENFORCED, THIS AGREEMENT OR ANY
NOTE). IF ANY SUCH NON-EXCLUDED TAXES, LEVIES, IMPOSTS, DUTIES, CHARGES, FEES
DEDUCTIONS OR WITHHOLDINGS ("NON-EXCLUDED TAXES") ARE REQUIRED TO BE WITHHELD
------------------
FROM ANY AMOUNTS PAYABLE TO EITHER ADMINISTRATIVE AGENT OR ANY LENDER HEREUNDER
OR UNDER ANY NOTE, THE AMOUNTS SO PAYABLE TO SUCH ADMINISTRATIVE AGENT OR SUCH
LENDER SHALL BE INCREASED TO THE EXTENT NECESSARY TO YIELD TO SUCH
ADMINISTRATIVE AGENT OR SUCH LENDER (AFTER PAYMENT OF ALL NON-EXCLUDED TAXES)
INTEREST OR ANY SUCH OTHER AMOUNTS PAYABLE HEREUNDER AT THE RATES OR IN THE
AMOUNTS SPECIFIED IN THIS AGREEMENT, PROVIDED, HOWEVER, THAT NO LOAN PARTY SHALL
-------- -------
BE REQUIRED TO INCREASE ANY SUCH AMOUNTS PAYABLE TO EITHER ADMINISTRATIVE AGENT,
ANY LENDER OR ANY HOLDER OF BANKERS' ACCEPTANCES IF SUCH INCREASED AMOUNT ARISES
AS A RESULT OF (I) IN THE CASE OF AMOUNTS PAYABLE BY THE COMPANY WITH RESPECT TO
US$ LOANS, SUCH LENDER'S FAILURE TO COMPLY WITH ANY APPLICABLE REQUIREMENTS OF
SUBSECTION 4.11(B), INCLUDING A MATERIAL FAILURE OF ANY STATEMENT OR
CERTIFICATION GIVEN PURSUANT TO SUBSECTION 4.11(B) TO BE TRUE FOR ANY REASON
OTHER THAN A CHANGE IN UNITED STATES FEDERAL INCOME TAX LAW OR AN AMENDMENT,
MODIFICATION OR REVOCATION OF AN APPLICABLE DOUBLE TAX TREATY OR (II) IN THE
CASE OF AMOUNTS PAYABLE BY ANY CANADIAN BORROWER WITH RESPECT TO C$ LOANS, THE
FAILURE OF SUCH C$ LENDER, THE CANADIAN ADMINISTRATIVE AGENT OR ANY HOLDER OF
BANKERS' ACCEPTANCES TO BE A PERSON RESIDENT IN CANADA FOR THE PURPOSES OF THE
INCOME TAX ACT (CANADA). EACH LOAN PARTY SHALL ALSO INDEMNIFY EACH
--------------
ADMINISTRATIVE AGENT AND EACH LENDER ON AN AFTER-TAX BASIS FOR ANY ADDITIONAL
TAXES ON NET INCOME WHICH SUCH ADMINISTRATIVE AGENT OR SUCH LENDER, AS THE CASE
MAY BE, MAY BE OBLIGATED TO PAY AS A RESULT OF THE RECEIPT OF ADDITIONAL AMOUNTS
UNDER THIS SUBSECTION 4.11(A). WHENEVER ANY NON-EXCLUDED TAXES ARE PAYABLE BY
ANY LOAN PARTY, AS PROMPTLY AS POSSIBLE THEREAFTER BUT IN ANY EVENT WITHIN 45
DAYS AFTER THE DATE OF PAYMENT SUCH LOAN PARTY SHALL SEND TO THE RELEVANT
ADMINISTRATIVE AGENT FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH LENDER, AS
THE CASE MAY BE, A CERTIFIED COPY OF AN ORIGINAL OFFICIAL RECEIPT RECEIVED BY
SUCH LOAN PARTY SHOWING PAYMENT THEREOF. IF ANY LOAN PARTY FAILS TO PAY ANY
NON-EXCLUDED TAXES WHEN DUE TO THE APPROPRIATE TAXING AUTHORITY OR FAILS TO
REMIT TO THE RELEVANT ADMINISTRATIVE AGENT THE REQUIRED RECEIPTS OR OTHER
REQUIRED DOCUMENTARY EVIDENCE, SUCH LOAN PARTY SHALL INDEMNIFY SUCH
ADMINISTRATIVE AGENT AND THE LENDERS FOR ANY INCREMENTAL TAXES, INTEREST OR
PENALTIES THAT MAY BECOME PAYABLE BY SUCH ADMINISTRATIVE AGENT OR ANY LENDER AS
A RESULT OF ANY SUCH FAILURE. THE AGREEMENTS IN THIS SUBSECTION SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER.
(B) EACH LENDER THAT IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES OF AMERICA OR A STATE THEREOF SHALL:
(I) DELIVER TO THE COMPANY AND THE US ADMINISTRATIVE AGENT (A)
TWO ORIGINAL SIGNED COPIES OF UNITED STATES INTERNAL REVENUE SERVICE FORM
1001 OR 4224, OR SUCCESSOR APPLICABLE FORM, AS THE CASE MAY BE, AND (B) TWO
ACCURATE AND COMPLETE
56
ORIGINAL SIGNED COPIES OF INTERNAL REVENUE SERVICE FORM W-8 OR W-9, OR
SUCCESSOR APPLICABLE FORM, AS THE CASE MAY BE;
(II) DELIVER TO THE COMPANY AND THE US ADMINISTRATIVE AGENT TWO
FURTHER COPIES OF ANY SUCH FORM OR CERTIFICATION ON OR BEFORE THE DATE THAT
ANY SUCH FORM OR CERTIFICATION EXPIRES OR BECOMES OBSOLETE AND AFTER THE
OCCURRENCE OF ANY EVENT REQUIRING A CHANGE IN THE MOST RECENT FORM
PREVIOUSLY DELIVERED BY IT TO THE COMPANY; AND
(III) OBTAIN SUCH EXTENSIONS OF TIME FOR FILING AND COMPLETE
SUCH FORMS OR CERTIFICATIONS AS MAY REASONABLY BE REQUESTED BY THE COMPANY
OR THE US ADMINISTRATIVE AGENT;
UNLESS IN ANY SUCH CASE AN EVENT (INCLUDING, WITHOUT LIMITATION, ANY CHANGE IN
TREATY, LAW OR REGULATION) HAS OCCURRED PRIOR TO THE DATE ON WHICH ANY SUCH
DELIVERY WOULD OTHERWISE BE REQUIRED WHICH RENDERS ALL SUCH FORMS INAPPLICABLE
OR WHICH WOULD PREVENT SUCH LENDER FROM DULY COMPLETING AND DELIVERING ANY SUCH
FORM WITH RESPECT TO IT AND SUCH LENDER SO ADVISES THE COMPANY AND THE US
ADMINISTRATIVE AGENT. SUCH LENDER SHALL CERTIFY (I) IN THE CASE OF A FORM 1001
OR 4224, THAT IT IS ENTITLED TO RECEIVE PAYMENTS UNDER THIS AGREEMENT WITHOUT
DEDUCTION OR WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES AND (II) IN
THE CASE OF A FORM W-8 OR W-9, THAT IT IS ENTITLED TO AN EXEMPTION FROM UNITED
STATES BACKUP WITHHOLDING TAX. EACH PERSON THAT SHALL BECOME A LENDER OR A
PARTICIPANT PURSUANT TO SUBSECTION 11.6 SHALL, UPON THE EFFECTIVENESS OF THE
RELATED TRANSFER, BE REQUIRED TO PROVIDE ALL OF THE FORMS AND STATEMENTS
REQUIRED PURSUANT TO THIS SUBSECTION, PROVIDED THAT IN THE CASE OF A PARTICIPANT
--------
SUCH PARTICIPANT SHALL FURNISH ALL SUCH REQUIRED FORMS AND STATEMENTS TO THE
LENDER FROM WHICH THE RELATED PARTICIPATION SHALL HAVE BEEN PURCHASED.
4.12 INDEMNITY. EACH BORROWER AGREES TO INDEMNIFY EACH LENDER
---------
AND TO HOLD EACH LENDER HARMLESS FROM ANY LOSS OR EXPENSE WHICH SUCH LENDER MAY
SUSTAIN OR INCUR AS A CONSEQUENCE OF (A) DEFAULT BY SUCH BORROWER IN MAKING A
BORROWING OF, CONVERSION INTO OR CONTINUATION OF EURODOLLAR LOANS 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 EURODOLLAR LOANS AFTER SUCH BORROWER HAS GIVEN A NOTICE THEREOF IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, (C) THE MAKING OF A PREPAYMENT
OF EURODOLLAR LOANS ON A DAY WHICH IS NOT THE LAST DAY OF AN INTEREST PERIOD
WITH RESPECT THERETO OR (D) REPAYMENT OF ANY BANKERS' ACCEPTANCE PRIOR TO ITS
MATURITY DATE. SUCH INDEMNIFICATION MAY INCLUDE AN AMOUNT EQUAL TO THE EXCESS,
IF ANY, OF (I) THE AMOUNT OF INTEREST WHICH WOULD HAVE ACCRUED ON THE AMOUNT SO
PREPAID, OR NOT SO BORROWED, CONVERTED OR CONTINUED, FOR THE PERIOD FROM THE
DATE OF SUCH PREPAYMENT OR OF SUCH FAILURE TO BORROW, CONVERT OR CONTINUE TO THE
LAST DAY OF SUCH INTEREST PERIOD (OR, IN THE CASE OF A FAILURE TO BORROW,
CONVERT OR CONTINUE, THE INTEREST PERIOD THAT WOULD HAVE COMMENCED ON THE DATE
OF SUCH FAILURE) IN EACH CASE AT THE APPLICABLE RATE OF INTEREST FOR SUCH LOANS
PROVIDED FOR HEREIN (EXCLUDING, HOWEVER, THE APPLICABLE MARGIN
57
INCLUDED THEREIN, IF ANY) OVER (II) THE AMOUNT OF INTEREST (AS REASONABLY
DETERMINED BY SUCH LENDER) WHICH WOULD HAVE ACCRUED TO SUCH LENDER ON SUCH
AMOUNT BY PLACING SUCH AMOUNT ON DEPOSIT FOR A COMPARABLE PERIOD WITH LEADING
BANKS IN THE INTERBANK EURODOLLAR MARKET. THIS COVENANT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS
PAYABLE HEREUNDER.
4.13 CHANGE OF LENDING OFFICE. EACH LENDER AGREES THAT IF IT MAKES
------------------------
ANY DEMAND FOR PAYMENT UNDER SUBSECTION 4.10 OR 4.11(A), OR IF ANY ADOPTION OR
CHANGE OF THE TYPE DESCRIBED IN SUBSECTION 4.9 SHALL OCCUR WITH RESPECT TO IT,
IT WILL USE REASONABLE EFFORTS (CONSISTENT WITH ITS INTERNAL POLICY AND LEGAL
AND REGULATORY RESTRICTIONS AND SO LONG AS SUCH EFFORTS WOULD NOT BE
DISADVANTAGEOUS TO IT, AS DETERMINED IN ITS SOLE DISCRETION) TO DESIGNATE A
DIFFERENT LENDING OFFICE IF THE MAKING OF SUCH A DESIGNATION WOULD REDUCE OR
OBVIATE THE NEED FOR THE COMPANY TO MAKE PAYMENTS UNDER SUBSECTION 4.10 OR
4.11(A), OR WOULD ELIMINATE OR REDUCE THE EFFECT OF ANY ADOPTION OR CHANGE
DESCRIBED IN SUBSECTION 4.9.
SECTION 5. REPRESENTATIONS AND WARRANTIES
TO INDUCE THE ADMINISTRATIVE AGENTS AND THE LENDERS TO ENTER INTO THIS
AGREEMENT AND TO MAKE THE LOANS AND ISSUE OR PARTICIPATE IN THE LETTERS OF
CREDIT, THE COMPANY HEREBY REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENTS
AND EACH LENDER THAT:
5.1 FINANCIAL CONDITION. THE CONSOLIDATED BALANCE SHEET OF THE
-------------------
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS AT DECEMBER 31, 1997 AND THE
RELATED CONSOLIDATED STATEMENTS OF INCOME AND RETAINED EARNINGS AND CHANGES IN
CASH FLOWS FOR THE FISCAL YEAR ENDED ON SUCH DATE, REPORTED ON BY XXXXXX
XXXXXXXX LLP, COPIES OF WHICH HAVE HERETOFORE BEEN FURNISHED TO EACH LENDER, ARE
COMPLETE AND CORRECT AND PRESENT FAIRLY IN ACCORDANCE WITH GAAP THE CONSOLIDATED
FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS AT SUCH
DATE, AND THE CONSOLIDATED RESULTS OF THEIR OPERATIONS AND THEIR CONSOLIDATED
CASH FLOWS FOR THE FISCAL YEAR THEN ENDED. THE UNAUDITED CONSOLIDATED BALANCE
SHEET OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS AT SEPTEMBER 30, 1998,
AND THE RELATED UNAUDITED CONSOLIDATED STATEMENTS OF INCOME AND RETAINED
EARNINGS AND CHANGES IN CASH FLOWS FOR THE THREE-MONTH PERIOD ENDED ON SUCH
DATE, CERTIFIED BY A RESPONSIBLE OFFICER, COPIES OF WHICH HAVE HERETOFORE BEEN
FURNISHED TO EACH LENDER, ARE COMPLETE AND CORRECT AND PRESENT FAIRLY IN
ACCORDANCE WITH GAAP THE CONSOLIDATED FINANCIAL POSITION OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES AS AT SUCH DATE, AND THE CONSOLIDATED RESULTS OF THEIR
OPERATIONS AND THEIR CONSOLIDATED CASH FLOWS FOR THE THREE-MONTH PERIOD THEN
ENDED (SUBJECT TO NORMAL YEAR-END AUDIT ADJUSTMENTS). ALL SUCH FINANCIAL
STATEMENTS, INCLUDING THE RELATED SCHEDULES AND NOTES THERETO, HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIODS
INVOLVED (EXCEPT AS APPROVED BY SUCH ACCOUNTANTS OR RESPONSIBLE OFFICER, AS THE
CASE
58
MAY BE, AND AS DISCLOSED THEREIN). NEITHER THE COMPANY NOR ANY OF ITS
CONSOLIDATED SUBSIDIARIES HAD, AT THE DATE OF THE MOST RECENT BALANCE SHEET
REFERRED TO ABOVE, ANY MATERIAL GUARANTEE OBLIGATION, CONTINGENT LIABILITY OR
LIABILITY FOR TAXES, OR ANY LONG-TERM LEASE OR UNUSUAL FORWARD OR LONG-TERM
COMMITMENT, INCLUDING, WITHOUT LIMITATION, ANY INTEREST RATE OR FOREIGN CURRENCY
SWAP OR EXCHANGE TRANSACTION, WHICH IS NOT REFLECTED IN THE FOREGOING STATEMENTS
OR IN THE NOTES THERETO. EXCEPT AS SET FORTH ON SCHEDULE 5.1, DURING THE PERIOD
FROM DECEMBER 31, 1997 TO AND INCLUDING THE DATE HEREOF THERE HAS BEEN NO SALE,
TRANSFER OR OTHER DISPOSITION BY THE COMPANY OR ANY OF ITS CONSOLIDATED
SUBSIDIARIES OF ANY MATERIAL PART OF ITS BUSINESS OR PROPERTY AND NO PURCHASE OR
OTHER ACQUISITION OF ANY BUSINESS OR PROPERTY (INCLUDING ANY CAPITAL STOCK OF
ANY OTHER PERSON) MATERIAL IN RELATION TO THE CONSOLIDATED FINANCIAL CONDITION
OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AT DECEMBER 31, 1997.
5.2 NO CHANGE. (A) EXCEPT AS SET FORTH ON SCHEDULE 5.2, SINCE
---------
DECEMBER 31, 1997 THERE HAS BEEN NO DEVELOPMENT OR EVENT WHICH HAS HAD OR COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, AND (B) EXCEPT AS
PERMITTED BY THE EXISTING CREDIT AGREEMENT, DURING THE PERIOD FROM DECEMBER 31,
1997 TO AND INCLUDING THE DATE HEREOF NO DIVIDENDS OR OTHER DISTRIBUTIONS HAVE
BEEN DECLARED, PAID OR MADE UPON THE CAPITAL STOCK OF THE COMPANY NOR HAS ANY OF
THE CAPITAL STOCK OF THE COMPANY BEEN REDEEMED, RETIRED, PURCHASED OR OTHERWISE
ACQUIRED FOR VALUE BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OTHER THAN IN
CONNECTION WITH THE STOCK RECAPITALIZATION.
5.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. EACH OF THE COMPANY
----------------------------------------
AND ITS SUBSIDIARIES (A) IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION OR FORMATION,
(B) HAS THE 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 AN EXTRAPROVINCIAL CORPORATION 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 (EACH OF WHICH
JURISDICTIONS ARE LISTED ON SCHEDULE 5.3), EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED COULD NOT HAVE A MATERIAL ADVERSE EFFECT AND (D) IS IN COMPLIANCE WITH
ALL REQUIREMENTS OF LAW EXCEPT TO THE EXTENT THAT THE FAILURE TO COMPLY
THEREWITH COULD NOT, IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
5.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. EACH OF
-------------------------------------------------------
THE COMPANY AND ITS SUBSIDIARIES HAS THE CORPORATE OR PARTNERSHIP POWER AND
AUTHORITY, AS APPLICABLE, AND THE LEGAL RIGHT, TO EXECUTE, DELIVER AND PERFORM
THE LOAN DOCUMENTS TO WHICH IT IS A PARTY AND, IN THE CASE OF EACH BORROWER, TO
BORROW HEREUNDER, AND EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS TAKEN ALL
NECESSARY CORPORATE OR PARTNERSHIP ACTION, AS APPLICABLE, TO AUTHORIZE THE
BORROWINGS ON THE TERMS AND CONDITIONS OF THIS
59
AGREEMENT AND ANY NOTES AND TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE
OF THE LOAN DOCUMENTS TO WHICH IT IS A PARTY. NO CONSENT OR AUTHORIZATION OF,
FILING WITH, NOTICE TO OR OTHER ACT BY OR IN RESPECT OF, ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER PERSON IS REQUIRED IN CONNECTION WITH THE BORROWINGS
HEREUNDER OR WITH THE EXECUTION, DELIVERY, PERFORMANCE, VALIDITY OR
ENFORCEABILITY OF THE LOAN DOCUMENTS TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS A PARTY. THIS AGREEMENT HAS BEEN, AND EACH OTHER LOAN DOCUMENT
TO WHICH IT IS A PARTY WILL BE, DULY EXECUTED AND DELIVERED ON BEHALF OF EACH
LOAN PARTY. THIS AGREEMENT CONSTITUTES, AND EACH OTHER LOAN DOCUMENT WHEN
EXECUTED AND DELIVERED WILL CONSTITUTE, A LEGAL, VALID AND BINDING OBLIGATION OF
EACH LOAN PARTY WHICH IS A PARTY THERETO ENFORCEABLE AGAINST SUCH LOAN PARTY IN
ACCORDANCE WITH ITS TERMS, EXCEPT TO THE EXTENT THAT ENFORCEABILITY THEREOF MAY
BE LIMITED BY BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION,
MORATORIUM AND OTHER SIMILAR LAWS RELATING TO OR AFFECTING CREDITORS' RIGHTS
GENERALLY, GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN
EQUITY OR AT LAW) AND AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
5.5 NO LEGAL BAR. THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
------------
LOAN DOCUMENTS TO WHICH EACH LOAN PARTY IS A PARTY, THE ISSUANCE OF LETTERS OF
CREDIT, THE BORROWINGS HEREUNDER AND THE USE OF THE PROCEEDS THEREOF WILL NOT
VIOLATE ANY REQUIREMENT OF LAW OR CONTRACTUAL OBLIGATION OF SUCH LOAN PARTY OR
OF ANY OF ITS SUBSIDIARIES AND WILL NOT RESULT IN, OR REQUIRE, THE CREATION OR
IMPOSITION OF ANY LIEN (EXCEPT PURSUANT TO THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY) ON ANY OF ITS OR THEIR RESPECTIVE PROPERTIES OR REVENUES PURSUANT TO ANY
SUCH REQUIREMENT OF LAW OR CONTRACTUAL OBLIGATION.
5.6 NO MATERIAL LITIGATION. NO LITIGATION, INVESTIGATION OR
----------------------
PROCEEDING OF OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY IS PENDING OR,
TO THE KNOWLEDGE OF THE BORROWERS, THREATENED BY OR AGAINST EITHER BORROWER OR
ANY OF ITS SUBSIDIARIES OR AGAINST ANY OF ITS OR THEIR RESPECTIVE PROPERTIES OR
REVENUES (A) WITH RESPECT TO ANY OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR (B) WHICH COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.7 NO DEFAULT. NEITHER BORROWER NOR ANY OF ITS SUBSIDIARIES IS IN
----------
DEFAULT UNDER OR WITH RESPECT TO ANY OF ITS CONTRACTUAL OBLIGATIONS IN ANY
RESPECT WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
5.8 OWNERSHIP OF PROPERTY; LIENS. ALL REAL PROPERTY OWNED OR LEASED
----------------------------
BY EITHER BORROWER OR ANY OF ITS SUBSIDIARIES AND THE NATURE OF THE INTEREST
THEREIN, IS CORRECTLY SET FORTH ON SCHEDULE 5.8. THE COMPANY AND ITS
SUBSIDIARIES HAVE GOOD AND VALID TITLE TO ALL REAL PROPERTY OWNED BY THEM AND
GOOD AND MERCHANTABLE TITLE TO ALL OTHER PROPERTIES OWNED BY THEM, IN EACH CASE,
INCLUDING ALL PROPERTY REFLECTED IN THE BALANCE SHEETS REFERRED TO IN SUBSECTION
5.1 (EXCEPT AS SOLD OR OTHERWISE DISPOSED OF AS PERMITTED
60
BY THIS AGREEMENT), FREE AND CLEAR OF ALL LIENS, OTHER THAN (I) AS REFERRED TO
IN SUCH BALANCE SHEETS OR IN THE NOTES THERETO OR (II) AS OTHERWISE PERMITTED BY
SUBSECTION 8.1.
5.9 INTELLECTUAL PROPERTY. THE COMPANY AND EACH OF ITS SUBSIDIARIES
---------------------
OWNS, OR IS LICENSED TO USE, ALL TRADEMARKS, TRADENAMES, COPYRIGHTS, TECHNOLOGY,
KNOW-HOW AND PROCESSES NECESSARY FOR THE CONDUCT OF ITS BUSINESS AS CURRENTLY
CONDUCTED EXCEPT FOR THOSE THE FAILURE TO OWN OR LICENSE WHICH COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT (THE "INTELLECTUAL
------------
PROPERTY"). NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS ANY KNOWLEDGE
--------
THAT ANY CLAIM HAS BEEN ASSERTED AND IS PENDING BY ANY PERSON CHALLENGING OR
QUESTIONING THE USE OF ANY SUCH INTELLECTUAL PROPERTY OR THE VALIDITY OR
EFFECTIVENESS OF ANY SUCH INTELLECTUAL PROPERTY, NOR DOES THE COMPANY KNOW OF
ANY VALID BASIS FOR ANY SUCH CLAIM. THE USE OF SUCH INTELLECTUAL PROPERTY BY
THE COMPANY AND ITS SUBSIDIARIES DOES NOT INFRINGE ON THE RIGHTS OF ANY PERSON,
EXCEPT FOR SUCH CLAIMS AND INFRINGEMENTS THAT, IN THE AGGREGATE, COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.10 NO BURDENSOME RESTRICTIONS. NO REQUIREMENT OF LAW OR
--------------------------
CONTRACTUAL OBLIGATION OF EITHER BORROWER OR ANY OF ITS SUBSIDIARIES COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.11 TAXES. EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS FILED OR
-----
CAUSED TO BE FILED ALL TAX RETURNS WHICH, TO THE KNOWLEDGE OF THE COMPANY, ARE
REQUIRED TO BE FILED AND HAS PAID ALL TAXES SHOWN TO BE DUE AND PAYABLE ON SAID
RETURNS OR ON ANY ASSESSMENTS MADE AGAINST IT OR ANY OF ITS PROPERTY AND ALL
OTHER TAXES, FEES OR OTHER CHARGES IMPOSED ON IT OR ANY OF ITS PROPERTY BY ANY
GOVERNMENTAL AUTHORITY (OTHER THAN AS SET FORTH ON SCHEDULE 5.11 AND ANY THE
AMOUNT OR VALIDITY OF WHICH ARE CURRENTLY BEING CONTESTED IN GOOD FAITH BY
APPROPRIATE PROCEEDINGS AND WITH RESPECT TO WHICH RESERVES IN CONFORMITY WITH
GAAP HAVE BEEN PROVIDED ON THE BOOKS OF THE COMPANY OR ITS SUBSIDIARIES, AS THE
CASE MAY BE); NO TAX LIEN HAS BEEN FILED, AND, TO THE KNOWLEDGE OF THE COMPANY,
NO CLAIM IS BEING ASSERTED, WITH RESPECT TO ANY SUCH TAX, FEE OR OTHER CHARGE.
5.12 MARGIN REGULATIONS. NO PART OF THE PROCEEDS OF ANY LOANS WILL
------------------
BE USED TO PURCHASE OR CARRY ANY MARGIN STOCK (AS DEFINED IN REGULATION G, T, U
OR X) OR TO EXTEND CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING ANY MARGIN
STOCK. NEITHER THE MAKING OF ANY LOAN, THE CREATION OF ANY BANKERS ACCEPTANCE
OR THE PURCHASE OF ANY DRAFT NOR THE USE OF THE PROCEEDS THEREOF WILL VIOLATE OR
BE INCONSISTENT WITH THE PROVISIONS OF REGULATION G, T, U OR X OF THE BOARD OF
GOVERNORS OF THE FEDERAL RESERVE SYSTEM.
5.13 ERISA; CANADIAN PENSION PLANS. (A) NEITHER A REPORTABLE EVENT
-----------------------------
NOR AN "ACCUMULATED FUNDING DEFICIENCY" (WITHIN THE MEANING OF SECTION 412 OF
THE CODE OR SECTION 302 OF ERISA) HAS OCCURRED DURING THE FIVE-YEAR PERIOD PRIOR
TO THE DATE ON WHICH THIS REPRESENTATION IS MADE OR DEEMED MADE WITH RESPECT TO
ANY PLAN, AND EACH PLAN HAS COMPLIED IN ALL MATERIAL RESPECTS WITH THE
APPLICABLE
61
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 THE COMPANY NOR ANY COMMONLY CONTROLLED ENTITY
HAS HAD A COMPLETE OR PARTIAL WITHDRAWAL FROM ANY MULTIEMPLOYER PLAN, AND
NEITHER THE COMPANY NOR ANY COMMONLY CONTROLLED ENTITY WOULD BECOME SUBJECT TO
ANY LIABILITY UNDER ERISA IF THE COMPANY OR ANY SUCH COMMONLY CONTROLLED ENTITY
WERE TO WITHDRAW COMPLETELY FROM ALL MULTIEMPLOYER PLANS IN WHICH IT
PARTICIPATES AS OF THE VALUATION DATE MOST CLOSELY PRECEDING THE DATE ON WHICH
THIS REPRESENTATION IS MADE OR DEEMED MADE. NO SUCH MULTIEMPLOYER PLAN IS IN
REORGANIZATION OR INSOLVENT.
(B) EACH CANADIAN PENSION PLAN IS IN SUBSTANTIAL COMPLIANCE WITH ALL
APPLICABLE PENSION BENEFITS AND TAX LAWS; NO CANADIAN PENSION PLAN HAS ANY
UNFUNDED LIABILITIES (EITHER ON A "GOING CONCERN" OR ON A "WINDING UP" BASIS AND
DETERMINED IN ACCORDANCE WITH ALL APPLICABLE LAWS AND USING ASSUMPTIONS AND
METHODS THAT ARE APPROPRIATE IN THE CIRCUMSTANCES AND IN ACCORDANCE WITH
GENERALLY ACCEPTED ACTUARIAL PRINCIPLES AND PRACTICES IN CANADA), ALL
CONTRIBUTIONS (INCLUDING ANY SPECIAL PAYMENTS TO AMORTIZE ANY UNFUNDED
LIABILITIES) REQUIRED TO BE MADE IN ACCORDANCE WITH ALL APPLICABLE LAWS AND THE
TERMS OF EACH CANADIAN PENSION PLAN HAVE BEEN MADE; NO EVENT HAS OCCURRED AND NO
CONDITION EXISTS WITH RESPECT TO ANY CANADIAN PENSION PLAN THAT HAS RESULTED OR
COULD RESULT IN ANY CANADIAN PENSION PLAN BEING ORDERED OR REQUIRED TO BE WOUND
UP IN WHOLE OR IN PART PURSUANT TO ANY APPLICABLE PENSION BENEFITS LAWS OR
HAVING ITS REGISTRATION REVOKED OR REFUSED FOR THE PURPOSES OF ANY APPLICABLE
PENSION BENEFITS OR TAX LAWS OR BEING PLACED UNDER THE ADMINISTRATION OF ANY
RELEVANT PENSION BENEFITS REGULATORY AUTHORITY OR BEING REQUIRED TO PAY ANY
TAXES OR PENALTIES UNDER ANY APPLICABLE PENSION BENEFITS OR TAX LAWS, OTHER THAN
EVENTS OR CONDITIONS THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT
62
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; NO ORDER HAS BEEN MADE
AND NO NOTICE HAS BEEN GIVEN PURSUANT TO ANY APPLICABLE PENSION BENEFITS OR TAX
LAWS IN RESPECT OF ANY CANADIAN PENSION PLAN REQUIRING (OR PROPOSING TO REQUIRE)
ANY PERSON TO TAKE OR TO REFRAIN FROM TAKING ANY ACTION IN RESPECT THEREOF OR
THAT THERE HAS (OR THERE ARE CIRCUMSTANCES THAT INDICATE THAT THERE HAS) BEEN A
CONTRAVENTION OF ANY SUCH APPLICABLE LAWS, OTHER THAN IN RESPECT OF MATTERS
THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT; NO EVENT HAS OCCURRED AND NO CONDITION EXISTS WHICH
HAS RESULTED OR COULD RESULT IN THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY
BEING REQUIRED TO PAY, REPAY OR REFUND ANY AMOUNT (OTHER THAN CONTRIBUTIONS
REQUIRED TO BE MADE OR EXPENSES REQUIRED TO BE PAID IN THE ORDINARY COURSE) TO
OR ON ACCOUNT OF ANY CANADIAN PENSION PLAN OR A CURRENT OR FORMER MEMBER
THEREOF, OTHER THAN EVENTS OR CONDITIONS THAT, INDIVIDUALLY OR IN THE AGGREGATE,
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; AND NO EVENT
HAS OCCURRED AND NO CONDITION EXISTS THAT HAS RESULTED OR COULD RESULT IN A
PAYMENT BEING MADE OUT OF A GUARANTEE FUND ESTABLISHED UNDER ANY APPLICABLE
PENSION BENEFITS LAWS IN RESPECT OF A CANADIAN PENSION PLAN.
