Contract
Exhibit
10.1
Dated
as of August 27, 2004
As
Amended and Restated on April 3, 2006
among
NORTEK,
INC.
(as
successor to THL Buildco, Inc.),
as
the
U.S. Borrower,
The
Canadian Borrowers Named Herein,
NORTEK
HOLDINGS, INC.,
UBS
AG, STAMFORD BRANCH,
as
U.S. Administrative Agent
and
as
Canadian Administrative Agent,
UBS
AG
CANADA BRANCH,
as
Canadian Swing Line Lender,
BANK
OF AMERICA, N.A.,
as
U.S. L/C Issuer,
BANK
OF AMERICA, N.A. (CANADA BRANCH),
as
Canadian L/C Issuer,
UBS
LOAN FINANCE LLC,
as
U.S. Swing Line Lender,
The
Other Lenders Party Hereto,
UBS
SECURITIES LLC and
CREDIT
SUISSE,
as
Joint Lead Arrangers and Joint Book Managers,
CREDIT
SUISSE,
as
Syndication Agent,
and
BANK
OF AMERICA, N.A. and
BEAR
XXXXXXX CORPORATE LENDING INC.,
as
Co-Documentation Agents
Xxxxxx
Xxxxxx & Xxxxxxx llp
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
TABLE
OF CONTENTS
Section Page
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms
1.02 Other
Interpretive Provisions
1.03 Accounting
Terms
1.04 Rounding
1.05 References
to Agreements and Laws
1.06 Times
of
Day
1.07 Timing
of
Payment or Performance
1.08 Currency
Equivalents Generally
1.09 Specified
Transactions.
1.10 Effect
of
this Agreement on the Original Credit Agreement and the Other Loan
Documents.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans; Reallocation of Revolving Exposure
2.02 Borrowings,
Conversions and Continuations of Loans
2.03 Letters
of Credit
2.04 Swing
Line Loans
2.05 Prepayments
2.06 Termination,
Reduction or Reallocation of Commitments
2.07 Repayment
of Loans
2.08 Interest
2.09 Fees
2.10 Computation
of Interest and Fees
2.11 Evidence
of Indebtedness
2.12 Payments
Generally
2.13 Sharing
of Payments
2.14 Increase
in Term Commitments
2.15 Increase
in Revolving Credit Commitments
2.16 Canadian
BAs
2.17 Additional
Canadian Borrowers
ARTICLE
III
TAXES,
INCREASED COSTS PROTECTION AND ILLEGALITY
3.01 Taxes
3.02 Illegality
3.03 Inability
To Determine Rates
3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
Loans
3.05 Funding
Losses
3.06 Matters
Applicable to All Requests for Compensation
3.07 Replacement
of Lenders Under Certain Circumstances
3.08 Survival
ARTICLE
IV
CONDITIONS
PRECEDENT TO EFFECTIVENESS AND TO CREDIT EXTENSIONS
The
obligations of each Lender to make its initial Credit Extension under the
Original Credit Agreement are set forth in Section 4.01 of the Original Credit
Agreement.
4.01 Conditions
to Effectiveness
4.02 Conditions
to All Credit Extensions
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
5.01 Existence,
Qualification and Power; Compliance with Laws
5.02 Authorization;
No Contravention
5.03 Governmental
Authorization; Other Consents
5.04 Binding
Effect
5.05 Financial
Statements; No Material Adverse Effect
5.06 Litigation
5.07 No
Default
5.08 Ownership
of Property; Liens
5.09 Environmental
Compliance
5.10 Insurance
5.11 Taxes
5.12 ERISA
Compliance
5.13 Subsidiaries;
Equity Interests
5.14 Margin
Regulations; Investment Company Act;
5.15 Disclosure
5.16 Compliance
with Laws
5.17 Intellectual
Property; Licenses, Etc.
5.18 Solvency
5.19 Casualty,
Etc.
5.20 Perfection,
Etc.
5.21 Tax
Shelter Regulations
5.22 Anti-Terrorism
Law
ARTICLE
VI
AFFIRMATIVE
COVENANTS
6.01 Financial
Statements
6.02 Certificates;
Other Information
6.03 Notices
6.04 Payment
of Obligations
6.05 Preservation
of Existence, Etc.
6.06 Maintenance
of Properties
6.07 Maintenance
of Insurance
6.08 Compliance
with Laws
6.09 Books
and
Records
6.10 Inspection
Rights
6.11 Use
of
Proceeds
6.12 Covenant
To Guarantee Obligations and Give Security
6.13 Compliance
with Environmental Laws
6.14 Further
Assurances
6.15 Unrestricted
Subsidiaries
ARTICLE
VII
NEGATIVE
COVENANTS
7.01 Liens
7.02 Investments
7.03 Indebtedness
7.04 Fundamental
Changes
7.05 Dispositions
7.06 Restricted
Payments
7.07 Change
in
Nature of Business
7.08 Transactions
with Affiliates
7.09 Burdensome
Agreements
7.10 Use
of
Proceeds
7.11 Financial
Covenants
7.12 Amendments
of Organization Documents, Etc
7.13 Accounting
Changes
7.14 Prepayments,
Etc. of Indebtedness
7.15 Amendment
of Acquisition Agreement
7.16 Equity
Interests of the U.S. Borrower and Subsidiaries
7.17 Holding
Company
7.18 Designated
Senior Debt
7.19 Maintenance
of Corporate Separateness
ARTICLE
VIII
EVENTS
OF
DEFAULT AND REMEDIES
8.01 Events
of
Default
8.02 Remedies
upon Event of Default
8.03 Application
of Funds
ARTICLE
IX
ADMINISTRATIVE
AGENT AND OTHER AGENTS
9.01 Appointment
and Authorization of Agents
9.02 Delegation
of Duties
9.03 Liability
of Agents
9.04 Reliance
by Agents
9.05 Notice
of
Default
9.06 Credit
Decision; Disclosure of Information by Agents
9.07 Indemnification
of Agents
9.08 Agents
in
Their Individual Capacities
9.09 Successor
Agents
9.10 Administrative
Agents May File Proofs of Claim
9.11 Collateral
and Guaranty Matters
9.12 Other
Agents; Arrangers and Managers
9.13 Appointment
of Supplemental Administrative Agents
ARTICLE
X
MISCELLANEOUS
10.01 Amendments,
Etc.
10.02 Notices
and Other Communications; Facsimile Copies
10.03 No
Waiver; Cumulative Remedies
10.04 Attorney
Costs, Expenses and Taxes
10.05 Indemnification
by the Borrowers
10.06 Payments
Set Aside
10.07 Successors
and Assigns
10.08 Confidentiality
10.09 Setoff
10.10 Interest
Rate Limitation
10.11 Counterparts
10.12 Integration
10.13 Survival
of Representations and Warranties
10.14 Severability
10.15 Tax
Forms
10.16 Governing
Law
10.17 Waiver
of
Right to Trial by Jury
10.18 Binding
Effect
10.19 Judgment
Currency
10.20 Collection
Allocation Mechanism
10.21 Covenant
to Pay
SIGNATURESS-1
SCHEDULES
I Guarantors
5.05 Supplement
to Interim Financial Statements
5.13 Subsidiaries
and Other Equity Investments
7.02 Existing
Investments
7.03(b) Existing
Indebtedness
10.02 Administrative
Agent’s Office; Certain Addresses for Notices
EXHIBIT
A Form
of
First Revolving Credit Commitment Increase Lender Addendum
AMENDED
AND RESTATED CREDIT AGREEMENT
This
AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of April 3, 2006,
among
NORTEK, INC., a Delaware corporation (the “U.S.
Borrower”)
(as
successor to THL Buildco, Inc.), BROAN-NUTONE CANADA INC., an Ontario
corporation, and VENTROL AIR HANDLING SYSTEMS INC., a Canadian corporation,
as
Canadian Borrowers, NORTEK HOLDINGS, INC., a Delaware corporation (“Holdings”)
(formerly named THL Buildco Holdings, Inc.), each lender from time to time
party
hereto which extends a Commitment or holds any Loan to the U.S. Borrower
(the
“U.S.
Lenders”),
each
lender from time to time a party hereto which extends a Commitment or holds
any
Loan to the Canadian Borrowers (the “Canadian
Lenders”
and,
together with the U.S. Lenders, the “Lenders”
and
individually, a “Lender”),
CREDIT SUISSE CAYMAN ISLANDS BRANCH (“CSFB”),
as
Syndication Agent, UBS SECURITIES LLC and CSFB, as Joint Lead Arrangers and
Joint Book Managers, BANK OF AMERICA, N.A. and BEAR XXXXXXX CORPORATE LENDING
INC., as Co-Documentation Agents, UBS AG, STAMFORD BRANCH, as U.S.
Administrative Agent and as Canadian Administrative Agent, UBS AG CANADA
BRANCH,
as Canadian Swing Line Lender, UBS LOAN FINANCE LLC, as U.S. Swing Line Lender,
BANK OF AMERICA, N.A., as U.S. L/C Issuer and BANK OF AMERICA, N.A. (CANADA
BRANCH), as Canadian L/C Issuer.
PRELIMINARY
STATEMENTS
WHEREAS,
the U.S. Borrower (as successor to THL Buildco, Inc.), the Canadian Borrowers,
Holdings (formerly named THL Buildco Holdings, Inc.), CSFB, as Syndication
Agent, UBS SECURITIES LLC and CSFB, as Joint Lead Arrangers and Joint Book
Managers, BANK OF AMERICA, N.A. and BEAR XXXXXXX CORPORATE LENDING INC.,
as
Co-Documentation Agents, UBS AG, STAMFORD BRANCH, as U.S. Administrative
Agent
and as Canadian Administrative Agent, UBS AG CANADA BRANCH, as Canadian Swing
Line Lender, UBS LOAN FINANCE LLC, as U.S. Swing Line Lender, BANK OF AMERICA,
N.A., as U.S. L/C Issuer and BANK OF AMERICA, N.A. (CANADA BRANCH), as Canadian
L/C Issuer have previously entered into a Credit Agreement, dated as of August
27, 2004 (the “Original
Credit Agreement”
(which
term shall, unless the context otherwise requires, include any amendment
thereto
prior to the Restatement Effective Date (as defined below));
WHEREAS,
pursuant to Amendment No. 1 (“Amendment
No. 1”),
dated
as of March 29, 2005 (the “Amendment
No. 1 Effective Date”),
to
the Original Credit Agreement, among other things, the Term Loans (as defined
in
the Original Credit Agreement) made under the Original Credit Agreement were
converted into Term B Loans;
WHEREAS,
the parties wish to enter into this Agreement in order to incorporate the
applicable terms of Amendment No. 1 and to further amend the Original Credit
Agreement on the terms set forth herein;
In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms
.
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“Acceptance
Note”
has
the
meaning specified in Section
2.16(e).
“Administrative
Agents”
means
the U.S. Administrative Agent and the Canadian Administrative Agent, or any
successor administrative agent to either of the foregoing.
“Administrative
Questionnaire”
means
an Administrative Questionnaire in a form supplied by the applicable
Administrative Agent.
“Affiliate”
means,
with respect to any Person, another Person that, directly or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “Control”
means
the possession, direct or indirect, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability
to exercise voting power, by contract or otherwise. “Controlling”
and
“Controlled”
have
meanings correlative thereto.
“Agent-Related
Persons”
means
the Administrative Agents, together with their Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
“Agents”
means,
collectively, the Administrative Agents, the Arrangers, the Syndication Agent,
the Co-Documentation Agents and the Supplemental Administrative Agents (if
any).
“Aggregate
Commitments”
means
the Commitments of all the Lenders.
“Agreement”
means
this Amended and Restated Credit Agreement as further amended, amended and
restated or otherwise modified from time to time.
“Amendment
No. 1”
has
the
meaning given such term in the preliminary statements hereto.
“Amendment
No. 1 Effective Date”
has
the
meaning given such term in the preliminary statements hereto.
“Anti-Terrorism
Laws”
has
the
meaning given to such term by Section
5.22(a).
“applicable”
shall
mean, unless the context requires otherwise, when used with respect to (i)
an
Administrative Agent, the U.S. Administrative Agent with respect to matters
relating to the U.S. Facility, U.S. Letters of Credit or U.S. Loans and the
Canadian Administrative Agent with respect to matters relating to the Canadian
Facility, Canadian Letters of Credit or Canadian Loans, (ii) an L/C Issuer,
the
U.S. L/C Issuer with respect to any matter relating to U.S. Letters of Credit
and the Canadian L/C Issuer with respect to any matter relating to Canadian
Letters of Credit, (iii) a Swing Line Lender, the U.S. Swing Line Lender
with
respect to any matter relating to U.S. Swing Line Loans and the Canadian
Swing
Line Lender with respect to any matter relating to Canadian Swing Line Loans,
(iv) a Lender or Revolving Credit Lender, the U.S. Revolving Credit Lenders
with
respect to any matter relating to the U.S. Revolving Credit Facility and
the
Canadian Lenders with respect to the Canadian Revolving Credit Facilities,
and
(v) a Borrower, the U.S. Borrower with respect to matters relating to the
U.S.
Facility and one or more Canadian Borrowers with respect to the Canadian
Facility.
“Applicable
Rate”
means
a
percentage per annum equal to:
(a) with
respect to Term B Loans, (A) if the Leverage Ratio is less than or
equal to 4.50:1.00 as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement), (1) for Eurodollar Rate Loans, 2.00% and
(2) for Base Rate Loans, 1.00% and (B) if the Leverage Ratio is
greater than 4.50:1.00 as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement), (1) for Eurodollar Rate Loans, 2.25% and
(2) for Base Rate Loans, 1.25%; provided,
that
the Applicable Rates referred to in clause (B) shall apply (x) as of the
first Business Day after the date on which a Compliance Certificate was required
to have been delivered but was not delivered, and shall continue to so apply
to
and including the date on which such Compliance Certificate is so delivered
(and
thereafter the Applicable Rates otherwise determined in accordance with this
definition shall apply) and (y) at the option of the U.S. Administrative
Agent or the Requisite Class Lenders holding Term B Loans, the Applicable
Rates referred to in clause (B) shall apply as of the first Business Day
after
an Event of Default shall have occurred and be continuing, and shall continue
to
so apply to but excluding the date on which such Event of Default is cured
or
waived (and thereafter the Applicable Rates otherwise determined in accordance
with this definition shall apply); and
(b) with
respect to the Revolving Credit Loans, Commitment Fees and Letters of Credit,
the following percentages per annum, based upon the Leverage Ratio as set
forth
in the most recent Compliance Certificate received by the Administrative
Agents
pursuant to Section 6.02(b)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement):
|
Applicable
Rate
|
|||||
|
Pricing
Level
|
Leverage
Ratio
|
Eurodollar
Rate and Letters of Credit
|
Base
Rate
|
Commitment
Fees
|
Applicable
Canadian BA Stamping Fee
|
|
1
|
<3.50:1
|
1.25%
|
0.25%
|
0.375%
|
1.25%
|
|
2
|
>3.50:1
but <4.00:1
|
1.50%
|
0.50%
|
0.375%
|
1.50%
|
|
3
|
>4.00:1
but <4.50:1
|
1.75%
|
0.75%
|
0.375%
|
1.75%
|
|
4
|
>4.50:1
but <5.00:1
|
2.00%
|
1.00%
|
0.50%
|
2.00%
|
|
5
|
>5.00:1
|
2.25%
|
1.25%
|
0.50%
|
2.25%
|
Any
increase or decrease in the Applicable Rate resulting from a change in the
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to
Section
6.02(b);
provided,
that
Pricing Level 5 shall apply (x) as of the first Business Day after the date
on
which a Compliance Certificate was required to have been delivered but was
not
delivered, and shall continue to so apply to and including the date on which
such Compliance Certificate is so delivered (and thereafter the Pricing Level
otherwise determined in accordance with this definition shall apply) and
(y) at
the option of the applicable Administrative Agent or the applicable Requisite
Class Lenders, Pricing Level 5 shall apply as of the first Business Day
after an Event of Default shall have occurred and be continuing, and shall
continue to so apply to but excluding the date on which such Event of Default
is
cured or waived (and thereafter the Pricing Level otherwise determined in
accordance with this definition shall apply).
“Approved
Domestic Bank”
has
the
meaning specified in clause
(b)
of the
definition of “Cash Equivalents”.
“Approved
Fund”
means
any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
“Arrangers”
means
UBS Securities LLC and CSFB, in their capacities as exclusive joint lead
arrangers and exclusive joint book managers.
“Assignment
and Assumption”
means
an Assignment and Assumption substantially in the form of Exhibit
E
to the
Original Credit Agreement with such changes as the U.S. Administrative Agent
may
from time to time request.
“Attorney
Costs”
means
and includes all reasonable fees, expenses and disbursements of any law firm
or
other external counsel.
“Attributable
Indebtedness”
means,
on any date, (a) in respect of any Capitalized Lease of any Person, the
capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any
Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of
such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
“Audited
Financial Statements”
means
the audited consolidated balance sheet of the U.S. Borrower and its Subsidiaries
for the fiscal year ended December 31, 2005, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Target Company and its Subsidiaries, including the notes
thereto.
“Auto-Renewal
Letter of Credit”
has
the
meaning specified in Section 2.03(b)(iii).
“Base
Rate”
means
for any day a fluctuating rate per annum equal to (a) in the case of U.S.
Loans, the higher of (i) the Federal Funds Rate plus 1/2 of 1% and
(ii) the rate of interest in effect for such day as determined by the U.S.
Administrative Agent as the U.S. corporate base rate, (b) in the case of
Canadian Loans denominated in U.S. Dollars, the higher of (i) the Federal
Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for such
day as determined by the Canadian Administrative Agent as the its reference
rate
for Dollar denominated loans in Canada and (c) in the case of Canadian
Loans denominated in Canadian Dollars, the Canadian Prime Rate. The Base
Rate is
not necessarily the lowest rate charged by the U.S. Administrative Agent
or the
Canadian Administrative Agent to their customers. Any change in the Base
Rate
shall take effect at the opening of business on the day such change is
effective.
“Base
Rate Loan”
means
a
Loan that bears interest based on the Base Rate.
“Borrower
Parties”
means
the collective reference to the U.S. Borrower and its Restricted Subsidiaries,
and “Borrower
Party”
means
any one of them.
“Borrowers”
means
the U.S. Borrower and each Canadian Borrower.