(C) WITH RESPECT TO ANY PENSION, RETIREMENT OR OTHER DEFERRED
COMPENSATION PLAN MAINTAINED BY THE CANADIAN BORROWER OR ANY OF ITS SUBSIDIARIES
WHICH IS NOT A CANADIAN PENSION PLAN, ALL REQUIRED CONTRIBUTIONS HAVE BEEN MADE,
AND THERE ARE NO UNFUNDED LIABILITIES IN RESPECT OF SUCH PLANS (EITHER ON A
"GOING CONCERN" OR ON A "WINDING UP'" BASIS AND DETERMINED IN ACCORDANCE WITH
ALL APPLICABLE LAWS AND USING ASSUMPTIONS AND METHODS THAT ARE APPROPRIATE IN
THE CIRCUMSTANCES AND IN ACCORDANCE WITH GENERALLY ACCEPTED ACTUARIAL PRINCIPLES
AND PRACTICES IN CANADA).
5.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. 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. NO LOAN
PARTY IS SUBJECT TO REGULATION UNDER ANY FEDERAL OR STATE STATUTE OR REGULATION
(OTHER THAN REGULATION X OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE
SYSTEM) WHICH LIMITS ITS ABILITY TO INCUR INDEBTEDNESS.
5.15 ENVIRONMENTAL MATTERS. (A) EXCEPT AS SET FORTH ON SCHEDULE
---------------------
5.15: THE COMPANY AND ITS SUBSIDIARIES ARE IN COMPLIANCE IN ALL MATERIAL
RESPECTS WITH, AND ON THE CLOSING DATE AND ON THE DATE OF EACH LOAN WILL BE IN
COMPLIANCE IN ALL MATERIAL RESPECTS WITH, ALL APPLICABLE ENVIRONMENTAL LAWS; TO
THE BEST KNOWLEDGE OF THE COMPANY, THERE ARE NO PAST, PENDING OR THREATENED
ENVIRONMENTAL CLAIMS AGAINST THE COMPANY OR ANY OF ITS SUBSIDIARIES OR ANY REAL
PROPERTY OWNED OR OPERATED BY SUCH PERSONS; THERE ARE NO FACTS, CIRCUMSTANCES,
CONDITIONS OR OCCURRENCES ON ANY REAL PROPERTY OWNED OR OPERATED AT ANY TIME BY
THE COMPANY OR ANY OF ITS SUBSIDIARIES THAT COULD REASONABLY BE EXPECTED (I) TO
FORM THE BASIS OF AN ENVIRONMENTAL CLAIM AGAINST THE COMPANY OR ANY OF ITS
SUBSIDIARIES WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT, OR (II) IN THE CASE OF REAL PROPERTY OWNED OR OPERATED BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES, TO CAUSE SUCH REAL PROPERTY TO BE SUBJECT TO ANY
MATERIAL RESTRICTIONS ON THE OWNERSHIP, OCCUPANCY, USE OR TRANSFERABILITY OF
SUCH REAL PROPERTY UNDER ANY ENVIRONMENTAL LAW.
(B) THE COMPANY AND ITS SUBSIDIARIES HAVE NOT AT ANY TIME GENERATED,
USED, TREATED OR STORED HAZARDOUS MATERIALS ON, OR TRANSPORTED HAZARDOUS
MATERIALS TO OR FROM, ANY REAL PROPERTY OWNED OR OPERATED AT ANY TIME BY THE
COMPANY OR ANY OF ITS SUBSIDIARIES, EXCEPT FOR (I) HAZARDOUS MATERIALS USED IN
THE ORDINARY COURSE OF SUCH PERSON'S BUSINESS AND (II) PETROLEUM PRODUCTS
CONTAINED IN UNDERGROUND STORAGE TANKS AT THE CANADIAN BORROWER'S FACILITY IN
SAINT XXXXXXX, QUEBEC, IN EACH CASE, IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH
ALL ENVIRONMENTAL LAWS. THE COMPANY AND ITS SUBSIDIARIES HAVE NOT AT ANY
63
TIME RELEASED OR DISPOSED OF HAZARDOUS MATERIALS ON OR FROM ANY REAL PROPERTY
OWNED OR OPERATED AT ANY TIME BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, EXCEPT
IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ENVIRONMENTAL LAWS.
(C) EXCEPT AS SET FORTH ON SCHEDULE 5.15, THERE ARE NO UNDERGROUND
STORAGE TANKS LOCATED ON ANY REAL PROPERTY OWNED OR OPERATED BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES.
(D) EXCEPT FOR ASBESTOS AND ASBESTOS-CONTAINING MATERIALS LOCATED AT
THE TEXAS AVENUE PROPERTY AND ALSO IN XXXXXX ST., MONTREAL, VILLE XXXXX,
MONTREAL, ST. XXXXXX, ST. XXXXXXX, XXXXXXXXX ROAD, BRAMPTON, WOLFDALE ROAD,
MISSISSAUGA, CORONATION DRIVE, SCARBOROUGH, 27TH ST. N.E., CALGARY, ALL OF WHICH
ARE IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL ENVIRONMENTAL LAWS, TO THE
BEST OF THE COMPANY'S KNOWLEDGE THERE IS NO FRIABLE ASBESTOS IN ANY FORM PRESENT
OR SUSPECTED TO BE PRESENT AT ANY REAL PROPERTY OWNED OR OPERATED BY THE COMPANY
OR ANY OF ITS SUBSIDIARIES.
5.16 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.
5.17 CAPITALIZATION. ON THE CLOSING DATE, THE AUTHORIZED CAPITAL
--------------
STOCK OF THE COMPANY WILL CONSIST OF (I) 80,000,000 SHARES OF COMMON STOCK,
US$.01 PAR VALUE PER SHARE, OF WHICH APPROXIMATELY 17,050,000 SHARES WILL BE
OUTSTANDING, AND (II) 10,000,000 SHARES OF PREFERRED STOCK, US$.01 PAR VALUE PER
SHARE (THE "PREFERRED STOCK"), NONE OF WHICH SHARES WILL BE OUTSTANDING OTHER
---------------
THAN PERMITTED PREFERRED STOCK. ON THE CLOSING DATE, THE AUTHORIZED CAPITAL
STOCK OF THE CANADIAN BORROWER WILL CONSIST OF 10,000 COMMON SHARES, WITHOUT
NOMINAL OR PAR VALUE, OF WHICH 1,000 WILL BE ISSUED AND OUTSTANDING. ALL OF
SUCH OUTSTANDING SHARES WILL HAVE BEEN DULY AND VALIDLY ISSUED, WILL BE FULLY
PAID AND NONASSESSABLE AND WILL BE FREE OF PREEMPTIVE RIGHTS.
5.18 SUBSIDIARIES. SCHEDULE 5.18 CORRECTLY SETS FORTH, AS OF THE
------------
ORIGINAL CLOSING DATE, THE PERCENTAGE OWNERSHIP (DIRECT AND INDIRECT) OF THE
COMPANY IN EACH CLASS OF CAPITAL STOCK OR PARTNERSHIP INTEREST, AS THE CASE MAY
BE, OF EACH OF ITS SUBSIDIARIES AND ALSO IDENTIFIES THE DIRECT OWNER THEREOF.
5.19 RESTRICTIONS ON OR RELATING TO SUBSIDIARIES. THERE DOES NOT
-------------------------------------------
EXIST ANY ENCUMBRANCE OR RESTRICTION ON THE ABILITY OF (I) ANY SUBSIDIARY OF THE
COMPANY TO PAY DIVIDENDS OR MAKE ANY OTHER DISTRIBUTIONS ON ITS CAPITAL STOCK OR
ANY OTHER INTEREST OR PARTICIPATION IN ITS PROFITS OWNED BY THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY, OR TO PAY ANY INDEBTEDNESS OWED TO THE COMPANY OR A
SUBSIDIARY OF THE COMPANY, (II) ANY SUBSIDIARY OF THE COMPANY TO MAKE LOANS OR
ADVANCES TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (III) THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY TO TRANSFER ANY OF ITS PROPERTIES OR ASSETS TO THE
COMPANY OR ANY SUBSIDIARY OF THE COMPANY, EXCEPT, IN EACH CASE, FOR SUCH
ENCUMBRANCES OR RESTRICTIONS EXISTING UNDER OR BY REASON OF (W) APPLICABLE LAW,
(X) THIS AGREEMENT
64
OR THE OTHER LOAN DOCUMENTS, (Y) CUSTOMARY PROVISIONS RESTRICTING SUBLETTING OR
ASSIGNMENT OF ANY LEASE GOVERNING A LEASEHOLD INTEREST OR LEASES OF EQUIPMENT OF
THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY AND (Z) THE 1996 SENIOR
SUBORDINATED NOTES, THE 1996 SENIOR SUBORDINATED NOTES INDENTURE, THE 1997
SENIOR SUBORDINATED NOTES AND THE 1997 SENIOR SUBORDINATED NOTES INDENTURE.
5.20 SUBCHAPTER S STATUS. FROM ITS INCORPORATION IN 1990 UNTIL JUNE
-------------------
29, 1997, THE COMPANY HAD VALIDLY ELECTED TO BE TREATED AS A SUBCHAPTER S
CORPORATION WITHIN THE MEANING OF SECTION 1361 OF THE CODE. THE COMPANY WAS AT
ALL TIMES FROM MARCH 1, 1990 UNTIL JUNE 29, 1997 QUALIFIED TO BE TREATED AS A
SUBCHAPTER S CORPORATION WITHIN THE MEANING OF SECTION 1361 OF THE CODE.
5.21 LEASES. WITH RESPECT TO ANY LEASE OR RENTAL AGREEMENT REGARDING
------
ANY REAL PROPERTY TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS A PARTY,
(I) SUCH LEASE OR RENTAL AGREEMENT IS IN FULL FORCE AND EFFECT, (II) THE COMPANY
AND ITS SUBSIDIARIES HAVE COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF THE
TERMS OF SUCH LEASE OR RENTAL AGREEMENT, (III) THERE EXISTS NO EVENT OF DEFAULT
OR TO THE BEST OF THE COMPANY'S KNOWLEDGE, ANY EVENT, ACT OR CONDITION WHICH
WITH NOTICE OR LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE AN EVENT OF DEFAULT
THEREUNDER BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR TO THE BEST KNOWLEDGE
OF THE COMPANY, THE LANDLORD THEREUNDER AND (IV) THE COMPANY OR ITS SUBSIDIARIES
AS THE CASE MAY BE, IS IN POSSESSION OF THE PREMISES DEMISED UNDER ALL SUCH
LEASES AND RENTAL AGREEMENTS AND IS CONDUCTING BUSINESS ON SUCH PREMISES.
5.22 RELATED AGREEMENTS. THE COMPANY HAS DELIVERED TO THE US
------------------
ADMINISTRATIVE AGENT TRUE AND CORRECT COPIES OF:
(A) ANY AGREEMENT EVIDENCING OR RELATING TO MATERIAL INDEBTEDNESS OF
THE COMPANY OR ANY OF ITS SUBSIDIARIES (EXCLUDING THE LOANS) WHICH SHALL
REMAIN OUTSTANDING ON AND AFTER THE CLOSING DATE, INCLUDING THE 1996 SENIOR
SUBORDINATED NOTES INDENTURE, THE 1997 SENIOR SUBORDINATED NOTES INDENTURE
AND THE 1998 SENIOR NOTES INDENTURE;
(B) ANY TAX SHARING AGREEMENTS;
(C) THE AFFILIATE CONTRACTS; AND
(D) THE TAX INDEMNITY AGREEMENT.
SECTION 6. CONDITIONS PRECEDENT
6.1 CONDITIONS TO EFFECTIVENESS. THIS AGREEMENT AND THE AGREEMENT OF
---------------------------
EACH LENDER TO MAKE EXTENSIONS OF CREDIT HEREUNDER SHALL NOT BECOME EFFECTIVE
UNTIL THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN SATISFIED ON OR BEFORE
FEBRUARY 26, 1999:
(A) LOAN DOCUMENTS. THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
--------------
(I) THIS AGREEMENT, EXECUTED AND DELIVERED BY A
65
DULY AUTHORIZED OFFICER OF EACH BORROWER, WITH A COUNTERPART FOR EACH
LENDER, AND BY A DULY AUTHORIZED OFFICER OF EACH OF THE REQUIRED LENDERS
(INCLUDING, WITHOUT LIMITATION, CIBC), (II) ANY NOTES REQUESTED BY THE
LENDERS, EACH EXECUTED AND DELIVERED BY A DULY AUTHORIZED OFFICER OF THE
RELEVANT BORROWER AND (III) A CONSENT TO THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT, EXECUTED AND DELIVERED BY A DULY AUTHORIZED
OFFICER OF EACH PARTY TO THE US GLOBAL GUARANTEE AND SECURITY AGREEMENT
(OTHER THAN THE US ADMINISTRATIVE AGENT), WITH A COUNTERPART OR A CONFORMED
COPY FOR EACH LENDER. EACH NOTE WHICH SHALL BE DELIVERED HEREUNDER AT THE
REQUEST OF A LENDER WHICH IS THE HOLDER OF A NOTE ISSUED PURSUANT TO THE
EXISTING CREDIT AGREEMENT SHALL BE DEEMED ISSUED IN REPLACEMENT OF AND
SUBSTITUTION FOR, AND NOT AS PAYMENT FOR, SUCH LATTER NOTE.
(B) EXISTING CREDIT AGREEMENT. ALL LOANS, ALL INTEREST THEREON AND
-------------------------
ALL COMMITMENT AND OTHER FEES PAYABLE UNDER, AND IN RESPECT OF, THE
EXISTING CREDIT AGREEMENT SHALL HAVE BEEN REPAID OR PAID, AS THE CASE MAY
BE, IN FULL.
(C) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. THE US ADMINISTRATIVE
-----------------------------------------
AGENT SHALL HAVE RECEIVED, WITH A COUNTERPART FOR EACH LENDER, A COPY OF
THE RESOLUTIONS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE US
ADMINISTRATIVE AGENT, OF THE BOARDS OF DIRECTORS OF EACH OF THE LOAN
PARTIES AUTHORIZING (I) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY AND (II) THE
BORROWINGS CONTEMPLATED HEREUNDER, CERTIFIED BY ITS RESPECTIVE SECRETARY OR
AN ASSISTANT SECRETARY AS OF THE CLOSING DATE, EACH OF WHICH CERTIFICATES
SHALL BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE US
ADMINISTRATIVE AGENT AND SHALL STATE THAT THE RESOLUTIONS THEREBY CERTIFIED
HAVE NOT BEEN AMENDED, MODIFIED, REVOKED OR RESCINDED.
(D) AMENDMENT FEE. THE ADMINISTRATIVE AGENTS SHALL HAVE RECEIVED
-------------
FROM THE BORROWERS AMENDMENT FEES PAYABLE FOR THE ACCOUNT OF THE US LENDERS
IN THE AMOUNT OF 1/4TH OF 1% OF THE AGGREGATE AMOUNT OF THE US COMMITMENT
AND AMENDMENT FEES PAYABLE FOR THE ACCOUNT OF THE CANADIAN LENDERS IN THE
AMOUNT OF 1/4TH OF 1% OF THE AGGREGATE AMOUNT OF THE CANADIAN COMMITMENT.
6.2 CONDITIONS TO INITIAL EXTENSION OF CREDIT. THE AGREEMENT OF EACH
-----------------------------------------
LENDER TO MAKE THE INITIAL EXTENSION OF CREDIT REQUESTED TO BE MADE BY IT
HEREUNDER IS SUBJECT TO THE SATISFACTION, IMMEDIATELY PRIOR TO OR CONCURRENTLY
WITH THE MAKING OF SUCH EXTENSION OF CREDIT ON THE INITIAL BORROWING DATE, OF
THE FOLLOWING CONDITIONS PRECEDENT:
(A) LEVERAGE RATIO CERTIFICATE. THE US ADMINISTRATIVE AGENT SHALL
--------------------------
HAVE RECEIVED, WITH A COUNTERPART FOR EACH LENDER, A CERTIFICATE OF THE
COMPANY, DATED THE INITIAL BORROWING DATE, STATING THAT AFTER GIVING EFFECT
TO ALL TRANSACTIONS AND
66
BORROWINGS ON THE INITIAL BORROWING DATE, THE LEVERAGE RATIO ON THE INITIAL
BORROWING DATE IS NOT GREATER THAN 6.50 TO 1.00.
(B) BORROWING CERTIFICATE. THE RELEVANT ADMINISTRATIVE AGENT SHALL
---------------------
HAVE RECEIVED, WITH A COUNTERPART FOR EACH LENDER, A CERTIFICATE OF THE
RELEVANT BORROWER, DATED THE INITIAL BORROWING DATE, SUBSTANTIALLY IN THE
FORM OF EXHIBIT C-1 AND EXHIBIT C-2, RESPECTIVELY, WITH APPROPRIATE
INSERTIONS AND ATTACHMENTS, SATISFACTORY IN FORM AND SUBSTANCE TO THE
RELEVANT ADMINISTRATIVE AGENT, EXECUTED BY THE PRESIDENT OR ANY VICE
PRESIDENT AND THE SECRETARY OR ANY ASSISTANT SECRETARY OF THE RELEVANT
BORROWER.
(C) LEGAL OPINIONS. THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED,
--------------
WITH A COUNTERPART FOR EACH LENDER, THE FOLLOWING EXECUTED LEGAL OPINIONS:
(I) THE EXECUTED LEGAL OPINION OF COZEN AND X'XXXXXX,
COUNSEL TO THE BORROWERS, SUBSTANTIALLY IN THE FORM OF EXHIBIT F-1;
AND
(II) THE EXECUTED LEGAL OPINION OF BLAKE, XXXXXXX &
XXXXXXX, CANADIAN COUNSEL TO THE CANADIAN BORROWER, SUBSTANTIALLY IN
THE FORM OF EXHIBIT F-2.
(D) ACTIONS TO PERFECT LIENS. THE US ADMINISTRATIVE AGENT SHALL HAVE
------------------------
RECEIVED EVIDENCE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO IT THAT
ALL FILINGS, RECORDINGS, REGISTRATIONS AND OTHER ACTIONS, INCLUDING,
WITHOUT LIMITATION, THE FILING OF DULY EXECUTED FINANCING STATEMENTS ON
FORM UCC-1, PPSA FORM 1-C OR THE APPROPRIATE EQUIVALENT THEREOF, NECESSARY
OR, IN THE OPINION OF THE US ADMINISTRATIVE AGENT, DESIRABLE TO PERFECT THE
LIENS CREATED BY THE SECURITY DOCUMENTS SHALL HAVE BEEN COMPLETED OR THAT
ALL SUCH FINANCING STATEMENTS AND OTHER DOCUMENTS WITH RESPECT TO SUCH
FILINGS, RECORDINGS, REGISTRATIONS AND OTHER ACTIONS SHALL HAVE BEEN
DELIVERED TO THE APPLICABLE ADMINISTRATIVE AGENT.
6.3 ADDITIONAL CONDITIONS FOR ACQUISITION LOANS. THE AGREEMENT OF
-------------------------------------------
EACH LENDER TO MAKE ANY ACQUISITION LOAN REQUESTED TO BE MADE BY IT ON ANY
BORROWING DATE IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A) ACQUISITION DOCUMENTS. THE US ADMINISTRATIVE AGENT SHALL HAVE
---------------------
RECEIVED, PRIOR TO THE PROPOSED BORROWING DATE FOR SUCH ACQUISITION LOAN,
TRUE AND CORRECT COPIES, CERTIFIED AS TO AUTHENTICITY BY THE RELEVANT
BORROWER, OF EACH ACQUISITION DOCUMENT (UNLESS REQUESTED BY THE US
ADMINISTRATIVE AGENT, WITHOUT EXHIBITS) (OR THE MOST RECENT FORM THEREOF)
PURSUANT TO WHICH THE PERMITTED ACQUISITION FINANCED WITH SUCH ACQUISITION
LOAN (THE "RELEVANT PERMITTED ACQUISITION") IS TO BE CONSUMMATED, AND SUCH
------------------------------
OTHER DOCUMENTS OR INSTRUMENTS AS MAY BE REASONABLY REQUESTED BY THE US
ADMINISTRATIVE AGENT, INCLUDING, WITHOUT LIMITATION, A COPY OF ANY DEBT,
INSTRUMENT,
67
SECURITY AGREEMENT OR OTHER MATERIAL CONTRACT TO WHICH SUCH BORROWER OR ITS
SUBSIDIARIES MAY BE A PARTY UPON THE CONSUMMATION OF SUCH RELEVANT
PERMITTED ACQUISITION. THE RELEVANT PERMITTED ACQUISITION SHALL HAVE BEEN
(OR SHALL CONCURRENTLY BE) CONSUMMATED IN ACCORDANCE WITH SUCH AGREEMENTS
OR AN AGREEMENT SUBSTANTIALLY SIMILAR TO THE FORM PRESENTED TO THE US
ADMINISTRATIVE AGENT.
(B) PRO FORMA COMPLIANCE. THE COMPANY SHALL BE IN COMPLIANCE, ON A
--------------------
PRO FORMA BASIS AFTER GIVING EFFECT TO THE RELEVANT PERMITTED ACQUISITION,
WITH THE COVENANTS CONTAINED IN SUBSECTION 8.10 RECOMPUTED AS AT THE LAST
DAY OF THE MOST RECENTLY ENDED CALENDAR MONTH OF THE COMPANY FOR WHICH
FINANCIAL STATEMENTS SHALL HAVE BEEN DELIVERED TO THE LENDERS PURSUANT TO
SUBSECTION 7.1(A) OR (B) AS IF SUCH RELEVANT PERMITTED ACQUISITION HAD
OCCURRED ON THE FIRST DAY OF EACH RELEVANT PERIOD FOR TESTING SUCH
COMPLIANCE, AND THE BORROWER SHALL HAVE DELIVERED TO THE US ADMINISTRATIVE
AGENT A CERTIFICATE OF A RESPONSIBLE OFFICER TO SUCH EFFECT, TOGETHER WITH
ALL RELEVANT FINANCIAL INFORMATION FOR SUCH SUBSIDIARY OR ASSETS, AND,
AFTER GIVING EFFECT TO SUCH TRANSACTION, ANY ACQUIRED OR NEWLY FORMED
SUBSIDIARY SHALL NOT BE LIABLE FOR ANY INDEBTEDNESS (EXCEPT FOR
INDEBTEDNESS PERMITTED BY SUBSECTION 8.4).
(C) CORPORATE DOCUMENTS. THE US ADMINISTRATIVE AGENT SHALL HAVE
-------------------
RECEIVED TRUE AND COMPLETE COPIES OF THE CERTIFICATE OF INCORPORATION AND
BY-LAWS OF ANY NEW SUBSIDIARY EXECUTING ANY LOAN DOCUMENT TO BE DELIVERED
ON SUCH BORROWING DATE, CERTIFIED AS OF SUCH BORROWING DATE AS COMPLETE AND
CORRECT COPIES THEREOF BY THE SECRETARY OR AN ASSISTANT SECRETARY OF SUCH
NEW SUBSIDIARY.
(D) LITIGATION. NO LITIGATION, INVESTIGATION, INJUNCTION OR
----------
RESTRAINING ORDER SHALL BE PENDING, ENTERED OR THREATENED (INCLUDING ANY
PROPOSED STATUTE, RULE OR REGULATION) IN RESPECT OF THE RELEVANT PERMITTED
ACQUISITION WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
(E) FILINGS. ALL FILINGS AND OTHER ACTIONS REQUIRED TO CREATE AND
-------
PERFECT A LIEN IN FAVOR OF THE RELEVANT ADMINISTRATIVE AGENT FOR THE
BENEFIT OF THE RELEVANT LENDERS IN ALL PROPERTY TO BE ACQUIRED PURSUANT TO
THE RELEVANT PERMITTED ACQUISITION SHALL HAVE BEEN DULY MADE OR TAKEN OR
ALL NECESSARY FINANCING STATEMENTS AND OTHER DOCUMENTS WITH RESPECT TO SUCH
FILING AND OTHER ACTIONS SHALL HAVE BEEN DELIVERED TO THE RELEVANT
ADMINISTRATIVE AGENT, AND ALL SUCH PROPERTY SHALL BE FREE AND CLEAR OF
OTHER LIENS EXCEPT LIENS PERMITTED UNDER THE LOAN DOCUMENTS; PROVIDED,
--------
HOWEVER, THAT NO SUCH LIENS SHALL BE GRANTED WITH RESPECT TO ANY REAL
-------
PROPERTY ACQUIRED IN A PERMITTED ACQUISITION WITH RESPECT TO WHICH A LIEN
PERMITTED BY SUBSECTION 8.1(L) EXISTS AND NO MORTGAGES NEED TO BE FILED
EXCEPT AS REQUIRED BY SUBSECTION 7.14.
68
(F) LIEN SEARCHES. THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
-------------
COPIES OF THE RESULTS OF ANY SEARCH CONDUCTED IN CONNECTION WITH THE
RELEVANT PERMITTED ACQUISITION ON BEHALF OF OR AT THE REQUEST OF ANY LOAN
PARTY FOR ANY UNIFORM COMMERCIAL CODE, JUDGMENT, TAX LIEN OR PPSA FILINGS,
WHICH MAY HAVE BEEN FILED WITH RESPECT TO PERSONAL PROPERTY WHICH IS TO BE
ACQUIRED (OR WHICH IS OWNED BY ANY PERSON TO BE ACQUIRED) IN CONNECTION
WITH SUCH PERMITTED ACQUISITION.
(G) PLEDGED STOCK; STOCK POWERS. THE RELEVANT ADMINISTRATIVE AGENT
---------------------------
SHALL HAVE RECEIVED THE CERTIFICATES REPRESENTING ANY ADDITIONAL SHARES OF
CAPITAL STOCK TO BE PLEDGED PURSUANT TO THE SECURITY DOCUMENTS IN
CONNECTION WITH THE RELEVANT PERMITTED ACQUISITION, TOGETHER WITH AN
UNDATED STOCK POWER FOR EACH SUCH CERTIFICATE EXECUTED IN BLANK BY A DULY
AUTHORIZED OFFICER OF THE PLEDGOR THEREOF AND EACH ADDENDUM OR SUPPLEMENT
AS REQUIRED UNDER SUBSECTIONS 7.15 AND 7.16.
(H) LEGAL OPINIONS. THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED,
--------------
WITH A COUNTERPART FOR EACH LENDER, SUCH EXECUTED LEGAL OPINIONS OF COUNSEL
TO THE LOAN PARTIES, COVERING SUBSTANTIALLY THE SAME MATTERS AS THE OPINION
DELIVERED PURSUANT TO SUBSECTION 6.2(C)(I) OR (II), AS THE CASE MAY BE,
WITH RESPECT TO ANY PERSON ACQUIRED IN CONNECTION WITH THE RELEVANT
PERMITTED ACQUISITION WHICH SHALL BECOME A PARTY TO A LOAN DOCUMENT.
(I) ENVIRONMENTAL ASSESSMENT. THE US ADMINISTRATIVE AGENT SHALL HAVE
------------------------
RECEIVED TO THE EXTENT AVAILABLE OR PREPARED ON BEHALF OF THE COMPANY ONE
OR MORE ENVIRONMENTAL ASSESSMENTS WITH RESPECT TO THE RELEVANT PERMITTED
ACQUISITION, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO IT,
CONCERNING ENVIRONMENTAL COMPLIANCE AND LIABILITY ISSUES AFFECTING EITHER
BORROWER AND THE OTHER LOAN PARTIES.
6.4 CONDITIONS TO EACH EXTENSION OF CREDIT. THE AGREEMENT OF EACH
--------------------------------------
LENDER TO MAKE ANY LOAN OR ISSUE OR PARTICIPATE IN ANY LETTER OF CREDIT
REQUESTED TO BE MADE OR ISSUED BY IT ON ANY DATE (INCLUDING, WITHOUT LIMITATION,
ITS INITIAL LOAN) IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A) REPRESENTATIONS AND WARRANTIES. EACH OF THE REPRESENTATIONS AND
------------------------------
WARRANTIES MADE BY EITHER BORROWER AND ANY OTHER LOAN PARTY IN OR PURSUANT
TO THE LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON
AND AS OF SUCH DATE AS IF MADE ON AND AS OF SUCH DATE, EXCEPT FOR
REPRESENTATIONS AND WARRANTIES STATED TO RELATE TO A SPECIFIC EARLIER DATE,
IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS ON AND 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
69
EFFECT TO THE LOANS OR LETTER OF CREDIT REQUESTED TO BE MADE OR ISSUED ON
SUCH DATE.
(C) ADDITIONAL MATTERS. ALL CORPORATE AND OTHER PROCEEDINGS, AND ALL
------------------
DOCUMENTS, INSTRUMENTS AND OTHER LEGAL MATTERS IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE US
ADMINISTRATIVE AGENT, AND THE US ADMINISTRATIVE AGENT SHALL HAVE RECEIVED
SUCH OTHER DOCUMENTS AND LEGAL OPINIONS IN RESPECT OF ANY ASPECT OR
CONSEQUENCE OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AS THEY
SHALL REASONABLY REQUEST.
EACH BORROWING BY AND ISSUANCE OF A LETTER OF CREDIT ON BEHALF OF EITHER
BORROWER HEREUNDER SHALL CONSTITUTE A REPRESENTATION AND WARRANTY BY THE
BORROWERS AS OF THE DATE THEREOF THAT THE CONDITIONS CONTAINED IN THIS
SUBSECTION HAVE BEEN SATISFIED.
SECTION 7. AFFIRMATIVE COVENANTS
THE COMPANY HEREBY AGREES THAT, SO LONG AS THE COMMITMENTS OR ANY
LETTER OF CREDIT REMAIN OR REMAINS IN EFFECT OR ANY AMOUNT IS OWING TO ANY
LENDER OR ANY ADMINISTRATIVE AGENT HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT,
THE COMPANY SHALL AND (EXCEPT IN THE CASE OF DELIVERY OF FINANCIAL INFORMATION,
REPORTS AND NOTICES) SHALL CAUSE EACH OF ITS SUBSIDIARIES TO:
7.1 FINANCIAL STATEMENTS, ETC. FURNISH TO THE US ADMINISTRATIVE
-------------------------
AGENT FOR DISTRIBUTION TO EACH LENDER:
(A) AS SOON AS AVAILABLE, BUT IN ANY EVENT WITHIN 120 DAYS AFTER THE
END OF EACH FISCAL YEAR OF THE COMPANY, A COPY OF THE CONSOLIDATED AND
CONSOLIDATING BALANCE SHEETS OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES AS AT THE END OF SUCH YEAR AND THE RELATED CONSOLIDATED AND
CONSOLIDATING STATEMENT OF INCOME AND THE RELATED CONSOLIDATED STATEMENTS
OF RETAINED EARNINGS AND CASH FLOWS FOR SUCH FISCAL YEAR AND SETTING FORTH
COMPARATIVE FIGURES FOR THE PRECEDING FISCAL YEAR AND, IN THE CASE OF THE
CONSOLIDATED STATEMENTS, CERTIFIED BY XXXXXX XXXXXXXX LLP OR OTHER
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS OF RECOGNIZED NATIONAL STANDING
REASONABLY ACCEPTABLE TO THE REQUIRED LENDERS, TOGETHER WITH COMPARATIVE
FIGURES FOR THE PRECEDING FISCAL YEAR PREPARED BY THE COMPANY AND AN
UNAUDITED SCHEDULE PREPARED BY THE COMPANY CONTAINING COMPARABLE BUDGETED
FIGURES FOR SUCH PERIOD; AND
(B) AS SOON AS AVAILABLE, BUT IN ANY EVENT WITHIN 45 DAYS AFTER THE
END OF EACH OF THE FIRST THREE QUARTERLY PERIODS OF EACH FISCAL YEAR OF THE
COMPANY, THE UNAUDITED CONSOLIDATED BALANCE SHEETS OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES AS AT THE END OF SUCH QUARTER AND THE RELATED
UNAUDITED CONSOLIDATED STATEMENTS OF INCOME, RETAINED
70
EARNINGS AND OF CASH FLOWS OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES
FOR SUCH QUARTER AND THE PORTION OF THE FISCAL YEAR THROUGH THE END OF SUCH
QUARTER, SETTING FORTH (I) IN THE CASE OF SUCH CONSOLIDATED BALANCE SHEET,
IN COMPARATIVE FORM THE FIGURES AS AT THE END OF THE PREVIOUS FISCAL YEAR
AND (II) IN THE CASE OF SUCH CONSOLIDATED STATEMENTS OF INCOME AND OF CASH
FLOWS, IN COMPARATIVE FORM THE BUDGETED FIGURES FOR SUCH QUARTER AND THE
FIGURES FOR THE CORRESPONDING QUARTER OF THE PREVIOUS FISCAL YEAR,
CERTIFIED BY A RESPONSIBLE OFFICER AS BEING FAIRLY STATED IN ACCORDANCE
WITH GAAP IN ALL MATERIAL RESPECTS (SUBJECT TO NORMAL YEAR-END AUDIT
ADJUSTMENTS);
ALL SUCH FINANCIAL STATEMENTS SHALL BE COMPLETE AND CORRECT IN ALL MATERIAL
RESPECTS AND SHALL 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 RESPONSIBLE OFFICER, AS THE
CASE MAY BE, AND DISCLOSED THEREIN).
7.2 CERTIFICATES; OTHER INFORMATION. FURNISH TO THE US
-------------------------------
ADMINISTRATIVE AGENT FOR DISTRIBUTION TO EACH LENDER:
(A) CONCURRENTLY WITH THE DELIVERY OF THE FINANCIAL STATEMENTS
REFERRED TO IN SUBSECTION 7.1(A), A CERTIFICATE OF THE INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS REPORTING ON SUCH FINANCIAL STATEMENTS STATING
THAT IN CONNECTION WITH THEIR AUDIT NOTHING HAS COME TO THEIR ATTENTION TO
CAUSE THEM TO BELIEVE THAT THE COMPANY OR ANY OF ITS SUBSIDIARIES FAILED TO
COMPLY WITH THE COVENANTS CONTAINED IN SECTIONS 7 AND 8; PROVIDED, HOWEVER,
-------- -------
THAT SUCH AUDIT SHALL NOT HAVE BEEN DIRECTED PRIMARILY TOWARD OBTAINING
KNOWLEDGE OF SUCH NONCOMPLIANCE, EXCEPT AS SPECIFIED IN SUCH CERTIFICATE;
(B) CONCURRENTLY WITH THE DELIVERY OF THE FINANCIAL STATEMENTS
REFERRED TO IN SUBSECTIONS 7.1(A) AND (B), A CERTIFICATE OF A RESPONSIBLE
OFFICER ("COMPLIANCE CERTIFICATE") STATING THAT, TO THE BEST OF SUCH
----------------------
RESPONSIBLE OFFICER'S KNOWLEDGE, DURING SUCH PERIOD (I) NO SUBSIDIARY HAS
BEEN FORMED OR ACQUIRED (OR, IF ANY SUCH SUBSIDIARY HAS BEEN FORMED OR
ACQUIRED, THE COMPANY HAS COMPLIED WITH THE REQUIREMENTS OF SUBSECTIONS
7.15 AND 7.16 WITH RESPECT THERETO), (II) NEITHER THE COMPANY NOR ANY OF
ITS SUBSIDIARIES HAS CHANGED ITS NAME, ITS PRINCIPAL PLACE OF BUSINESS, ITS
CHIEF EXECUTIVE OFFICE OR THE LOCATION OF ANY MATERIAL ITEM OF TANGIBLE
COLLATERAL WITHOUT COMPLYING WITH THE REQUIREMENTS OF THIS AGREEMENT AND
THE SECURITY DOCUMENTS WITH RESPECT THERETO, (III) THE COMPANY IN ALL
MATERIAL RESPECTS HAS OBSERVED OR PERFORMED ALL OF ITS COVENANTS AND OTHER
AGREEMENTS, AND SATISFIED EVERY CONDITION, CONTAINED IN THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS TO BE OBSERVED, PERFORMED OR SATISFIED BY IT,
EXCEPT AS SPECIFIED IN SUCH CERTIFICATE, AND (IV) THE COMPANY HAS SET FORTH
IN REASONABLE DETAIL ANY AND ALL CALCULATIONS NECESSARY TO SHOW COMPLIANCE
WITH ALL OF THE FINANCIAL CONDITION COVENANTS SET FORTH IN SUBSECTIONS 8.3
THROUGH 8.5 INCLUSIVE, AND 8.7 THROUGH
71
8.10 INCLUSIVE, INCLUDING, WITHOUT LIMITATION, CALCULATIONS AND
RECONCILIATIONS, IF ANY, NECESSARY TO SHOW COMPLIANCE WITH SUCH FINANCIAL
CONDITION COVENANTS ON THE BASIS OF GAAP CONSISTENT WITH THOSE UTILIZED IN
PREPARING THE AUDITED FINANCIAL STATEMENTS REFERRED TO IN SUBSECTION 5.1,
AND SUCH RESPONSIBLE OFFICER HAS OBTAINED NO KNOWLEDGE OF ANY DEFAULT OR
EVENT OF DEFAULT EXCEPT AS SPECIFIED IN SUCH CERTIFICATE;
(C) NO LATER THAN 30 DAYS AFTER THE FIRST DAY OF EACH FISCAL YEAR OF
THE COMPANY, A BUDGET FOR THE COMPANY AND ITS SUBSIDIARIES USING A FORMAT
REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENTS AND THE REQUIRED
LENDERS (INCLUDING BUDGETED STATEMENTS OF INCOME AND SOURCES AND USES OF
CASH AND BALANCE SHEETS) PREPARED BY THE COMPANY FOR EACH FISCAL QUARTER OF
SUCH FISCAL YEAR, PREPARED IN REASONABLE DETAIL WITH APPROPRIATE
PRESENTATION AND DISCUSSION OF THE PRINCIPAL ASSUMPTIONS UPON WHICH SUCH
BUDGETS ARE BASED, ACCOMPANIED BY THE STATEMENT OF A RESPONSIBLE OFFICER OF
THE COMPANY TO THE EFFECT THAT, TO THE BEST OF HIS KNOWLEDGE, THE BUDGET IS
A REASONABLE ESTIMATE FOR THE PERIOD COVERED THEREBY;
(D) WITHIN FIVE DAYS AFTER THE SAME ARE FILED, COPIES OF ALL
FINANCIAL STATEMENTS AND REPORTS WHICH EITHER BORROWER MAY MAKE TO, OR FILE
WITH, THE SECURITIES AND EXCHANGE COMMISSION OR ANY SUCCESSOR OR ANALOGOUS
GOVERNMENTAL AUTHORITY; AND
(E) PROMPTLY, SUCH ADDITIONAL FINANCIAL AND OTHER INFORMATION AS ANY
LENDER MAY FROM TIME TO TIME REASONABLY REQUEST.
7.3 BOOKS, RECORDS AND INSPECTIONS. THE COMPANY AND ITS SUBSIDIARIES
------------------------------
WILL KEEP PROPER BOOKS OF RECORD AND ACCOUNT IN WHICH FULL, TRUE AND CORRECT
ENTRIES IN CONFORMITY WITH GAAP AND ALL REQUIREMENTS OF LAW SHALL BE MADE OF ALL
DEALINGS AND TRANSACTIONS IN RELATION TO ITS BUSINESS AND ACTIVITIES. THE
COMPANY AND ITS SUBSIDIARIES WILL PERMIT OFFICERS AND DESIGNATED REPRESENTATIVES
OF EITHER ADMINISTRATIVE AGENT OR ANY LENDER TO VISIT AND INSPECT, UNDER
GUIDANCE OF OFFICERS OF THE COMPANY OR SUCH SUBSIDIARIES, ANY OF THE PROPERTIES
OF THE COMPANY AND ITS SUBSIDIARIES, AND TO EXAMINE THE BOOKS OF ACCOUNT OF THE
COMPANY AND ITS SUBSIDIARIES AND DISCUSS THE AFFAIRS, FINANCES AND ACCOUNTS OF
THE COMPANY AND ITS SUBSIDIARIES WITH, AND BE ADVISED AS TO THE SAME BY, ITS AND
THEIR RESPECTIVE OFFICERS, ALL AT SUCH REASONABLE TIMES AND INTERVALS AND TO
SUCH REASONABLE EXTENT AS EITHER ADMINISTRATIVE AGENT OR SUCH LENDER MAY
REQUEST.
7.4 MAINTENANCE OF PROPERTY, INSURANCE. (A) SCHEDULE 7.4 SETS FORTH
----------------------------------
A TRUE AND COMPLETE LISTING OF ALL INSURANCE MAINTAINED BY THE COMPANY AND ITS
SUBSIDIARIES WITH RESPECT TO ITS PROPERTY AS OF THE CLOSING DATE. THE COMPANY
AND ITS SUBSIDIARIES WILL (I) KEEP ALL PROPERTY NECESSARY IN ITS BUSINESS IN
GOOD WORKING ORDER AND CONDITION (ORDINARY WEAR AND TEAR EXCEPTED), (II)
MAINTAIN WITH FINANCIALLY SOUND AND REPUTABLE INSURANCE COMPANIES INSURANCE ON
ALL ITS PROPERTY IN AT LEAST SUCH AMOUNTS AND AGAINST AT LEAST SUCH
72
RISKS AS IS CONSISTENT AND IN ACCORDANCE WITH INDUSTRY PRACTICE FOR COMPANIES
SIMILARLY SITUATED AND (III) FURNISH TO EACH LENDER, UPON WRITTEN REQUEST, FULL
INFORMATION AS TO THE INSURANCE CARRIED.
(B) THE COMPANY WILL (I) MAINTAIN WITH A FINANCIALLY SOUND AND
REPUTABLE INSURANCE COMPANY KEY-MAN INSURANCE ON J. XXXXX XXXXXX OF AT LEAST
US$1,000,000 AND (II) FURNISH TO EACH LENDER, UPON WRITTEN REQUEST, FULL
INFORMATION AS TO THE INSURANCE CARRIED.
(C) AT ANY TIME THAT INSURANCE AT LEVELS DESCRIBED IN SCHEDULE 7.4 OR
AT THE LEVEL DESCRIBED IN SUBSECTION 7.4(B) IS NOT BEING MAINTAINED BY THE
COMPANY, THE COMPANY WILL NOTIFY THE LENDERS IN WRITING WITHIN TWO BUSINESS DAYS
THEREOF. THE PROVISIONS OF THIS SUBSECTION 7.4 SHALL BE DEEMED TO BE
SUPPLEMENTAL TO, BUT NOT DUPLICATIVE OF, THE PROVISIONS OF ANY SECURITY DOCUMENT
THAT REQUIRE THE MAINTENANCE OF INSURANCE.
7.5 CORPORATE FRANCHISES. THE COMPANY AND ITS SUBSIDIARIES WILL DO
--------------------
ALL THINGS NECESSARY TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT ITS EXISTENCE
AND ALL OF ITS RIGHTS, FRANCHISES, LICENSES AND PATENTS, EXCEPT WHERE THE
FAILURE TO DO SO COULD NOT HAVE BEEN REASONABLY EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT; PROVIDED, HOWEVER, NOTHING IN THIS SUBSECTION 7.5 SHALL PREVENT
-------- -------
THE WITHDRAWAL BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OF ITS QUALIFICATION AS
A FOREIGN CORPORATION IN A JURISDICTION IN WHICH SUCH WITHDRAWAL COULD NOT BE
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
7.6 COMPLIANCE WITH STATUTES, ETC. THE COMPANY AND ITS SUBSIDIARIES
------------------------------
WILL COMPLY WITH ALL APPLICABLE STATUTES, REGULATIONS AND ORDERS OF, AND ALL
APPLICABLE RESTRICTIONS IMPOSED BY, ALL GOVERNMENTAL AUTHORITIES, DOMESTIC OR
FOREIGN, IN RESPECT OF THE CONDUCT OF ITS BUSINESS AND THE OWNERSHIP OF ITS
PROPERTY EXCEPT SUCH NONCOMPLIANCES AS COULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
7.7 COMPLIANCE WITH ENVIRONMENTAL LAWS. (A) THE COMPANY AND ITS
----------------------------------
SUBSIDIARIES WILL COMPLY IN ALL MATERIAL RESPECTS WITH ALL ENVIRONMENTAL LAWS
APPLICABLE TO OWNERSHIP OR USE OF THEIR REAL PROPERTY (INCLUDING, WITHOUT
LIMITATION, STATE LAWS APPLICABLE TO UNDERGROUND STORAGE TANKS), WILL PROMPTLY
PAY OR CAUSE TO BE PAID BY OTHER RESPONSIBLE PARTIES ALL COSTS AND EXPENSES
INCURRED IN SUCH COMPLIANCE, AND WILL KEEP OR CAUSE TO BE KEPT ALL SUCH REAL
PROPERTIES FREE AND CLEAR OF ANY LIENS OR ANY RESTRICTIONS ON THE OWNERSHIP,
OCCUPANCY, USE OR TRANSFERABILITY OF SUCH REAL PROPERTY IMPOSED PURSUANT TO SUCH
ENVIRONMENTAL LAWS, EXCEPT WHERE THE FAILURE TO DO SO COULD NOT HAVE BEEN
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT. NEITHER THE COMPANY NOR
ANY OF ITS SUBSIDIARIES WILL USE OR STORE OR KNOWINGLY PERMIT THE USE OR STORAGE
OF HAZARDOUS MATERIALS ON ANY OF ITS RESPECTIVE REAL PROPERTY, OR TRANSPORT OR
KNOWINGLY PERMIT THE TRANSPORTATION OF HAZARDOUS MATERIALS TO OR FROM ANY OF ITS
RESPECTIVE REAL PROPERTY EXCEPT IN MATERIAL COMPLIANCE WITH ENVIRONMENTAL LAWS.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES WILL GENERATE, TREAT, RELEASE OR
DISPOSE
73
OF, OR PERMIT THE GENERATION, TREATMENT, RELEASE OR DISPOSAL OF, HAZARDOUS
MATERIALS ON ANY OF ITS RESPECTIVE REAL PROPERTY EXCEPT IN MATERIAL COMPLIANCE
WITH ENVIRONMENTAL LAWS.
(B) AT THE REASONABLE REQUEST OF EITHER ADMINISTRATIVE AGENT OR THE
REQUIRED LENDERS THAT AT ANY TIME THERE EXISTS A CONDITION OR SET OF
CIRCUMSTANCES OR FACTS WHICH HAS GIVEN RISE TO A MATERIAL ENVIRONMENTAL CLAIM,
MATERIAL NONCOMPLIANCE WITH AN ENVIRONMENTAL LAW OR AN EVENT OF DEFAULT EXISTS
WITH RESPECT TO THIS SECTION 7.7, THE COMPANY WILL PROVIDE, AT ITS SOLE COST AND
EXPENSE, AN ENVIRONMENTAL SITE ASSESSMENT REPORT CONCERNING SUCH REAL PROPERTY
OF THE COMPANY OR ITS SUBSIDIARIES WHICH IS AFFECTED BY ANY ENVIRONMENTAL CLAIM,
OR NONCOMPLIANCE WITH AN ENVIRONMENTAL LAW OR MATERIAL EVENT OF DEFAULT,
PREPARED BY AN ENVIRONMENTAL CONSULTING FIRM APPROVED BY THE US ADMINISTRATIVE
AGENT OR THE REQUIRED LENDERS, INDICATING THE PRESENCE OR RELEASE OR ABSENCE OF
HAZARDOUS MATERIALS AND THE POTENTIAL COST OF ANY REQUIRED REMOVAL OR REMEDIAL
ACTION IN CONNECTION WITH ANY HAZARDOUS MATERIALS ON SUCH REAL PROPERTY. IF THE
COMPANY FAILS TO PROVIDE THE SAME WITHIN SIXTY (60) DAYS AFTER SUCH REQUEST IS
MADE OR WITHIN A REASONABLE TIME THEREAFTER, THE US ADMINISTRATIVE AGENT OR THE
REQUIRED LENDERS MAY UPON TEN (10) DAYS' PRIOR NOTICE ORDER THE SAME OR
UNDERTAKE SUCH AN ASSESSMENT ALL AT THE EXPENSE OF THE COMPANY, AND THE COMPANY
OR ITS SUBSIDIARY SHALL GRANT AND HEREBY GRANTS TO THE US ADMINISTRATIVE AGENT
AND THE LENDERS AND THEIR AGENTS ACCESS TO SUCH REAL PROPERTY.
7.8 ERISA; CANADIAN PENSION PLANS. (A) AS SOON AS POSSIBLE AND, IN
-----------------------------
ANY EVENT, WITHIN 10 DAYS AFTER THE COMPANY OR ANY ERISA AFFILIATE KNOWS OR HAS
REASON TO KNOW OF THE OCCURRENCE OF ANY OF THE FOLLOWING, THE COMPANY WILL
DELIVER TO EACH OF THE LENDERS A CERTIFICATE OF A RESPONSIBLE OFFICER OF THE
COMPANY SETTING FORTH DETAILS AS TO SUCH OCCURRENCE AND THE ACTION, IF ANY,
WHICH THE COMPANY OR SUCH ERISA AFFILIATE IS REQUIRED OR PROPOSES TO TAKE,
TOGETHER WITH ANY NOTICES REQUIRED OR PROPOSED TO BE GIVEN TO OR FILED WITH OR
BY THE COMPANY, THE ERISA AFFILIATE, THE PBGC, A PLAN PARTICIPANT OR THE PLAN
ADMINISTRATOR WITH RESPECT THERETO: THAT A REPORTABLE EVENT HAS OCCURRED; THAT
AN ACCUMULATED FUNDING DEFICIENCY HAS BEEN INCURRED OR AN APPLICATION MAY BE OR
HAS BEEN MADE TO THE SECRETARY OF THE TREASURY FOR A WAIVER OR MODIFICATION OF
THE MINIMUM FUNDING STANDARD (INCLUDING ANY REQUIRED INSTALLMENT PAYMENTS) OR AN
EXTENSION OF ANY AMORTIZATION PERIOD UNDER SECTION 412 OF THE CODE WITH RESPECT
TO A PLAN; THAT A PLAN HAS BEEN OR MAY BE TERMINATED, REORGANIZED, PARTITIONED
OR DECLARED INSOLVENT UNDER TITLE IV OF ERISA; THAT A PLAN HAS AN UNFUNDED
CURRENT LIABILITY GIVING RISE TO A LIEN UNDER ERISA OR THE CODE; THAT
PROCEEDINGS MAY BE OR HAVE BEEN INSTITUTED TO TERMINATE A PLAN; THAT A
PROCEEDING HAS BEEN INSTITUTED PURSUANT TO SECTION 515 OF ERISA TO COLLECT A
DELINQUENT CONTRIBUTION TO A PLAN; OR THAT THE COMPANY OR ANY ERISA AFFILIATE
WILL OR MAY INCUR ANY LIABILITY (INCLUDING ANY CONTINGENT OR SECONDARY
LIABILITY) TO OR ON ACCOUNT OF THE TERMINATION OF OR WITHDRAWAL FROM A PLAN
UNDER SECTION 4062, 4063, 4064, 4069, 4201 OR 4204 OF ERISA OR WITH RESPECT TO A
PLAN UNDER SECTION 4971 OR 4975 OF THE CODE OR SECTION 409 OR 502(I) OR 502(1)
OF ERISA. THE COMPANY
74
WILL DELIVER TO EACH OF THE LENDERS A COMPLETE COPY OF THE ANNUAL REPORT (FORM
5500) OF EACH PLAN REQUIRED TO BE FILED WITH THE INTERNAL REVENUE SERVICE. IN
ADDITION TO ANY CERTIFICATES OR NOTICES DELIVERED TO THE LENDERS PURSUANT TO THE
FIRST SENTENCE HEREOF, COPIES OF ANNUAL REPORTS AND ANY NOTICES RECEIVED BY THE
COMPANY OR ANY ERISA AFFILIATE WITH RESPECT TO ANY PLAN SHALL BE DELIVERED TO
THE LENDERS NO LATER THAN 10 DAYS AFTER THE LATER OF THE DATE SUCH REPORT OR
NOTICE HAS BEEN FILED WITH THE INTERNAL REVENUE SERVICE OR RECEIVED BY THE
COMPANY OR THE ERISA AFFILIATE.
(B) AS SOON AS POSSIBLE AND, IN ANY EVENT, WITHIN 10 DAYS AFTER THE
COMPANY OR ANY SUBSIDIARY OF THE COMPANY KNOWS OF ANY OF THE FOLLOWING, THE
COMPANY WILL DELIVER TO THE US ADMINISTRATIVE AGENT A CERTIFICATE SETTING FORTH
THE DETAILS OF ANY SUCH OCCURRENCE OR CONDITION AND SUCH ACTION, IF ANY, WHICH
IS REQUIRED OR PROPOSED TO BE TAKEN, TOGETHER WITH ANY NOTICES REQUIRED OR
PROPOSED TO BE GIVEN TO OR FILED WITH OR BY THE COMPANY OR SUCH SUBSIDIARY, THE
RELEVANT PENSION OR TAX REGULATORY AUTHORITY, A CURRENT OR FORMER MEMBER OF A
CANADIAN PENSION PLAN, AN ADMINISTRATOR OR MEMBER OF AN ADVISORY COMMITTEE OF A
CANADIAN PENSION PLAN OR A UNION REPRESENTING CURRENT OR FORMER MEMBERS OF A
CANADIAN PENSION PLAN WITH RESPECT THERETO: THAT A CANADIAN PENSION PLAN IS NOT
IN SUBSTANTIAL COMPLIANCE WITH ANY APPLICABLE PENSION BENEFITS AND TAX LAWS;
THAT A CANADIAN PENSION PLAN HAS AN UNFUNDED LIABILITY (EITHER ON A "GOING
CONCERN" OR ON A "WINDING UP" BASIS AND DETERMINED IN ACCORDANCE WITH ALL
APPLICABLE LAWS AND USING ASSUMPTIONS AND METHODS THAT ARE APPROPRIATE IN THE
CIRCUMSTANCES AND IN ACCORDANCE WITH GENERALLY ACCEPTED ACTUARIAL PRINCIPLES AND
PRACTICES IN CANADA); THAT ANY CONTRIBUTION (INCLUDING ANY SPECIAL PAYMENT TO
AMORTIZE ANY UNFUNDED LIABILITY) REQUIRED TO BE MADE IN ACCORDANCE WITH ANY
APPLICABLE LAW OR THE TERMS OF A CANADIAN PENSION PLAN HAS NOT BEEN MADE; THAT
AN EVENT HAS OCCURRED OR A CONDITION EXISTS WITH RESPECT TO A CANADIAN PENSION
PLAN THAT HAS RESULTED OR COULD RESULT IN THE CANADIAN PENSION PLAN BEING
ORDERED OR REQUIRED TO BE WOUND UP IN WHOLE OR IN PART PURSUANT TO ANY
APPLICABLE PENSION BENEFITS LAWS OR HAVING ITS REGISTRATION REVOKED OR REFUSED
FOR THE PURPOSES OF ANY APPLICABLE PENSION BENEFITS AND TAX LAWS OR BEING PLACED
UNDER THE ADMINISTRATION OF ANY RELEVANT PENSION BENEFITS REGULATORY AUTHORITY
OR BEING REQUIRED TO PAY ANY TAXES OR PENALTIES UNDER ANY APPLICABLE PENSION
BENEFITS AND TAX LAWS; THAT AN ORDER HAS BEEN MADE OR NOTICE HAS BEEN GIVEN
PURSUANT TO ANY APPLICABLE PENSION BENEFITS AND TAX LAWS IN RESPECT OF ANY
CANADIAN PENSION PLAN REQUIRING (OR PROPOSING TO REQUIRE) ANY PERSON TO TAKE OR
REFRAIN FROM TAKING ANY ACTION IN RESPECT THEREOF OR THAT THERE HAS (OR THERE
ARE CIRCUMSTANCES THAT INDICATE THAT THERE HAS) BEEN A CONTRAVENTION OF ANY SUCH
APPLICABLE LAWS; OR THAT AN EVENT HAS OCCURRED OR A CONDITION EXISTS THAT HAS
RESULTED OR COULD RESULT IN THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY BEING
REQUIRED TO PAY, REPAY OR REFUND ANY AMOUNT (OTHER THAN CONTRIBUTIONS REQUIRED
TO BE MADE OR EXPENSES REQUIRED TO BE PAID IN THE ORDINARY COURSE) TO OR ON
ACCOUNT OF ANY CANADIAN PENSION PLAN OR A CURRENT OR FORMER MEMBER THEREOF; OR
THAT AN EVENT HAS OCCURRED OR A CONDITION EXISTS THAT HAS RESULTED OR COULD
RESULT IN A PAYMENT BEING MADE OUT OF A GUARANTEE
75
FUND ESTABLISHED UNDER THE APPLICABLE PENSION BENEFITS LAWS IN RESPECT OF A
CANADIAN PENSION PLAN.