“Borrowing”
means
a
Revolving Credit Borrowing, a Swing Line Borrowing or a Term B Borrowing,
as the
context may require.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which commercial banks
are
authorized to close under the Laws of, or are in fact closed in, relative
to
matters with respect to the U.S. Facility, the state where the U.S.
Administrative Agent’s Office is located or relative to matters with respect to
the Canadian Facility, the jurisdiction where the Canadian Administrative
Agent’s principal Canadian lending Affiliate is located, and, if such day
relates to any Eurodollar Rate Loan, is further limited to days on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
“CAM”
means
the mechanism for the allocation and exchange of interests in the Loans,
participations in Letters of Credit and collections thereunder established
pursuant to Section
10.20.
“CAM
Exchange”
means
the exchange of the Lenders’ interests provided for in Section
10.20.
“CAM
Exchange Date”
means
the first date after the Closing Date on which there shall occur (a) any
Event of Default under clause
(f)
or
(g)
of
Section
8.01
with
respect to Holdings or a Borrower or (b) an acceleration of Loans pursuant
to Section
8.02(b).
“CAM
Percentage”
means,
as to each Lender, a fraction, expressed as a decimal, of which (a) the
numerator shall be the sum, without duplication, of (i) the aggregate
Outstanding Amount of Term B Loans, if any, owed to such Lender, (ii) the
Canadian Revolving Exposure, if any, of such Lender, (iii) the U.S.
Revolving Credit Exposure, if any, of such Lender and (iv) the aggregate
amount
of any other Obligations otherwise owed to such Lender pursuant to the Loan
Documents, in each case immediately prior to the CAM Exchange Date, and
(b) the denominator shall be the sum of (i) the Outstanding Amount of
Term B Loans owed to all the Lenders, (ii) the aggregate U.S.
Revolving Credit Exposure of all the Lenders, (iii) the aggregate Canadian
Revolving Exposure of all Lenders and (iv) the aggregate amount of any other
Obligations otherwise owed to any of the Lenders pursuant to the Loan Documents,
in each case immediately prior to the CAM Exchange Date.
“Canadian
Administrative Agent”
means
UBS AG, Stamford Branch, acting in its capacity as Canadian Administrative
Agent
under any of the Loan Documents, or any successor in such capacity.
“Canadian
Administrative Agent’s Office”
means
the Canadian Administrative Agent’s address and, as appropriate, account as set
forth on Schedule
10.02,
or such
other address or account as the Canadian Administrative Agent may from time
to
time notify the Canadian Borrowers and the Canadian Lenders.
“Canadian
BA”
means
a
depository xxxx as defined in the Depository Bills and Notes Act (Canada)
in
Canadian Dollars that is in the form of an order signed by the applicable
Canadian Borrower and accepted by a Canadian Lender pursuant to this Agreement
or, for Canadian Lenders not participating in clearing services contemplated
in
that Act, a draft or xxxx of exchange in Canadian Dollars that is drawn by
the
applicable Canadian Borrower and accepted by a Canadian Lender pursuant to
this
Agreement. Orders that become depository bills, drafts and bills of exchange
are
sometimes collectively referred to in this Agreement as “drafts.” Canadian BAs
shall have a term contemplated by the definition of Interest Period, shall
be
issued and payable only in Canada and shall have a face amount of an integral
multiple of Cdn$100,000. In addition, to the extent the context shall require,
each Acceptance Note shall be deemed to be a Canadian BA.
“Canadian
BA Rate”
means,
with respect to any Interest Period for any Canadian BA, the discount rate
per
annum, calculated on the basis of a year of 365 days, equal to (a) in the
case of any Canadian Lender that is listed on Schedule I of the Bank Act
(Canada), (i) the average rate per annum (rounded upward if necessary to
the nearest 1/100th of 1%) for Canadian Dollar bankers’ acceptances having such
Interest Period that appears on the Reuters Screen CDOR Page (or any successor
page) as of 11:00 a.m., Toronto time, on the first day of such term as
determined by the Canadian Administrative Agent, or (ii) if such rate is
not available at such time, the average discount rate (rounded upward if
necessary to the nearest 1/100th of 1%) for bankers’ acceptances (accepted by
Canadian chartered banks agreed to by the Canadian Administrative Agent and
the
Canadian Borrowers) having such Interest Period as calculated by the Canadian
Administrative Agent in accordance with normal market practice on such day
or
(b) in the case of all Canadian Lenders other than those listed on
Schedule I of the Bank Act (Canada), the applicable rate set forth in
clause
(a)
above
plus 0.10%.
“Canadian
BA Rate Loan”
means a
Canadian Loan made to a Canadian Borrower by way of a Canadian BA or Canadian
BAs on the terms set out herein.
“Canadian
BA Stamping Fee”
means,
with respect to Canadian Loans maintained as Canadian BAs, the applicable
percentage set forth under the column entitled “Applicable Canadian BA Stamping
Fee” with respect thereto within the definition of “Applicable Rate” set forth
above.
“Canadian
Borrower”
means
each of Broan-Nutone Canada Inc., an Ontario corporation, and Ventrol Air
Handling Systems Inc., a Canadian corporation, and each other Subsidiary
of the
U.S. Borrower formed under the laws of Canada or any province thereof that
becomes a Canadian Borrower pursuant to Section 2.17.
“Canadian
Borrower Hypothec”
has
the
meaning specified in Section
9.01(d).
“Canadian
Borrowing”
means
a
borrowing consisting of simultaneous Canadian Loans of the same Type and
denominated in the same currency.
“Canadian
Collateral”
means
all assets and property of any Canadian Loan Party and interests therein
upon
which a Lien is granted to the Canadian Administrative Agent pursuant to
any
Loan Document that are or are required under the terms of the Loan Documents
to
be subject to Liens in favor of the Canadian Administrative Agent for the
benefit of the Canadian Secured Parties.
“Canadian
Commitment Fee”
has
the
meaning specified in Section
2.09(a).
“Canadian
Credit Commitments”
means,
as to each Canadian Lender, its obligation to (a) make Canadian Loans to
the
Canadian Borrowers pursuant to Section
2.01(b),
(b)
purchase participations in Canadian L/C Obligations and (c) purchase
participations in Canadian Swing Line Loans, in an aggregate principal amount
at
any one time outstanding not to exceed the amount set forth opposite such
Lender’s name on Schedule
2.01
to the
Original Credit Agreement under the caption “Canadian Credit Commitment” or in
the Assignment and Assumption Agreement pursuant to which such Lender becomes
a
party hereto, as applicable, as such amount may be adjusted in accordance
with
this Agreement. The aggregate Canadian Credit Commitments of all Canadian
Lenders on the Closing Date and the Restatement Effective Date shall be
$10,000,000.
“Canadian
Custodian”
has
the
meaning specified in Section
9.01(d).
“Canadian
Dollar”
and
“Cdn$”
each
mean the lawful money of Canada.
“Canadian
Existing Letters of Credit”
means
the Letters of Credit previously issued for the account of the U.S. Borrower
described on Schedule
1.01(b)
to the
Original Credit Agreement under the heading “Existing Letters of Credit under
the Canadian Facility”.
“Canadian
Exposure”
means,
with respect to any Canadian Lender at any time, the Outstanding Amount of
Canadian Loans of such Lender plus such Lender’s Pro Rata Share of the
Outstanding Amount of L/C Obligations with respect to Canadian Letters of
Credit
plus such Lender’s Pro Rata Share of the Outstanding Amount of Canadian Swing
Line Loans.
“Canadian
Facility”
means
all Canadian Credit Commitments of the Canadian Lenders.
“Canadian
fondé de pouvoir”
has
the
meaning specified in Section 9.01(d).
“Canadian
Guarantor”
means
the U.S. Borrower, each Canadian Borrower and each Canadian Subsidiary which
has
executed and delivered to the Canadian Administrative Agent the Canadian
Guaranty (or a supplement thereto).
“Canadian
Guaranty”
means
collectively: (i) the Master Canadian Guaranty from the Canadian Borrowers
and
Venmar CES in favor of the Canadian Administrative Agent, dated as of August
27,
2004 and (ii) the Canadian Guaranty from Venmar Ventilation Inc., Innergy
Tech
Inc. and Venmar Ventilation (H.D.H.) Inc. in favor of the Canadian
Administrative Agent, dated as of August 27, 2004, in each case, as amended,
supplemented, amended and restated or otherwise modified from time to
time.
“Canadian
L/C Issuer”
means
Bank of America, N.A. (Canada Branch), in its capacity as issuer of Canadian
Letters of Credit hereunder, or any successor issuer of Canadian Letters
of
Credit hereunder and solely with respect to the Canadian Existing Letters
of
Credit (and any amendment, renewal or extension thereof in accordance with
this
Agreement), Fleet National Bank.
“Canadian
Lender”
is
defined in the preamble.
“Canadian
Letter of Credit”
means
a
Letter of Credit issued under the Canadian Facility.
“Canadian
Loan”
is
defined in Section
2.01(b).
“Canadian
Loan Party”
means
each Canadian Borrower and each Canadian Subsidiary which is a Canadian
Guarantor.
“Canadian
Note”
means
a
promissory note of the Canadian Borrowers payable to any Canadian Lender,
in the
form of Exhibit
C-3
to the
Original Credit Agreement (as such promissory note may be amended, endorsed
or
otherwise modified from time to time), evidencing the aggregate Indebtedness
of
the Canadian Borrowers to such Canadian Lender resulting from outstanding
Canadian Loans, and also means all other promissory notes accepted from time
to
time in substitution therefor or renewal thereof.
“Canadian
Obligations”
means
all advances to, and debts, liabilities, obligations, covenants and duties
of,
any Canadian Loan Party arising under any Loan Document or otherwise with
respect to any Canadian Loan, Canadian Swing Line Loan or Canadian Letter
of
Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or
against
any Canadian Loan Party of any proceeding under any Debtor Relief Laws naming
such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding. Without limiting
the
generality of the foregoing, the Canadian Obligations include (a) the obligation
to pay principal, interest, charges, expenses, fees, Attorney Costs, indemnities
and other amounts payable by any Canadian Loan Party under any Loan Document
and
(b) the obligation of any Canadian Loan Party to reimburse any amount in
respect of any of the foregoing that any Canadian Secured Party, in its sole
discretion, may elect to pay or advance on behalf of such Canadian Loan Party
in
accordance with the terms of the Loan Documents.
“Canadian
Person”
means
a
Person that is not a non-resident of Canada for purposes of Part XIII of
the
Income
Tax Act
(Canada) (or any successor provision thereto) in respect of the
relevant amount paid or credited to it under the relevant Loan
Document.
“Canadian
Prime Rate”
means
on any date with respect to Canadian Prime Rate Loans, a fluctuating rate
of
interest per annum (rounded upward, if necessary, to the next highest 1/100
of
1%) equal to the higher of:
(a) the
rate
of interest per annum determined by the Canadian Administrative Agent as
its
reference rate in effect on such day for determining interest rates for Canadian
Dollar denominated commercial loans in Canada; and
(b) the
Canadian BA Rate most recently determined by the Canadian Administrative
Agent
for 30-days bankers’ acceptances plus 3/4 of 1%.
“Canadian
Prime Rate Loan”
means
a
Canadian Loan bearing interest at a fluctuating rate determined by reference
to
the Canadian Prime Rate.
“Canadian
Secured Parties”
means,
collectively, the Canadian Administrative Agent, the Canadian Swing Line
Lender,
the Canadian L/C Issuer, the Canadian Lenders, the Supplemental Canadian
Administrative Agent and each co-agent or sub-agent appointed by the Canadian
Administrative Agent from time to time pursuant to Section
9.01(c).
“Canadian
Security Agreement”
means,
collectively, (i) the General Security Agreement, dated as of August 27,
2004,
by and among the Canadian Administrative Agent, Broan NuTone Canada Inc.
and
Venmar CES, Inc., (ii) each Deed of Hypothec and bond in favor of the Canadian
Administrative Agent, dated as of August 27, 2004, by Ventrol Air Handling
Systems Inc., Venmar Ventilation Inc., Innergy Tech Inc., Venmar Ventilation
(H.D.H.) Inc. or Venmar CES, Inc. and (iii) each other security agreement,
hypothec and/or bond executed and delivered by a Responsible Officer of any
Canadian Loan Party pursuant to this Agreement as amended, supplemented,
amended
and restated or otherwise modified from time to time.
“Canadian
Security Agreement Supplement”
means
any supplement to any of the documents listed in the definition of Canadian
Security Agreement entered into for purposes of adding one or more Canadian
Subsidiaries as a party thereto.
“Canadian
Subsidiary”
means
each Subsidiary of the U.S. Borrower organized under the laws of Canada or
any
jurisdiction thereof.
“Canadian
Supplemental Administrative Agent”
has
the
meaning specified in Section
9.13(a).
“Canadian
Swing Line Borrowing”
means
a
borrowing of a Canadian Swing Line Loan pursuant to Section
2.04.
“Canadian
Swing Line Lender”
means
UBS AG Canada Branch in its capacity as provider of Canadian Swing Line Loans,
or any successor swing line lender hereunder.
“Canadian
Swing Line Loan”
has
the
meaning specified in Section
2.04(a)(ii).
“Canadian
Swing Line Sublimit”
means
an amount equal to the lesser of (a) $2,500,000 and (b) the Canadian
Credit Commitments. The Canadian Swing Line Sublimit is part of, and not
in
addition to, the Canadian Credit Commitments.
“Capital
Expenditures”
means,
as of any date for the applicable period then ended, all capital expenditures
of
the Borrower Parties on a consolidated basis for such period, as determined
in
accordance with GAAP, to the extent reflected on a statement of cash flows
of
the U.S. Borrower; provided,
however,
that Capital
Expenditures
shall
not include any such expenditures which constitute (a) a Permitted
Acquisition, (b) capital expenditures relating to the construction or
acquisition of any property which has been transferred to a Person that is
not a
Borrower Party pursuant to a sale-leaseback transaction permitted under
Section 7.05(f),
(c) to the extent permitted by this Agreement, a reinvestment of the Net
Cash Proceeds of any Disposition in accordance with Section
2.05(b)(iii)
(other
than any Dispositions
under Sections
7.05(b),
(g),
(h),
(i)
and
(k))
or
Casualty Event and the reinvestment of the net cash proceeds of any such
Disposition or Casualty Event which is not subject to Section
2.05(b)(iii)
solely
as a result of failing to meet the minimum threshold amount specified in
Section
2.05(b)(iii),
(d)
Specified
Issuance Proceeds Not Otherwise Applied, (e) the purchase price of equipment
purchased substantially contemporaneously with the trade-in or sale of used
or
surplus existing equipment to the extent that the gross amount of such purchase
price is reduced by the credit granted to the seller of such equipment (or
for
the net proceeds of such sale) for the equipment being traded in or sold
at such
time, or (f) capitalized interest relating to the construction of any fixed
assets.
“Capitalized
Leases”
means
all
leases that have been or should be, in accordance with GAAP, recorded as
capitalized leases.
“Cash
Collateral”
has
the
meaning specified in the definition of Cash Collateralize.
“Cash
Collateral Account”
means
a
blocked deposit account at the U.S. Administrative Agent’s Office or Canadian
Administrative Agent’s Office, as applicable (or another commercial bank
selected in compliance with Section
9.09),
in the
name of such Administrative Agent and under the sole dominion and control
of
such Administrative Agent, and otherwise established in a manner satisfactory
to
such Administrative Agent.
“Cash
Collateralize”
means
to pledge and deposit with or deliver to the applicable Administrative Agent,
for the benefit of the applicable L/C Issuers and Lenders, as collateral
for the
L/C Obligations of a Borrower or unmatured Canadian BA’s in accordance with
Section
2.03(g)
or
Section
8.02,
cash or
deposit account balances (“Cash
Collateral”)
pursuant to documentation in form and substance reasonably satisfactory to
the
applicable Administrative Agent (and, in the case of a Cash Collateralization
of
L/C Obligations, the applicable L/C Issuer) (which documents are hereby
consented to by the Lenders), and derivatives of such term have corresponding
meanings.
“Cash
Equivalents”
means
any of the following types of Investments, to the extent owned by the U.S.
Borrower or any of its Restricted Subsidiaries:
(a) readily
marketable obligations issued or directly and fully guaranteed or insured
by the
United States, Canada or any member nation of the European Union or any agency
or instrumentality thereof having maturities of not more than three hundred
sixty (360) days from the date of acquisition thereof; provided
that the
full faith and credit of the United States is pledged in support
thereof;
(b) time
deposits with, or insured certificates of deposit or bankers’ acceptances of,
any commercial bank that (i) (A) is a Lender or (B) is organized under the
laws
of the United States, any state thereof or the District of Columbia or is
the
principal banking subsidiary of a bank holding company organized under the
laws
of the United States, any state thereof or the District of Columbia and is
a
member of the Federal Reserve System, and (ii) has combined capital and
surplus of at least $500,000,000 (any such bank being an “Approved
Domestic Bank”),
in
each case with maturities of not more than one year from the date of acquisition
thereof;
(c) commercial
paper and variable or fixed rate notes issued by an Approved Domestic Bank
(or
by the parent company thereof) or any variable or fixed rate note issued
by, or
guaranteed by a domestic corporation rated A-1 (or the equivalent thereof)
or
better by S&P or P-1 (or the equivalent thereof) or better by Xxxxx’x, in
each case with maturities of not more than one year from the date of acquisition
thereof;
(d) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations;
(e) readily
marketable direct obligations issued by any state of the United States or
any
political subdivision thereof having one of the two highest rating categories
obtainable from either S&P or Xxxxx’x with maturities of not more than
twelve (12) months from the date of acquisition thereof;
(f) Investments,
classified in accordance with GAAP as current assets of the U.S. Borrower
or any
of its Subsidiaries, in money market investment programs registered under
the
Investment Company Act of 1940, which are administered by financial institutions
having capital of at least $500,000,000, and the portfolios of which are
limited
such that substantially all of such investments are of the character, quality
and maturity described in clauses
(a),
(b),
(c),
(d)
and
(e)
of this
definition; and
(g) instruments
equivalent to those referred to in clauses (a) through (f) above denominated
in
Canadian Dollars, Euros or any other foreign currency, which are comparable
in
credit quality and tenor to those referred to above and customarily used
by
corporations for short term cash management purposes in any jurisdiction
outside
the United States to the extent reasonably required in connection with any
business conducted by any Subsidiary organized in such
jurisdiction.