(C) THE COMPANY WILL, AND WILL CAUSE EACH OF ITS SUBSIDIARIES, TO
MAKE ALL CONTRIBUTIONS (INCLUDING ANY SPECIAL PAYMENTS TO AMORTIZE ANY UNFUNDED
LIABILITIES) REQUIRED TO BE MADE IN ACCORDANCE WITH ALL APPLICABLE LAWS AND THE
TERMS OF EACH CANADIAN PENSION PLAN IN A TIMELY MANNER.
7.9 END OF FISCAL YEARS; FISCAL QUARTERS. THE COMPANY WILL CAUSE ITS
------------------------------------
AND EACH OF ITS SUBSIDIARIES' FISCAL YEARS TO END ON DECEMBER 31, AND EACH OF
ITS AND ITS SUBSIDIARIES' FIRST THREE FISCAL QUARTERS TO END ON MARCH 31, JUNE
30 AND SEPTEMBER 30.
7.10 PERFORMANCE OF OBLIGATIONS. THE COMPANY WILL, AND WILL CAUSE
--------------------------
EACH OF ITS SUBSIDIARIES TO, PERFORM ALL OF ITS OBLIGATIONS UNDER THE TERMS OF
EACH MORTGAGE, INDENTURE, SECURITY AGREEMENT AND OTHER DEBT INSTRUMENT BY WHICH
IT IS BOUND AND EACH OTHER AGREEMENT OR CONTRACT TO WHICH IT IS A PARTY, EXCEPT
SUCH NON-PERFORMANCES AS COULD NOT REASONABLY BE EXPECTED TO INDIVIDUALLY OR IN
THE AGGREGATE HAVE A MATERIAL ADVERSE EFFECT.
7.11 PAYMENT OF TAXES. EACH OF THE COMPANY AND ITS SUBSIDIARIES WILL
----------------
PAY AND DISCHARGE ALL TAXES, ASSESSMENTS AND GOVERNMENTAL CHARGES OR LEVIES
IMPOSED UPON IT OR UPON ITS INCOME OR PROFITS, OR UPON ANY PROPERTIES BELONGING
TO IT, PRIOR TO THE DATE ON WHICH PENALTIES ATTACH THERETO, AND ALL LAWFUL
CLAIMS WHICH, IF UNPAID, MIGHT BECOME A LIEN UPON ANY PROPERTIES OF SUCH PERSON;
PROVIDED, THAT SUCH PERSON SHALL NOT BE REQUIRED TO PAY ANY SUCH TAX,
--------
ASSESSMENT, CHARGE, LEVY OR CLAIM WHICH IS BEING CONTESTED IN GOOD FAITH AND BY
PROPER PROCEEDINGS IF IT HAS MAINTAINED ADEQUATE RESERVES WITH RESPECT THERETO
IN ACCORDANCE WITH GAAP.
7.12 USE OF PROCEEDS. THE PROCEEDS OF LOANS SHALL BE USED BY THE
---------------
BORROWERS (I) TO FUND PERMITTED ACQUISITIONS, (II) PROVIDED THAT NO DEFAULT OR
EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, TO PROVIDE FUNDS IN AN
AGGREGATE AMOUNT NOT TO EXCEED US$5,000,000 PER ANNUM, THROUGH DECEMBER 31,
2000, FOR THE PURCHASE, REPURCHASE, REDEMPTION OR OTHER PAYMENT IN RESPECT OF
SHARES OF THE COMMON STOCK OF THE COMPANY, (III) PROVIDED THAT NO DEFAULT OR
EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, TO PROVIDE FUNDS IN AN
AGGREGATE AMOUNT NOT TO EXCEED US$50,000,000 FOR THE PURCHASE, REPURCHASE,
REDEMPTION OR OTHER PAYMENT IN RESPECT OF THE 1996 SENIOR SUBORDINATED NOTES,
THE 1997 SENIOR SUBORDINATED NOTES OR THE 1998 SENIOR NOTES AND (IV) FOR GENERAL
CORPORATE PURPOSES, INCLUDING TO FINANCE THE WORKING CAPITAL NEEDS OF THE
BORROWERS. THE LETTERS OF CREDIT SHALL BE USED FOR GENERAL CORPORATE PURPOSES
OF THE US BORROWER.
7.13 NOTICES. PROMPTLY GIVE NOTICE TO THE US ADMINISTRATIVE AGENT
-------
AND EACH LENDER OF:
(A) THE OCCURRENCE OF ANY DEFAULT OR EVENT OF DEFAULT;
76
(B) ANY (I) DEFAULT OR EVENT OF DEFAULT UNDER ANY CONTRACTUAL
OBLIGATION OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, INCLUDING, WITHOUT
LIMITATION, UNDER THE 1996 SENIOR SUBORDINATED NOTES, THE 1997 SENIOR
SUBORDINATED NOTES AND THE 1998 SENIOR NOTES OR (II) LITIGATION,
INVESTIGATION OR PROCEEDING WHICH MAY EXIST AT ANY TIME BETWEEN THE COMPANY
OR ANY OF ITS SUBSIDIARIES AND ANY GOVERNMENTAL AUTHORITY, WHICH IN EITHER
CASE, IF NOT CURED OR IF ADVERSELY DETERMINED, AS THE CASE MAY BE, COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
(C) ANY LITIGATION OR PROCEEDING AFFECTING THE COMPANY OR ANY OF ITS
SUBSIDIARIES (I) IN WHICH THE AMOUNT INVOLVED IS US$3,000,000 OR MORE AND
NOT COVERED BY INSURANCE OR (II) IN WHICH INJUNCTIVE OR SIMILAR RELIEF IS
SOUGHT WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT;
(D) ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS,
PROPERTY, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS OF THE BORROWER
AND ITS SUBSIDIARIES TAKEN AS A WHOLE; AND
(E) AS SOON AS POSSIBLE AFTER A RESPONSIBLE OFFICER OF THE COMPANY
KNOWS OR REASONABLY SHOULD KNOW THEREOF, (I) ANY RELEASE BY THE COMPANY OR
ANY OF ITS SUBSIDIARIES OF ANY HAZARDOUS MATERIALS REQUIRED TO BE REPORTED
UNDER APPLICABLE ENVIRONMENTAL LAWS TO ANY GOVERNMENTAL AUTHORITY, UNLESS
THE COMPANY REASONABLY DETERMINES THAT THE TOTAL ENVIRONMENTAL COSTS
ARISING OUT OF SUCH RELEASE OR DISCHARGE ARE UNLIKELY TO EXCEED
US$1,000,000 OR TO HAVE A MATERIAL ADVERSE EFFECT; (II) ANY CONDITION,
CIRCUMSTANCE, OCCURRENCE OR EVENT NOT PREVIOUSLY DISCLOSED IN WRITING TO
THE US ADMINISTRATIVE AGENT THAT COULD RESULT IN LIABILITY UNDER APPLICABLE
ENVIRONMENTAL LAWS UNLESS THE COMPANY REASONABLY DETERMINES THAT THE TOTAL
ENVIRONMENTAL COSTS ARISING OUT OF SUCH CONDITION, CIRCUMSTANCE, OCCURRENCE
OR EVENT ARE UNLIKELY TO EXCEED US$1,000,000 OR TO HAVE A MATERIAL ADVERSE
EFFECT, OR COULD RESULT IN THE IMPOSITION OF ANY LIEN OR OTHER RESTRICTION
ON THE TITLE, OWNERSHIP OR TRANSFERABILITY OF ANY FACILITIES AND PROPERTIES
OWNED, LEASED OR OPERATED BY THE COMPANY OR ANY OF ITS SUBSIDIARIES THAT
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; AND (III)
ANY PROPOSED ACTION TO BE TAKEN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
THAT WOULD REASONABLY BE EXPECTED TO SUBJECT THE COMPANY OR ANY OF ITS
SUBSIDIARIES TO ANY MATERIAL ADDITIONAL OR DIFFERENT REQUIREMENTS OR
LIABILITIES UNDER ENVIRONMENTAL LAWS, UNLESS THE COMPANY DETERMINES THAT
THE TOTAL ENVIRONMENTAL COSTS ARISING OUT OF SUCH PROPOSED ACTION ARE
UNLIKELY TO EXCEED US$1,000,000 OR TO HAVE A MATERIAL ADVERSE EFFECT.
EACH NOTICE PURSUANT TO THIS SUBSECTION SHALL BE ACCOMPANIED BY A STATEMENT OF A
RESPONSIBLE OFFICER SETTING FORTH DETAILS OF THE OCCURRENCE REFERRED TO THEREIN
AND STATING WHAT ACTION THE BORROWER PROPOSES TO TAKE WITH RESPECT THERETO.
77
7.14 ADDITIONAL MORTGAGES. (A) THE COMPANY SHALL GRANT, AND SHALL
--------------------
CAUSE ITS CANADIAN SUBSIDIARIES AND DOMESTIC SUBSIDIARIES TO GRANT, TO THE
RELEVANT ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE RELEVANT LENDERS A LIEN
AND SECURITY INTEREST IN ANY REAL PROPERTY OF SUCH PERSON NOT COVERED BY A
MORTGAGE (INCLUDING, WITHOUT LIMITATION, ANY REAL PROPERTY ACQUIRED BY SUCH LOAN
PARTY PURSUANT TO A PERMITTED ACQUISITION, BUT EXCLUDING ANY PROPERTY THAT HAS A
LIEN THEREON PERMITTED BY SUBSECTION 8.1(L)) SO LONG AS THE FAIR MARKET VALUE OF
SUCH PROPERTY EXCEEDS US$5,000,000 (OR THE C$ EQUIVALENT THEREOF) AN "ADDITIONAL
----------
MORTGAGED PROPERTY"), AND SHALL TAKE ALL ACTIONS REASONABLY REQUESTED BY THE US
------------------
ADMINISTRATIVE AGENT (INCLUDING, WITHOUT LIMITATION, THE OBTAINING OF TITLE
INSURANCE POLICIES AND TITLE SURVEYS) IN CONNECTION WITH THE GRANTING OF SUCH
SECURITY INTEREST, PROVIDED, HOWEVER, THAT NO SUCH MORTGAGE SHALL BE REQUIRED TO
-------- -------
BE CREATED WITH RESPECT TO ANY REAL PROPERTY THAT IS SUBJECT TO A LIEN PERMITTED
BY SUBSECTION 8.1(L).
(B) THE LIENS AND SECURITY INTERESTS REQUIRED TO BE GRANTED PURSUANT
TO CLAUSE (A) ABOVE SHALL BE GRANTED PURSUANT TO SECURITY DOCUMENTATION (WHICH
SHALL BE SUBSTANTIALLY SIMILAR TO THE SECURITY DOCUMENTS) REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE US ADMINISTRATIVE AGENT AND SHALL
CONSTITUTE VALID AND ENFORCEABLE PERFECTED SECURITY INTERESTS PRIOR TO THE
RIGHTS OF ALL THIRD PERSONS AND SUBJECT TO NO OTHER LIENS EXCEPT SUCH LIENS AS
ARE PERMITTED BY SUBSECTION 8.1. THE MORTGAGES AND OTHER INSTRUMENTS RELATED
THERETO SHALL BE DULY RECORDED OR FILED IN SUCH MANNER AND IN SUCH PLACES AND AT
SUCH TIMES AS ARE REQUIRED BY LAW TO ESTABLISH, PERFECT, PRESERVE AND PROTECT
THE LIENS, IN FAVOR OF THE RELEVANT ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE
RELEVANT LENDERS, REQUIRED TO BE GRANTED PURSUANT TO THE MORTGAGES, AS THE CASE
MAY BE, AND, ALL TAXES, FEES AND OTHER CHARGES PAYABLE IN CONNECTION THEREWITH
SHALL BE PAID IN FULL BY THE RESPECTIVE BORROWER. AT THE TIME OF THE EXECUTION
AND DELIVERY OF THE MORTGAGES, SUCH BORROWER SHALL CAUSE TO BE DELIVERED TO THE
RELEVANT ADMINISTRATIVE AGENT SUCH OPINIONS OF COUNSEL, TITLE INSURANCE, TITLE
SURVEYS AND OTHER RELATED DOCUMENTS OTHER THAN REAL ESTATE APPRAISALS AS MAY BE
REASONABLY REQUESTED BY SUCH ADMINISTRATIVE AGENT OR THE RELEVANT REQUIRED
LENDERS TO ASSURE THEMSELVES THAT THIS SUBSECTION HAS BEEN COMPLIED WITH.
(C) EACH BORROWER AGREES THAT EACH ACTION REQUIRED BY SUBSECTIONS (A)
OR (B) WITH RESPECT TO ANY MORTGAGES, AS THE CASE MAY BE, SHALL BE
COMPLETED WITHIN 60 DAYS OF THE LATER OF (I) THE DATE SUCH ACTION IS
REQUESTED TO BE TAKEN AND (II) THE DATE OF THE RELEVANT PERMITTED
ACQUISITION.
7.15 ADDITIONAL STOCK PLEDGES. (A) THE COMPANY WILL, AND WILL CAUSE
------------------------
EACH OF ITS SUBSIDIARIES TO, PLEDGE TO THE US ADMINISTRATIVE AGENT 100% OF THE
ISSUED AND OUTSTANDING CAPITAL STOCK (OTHER THAN DIRECTORS' QUALIFYING SHARES)
WHICH IT OR SUCH SUBSIDIARY HOLDS OF EACH DOMESTIC SUBSIDIARY OF THE COMPANY
WHICH HAS NOT PREVIOUSLY BEEN PLEDGED HEREUNDER. SUCH PLEDGE SHALL BE
78
GRANTED PURSUANT TO AN ADDENDUM TO THE US GLOBAL GUARANTEE AND SECURITY
AGREEMENT SUBSTANTIALLY IN THE FORM OF ANNEX 1 THERETO.
(B) THE COMPANY WILL, AND WILL CAUSE EACH OF ITS US SUBSIDIARIES TO,
PLEDGE (OR GRANT ANALOGOUS SECURITY INTERESTS) TO THE US ADMINISTRATIVE AGENT IN
ACCORDANCE WITH THE LAWS OF THE JURISDICTION OF ORGANIZATION OF THE ISSUER
THEREOF 65% (ROUNDED DOWNWARD TO ELIMINATE ANY FRACTION OF A SHARE) OF THE
ISSUED AND OUTSTANDING SHARES OF EACH CLASS OF CAPITAL STOCK ENTITLED TO VOTE
(WITHIN THE MEANING OF TREASURY REGULATIONS (S)1.956-2(C)(2)) ("VOTING STOCK")
------------
AND 100% OF THE ISSUED AND OUTSTANDING SHARES OF EACH CLASS OF CAPITAL STOCK NOT
ENTITLED TO VOTE (WITHIN THE MEANING OF SUCH REGULATION) ("NON-VOTING STOCK") OF
----------------
EACH FIRST-TIER FOREIGN SUBSIDIARY FROM TIME TO TIME OF THE COMPANY WHICH (IN
EACH CASE) IS OWNED OF RECORD BY THE COMPANY OR ANY DOMESTIC SUBSIDIARY OF THE
COMPANY AND WHICH HAS NOT PREVIOUSLY BEEN PLEDGED HEREUNDER. EACH SUCH PLEDGE
SHALL, UNLESS OTHERWISE AGREED TO BY THE US ADMINISTRATIVE AGENT, BE GRANTED
PURSUANT TO AN ADDENDUM TO THE US GLOBAL GUARANTEE AND SECURITY AGREEMENT IN
SUCH FORM AS (X) MAY BE REASONABLY REQUIRED IN ORDER TO PERFECT A SECURITY
INTEREST IN THE PLEDGED STOCK DELIVERED THERETO AS DEFINED THEREIN UNDER THE
LAWS OF THE JURISDICTION IN WHICH THE ISSUER OF SUCH PLEDGED STOCK IS ORGANIZED
AND (Y) IS IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE US
ADMINISTRATIVE AGENT.
(C) THE COMPANY WILL, AND WILL CAUSE EACH OF THE US SUBSIDIARIES TO,
EXECUTE AND DELIVER EACH ADDENDUM REQUIRED TO BE EXECUTED AND DELIVERED PURSUANT
TO THIS SUBSECTION 7.15 PROMPTLY FOLLOWING THE ORGANIZATION, ACQUISITION OR
IDENTIFICATION OF ANY SUCH SUBSIDIARY OR FIRST-TIER FOREIGN SUBSIDIARY. EACH
SUCH ADDENDUM SHALL BE ACCOMPANIED BY (I) SHARE CERTIFICATES EVIDENCING THE
PLEDGED STOCK THEREUNDER (TO THE EXTENT THAT SUCH PLEDGED STOCK IS CERTIFICATED)
AS DEFINED THEREIN, TOGETHER WITH AN UNDATED STOCK POWER FOR EACH SUCH SHARE
CERTIFICATE (DULY EXECUTED IN BLANK AND DELIVERED BY A DULY AUTHORIZED OFFICER
OF THE PLEDGOR OF THE PLEDGED STOCK REPRESENTED BY SUCH CERTIFICATE), (II) IN
THE CASE OF THE PLEDGE OF CAPITAL STOCK OF ANY FOREIGN SUBSIDIARY, EVIDENCE OF
THE TAKING OF ALL SUCH OTHER ACTIONS AS MAY BE NECESSARY OR APPROPRIATE FOR THE
PERFECTION AND FIRST PRIORITY OF SUCH PLEDGE AND (III) IN THE CASE OF ANY
SUBSIDIARY, SUCH RESOLUTIONS, INCUMBENCY CERTIFICATES AND LEGAL OPINIONS AS ARE
REASONABLY REQUESTED BY THE US ADMINISTRATIVE AGENT AND SHALL OTHERWISE BE IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE US ADMINISTRATIVE AGENT.
(D) THE CANADIAN BORROWER WILL, AND WILL CAUSE EACH OF ITS
SUBSIDIARIES TO, PLEDGE TO THE CANADIAN ADMINISTRATIVE AGENT 100% OF THE ISSUED
AND OUTSTANDING CAPITAL STOCK OR OTHER EQUITY INTERESTS (OTHER THAN DIRECTORS'
QUALIFYING SHARES) WHICH IT OR SUCH SUBSIDIARY HOLDS OF EACH OF ITS SUBSIDIARIES
WHICH HAS NOT PREVIOUSLY BEEN PLEDGED HEREUNDER. SUCH PLEDGE SHALL, UNLESS
OTHERWISE AGREED TO BY THE CANADIAN ADMINISTRATIVE AGENT, BE GRANTED PURSUANT TO
AN ADDENDUM TO THE CANADIAN SECURITY AGREEMENT SUBSTANTIALLY IN THE FORM OF
EXHIBIT A THERETO.
79
(E) THE CANADIAN BORROWER WILL, AND WILL CAUSE EACH OF ITS
SUBSIDIARIES TO, EXECUTE AND DELIVER EACH ADDENDUM REQUIRED TO BE EXECUTED AND
DELIVERED PURSUANT TO THIS SUBSECTION 7.15 PROMPTLY FOLLOWING THE ORGANIZATION,
ACQUISITION OR IDENTIFICATION OF ANY SUCH SUBSIDIARY. EACH SUCH ADDENDUM SHALL
BE ACCOMPANIED BY (I) SHARE CERTIFICATES, IF ANY, EVIDENCING THE PLEDGED STOCK
THEREUNDER (TO THE EXTENT THAT SUCH PLEDGED STOCK IS CERTIFICATED) AS DEFINED
THEREIN, TOGETHER WITH AN UNDATED STOCK POWER FOR EACH SUCH SHARE CERTIFICATE
(DULY EXECUTED IN BLANK AND DELIVERED BY A DULY AUTHORIZED OFFICER OF THE
PLEDGOR OF THE PLEDGED STOCK REPRESENTED BY SUCH CERTIFICATE), (II) IN THE CASE
OF THE PLEDGE OF CAPITAL STOCK OF ANY FOREIGN SUBSIDIARY, EVIDENCE OF THE TAKING
OF ALL SUCH OTHER ACTIONS AS MAY BE NECESSARY OR APPROPRIATE FOR THE PERFECTION
AND FIRST PRIORITY OF SUCH PLEDGE AND (III) IN THE CASE OF ANY SUBSIDIARY, SUCH
RESOLUTIONS, INCUMBENCY CERTIFICATES AND LEGAL OPINIONS AS ARE REASONABLY
REQUESTED BY THE CANADIAN ADMINISTRATIVE AGENT AND SHALL OTHERWISE BE IN FORM
AND SUBSTANCE REASONABLY SATISFACTORY TO THE CANADIAN ADMINISTRATIVE AGENT.
7.16 ADDITIONAL GUARANTEE AND SECURITY AGREEMENTS. EACH BORROWER
--------------------------------------------
WILL CAUSE EACH OF ITS RESPECTIVE SUBSIDIARIES WHICH HAS NOT PREVIOUSLY DONE SO
TO EXECUTE AND DELIVER TO THE RELEVANT ADMINISTRATIVE AGENT AN ADDENDUM TO, AND
THEREBY BECOME A PARTY TO, THE RESPECTIVE US GLOBAL GUARANTEE AND SECURITY
AGREEMENT OR CANADIAN SECURITY AGREEMENT AND TO TAKE SUCH OTHER ACTION AS
REASONABLY SHALL BE NECESSARY OR AS THE RELEVANT ADMINISTRATIVE AGENT REASONABLY
SHALL REQUEST TO GRANT TO SUCH ADMINISTRATIVE AGENT A PERFECTED (TO THE EXTENT
REQUIRED IN THE US GLOBAL GUARANTEE AND SECURITY AGREEMENT OR CANADIAN SECURITY
AGREEMENT) SECURITY INTEREST IN ALL COLLATERAL DESCRIBED IN THE US GLOBAL
GUARANTEE AND SECURITY AGREEMENT OR CANADIAN SECURITY AGREEMENT (SUBJECT TO ANY
LIENS PERMITTED TO ENCUMBER SUCH COLLATERAL PURSUANT TO SUBSECTION 8.1). EACH
SUCH ADDENDUM TO THE RELEVANT US GLOBAL GUARANTEE AND SECURITY AGREEMENT OR
CANADIAN SECURITY AGREEMENT SHALL BE ACCOMPANIED BY SUCH EVIDENCE OF THE TAKING
OF ALL ACTIONS AS MAY BE NECESSARY OR APPROPRIATE FOR THE PERFECTION (TO THE
EXTENT REQUIRED IN SUCH US GLOBAL GUARANTEE AND SECURITY AGREEMENT OR CANADIAN
SECURITY AGREEMENT) OF SUCH SECURITY INTEREST (INCLUDING, WITHOUT LIMITATION,
THE FILING OF ANY NECESSARY UNIFORM COMMERCIAL CODE OR PPSA FINANCING
STATEMENTS) AND SUCH RESOLUTIONS, INCUMBENCY CERTIFICATES AND LEGAL OPINIONS AS
ARE REASONABLY REQUESTED BY SUCH ADMINISTRATIVE AGENT, ALL OF WHICH SHALL BE IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO SUCH ADMINISTRATIVE AGENT.
SECTION 8. NEGATIVE COVENANTS
EACH BORROWER COVENANTS AND AGREES WITH THE LENDERS AND THE
ADMINISTRATIVE AGENTS THAT, SO LONG AS ANY COMMITMENT, LOAN OR LETTER OF CREDIT
IS OUTSTANDING AND UNTIL PAYMENT IN FULL OF ALL AMOUNTS PAYABLE BY SUCH BORROWER
HEREUNDER:
80
8.1 LIENS. SUCH BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF ITS
-----
SUBSIDIARIES TO, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY LIEN UPON OR WITH
RESPECT TO ANY OF ITS PROPERTY OR ASSETS (REAL OR PERSONAL, TANGIBLE OR
INTANGIBLE), WHETHER NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT:
(A) INCHOATE LIENS FOR TAXES NOT YET DUE OR LIENS FOR TAXES BEING
CONTESTED IN GOOD FAITH AND BY APPROPRIATE PROCEEDINGS FOR WHICH ADEQUATE
RESERVES HAVE BEEN ESTABLISHED IN ACCORDANCE WITH GAAP;
(B) LIENS IMPOSED BY LAW, WHICH WERE INCURRED IN THE ORDINARY COURSE
OF BUSINESS AND DO NOT SECURE INDEBTEDNESS, SUCH AS CARRIERS',
WAREHOUSEMEN'S, MATERIALMEN'S, MECHANICS' AND SIMILAR LIENS ARISING IN THE
ORDINARY COURSE OF BUSINESS, AND (X) WHICH DO NOT IN THE AGGREGATE
MATERIALLY DETRACT FROM THE VALUE OF SUCH PERSON'S PROPERTY OR ASSETS OR
MATERIALLY IMPAIR THE USE THEREOF IN THE OPERATION OF THE BUSINESS OF SUCH
PERSON OR (Y) WHICH ARE BEING CONTESTED IN GOOD FAITH BY APPROPRIATE
PROCEEDINGS, WHICH PROCEEDINGS HAVE THE EFFECT OF PREVENTING THE FORFEITURE
OR SALE OF THE PROPERTY OR ASSETS SUBJECT TO ANY SUCH LIEN;
(C) LIENS IN EXISTENCE ON THE CLOSING DATE AND LISTED ON SCHEDULE
8.1;
(D) LIENS CREATED PURSUANT TO THE SECURITY DOCUMENTS;
(E) EASEMENTS, RIGHTS-OF-WAY, RESTRICTIONS, ENCROACHMENTS AND OTHER
SIMILAR CHARGES, ENCUMBRANCES OR DEFECTS OR IRREGULATIONS OF TITLE NOT
MATERIALLY INTERFERING WITH THE CONDUCT OF THE BUSINESS OF SUCH BORROWER OR
SUCH SUBSIDIARY;
(F) ANY ATTACHMENT OR JUDGMENT LIEN SO LONG AS NO EVENT OF DEFAULT
SHALL HAVE ARISEN UNDER SUBSECTION 9(H) IN CONNECTION THEREWITH;
(G) LIENS (OTHER THAN ANY LIEN IMPOSED BY ERISA) INCURRED OR DEPOSITS
MADE IN THE ORDINARY COURSE OF BUSINESS IN CONNECTION WITH WORKERS'
COMPENSATION, UNEMPLOYMENT INSURANCE AND OTHER TYPES OF SOCIAL SECURITY
BENEFITS AS REQUIRED BY LAW, OR SECURING LEASES INCURRED IN THE ORDINARY
COURSE OF BUSINESS;
(H) LIENS CREATED BY LEASES OR SUBLEASES GRANTED TO OTHERS NOT
INTERFERING IN ANY MATERIAL RESPECT WITH THE BUSINESS OF SUCH BORROWER OR
SUCH SUBSIDIARY;
(I) LIENS ON PROPERTY OF SUCH BORROWER OR ANY OF ITS SUBSIDIARIES
SECURING CAPITALIZED LEASE OBLIGATIONS PERMITTED BY SUBSECTION 8.4(F),
PROVIDED THAT SUCH LIENS ONLY SECURE THE PAYMENT OF SUCH CAPITALIZED LEASE
--------
OBLIGATION AND ENCUMBER ONLY THE ASSET GIVING RISE TO THE CAPITALIZED LEASE
OBLIGATION;
81
(J) LIENS PLACED UPON EQUIPMENT OR MACHINERY USED IN THE ORDINARY
COURSE OF BUSINESS OF SUCH BORROWER OR SUCH SUBSIDIARY AT THE TIME OF THE
ACQUISITION THEREOF TO SECURE INDEBTEDNESS INCURRED TO PAY ALL OR A PORTION
OF THE PURCHASE PRICE THEREOF; PROVIDED THAT THE INDEBTEDNESS SECURED BY
--------
LIENS PERMITTED BY THIS CLAUSE IS PERMITTED PURSUANT TO SUBSECTION 8.4(F)
AND THAT SUCH LIENS DO NOT ENCUMBER ANY OTHER ASSET OR PROPERTY OF SUCH
BORROWER OR ANY OF ITS SUBSIDIARIES;
(K) LIENS ON REAL PROPERTY ACQUIRED IN CONNECTION WITH A PERMITTED
ACQUISITION, OR WHICH IS OWNED BY A PERSON ACQUIRED IN CONNECTION WITH A
PERMITTED ACQUISITION WHICH BECOMES A SUBSIDIARY AFTER THE DATE HEREOF, IN
EITHER CASE, SECURING INDEBTEDNESS PERMITTED BY SUBSECTION 8.4(F), PROVIDED
--------
THAT (I) SUCH LIENS EXISTED AT THE TIME OF SUCH PERMITTED ACQUISITION AND
WERE NOT CREATED IN ANTICIPATION THEREOF, (II) ANY SUCH LIEN IS NOT SPREAD
TO COVER ANY OTHER PROPERTY OR ASSETS AFTER THE DATE OF SUCH PERMITTED
ACQUISITION AND (III) THE AMOUNT OF INDEBTEDNESS SECURED THEREBY IS NOT
INCREASED;
(L) LIENS ARISING PURSUANT TO PURCHASE MONEY MORTGAGES SECURING
INDEBTEDNESS REPRESENTING A PORTION OF THE PURCHASE PRICE OF REAL PROPERTY
ACQUIRED BY SUCH BORROWER OR SUCH SUBSIDIARY IN ACCORDANCE WITH SUBSECTION
8.2(D) OR (E), PROVIDED, THAT (I) ANY SUCH LIENS ATTACH ONLY TO THE REAL
--------
PROPERTY SO PURCHASED, (II) THE INDEBTEDNESS SECURED BY ANY SUCH LIEN DOES
NOT EXCEED 100% OF THE LESSER OF THE FAIR MARKET VALUE OR THE PURCHASE
PRICE OF SUCH REAL PROPERTY AT THE TIME OF THE INCURRENCE OF SUCH
INDEBTEDNESS AND (III) THE INDEBTEDNESS SECURED BY LIENS PERMITTED BY THIS
CLAUSE IS PERMITTED PURSUANT TO SUBSECTION 8.4(F);
(M) LIENS CREATED BY APPLICABLE BY-LAWS AND OTHER GOVERNMENTAL
REGULATIONS AND RESTRICTIONS PROVIDED THAT THE SAME DO NOT MATERIALLY
INTERFERE WITH THE CONDUCT OF THE BUSINESS OF THE OWNER OF THE PROPERTY
SUBJECT THERETO; AND
(N) RESERVATIONS, LIMITATIONS AND CONDITIONS EXPRESSED IN ANY
ORIGINAL GRANTS FROM THE CROWN.
8.2 CONSOLIDATION, MERGER, PURCHASE OR SALE OF ASSETS, ETC. SUCH
-------------------------------------------------------
BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF ITS SUBSIDIARIES TO, WIND UP,
LIQUIDATE OR DISSOLVE ITS AFFAIRS OR ENTER INTO ANY TRANSACTION OF MERGER,
AMALGAMATION OR CONSOLIDATION, NOR CONVEY, SELL, LEASE OR OTHERWISE DISPOSE OF
(OR AGREE TO DO ANY OF THE FOREGOING AT ANY FUTURE TIME) ALL OR ANY PART OF ITS
PROPERTY OR ASSETS (INCLUDING, WITHOUT LIMITATION, STOCK OF ANY SUBSIDIARY), NOR
ENTER INTO ANY PARTNERSHIPS, JOINT VENTURES OR SALE-LEASEBACK TRANSACTIONS, NOR
PURCHASE OR OTHERWISE ACQUIRE (IN ONE OR A SERIES OF RELATED TRANSACTIONS) ANY
PART OF THE PROPERTY OR ASSETS (OTHER THAN PURCHASES OR OTHER ACQUISITIONS BY
SUCH BORROWER OR SUCH SUBSIDIARY OF INVENTORY, MATERIALS AND EQUIPMENT IN THE
ORDINARY COURSE OF BUSINESS) OF ANY PERSON, EXCEPT:
82
(A) CAPITAL EXPENDITURES PERMITTED BY SUBSECTION 8.7;
(B) SALES OF INVENTORY AND OTHER ASSETS IN THE ORDINARY COURSE OF
BUSINESS;
(C) INVESTMENTS PERMITTED BY SUBSECTION 8.5;
(D) PERMITTED ACQUISITIONS;
(E) SO LONG AS PRIOR TO AND AFTER GIVING EFFECT THERETO, THERE SHALL
NOT BE A DEFAULT OR EVENT OF DEFAULT IN EXISTENCE, (I) THE PURCHASE OF THE
TRAVELERS CORPORATION BUILDING ARCHIVES, PROVIDED THAT THE AGGREGATE
--------
CONSIDERATION PAID IN CONNECTION THEREWITH SHALL NOT EXCEED US$6,000,000,
(II) THE CONSUMMATION OF THE XXXXX TRANSACTION, PROVIDED THAT THE AGGREGATE
--------
CONSIDERATION PAID IN CONNECTION THEREWITH SHALL NOT EXCEED US$3,000,000
AND (III) OTHER PURCHASES OF REAL PROPERTY IN THE ORDINARY COURSE OF
BUSINESS, PROVIDED THAT THE AGGREGATE CONSIDERATION PAID DURING ANY FISCAL
--------
YEAR OF THE COMPANY IN CONNECTION WITH ALL SUCH OTHER PURCHASES (EXCLUDING
ANY PURCHASES IN CONNECTION WITH A PERMITTED ACQUISITION) SHALL NOT EXCEED
US$7,500,000;
(F) OTHER DISPOSITIONS OF PROPERTY OR ASSETS (I) WHICH DO NOT EXCEED
US$2,500,000 IN THE AGGREGATE OR (II) WITH RESPECT TO WHICH (X) THE COMPANY
OR A SUBSIDIARY, AS THE CASE MAY BE, RECEIVES CONSIDERATION AT THE TIME OF
SUCH DISPOSITION AT LEAST EQUAL TO THE FAIR MARKET VALUE THEREOF; (Y) NOT
LESS THAN 85% OF SUCH CONSIDERATION IS IN THE FORM OF CASH; AND (Z) THE NET
PROCEEDS THEREOF ARE APPLIED IN ACCORDANCE WITH SUBSECTIONS 4.4(B), (G) AND
(H);
(G) LEASES (AS LESSEE) OF REAL OR PERSONAL PROPERTY (SO LONG AS SUCH
LEASE DOES NOT CREATE CAPITALIZED LEASE OBLIGATIONS);
(H) MERGERS, CONSOLIDATIONS OR AMALGAMATIONS OF ONE OR MORE
SUBSIDIARIES (I) WITH AND INTO THE COMPANY OR ANOTHER SUBSIDIARY OR (II) IN
WHICH ANY SUBSIDIARY IS THE SURVIVING OR RESULTING COMPANY; AND
(I) "RESTRICTED PAYMENTS" TO THE EXTENT PERMITTED BY SUBSECTION 8.3.
8.3 LIMITATION ON RESTRICTED PAYMENTS. THE COMPANY WILL NOT MAKE ANY
---------------------------------
"RESTRICTED PAYMENTS" (AS DEFINED IN THE 1996 SENIOR SUBORDINATED NOTES
INDENTURE, THE 1997 SENIOR SUBORDINATED NOTES INDENTURE AND THE 1998 SENIOR
NOTES INDENTURE) OTHER THAN (A) IN ACCORDANCE WITH, RESPECTIVELY, THE PROVISIONS
OF SECTION 4.09 OF THE 1996 SENIOR SUBORDINATED NOTES INDENTURE, SECTION 4.9 OF
THE 1997 SENIOR SUBORDINATED NOTES INDENTURE AND SECTION 4.9 OF THE 1998 SENIOR
NOTES INDENTURE (RELATING TO "LIMITATION ON RESTRICTED PAYMENTS") AS SUCH
PROVISIONS ARE IN EFFECT ON THE DATE HEREOF WITHOUT GIVING EFFECT TO ANY
AMENDMENTS, SUPPLEMENTS OR OTHER
83
MODIFICATIONS THERETO OR ANY TERMINATION THEREOF, WHICH PROVISIONS, TOGETHER
WITH RELATED DEFINITIONS, ARE DEEMED INCORPORATED HEREIN BY REFERENCE, AS IF SET
FORTH AT LENGTH HEREIN AND (B) IN AN AGGREGATE AMOUNT NOT TO EXCEED $20,000,000,
TO REPURCHASE OR REDEEM PERMITTED PREFERRED STOCK, SO LONG AS NO DEFAULT OR
EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING OR WOULD RESULT
THEREFROM.
8.4 INDEBTEDNESS. SUCH BORROWER WILL NOT, AND WILL NOT PERMIT ANY OF
------------
ITS SUBSIDIARIES TO, CONTRACT, CREATE, INCUR, ASSUME NOR SUFFER TO EXIST ANY
INDEBTEDNESS, EXCEPT:
(A) INDEBTEDNESS IN RESPECT OF THE LOANS, ANY NOTES, THE SECURITY
DOCUMENTS AND THE OTHER OBLIGATIONS OF THE LOAN PARTIES UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS;
(B) INDEBTEDNESS OUTSTANDING ON THE CLOSING DATE (INCLUDING
INDEBTEDNESS EVIDENCED BY THE 1996 SENIOR SUBORDINATED NOTES AND THE 1997
SENIOR SUBORDINATED NOTES AND GUARANTEES THEREOF) AND LISTED ON SCHEDULE
6.1, AND ANY SUBSEQUENT EXTENSION, RENEWAL OR REFINANCING THEREOF WHICH
DOES NOT INCREASE THE AMOUNT THEREOF OR RESULT IN ANY ADVANCEMENT IN THE
MATURITY DATE OF ANY PORTION OF THE PRINCIPAL THEREOF;
(C) SO LONG AS PRIOR TO, AND AFTER GIVING EFFECT THERETO, THERE SHALL
NOT BE A DEFAULT OR EVENT OF DEFAULT THEN IN EXISTENCE, INDEBTEDNESS OF THE
COMPANY INCURRED TO FINANCE THE PURCHASE BY THE COMPANY OF (I) THE
TRAVELERS CORPORATION BUILDING ARCHIVES, IN AN AGGREGATE PRINCIPAL AMOUNT
NOT TO EXCEED US$4,250,000, (II) THE XXXXX TRANSACTION, IN AN AGGREGATE
PRINCIPAL AMOUNT NOT TO EXCEED US$3,000,000, AND (III) THE DATAVAULT
TRANSACTION, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
(POUNDS)12,000,000;
(D) PERMITTED INTERCOMPANY INDEBTEDNESS;
(E) INDEBTEDNESS UNDER INTEREST RATE PROTECTION AGREEMENTS ENTERED
INTO IN THE ORDINARY COURSE OF BUSINESS;
(F) ADDITIONAL INDEBTEDNESS (INCLUDING, WITHOUT LIMITATION, (I)
CAPITALIZED LEASE OBLIGATIONS AND OTHER INDEBTEDNESS SECURED BY LIENS
PERMITTED UNDER SUBSECTION 8.1(J) OR 8.1(K), (II) INDEBTEDNESS ASSUMED IN
CONNECTION WITH ANY PERMITTED ACQUISITION AND (III) INDEBTEDNESS INCURRED
TO FINANCE THE ACQUISITION OF ANY REAL PROPERTY IN ACCORDANCE WITH
SUBSECTION 8.2(E)(III)) UP TO BUT NOT EXCEEDING US$40,000,000 AT ANY ONE
TIME OUTSTANDING; AND
(G) INDEBTEDNESS EVIDENCED BY THE 1998 SENIOR NOTES AND GUARANTEES
THEREOF AND INDEBTEDNESS EVIDENCED BY THE 1999 SENIOR SUBORDINATED NOTES
AND GUARANTEES THEREOF, WHICH GUARANTEES SHALL BE IN THE FORM PROVIDED IN
THE 1999 SENIOR SUBORDINATED NOTES INDENTURE.
84
8.5 ADVANCES, INVESTMENTS AND LOANS. SUCH BORROWER WILL NOT, AND
-------------------------------
WILL NOT PERMIT ANY OF ITS SUBSIDIARIES TO, DIRECTLY OR INDIRECTLY LEND MONEY OR
CREDIT OR MAKE ADVANCES TO ANY PERSON, NOR PURCHASE OR ACQUIRE ANY STOCK,
OBLIGATIONS OR SECURITIES OF, OR ANY OTHER INTEREST IN, NOR MAKE ANY CAPITAL
CONTRIBUTION TO, ANY OTHER PERSON, EXCEPT:
(A) RECEIVABLES CREATED OR ACQUIRED IN THE ORDINARY COURSE OF
BUSINESS AND PAYABLE OR DISCHARGEABLE IN ACCORDANCE WITH CUSTOMARY TERMS;
(B) PERMITTED ACQUISITIONS;
(C) SUCH BORROWER MAY MAKE AND MAINTAIN TRAVEL, RELOCATION AND OTHER
EXPENSE ADVANCES TO EMPLOYEES FOR BUSINESS-RELATED ACTIVITIES IN THE
ORDINARY COURSE OF BUSINESS AND CONSISTENT WITH PAST PRACTICE, IN AN
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT NOT TO EXCEED US$500,000 AT ANY
TIME;
(D) LOANS AND ADVANCES WHICH CREATE INDEBTEDNESS PERMITTED BY
SUBSECTION 8.4(D);
(E) THE COMPANY MAY ENTER INTO INTEREST RATE PROTECTION AGREEMENTS TO
THE EXTENT PERMITTED PURSUANT TO SUBSECTION 8.4(E);
(F) PERMITTED INTERCOMPANY INDEBTEDNESS;
(G) REASONABLE AND CUSTOMARY LOANS MADE TO EMPLOYEES NOT TO EXCEED
$500,000 IN THE AGGREGATE AT ANY ONE TIME OUTSTANDING, PLUS ANY LOANS WHICH
MAY BE REQUIRED TO BE MADE UNDER THE COMPANY'S NONQUALIFIED STOCK OPTION
PLAN IN AN AMOUNT NOT TO EXCEED US$2,000,000; AND
(H) THE PERMITTED INTERCOMPANY INVESTMENT.
8.6 TRANSACTIONS WITH AFFILIATES. SUCH BORROWER WILL NOT, AND WILL
----------------------------
NOT PERMIT ANY OF ITS SUBSIDIARIES TO, ENTER INTO ANY TRANSACTION OR SERIES OF
RELATED TRANSACTIONS, WHETHER OR NOT IN THE ORDINARY COURSE OF BUSINESS, WITH
ANY AFFILIATE THAT IS NOT A WHOLLY OWNED SUBSIDIARY, EXCEPT THAT:
(A) THE COMPANY MAY ENTER INTO TRANSACTIONS PERMITTED BY SUBSECTION
8.5(G);
(B) THE COMPANY MAY PAY CUSTOMARY AND REASONABLE FEES TO ANY
DIRECTORS OF THE COMPANY WHO WOULD NOT BE AFFILIATES OF THE COMPANY IF THEY
WERE NOT DIRECTORS;
(C) THE COMPANY SHALL BE PERMITTED TO PERFORM UNDER ANY TAX INDEMNITY
AGREEMENT;
(D) THE COMPANY MAY MAKE ANY "RESTRICTED PAYMENT" THAT IS NOT
PROHIBITED BY THE PROVISIONS DESCRIBED UNDER "LIMITATIONS
85
ON RESTRICTED PAYMENTS" CONTAINED IN SECTION 4.09 OF THE 1996 SENIOR
SUBORDINATED NOTES INDENTURE AND SECTION 4.9 OF THE 1997 SENIOR
SUBORDINATED NOTES INDENTURE AND INCORPORATED BY REFERENCE IN SUBSECTION
8.3, INCLUDING, WITHOUT LIMITATION, PAYMENTS MADE TO XXX X. XXXXXX, XX. OR
HIS SPOUSE PURSUANT TO A PENSION OBLIGATION OF THE COMPANY IN THE ANNUAL
AMOUNT OF $96,000;
(E) THE COMPANY OR ANY SUBSIDIARY OF THE COMPANY MAY PAY CUSTOMARY
INVESTMENT BANKING, UNDERWRITING, PLACEMENT AGENT OR FINANCIAL ADVISOR FEES
PAID IN CONNECTION WITH SERVICES RENDERED TO THE COMPANY OR ANY SUBSIDIARY
OF THE COMPANY;
(F) THE COMPANY MAY ENTER INTO ANY TRANSACTION, APPROVED BY THE BOARD
OF DIRECTORS OF THE COMPANY IN GOOD FAITH, WITH AN OFFICER, DIRECTOR,
EMPLOYEE OR CONSULTANT OF THE COMPANY OR OF ANY SUBSIDIARY IN HIS OR HER
CAPACITY AS AN OFFICER, DIRECTOR, EMPLOYEE OR CONSULTANT ENTERED INTO IN
THE ORDINARY COURSE OF BUSINESS, INCLUDING COMPENSATION, INDEMNITY AND
EMPLOYEE BENEFIT ARRANGEMENTS WITH ANY OFFICER, DIRECTOR, EMPLOYEE OR
CONSULTANT OF THE COMPANY OR OF ANY SUBSIDIARY;
(G) THE COMPANY MAY ENTER INTO TRANSACTIONS CREATING PERMITTED
INTERCOMPANY INDEBTEDNESS; AND
(H) THE COMPANY MAY MAKE RENTAL OR LEASE PAYMENTS AND PERFORM ITS
OBLIGATIONS UNDER EXISTING LEASES WITH AFFILIATES IN ACCORDANCE WITH THE
TERMS THEREOF;
PROVIDED, HOWEVER, THAT THE COMPANY AND ITS SUBSIDIARIES MAY RENEW ANY OF THE
-------- -------
EXISTING AFFILIATE CONTRACTS THROUGH EITHER A RENEWAL OPTION OR UPON EXPIRATION
OF AN ARRANGEMENT ON SUBSTANTIALLY SIMILAR TERMS TO THOSE IN EFFECT IMMEDIATELY
PRECEDING SUCH EXPIRATION.
8.7 CAPITAL EXPENDITURES. SUCH BORROWER WILL NOT, AND WILL NOT
--------------------
PERMIT ANY OF ITS SUBSIDIARIES TO, MAKE ANY EXPENDITURE (COLLECTIVELY, "CAPITAL
-------
EXPENDITURES") FOR FIXED OR CAPITAL ASSETS (INCLUDING, WITHOUT LIMITATION,
------------
EXPENDITURES FOR MAINTENANCE AND REPAIRS WHICH SHOULD BE CAPITALIZED IN
ACCORDANCE WITH GAAP AND INCLUDING CAPITALIZED LEASE OBLIGATIONS AND EXCLUDING
CLIENT ACQUISITION COSTS (WHETHER OR NOT SUCH COSTS WOULD BE CLASSIFIED AS
CAPITAL EXPENDITURES IN ACCORDANCE WITH GAAP) BUT EXCLUDING (A) CAPITAL
EXPENDITURES RELATED TO A PERMITTED ACQUISITION; (B) INSURANCE PROCEEDS RECEIVED
IN CONNECTION WITH ANY CASUALTY EVENT USED AS AND PERMITTED BY SUBSECTION 4.4(D)
TO EFFECT THE REPAIR, CONSTRUCTION OR REBUILDING OF THE ASSET WHICH IS THE
SUBJECT OF SUCH CASUALTY EVENT; (C) AMOUNTS EXPENDED TO PURCHASE THE TRAVELERS
CORPORATION BUILDING ARCHIVES AND CONSUMMATE THE XXXXX TRANSACTION IN ACCORDANCE
WITH SUBSECTIONS 8.2(E)(I) AND 8.2(E)(II), RESPECTIVELY; (D) AMOUNTS EXPENDED TO
PURCHASE REAL PROPERTY PURSUANT TO SUBSECTION 8.2(E)(III) AND (IV); AND (E)
AMOUNTS EXPENDED TO ACQUIRE AND DEVELOP A SITE WITHIN THE PROVIDENCE CORPORATE
CENTER IN CONNECTION WITH THE COMPANY'S JOINT VENTURE WITH PROVIDENCE VENTURE I,
L.P., PROVIDED THAT THE AGGREGATE AMOUNTS EXPENDED IN
--------
86
CONNECTION THEREWITH SHALL NOT EXCEED US$13,000,000) WHICH SHOULD BE CAPITALIZED
IN ACCORDANCE WITH GAAP; PROVIDED THAT THE COMPANY AND ITS SUBSIDIARIES MAY MAKE
--------
CAPITAL EXPENDITURES SO LONG AS THE AGGREGATE AMOUNT THEREOF (OTHER THAN THOSE
DESCRIBED IN CLAUSES (A) THROUGH (E) ABOVE) DOES NOT EXCEED, DURING ANY FISCAL
YEAR OF THE COMPANY, AN AMOUNT EQUAL TO THE SUM OF (X) 17% OF TOTAL CONSOLIDATED
REVENUES OF THE COMPANY AND ITS SUBSIDIARIES DURING THE 12-MONTH PERIOD ENDING
ON SEPTEMBER 30 OF SUCH YEAR PLUS (Y) TO THE EXTENT NOT INCLUDED IN CLAUSE (X)
ABOVE, 17% OF THE TOTAL REVENUES FOR SUCH 12-MONTH PERIOD OF ALL BUSINESSES
ACQUIRED BY THE COMPANY AND ITS SUBSIDIARIES DURING SUCH 12-MONTH PERIOD
(INCLUDING THE REVENUES OF EACH SUCH BUSINESS FOR THE PERIOD FROM THE BEGINNING
OF SUCH 12-MONTH PERIOD THROUGH THE DATE OF THE ACQUISITION THEREOF).
8.8 FIXED CHARGE COVERAGE RATIO. COMMENCING ON SEPTEMBER 30, 1997,
---------------------------
THE COMPANY WILL NOT PERMIT ITS FIXED CHARGE COVERAGE RATIO FOR ANY PERIOD OF
FOUR CONSECUTIVE FISCAL QUARTERS ENDING ON AND AFTER SUCH DATE, IN EACH CASE
TAKEN AS ONE ACCOUNTING PERIOD, TO BE LESS THAN 1.0:1.0.
8.9 INTEREST COVERAGE RATIO. THE COMPANY WILL NOT PERMIT ITS RATIO
-----------------------
OF EBITDA TO INTEREST EXPENSE FOR ANY PERIOD OF FOUR CONSECUTIVE FISCAL QUARTERS
ENDING DURING ANY PERIOD SET FORTH BELOW, IN EACH CASE TAKEN AS ONE ACCOUNTING
PERIOD, TO BE LESS THAN THE RATIO SET FORTH OPPOSITE SUCH PERIOD BELOW:
PERIOD RATIO
------ -----
FROM AND INCLUDING THE CLOSING DATE THROUGH 1.50 TO 1.00
DECEMBER 31, 1997
FROM AND INCLUDING JANUARY 1, 1998 THROUGH 1.75 TO 1.00
MARCH 31, 2000
FROM AND INCLUDING APRIL 1, 2000 THROUGH 2.00 TO 1.00
DECEMBER 31, 2000
FROM AND INCLUDING JANUARY 1, 2001 AND 2.50 TO 1.00
THEREAFTER
8.10 LEVERAGE RATIO. (A) THE COMPANY WILL NOT PERMIT THE LEVERAGE
--------------
RATIO AT ANY TIME DURING ANY PERIOD SET FORTH BELOW TO EXCEED THE RATIO SET
FORTH OPPOSITE SUCH PERIOD BELOW:
PERIOD RATIO
------ -----
FROM AND INCLUDING THE CLOSING DATE THROUGH 6.00 TO 1.00
JUNE 11, 1998
87
PERIOD RATIO
------ -----
FROM AND INCLUDING JUNE 12, 1998 THROUGH 6.50 TO 1.00
DECEMBER 31, 1999
FROM AND INCLUDING JANUARY 1, 2000 THROUGH 6.25 TO 1.00
MARCH 31, 2000
FROM AND INCLUDING APRIL 1, 2000 THROUGH 6.00 TO 1.00
DECEMBER 31, 2000
FROM AND INCLUDING JANUARY 1, 2001 THROUGH 5.50 TO 1.00
DECEMBER 31, 2001
FROM AND INCLUDING JANUARY 1, 2002 THROUGH 4.50 TO 1.00
DECEMBER 31, 2002
FROM AND INCLUDING JANUARY 1, 2003 AND 3.50 TO 1.00
THEREAFTER
(B) THE COMPANY WILL NOT AT ANY TIME DURING ANY PERIOD SET FORTH BELOW
PERMIT THE RATIO OF (I) THE AGGREGATE PRINCIPAL AMOUNT OF LOANS THEN
OUTSTANDING, LESS ANY CASH BALANCES IN EXCESS OF US$500,000 THEN OUTSTANDING TO
THE CREDIT OF THE COMPANY AND ITS SUBSIDIARIES IN THEIR OPERATING ACCOUNTS TO
(II) ADJUSTED EBITDA OF THE COMPANY FOR THE THEN MOST RECENTLY ENDED PERIOD OF
FOUR CONSECUTIVE FISCAL QUARTERS FOR WHICH FINANCIAL STATEMENTS SHALL HAVE BEEN
DELIVERED TO THE LENDERS PURSUANT TO SUBSECTION 7.1(A) OR 7.1(B) TO EXCEED THE
RATIO SET FORTH OPPOSITE SUCH PERIOD BELOW:
PERIOD RATIO
------ -----
FROM AND INCLUDING THE CLOSING DATE THROUGH 2.75 TO 1.0
JUNE 30, 1998
FROM AND INCLUDING JULY 1, 1998 THROUGH 2.50 TO 1.0
DECEMBER 31, 2000
FROM AND INCLUDING JANUARY 1, 2001 THROUGH 2.00 TO 1.0
DECEMBER 31, 2002
FROM AND INCLUDING JANUARY 1, 2003 AND 1.50 TO 1.0
THEREAFTER
8.11 LIMITATION ON VOLUNTARY PAYMENTS AND MODIFICATIONS OF
-----------------------------------------------------
INDEBTEDNESS AND CERTAIN OTHER AGREEMENTS, ETC. THE COMPANY WILL NOT, AND WILL
-----------------------------------------------
NOT PERMIT ANY OF ITS SUBSIDIARIES TO:
88
(A) MAKE (OR GIVE ANY NOTICE IN RESPECT OF) ANY VOLUNTARY OR
OPTIONAL PAYMENT OR PREPAYMENT, DEFEASANCE OR REDEMPTION OR ACQUISITION FOR
VALUE OF ANY INDEBTEDNESS (OTHER THAN THE LOANS AND PERMITTED INTERCOMPANY
INDEBTEDNESS), PROVIDED THAT THE COMPANY MAY UTILIZE THE PROCEEDS OF ANY
--------
SALE OF SHARES OF ITS CAPITAL STOCK COMPLETED SUBSEQUENT TO THE DATE HEREOF
TO (X) REDEEM 1997 SENIOR SUBORDINATED NOTES IN ACCORDANCE WITH SECTION
3.7(B) OF THE 1997 SENIOR SUBORDINATED NOTES INDENTURE, (Y) REDEEM 1998
SENIOR NOTES IN ACCORDANCE WITH SECTION3.7(B) OF THE 1998 SENIOR NOTES
INDENTURE AND/OR (Z) REDEEM 1999 SENIOR SUBORDINATED NOTES IN ACCORDANCE
WITH THE TERMS OF THE 1999 SENIOR SUBORDINATED NOTES INDENTURE, SO LONG AS
SIMULTANEOUSLY THEREWITH THE BORROWERS SHALL PREPAY THE LOANS AND/OR REDUCE
L/C EXPOSURE IN ACCORDANCE WITH SUBSECTION 4.4(A) IN AN AMOUNT AT LEAST
EQUAL TO THE AGGREGATE AMOUNT OF SUCH PROCEEDS SO UTILIZED (OR, IF THE
AGGREGATE THEN UNPAID PRINCIPAL AMOUNT OF THE LOANS AND L/C OBLIGATIONS IS
LESS THAN SUCH AMOUNT, THE BORROWERS SHALL PREPAY THE LOANS IN FULL AND
REDUCE L/C EXPOSURE TO ZERO) AND PROVIDED FURTHER THAT THE COMPANY MAY
-------- -------
PURCHASE, REPURCHASE, REDEEM OR MAKE ANY OTHER PAYMENT IN RESPECT OF THE
1996 SENIOR SUBORDINATED NOTES, THE 1997 SENIOR SUBORDINATED NOTES OR THE
1998 SENIOR NOTES TO THE EXTENT PERMITTED BY SUBSECTION 7.12(III);
(B) AMEND OR MODIFY, OR PERMIT THE AMENDMENT OR MODIFICATION OF,
OR RELATING TO THE PAYMENT OR PREPAYMENT OF THE PRINCIPAL OF OR INTEREST ON
ANY INDEBTEDNESS OTHER THAN PERMITTED INTERCOMPANY INDEBTEDNESS (OTHER THAN
ANY SUCH AMENDMENT OR MODIFICATION WHICH WOULD EXTEND THE MATURITY OR
REDUCE THE AMOUNT OF ANY PAYMENT OF PRINCIPAL THEREOF OR WHICH WOULD REDUCE
THE RATE OR EXTEND THE DATE FOR PAYMENT OF INTEREST THEREON);
(C) AMEND OR MODIFY, OR PERMIT THE AMENDMENT OR MODIFICATION OF,
ANY OF THE TERMS AND CONDITIONS OF THE 1996 SENIOR SUBORDINATED NOTES
INDENTURE, THE 1997 SENIOR SUBORDINATED NOTES INDENTURE, THE 1998 SENIOR
NOTES INDENTURE, THE 1999 SENIOR SUBORDINATED NOTES INDENTURE, THE 1996
SENIOR SUBORDINATED NOTES, THE 1997 SENIOR SUBORDINATED NOTES, THE 1998
SENIOR NOTES OR THE 1999 SENIOR SUBORDINATED NOTES (OTHER THAN (I) AS
PERMITTED BY CLAUSE (B) ABOVE AND (II) THOSE THAT WOULD RELAX ANY
RESTRICTION ON THE COMPANY OR THE CANADIAN BORROWER, AS THE CASE MAY BE,
IMPOSED THEREBY AND WOULD NOT HAVE AN ADVERSE EFFECT UPON THE LENDERS); OR
(D) AMEND, MODIFY OR CHANGE, OR ENTER INTO ANY NEW AFFILIATE
CONTRACT, TAX INDEMNITY AGREEMENT OR TAX SHARING AGREEMENT, EXCEPT FOR ANY
SUCH AMENDMENT, MODIFICATION OR CHANGE WHICH IS BENEFICIAL TO THE COMPANY
AND ITS SUBSIDIARIES.