“Cash
Management Bank”
means
any party to a Cash Management Services Agreement with any U.S. Loan Party
which
party is or was an Arranger or a Lender or an Affiliate of an Arranger or
a
Lender at the time such Cash Management Services Agreement was entered into.
“Cash
Management Obligations”
means
obligations owed by any U.S. Loan Party to any Cash Management Bank under
any
Cash Management Services Agreement.
“Cash
Management Services Agreement”
means
any agreement to provide cash management services, including treasury,
depository, overdraft, credit or debit card, electronic funds transfer and
other
cash management arrangements.
“Casualty
Event”
means
any event that gives rise to the receipt by Holdings, the U.S. Borrower or
any
of its Restricted Subsidiaries of any insurance proceeds or condemnation
awards
in respect of any equipment, fixed assets or real property (including any
improvements thereon) to replace or repair such equipment, fixed assets or
real
property.
“CERCLA”
means
the Comprehensive Environmental Response, Compensation and Liability Act
of
1980.
“CERCLIS”
means
the Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the U.S. Environmental Protection Agency.
“CES
Hypothec”
has
the
meaning specified in Section 9.01(e).
“Change
of Control”
means
the earlier to occur of:
(a) the
Equity Investors ceasing to have the power, directly or indirectly, to vote
or
direct the voting of securities having a majority of the ordinary voting
power
for the election of directors of Holdings; provided
that the
occurrence of the foregoing event shall not be deemed a Change of Control
if
(i) at
any
time prior to the consummation of a Qualifying IPO, (A) the Equity Investors
otherwise have the right to designate (and do so designate) a majority of
the
board of directors of Holdings or (B) the Equity Investors own beneficially
an amount of common stock of Holdings equal to more than fifty percent (50%)
of
the amount of common stock of Holdings owned by the Equity Investors of record
and beneficially as of the Closing Date and such ownership by the Equity
Investors represents the largest single block of voting securities of Holdings
held by any “person” or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended, but excluding
any
employee benefit plan of such person and its subsidiaries, and any person
or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), or
(ii) at
any
time after the consummation of a Qualifying IPO, (A) no “person” or “group”
(as defined above), excluding the Equity Investors, shall become the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly
or indirectly, of more than the greater of (x) thirty-five percent (35%) of
the outstanding voting stock of Holdings or (y) the percentage of the then
outstanding voting stock of Holdings owned beneficially by the Equity Investors,
(B) during any period of twelve (12) consecutive months, the board of
directors of Holdings shall consist of a majority of the Continuing Directors
or
(C) the Equity Investors have the power, directly or indirectly, to vote
or
direct the voting of at least thirty percent (30%) of the voting of securities
having a majority of the ordinary voting power for the election of directors
of
Holdings; or
(b) any
“Change of Control” (or any comparable term) in any document pertaining to any
Junior Financing with an aggregate outstanding principal amount in excess
of the
Threshold Amount; or
(c) the
U.S.
Borrower shall cease to be a wholly owned direct Subsidiary of Holdings;
or
(d) except
as
permitted by Section 7.04,
any
Canadian Borrower shall cease to be a wholly owned Subsidiary of the U.S.
Borrower.
“Closing
Date”
means
August 27, 2004.
“Co-Documentation
Agents”
means
Bank of America, N.A. and Bear Xxxxxxx Corporate Lending Inc., as
Co-Documentation Agents under the Loan Documents.
“Code”
means
the U.S. Internal Revenue Code of 1986.
“Collateral”
means
the U.S. Collateral and the Canadian Collateral.
“Collateral
Documents”
means,
collectively, the U.S. Security Agreement, each Canadian Security Agreement,
the
Perfection Certificate, the Intellectual Property Security Agreement, the
Mortgages, each of the mortgages, collateral assignments, Security Agreement
Supplements, IP Security Agreement Supplements, security agreements, pledge
agreements or other similar agreements delivered to the applicable
Administrative Agent and the Lenders pursuant to Section
6.12,
and
each of the other agreements, instruments or documents that creates or purports
to create a Lien in favor of either Administrative Agent for the benefit
of any
of the Secured Parties.
“Commitment”
means
a
U.S. Commitment or a Canadian Credit Commitment, as the context may
require.
“Commitment
Fee”
has
the
meaning specified in Section
2.09(a).
“Committed
Loan Notice”
means
a
notice of (a) a U.S. Revolving Credit Borrowing, (b) a Canadian
Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a
continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a),
which,
if in writing, shall be substantially in the form of Exhibit
A-1
to the
Original Credit Agreement, in the case of a U.S. Loan, and Exhibit
A-2
to the
Original Credit Agreement, in the case of a Canadian Loan or such other form
as
the U.S. Administrative Agent may from time to time provide.
“Compensation
Period”
has
the
meaning specified in Section
2.12(c)(ii).
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit D
to the
Original Credit Agreement or in such other form as the U.S. Borrower and
the
U.S. Administrative Agent shall reasonably agree.
“Consolidated
Assets”
means
the total consolidated assets of the U.S. Borrower and its Restricted
Subsidiaries, as determined in accordance with GAAP.
“Consolidated
Cash Taxes”
means,
as of any date for the applicable period ending on such date with respect
to the
U.S. Borrower and its Restricted Subsidiaries on a consolidated basis, the
aggregate of all income, franchise and similar taxes, as determined in
accordance with GAAP, to the extent the same are payable in cash with respect
to
such period.
“Consolidated
Current Assets”
means,
with respect to the U.S. Borrower and its Restricted Subsidiaries as of any
date
of determination, the total assets of the U.S. Borrower and its Restricted
Subsidiaries which should properly be classified as current assets on a
consolidated balance sheet in accordance with GAAP other than any cash or
cash
equivalents.
“Consolidated
Current Liabilities”
means,
with respect to the U.S. Borrower and its Restricted Subsidiaries as of any
date
of determination, the total liabilities of the U.S. Borrower and its Restricted
Subsidiaries which should properly be classified as current liabilities (other
than the current portion of any long term indebtedness) on a consolidated
balance sheet in accordance with GAAP.
“Consolidated
EBITDA”
means,
as of any date for the applicable period ending on such date with respect
to any
Person and its Restricted Subsidiaries on a consolidated basis, the sum
of
(a) Consolidated
Net Income, plus
(b) an
amount
which, in the determination of Consolidated Net Income for such period, has
been
deducted for, without duplication,
(i) total
interest expense,
(ii) income,
franchise and similar taxes and any tax distributions permitted to be made
pursuant to Sections
7.06(f)(i)
and
(iii),
(iii) depreciation
and amortization expense,
(iv) letter
of
credit fees,
(v) non-cash
expenses resulting from any employee benefit or management compensation plan
or
the grant of stock and stock options to employees of Holdings, the U.S. Borrower
or any of its Restricted Subsidiaries pursuant to a written plan or agreement
or
the treatment of such options under variable plan accounting,
(vi) non-cash
amortization of financing costs of such Person and its Restricted
Subsidiaries,
(vii) cash
expenses incurred in connection with the Transaction or, to the extent permitted
hereunder, any Investment permitted under Section 7.02,
Equity
Issuance or Debt Issuance (in each case, whether or not
consummated),
(viii) to
the
extent actually reimbursed, expenses incurred to the extent covered by
indemnification provisions in any agreement in connection with a Permitted
Acquisition,
(ix) to
the
extent covered by insurance proceeds received by the Loan Parties, expenses
with
respect to liability or casualty events, business interruption or product
recalls,
(x) management
fees permitted under Section
7.08(d),
(xi) any
non-cash purchase accounting adjustment and any step-ups with respect to
revaluing assets and liabilities in connection with the Transaction or any
Investment permitted under Section
7.02,
(xii) non-cash
losses from Joint Ventures and non-cash minority interest
reductions,
(xiii) reasonable
fees and expenses in connection with the exchange of the Senior Subordinated
Notes for registered notes with identical terms as contemplated by the Senior
Subordinated Notes Indenture or exchanges or refinancings permitted by
Section
7.14,
(xiv) non-cash
charges (other than any non-cash charge that results in an accrual of a reserve
for cash charges in any future period),
(xv) losses
from discontinued operations not to exceed $2,000,000 during any period of
four
(4) consecutive fiscal quarters,
(xvi) other
expenses of such Person and its Subsidiaries reducing Consolidated Net Income
which do not represent a cash item in such period or any future period,
and
(xvii) with
respect to any Event of Default of any covenant set forth in Section
7.11,
the Net
Cash Proceeds of any Permitted Equity Issuance to the Equity Investors solely
to
the extent that such Net Cash Proceeds (A) are actually received by the U.S.
Borrower (through capital contribution of such Net Cash Proceeds by Holdings
to
the U.S. Borrower) no later than fifteen (15) Business Days after the delivery
of a Notice of Intent to Cure, (B) do not exceed the aggregate amount
necessary to cure such Event of Default under Section
7.11
for any
applicable period and (C) were Not Otherwise Applied (any such issuance,
a
“Permitted
Cure Issuance”);
provided
that the
provisions of this clause
(xvii)
may be
relied on for purposes of determining Consolidated EBITDA no more than two
(2)
times in any twelve-month period; it being understood that this clause
(xvii)
may not
be relied on for purposes of calculating any financial ratios other than
as
applicable to Section
7.11;
minus
(c) all
non-cash items increasing Consolidated Net Income during such period (other
than
items which represent the reversal of any accrual of, or cash reserve for,
anticipated cash charges in any prior period) for such period;
provided,
that to
the extent the receipt of any Net Cash Proceeds of any Permitted Cure Issuance
is an effective addition to Consolidated EBITDA as contemplated by, and in
accordance with, the provisions of clause
(b)(xvii)
above
and, as a result thereof, any Event of Default of the covenants set forth
in
Section
7.11
shall
have been cured for any applicable period, such cure shall be deemed to be
effective as of the last day of such applicable period and such addition
to
Consolidated EBITDA shall apply to any period of four (4) consecutive fiscal
quarters that includes the fiscal quarter in respect of which such addition
was
made.
“Consolidated
Funded Indebtedness”
means,
with respect to any Person and its Restricted Subsidiaries on a consolidated
basis, without duplication,
(a) all
obligations of such Person for borrowed money,
(b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments,
(c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into
in the ordinary course of business),
(d) all
obligations of such Person issued or assumed as the deferred purchase price
of
property or services purchased by such Person (other than accrued expenses
and
trade debt incurred in the ordinary course of business) which would appear
as
liabilities on a balance sheet of such Person,
(e) all
Consolidated Funded Indebtedness of others secured by (or for which the holder
of such Consolidated Funded Indebtedness has an existing right, contingent
or
otherwise, to be secured by) any Lien on, or payable out of the proceeds
of
production from, property owned or acquired by such Person, whether or not
the
obligations secured thereby have been assumed,
(f) all
Guarantees of such Person with respect to Consolidated Funded Indebtedness
of
another Person,
(g) the
implied principal component of all obligations of such Person under Capitalized
Leases,
(h) the
amount of all standby letters of credit issued or bankers’ acceptances
facilities created for the account of such Person required to be reflected
as
liabilities of such Person on a balance sheet prepared in accordance with
GAAP,
(i) all
Disqualified Equity Interests issued by such Person, unless the holder thereof
is a U.S. Loan Party (or, in the case of any Disqualified Equity Interests
issued by a Canadian Loan Party, any Loan Party) or, if the issuer thereof
is a
Restricted Subsidiary which is not a Loan Party, any other Restricted
Subsidiary,
(j) the
principal portion of all obligations of such Person under Synthetic Lease
Obligations, and
(k) the
Consolidated Funded Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer to
the
extent such Consolidated Funded Indebtedness is recourse to such
Person.
Notwithstanding
any other provision of this Agreement to the contrary, (i) the term
“Consolidated Funded Indebtedness” shall not be deemed to include (x) any
post-closing payment adjustments or earn-out, non-competition or consulting
obligations existing on the Closing Date or incurred in compliance with
Section
7.03
until
such obligations become a liability on the balance sheet of the applicable
Person or (y) Guarantees of Capitalized Leases except to the extent required
to
be reflected on a consolidated balance sheet of the U.S. Borrower and its
Subsidiaries in accordance with Financial Accounting Standards Board
Interpretation No. 45 and (ii) the amount of Consolidated Funded
Indebtedness for which recourse is limited either to a specified amount or
to an
identified asset of such Person shall be deemed to be equal to such specified
amount (or, if less, the fair market value of such identified
asset).
“Consolidated
Interest Charges”
means,
as
of any
date for the applicable period ending on such date
with
respect
to any
Person and its Subsidiaries
on a
consolidated basis,
the
excess of (A) interest expense (including the amortization of debt discount
and
premium, the interest component under Capitalized Leases and the implied
interest component under Synthetic Lease Obligations, but excluding, to the
extent included in interest expense, (i) fees and expenses associated with
the consummation of the Transaction, (ii) annual agency fees paid to the
Administrative Agent, (iii) costs associated with obtaining Swap Contracts
and (iv) fees and expenses associated with any Investment permitted under
Section
7.02,
Equity
Issuance or Debt Issuance (whether or not consummated)), as determined in
accordance with GAAP,
to the
extent the same are payable
in
cash
with respect to such period over (B) interest income, as determined in
accordance with GAAP, for such period, to the extent received in cash with
respect to such period.
“Consolidated
Net Income”
shall
mean, with respect to any Person and its Subsidiaries for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries determined
on a consolidated basis in accordance with GAAP; provided
that:
(a) the
net
income (or loss) of any Person (other than a Restricted Subsidiary of the
U.S.
Borrower) in which any Person other than the U.S. Borrower and its Restricted
Subsidiaries has an ownership interest, shall be excluded, provided,
that,
to the extent not previously included, Consolidated Net Income shall be
increased by the amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary;
(b) the
net
income of any Subsidiary of the U.S. Borrower during such period shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of that income is not permitted by operation
of
the terms of its Organization Documents or any agreement, instrument, judgment,
decree, order, statute, rule or regulation applicable to that Subsidiary
during
such period, unless such restriction with respect to the payment of dividends
or
similar distributions has been legally waived; provided
that
Consolidated Net Income of such Person shall be increased by the amount of
dividends or distributions or other payments that are actually paid in cash
(or
to the extent converted into cash) to such Person or a Restricted
Subsidiary;
(c) any
gain
(or loss), together with any related provisions for taxes on any such gain
(or
the tax effect of any such loss), realized during such period by the U.S.
Borrower or any of its Subsidiaries upon any Disposition (other than any
Dispositions in the ordinary course of business) by the U.S. Borrower or
any of
its Subsidiaries and any gain (or loss) on extinguishment of any Indebtedness
of
the U.S. Borrower or any of its Subsidiaries shall be excluded;
(d) unrealized
gains and losses with respect to Swap Contracts for such period shall be
excluded;
(e) the
cumulative effect of a change in accounting principles shall be
excluded;
(f) non-cash
charges relating to employee benefit or other management compensation plans
of
Holdings or Investors LLC (to the extent such non-cash charges relate to
plans
of Investors LLC for the benefit of members of the Board of Directors of
the
U.S. Borrower (in their capacity as such) or employees of the U.S. Borrower
and
its Restricted Subsidiaries), the U.S. Borrower or any of its Restricted
Subsidiaries or any non-cash compensation charge arising from any grant of
stock, stock options or other equity-based awards of Holdings or Investors
LLC
(to the extent such non-cash charges relate to plans of Holdings or Investors
LLC for the benefit of members of the Board of Directors of the U.S. Borrower
(in their capacity as such) or employees of the U.S. Borrower and its Restricted
Subsidiaries), the U.S. Borrower or any of its Restricted Subsidiaries
(excluding in each case any non-cash charge to the extent that it represents
an
accrual of or reserve for cash expenses of the U.S. Borrower or any Restricted
Subsidiary in any future period or amortization of a prepaid cash expense
incurred in a prior period) in each case, to the extent that such non-cash
charges are deducted in computing such Consolidated Net Income shall be
excluded;
(g) any
non-cash goodwill or other impairment charges resulting from the application
of
Statement of Financial Accounting Standards No. 142 or No. 144, and non-cash
charges relating to the amortization of intangibles resulting from the
application of Statement of Financial Accounting Standards No. 141, shall
be
excluded;
(h) any
increase in cost of sales as a result of the step-up in inventory valuation
arising from applying the purchase method of accounting in accordance with
GAAP
in connection with the Transaction or any acquisition consummated after the
Closing Date, net of taxes, shall be excluded;
(i) xxxx-to-market
of Indebtedness denominated in foreign currencies resulting from the application
of Statement of Financial Accounting Standards No. 52 shall be
excluded;
(j) non-recurring
cash charges in an aggregate amount not to exceed $5,000,000 during any four
(4)
consecutive fiscal quarter period shall be excluded;
(k) any
gains, losses or charges of the U.S. Borrower and its Subsidiaries incurred
in
connection with the Transactions, including severance, bonus, change of control
payments and other compensation charges arising therefrom together with any
related provision for taxes on such gain, loss or charge, shall be excluded;
and
(l) any
extraordinary gain (or extraordinary loss), together with any related provision
for taxes on any such gain (or the tax effect of any such loss), recorded
or
recognized by the U.S. Borrower or any of its Subsidiaries during such period
shall be excluded.
“Consolidated
Parties”
means
the collective reference to Holdings, the U.S. Borrower and its Restricted
Subsidiaries, and “Consolidated
Party”
means
any one of them.
“Consolidated
Revenues”
shall
mean the consolidated revenues of the U.S. Borrower and its Restricted
Subsidiaries, as determined in accordance with GAAP.
“Consolidated
Scheduled Funded Debt Payments”
means,
as of any date for the applicable period ending on such date
with
respect
to the
Borrower
Parties
on a
consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness during such period (including the implied
principal component of payments due on Capitalized Leases during such period
and
Synthetic Lease Obligations, but excluding all voluntary prepayments or
mandatory prepayments required pursuant to Section 2.05,
in each
case as applied pursuant to Section 2.05),
as
determined in accordance with GAAP.
“Continuing
Directors”
shall
mean the directors of Holdings on the Closing Date, after giving effect to
the
Acquisition (as defined in the Original Credit Agreement) and the other
transactions contemplated thereby, and each other director, if, in each case,
such other director’s nomination for election to the board of directors of
Holdings is or was recommended by a majority of the then Continuing Directors
or
such other director receives or received the vote of the Equity Investors
in his
or her election by the stockholders of Holdings.
“Contractual
Obligation”
means,
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.
“Control”
has
the
meaning specified in the definition of “Affiliate”.
“Covenant
to Pay Party”
has
the
meaning specified in Section
10.21.