8.12 LIMITATION ON ISSUANCE OF CAPITAL STOCK. THE COMPANY WILL NOT
---------------------------------------
PERMIT ANY OF ITS SUBSIDIARIES TO ISSUE ANY CAPITAL STOCK (INCLUDING BY WAY OF
SALES OF TREASURY STOCK) OR ANY OPTIONS OR WARRANTS TO PURCHASE, OR SECURITIES
CONVERTIBLE INTO, CAPITAL STOCK,
89
EXCEPT FOR ISSUANCES WHICH DO NOT DECREASE THE PERCENTAGE OF THE OWNERSHIP OF
ANY SUBSIDIARY CURRENTLY HELD, DIRECTLY OR INDIRECTLY, BY THE COMPANY.
8.13 BUSINESS. THE COMPANY WILL NOT, AND WILL NOT PERMIT ANY OF ITS
--------
SUBSIDIARIES TO, ENGAGE (DIRECTLY OR INDIRECTLY) IN ANY BUSINESS OTHER THAN THE
BUSINESS IN WHICH IT IS ENGAGED ON THE DATE HEREOF AND ANY OTHER REASONABLY
RELATED BUSINESSES. THE LIMITED PARTNERSHIPS SHALL ENGAGE IN NO BUSINESS OTHER
THAN OWNING THE STOCK OF THE CANADIAN BORROWER.
8.14 DESIGNATION OF "DESIGNATED SENIOR INDEBTEDNESS". THE COMPANY
-----------------------------------------------
WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS, DESIGNATE
ANY INDEBTEDNESS AS "DESIGNATED SENIOR INDEBTEDNESS" WITHIN THE MEANING OF SUCH
TERM AS USED IN THE 1996 SENIOR SUBORDINATED NOTES INDENTURE, THE 1997 SENIOR
SUBORDINATED NOTES INDENTURE AND THE 1999 SENIOR SUBORDINATED NOTES INDENTURE,
AND THE CANADIAN BORROWER WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
REQUIRED LENDERS, DESIGNATE ANY INDEBTEDNESS AS "DESIGNATED SENIOR INDEBTEDNESS"
WITHIN THE MEANING OF SUCH TERM AS USED IN THE 1998 SENIOR NOTES INDENTURE.
SECTION 9. 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
OR REIMBURSEMENT OBLIGATION WHEN DUE IN ACCORDANCE WITH THE TERMS THEREOF
OR HEREOF; OR EITHER BORROWER SHALL FAIL TO PAY ANY INTEREST ON ANY LOAN OR
REIMBURSEMENT OBLIGATION, OR ANY OTHER AMOUNT PAYABLE HEREUNDER, WITHIN
FIVE DAYS AFTER ANY SUCH INTEREST OR OTHER AMOUNT BECOMES DUE IN ACCORDANCE
WITH THE TERMS THEREOF OR HEREOF; OR
(B) ANY REPRESENTATION OR WARRANTY MADE OR DEEMED MADE BY THE
COMPANY OR ANY OTHER LOAN PARTY HEREIN OR IN ANY OTHER LOAN DOCUMENT OR
WHICH 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 PROVE TO HAVE BEEN
INCORRECT IN ANY MATERIAL RESPECT ON OR AS OF THE DATE MADE OR DEEMED MADE;
OR
(C) THE COMPANY OR ANY OTHER LOAN PARTY SHALL DEFAULT IN THE
OBSERVANCE OR DUE PERFORMANCE OF ANY AGREEMENT CONTAINED IN SECTION 8,
SECTIONS 6 AND 7 OF THE US MORTGAGE, AND ARTICLE 2 OF THE CANADIAN SECURITY
AGREEMENT; OR
(D) THE COMPANY OR ANY OTHER 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),
90
AND SUCH DEFAULT SHALL CONTINUE UNREMEDIED FOR A PERIOD OF 30 DAYS AFTER
THE EARLIER OF (I) THE DATE UPON WHICH WRITTEN NOTICE THEREOF IS GIVEN TO
THE COMPANY BY EITHER ADMINISTRATIVE AGENT OR ANY LENDER OR (II) THE DATE
UPON WHICH EITHER BORROWER OBTAINS KNOWLEDGE OF SUCH DEFAULT; OR
(E) THE COMPANY OR ANY OF ITS SUBSIDIARIES SHALL (I) DEFAULT
(UNLESS SUCH DEFAULT HAS BEEN WAIVED BY THE RELEVANT CREDITOR) IN ANY
PAYMENT OF PRINCIPAL OF OR INTEREST ON ANY INDEBTEDNESS (OTHER THAN THE
LOANS) OR IN THE PAYMENT OF ANY GUARANTEE OBLIGATION, BEYOND THE PERIOD OF
GRACE, IF ANY, PROVIDED IN THE INSTRUMENT OR AGREEMENT UNDER WHICH SUCH
INDEBTEDNESS OR GUARANTEE OBLIGATION WAS CREATED; OR (II) DEFAULT IN THE
OBSERVANCE OR PERFORMANCE OF ANY OTHER AGREEMENT OR CONDITION RELATING TO
ANY SUCH INDEBTEDNESS OR GUARANTEE OBLIGATION OR CONTAINED IN ANY
INSTRUMENT OR AGREEMENT EVIDENCING, SECURING OR RELATING THERETO, OR ANY
OTHER EVENT SHALL OCCUR OR CONDITION EXIST, THE EFFECT OF WHICH DEFAULT OR
OTHER EVENT OR CONDITION IS TO CAUSE, OR TO PERMIT THE HOLDER OR HOLDERS OF
SUCH INDEBTEDNESS OR BENEFICIARY OR BENEFICIARIES OF SUCH GUARANTEE
OBLIGATION (OR A TRUSTEE OR AGENT ON BEHALF OF SUCH HOLDER OR HOLDERS OR
BENEFICIARY OR BENEFICIARIES) TO CAUSE, WITH THE GIVING OF NOTICE IF
REQUIRED, SUCH INDEBTEDNESS TO BECOME DUE PRIOR TO ITS STATED MATURITY OR
SUCH GUARANTEE OBLIGATION TO BECOME PAYABLE; PROVIDED, HOWEVER, THAT NO
-------- -------
DEFAULT OR EVENT OF DEFAULT SHALL EXIST UNDER THIS PARAGRAPH UNLESS THE
AGGREGATE AMOUNT OF INDEBTEDNESS AND/OR GUARANTEE OBLIGATIONS IN RESPECT OF
WHICH ANY DEFAULT OR OTHER EVENT OR CONDITION REFERRED TO IN THIS PARAGRAPH
SHALL HAVE OCCURRED SHALL BE EQUAL TO AT LEAST US$1,000,000; OR
(F) (I) THE COMPANY OR ANY OF ITS MATERIAL SUBSIDIARIES SHALL
COMMENCE ANY VOLUNTARY 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 THE COMPANY OR
ANY OF ITS SUBSIDIARIES SHALL MAKE A GENERAL ASSIGNMENT FOR THE BENEFIT OF
ITS CREDITORS; OR (II) THERE SHALL BE COMMENCED AGAINST THE COMPANY OR ANY
OF ITS MATERIAL SUBSIDIARIES ANY CASE, PROCEEDING OR OTHER ACTION OF A
NATURE REFERRED TO IN CLAUSE (I) ABOVE WHICH (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 THE COMPANY OR ANY OF ITS SUBSIDIARIES ANY
CASE, PROCEEDING OR OTHER ACTION SEEKING ISSUANCE OF A WARRANT OF
ATTACHMENT, EXECUTION, DISTRAINT OR SIMILAR PROCESS AGAINST ALL OR ANY
SUBSTANTIAL PART OF ITS
91
ASSETS WHICH RESULTS IN THE ENTRY OF AN ORDER FOR ANY SUCH RELIEF WHICH
SHALL NOT HAVE BEEN VACATED, DISCHARGED, OR STAYED OR BONDED PENDING APPEAL
WITHIN 60 DAYS FROM THE ENTRY THEREOF; OR (IV) THE COMPANY OR ANY OF ITS
SUBSIDIARIES SHALL TAKE ANY ACTION IN FURTHERANCE OF, OR INDICATING ITS
CONSENT TO, APPROVAL OF, OR ACQUIESCENCE IN, ANY OF THE ACTS SET FORTH IN
CLAUSE (I), (II), OR (III) ABOVE; OR (V) THE COMPANY OR ANY OF ITS
SUBSIDIARIES 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) ANY PERSON SHALL ENGAGE IN ANY NON-EXEMPT "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 THE COMPANY OR ANY COMMONLY CONTROLLED ENTITY, (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) THE
COMPANY OR ANY COMMONLY CONTROLLED ENTITY SHALL, OR IN THE REASONABLE
OPINION OF THE REQUIRED LENDERS IS LIKELY TO, INCUR ANY LIABILITY IN
CONNECTION WITH A WITHDRAWAL FROM, OR THE INSOLVENCY OR REORGANIZATION OF,
A MULTIEMPLOYER PLAN OR (VI) ANY OTHER EVENT OR CONDITION SHALL OCCUR OR
EXIST WITH RESPECT TO A PLAN; BUT ONLY IF, IN EACH CASE IN CLAUSES (I)
THROUGH (VI) ABOVE, SUCH EVENT OR CONDITION, TOGETHER WITH ALL OTHER SUCH
EVENTS OR CONDITIONS, IF ANY, INVOLVE AN AGGREGATE AMOUNT IN EXCESS OF
US$3,000,000; OR
(H) ONE OR MORE JUDGMENTS OR DECREES SHALL BE ENTERED AGAINST
THE COMPANY OR ANY OF ITS SUBSIDIARIES INVOLVING IN THE AGGREGATE A
LIABILITY (NOT PAID OR FULLY COVERED BY INSURANCE) OF US$3,000,000 OR MORE,
AND ALL SUCH JUDGMENTS OR DECREES SHALL NOT HAVE BEEN VACATED, DISCHARGED,
STAYED OR BONDED PENDING APPEAL WITHIN 60 DAYS FROM THE ENTRY THEREOF; OR
(I) (I) ANY OF THE SECURITY DOCUMENTS SHALL CEASE, FOR ANY
REASON, TO BE IN FULL FORCE AND EFFECT, OR THE COMPANY OR ANY OTHER LOAN
PARTY WHICH IS A PARTY TO ANY OF THE SECURITY DOCUMENTS SHALL SO ASSERT; OR
(II) THE LIEN CREATED BY ANY OF THE SECURITY DOCUMENTS SHALL CEASE TO BE
ENFORCEABLE AND OF THE SAME EFFECT AND PRIORITY PURPORTED TO BE CREATED
THEREBY; OR (III) ANY GUARANTEE IN ANY OF THE SECURITY DOCUMENTS SHALL
CEASE, FOR ANY REASON, TO BE IN FULL FORCE AND EFFECT OR ANY LOAN PARTY
WHICH IS A GUARANTOR THEREUNDER SHALL SO ASSERT; OR
(J) ANY CHANGE OF CONTROL SHALL OCCUR; OR
92
(K) ANY "DISSOLUTION EVENT," AS DEFINED IN THE ARTICLES OF
ASSOCIATION OF THE CANADIAN BORROWER SHALL OCCUR;
THEN, AND IN ANY SUCH EVENT, (A) IF SUCH EVENT IS AN EVENT OF DEFAULT SPECIFIED
IN CLAUSE (I) OR (II) OF PARAGRAPH (F) OF THIS SECTION WITH RESPECT TO EITHER
BORROWER, AUTOMATICALLY THE COMMITMENTS SHALL IMMEDIATELY TERMINATE AND THE
LOANS HEREUNDER (INCLUDING (X) THE FACE AMOUNT OF ALL BANKERS' ACCEPTANCES
ACCEPTED BY ANY C$ LENDER AND (Y) THE DOLLAR EQUIVALENT AMOUNT OF ALL AMOUNTS OF
L/C OBLIGATIONS, WHETHER OR NOT THE BENEFICIARIES OF THE THEN OUTSTANDING
LETTERS OF CREDIT SHALL HAVE PRESENTED THE DOCUMENTS REQUIRED THEREUNDER), WITH
ACCRUED INTEREST THEREON, AND ALL OTHER AMOUNTS OWING UNDER THIS AGREEMENT 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) (X) WITH THE CONSENT OF THE REQUIRED US$ LENDERS, THE US
ADMINISTRATIVE AGENT MAY, OR UPON THE REQUEST OF THE REQUIRED US$ LENDERS,
THE US ADMINISTRATIVE AGENT SHALL, BY NOTICE TO THE COMPANY DECLARE THE US
COMMITMENTS TO BE TERMINATED FORTHWITH, WHEREUPON THE US COMMITMENTS SHALL
IMMEDIATELY TERMINATE; AND (Y) WITH THE CONSENT OF THE REQUIRED US$
LENDERS, THE US ADMINISTRATIVE AGENT MAY, OR UPON THE REQUEST OF THE
REQUIRED US$ LENDERS, THE US ADMINISTRATIVE AGENT SHALL, BY NOTICE TO THE
COMPANY, DECLARE THE US$ LOANS HEREUNDER (WITH ACCRUED INTEREST THEREON)
AND ALL OTHER AMOUNTS OWING UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (INCLUDING THE DOLLAR EQUIVALENT AMOUNT OF ALL AMOUNTS OF L/C
OBLIGATIONS, WHETHER OR NOT THE BENEFICIARIES OF THE THEN OUTSTANDING
LETTERS OF CREDIT SHALL HAVE PRESENTED THE DOCUMENTS REQUIRED THEREUNDER)
TO THE US$ LENDERS TO BE DUE AND PAYABLE FORTHWITH, WHEREUPON THE SAME
SHALL IMMEDIATELY BECOME DUE AND PAYABLE. WITH RESPECT TO ALL LETTERS OF
CREDIT WITH RESPECT TO WHICH PRESENTMENT FOR HONOR SHALL NOT HAVE OCCURRED
AT THE TIME OF AN ACCELERATION PURSUANT TO THIS PARAGRAPH, THE COMPANY
SHALL AT SUCH TIME DEPOSIT IN A CASH COLLATERAL ACCOUNT OPENED BY THE US
ADMINISTRATIVE AGENT AN AMOUNT EQUAL TO THE AGGREGATE THEN UNDRAWN AND
UNEXPIRED AMOUNT OF SUCH LETTERS OF CREDIT. AMOUNTS HELD IN SUCH CASH
COLLATERAL ACCOUNT SHALL BE APPLIED BY THE US ADMINISTRATIVE AGENT TO THE
PAYMENT OF DRAFTS DRAWN UNDER SUCH LETTERS OF CREDIT, AND THE UNUSED
PORTION THEREOF AFTER ALL SUCH LETTERS OF CREDIT SHALL HAVE EXPIRED OR BEEN
FULLY DRAWN UPON, IF ANY, SHALL BE APPLIED TO REPAY OTHER OBLIGATIONS OF
THE COMPANY HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS. AFTER 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 COMPANY 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 COMPANY (OR SUCH OTHER PERSON AS MAY BE
LAWFULLY ENTITLED THERETO); AND
93
(II) (X) WITH THE CONSENT OF THE REQUIRED C$ LENDERS, THE
CANADIAN ADMINISTRATIVE AGENT MAY, OR UPON THE REQUEST OF THE REQUIRED C$
LENDERS, THE CANADIAN ADMINISTRATIVE AGENT SHALL, BY NOTICE TO THE CANADIAN
BORROWER DECLARE THE CANADIAN COMMITMENTS TO BE TERMINATED FORTHWITH,
WHEREUPON THE CANADIAN COMMITMENTS SHALL IMMEDIATELY TERMINATE; AND (Y)
WITH THE CONSENT OF THE REQUIRED C$ LENDERS, THE CANADIAN ADMINISTRATIVE
AGENT MAY, OR UPON THE REQUEST OF THE REQUIRED C$ LENDERS, THE CANADIAN
ADMINISTRATIVE AGENT SHALL, BY NOTICE TO THE CANADIAN BORROWER DECLARE THE
C$ LOANS HEREUNDER (INCLUDING THE FACE AMOUNT OF ALL BANKERS' ACCEPTANCES
ACCEPTED BY ANY C$ LENDER), WITH ACCRUED INTEREST THEREON, AND ALL OTHER
AMOUNTS OWING UNDER THIS AGREEMENT TO THE CANADIAN LENDERS TO BE DUE AND
PAYABLE FORTHWITH, WHEREUPON THE SAME SHALL IMMEDIATELY BECOME DUE AND
PAYABLE.
EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION, PRESENTMENT, DEMAND, PROTEST
AND ALL OTHER NOTICES OF ANY KIND ARE HEREBY EXPRESSLY WAIVED.
SECTION 10. THE ADMINISTRATIVE AGENTS
10.1 APPOINTMENT. EACH LENDER HEREBY IRREVOCABLY DESIGNATES AND
-----------
APPOINTS THE ADMINISTRATIVE AGENTS AS THE AGENTS OF SUCH LENDER UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND EACH SUCH LENDER IRREVOCABLY
AUTHORIZES THE ADMINISTRATIVE AGENTS, IN SUCH CAPACITIES, 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 AGENTS 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 AGENTS SHALL NOT HAVE ANY DUTIES OR RESPONSIBILITIES, EXCEPT
THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, 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 EITHER ADMINISTRATIVE AGENT. THE BORROWERS
SHALL BE ENTITLED TO CONCLUSIVELY RELY UPON ANY STATEMENT MADE BY EITHER
ADMINISTRATIVE AGENT THAT IT HAS RECEIVED THE APPROVAL OF THE REQUIRED LENDERS,
THE REQUIRED US$ LENDERS, THE REQUIRED C$ LENDERS, ALL OF THE LENDERS, ALL OF
THE US$ LENDERS OR ALL OF THE C$ LENDERS.
10.2 DELEGATION OF DUTIES. EACH 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. NEITHER ADMINISTRATIVE AGENT
SHALL BE RESPONSIBLE TO ANY LENDER FOR THE NEGLIGENCE OR MISCONDUCT OF ANY
AGENTS OR ATTORNEYS IN-FACT SELECTED BY IT WITH REASONABLE CARE.
94
10.3 EXCULPATORY PROVISIONS. NEITHER ADMINISTRATIVE AGENT NOR ANY OF
----------------------
ITS 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 FOR 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 SUCH ADMINISTRATIVE AGENT 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 TO PERFORM ITS OBLIGATIONS
HEREUNDER OR THEREUNDER. NEITHER ADMINISTRATIVE AGENT SHALL 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.
10.4 RELIANCE BY ADMINISTRATIVE AGENT. EACH ADMINISTRATIVE AGENT
--------------------------------
SHALL BE ENTITLED TO RELY, AND SHALL BE FULLY PROTECTED IN RELYING, UPON ANY
NOTE, WRITING, RESOLUTION, NOTICE, CONSENT, CERTIFICATE, AFFIDAVIT, LETTER,
TELECOPY, TELEX OR TELETYPE MESSAGE, STATEMENT, ORDER OR OTHER DOCUMENT OR
CONVERSATION REASONABLY BELIEVED BY IT TO BE GENUINE AND CORRECT AND TO HAVE
BEEN SIGNED, SENT OR MADE BY THE PROPER PERSON OR PERSONS AND UPON ADVICE AND
STATEMENTS OF LEGAL COUNSEL (INCLUDING, WITHOUT LIMITATION, COUNSEL TO THE
BORROWERS), INDEPENDENT ACCOUNTANTS AND OTHER EXPERTS SELECTED BY THE
ADMINISTRATIVE AGENT. EACH 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 SUCH
ADMINISTRATIVE AGENT. EACH 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 AS IT DEEMS APPROPRIATE OR IT SHALL FIRST BE INDEMNIFIED TO ITS
SATISFACTION BY THE LENDERS AGAINST ANY AND ALL LIABILITY AND EXPENSE WHICH MAY
BE INCURRED BY IT BY REASON OF TAKING OR CONTINUING TO TAKE ANY SUCH ACTION.
EACH 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, 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.
10.5 NOTICE OF DEFAULT. NEITHER ADMINISTRATIVE AGENT SHALL BE DEEMED
-----------------
TO HAVE KNOWLEDGE OR NOTICE OF THE OCCURRENCE OF ANY DEFAULT OR EVENT OF DEFAULT
HEREUNDER UNLESS SUCH ADMINISTRATIVE AGENT HAS RECEIVED NOTICE FROM A LENDER OR
THE COMPANY REFERRING TO THIS AGREEMENT, DESCRIBING SUCH DEFAULT OR
95
EVENT OF DEFAULT AND STATING THAT SUCH NOTICE IS A "NOTICE OF DEFAULT." IN THE
EVENT THAT EITHER ADMINISTRATIVE AGENT RECEIVES SUCH A NOTICE, SUCH
ADMINISTRATIVE AGENT SHALL GIVE NOTICE THEREOF TO THE LENDERS. THE
ADMINISTRATIVE AGENTS SHALL TAKE SUCH ACTION WITH RESPECT TO SUCH DEFAULT OR
EVENT OF DEFAULT AS SHALL BE REASONABLY DIRECTED BY THE REQUIRED LENDERS;
PROVIDED THAT UNLESS AND UNTIL THE ADMINISTRATIVE AGENTS SHALL HAVE RECEIVED
--------
SUCH DIRECTIONS, THE ADMINISTRATIVE AGENTS 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 THEY SHALL DEEM ADVISABLE AND IN THE BEST
INTERESTS OF THE LENDERS.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENTS AND OTHER LENDERS. EACH
-------------------------------------------------------
LENDER EXPRESSLY ACKNOWLEDGES THAT NEITHER ADMINISTRATIVE AGENT NOR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT OR AFFILIATES HAS MADE
ANY REPRESENTATIONS OR WARRANTIES TO IT AND THAT NO ACT BY EITHER ADMINISTRATIVE
AGENT HEREINAFTER TAKEN, INCLUDING ANY REVIEW OF THE AFFAIRS OF EITHER BORROWER,
SHALL BE DEEMED TO CONSTITUTE ANY REPRESENTATION OR WARRANTY BY SUCH
ADMINISTRATIVE AGENT TO ANY LENDER. EACH LENDER REPRESENTS TO THE
ADMINISTRATIVE AGENTS THAT IT HAS, INDEPENDENTLY AND WITHOUT RELIANCE UPON
EITHER ADMINISTRATIVE 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 EITHER BORROWER 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 EITHER
ADMINISTRATIVE AGENT OR ANY OTHER LENDER, AND BASED ON SUCH DOCUMENTS AND
INFORMATION AS IT SHALL DEEM APPROPRIATE AT THE TIME, CONTINUE TO MAKE ITS OWN
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 ANY LOAN PARTY. EXCEPT
FOR NOTICES, REPORTS AND OTHER DOCUMENTS EXPRESSLY REQUIRED TO BE FURNISHED TO
THE LENDERS BY THE ADMINISTRATIVE AGENTS HEREUNDER, NEITHER ADMINISTRATIVE AGENT
SHALL 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 WHICH
MAY COME INTO THE POSSESSION OF SUCH ADMINISTRATIVE AGENT OR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS-IN-FACT OR AFFILIATES.
10.7 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE
---------------
ADMINISTRATIVE AGENTS IN THEIR RESPECTIVE CAPACITIES AS SUCH (TO THE EXTENT NOT
REIMBURSED BY THE BORROWERS AND WITHOUT LIMITING THE OBLIGATION OF EITHER
BORROWER TO DO SO), RATABLY ACCORDING TO THEIR RESPECTIVE COMMITMENT PERCENTAGES
IN EFFECT ON THE DATE ON WHICH INDEMNIFICATION IS SOUGHT, FROM AND AGAINST ANY
AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND WHATSOEVER WHICH
MAY AT ANY TIME (INCLUDING, WITHOUT LIMITATION, AT ANY TIME FOLLOWING THE
96
PAYMENT OF THE LOANS) BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE
ADMINISTRATIVE AGENTS 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 THE ADMINISTRATIVE AGENTS UNDER OR IN
CONNECTION WITH ANY OF THE FOREGOING; PROVIDED THAT NO LENDER SHALL BE LIABLE
--------
FOR THE PAYMENT OF ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS
RESULTING SOLELY FROM AN ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. THE AGREEMENTS IN THIS SUBSECTION SHALL SURVIVE THE PAYMENT OF THE
LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
10.8 ADMINISTRATIVE AGENTS IN THEIR INDIVIDUAL CAPACITY. THE
--------------------------------------------------
ADMINISTRATIVE AGENTS AND THEIR AFFILIATES MAY MAKE LOANS TO, ACCEPT DEPOSITS
FROM AND GENERALLY ENGAGE IN ANY KIND OF BUSINESS WITH EITHER BORROWER AS THOUGH
THE ADMINISTRATIVE AGENTS WERE NOT THE ADMINISTRATIVE AGENTS HEREUNDER AND UNDER
THE OTHER LOAN DOCUMENTS. WITH RESPECT TO THE LOANS MADE BY IT AND WITH RESPECT
TO ANY LETTER OF CREDIT ISSUED OR PARTICIPATED IN BY IT, EACH ADMINISTRATIVE
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 THE
ADMINISTRATIVE AGENT, AND THE TERMS "LENDER" AND "LENDERS" SHALL INCLUDE SUCH
ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
10.9 SUCCESSOR ADMINISTRATIVE AGENT. EACH ADMINISTRATIVE AGENT MAY
------------------------------
RESIGN AS ADMINISTRATIVE AGENT UPON 15 BUSINESS DAYS' PRIOR WRITTEN NOTICE TO
THE BORROWERS AND THE LENDERS. IF EITHER 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 (PROVIDED THAT IT SHALL HAVE BEEN APPROVED BY THE
COMPANY), SHALL SUCCEED TO THE RIGHTS, POWERS AND DUTIES OF SUCH ADMINISTRATIVE
AGENT HEREUNDER. SUCH RESIGNATION SHALL TAKE EFFECT UPON THE APPOINTMENT OF A
SUCCESSOR AGENT. EFFECTIVE UPON SUCH APPOINTMENT AND APPROVAL, THE TERM
"ADMINISTRATIVE AGENT" SHALL MEAN SUCH SUCCESSOR AGENT, AND SUCH 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. AFTER ANY RETIRING ADMINISTRATIVE AGENT'S RESIGNATION AS
ADMINISTRATIVE AGENT, THE PROVISIONS OF THIS SECTION 10 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.
SECTION 11. MISCELLANEOUS
97
11.1 AMENDMENTS AND WAIVERS. (A) NEITHER THIS AGREEMENT NOR ANY
----------------------
OTHER LOAN DOCUMENT, NOR ANY TERMS HEREOF OR THEREOF MAY BE AMENDED,
SUPPLEMENTED OR MODIFIED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THIS
SUBSECTION. THE REQUIRED LENDERS MAY, OR, WITH THE WRITTEN CONSENT OF THE
REQUIRED LENDERS, THE US ADMINISTRATIVE AGENT MAY, FROM TIME TO TIME, (1) ENTER
INTO WITH THE BORROWERS 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 OF
THE LENDERS OR OF THE BORROWERS HEREUNDER OR THEREUNDER OR (2) WAIVE, ON SUCH
TERMS AND CONDITIONS AS THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENTS, 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) REDUCE THE AMOUNT OR EXTEND THE SCHEDULED
DATE OF MATURITY OF ANY LOAN OR OF ANY INSTALLMENT THEREOF, OR REDUCE THE STATED
RATE OF ANY INTEREST OR FEE PAYABLE HEREUNDER OR EXTEND THE SCHEDULED DATE OF
ANY PAYMENT THEREOF OR INCREASE THE AMOUNT OR EXTEND THE EXPIRATION DATE OF ANY
LENDER'S COMMITMENTS, IN EACH CASE WITHOUT THE CONSENT OF EACH LENDER AFFECTED
THEREBY, OR (II) AMEND, MODIFY OR WAIVE ANY PROVISION OF THIS SUBSECTION OR
REDUCE THE PERCENTAGE SPECIFIED IN THE DEFINITION OF REQUIRED LENDERS OR CONSENT
TO THE ASSIGNMENT OR TRANSFER BY EITHER BORROWER OF ANY OF ITS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR RELEASE ALL OR
SUBSTANTIALLY ALL OF THE COLLATERAL, IN EACH CASE WITHOUT THE WRITTEN CONSENT OF
ALL THE LENDERS, OR (III) REDUCE THE PERCENTAGE SPECIFIED IN THE DEFINITION OF
REQUIRED US$ LENDERS OR REQUIRED C$ LENDERS WITHOUT THE WRITTEN CONSENT OF ALL
THE US$ LENDERS OR C$ LENDERS, RESPECTIVELY, OR (IV) AMEND, MODIFY OR WAIVE ANY
PROVISION OF SECTION 10 WITHOUT THE WRITTEN CONSENT OF THE THEN ADMINISTRATIVE
AGENTS, OR (V) AMEND, MODIFY OR WAIVE ANY PROVISION OF THIS AGREEMENT REGARDING
THE ALLOCATION OF PREPAYMENT AMOUNTS AMONG THE US$ LOANS AND THE C$ LOANS OR THE
APPLICATION OF SUCH PREPAYMENT AMOUNTS TO THE RESPECTIVE INSTALLMENTS OF
PRINCIPAL UNDER THE RESPECTIVE US$ LOANS AND C$ LOANS WITHOUT THE WRITTEN
CONSENT OF THE REQUIRED US$ LENDERS AND THE REQUIRED C$ LENDERS; OR (VI) SUBJECT
TO CLAUSE (I) OF THIS PROVISO AS IT RELATES TO REDUCING THE AMOUNT OR EXTENDING
THE SCHEDULED DATE OF MATURITY OF ANY LOAN OR ANY INSTALLMENT THEREOF, AMEND,
MODIFY OR WAIVE ANY PROVISION OF (X) SECTION 2 WITHOUT THE WRITTEN CONSENT OF
THE REQUIRED US$ LENDERS OR (Y) SECTION 3 WITHOUT THE WRITTEN CONSENT OF THE
REQUIRED C$ 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 BORROWERS, THE LENDERS, THE ADMINISTRATIVE AGENTS AND ALL FUTURE
HOLDERS OF THE LOANS. IN THE CASE OF ANY WAIVER, THE BORROWERS, THE LENDERS AND
THE ADMINISTRATIVE AGENTS SHALL BE RESTORED TO THEIR FORMER POSITIONS 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; NO SUCH WAIVER
SHALL EXTEND TO ANY SUBSEQUENT OR OTHER DEFAULT OR EVENT OF DEFAULT OR IMPAIR
ANY RIGHT CONSEQUENT THEREON.
98
(B) IF IN CONNECTION WITH ANY PROPOSED AMENDMENT, SUPPLEMENT, WAIVER
OR OTHER MODIFICATION OF ANY OF THE PROVISIONS OF THIS AGREEMENT AS CONTEMPLATED
BY SUBSECTION 11.1(A), THE CONSENT OF THE REQUIRED LENDERS OR OF ALL OF THE
LENDERS, AS THE CASE MAY BE, FOR THE RELEVANT LEVEL OF CONSENT REQUIRED, IS NOT
OBTAINED, THE BORROWERS SHALL HAVE THE RIGHTS AS FOLLOWS. IN MATTERS REQUIRING
THE CONSENT OF ALL LENDERS OR THE CONSENT OF THE REQUIRED LENDERS, THE BORROWERS
SHALL HAVE THE RIGHT TO REQUIRE ANY NONCONSENTING LENDER TO TRANSFER OR ASSIGN,
IN WHOLE OR IN PART, WITHOUT RECOURSE (IN ACCORDANCE WITH SUBSECTION 11.6) ALL
OR PART OF ITS INTEREST, RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT TO ANOTHER
PERSON (PROVIDED THAT THE RELEVANT BORROWER WITH THE REASONABLE COOPERATION OF
SUCH LENDER IDENTIFIES A PERSON WHICH IS READY, WILLING AND ABLE TO BE AN
ASSIGNEE WITH RESPECT TO THERETO WHICH SHALL ASSUME SUCH ASSIGNED OBLIGATIONS
(WHICH ASSIGNEE MAY BE ANOTHER LENDER, IF SUCH ASSIGNEE LENDER ACCEPTS SUCH
ASSIGNMENT); PROVIDED THAT (A) THE ASSIGNEE SHALL HAVE PAID TO SUCH LENDER IN
--------
IMMEDIATELY AVAILABLE FUNDS AN AMOUNT EQUAL TO THE PRINCIPAL OF AND INTEREST
ACCRUED TO THE DATE OF SUCH PAYMENT ON THE LOANS MADE BY IT HEREUNDER AND ALL
OTHER AMOUNTS OWED TO IT HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY AMOUNTS
THAT WOULD BE OWING UNDER SUBSECTION 4.12 IF SUCH LOANS WERE PREPAID ON THE DATE
OF SUCH ASSIGNMENT, AND (B) SUCH ASSIGNMENT OF THE COMMITMENT OF SUCH LENDER AND
PREPAYMENT OF LOANS DOES NOT CONFLICT WITH ANY LAW, RULE OR REGULATION OR ORDER
OF ANY GOVERNMENTAL AUTHORITY. IN CASES WHERE THE CONSENT REFERRED TO ABOVE IS
ONLY WITH RESPECT TO THE REQUIRED C$ LENDERS OR REQUIRED US$ LENDERS, THE
FOREGOING PROVISIONS SHALL ONLY APPLY TO THE REQUIRED C$ LENDERS OR REQUIRED US$
LENDERS, AS THE CASE MAY BE.
11.2 NOTICES. UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, ALL
-------
NOTICES, REQUESTS AND DEMANDS TO OR UPON THE RESPECTIVE PARTIES HERETO TO BE
EFFECTIVE SHALL BE IN WRITING (INCLUDING BY FACSIMILE TRANSMISSION) AND, UNLESS
OTHERWISE EXPRESSLY PROVIDED HEREIN, SHALL BE DEEMED TO HAVE BEEN DULY GIVEN OR
MADE (A) IN THE CASE OF DELIVERY BY HAND, WHEN DELIVERED, (B) IN THE CASE OF
DELIVERY BY MAIL, THREE DAYS AFTER BEING DEPOSITED IN THE MAILS, POSTAGE
PREPAID, OR (C) IN THE CASE OF DELIVERY BY FACSIMILE TRANSMISSION, WHEN SENT AND
RECEIPT HAS BEEN CONFIRMED, ADDRESSED AS FOLLOWS IN THE CASE OF THE BORROWERS
AND THE ADMINISTRATIVE AGENTS, AND AS SET FORTH IN SCHEDULE 1.1 IN THE CASE OF
THE OTHER PARTIES HERETO, OR TO SUCH OTHER ADDRESS AS MAY BE HEREAFTER NOTIFIED
BY THE RESPECTIVE PARTIES HERETO:
COMPANY: XXXXXX XXXXX CORP.
000 XXXX XXXXXX
XXXX XX XXXXXXX, XX 00000
ATTENTION: PRESIDENT
FAX: (000) 000-0000
CANADIAN
BORROWER: XXXXXX XXXXX COMMAND COMPANY
000 XXXXXXXXX XXXX
XXXXXXXX, XXXXXX, XXXXXXX, X0X 0X0
FAX: (000) 000-0000
99
WITH A COPY TO:
--------------
XXXXXX XXXXX CORP.
000 XXXX XXXXXX
XXXX XX XXXXXXX, XX 00000
ATTENTION: PRESIDENT
FAX: (000) 000-0000
US ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, SYNDICATIONS
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: XXXXX XXXXX
FAX: (000) 000-0000
WITH A COPY TO:
---------------
CIBC WOOD GUNDY SECURITIES CORP.
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: XXXXXX XXXXXXXX
FAX: (000) 000-0000
CANADIAN
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE,
COMMERCE COURT WEST 7
TORONTO, ONTARIO, CANADA N5L 1A2
ATTENTION: XXXXX XXXXXXXX
FAX: 000-000-0000
PROVIDED THAT ANY NOTICE, REQUEST OR DEMAND TO OR UPON THE ADMINISTRATIVE AGENTS
--------
OR THE LENDERS PURSUANT TO SECTION 2, 3 OR 4 SHALL NOT BE EFFECTIVE UNTIL
RECEIVED.
11.3 NO WAIVER; CUMULATIVE REMEDIES. NO FAILURE TO EXERCISE AND NO
------------------------------
DELAY IN EXERCISING, ON THE PART OF EITHER ADMINISTRATIVE AGENT OR ANY LENDER,
ANY RIGHT, REMEDY, POWER OR PRIVILEGE HEREUNDER OR 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.
11.4 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 HEREUNDER.
100
11.5 PAYMENT OF EXPENSES AND TAXES. THE COMPANY AGREES (A) TO PAY OR
-----------------------------
REIMBURSE EACH ADMINISTRATIVE AGENT FOR ALL ITS REASONABLE OUT-OF-POCKET COSTS
AND EXPENSES INCURRED IN CONNECTION WITH THE PREPARATION AND EXECUTION OF, AND
ANY AMENDMENT, SUPPLEMENT OR MODIFICATION TO, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND ANY OTHER DOCUMENTS PREPARED IN CONNECTION HEREWITH OR THEREWITH
INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
TO THE ADMINISTRATIVE AGENTS, (B) TO PAY OR REIMBURSE EACH LENDER AND EACH
ADMINISTRATIVE AGENT FOR ALL OF ITS COSTS AND EXPENSES INCURRED IN CONNECTION
WITH THE ENFORCEMENT OR PRESERVATION OF ANY RIGHTS UNDER THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS AND ANY SUCH OTHER DOCUMENTS FOLLOWING AN EVENT OF DEFAULT,
INCLUDING, WITHOUT LIMITATION, THE FEES AND DISBURSEMENTS OF COUNSEL TO EACH
LENDER AND OF COUNSEL TO EACH ADMINISTRATIVE AGENT, (C) TO PAY, INDEMNIFY, AND
HOLD EACH LENDER AND EACH ADMINISTRATIVE AGENT HARMLESS FROM, ANY AND ALL
RECORDING AND FILING FEES AND ANY AND ALL LIABILITIES WITH RESPECT TO, OR
RESULTING FROM ANY DELAY (OTHER THAN DELAY CAUSED BY ANY ADMINISTRATIVE AGENT OR
LENDER) IN PAYING, STAMP, EXCISE AND OTHER TAXES, IF ANY, WHICH MAY BE PAYABLE
OR DETERMINED TO BE PAYABLE IN CONNECTION WITH THE EXECUTION AND DELIVERY OF, OR
CONSUMMATION 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 OTHER DOCUMENTS PREPARED IN
CONNECTION HEREWITH, AND (D) TO PAY, INDEMNIFY, AND HOLD EACH LENDER AND EACH
ADMINISTRATIVE AGENT HARMLESS FROM AND AGAINST ANY AND ALL OTHER LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE
EXECUTION, DELIVERY, ENFORCEMENT, AND PERFORMANCE OF THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND ANY SUCH OTHER DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY
OF THE FOREGOING RELATING TO THE VIOLATION OF, NONCOMPLIANCE WITH OR LIABILITY
UNDER, ANY ENVIRONMENTAL LAW APPLICABLE TO THE OPERATIONS OF EITHER BORROWER,
ANY OF THEIR SUBSIDIARIES OR ANY OF THEIR PROPERTIES (ALL THE FOREGOING IN THIS
CLAUSE (D), COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), PROVIDED THAT NEITHER
----------------------- --------
BORROWER SHALL HAVE ANY OBLIGATION HEREUNDER TO EITHER ADMINISTRATIVE AGENT OR
ANY LENDER WITH RESPECT TO INDEMNIFIED LIABILITIES ARISING FROM THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER ADMINISTRATIVE AGENT OR ANY SUCH
LENDER. THE AGREEMENTS IN THIS SUBSECTION SHALL SURVIVE REPAYMENT OF THE LOANS
AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
11.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (A)
------------------------------------------------------
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE BORROWERS,
THE LENDERS, THE ADMINISTRATIVE AGENTS AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, EXCEPT THAT NEITHER BORROWER MAY ASSIGN OR TRANSFER ANY OF ITS RIGHTS
OR OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF EACH
LENDER.
(B) ANY LENDER MAY, WITH THE CONSENT OF THE RELEVANT BORROWER AND THE
RELEVANT ADMINISTRATIVE AGENT (WHICH IN EACH CASE
101
SHALL NOT BE UNREASONABLY WITHHELD), IN THE ORDINARY COURSE OF ITS COMMERCIAL
BANKING BUSINESS AND IN ACCORDANCE WITH APPLICABLE LAW, AT ANY TIME SELL TO ONE
OR MORE BANKS OR OTHER ENTITIES ("PARTICIPANTS") PARTICIPATING INTERESTS IN ANY
------------
LOAN OWING TO SUCH LENDER, ANY COMMITMENT OF SUCH LENDER OR ANY OTHER INTEREST
OF SUCH LENDER HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS. IN THE EVENT OF ANY
SUCH SALE BY A LENDER OF A PARTICIPATING INTEREST TO A PARTICIPANT, SUCH
LENDER'S OBLIGATIONS UNDER THIS AGREEMENT TO THE OTHER PARTIES TO THIS AGREEMENT
SHALL REMAIN UNCHANGED, SUCH LENDER SHALL REMAIN SOLELY RESPONSIBLE FOR THE
PERFORMANCE THEREOF, SUCH LENDER SHALL REMAIN THE HOLDER OF ANY SUCH LOAN FOR
ALL PURPOSES UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AND THE
BORROWERS AND THE ADMINISTRATIVE AGENTS SHALL CONTINUE TO DEAL SOLELY AND
DIRECTLY WITH SUCH LENDER IN CONNECTION WITH SUCH LENDER'S RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. NO LENDER SHALL
BE ENTITLED TO CREATE IN FAVOR OF ANY PARTICIPANT, IN THE PARTICIPATION
AGREEMENT PURSUANT TO WHICH SUCH PARTICIPANT'S PARTICIPATING INTEREST SHALL BE
CREATED OR OTHERWISE, ANY RIGHT TO VOTE ON, CONSENT TO OR APPROVE ANY MATTER
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT EXCEPT FOR THOSE SPECIFIED
IN CLAUSES (I) AND (II) OF THE PROVISO TO SUBSECTION 11.1(A). EACH BORROWER
AGREES THAT IF AMOUNTS OUTSTANDING UNDER THIS AGREEMENT ARE DUE OR UNPAID, OR
SHALL HAVE BEEN DECLARED OR SHALL HAVE BECOME DUE AND PAYABLE UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT, EACH PARTICIPANT SHALL, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, BE DEEMED TO HAVE THE RIGHT OF SETOFF IN RESPECT OF
ITS PARTICIPATING INTEREST IN AMOUNTS OWING UNDER THIS AGREEMENT TO THE SAME
EXTENT AS IF THE AMOUNT OF ITS PARTICIPATING INTEREST WERE OWING DIRECTLY TO IT
AS A LENDER UNDER THIS AGREEMENT, PROVIDED THAT, IN PURCHASING SUCH
--------
PARTICIPATING INTEREST, SUCH PARTICIPANT SHALL BE DEEMED TO HAVE AGREED TO SHARE
WITH THE LENDERS THE PROCEEDS THEREOF AS PROVIDED IN SUBSECTION 11.7(A) AS FULLY
AS IF IT WERE A LENDER HEREUNDER. THE COMPANY ALSO AGREES THAT EACH PARTICIPANT
SHALL BE ENTITLED TO THE BENEFITS OF SUBSECTIONS 4.10, 4.11 AND 4.12 WITH
RESPECT TO ITS PARTICIPATION IN THE COMMITMENTS AND THE LOANS OUTSTANDING FROM
TIME TO TIME AS IF IT WAS A LENDER; PROVIDED THAT, IN THE CASE OF SUBSECTION
--------
4.11, SUCH PARTICIPANT SHALL HAVE COMPLIED WITH THE REQUIREMENTS OF SAID
SUBSECTION AND PROVIDED, FURTHER, THAT NO PARTICIPANT SHALL BE ENTITLED TO
-------- -------
RECEIVE ANY GREATER AMOUNT PURSUANT TO ANY SUCH SUBSECTION THAN THE TRANSFEROR
LENDER WOULD HAVE BEEN ENTITLED TO RECEIVE IN RESPECT OF THE AMOUNT OF THE
PARTICIPATION TRANSFERRED BY SUCH TRANSFEROR LENDER TO SUCH PARTICIPANT HAD NO
SUCH TRANSFER OCCURRED.
(C) ANY LENDER MAY, IN THE ORDINARY COURSE OF ITS BUSINESS AND IN
ACCORDANCE WITH APPLICABLE LAW, AT ANY TIME AND FROM TIME TO TIME ASSIGN TO ANY
LENDER OR ANY AFFILIATE THEREOF OR, WITH THE CONSENT OF THE RELEVANT BORROWER
AND THE RELEVANT ADMINISTRATIVE AGENT (WHICH IN EACH CASE SHALL NOT BE
UNREASONABLY WITHHELD), TO AN ADDITIONAL BANK OR FINANCIAL INSTITUTION (AN
"ASSIGNEE") ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
--------
AND THE OTHER LOAN DOCUMENTS PURSUANT TO AN ASSIGNMENT AND ACCEPTANCE (AN
"ASSIGNMENT AND ACCEPTANCE"), SUBSTANTIALLY IN THE FORM OF EXHIBIT G, EXECUTED
-------------------------
BY SUCH ASSIGNEE, SUCH ASSIGNING LENDER (AND, IN THE CASE
102
OF AN ASSIGNEE THAT IS NOT THEN A LENDER OR AN AFFILIATE THEREOF, BY THE
COMPANY, THE ISSUING LENDER AND THE RELEVANT ADMINISTRATIVE AGENT) AND DELIVERED
TO THE RELEVANT ADMINISTRATIVE AGENT FOR ITS ACCEPTANCE AND RECORDING IN THE
RELEVANT REGISTER, PROVIDED THAT, IN THE CASE OF ANY SUCH ASSIGNMENT TO AN
--------
ADDITIONAL BANK OR FINANCIAL INSTITUTION, THE SUM OF THE AGGREGATE PRINCIPAL
AMOUNT OF THE LOANS AND THE AGGREGATE AMOUNT OF THE AVAILABLE US COMMITMENT OR
AVAILABLE CANADIAN COMMITMENT, AS THE CASE MAY BE, BEING ASSIGNED IS EQUAL TO AT
LEAST US$10,000,000 AND C$10,000,000, RESPECTIVELY (OR SUCH LESSER AMOUNT AS MAY
BE AGREED TO BY THE RELEVANT BORROWER AND THE RELEVANT ADMINISTRATIVE AGENT).
UPON SUCH EXECUTION, DELIVERY, ACCEPTANCE AND RECORDING, FROM AND AFTER THE
EFFECTIVE DATE DETERMINED PURSUANT TO SUCH ASSIGNMENT AND ACCEPTANCE, (X) THE
ASSIGNEE THEREUNDER SHALL BE A PARTY HERETO AND, TO THE EXTENT PROVIDED IN SUCH
ASSIGNMENT AND ACCEPTANCE, HAVE THE RIGHTS AND OBLIGATIONS OF A LENDER HEREUNDER
WITH A COMMITMENT AS SET FORTH THEREIN, AND (Y) THE ASSIGNING LENDER THEREUNDER
SHALL, TO THE EXTENT PROVIDED IN SUCH ASSIGNMENT AND ACCEPTANCE, BE RELEASED
FROM ITS OBLIGATIONS UNDER THIS AGREEMENT (AND, IN THE CASE OF AN ASSIGNMENT AND
ACCEPTANCE COVERING ALL OR THE REMAINING PORTION OF AN ASSIGNING LENDER'S RIGHTS
AND OBLIGATIONS UNDER THIS AGREEMENT, SUCH ASSIGNING LENDER SHALL CEASE TO BE A
PARTY HERETO). NOTWITHSTANDING ANY PROVISION OF THIS PARAGRAPH (C) AND PARAGRAPH
(E) OF THIS SUBSECTION, THE CONSENT OF EITHER BORROWER SHALL NOT BE REQUIRED,
AND, UNLESS REQUESTED BY THE ASSIGNEE AND/OR THE ASSIGNING LENDER, NEW NOTES
SHALL NOT BE REQUIRED TO BE EXECUTED AND DELIVERED BY THE RELEVANT BORROWER, FOR
ANY ASSIGNMENT WHICH OCCURS AT ANY TIME WHEN ANY OF THE EVENTS DESCRIBED IN
SUBSECTION 9(F) SHALL HAVE OCCURRED AND BE CONTINUING.
(D) EACH ADMINISTRATIVE AGENT, ON BEHALF OF THE RELEVANT BORROWER
SHALL MAINTAIN AT THE ADDRESS OF SUCH ADMINISTRATIVE AGENT REFERRED TO IN
SUBSECTION 11.2 A COPY OF EACH ASSIGNMENT AND ACCEPTANCE DELIVERED TO IT AND A
REGISTER (EACH A "REGISTER") FOR THE RECORDATION OF THE NAMES AND ADDRESSES OF
--------
THE LENDERS AND THE COMMITMENTS OF, AND PRINCIPAL AMOUNTS OF THE LOANS OWING TO,
EACH LENDER FROM TIME TO TIME. THE ENTRIES IN THE REGISTER SHALL BE CONCLUSIVE,
IN THE ABSENCE OF MANIFEST ERROR, AND THE BORROWERS, THE ADMINISTRATIVE AGENTS
AND THE LENDERS MAY (AND, IN THE CASE OF ANY LOAN OR OTHER OBLIGATION HEREUNDER
NOT EVIDENCED BY A NOTE, SHALL) TREAT EACH PERSON WHOSE NAME IS RECORDED IN THE
REGISTERS AS THE OWNER OF A LOAN OR OTHER OBLIGATION HEREUNDER AS THE OWNER
THEREOF FOR ALL PURPOSES OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
NOTWITHSTANDING ANY NOTICE TO THE CONTRARY. ANY ASSIGNMENT OF ANY LOAN OR OTHER
OBLIGATION HEREUNDER NOT EVIDENCED BY A NOTE SHALL BE EFFECTIVE ONLY UPON
APPROPRIATE ENTRIES WITH RESPECT THERETO BEING MADE IN THE RELEVANT REGISTER.
THE REGISTERS SHALL BE AVAILABLE FOR INSPECTION BY EITHER BORROWER OR ANY LENDER
AT ANY REASONABLE TIME AND FROM TIME TO TIME UPON REASONABLE PRIOR NOTICE.
(E) UPON ITS RECEIPT OF AN ASSIGNMENT AND ACCEPTANCE EXECUTED BY AN
ASSIGNING LENDER AND AN ASSIGNEE (AND, IN THE CASE OF AN ASSIGNEE THAT IS NOT
THEN A LENDER OR AN AFFILIATE THEREOF, BY THE RELEVANT BORROWER, THE ISSUING
LENDER AND THE RELEVANT
103
ADMINISTRATIVE AGENT) TOGETHER WITH PAYMENT BY THE ASSIGNEE AND/OR THE ASSIGNING
LENDER TO THE US ADMINISTRATIVE AGENT OF A REGISTRATION AND PROCESSING FEE OF
US$3,500, THE US ADMINISTRATIVE AGENT SHALL (I) PROMPTLY ACCEPT SUCH ASSIGNMENT
AND ACCEPTANCE AND (II) ON THE EFFECTIVE DATE DETERMINED PURSUANT THERETO RECORD
THE INFORMATION CONTAINED THEREIN IN THE REGISTER AND GIVE NOTICE OF SUCH
ACCEPTANCE AND RECORDATION TO THE LENDERS AND THE RELEVANT BORROWER.
(F) EACH BORROWER AUTHORIZES EACH LENDER TO DISCLOSE TO ANY
PARTICIPANT OR ASSIGNEE (EACH, A "TRANSFEREE") AND ANY PROSPECTIVE TRANSFEREE
----------
APPROVED BY THE COMPANY ANY AND ALL FINANCIAL INFORMATION IN SUCH LENDER'S
POSSESSION CONCERNING SUCH BORROWER AND ITS SUBSIDIARIES WHICH HAS BEEN
DELIVERED TO SUCH LENDER BY OR ON BEHALF OF SUCH BORROWER PURSUANT TO THIS
AGREEMENT OR WHICH HAS BEEN DELIVERED TO SUCH LENDER BY OR ON BEHALF OF SUCH
BORROWER IN CONNECTION WITH SUCH LENDER'S CREDIT EVALUATION OF SUCH BORROWER AND
ITS SUBSIDIARIES PRIOR TO BECOMING A PARTY TO THIS AGREEMENT; PROVIDED THAT SUCH
--------
TRANSFEREE OR PROSPECTIVE TRANSFEREE AGREES TO BE BOUND BY THE PROVISIONS OF
SUBSECTION 11.16.
(G) FOR AVOIDANCE OF DOUBT, THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE
THAT THE PROVISIONS OF THIS SUBSECTION CONCERNING ASSIGNMENTS OF LOANS AND NOTES
RELATE ONLY TO ABSOLUTE ASSIGNMENTS AND THAT SUCH PROVISIONS DO NOT PROHIBIT
ASSIGNMENTS CREATING SECURITY INTERESTS, INCLUDING, WITHOUT LIMITATION, ANY
PLEDGE OR ASSIGNMENT BY A LENDER OF ANY LOAN OR NOTE TO ANY FEDERAL RESERVE BANK
IN ACCORDANCE WITH APPLICABLE LAW.
11.7 ADJUSTMENTS; SET-OFF. (A) IF ANY LENDER (A "BENEFITTED
-------------------- ----------
LENDER") SHALL AT ANY TIME RECEIVE ANY PAYMENT OF ALL OR PART OF ITS LOANS WHICH
------
SHALL HAVE BEEN MADE UNDER EITHER COMMITMENT, OR INTEREST THEREON, OR RECEIVE
ANY COLLATERAL IN RESPECT THEREOF (WHETHER VOLUNTARILY OR INVOLUNTARILY, BY SET-
OFF, PURSUANT TO EVENTS OR PROCEEDINGS OF THE NATURE REFERRED TO IN SUBSECTION
9(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 LOANS MADE UNDER SUCH COMMITMENT, OR INTEREST THEREON, SUCH BENEFITTED
LENDER SHALL PURCHASE FOR CASH FROM THE OTHER LENDERS A PARTICIPATING INTEREST
IN SUCH PORTION OF EACH SUCH OTHER LENDER'S LOAN, OR SHALL PROVIDE SUCH OTHER
LENDERS WITH THE BENEFITS OF ANY SUCH COLLATERAL, OR THE PROCEEDS THEREOF, AS
SHALL BE NECESSARY TO CAUSE SUCH BENEFITTED LENDER TO SHARE THE EXCESS PAYMENT
OR BENEFITS OF SUCH COLLATERAL OR PROCEEDS RATABLY WITH EACH OF THE LENDERS
WHICH HOLD LOANS MADE UNDER SUCH COMMITMENT; 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 EITHER BORROWER,
ANY SUCH NOTICE BEING EXPRESSLY WAIVED BY
104
SUCH BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW, UPON ANY AMOUNT
BECOMING DUE AND PAYABLE BY SUCH BORROWER HEREUNDER (WHETHER AT THE STATED
MATURITY, BY ACCELERATION OR OTHERWISE) TO SET-OFF AND APPROPRIATE AND APPLY
AGAINST SUCH AMOUNT ANY AND ALL DEPOSITS (GENERAL OR SPECIAL, TIME OR DEMAND,
PROVISIONAL OR FINAL), 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
RELEVANT US ADMINISTRATIVE AGENT AFTER ANY SUCH SET-OFF AND APPLICATION MADE BY
SUCH LENDER, PROVIDED THAT THE FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE
--------
VALIDITY OF SUCH SET-OFF AND APPLICATION.
11.8 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED BY ONE OR MORE OF
------------
THE PARTIES TO THIS AGREEMENT ON ANY NUMBER OF SEPARATE COUNTERPARTS (INCLUDING
BY FACSIMILE TRANSMISSION), AND ALL OF SAID COUNTERPARTS TAKEN TOGETHER SHALL BE
DEEMED TO CONSTITUTE ONE AND THE SAME INSTRUMENT. A SET OF THE COPIES OF THIS
AGREEMENT SIGNED BY ALL THE PARTIES SHALL BE LODGED WITH EACH BORROWER AND EACH
ADMINISTRATIVE AGENT.
11.9 SEVERABILITY. ANY PROVISION OF THIS AGREEMENT WHICH 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.
11.10 INTEGRATION. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
-----------
REPRESENT THE AGREEMENT OF THE BORROWERS, THE ADMINISTRATIVE AGENTS AND THE
LENDERS WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND THERE ARE NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY EITHER ADMINISTRATIVE AGENT,
EITHER BORROWER OR ANY LENDER RELATIVE TO THE SUBJECT MATTER HEREOF NOT
EXPRESSLY SET FORTH OR REFERRED TO HEREIN OR IN THE OTHER LOAN DOCUMENTS.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
105
11.12 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 JUDGEMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA 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 SUCH BORROWER AT ITS ADDRESS SET FORTH IN SUBSECTION 11.2 OR AT
SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENTS 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 SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
11.13 FOREIGN CURRENCY JUDGMENTS. (A) IF, FOR THE PURPOSE OF
--------------------------
OBTAINING JUDGMENT IN ANY COURT, IT IS NECESSARY TO CONVERT A SUM DUE HEREUNDER
IN ONE CURRENCY INTO ANOTHER CURRENCY, EACH LOAN PARTY AGREES, TO THE FULLEST
EXTENT THAT IT MAY EFFECTIVELY DO SO, THAT THE RATE OF EXCHANGE USED SHALL BE
THAT AT WHICH IN ACCORDANCE WITH NORMAL BANKING PROCEDURES IN THE RELEVANT
JURISDICTION THE RELEVANT LENDER (OR AGENT ACTING ON ITS BEHALF) OR THE RELEVANT
ADMINISTRATIVE AGENT COULD PURCHASE THE FIRST CURRENCY WITH SUCH OTHER CURRENCY
FOR THE FIRST CURRENCY ON THE BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON
WHICH FINAL JUDGMENT IS GIVEN.