“Credit
Extension”
means
each of the following: (a) a Borrowing (including the acceptance of a Canadian
BA) and (b) an L/C Credit Extension.
“Debt
Issuance”
means
the issuance by any Person and its Subsidiaries of any Indebtedness for borrowed
money.
“Debtor
Relief Laws”
means
the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions
from
time to time in effect and affecting the rights of creditors
generally.
“Default”
means
any event or condition that constitutes an Event of Default or that, with
the
giving of any notice, the passage of time, or both, would be an Event of
Default.
“Default
Rate”
means
an interest rate equal to (a) the Base Rate plus
(b) the
Applicable Rate, if any, applicable to Base Rate Loans plus
(c) 2.0%
per annum; provided,
however,
that
with respect to a Eurodollar Rate Loan, if greater, the Default Rate shall
be an
interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2.0% per annum, in each case, to the
fullest extent permitted by applicable Laws.
“Defaulting
Lender”
means
any Lender that (a) has failed to fund any portion of the Revolving Credit
Loans, participations in L/C Obligations or participations in Swing Line
Loans
required to be funded by it hereunder within one (1) Business Day of the
date
required to be funded by it hereunder, (b) has otherwise failed to pay over
to
the applicable Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one (1) Business Day of the date
when
due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
“Disposition”
or
“Dispose”
means
the sale, transfer, license, lease or other disposition (including any sale
and
leaseback transaction and any sale or issuance of Equity Interests of a
Subsidiary of the U.S. Borrower) of any property by any Person, including
any
sale, assignment, transfer or other disposal, with or without recourse, of
any
notes or accounts receivable or any rights and claims associated
therewith;
provided,
however,
that
“Disposition” and “Dispose” shall not be deemed to include any issuance by
Holdings of any of its Equity Interests to another Person.
“Disqualified
Equity Interests”
means
any Equity Interest which, by its terms (or by the terms of any security
or
other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (a) matures
or is
mandatorily redeemable, pursuant to a sinking fund obligations or otherwise,
(b)
is redeemable at the option of the holder thereof, in whole or in part, (c)
provides for the scheduled payments of dividends in cash, or (d) is or becomes
convertible into or exchangeable for Indebtedness or any other Equity Interests
that would constitute Disqualified Equity Interests, in each case, prior
to the
date that is ninety one (91) days after the Maturity Date of the Term B
Facility;
provided
that if
such Equity Interest is issued to any employee or to any plan for the benefit
of
employees of the U.S. Borrower or any of its Subsidiaries or by any such
plan to
such employees, such Equity Interest shall not constitute a Disqualified
Equity
Interest solely because it may be required to be repurchased by the U.S.
Borrower or such Subsidiary in order to satisfy applicable statutory or
regulatory obligations; and provided further
that any
Equity Interest that would constitute a Disqualified Equity Interest solely
because the holders thereof have the right to require the U.S. Borrower to
repurchase such Equity Interest upon the occurrence of a change of control
or an
asset sale shall not constitute a Disqualified Equity Interest if the terms
of
such Equity Interest provide that the U.S. Borrower may not repurchase or
redeem
any such Equity Interest pursuant to such provisions prior to the repayment
in
full of the Obligations.
“Dollar”,
“$”
and
“U.S.
Dollar”
mean
the lawful money of the United States.
“Domestic
Office”
means
(a) relative to any U.S. Lender, the office of such Lender designated as
its “U.S. Domestic Office” on Schedule
2.01
of the
Original Credit Agreement or in an Assignment and Assumption, or such other
office within the United States as may be designated from time to time by
notice
from such Lender to the Agents and the Borrowers; and (b) relative to any
Canadian Lender, the office of such Lender designated as its “Canadian Domestic
Office” on Schedule
2.01
of the
Original Credit Agreement or in an Assignment and Assumption, or such other
office within Canada as may be designated from time to time by notice from
such
Lender to the Agents and the Borrowers.
“Domestic
Subsidiary”
means
any Subsidiary that is organized under the laws of the United States, any
state
thereof or the District of Columbia and any other Subsidiary that is not
a
“controlled foreign corporation” under Section 957 of the Code.
“Dutch
Collateral”
means
all issued share capital of any entity organized under the laws of The
Netherlands, including, without limitation, all shares in the issued share
capital of Nortek International Holdings B.V., upon which a Lien is granted
to
the U.S. Administrative Agent pursuant to any Loan Document that are or are
required under the terms of the Loan Documents to be subject to Liens in
favor
of the U.S. Administrative Agent for the benefit of the Secured
Parties.
“Eligible
Assignee”
means
(a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)
any
other Person (other than a natural person) approved by (i) the applicable
Administrative Agent, (ii) in the case of any assignment of a Revolving
Credit Commitment, the applicable L/C Issuer and the applicable Swing Line
Lender, and (iii) unless an Event of Default has occurred and is continuing
(and except in the case of an assignment to an existing Lender or in the
case of
an assignment in connection with the initial syndication of the Facilities
to
institutions included on the list previously provided by the U.S. Administrative
Agent to the U.S. Borrower), the U.S. Borrower (each such approval not to
be
unreasonably withheld or delayed).
“Environmental
Laws”
means
any and all Federal, state, local, and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, licenses, and the
common
law relating to pollution or the protection of the environment (including
ambient air, indoor air, surface wastes, groundwater, land and subsurface
strata) and natural resources including those related to Release or threat
of
Release, or exposure to, or generation, storage, treatment, transport, handling,
distribution or disposal of Hazardous Materials.
“Environmental
Liability”
means
any liability or costs, contingent or otherwise (including any liability
for
damages, costs of environmental remediation, fines, penalties or indemnities),
of the U.S. Borrower, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any
Hazardous Materials, (d) the Release or threatened Release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed
with
respect to any of the foregoing.
“Environmental
Permit”
means
any permit, approval, identification number, license or other authorization
required under any Environmental Law.
“Equity
Interests”
means,
with respect to any Person, all of the shares, interests, rights, participations
or other equivalents (however designated) of capital stock of (or other
ownership or profit interests or units in) such Person and all of the warrants,
options or other rights for the purchase, acquisition or exchange from such
Person of any of the foregoing (including through convertible
securities).
“Equity
Investors”
means
the Sponsor, the Management Shareholders and the other members of Investors
LLC
as of the Closing Date.
“Equity
Issuance”
means
any issuance for cash by any Person and its Subsidiaries to any other Person
of
(a) its Equity Interests, (b) any of its Equity Interests pursuant to
the exercise of options or warrants, (c) any of its Equity Interests
pursuant to the conversion of any debt securities to equity or (d) any
options or warrants relating to its Equity Interests. A Disposition shall
not be
deemed to be an Equity Issuance.
“ERISA”
means
the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) under common control
with
any Loan Party within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to
Section 412 of the Code).
“ERISA
Event”
means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by any Loan Party or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is insolvent
or in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA,
or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition
of any
liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA
Affiliate.
“Eurodollar
Rate”
shall
mean, with respect to any Eurodollar Rate Loan for any Interest Period, the
rate
per annum determined by the U.S. Administrative Agent to be the arithmetic
mean
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the offered
rates for deposits in 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, England time,
on
the second full Business Day preceding the first day of such Interest Period;
provided,
however,
that
(i) if no comparable term for an Interest Period is available, the Eurodollar
Rate shall be determined using the weighted average of the offered rates
for the
two terms most nearly corresponding to such Interest Period and (ii) if there
shall at any time no longer exist a Telerate British Bankers Assoc. Interest
Settlements Rate Page, “Eurodollar Rate” shall mean, with respect to each day
during each Interest Period pertaining to Eurodollar Rate Loans constituting
a
single Borrowing, the rate per annum equal to the rate at which such
Administrative Agent is offered deposits in Dollars at approximately 11:00
a.m.,
London, England time, two Business Days prior to the first day of such Interest
Period in the London interbank market 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 such Borrowing 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 Dollar deposits are offered by leading
banks in the London interbank deposit market).
“Eurodollar
Rate Loan”
means
a
Loan that bears interest at a rate based on the Eurodollar Rate. Canadian
Loans
made in Canadian Dollars may not bear interest at the Eurodollar
Rate.
“Event
of Default”
has
the
meaning specified in Section
8.01.
“Excess
Cash Flow”
means,
with respect to any Excess Cash Flow Period of the Borrower Parties on a
consolidated basis, an amount equal to Consolidated EBITDA:
(a) minus,
without
duplication, the following items for such Excess Cash Flow Period:
(i) cash
from
operations used to make Capital Expenditures,
(ii) total
interest expense paid in cash,
(iii) Consolidated
Cash Taxes, including cash payments for federal, state and other income tax
liabilities incurred prior to the Closing Date,
(iv) Consolidated
Scheduled Funded Debt Payments,
(v) Restricted
Payments made by the Borrower Parties permitted by Section 7.06(d)
and
(f),
(vi) voluntary
prepayments of any Indebtedness (other than the Obligations); provided
that
(1) such prepayments are otherwise permitted hereunder and (2) if such
Indebtedness consists of a revolving line of credit, the commitments under
such
line of credit are permanently reduced by the amount of such
prepayment,
(vii) letter
of
credit fees,
(viii) proceeds
received by the Borrower Parties from insurance claims with respect to casualty
events, business interruption or product recalls which reimburse prior business
expenses,
(ix) cash
payments made in satisfaction of non-current liabilities (including the current
portion thereof),
(x) cash
expenses incurred in connection with the Transaction or, to the extent permitted
hereunder, cash from operations used to consummate any Investment permitted
by
Section 7.02
(other
than an Investment in the U.S. Borrower or a Restricted Subsidiary), Equity
Issuance or Debt Issuance (whether or not consummated),
(xi) fees
and
expenses in connection with the exchange of the Senior Subordinated Notes
for
registered notes with identical terms as contemplated by the Senior Subordinated
Notes Indenture or exchanges or refinancings permitted by Section 7.14,
(xii) cash
indemnity payments received pursuant to indemnification provisions in any
agreement in connection with a Permitted Acquisition (or in any similar
agreement related to any other acquisition consummated prior to the Closing
Date),
(xiii) all
non-recurring cash charges,
(xiv) cash
expenses incurred in connection with deferred compensation
arrangements,
(xv) management
fees permitted by Section 7.08(d),
(xvi) cash
from
operations used to consummate a Permitted Acquisition,
(xvii) the
Net
Cash Proceeds of Permitted Cure Issuances,
(xviii) extraordinary
cash losses and cash losses from Dispositions,
(xix) cash
expenditures in respect of Swap Contracts,
(xx)
cash
losses from discontinued operations, and
(xxi) the
amount, if any, by which Working Capital increased during such Excess Cash
Flow
Period;
(b) plus,
without
duplication, the following items for such Excess Cash Flow Period:
(i) cash
income in respect of Swap Contracts, and
(ii) the
amount, if any, by which Working Capital decreased during such Excess Cash
Flow
Period.
“Excess
Cash Flow Period”
means
each fiscal year of the U.S. Borrower.
“Executive
Order”
has
the
meaning specified in Section
5.22(a).
“Existing
Increased Facility Lenders”
has
the
meaning specified in Section
2.06(f).
“Existing
Letters of Credit”
means
the Canadian Existing Letters of Credit and the U.S. Existing Letters of
Credit.
“Facility”
means
the U.S. Facility and the Canadian Facility, as the context may
require.
“Federal
Funds Rate”
means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal Reserve
System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day;
provided
that (a)
if such day is not a Business Day, the Federal Funds Rate for such day shall
be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is
so
published on such next succeeding Business Day, the Federal Funds Rate for
such
day shall be the average (rounded upward, if necessary, to a whole multiple
of
1/100 of 1%) of the quotations for the day for such transactions received
by the
applicable Administrative Agent from three federal funds brokers of recognized
standing selected by it.
“Fee
Letter”
means
the letter agreement, dated July 15, 2004, among the U.S. Borrower, the
Arrangers and UBS Loan Finance LLC.
“First
Revolving Credit Commitment Increase Lender”
means
each Person that has agreed to provide a First Increased Revolving Credit
Commitment pursuant to a First Revolving Credit Commitment Increase Lender
Addendum.
“First
Revolving Credit Commitment Increase Lender Addendum”
means
a
Lender Addendum, substantially in the form of Exhibit
A
signed
by the U.S. Borrower, a First Revolving Credit Commitment Increase Lender
and
the U.S. Administrative Agent.
“First
Increased Revolving Credit Commitments”
means,
with respect to any First Revolving Credit Commitment Increase Lender, such
Lender’s commitment to provide an additional U.S. Revolving Credit Commitment
(in addition to any such Lender’s U.S. Revolving Credit Commitment immediately
prior to Restatement Effective Date) from and after the
Restatement
Effective Date as set forth in Schedule I to the First Revolving Credit
Commitment Increase Lender Addendum provided by such First Revolving Credit
Commitment Increase Lender. The aggregate amount of First Increased Revolving
Credit Commitments of all First Revolving Credit Commitment Increase Lenders
shall be $100,000,000.
“Foreign
Lender”
has
the
meaning specified in Section
10.15(a)(i).
“Foreign
Plan”
shall
mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by, or entered into with, the U.S. Borrower
or any
Subsidiary with respect to employees employed outside the United
States.
“Foreign
Subsidiary”
means
any direct or indirect Subsidiary of the U.S. Borrower which is not a Domestic
Subsidiary.
“FRB”
means
the Board of Governors of the Federal Reserve System of the United
States.
“Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions
of
credit in the ordinary course.
“GAAP”
means
generally accepted accounting principles in the United States set forth in
the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board or such other principles as may
be
approved by a significant segment of the accounting profession in the United
States, that are applicable to the circumstances as of the date of
determination, consistently applied.
“Governmental
Authority”
means
any nation or government, any state or other political subdivision thereof,
any
agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Granting
Lender”
has
the
meaning specified in Section
10.07(g).
“Guarantee”
means,
as to any Person, without duplication, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable
by
another Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, and including any obligation of such
Person, direct or indirect, (i) to purchase or pay (or advance or supply
funds
for the purchase or payment of) such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness or other obligation of the payment
or performance of such Indebtedness or other obligation, (iii) to maintain
working capital, equity capital or any other financial statement condition
or
liquidity or level of income or cash flow of the primary obligor so as to
enable
the primary obligor to pay such Indebtedness or other obligation, or (iv)
entered into for the purpose of assuring in any other manner the obligee
in
respect of such Indebtedness or other obligation of the payment or performance
thereof or to protect such obligee against loss in respect thereof (in whole
or
in part), or (b) any Lien on any assets of such Person securing any
Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness to obtain any
such
Lien); provided that
the
term “Guarantee” shall not include guarantees of lease payments entered into in
the ordinary course of business except to the extent required in accordance
with
GAAP to be reflected on a balance sheet in accordance with Financial Accounting
Standards Board Interpretation No. 45. The amount of any Guarantee shall
be
deemed to be an amount equal to the stated or determinable amount of the
related
primary obligation, or portion thereof, in respect of which such Guarantee
is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in
good
faith. The term “Guarantee”
as
a
verb has a corresponding meaning.
“Guarantors”
means,
collectively, Holdings, the U.S. Subsidiary Guarantors and each of the Canadian
Guarantors. Each of the Guarantors on the Restatement Effective Date, other
than
Holdings and the U.S. Borrower, is listed on Schedule
I.
“Guaranty”
means,
collectively, the Parent Guaranty, the U.S. Subsidiary Guaranty and the Canadian
Guaranty.
“Hazardous
Materials”
means
all pollutants, contaminants, chemicals, constituents substances, or wastes,
including petroleum or petroleum products, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes,
of any nature regulated pursuant to or which can give rise to liability under
any Environmental Law.
“Hedge
Bank”
means
any Person that is an Arranger or a Lender or an Affiliate of an Arranger
or a
Lender, in its capacity as a party to a Secured Hedge Agreement.
“Holdings”
has
the
meaning specified in the introductory paragraph to this Agreement.
“Holdings
Consolidated Leverage Ratio”
means,
with
respect to the
Consolidated Parties on a consolidated basis, as of the end of any fiscal
quarter of the U.S. Borrower for the four (4) fiscal quarter period ending
on
such date, the ratio of (a) Consolidated Funded Indebtedness (net of the
amount of Unrestricted Cash on hand on such date) of the Consolidated Parties
on
the last day of such period to (b) Consolidated EBITDA of the Consolidated
Parties for such period.
“Honor
Date”
has
the
meaning specified in Section
2.03(c)(i).
“ICC”
has
the
meaning specified in Section
2.03(h).
“Increased
Facility”
has
the
meaning set forth in Section 2.06(d).
“Increased
Lender”
has
the
meaning set forth in Section 2.06(d).
“Incremental
Term B Loans”
has
the
meaning set forth in Section
2.14(a).
“Indebtedness”
means,
as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such
Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;
(b) the
maximum amount (after giving effect to any prior drawings or permanent
reductions which may have been reimbursed) of all letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds,
performance bonds and similar instruments issued or created by or for the
account of such Person;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of property
or
services (other than (i) accrued expenses and trade debt incurred in the
ordinary course of business and (ii) deferred compensation) which would appear
as liabilities on a balance sheet of such Person;
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned
or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements and mortgage, industrial revenue
bond,
industrial development bond and similar financings), whether or not such
indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) all
Attributable Indebtedness;
(g) all
obligations of such Person in respect of Disqualified Equity Interests;
and
(h) all
Guarantees of such Person in respect of any of the foregoing;
provided,
that
“Indebtedness” shall not include any post-closing payment adjustments or
earn-out, non-competition or consulting obligations existing on the Restatement
Effective Date or incurred in connection with Investments permitted under
Section
7.02
until
such obligations are required in accordance with GAAP to be reflected as
a
liability on the balance sheet of the applicable Person
For
all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value thereof
as
of such date. The amount of Indebtedness of any Person for purposes of
clause
(e)
shall be
deemed to be equal to the lesser of (i) the aggregate unpaid amount of such
Indebtedness and (ii) the fair market value of the property encumbered thereby
as determined by such Person in good faith.
“Indemnified
Liabilities”
has
the
meaning set forth in Section
10.05.
“Indemnitees”
has
the
meaning set forth in Section
10.05.
“Information”
has
the
meaning specified in Section
10.08.
“Information
Memorandum”
means
the confidential information memorandum dated July 2004 used by the Arrangers
in
connection with the syndication of the Commitments.
“Intellectual
Property Security Agreement”
means,
collectively, the intellectual property security agreement, substantially
in the
form of Exhibit I
to the
Original Credit Agreement together with each other intellectual property
security agreement supplements executed and delivered pursuant to Section 6.12
or the
Security Agreement.
“Intercompany
Note”
means
an intercompany note, substantially in the form of Exhibit L
to the
Original Credit Agreement, executed by Holdings and each of its Subsidiaries
and
endorsed in blank by each of the U.S. Loan Parties.
“Interest
Coverage Ratio”
means,
with
respect to the
Borrower
Parties on
a
consolidated basis, as of the end of any fiscal quarter of the U.S. Borrower
for
the
four (4) fiscal quarter period ending on such date
with
respect to the Borrower Parties on
a
consolidated basis, the ratio of (a) Consolidated EBITDA of the
Borrower
Parties
to
(b) Consolidated Interest Charges of the Borrower
Parties.
“Interest
Payment Date”
means,
(a) as to any Loan other than a Base Rate Loan, the last day of each Interest
Period applicable to such Loan and the Maturity Date of the Facility under
which
such Loan was made; provided,
however,
that if
any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date of the Facility under
which
such Loan was made.
“Interest
Period”
means
(i) as to each Eurodollar Rate Loan, the period commencing on the date such
Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
Rate Loan (whether pursuant to the Original Credit Agreement or this Agreement)
and ending on the date one, two, three or six months thereafter, or to the
extent available to all Term B Lenders, U.S. Revolving Lenders or Canadian
Lenders, as applicable, nine or twelve months thereafter, as selected by
a
Borrower in its Committed Loan Notice and (ii) relative to any Canadian BA
or
Acceptance Note, the period beginning on (and including) the date on which
such
Canadian BA is accepted or rolled over pursuant to Article
II
or such
Acceptance Note is issued pursuant to Article
II
and
continuing to (but excluding) the date which is approximately 30, 60, 90
or 180
days thereafter (or, if requested by the relevant Canadian Borrower and
available to each Canadian Lender, the date which is approximately 14 days,
nine
months or twelve months thereafter) as a Canadian Borrower may select in
its
relevant notice pursuant to Section
2.02;
provided
that:
(a) any
Interest Period that would otherwise end on a day that is not a Business
Day
shall be extended to the next succeeding Business Day unless such Business
Day
falls in another calendar month, in which case such Interest Period shall
end on
the next preceding Business Day;
(b) any
Interest Period that begins on the last Business Day of a calendar month
(or on
a day for which there is no numerically corresponding day in the calendar
month
at the end of such Interest Period) shall end on the last Business Day of
the
calendar month at the end of such Interest Period; and
(c) no
Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
“Investment”
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity
Interests or debt or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of Indebtedness
of,
or purchase or other acquisition of any other Indebtedness or equity
participation or interest in, another Person, including any partnership or
joint
venture interest in such other Person and any arrangement pursuant to which
the
investor incurs Indebtedness of the type referred to in clause (h)
of the
definition of “Indebtedness” set forth in this Section 1.01
in
respect of such Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of all or substantially all of the
property and assets or business of another Person or assets constituting
a
business unit, line of business or division of such Person. For purposes
of
covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the
value
of such Investment, but net of any return of principal or capital in respect
of
such Investment.
“Investors
LLC”
means
THL-Nortek Investors, LLC, a Delaware limited liability company.
“IP
Rights”
has
the
meaning set forth in Section
5.17.
“IP
Security Agreement Supplement”
has
the
meaning specified in the Security Agreement.
“IRS”
means
the United States Internal Revenue Service.
“Joint
Venture”
means
any Person which is not a Restricted Subsidiary of the U.S. Borrower in which
the U.S. Borrower owns directly or indirectly more than 20% of the voting
stock.
“Junior
Financing”
has
the
meaning specified in Section
7.14.
“Junior
Financing Documentation”
means
the Senior Subordinated Notes, the Senior Subordinated Notes Indenture, the
Nortek Existing Senior Subordinated Notes and the indenture governing the
Nortek
Existing Senior Subordinated Notes and any documentation governing any other
Junior Financing.
“Landlord
Consent”
has
the
meaning specified in Section
6.16(b).
“Laws”
means,
collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations
and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
“L/C
Advance”
means
(a) with respect to each U.S. Revolving Credit Lender, such Lender’s
funding of its participation in any U.S. L/C Borrowing in accordance with
its
Pro Rata Share and (b) with respect to each Canadian Lender, such Canadian
Lender’s funding of its participation in any Canadian L/C Borrowing in
accordance with its Pro Rata Share.
“L/C
Borrowing”
means
an extension of credit resulting from a drawing under any Letter of Credit
which
has not been reimbursed on the date when made or refinanced as a U.S. Revolving
Credit Borrowing or a Canadian Borrowing, as applicable.
“L/C
Credit Extension”
means,
with respect to any Letter of Credit, the issuance thereof or extension of
the
expiry date thereof, or the renewal or increase of the amount
thereof.
“L/C
Issuer”
means
the U.S. L/C Issuer or the Canadian L/C Issuer, as applicable.
“L/C
Obligations”
means,
as at any date of determination, the aggregate amount available to be drawn
under all outstanding Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter
of
Credit shall be determined in accordance with Section
1.08.
For all
purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by
reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed
to be “outstanding” in the amount so remaining available to be
drawn.
“Lender”
means
the U.S. Lenders and the Canadian Lenders and, as the context requires
(including, without limitation, for purposes of Sections
10.04
and
10.05),
includes the L/C Issuers and the Swing Line Lenders.
“Lending
Office”
means,
as to any Lender, the office or offices of such Lender described as such
in such
Lender’s Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify each Borrower and the applicable
Administrative Agent.
“Letter
of Credit”
means
any letter of credit issued hereunder and shall include the Existing Letters
of
Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit.
“Letter
of Credit Application”
means
an application and agreement for the issuance or amendment of a Letter of
Credit
in the form from time to time in use by the applicable L/C Issuer.
“Letter
of Credit Expiration Date”
means
the day that is five (5) days prior to the scheduled Maturity Date then in
effect for the Revolving Credit Facility (or, if such day is not a Business
Day,
the next preceding Business Day) under which such Letter of Credit was
issued.
“Leverage
Ratio”
means,
with respect to the Borrower Parties on a consolidated basis, as of the end
of
any fiscal quarter of the U.S. Borrower for the four (4) fiscal quarter period
ending on such date, the ratio of (a) Consolidated Funded Indebtedness (net
of
the amount of Unrestricted Cash on hand on such date) of the Borrower Parties
on
the last day of such period to (b) Consolidated EBITDA of the Borrower Parties
for such period.
“Lien”
means
any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other
security interest or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
easement, right of way or other encumbrance on title to real property, and
any
Capitalized Lease having substantially the same economic effect as any of
the
foregoing).
“Loan”
means
a
U.S. Loan, a Canadian Loan or a Canadian Swingline Loan and shall include
without limitation all Canadian BAs in respect of which any Canadian Lender
has
not received payment in full. References herein to the “principal amount” of a
Loan shall, when referring to a Canadian BA, mean the face amount thereof.
“Loan
Documents”
means,
collectively, (a) for purposes of this Agreement and the Notes and any
amendment, supplement or other modification hereof or thereof and for all
other
purposes other than for purposes of the Guaranty and the Collateral Documents,
(i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Collateral
Documents, (v) the Fee Letter, (vi) each Letter of Credit Application,
(vii) the Acceptance Notes and (vii) Canadian BAs and (b) for
purposes of the Guaranty and the Collateral Documents, (i) this Agreement,
(ii)
the Notes, (iii) the Guaranty, (iv) the Collateral Documents, (v) each
Letter of Credit Application, (vi) the Fee Letter and (vii) each Secured
Hedge
Agreement and each Secured Cash Management Agreement.
“Loan
Parties”
means,
collectively, each Borrower and each Guarantor.
“Management
Shareholders”
means
Xxxxxxx X. Xxxxxx and the other members of management of the U.S. Borrower
or
its Subsidiaries who were investors in Investors LLC on the Closing
Date.
“Master
Agreement”
has
the
meaning specified in the definition of “Swap Contract”.
“Material
Adverse Effect”
means
(a) a material adverse effect on the condition (financial or otherwise),
business, operations, assets or liabilities of the U.S. Borrower and its
Subsidiaries, taken as a whole, (b) a material adverse effect on the
ability of the U.S. Borrower or the Loan Parties (taken as a whole) to perform
their respective obligations under the Loan Documents or (c) a material
adverse effect on the rights and remedies of the Lenders under any Loan
Document.
“Material
Disposition”
means
any Disposition by the U.S. Borrower or any Restricted Subsidiary of property
constituting all or substantially all the Equity Interests in any Subsidiary
or
any division, product line or facility used for operations of the U.S. Borrower
or any of its Subsidiaries with a fair market value in excess of
$5,000,000.
“Material
Real Estate”
means
any parcel of real property that is fee owned by a U.S. Loan Party, other
than
any parcel of real property that (i) has a fair market value less than
$2,000,000 or (ii) is subject to a Lien permitted by Section
7.01(p)
which
prohibits the granting of a Lien to the U.S. Administrative Agent.
“Maturity
Date”
means
(a) with respect to the U.S. Revolving Credit Facility, the earlier of
(i) August 27, 2010 and (ii) the date of termination in whole of
the Revolving Credit Commitments, the Letter of Credit Commitments, and the
Swing Line Commitments pursuant to Section 2.06(a)
or 8.02,
(b)
with respect to the Canadian Facility, the earlier of (i) August 27,
2010 and (ii) the date of termination in whole of the Canadian Credit
Commitments pursuant to Section 2.06(a)
or 8.02,
and (c)
with respect to the Term B Facility, the earlier of
(i) August 27, 2011 and (ii) the date of acceleration of the
Term B Loans pursuant to Section 8.02.
“Maximum
Rate”
has
the
meaning specified in Section
10.10.
“Minority
Lenders”
shall
have the meaning assigned to such term in Section
10.01.
“Moody’s”
means
Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage”
means,
collectively, the deeds of trust, trust deeds and mortgages made by the Loan
Parties in favor or for the benefit of the Administrative Agent for the benefit
of the Secured Parties substantially in the form of Exhibit H-1
or
H-2
to the
Original Credit Agreement, as applicable (with such changes as may be customary
to account for local law matters), together with each other mortgage executed
and delivered pursuant to Section
6.12.
“Multiemployer
Plan”
means
any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated
to
make contributions, or, during the preceding five plan years, has made or
been
obligated to make contributions.
“Net
Cash Proceeds”
means:
(a) with
respect to the Disposition of any asset by Holdings, the U.S. Borrower or
any of
its Restricted Subsidiaries or any Casualty Event, the excess, if any, of
(i)
the sum of cash and Cash Equivalents received in connection with such
Disposition or Casualty Event (including any cash or Cash Equivalents received
by way of deferred payment pursuant to, or by monetization of, a note receivable
or otherwise, but only as and when so received and, with respect to any Casualty
Event, any insurance proceeds or condemnation awards in respect of such Casualty
Event received by or paid to or for the account of Holdings, the U.S. Borrower
or any of its Restricted Subsidiaries) over (ii) the sum of (A) the principal
amount and premium, if any, of any Indebtedness that is secured by the asset
subject to such Disposition or Casualty Event and that is repaid in connection
with such Disposition or Casualty Event (other than Indebtedness under the
Loan
Documents), (B) the out-of-pocket expenses incurred by Holdings, the U.S.
Borrower or such Restricted Subsidiary in connection with such Disposition
or
Casualty Event, (C) taxes paid or reasonably estimated to be actually
payable in connection therewith, and (D) any reserve for adjustment in respect
of (x) the sale price of such asset or assets established in accordance with
GAAP and (y) any liabilities associated with such asset or assets and retained
by Holdings, the U.S. Borrower or any of its Restricted Subsidiaries after
such
sale or other disposition thereof, including, without limitation, pension
and
other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with
such transaction and it being understood that “Net Cash Proceeds” shall include,
without limitation, any cash or Cash Equivalents (i) received upon the
Disposition of any non-cash consideration received by Holdings, the U.S.
Borrower or any of its Restricted Subsidiaries in any such Disposition and
(ii)
upon the reversal (without the satisfaction of any applicable liabilities
in
cash in a corresponding amount) of any reserve described in clause
(D)
of the
preceding sentence or, if such liabilities have not been satisfied in cash
and
such reserve not reversed within three hundred and sixty-five (365) days
after
such Disposition or Casualty Event, the amount of such reserve;
(b) with
respect to the issuance of any Equity Interest by Holdings or any of its
Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents
received in connection with such issuance over (ii) the investment banking
fees,
underwriting discounts and commissions, taxes and other out-of-pocket expenses
and other customary expenses, incurred by Holdings or such Subsidiary in
connection with such issuance; and
(c) with
respect to the incurrence or issuance of any Indebtedness by Holdings, the
U.S.
Borrower or any of its Restricted Subsidiaries, the excess, if any, of
(i) the sum of the cash received in connection with such sale over (ii) the
investment banking fees, underwriting discounts and commissions, and other
out-of-pocket expenses and other customary expenses, incurred by Holdings,
the
U.S. Borrower or such Restricted Subsidiary in connection with such
sale.
“Non-Guarantor
Domestic Subsidiary”
means
each Domestic Subsidiary listed on Schedule
1.01(c)
to the
Original Credit Agreement and each other Domestic Subsidiary formed or acquired
after the date hereof, in each case, for so long as (i) all property of such
Subsidiary has a fair market value in the aggregate of less than $5,000,000,
(ii) such Subsidiary does not have any Indebtedness (including by way of
Guarantee) in respect of money borrowed, and (iii) such Subsidiary is not
engaged in any substantial business activities.
“Nonrenewal
Notice Date”
has
the
meaning specified in Section
2.03(b)(iii).
“Nortek
Existing Senior Subordinated Notes”
means
all outstanding 9 7/8% Senior Subordinated Notes due 2011 issued by Nortek,
Inc.
pursuant to the Indenture, dated as of June 12, 2001, as amended and
supplemented from time to time, by and among Nortek, Inc. and U.S. Bank National
Association, as successor in interest to State Street Bank and Trust
Company.
“Not
Otherwise Applied”
means,
with reference to any amount of Net Cash Proceeds of any transaction or event
or
of Excess Cash Flow, that such amount (a) was not required to be applied
to
prepay the Loans pursuant to Section
2.05(b)
or
Section
2.05(b)
of the
Original Credit Agreement, (b) was not previously included in a calculation
of
“Consolidated EBITDA” pursuant to clause
(b)(xvii)
of the
definition thereof or in such definition in the Original Credit Agreement
and
(c) was not previously applied in determining the permissibility of a
transaction (including, without limitation, the making of an Investment,
Restricted Payment, capital expenditure or refinancing of Junior Financing)
under the Loan Documents (including, without limitation, the Original Credit
Agreement) where such permissibility was (or may have been) contingent on
receipt of such amount. The U.S. Borrower shall promptly notify the U.S.
Administrative Agent of any application of such amount as contemplated by
(c)
above.
“Note”
means
a
Term B Note or a Revolving Credit Note, as the context may
require.
“Notice
of Intent to Cure”
has
the
meaning specified in Section
6.02(b).
“Notional
BA Proceeds”
means,
relative to a particular Canadian BA Rate Loan, the face amount of such Canadian
BAs multiplied by the price (which product shall be rounded to the nearest
full
cent, with one-half cent being rounded upward), where the price is calculated
by
dividing one by the sum of one plus the product of (i) the Canadian BA Rate
applicable thereto expressed as a decimal fraction, multiplied by (ii) a
fraction, the numerator of which is the term of such Canadian BAs in days
and
the denominator of which is 365 (which price will be rounded to the nearest
0.001%); less,
the per
annum Canadian BA Stamping Fee multiplied by the face amount of the applicable
Canadian BAs, and multiplying the result by a fraction, the numerator of
which
is the actual number of days in the period commencing on the date of acceptance
of such Canadian BAs and continuing to (but excluding) the maturity date
of such
Canadian BAs, and the denominator of which is 365 (such fee to be non-refundable
and fully earned upon acceptance of such Canadian BAs).
“NPL”
means
the National Priorities List under CERCLA.
“Obligations”
means
all advances to, and debts, liabilities, obligations, covenants and duties
of,
any Loan Party (including for the avoidance of doubt, the Canadian Loan Parties)
arising under any Loan Document or otherwise with respect to any Loan or
Letter
of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or
against
any Loan Party of any proceeding under any Debtor Relief Laws naming such
Person
as the debtor in such proceeding, regardless of whether such interest and
fees
are allowed claims in such proceeding. Without limiting the generality of
the
foregoing, the Obligations of the Loan Parties under the Loan Documents include
(a) the obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Loan Party under any Loan Document and (b) the obligation of any
Loan Party to reimburse any amount in respect of any of the foregoing that
any
Lender, in its sole discretion, may elect to pay or advance on behalf of
such
Loan Party in accordance with the terms of the Loan Documents.
“OFAC”
has
the
meaning given to such term by Section
5.22(b).
“Organization
Documents”
means,
(a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization
and
operating agreement; and (c) with respect to any partnership, joint
venture, trust or other form of business entity, the partnership, joint venture
or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with
its
formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such
entity.
“Other
Taxes”
has
the
meaning specified in Section
3.01(b).
“Outstanding
Amount”
means
(a) with respect to the Term B Loans, Revolving Credit Loans and Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of Term B
Loans, Revolving Credit Loans (including any refinancing of outstanding unpaid
drawings under Letters of Credit or L/C Credit Extensions as a Revolving
Credit
Borrowing) and Swing Line Loans, as the case may be, occurring on such date
(and
calculated with respect to any Loans denominated in Canadian Dollars, at
the
U.S. Dollar Equivalent thereof as of the most recent Revaluation Date); and
(b)
with respect to any L/C Obligations on any date, the amount of such L/C
Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the
L/C
Obligations as of such date (calculated with respect to any Letters of Credit
denominated in Canadian Dollars, at the U.S. Dollar Equivalent thereof as
of the
most recent Revaluation Date), including as a result of any reimbursements
of
outstanding unpaid drawings under any Letters of Credit (including any
refinancing of outstanding unpaid drawings under Letters of Credit or L/C
Credit
Extensions as a Revolving Credit Borrowing) or any reductions in the maximum
amount available for drawing under Letters of Credit taking effect on such
date.
“Parent
Guaranty”
means
the Parent Guaranty made by Holdings in favor of the Administrative Agents
on
behalf of the Lenders on the Closing Date.