(B) THE OBLIGATIONS OF EACH LOAN PARTY IN RESPECT OF ANY SUM DUE
HEREUNDER SHALL, NOTWITHSTANDING ANY JUDGMENT IN A CURRENCY (THE "JUDGMENT
--------
CURRENCY") OTHER THAN THAT IN WHICH SUCH SUM IS DENOMINATED IN ACCORDANCE WITH
--------
THIS AGREEMENT (THE "AGREEMENT CURRENCY"), BE DISCHARGED ONLY TO THE EXTENT
------------------
THAT, ON THE BUSINESS DAY FOLLOWING RECEIPT BY ANY LENDER (OR AGENT ACTING ON
ITS BEHALF) (THE "APPLICABLE CREDITOR") OF ANY SUM ADJUDGED TO BE SO
-------------------
106
DUE IN THE JUDGMENT CURRENCY, THE APPLICABLE CREDITOR MAY IN ACCORDANCE WITH
NORMAL BANKING PROCEDURES IN THE RELEVANT JURISDICTION PURCHASE THE AGREEMENT
CURRENCY WITH THE JUDGMENT CURRENCY; IF THE AMOUNT OF THE AGREEMENT CURRENCY SO
PURCHASED IS LESS THAN THE SUM ORIGINALLY DUE TO THE APPLICABLE CREDITOR IN THE
AGREEMENT CURRENCY, SUCH LOAN PARTY AGREES, AS A SEPARATE OBLIGATION AND
NOTWITHSTANDING ANY SUCH JUDGMENT, TO INDEMNIFY THE APPLICABLE CREDITOR AGAINST
SUCH LOSS, PROVIDED THAT IF THE AMOUNT OF THE AGREEMENT CURRENCY SO PURCHASED
--------
EXCEEDS THE SUM ORIGINALLY DUE TO THE APPLICABLE CREDITOR, THE APPLICABLE
CREDITOR AGREES TO REMIT SUCH EXCESS TO SUCH LOAN PARTY. THE OBLIGATIONS OF EACH
LOAN PARTY AND LENDER CONTAINED IN THIS SUBSECTION SHALL SURVIVE THE TERMINATION
OF THIS AGREEMENT AND THE PAYMENT OF ALL AMOUNTS OWING HEREUNDER.
11.14 ACKNOWLEDGEMENTS. 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) NONE OF EITHER ADMINISTRATIVE AGENT NOR ANY LENDER HAS ANY
FIDUCIARY RELATIONSHIP WITH OR DUTY TO THE BORROWERS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND THE
RELATIONSHIP BETWEEN ADMINISTRATIVE AGENT AND LENDERS, ON ONE HAND, AND THE
BORROWERS, 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.
11.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
---------------------
AGENTS 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.
107
11.16 CONFIDENTIALITY. EACH LENDER AGREES TO KEEP CONFIDENTIAL ALL
---------------
NON-PUBLIC INFORMATION PROVIDED TO IT BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND TO USE SUCH
INFORMATION SOLELY FOR THE PURPOSES CONTEMPLATED BY THIS AGREEMENT; PROVIDED
--------
THAT NOTHING HEREIN SHALL PREVENT ANY LENDER FROM DISCLOSING ANY SUCH
INFORMATION (I) TO EITHER ADMINISTRATIVE AGENT OR ANY OTHER LENDER, (II) TO ANY
TRANSFEREE WHICH RECEIVES SUCH INFORMATION HAVING BEEN MADE AWARE OF THE
CONFIDENTIAL NATURE THEREOF AND WHICH AGREES TO COMPLY WITH THE PROVISIONS OF
THIS SUBSECTION, (III) TO ITS EMPLOYEES, DIRECTORS, AGENTS, ATTORNEYS,
ACCOUNTANTS AND OTHER PROFESSIONAL ADVISORS WHO ARE ADVISED OF THE CONFIDENTIAL
NATURE OF SUCH INFORMATION, (IV) UPON THE REQUEST OR DEMAND OF ANY GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SUCH LENDER, (V) IN RESPONSE TO ANY ORDER OF
ANY COURT OR OTHER GOVERNMENTAL AUTHORITY OR AS MAY OTHERWISE BE REQUIRED
PURSUANT TO ANY REQUIREMENT OF LAW, (VI) WHICH HAS BEEN PUBLICLY DISCLOSED OTHER
THAN IN BREACH OF THIS AGREEMENT, OR (VII) IN CONNECTION WITH THE EXERCISE OF
ANY REMEDY HEREUNDER.
11.17 CONFLICTS. IN CASE OF ANY CONFLICT OR INCONSISTENCY BETWEEN
---------
THE PROVISIONS OF THIS AGREEMENT AND THE PROVISIONS OF ANY OTHER LOAN DOCUMENT,
THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL.
11.18 REFERENCE TO AND EFFECT ON THE EXISTING CREDIT AGREEMENT. ON
--------------------------------------------------------
AND AFTER THE DATE HEREOF, EACH REFERENCE TO THE "CREDIT AGREEMENT" IN ANY OF
THE SECURITY DOCUMENTS, THE OTHER LOAN DOCUMENTS AND ALL OTHER AGREEMENTS,
DOCUMENTS AND INSTRUMENTS DELIVERED BY ALL OR ANY ONE OR MORE OF THE BORROWERS,
THE LENDERS, THE ADMINISTRATIVE AGENTS AND ANY OTHER PERSON SHALL MEAN AND BE A
REFERENCE TO THIS AGREEMENT. EXCEPT AS SPECIFICALLY AMENDED HEREBY, THE
EXISTING CREDIT AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT IN THE FORM OF
THIS AGREEMENT, AND IS HEREBY RATIFIED AND CONFIRMED IN SUCH FORM.
11.19 AUTHORIZATION FOR QUEBEC SECURITY. FOR GREATER CERTAINTY, AND
---------------------------------
WITHOUT LIMITING THE POWERS OF THE CANADIAN ADMINISTRATIVE AGENT HEREUNDER OR
UNDER ANY OF THE CANADIAN SECURITY DOCUMENTS, EACH CANADIAN SUBSIDIARY OF THE
BORROWER HEREBY ACKNOWLEDGES THAT THE CANADIAN ADMINISTRATIVE AGENT SHALL, FOR
PURPOSES OF HOLDING ANY SECURITY GRANTED BY SUCH CANADIAN SUBSIDIARY OF THE
BORROWER ON ITS PROPERTY PURSUANT TO THE LAWS OF THE PROVINCE OF QUEBEC, BE THE
HOLDER OF AN IRREVOCABLE POWER OF ATTORNEY (WITHIN THE MEANING OF THE CIVIL CODE
OF QUEBEC) FOR ALL PRESENT AND FUTURE C$ LENDERS, AND IN PARTICULAR FOR ALL
PRESENT AND FUTURE HOLDERS OF ANY DEBENTURE EXECUTED AND DELIVERED BY ANY
CANADIAN SUBSIDIARY OF THE BORROWER. EACH OF THE C$ LENDERS HEREBY IRREVOCABLY
CONSTITUTES, TO THE EXTENT NECESSARY, THE CANADIAN ADMINISTRATIVE AGENT AS THE
HOLDER OF AN IRREVOCABLE POWER OF ATTORNEY (WITHIN THE MEANING OF THE CIVIL CODE
OF QUEBEC) IN ORDER TO HOLD SECURITY GRANTED BY ANY CANADIAN SUBSIDIARY OF THE
BORROWER IN THE PROVINCE OF QUEBEC. ANY ASSIGNEE OF C$ LOANS SHALL BE DEEMED TO
HAVE CONFIRMED AND RATIFIED THE CONSTITUTION OF THE CANADIAN ADMINISTRATIVE
AGENT AS THE HOLDER OF SUCH IRREVOCABLE POWER OF
108
ATTORNEY BY EXECUTION OF THE RELEVANT ASSIGNMENT AND ACCEPTANCE SUBSTANTIALLY IN
THE FORM OF EXHIBIT G. NOTWITHSTANDING THE PROVISIONS OF SECTION 32 OF THE
SPECIAL CORPORATE POWERS ACT (QUEBEC), THE CANADIAN ADMINISTRATIVE AGENT MAY
ACQUIRE AND BE THE HOLDER OF ANY DEBENTURE ISSUED BY ANY CANADIAN SUBSIDIARY OF
THE BORROWER AS CONTEMPLATED UNDER ANY OF THE CANADIAN SECURITY DOCUMENTS AT ANY
TIME AND FROM TIME TO TIME. EACH CANADIAN SUBSIDIARY OF THE BORROWER HEREBY
ACKNOWLEDGES THAT ANY SUCH DEBENTURE CONSTITUTES A TITLE OF INDEBTEDNESS, AS
SUCH TERM IS USED IN ARTICLE 2692 OF THE CIVIL CODE OF QUEBEC.
11.20 AMENDMENT OF SCHEDULES. IT IS UNDERSTOOD THAT THE SCHEDULES
----------------------
ATTACHED TO THIS AGREEMENT ON THE CLOSING DATE ARE IN THE FORM ATTACHED TO THE
EXISTING CREDIT AGREEMENT ON THE CLOSING DATE THEREUNDER AND THAT SUCH SCHEDULES
MAY NOT REFLECT CERTAIN EVENTS THAT HAVE OCCURRED AFTER SUCH CLOSING DATE
("SUBSEQUENT EVENTS"). THE COMPANY REPRESENTS AND WARRANTS THAT THE SUBSEQUENT
-----------------
EVENTS, INDIVIDUALLY AND IN THE AGGREGATE, WOULD NOT RESULT IN A MATERIAL
ADVERSE EFFECT. THE COMPANY MAY, ON OR BEFORE MARCH 31, 1999, SUBMIT TO THE US
ADMINISTRATIVE AGENT REVISED SCHEDULES WHICH, IF APPROVED BY THE US
ADMINISTRATIVE AGENT (ACTING REASONABLY), WILL BE SUBSTITUTED FOR THE SCHEDULES
ATTACHED TO THIS AGREEMENT ON THE CLOSING DATE.
SECTION 12. LETTERS OF CREDIT
12.1 L/C COMMITMENT. (A) SUBJECT TO THE TERMS AND CONDITIONS
--------------
HEREOF, THE ISSUING LENDER, IN RELIANCE ON THE AGREEMENTS OF THE OTHER US$
LENDERS SET FORTH IN SUBSECTION 12.4(A), AGREES TO ISSUE LETTERS OF CREDIT
("LETTERS OF CREDIT") DENOMINATED IN US DOLLARS OR BRITISH POUNDS AS REQUESTED
-----------------
BY THE COMPANY FOR THE ACCOUNT OF THE COMPANY ON ANY BUSINESS DAY DURING THE
COMMITMENT PERIOD IN SUCH FORM AS MAY BE APPROVED FROM TIME TO TIME BY THE
ISSUING LENDER; PROVIDED THAT THE ISSUING LENDER SHALL HAVE NO OBLIGATION TO
--------
ISSUE ANY LETTER OF CREDIT IF, AFTER GIVING EFFECT TO SUCH ISSUANCE, (I) THE
DOLLAR EQUIVALENT AMOUNT OF THE AGGREGATE L/C OBLIGATIONS WOULD EXCEED THE L/C
COMMITMENT OR (II) THE AGGREGATE AMOUNT OF THE AVAILABLE US COMMITMENTS WOULD BE
LESS THAN ZERO. EACH LETTER OF CREDIT SHALL (I) BE DENOMINATED IN US DOLLARS OR
BRITISH POUNDS AND (II) EXPIRE NO LATER THAN THE EARLIER OF (X) THE FIRST
ANNIVERSARY OF ITS DATE OF ISSUANCE (OR, IN THE CASE OF LETTERS OF CREDIT IN THE
AGGREGATE AMOUNT NOT TO EXCEED (POUNDS)12,000,000 ISSUED IN CONNECTION WITH THE
DATAVAULT TRANSACTION, THE FIFTH ANNIVERSARY OF THEIR DATE OF ISSUANCE) AND (Y)
THE DATE THAT IS FIVE BUSINESS DAYS PRIOR TO THE TERMINATION DATE, PROVIDED THAT
--------
ANY 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) THE ISSUING LENDER SHALL NOT AT ANY TIME BE OBLIGATED TO ISSUE
ANY LETTER OF CREDIT HEREUNDER IF SUCH ISSUANCE WOULD CONFLICT WITH, OR CAUSE
THE ISSUING LENDER OR ANY L/C PARTICIPANT TO EXCEED ANY LIMITS IMPOSED BY, ANY
APPLICABLE REQUIREMENT OF LAW.
109
12.2 PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. THE COMPANY MAY
------------------------------------------
FROM TIME TO TIME REQUEST THAT THE ISSUING LENDER ISSUE A LETTER OF CREDIT BY
DELIVERING TO THE ISSUING LENDER AT ITS ADDRESS FOR NOTICES SPECIFIED HEREIN AN
APPLICATION THEREFOR, COMPLETED TO THE SATISFACTION OF THE ISSUING LENDER, AND
SUCH OTHER CERTIFICATES, DOCUMENTS AND OTHER PAPERS AND INFORMATION AS THE
ISSUING LENDER MAY REQUEST. UPON RECEIPT OF ANY APPLICATION, THE 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 THE 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 THE
ISSUING LENDER AND THE COMPANY. THE ISSUING LENDER SHALL FURNISH A COPY OF SUCH
LETTER OF CREDIT TO THE COMPANY PROMPTLY FOLLOWING THE ISSUANCE THEREOF. THE
ISSUING LENDER SHALL PROMPTLY FURNISH TO THE ADMINISTRATIVE AGENT, WHICH SHALL
IN TURN PROMPTLY FURNISH TO THE LENDERS, NOTICE OF THE ISSUANCE OF EACH LETTER
OF CREDIT (INCLUDING THE AMOUNT THEREOF).
12.3 FEES AND OTHER CHARGES. (A) THE COMPANY WILL PAY A FEE IN US
----------------------
DOLLARS ON THE DOLLAR EQUIVALENT AMOUNT OF ALL LETTERS OF CREDIT OUTSTANDING
FROM TIME TO TIME CALCULATED AT A PER ANNUM RATE EQUAL TO THE APPLICABLE MARGIN
THEN IN EFFECT WITH RESPECT TO EURODOLLAR LOANS, SHARED RATABLY AMONG THE US$
LENDERS AND PAYABLE QUARTERLY IN ARREARS ON EACH L/C FEE PAYMENT DATE AFTER THE
ISSUANCE DATE. IN ADDITION, THE COMPANY SHALL PAY TO THE ISSUING LENDER FOR ITS
OWN ACCOUNT A FRONTING FEE IN US DOLLARS IN THE DOLLAR EQUIVALENT AMOUNT OF SUCH
FEE CALCULATED AT A RATE OF 1/4 OF 1% PER ANNUM ON THE UNDRAWN AND UNEXPIRED
AMOUNT OF EACH LETTER OF CREDIT, PAYABLE QUARTERLY IN ARREARS ON EACH L/C FEE
PAYMENT DATE AFTER THE ISSUANCE DATE.
(B) IN ADDITION TO THE FOREGOING FEES, THE COMPANY SHALL PAY OR
REIMBURSE THE ISSUING LENDER FOR SUCH NORMAL AND CUSTOMARY COSTS AND EXPENSES AS
ARE INCURRED OR CHARGED BY THE ISSUING LENDER IN ISSUING, NEGOTIATING, EFFECTING
PAYMENT UNDER, AMENDING OR OTHERWISE ADMINISTERING ANY LETTER OF CREDIT.
12.4 L/C PARTICIPATIONS. (A) THE ISSUING LENDER IRREVOCABLY AGREES
------------------
TO GRANT AND HEREBY GRANTS TO EACH L/C PARTICIPANT, AND, TO INDUCE THE ISSUING
LENDER TO ISSUE LETTERS OF CREDIT HEREUNDER, EACH L/C PARTICIPANT IRREVOCABLY
AGREES TO ACCEPT AND PURCHASE AND HEREBY ACCEPTS AND PURCHASES FROM THE ISSUING
LENDER, ON THE TERMS AND CONDITIONS HEREINAFTER STATED, FOR SUCH L/C
PARTICIPANT'S OWN ACCOUNT AND RISK AN UNDIVIDED INTEREST EQUAL TO SUCH L/C
PARTICIPANT'S US COMMITMENT PERCENTAGE IN THE ISSUING LENDER'S OBLIGATIONS AND
RIGHTS UNDER EACH LETTER OF CREDIT ISSUED HEREUNDER AND THE AMOUNT OF EACH DRAFT
PAID BY THE ISSUING LENDER THEREUNDER. EACH L/C PARTICIPANT UNCONDITIONALLY AND
IRREVOCABLY AGREES WITH THE ISSUING LENDER THAT, IF A DRAFT IS PAID UNDER ANY
110
LETTER OF CREDIT FOR WHICH THE ISSUING LENDER IS NOT REIMBURSED IN FULL BY THE
COMPANY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, SUCH L/C PARTICIPANT
SHALL PAY TO THE ISSUING LENDER UPON DEMAND AT THE ISSUING LENDER'S ADDRESS FOR
NOTICES SPECIFIED HEREIN AN AMOUNT EQUAL TO SUCH L/C PARTICIPANT'S US COMMITMENT
PERCENTAGE OF THE AMOUNT OF SUCH DRAFT, OR ANY PART THEREOF, THAT IS NOT SO
REIMBURSED.
(B) IF ANY AMOUNT REQUIRED TO BE PAID BY ANY L/C PARTICIPANT TO THE
ISSUING LENDER PURSUANT TO SUBSECTION 12.4(A) IN RESPECT OF ANY UNREIMBURSED
PORTION OF ANY PAYMENT MADE BY THE ISSUING LENDER UNDER ANY LETTER OF CREDIT IS
PAID TO THE ISSUING LENDER WITHIN THREE BUSINESS DAYS AFTER THE DATE SUCH
PAYMENT IS DUE, SUCH L/C PARTICIPANT SHALL PAY TO THE ISSUING LENDER ON DEMAND
AN AMOUNT EQUAL TO THE DOLLAR EQUIVALENT AMOUNT OF THE PRODUCT OF (I) SUCH
AMOUNT, TIMES (II) THE DAILY AVERAGE FEDERAL FUNDS RATE DURING THE PERIOD FROM
AND INCLUDING THE DATE SUCH PAYMENT IS REQUIRED TO THE DATE ON WHICH SUCH
PAYMENT IS IMMEDIATELY AVAILABLE TO THE 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 SUBSECTION 12.4(A) IS NOT MADE AVAILABLE TO THE
ISSUING LENDER BY SUCH L/C PARTICIPANT WITHIN THREE BUSINESS DAYS AFTER THE DATE
SUCH PAYMENT IS DUE, THE ISSUING LENDER SHALL BE ENTITLED TO RECOVER FROM SUCH
L/C PARTICIPANT, ON DEMAND, THE DOLLAR EQUIVALENT AMOUNT OF SUCH AMOUNT WITH
INTEREST THEREON CALCULATED FROM SUCH DUE DATE AT THE RATE PER ANNUM APPLICABLE
TO BASE RATE LOANS. A CERTIFICATE OF THE ISSUING LENDER SUBMITTED TO ANY L/C
PARTICIPANT WITH RESPECT TO ANY AMOUNTS OWING UNDER THIS SECTION 12 SHALL BE
CONCLUSIVE IN THE ABSENCE OF MANIFEST ERROR.
(C) WHENEVER, AT ANY TIME AFTER THE 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 SUBSECTION 12.4(A), THE ISSUING
----
LENDER RECEIVES ANY PAYMENT RELATED TO SUCH LETTER OF CREDIT (WHETHER DIRECTLY
FROM THE COMPANY OR OTHERWISE, INCLUDING PROCEEDS OF COLLATERAL APPLIED THERETO
BY THE ISSUING LENDER), OR ANY PAYMENT OF INTEREST ON ACCOUNT THEREOF, THE
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
-------- -------
THE ISSUING LENDER SHALL BE REQUIRED TO BE RETURNED BY THE ISSUING LENDER, SUCH
L/C PARTICIPANT SHALL RETURN TO THE ISSUING LENDER THE PORTION THEREOF
PREVIOUSLY DISTRIBUTED BY THE ISSUING LENDER TO IT.
12.5 REIMBURSEMENT OBLIGATION OF THE COMPANY. THE COMPANY AGREES TO
---------------------------------------
REIMBURSE THE ISSUING LENDER ON EACH DATE ON WHICH THE ISSUING LENDER NOTIFIES
THE COMPANY OF THE DATE AND AMOUNT OF A DRAFT PRESENTED UNDER ANY LETTER OF
CREDIT AND PAID BY THE ISSUING LENDER FOR THE DOLLAR EQUIVALENT AMOUNT OF THE
AMOUNT OF (A) SUCH DRAFT SO PAID AND (B) ANY TAXES, FEES, CHARGES OR OTHER COSTS
OR EXPENSES INCURRED BY THE ISSUING LENDER IN CONNECTION WITH SUCH PAYMENT.
EACH SUCH PAYMENT SHALL BE MADE TO THE ISSUING LENDER AT ITS ADDRESS FOR NOTICES
SPECIFIED HEREIN IN LAWFUL MONEY OF THE UNITED STATES AND IN IMMEDIATELY
AVAILABLE FUNDS. INTEREST SHALL
111
BE PAYABLE ON ANY AND ALL AMOUNTS REMAINING UNPAID BY THE COMPANY UNDER THIS
SECTION 12 FROM THE DATE SUCH AMOUNTS BECOME PAYABLE (WHETHER AT STATED
MATURITY, BY ACCELERATION OR OTHERWISE) UNTIL PAYMENT IN FULL AT THE RATE SET
FORTH IN (I) UNTIL THE SECOND BUSINESS DAY FOLLOWING THE DATE OF THE APPLICABLE
DRAWING, SUBSECTION 4.5(B) AND (II) THEREAFTER, SUBSECTION 4.5(D).
12.6 OBLIGATIONS ABSOLUTE. THE COMPANY'S OBLIGATIONS UNDER THIS
--------------------
SECTION 12 SHALL BE ABSOLUTE AND UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES
AND IRRESPECTIVE OF ANY SETOFF, COUNTERCLAIM OR DEFENSE TO PAYMENT THAT THE
COMPANY MAY HAVE OR HAVE HAD AGAINST THE ISSUING LENDER, ANY BENEFICIARY OF A
LETTER OF CREDIT OR ANY OTHER PERSON. THE COMPANY ALSO AGREES WITH THE ISSUING
LENDER THAT THE ISSUING LENDER SHALL NOT BE RESPONSIBLE FOR, AND THE COMPANY'S
REIMBURSEMENT OBLIGATIONS UNDER SUBSECTION 12.5 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 THE COMPANY 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 THE COMPANY AGAINST ANY
BENEFICIARY OF SUCH LETTER OF CREDIT OR ANY SUCH TRANSFEREE. THE ISSUING LENDER
SHALL NOT 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 FOUND BY A FINAL AND NONAPPEALABLE DECISION OF A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE ISSUING LENDER. THE COMPANY AGREES THAT ANY ACTION TAKEN OR OMITTED BY THE
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 OF CARE SPECIFIED IN THE UNIFORM
COMMERCIAL CODE OF THE STATE OF NEW YORK, SHALL BE BINDING ON THE COMPANY AND
SHALL NOT RESULT IN ANY LIABILITY OF THE ISSUING LENDER TO THE COMPANY.
12.7 LETTER OF CREDIT PAYMENTS. IF ANY DRAFT SHALL BE PRESENTED FOR
-------------------------
PAYMENT UNDER ANY LETTER OF CREDIT, THE ISSUING LENDER SHALL PROMPTLY NOTIFY THE
COMPANY OF THE DATE AND AMOUNT THEREOF. THE RESPONSIBILITY OF THE ISSUING
LENDER TO THE COMPANY IN CONNECTION WITH ANY DRAFT PRESENTED FOR PAYMENT UNDER
ANY LETTER OF CREDIT 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.
12.8 APPLICATIONS. TO THE EXTENT THAT ANY PROVISION OF ANY
------------
APPLICATION RELATED TO ANY LETTER OF CREDIT IS INCONSISTENT WITH THE PROVISIONS
OF THIS SECTION 12, THE PROVISIONS OF THIS SECTION 12 SHALL APPLY.
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.
XXXXXX XXXXX CORP.
BY: /S/ XXXXXX X. XXXXXXX
----------------------------------
TITLE: VP, TREASURER
XXXXXX XXXXX COMMAND COMPANY
BY: /S/ XXXXXX X. XXXXXXX
---------------------------------
TITLE: VP, TREASURER
CANADIAN IMPERIAL BANK OF COMMERCE, NEW
YORK AGENCY
AS US ADMINISTRATIVE AGENT AND AS A US$
LENDER
BY: /S/ XXXXXX XXXX
----------------------------------
TITLE: EXECUTIVE DIRECTOR
CANADIAN IMPERIAL BANK OF COMMERCE
AS CANADIAN ADMINISTRATIVE AGENT AND AS A
C$ LENDER
BY: /S/ XXXXXX XXXX
----------------------------------
TITLE: EXECUTIVE DIRECTOR
FIRST UNION NATIONAL BANK, AS SUCCESSOR TO
CORESTATES BANK, N.A. AS A LENDER
BY: /S/ XXXX XXXXXXXXXX
----------------------------------
TITLE: VICE PRESIDENT
CREDIT LYONNAIS NEW YORK BRANCH
AS A LENDER
BY: /S/ XXXXXXXX XXXXX
---------------------------------
TITLE: FIRST VICE PRESIDENT-MANAGER
FLEET NATIONAL BANK
AS DOCUMENTATION AGENT AND AS A LENDER
BY: /S/ XXXXX X. XXXXX
-----------------------------------
TITLE: VICE PRESIDENT
THE FIRST NATIONAL BANK OF MARYLAND
A DIVISION OF FMB BANK AS A LENDER
BY: /S/ XXXX XXXXX
-----------------------------------
TITLE: VICE PRESIDENT
XXXXXX FINANCIAL, INC.
AS A LENDER
BY: /S/ X. X. XXXX
-----------------------------------
TITLE: SENIOR VICE PRESIDENT
STATE STREET BANK AND TRUST COMPANY
AS A LENDER
BY: /S/ X. X. XXXX
-----------------------------------
TITLE: VICE PRESIDENT
THE BANK OF NEW YORK
AS A LENDER
BY: /S/ XXXXX XXXXXX
-----------------------------------
TITLE: VICE PRESIDENT
CREDIT LYONNAIS CANADA
AS A LENDER
BY: /S/ XXXXXX XXXX
-----------------------------------
TITLE: MANAGER
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
AS A LENDER
BY: /S/ XXXXXXXX XXXXXXXX
--------------------------------
TITLE: VICE PRESIDENT
BANK OF AMERICA CANADA
AS A LENDER
BY: /S/ XXXXXXX X. XXXX
--------------------------------
TITLE: VICE PRESIDENT
SCHEDULE 1.1
ADDRESSES FOR NOTICES; COMMITMENTS
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY
SYNDICATIONS
ADDRESS FOR NOTICE:
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: XXXXX XXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$36,000,000
CANADIAN IMPERIAL BANK OF COMMERCE
ADDRESS FOR NOTICE:
XXXXXXXX XXXXX XXXX 0
XXXXXXX, XXXXXXX, XXXXXX X0X 0X0
ATTENTION: XXXXX XXXXXX
TELECOPY: (000) 000-0000
COMMITMENT: C$20,000,000
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
ADDRESS FOR NOTICE:
MIDWEST BANKING DIVISION
000 XXXXX XXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXXXXX XXXXXXXX
TELECOPY: (000) 000-0000
COMMITMENT: XXx00,000,000
XXXX XX XXXXXXX XXXXXX
ADDRESS FOR NOTICE:
000 XXXXX XXXXXX XXXX
XXXXX 0000
XXXXXXX, XXXXXXX, XXXXXX X0X 0X0
ATTENTION: XXXXXX XXX
TELECOPY: (000) 000-0000
COMMITMENT: C$5,000,000
FIRST UNION NATIONAL BANK, AS SUCCESSOR TO
CORESTATES BANK, N.A.
ADDRESS FOR NOTICE:
0000 XXXXXX XXXX
XXXXX 000
XXXXXXXX XXXXXXX, XX 00000
ATTENTION: XXXX XXXXXXXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$10,000,000
CREDIT LYONNAIS NEW YORK BRANCH
ADDRESS FOR NOTICE:
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XXX XXXX 00000
ATTENTION: XXXXXXX XXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$20,000,000
CREDIT LYONNAIS CANADA
ADDRESS FOR NOTICE:
ONE FINANCIAL PLACE
XXX XXXXXXXX XXXXXX
XXXXX 0000
XXXXXXX, XXXXXXX X0X 0X0
ATTENTION: XXX XXXX
TELECOPY: (000) 000-0000
COMMITMENT: C$10,000,000
FLEET NATIONAL BANK
2
ADDRESS FOR NOTICE:
XXX XXXXXXX XXXXXX
XXXXXXXX XX0XX00X
XXXXXX, XXXXXXXXXXXXX 00000
ATTENTION: XXXXX XXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$30,000,000
THE FIRST NATIONAL BANK OF MARYLAND,
A DIVISION OF FMB BANK
ADDRESS FOR NOTICE:
00 XXXXX XXXXXXX XXXXXX
XXXXXXXXX, XXXXXXXX 00000
ATTENTION: XXXX X. XXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$15,000,000
XXXXXX FINANCIAL, INC.
ADDRESS FOR NOTICE:
000 XXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXXXX XXXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$14,000,000
STATE STREET BANK AND TRUST COMPANY
ADDRESS FOR NOTICE:
000 XXXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
ATTENTION: XXXXXXXX X. XXXX
TELECOPY: (000) 000-0000
COMMITMENT: US$20,000,000
THE BANK OF NEW YORK
ADDRESS FOR NOTICE:
XXX XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XXX XXXX 00000
3
ATTENTION: XXXXX X. XXXXXX
TELECOPY: (000) 000-0000/7978
COMMITMENT: US$20,000,000
4