“Participant”
has
the
meaning specified in Section
10.07(d).
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Pension
Plan”
means
any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by any Loan Party or any
ERISA
Affiliate or to which any Loan Party or any ERISA Affiliate contributes or
has
an obligation to contribute, or in the case of a multiple employer or other
plan
described in Section 4064(a) of ERISA, has made contributions at any time
during
the immediately preceding five (5) plan years.
“Perfection
Certificate”
shall
mean a certificate in the form of Exhibit M-1
to the
Original Credit Agreement or any other form approved by the Administrative
Agents, as the same shall be supplemented from time to time by a Perfection
Certificate Supplement or otherwise.
“Perfection
Certificate Supplement”
shall
mean a certificate supplement in the form of Exhibit M-2
to the
Original Credit Agreement or any other form approved by the Administrative
Agents.
“Permitted
Acquisition”
has
the
meaning specified in Section
7.02(h).
“Permitted
Cure Issuance”
has
the
meaning specified in clause
(b)(xvii)
of the
definition of “Consolidated EBITDA”.
“Permitted
Encumbrances”
has
the
meaning specified in the Mortgages.
“Permitted
Equity Issuance”
means
any sale or issuance of any Equity Interests (other than Disqualified Equity
Interests) of Holdings to the extent (a) permitted hereunder and (b) the
Net Cash Proceeds thereof are not required to be applied to the prepayment
of
the Loans pursuant to Section
2.05(b)
or
Section
2.05(b)
of the
Original Credit Agreement.
“Permitted
Holdco Debt”
has
the
meaning specified in Section
7.03(c)(ii).
“Permitted
Refinancing”
means,
with respect to any Person, any modification, refinancing, refunding, renewal
or
extension of any Indebtedness of such Person; provided
that (a)
the principal amount (or accreted value, if applicable) thereof does not
exceed
the principal amount (or accreted value, if applicable) of the Indebtedness
so
modified, refinanced, refunded, renewed or extended except by an amount equal
to
a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such modification, refinancing,
refunding, renewal or extension and by an amount equal to any existing
commitments unutilized thereunder (to the extent such commitments could be
drawn
at the time of such refinancing in compliance with the Credit Agreement)
or as
otherwise permitted pursuant to Section
7.03,
(b)
such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of, and has
a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being modified, refinanced, refunded,
renewed or extended, (c) if the Indebtedness being modified, refinanced,
refunded, renewed or extended is subordinated in right of payment to the
Obligations, such modification, refinancing, refunding, renewal or extension
is
subordinated in right of payment to the Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing
the
Indebtedness being modified, refinanced, refunded, renewed or extended, (d)
the
terms and conditions (including, if applicable, as to collateral) of any
such
modified, refinanced, refunded, renewed or extended Indebtedness are not
materially less favorable to the Loan Parties or the Lenders than the terms
and
conditions of the Indebtedness being modified, refinanced, refunded, renewed
or
extended, (e) such modification, refinancing, refunding, renewal or extension
is
incurred and/or guaranteed by only the Persons who are the obligors on the
Indebtedness being modified, refinanced, refunded, renewed or extended, and
(f)
at the time thereof, no Default shall have occurred and be
continuing.
“Permitted
Subordinated Indebtedness”
means
any unsecured Indebtedness of the U.S. Borrower that (a) is expressly
subordinated to the prior payment in full in cash of the Obligations on terms
and conditions no less favorable to the Lenders than the terms and conditions
of
the Senior Subordinated Notes, (b) will not mature prior to the date that
is
ninety-one (91) days after the Maturity Date of the Term B Facility, (c)
has no
scheduled amortization or payments of principal prior to the Maturity Date
of
the Term B Facility, and (d) has covenant, default and remedy provisions
no more
restrictive, or mandatory prepayment, repurchase or redemption provisions
no
more onerous or expansive in scope, than those contained in the Senior
Subordinated Notes Indenture, taken as a whole; provided
any such
Indebtedness shall constitute Permitted Subordinated Indebtedness only if
(i)
both before and after giving effect to the issuance or incurrence thereof,
no
Default or Event of Default shall have occurred and be continuing, and (ii)
if
the amount of such Indebtedness issued or incurred in any fiscal quarter
exceeds
$5,000,000, the Chief Financial Officer of the U.S. Borrower shall have
delivered an officer’s certificate demonstrating Pro Forma Compliance with the
covenants set forth in Section
7.11
in form
and substance reasonably satisfactory to the U.S. Administrative Agent, it
being
understood that any capitalized or paid-in-kind interest or accreted principal
on such Indebtedness shall not constitute an issuance or incurrence of
Indebtedness for purposes of this proviso.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Loan Party or, with respect to any such plan that
is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
“Pledged
Debt”
has
the
meaning set forth in the U.S. Security Agreement.
“Pledged
Interests”
has
the
meaning set forth in the U.S. Security Agreement.
“Post-Increase
Revolving Lenders”
has
the
meaning specified in Section
2.15(b).
“PPSA”
means
the Personal
Property Security Act
(Ontario) and the regulations thereunder, as from time to time in effect;
provided,
however,
if
attachment, perfection or priority of any security interests in any Collateral
is governed by the personal property security laws of any jurisdiction other
than Ontario, “PPSA” shall mean those personal property security laws in such
other jurisdiction relating to such attachment, perfection or priority of
any
security interests in any Collateral.
“Pre-Increase
Revolving Lenders”
has
the
meaning specified in Section
2.15(b).
“Pro
Forma Basis,”
“Pro
Forma Compliance”
and
“Pro
Forma Effect”
mean,
for purposes of calculating the Holdings Consolidated Leverage Ratio, the
Interest Coverage Ratio and the Leverage Ratio for any period, that any
Specified Transaction that has been consummated in such period and the following
transactions in connection therewith shall be deemed to have occurred as
of the
first day of such period: (a) income statement items (whether positive or
negative) attributable to the property or Person subject to such Specified
Transaction, (i) in the case of a Material Disposition, shall be excluded,
(ii)
in the case of a Permitted Acquisition or Investment described in the definition
of “Specified Transaction”, shall be included and (iii) in the case of a
Permitted Acquisition, solely for purposes of calculating compliance with
the
financial covenants set forth in Section
7.11,
Pro
Forma Cost Savings shall also be included, (b) any retirement of Indebtedness,
and (c) any Indebtedness incurred or assumed by the U.S. Borrower or any
of its
Restricted Subsidiaries in connection therewith and if such Indebtedness
has a
floating or formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by utilizing
the
rate which is or would be in effect with respect to such Indebtedness as
at the
relevant date of determination; provided
that the
foregoing pro forma adjustments may be applied to the financial covenants
set
forth in Section
7.11
solely
to the extent that such adjustments are consistent with the definition of
Consolidated EBITDA and Consolidated Interest Expense and give effect to
events
that are (x) directly attributable to such transaction, (y) expected to
have a continuing impact on the U.S. Borrower and its Restricted Subsidiaries
and (z) factually supportable.
“Pro
Forma Cost Savings” means,
with respect to any period, the reduction in net costs and related adjustments
that (i) were directly attributable to a Permitted Acquisition or Investment
included in the definition of Specified Transaction that occurred during
the
four-quarter period or after the end of the four-quarter period and on or
prior
to the date of determination and calculated on a basis that is consistent
with
Regulation S-X under the Securities Act as in effect and applied as of the
Closing Date, (ii) were actually implemented by the business that was the
subject of any such Specified Transaction within six months after the date
of
such Specified Transaction and prior to the date of determination that are
supportable and quantifiable by the underlying accounting records of such
business or (iii) relate to the business that is the subject of any such
Specified Transaction and that the U.S. Borrower reasonably determines are
probable based upon specifically identifiable actions to be taken within
six
months of the date of such Specified Transaction and, in the case of each
of
(i), (ii) and (iii), are described, as provided below, in a certificate of
a
Responsible Officer of the U.S. Borrower in form satisfactory to the U.S.
Administrative Agent, as if all such reductions in costs had been effected
as of
the beginning of such period
“Pro
Rata Share”
means,
with respect to each Lender at any time, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the amount
of
the Commitments of such Lender under the applicable Facility or Facilities
at
such time and the denominator of which is the amount of the Aggregate
Commitments under the applicable Facility or Facilities at such time;
provided
that if
the commitment of each Lender to make Loans and the obligation of each L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to
Section
8.02,
then
the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof. The
initial Pro Rata Share of each Lender is set forth opposite the name of such
Lender on Schedule
2.01
to the
Original Credit Agreement or in the Assignment and Assumption pursuant to
which
such Lender becomes a party hereto, as applicable.
“Qualifying
IPO”
means
the
issuance by Holdings of its common Equity Interests in an underwritten primary
public offering (other than a public offering pursuant to a registration
statement on Form S-8) pursuant to an effective registration statement filed
with the SEC in accordance with the Securities Act (whether alone or in
connection with a secondary public offering).
“Real
Properties”
means
those U.S. properties listed on Schedule 1.01(a)
and
Schedule
6.16(b)
to the
Original Credit Agreement.
“Reallocated
Commitments”
has
the
meaning set forth in Section 2.06(d).
“Reallocation
Effectiveness Date”
shall
have the meaning set forth in Section
2.06(f).
“Reduced
Facility”
has
the
meaning set forth in Section 2.06(d).
“Reduced
Lender”
has
the
meaning set forth in Section 2.06(d).
“Refinanced
Term Loans”
has
the
meaning set forth in Section 10.01.
“Register”
has
the
meaning set forth in Section
10.07(c).
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing or depositing
in,
into or onto the environment.
“Remaining
Reduced Facility Lenders”
shall
have the meaning assigned to such term in Section
2.06(f).
“Replacement
Term B Loans”
has
the
meaning set forth in Section 10.01.
“Reportable
Event”
means
any of the events set forth in Section 4043(c) of ERISA, other than events
for
which the thirty (30) day notice period has been waived.
“Request
for Credit Extension”
means
(a) with respect to a Borrowing, conversion or continuation of Term B Loans
or
Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to
a
Swing Line Loan, a Swing Line Loan Notice.
“Required
Lenders”
means,
as of any date of determination, Lenders having more than 50% of the sum
of the
(a) Total Outstandings (with the aggregate amount of each Lender’s risk
participation and funded participation in L/C Obligations and Swing Line
Loans
being deemed “held” by such Lender for purposes of this definition), (b)
aggregate unused Term B Commitments and (c) aggregate unused Revolving
Credit Commitments; provided
that the
unused Revolving Credit Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes
of
making a determination of Required Lenders.
“Requisite
Class Lenders”
means,
at any time of determination, (i) for the Term B Lenders, Lenders
holding more than 50% of the aggregate unused Term B Commitments of all Lenders
and Outstanding Amount of Term B Loans of all Lenders; (ii) for the
U.S. Revolving Credit Lenders, Lenders holding more than 50% of the aggregate
outstanding amount of all U.S. Revolving Loans, unused U.S. Revolving Credit
Commitments and participations in U.S. Letters of Credit and U.S. Swing Line
Loans of all Lenders; and (iii) for the Canadian Lenders, Lenders holding
more than 50% of the aggregate Outstanding Amount of all Canadian Loans,
unused
Canadian Credit Commitments and participations in Canadian Letters of Credit
and
Canadian Swing Line Loans of all Lenders; provided
that the
Commitments, Loans and participations held by any Defaulting Lender shall
be
excluded for purposes of making a determination of the Requisite Class
Lenders.
“Responsible
Officer”
means
the chief executive officer, president, chief financial officer, controller,
treasurer or assistant treasurer of a Loan Party and, as to any document
delivered on the Closing Date, any vice president, secretary or assistant
secretary. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of
such
Loan Party and such Responsible Officer shall be conclusively presumed to
have
acted on behalf of such Loan Party.
“Restatement
Effective Date”
means
the date on which this Agreement becomes effective pursuant to Section
4.01.
“Restricted
Payment”
means
(i) any dividend or other distribution (whether in cash, securities or
other property) with respect to any Equity Interest of Holdings, the U.S.
Borrower or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on
account of the purchase, redemption, retirement, defeasance, acquisition,
cancellation or termination of any such Equity Interest, or on account of
any
return of capital to Holdings or the U.S. Borrower’s stockholders, partners or
members (or the equivalent Persons thereof) and (ii) at the election of the
U.S. Borrower, any Investment not otherwise permitted by Section 7.02
(other
than under clause (i) of Section
7.02).
“Restricted
Subsidiary”
means
each Subsidiary of the U.S. Borrower that is not an Unrestricted
Subsidiary.
“Revaluation
Date”
means
(a) the CAM Exchange Date; (b) with respect to any Canadian Loan
accruing interest at the Canadian Prime Rate and each Canadian BA, each of
the
following: (i) each date of a Borrowing of such Canadian Loan and (ii) such
additional dates as the Canadian Administrative Agent shall determine or,
following an Event of Default, the Requisite Class Lenders holding Canadian
Credit Commitments shall require; and (c) with respect to Canadian Letters
of
Credit denominated in Canadian Dollars, each of the following: (i) the date
of
issuance of such Letter of Credit, (ii) each date of an amendment of any
such
Letter of Credit having the effect of increasing the amount thereof (solely
with
respect to the increased amount), (iii) each date of any payment by the Canadian
L/C Issuer under any such Letter of Credit and (iv) such additional dates
as the
Canadian Administrative Agent or the Canadian L/C Issuer shall determine
or,
following an Event of Default, the Requisite Class Lenders holding Canadian
Credit Commitments shall require.
“Revolving
Credit Borrowing”
means
a
U.S. Revolving Credit Borrowing and/or a Canadian Borrowing, as
applicable.
“Revolving
Credit Commitment”
means
the U.S. Revolving Credit Commitment and the Canadian Credit
Commitment.
“Revolving
Credit Commitments Increase Effective Date”
has
the
meaning specified in Section 2.15(b).
“Revolving
Credit Exposure”
means
at any time, the aggregate of Canadian Exposure of all Canadian Lenders plus
the
aggregate U.S. Revolving Credit Exposure of all U.S. Revolving Credit
Lenders.
“Revolving
Credit Facility”
means
the U.S. Revolving Credit Facility and the Canadian Facility.
“Revolving
Credit Lender”
means,
as the context may require, a U.S. Revolving Credit Lender and/or a Canadian
Lender.
“Revolving
Credit Loan”
means,
as the context may require, a U.S. Revolving Credit Loan and/or a Canadian
Loan.
“Revolving
Credit Note”
means,
as the context may require, a U.S. Revolving Credit Note and/or a Canadian
Note.
“S&P”
means
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and any successor thereto.
“SEC”
means
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.
“Secured
Hedge Agreement”
means
any interest rate Swap Contract relating to the Loans permitted under
Article
-VII
that is
entered into by and between any Loan Party and any Hedge Bank.
“Secured
Obligations”
has
the
meaning specified in the U.S. Security Agreement.
“Secured
Parties”
means,
collectively, the Administrative Agents, each other Agent, the Lenders, the
Hedge Banks, the Cash Management Banks, the Supplemental Administrative Agent
and each co-agent or sub-agent appointed by an Administrative Agent from
time to
time pursuant to Section 9.01(c).
“Security
Agreement”
means,
as the context may require, the U.S. Security Agreement and the Canadian
Security Agreement.
“Security
Agreement Supplement”
has
the
meaning specified in the applicable Security Agreement.
“Senior
Subordinated Notes”
means
the 8.50% unsecured senior subordinated notes of the U.S. Borrower due 2014
in
an aggregate principal amount of $625,000,000 issued on the Closing Date,
and
any exchange notes issued in exchange therefor, in each case, pursuant to
the
Senior Subordinated Notes Indenture.
“Senior
Subordinated Notes Indenture”
means
the Indenture dated as of August 27, 2004 among U.S. Bank National Association,
the U.S. Borrower and the Guarantors, together with all instruments and other
agreements in connection therewith, as may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, but only
to the
extent permitted under the terms of the Loan Documents.
“Solvent”
and
“Solvency”
mean,
with respect to any Person on any date of determination, that on such date
(a) the fair value of the property of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities,
of
such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured,
(c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction,
for
which such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or
matured liability.
“SPC”
has
the
meaning specified in Section
10.07(g).
“Specified
Equity Issuances”
means
the
sale
or issuance by Holdings of any of its Equity Interests in a public offering
or
in a private placement or sale that is underwritten, managed, arranged, placed
or initially purchased by an investment bank (it being understood that the
Sponsor is not an investment bank), which, for the avoidance of doubt, does
not
include the sale or issuance of any such Equity Interests (a) to the Equity
Investors, their Affiliates, related funds and limited partners, (b) to
other Persons making additional equity investments together with the Equity
Investors after the Restatement Effective Date, (c)
the
proceeds of which are used to fund Investments permitted by Section
7.02
or (d)
issued as compensation to employees or consultants of Holdings, the U.S.
Borrower or any of its Restricted Subsidiaries or to management of Holdings,
the
U.S. Borrower or any of its Restricted Subsidiaries in the ordinary course
of
business.
“Specified
Issuance Proceeds”
means
the Net Cash Proceeds of (a) Permitted Equity Issuances (other than Permitted
Cure Issuances) to the Equity Investors or to other Persons making additional
equity investments together with the Equity Investors after the Restatement
Effective Date, (b) the issuance of Permitted Holdco Debt after the Restatement
Effective Date and (c) the issuance of Permitted Subordinated Indebtedness
by
the U.S. Borrower; provided,
that
for purposes of determining the amount of Specified Issuance Proceeds available
to the U.S. Borrower or any of its Subsidiaries, in the case of clauses (a)
and
(b), such Net Cash Proceeds shall have been actually received by the U.S.
Borrower (through capital contributions of such Net Cash Proceeds by Holdings
to
the U.S. Borrower).
“Specified
Transaction”
means,
for any applicable period, the following transactions: (a) any Permitted
Acquisition or any Investment (or series of related Investments) made pursuant
to Section
7.02(n)
to the
extent consisting of the contribution(s) or other transfer(s) of any property
(other than cash) to a Joint Venture for consideration less than the fair
market
value of such property, (b) any Material Dispositions and (c) any redesignation
of any Unrestricted Subsidiary as a Restricted Subsidiary.
“Sponsor”
means
Xxxxxx X. Xxx Partners, L.P. and its Affiliates.
“Sponsor
Management Agreement”
means
the Management Agreement dated August 27, 2004 between THL Managers V, LLC
and
Holdings, as amended, supplemented or otherwise modified from time to time
in
accordance with the terms thereof, but only to the extent permitted under
the
terms of the Loan Documents.
“Subsidiary”
of
a
Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities
or other interests having ordinary voting power for the election of directors
or
other governing body (other than securities or interests having such power
only
by reason of the happening of a contingency) are at the time beneficially
owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary”
or
to
“Subsidiaries”
shall
refer to a Subsidiary or Subsidiaries of the U.S. Borrower.
“Super
Majority Lenders”
shall
have the meaning assigned to such term in Section
10.01.
“Supplemental
Administrative Agent”
has
the
meaning specified in Section
9.13
and
“Supplemental
Administrative Agents”
shall
have the corresponding meaning.
“Swap
Contract”
means
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond
price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into
any of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of,
or
governed by, any form of master agreement published by the International
Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master
Agreement”),
including any such obligations or liabilities under any Master
Agreement.
“Swap
Termination Value”
means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have
been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause
(a),
the
amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts,
as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which
may
include a Lender or any Affiliate of a Lender).
“Swing
Line Borrowing”
means
a
borrowing of a Swing Line Loan pursuant to Section
2.04.
“Swing
Line Lender”
means
the U.S. Swing Line Lender or the Canadian Swing Line Lender, as
applicable.
“Swing
Line Loan”
has
the
meaning set forth in Section
2.04(a)(ii).
“Swing
Line Notice”
means
a
notice of a Swing Line Borrowing pursuant to Section
2.04(b),
which,
if in writing, shall be substantially in the form of Exhibit B-1
to the
Original Credit Agreement, with respect to any U.S. Swing Line Borrowing
or
Exhibit
B-2
to the
Original Credit Agreement, with respect to any Canadian Swing Line
Borrowing.
“Syndication
Agent”
means
Credit Suisse Cayman Islands Branch, as Syndication Agent under the Loan
Documents.
“Synthetic
Lease Obligation”
means
the monetary obligation of a Person under a so-called synthetic, off-balance
sheet or tax retention lease.
“Tax
Reduction Amount”
has
the
meaning set forth in Section 7.06(d).
“Taxes”
has
the
meaning specified in Section
3.01(a).
“Term
B Borrowing”
means
a
borrowing consisting of simultaneous Term Loans (as defined in the Original
Credit Agreement) of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Term Lenders (as defined
in
the Original Credit Agreement) pursuant to Section
2.01(a)
of the
Original Credit Agreement and converted into Term B Loans pursuant to Amendment
No. 1.
“Term
B Facility”
means,
at any time, the aggregate Term B Loans of all Lenders at such
time.
“Term
B Lender”
means,
at any time, any Lender that holds a Term B Loan at such time.
“Term
B Loan”
means
a
Loan that was converted to a Term B Loan on the Amendment No. 1
Effective Date in accordance with Amendment No. 1.
“Term
B Note”
means
a
promissory note of the U.S. Borrower payable to any Term B Lender or its
registered assigns, in substantially the form of Exhibit C-1
to the
Original Credit Agreement (except that references therein to the Term Loans
shall be changed to the “Term B Loans”), evidencing the aggregate indebtedness
of the U.S. Borrower to such Term B Lender under the Term B Loans of
such Term B Lender.
“Term
Commitments Increase Effective Date”
has
the
meaning set forth in Section 2.14(b).
“Threshold
Amount”
means
$20,000,000.
“Total
Outstandings”
means
the aggregate Outstanding Amount of all Loans and all L/C
Obligations.
“Tranche”
means,
as the context may require, the Loans constituting Term B Loans, U.S.
Revolving Credit Loans or Canadian Loans.
“Transaction”
has
the
meaning provided in the Original Credit Agreement.
“Type”
means,
with respect to a Loan, its character as a Base Rate Loan, Canadian BA Rate
Loan
or a Eurodollar Rate Loan.
“Uniform
Commercial Code”
means
the Uniform Commercial Code as the same may from time to time be in effect
in
the State of New York or the Uniform Commercial Code (or similar code or
statute) of another jurisdiction, to the extent it may be required to apply
to
any item or items of Collateral.
“United
States”
and
“U.S.”
mean
the United States of America.
“Unreimbursed
Amount”
has
the
meaning set forth in Section
2.03(c)(i).
“Unrestricted
Cash”
means
any cash or Cash Equivalents that would not be required to be classified
as
restricted cash on a balance sheet prepared in accordance with
GAAP.
“Unrestricted Subsidiary”
means
any Subsidiary of the U.S. Borrower, that, at the time of determination,
shall
be an Unrestricted Subsidiary (as designated by the board of directors of
the
U.S. Borrower, as provided below). The board of directors of the U.S. Borrower
may designate any Subsidiary of the U.S. Borrower (including any newly acquired
or newly formed Subsidiary at or prior to the time it is so formed or acquired),
to be an Unrestricted Subsidiary if (a) no Default is existing or will
occur as a consequence thereof, (b) such Subsidiary does not own any Equity
Interest of, or own or hold any Lien on any property of, the U.S. Borrower
or
any of its Subsidiaries (other than Unrestricted Subsidiaries), (c) such
Subsidiary and each of its Subsidiaries does not have at the time of
designation, and does not thereafter, create, incur, issue, assume, guarantee,
or otherwise become directly or indirectly liable with respect to, any
Indebtedness pursuant to which the lender has recourse to any property of
the
U.S. Borrower or any of its Subsidiaries (other than Unrestricted Subsidiaries)
except that, subject to Section
7.02
and
Section
7.03,
the
U.S. Borrower and its Restricted Subsidiaries may have Investments by way
of
Guarantee of up to $50,000,000 of obligations with respect to Indebtedness
of
Unrestricted Subsidiaries in the aggregate at any time outstanding, and
(d) either (A) at the time of such designation such Subsidiary shall not
have more than de
minimis assets
or
(B) the U.S. Borrower shall be permitted to make an Investment in such
Subsidiary in an amount equal to the fair market value of the U.S. Borrower’s
and its Restricted Subsidiaries’ Equity Interests in such Subsidiary pursuant to
Section
7.02(o).
Any
Subsidiary of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary
for
purposes of this Agreement. The board of directors of the U.S. Borrower may
redesignate an Unrestricted Subsidiary of the U.S. Borrower to be a Restricted
Subsidiary if (a) no Default is existing or will occur as a consequence
thereof, (b) such Subsidiary is a wholly owned Subsidiary and becomes a
party to applicable Guaranty and Security Agreement, (iii) after giving effect
to such redesignation and the incurrence of any Indebtedness incurred by
such
Subsidiary since the last day of the immediately preceding fiscal quarter
on a
Pro Forma Basis as if it was incurred on the first day of the immediately
preceding fiscal quarter (but tested as if the applicable ratio were the
ratio
for the next succeeding fiscal quarter), the U.S. Borrower would be in
compliance with Sections
7.11
and
7.18,
inclusive, and (iv) all Indebtedness, Liens and Investments of such
Subsidiary outstanding immediately after such designation would, if incurred
at
such time, have been permitted to be incurred (and shall be deemed to have
been
incurred) for all purposes of this Agreement. Each such designation shall
be
evidenced by filing with the applicable Administrative Agent a certified
copy of
the resolution giving effect to such designation and an officer’s certificate
certifying that such designation complied with the foregoing conditions.
Any
reference herein to an Unrestricted Subsidiary of Holdings shall be deemed
to be
a reference to an Unrestricted Subsidiary of U.S. Borrower.
“U.S.
Administrative Agent”
means
UBS AG, Stamford Branch in its capacity as U.S. Administrative Agent under
any
of the Loan Documents, or any successor in such capacity.
“U.S.
Administrative Agent’s Office”
means
the U.S. Administrative Agent’s address and, as appropriate, account as set
forth on Schedule
10.02,
or such
other address or account as the U.S. administrative agent may from time to
time
notify the U.S. Borrower and the Lenders.
“U.S.
Borrower”
is
defined in the preamble.
“U.S.
Collateral”
means
all assets and property and interests therein upon which a Lien is granted
to
the U.S. Administrative Agent pursuant to any Loan Document that are or are
required under the terms of the Loan Documents to be subject to Liens in
favor
of the U.S. Administrative Agent for the benefit of the Secured
Parties.
“U.S.
Commitments”
means
the Term B Loan Commitments and the U.S. Revolving Credit
Commitments.
“U.S.
Commitment Fee”
has
the
meaning specified Section
2.09(a).
“U.S.
Custodian”
has
the
meaning specified in Section
9.01(e).
“U.S.
Dollar Equivalent”
means,
on any Revaluation Date, relative to any amount (the “Original
Amount”)
expressed in Canadian Dollars, the amount expressed in Dollars which would
be
required to buy the Original Amount of Canadian Dollars using the noon spot
rate
exchange for Canadian interbank transactions applied in converting Dollars
into
Canadian Dollars determined by the Canadian Administrative Agent (or with
respect to any Canadian Letter of Credit by the Canadian L/C Issuer) for
such
Revaluation Date.
“U.S.
Existing Letters of Credit”
means
the Letters of Credit previously issued for the account of the U.S. Borrower
or
any Subsidiary of the U.S. Borrower described on Schedule
1.01(b)
of the
Original Credit Agreement under the heading “Existing Letters of Credit under
the U.S. Revolving Credit Facility”.
“U.S.
Facility”
means
the Term B Facility, the U.S. Revolving Credit Facility, the U.S. Swing
Line Sublimit or the U.S. Letter of Credit Sublimit, as the context may require.
“U.S.
fondé de pouvoir”
has
the
meaning specified in Section
9.01(e).
“U.S.
L/C Issuer”
means
Bank of America, N.A., in its capacity as issuer of U.S. Letters of Credit
hereunder, or any successor issuer of U.S. Letters of Credit hereunder and
solely with respect to the U.S. Existing Letters of Credit (and any amendment,
renewal or extension thereof in accordance with this Agreement), Fleet National
Bank.
“U.S.
Lender”
is
defined in the preamble or, solely for purposes of Section 10.15(b),
as
defined therein.
“U.S.
Letter of Credit”
means
a
Letter of Credit issued under the U.S. Revolving Credit Facility.
“U.S
Letter of Credit Sublimit”
means
an amount equal to $60,000,000. The U.S Letter of Credit Sublimit is part
of,
and not in addition to, the U.S. Revolving Credit Facility.
“U.S.
Loan”
means
a
Term B Loan, a U.S. Revolving Credit Loan or a U.S. Swing Line
Loan.
“U.S.
Loan Party”
means
the U.S. Borrower, Holdings and each U.S. Subsidiary Guarantor.
“U.S.
Pledged Debt”
has
the
meaning specified in the U.S. Security Agreement.
“U.S.
Revolving Credit Borrowing”
means
a
borrowing consisting of simultaneous U.S. Revolving Credit Loans of the same
Type and Tranche and, in the case of Eurodollar Rate Loans, having the same
Interest Period made by each of the U.S. Revolving Credit Lenders pursuant
to
Section
2.01(b).
“U.S.
Revolving Credit Commitment”
means,
as to each U.S. Revolving Credit Lender, its obligation to (a) make U.S.
Revolving Credit Loans to the U.S. Borrower pursuant to Section
2.01(b),
(b) purchase participations in L/C Obligations with respect to U.S. Letters
of Credit, and (c) purchase participations in U.S. Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the
amount
set forth opposite such Lender’s name on Schedule
2.01
to the
Original Credit Agreement under the caption “U.S. Revolving Credit Commitment”
or in the Assignment and Assumption pursuant to which such Lender becomes
a
party to the Original Credit Agreement or this Agreement, as applicable,
as such
amount may be adjusted from time to time in accordance with this Agreement.
The
aggregate Commitment of all U.S. Revolving Credit Lenders shall be $90,000,000
on the Restatement Effective Date, as such amount may be adjusted from time
to
time in accordance with the terms of this Agreement including by the amount
of
the First Increased Revolving Credit Commitments on the Restatement Effective
Date.
“U.S.
Revolving Credit Exposure”
means,
with respect to any U.S. Revolving Lender at any time, the Outstanding Amount
of
such Lender’s U.S. Revolving Credit Loans plus such Lender’s Pro Rata Share of
the Outstanding Amount of L/C Obligations with respect to U.S. Letters of
Credit
plus such Lender’s Pro Rata Share of the Outstanding Amount of U.S. Swing Line
Loans.
“U.S.
Revolving Credit Facility”
means,
at any time, the aggregate amount of the U.S. Revolving Credit Lenders’ U.S.
Revolving Credit Commitments at such time.
“U.S.
Revolving Credit Lender”
means,
at any time, any Lender that has a U.S. Revolving Credit Commitment at such
time.
“U.S.
Revolving Credit Loan”
has
the
meaning specified in Section
2.01(b).
“U.S.
Revolving Credit Note”
means
a
promissory note of the U.S. Borrower payable to any U.S. Revolving Credit
Lender
or its registered assigns, in substantially the form of Exhibit C-2
to the
Original Credit Agreement (with such modifications as the U.S. Administrative
Agent may agree to from time to time), evidencing the aggregate indebtedness
of
the U.S. Borrower to such U.S. Revolving Credit Lender resulting from the
U.S.
Revolving Credit Loans made by such U.S. Revolving Credit Lender.
“U.S.
Security Agreement”
means,
collectively, the U.S. Security Agreement executed by the U.S. Loan Parties,
substantially in the form of Exhibit
G-1
to the
Original Credit Agreement, together with each other security agreement
supplement executed and delivered pursuant to Section
6.12
to the
Original Credit Agreement.
“U.S.
Subsidiary Guarantor”
means,
collectively, the U.S. Subsidiaries of the U.S. Borrower that are
Guarantors.
“U.S.
Subsidiary Guaranty”
means,
collectively, the U.S. Subsidiary Guaranty, dated as of August 27, 2004,
made by
the U.S. Subsidiary Guarantors in favor of the U.S. Administrative Agent
on
behalf of the Lenders, together with each other guaranty and guaranty supplement
delivered pursuant to Section
6.12.
“U.S.
Supplemental Administrative Agent”
has
the
meaning specified Section
9.13.
“U.S.
Swing Line Lender”
means
UBS Loan Finance LLC in its capacity as provider of U.S. Swing Line Loans,
or
any successor swing line lender hereunder.
“U.S.
Swing Line Loan”
has
the
meaning specified in Section
2.04(a).
“U.S.
Swing Line Sublimit”
means
an amount equal to the lesser of (a) $10,000,000 and (b) the U.S.
Revolving Credit Commitments. The U.S. Swing Line Sublimit is part of, and
not
in addition to, the U.S. Revolving Credit Commitments.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing: (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity
or
other required payments of principal, including payment at final maturity,
in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by (ii) the then outstanding principal amount of such
Indebtedness.
“wholly
owned”
means,
with respect to a Subsidiary of a Person, a Subsidiary of such Person all
of the
outstanding Equity Interests of which (other than (x) director’s qualifying
shares and (y) shares issued to foreign nationals to the extent required
by
applicable law) are owned by such Person and/or by one or more wholly owned
Subsidiaries of such Person.
“Working
Capital”
means,
with respect to the U.S. Borrower and its Subsidiaries, at of any date, the
excess of Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
1.02 Other
Interpretive Provisions
.
With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) (i)
The
words “herein,”
“hereto,”
“hereof”
and
“hereunder”
and
words of similar import when used in any Loan Document shall refer to such
Loan
Document as a whole and not to any particular provision thereof.
(ii) Article,
Section, Exhibit and Schedule references are to the Loan Document in which
such
reference appears.
(iii) The
term
“including”
is
by
way of example and not limitation.
(iv) The
term
“documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether
in
physical or electronic form.
(c) In
the
computation of periods of time from a specified date to a later specified
date,
the word “from”
means
“from
and including”;
the
words “to”
and
“until”
each
mean “to
but
excluding”;
and
the word “through”
means
“to
and
including.”
(d) Section
headings herein and in the other Loan Documents are included for convenience
of
reference only and shall not affect the interpretation of this Agreement
or any
other Loan Document.
1.03 Accounting
Terms
.
(a) All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios
and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP, as in effect from time
to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except
as
otherwise specifically prescribed herein. All references herein to specified
opinions, statements or pronouncements of the Financial Accounting Standards
Board or any other accounting body will be deemed to include all opinions,
statements or pronouncements replacing, amending or supplementing such specified
opinions, statements or pronouncements.
(b) If
at any
time any change in GAAP would affect the computation of any financial ratio
or
requirement set forth in any Loan Document, and either the U.S. Borrower
or the
Required Lenders shall so request, the U.S. Administrative Agent and the
U.S.
Borrower shall negotiate in good faith to amend such ratio or requirement
to
preserve the original intent thereof in light of such change in GAAP (subject
to
the approval of the Required Lenders); provided
that,
until so amended, (i) such ratio or requirement shall continue to be computed
in
accordance with GAAP prior to such change therein and (ii) the U.S.
Borrower shall provide to the U.S. Administrative Agent and the Lenders a
written reconciliation in form and substance reasonably satisfactory to the
U.S.
Administrative Agent, between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.
1.04 Rounding
.
Any
financial ratios required to be calculated by the U.S. Borrower pursuant
to this
Agreement shall be calculated by dividing the appropriate component by the
other
component, carrying the result to one place more than the number of places
by
which such ratio is expressed herein and rounding the result up or down to
the
nearest number (with a rounding-up if there is no nearest number).
1.05 References
to Agreements and Laws
.
Unless
otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that
such
amendments, restatements, extensions, supplements and other modifications
are
permitted by any Loan Document; and (b) references to any Law shall include
all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
1.06 Times
of Day
.
Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).
1.07 Timing
of Payment or Performance
.
When
the payment of any obligation or the performance of any covenant, duty or
obligation is stated to be due or performance required on a day which is
not a
Business Day, the date of such payment (other than as described in the
definition of Interest Period) or performance shall extend to the immediately
succeeding Business Day.
1.08 Currency
Equivalents Generally
.
Any
amount specified in this Agreement (other than in Articles
II,
IX
and
X)
or any
of the other Loan Documents to be in Dollars shall also include the equivalent
of such amount in any currency other than Dollars, such equivalent amount
to be
determined at the rate of exchange quoted by UBS AG, Stamford Branch, at
the
close of business on the Business Day immediately preceding any date of
determination thereof, to prime banks in New York, New York for the spot
purchase in the New York foreign exchange market of such amount in Dollars
with
such other currency. Any amount of the Canadian Obligations with respect
to
Canadian Loans or Canadian Letters of Credit which are denominated in Canadian
Dollars shall be converted to Dollars for purposes of determining compliance
with this Agreement at the U.S. Dollar Equivalent thereof as of the most
recent
Revaluation Date. Unless otherwise specified herein, the amount of a Letter
of
Credit denominated in Canadian Dollars at any time shall be deemed to be
the
Dollar Equivalent of the stated amount of such Letter of Credit in effect
at
such time; provided,
however,
that
with respect to any Letter of Credit that, by its terms or the terms of any
agreement entered into with the L/C Issuer related thereto, provides for
one or
more automatic increases in the stated amount thereof, the amount of such
Letter
of Credit shall be deemed to be the Dollar Equivalent of the maximum stated
amount of such Letter of Credit after giving effect to all such increases,
whether or not such maximum stated amount is in effect at such
time.
1.09 Specified
Transactions.
Notwithstanding
anything to the contrary herein, solely for purposes of determining the Holdings
Consolidated Leverage Ratio, the Interest Coverage Ratio and the Leverage
Ratio
with respect to any period during which any Specified Transaction occurs,
such
ratios shall be calculated with respect to such period and such Specified
Transaction (and all other Specified Transactions that have been consummated
during such period) on a Pro Forma Basis.
1.10 Effect
of this Agreement on the Original Credit Agreement and the Other Loan
Documents.
Upon
satisfaction of the conditions precedent to the effectiveness of this Agreement
set forth in Section 4.01(a), this Agreement shall be binding on the Borrowers,
the Agents, the Lenders and the other parties hereto and the provisions of
the
Original Credit Agreement shall be replaced by the provisions of this Agreement;
provided,
that
(i) all Loans, Letters of Credit or other Credit Extensions outstanding under
the Original Credit Agreement shall continue as Loans, Letters of Credit
or
other Credit Extensions, as applicable, under this Agreement (and, in the
case
of Eurodollar Loans, with the same Interest Periods as were applicable to
such
Eurodollar Loans immediately prior to the Restatement Effective Date), (ii)
all
amounts owing by the Borrowers under the Original Credit Agreement to any
Person
in respect of accrued and unpaid interest and fees on the Loans, Commitments
and
Letters of Credit shall continue to be due and owing on such Loans, Commitments
and Letters of Credit under this Agreement and (iii) any Person entitled
to the
benefits of Article
III
or
Section
10.05
of the
Original Credit Agreement shall continue to be entitled to the benefits of
the
corresponding provisions of this Agreement. Upon the effectiveness of this
Agreement in accordance with Section 4.01(a), each Loan Document that was
in
effect immediately prior to the Restatement Effective Date shall continue
to be
effective and, unless the context otherwise requires, any reference to the
Original Credit Agreement contained therein shall be deemed to refer to this
Agreement and any reference to the Term Loans shall be deemed to refer to
the
Term B Loans.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans;
Reallocation of Revolving Exposure
.
(a) The
Term B Borrowings.
On the
Closing Date, the Term Loans (as defined in the Original Credit Agreement)
were
made to the U.S. Borrower. On the Amendment No. 1 Effective Date, such Term
Loans were converted into Term B Loans pursuant to Amendment No. 1. Amounts
borrowed under this Section
2.01(a)
and
repaid or prepaid may not be re-borrowed. Term B Loans may be Base Rate Loans
or
Eurodollar Rate Loans, as further provided herein.
(b) The
Revolving Credit Borrowings.
Subject
to the terms and conditions set forth herein, (i) each U.S. Revolving
Credit Lender severally agrees to make loans denominated in Dollars (each
such
loan, a “U.S.
Revolving Credit Loan”)
to the
U.S. Borrower from time to time, on any Business Day until the Maturity Date,
in
an aggregate amount not to exceed at any time outstanding the amount of such
Lender’s U.S. Revolving Credit Commitment; provided,
however,
that
after giving effect to any Revolving Credit Borrowing, the U.S. Revolving
Credit
Exposure of each U.S. Lender, shall not exceed such Lender’s U.S. Revolving
Credit Commitment, and (ii) each Canadian Lender severally agrees that it
will make loans denominated in U.S. Dollars or Canadian Dollars or accept
Canadian BAs (relative to such Lender, its “Canadian
Loans”)
to any
Canadian Borrower from time to time, on any Business Day prior to the Maturity
Date; provided,
however,
that
after giving effect to any Canadian Borrowing, the Canadian Exposure of each
Canadian Lender, shall not exceed such Canadian Lender’s Canadian Credit
Commitment. Within the limits of the applicable Revolving Credit Commitments,
and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section
2.01(a),
prepay
(except in the case of Canadian BAs) under Section
2.05,
and
re-borrow under this Section
2.01(b).
U.S.
Revolving Credit Loans shall be Base Rate Loans or Eurodollar Rate Loans
and
Canadian Loans shall be Base Rate Loans, Eurodollar Rate Loans (with respect
to
Dollar denominated Canadian Loans only) or Canadian BA Rate Loans.
(c) Reallocation
of Revolving Exposure on Restatement Effective Date.
On the
Restatement Effective Date, each of the Lenders having a U.S. Revolving Credit
Commitment prior to the Restatement Effective Date (the “Pre-First
Revolving Credit Commitment Increase Lender”)
shall
assign to each First Revolving Credit Commitment Increase Lender, and each
such
First Revolving Credit Commitment Increase Lender shall purchase from each
Pre-First Revolving Credit Commitment Increase Lender, at the principal amount
thereof, such interests in the U.S. Revolving Loans and participation interests
in U.S. L/C Obligations and U.S. Swing Line Loans outstanding on the Restatement
Effective Date as shall be necessary in order that, after giving effect to
all
such assignments and purchases, such U.S. Revolving Loans and participation
interests in U.S. L/C Obligations and U.S. Swing Line Loans will be held
by
Pre-First Revolving Credit Commitment Lenders and First Revolving Credit
Commitment Increase Lenders ratably in accordance with their U.S. Revolving
Credit Commitments after giving effect to the First Increased Revolving Credit
Commitments. The payment of accrued interest on the first Interest Payment
Date
after the Restatement Effective Date to the U.S. Revolving Credit Lenders
and
the payment of the U.S. Commitment Fee and Letter of Credit fee for each
U.S.
Letter of Credit to the U.S. Revolving Credit Lenders on the first payment
date
after the Restatement Effective Date shall be made after giving effect to
the
purchase made on the Restatement Effective Date set forth in the prior
sentence.
2.02 Borrowings,
Conversions and Continuations of Loans
.
(a) Each
Revolving Credit Borrowing, each conversion of Term B Loans or Revolving
Credit Loans from one Type to the other, and each continuation of Eurodollar
Rate Loans shall be made upon the applicable Borrower’s irrevocable notice to
the applicable Administrative Agent, which may be given by telephone. Each
such
notice must be received by the applicable Administrative Agent not later
than
12:30 p.m. (New York City time) (i) three (3) Business Days prior to the
requested date of any Borrowing of or continuation of Eurodollar Rate Loans
or
any conversion of Base Rate Loans to Eurodollar Rate Loans, and (ii) one
(1) Business Day before the requested date of any Borrowing of Base Rate
Loans.
Each telephonic notice by the applicable Borrower pursuant to this Section
2.02(a)
must be
confirmed promptly by delivery to the applicable Administrative Agent of
a
written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the applicable Borrower. Each Borrowing of, conversion
to
or continuation of Eurodollar Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as
provided in Sections 2.03(c)
and
2.04(c),
each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of
$500,000 or a whole multiple of $100,000 in excess thereof (or in the case
of
Canadian Loans denominated in Canadian Dollars, Cdn$500,000 or a whole multiple
of Cdn$100,000 in excess thereof). Each Committed Loan Notice (whether
telephonic or written) shall specify the Borrower requesting such Borrowing,
conversion or continuation and (i) whether such Borrower is requesting a
U.S.
Revolving Credit Borrowing, a Canadian Loan, a conversion of Term B Loans,
U.S. Revolving Credit Loans or Canadian Loans from one Type to the other,
or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business
Day),
(iii) the principal amount of Loans to be borrowed, converted or continued
(and in the case of any Canadian Loan, the currency thereof), (iv) the Type
of Loans to be borrowed or to which existing Term B Loans, U.S. Revolving
Credit Loans or Canadian Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto (which shall be a period
permitted by the definition of “Interest Period”), (vi) the location and
number of the applicable Borrower’s account to which funds are to be disbursed
and (vii) that the conditions specified in clauses
(a)
through
(c)
of
Section
4.02
have
been satisfied as of the date of such notice. If the applicable Borrower
fails
to specify a Type of Loan in a Committed Loan Notice or if the applicable
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Term B Loans, U.S. Revolving Credit Loans or Canadian
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar
Rate
Loans or Canadian BA Rate Loans. If a Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to
have
specified an Interest Period of one (1) month. If a Canadian Borrower requests
a
Borrowing of, conversion to, or continuation of Canadian BA Rate Loans in
any
such Committed Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of thirty (30) days.
(b) Following
receipt of a Committed Loan Notice, the applicable Administrative Agent shall
promptly notify each applicable Lender of the amount of its Pro Rata Share
of
the U.S. Revolving Credit Loans or Canadian Loans to be made, and if no timely
notice of a conversion or continuation is provided by the applicable Borrower,
the applicable Administrative Agent shall notify each applicable Lender of
the
details of any automatic conversion to Base Rate Loans described in Section
2.02(a).
In the
case of a Revolving Credit Borrowing, each applicable Lender shall make the
amount of its Loan available to the applicable Administrative Agent in
immediately available funds at the applicable Administrative Agent’s Office not
later than 1:00 p.m. (New York City time) on the Business Day specified in
the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02,
the
applicable Administrative Agent shall make all funds so received available
to
the applicable Borrower in like funds as received by the applicable
Administrative Agent either by (i) crediting the account of the applicable
Borrower on the books of the applicable Administrative Agent with the amount
of
such funds or (ii) wire transfer of such funds, in each case in accordance
with
instructions provided to (and reasonably acceptable to) the applicable
Administrative Agent by the applicable Borrower in the Committed Loan Notice;
provided,
however,
that
if, on the date the Committed Loan Notice with respect to such Borrowing
is
given by the applicable Borrower, there are Swing Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first,
to the
payment in full of any such L/C Borrowings of such Borrower, second,
to the
payment in full of any such Swing Line Loans of such Borrower, and third,
to the
applicable Borrower as provided above.
(c) Except
as
otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan
unless
the applicable Borrower pays the amount due under Section 3.05
in
connection therewith. During the existence of an Event of Default, no Loans
may
be requested as, converted to or continued as Eurodollar Rate Loans without
the
consent of the Requisite Class Lenders.
(d) The
applicable Administrative Agent shall promptly notify the applicable Borrower
and the applicable Lenders of the interest rate applicable to any Interest
Period for Eurodollar Rate Loans upon determination of such interest rate.
The
determination of the Eurodollar Rate by the applicable Administrative Agent
shall be conclusive in the absence of manifest error. At any time that Base
Rate
Loans are outstanding, the applicable Administrative Agent shall notify the
applicable Borrower and the applicable Lenders of any change in the applicable
Administrative Agent’s corporate base rate (or other reference rate) used in
determining the Base Rate promptly following the public announcement of such
change.
(e) After
giving effect to all Revolving Credit Borrowings, all conversions of Term
B
Loans or Revolving Credit Loans from one Type to the other, and all
continuations of Term B Loans or Revolving Credit Loans as the same Type,
there
shall not be more than fifteen (15) Interest Periods in effect.
(f) The
failure of any Lender to make the Loan to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make
its Loan on the date of such Borrowing, 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 the date of any Borrowing.
(g) If
a
Canadian Borrower has, by delivery of a Committed Loan Notice to the Canadian
Administrative Agent in accordance with this Section
2.02,
requested the Canadian Lenders to accept its drafts to replace all or a portion
of an outstanding Canadian Loan, then each Canadian Lender shall, on the
date of
conversion or continuation, as applicable, and concurrent with the payment
by
such Canadian Borrower to the Canadian Administrative Agent on behalf of
the
Canadian Lenders of an amount equal to the difference between the principal
or
face amount of such outstanding Canadian Loan or the portion thereof which
is
being converted or continued and the aggregate Notional BA Proceeds with
respect
to the drafts to be accepted by the Canadian Lenders, accept the Canadian
Borrower’s draft or drafts having an aggregate face amount equal to its Pro Rata
Share of the aggregate principal or face amount of such Canadian Loan or
the
portion thereof which is being converted or continued, such acceptance to
be in
accordance with Section
2.16.
(h) If
a
Canadian Borrower has, by giving notice to the Canadian Administrative Agent
in
accordance with this Section
2.02,
requested a Canadian Lender to convert all or a portion of outstanding maturing
Canadian BAs into a Canadian Prime Rate Loan, such Canadian Lender shall,
upon
the end of the current Interest Period with respect to such Canadian BAs
and the
payment by such Canadian Lender to the holders of such Canadian BAs of the
aggregate face amount thereof, be deemed to have made to such Canadian Borrower
the Canadian Prime Rate Loan into which the matured Canadian BAs or a portion
thereof are converted in the aggregate principal amount equal to its Pro
Rata
Share of the aggregate face amount of the matured Canadian BAs or the portion
thereof which are being converted.
2.03 Letters
of Credit
.
(a) The
Letter of Credit Commitment.
(i) Subject
to the terms and conditions set forth herein, (A) the U.S. L/C Issuer agrees,
in
reliance upon the agreements of the other U.S. Revolving Credit Lenders set
forth in this Section
2.03,
(1)
from time to time on any Business Day during the period from the Closing
Date
until the Letter of Credit Expiration Date, to issue U.S. Letters of Credit
denominated in Dollars for the account of the U.S. Borrower (or any Subsidiary,
subject to clause (G)
of
Section 2.03(b)(i))
and to
amend or renew U.S. Letters of Credit previously issued by it, in accordance
with Section
2.03(b),
and (2)
to honor drafts under the U.S. Letters of Credit; (B) the U.S. Revolving
Credit
Lenders severally agree to participate in U.S. Letters of Credit issued for
the
account of the U.S. Borrower; provided
that the
U.S. L/C Issuer shall not be obligated to make any L/C Credit Extension with
respect to any U.S. Letter of Credit, and no Lender shall be obligated to
participate in any U.S. Letter of Credit if as of the date of such L/C Credit
Extension, (x) the aggregate U.S. Revolving Credit Exposure of any U.S.
Revolving Credit Lender would exceed such Lender’s U.S. Revolving Credit
Commitment, or (y) the Outstanding Amount of the L/C Obligations with respect
to
U.S. Letters of Credit would exceed the U.S. Letter of Credit Sublimit; (C)
the
Canadian L/C Issuer agrees, in reliance upon the agreements of the other
Canadian Lenders set forth in this Section
2.03,
(1)
from time to time on any Business Day during the period from the Closing
Date
until the Letter of Credit Expiration Date, to issue Canadian Letters of
Credit
denominated in Dollars or Canadian Dollars for the account of any Canadian
Borrower and to amend or renew Canadian Letters of Credit previously issued
by
it, in accordance with Section
2.03(b),
and (2)
to honor drafts under the Canadian Letters of Credit; and (D) the Canadian
Lenders severally agree to participate in Canadian Letters of Credit issued
for
the account of the Canadian Borrowers; provided
that the
Canadian L/C Issuer shall not be obligated to make any L/C Credit Extension
with
respect to any Canadian Letter of Credit, and no Lender shall be obligated
to
participate in any Canadian Letter of Credit if as of the date of such L/C
Credit Extension, the aggregate Canadian Exposure of any Lender would exceed
such Lender’s Canadian Credit Commitment. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrowers’ ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Borrowers
may,
during the foregoing period, obtain Letters of Credit to replace Letters
of
Credit that have expired or that have been drawn upon and reimbursed. Each
of
the Existing Letters of Credit shall be deemed to be a U.S. Letter of Credit
issued hereunder for all purposes of the Loan Documents and from and after
the
Closing Date shall be subject to and governed by the terms and conditions
hereof.
(ii) No
L/C
Issuer shall be under any obligation to issue any Letter of Credit
if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall
by
its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter
of Credit, or any Law applicable to such L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority
with
jurisdiction over such L/C Issuer shall prohibit, or request that such L/C
Issuer refrain from, the issuance of letters of credit generally or such
Letter
of Credit in particular or shall impose upon such L/C Issuer with respect
to
such Letter of Credit any restriction, reserve or capital requirement (for
which
such L/C Issuer is not otherwise compensated hereunder) not in effect on
the
Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss,
cost
or expense which was not applicable on the Closing Date and which, in each
case,
such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject
to Section
2.03(b)(iii),
the
expiry date of such requested Letter of Credit would occur more than twelve
months after the date of issuance or last renewal, unless the applicable
Requisite Class Lenders and such L/C Issuer have approved such expiry
date;
(C) the
expiry date of such requested Letter of Credit would occur after the Letter
of
Credit Expiration Date, unless all the Revolving Credit Lenders and such
L/C
Issuer have approved such expiry date;
(D) the
issuance of such Letter of Credit would violate one or more policies of such
L/C
Issuer; or
(E) such
Letter of Credit is in an initial amount less than $250 (or, in the case
of any
Canadian Letter of Credit denominated in Canadian Dollars, Cdn$250), in the
case
of a commercial Letter of Credit, or $250 (or, in the case of any Canadian
Letter of Credit denominated in Canadian Dollars, Cdn$250), in the case of
a
standby Letter of Credit, or is to be denominated in a currency other than
Dollars (with respect to U.S. Letter of Credit) or Dollars or Canadian Dollars
(with respect to any Canadian Letter of Credit).
(iii) No
L/C
Issuer shall be under any obligation to amend any Letter of Credit if (A)
such
L/C Issuer would have no obligation at such time to issue such Letter of
Credit
in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of
Credit.
(b) Procedures
for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of
Credit.
(i) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the applicable Borrower delivered to the applicable L/C Issuer
(with
a copy to the applicable Administrative Agent) in the form of a Letter of
Credit
Application, appropriately completed and signed by a Responsible Officer
of such
Borrower. Such Letter of Credit Application must be received by the applicable
L/C Issuer and the applicable Administrative Agent not later than 12:30 p.m.
(New York City time) at least two (2) Business Days (or such later date and
time
as such L/C Issuer may agree in a particular instance in its sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In
the case of a request for an initial issuance of a Letter of Credit, such
Letter
of Credit Application shall specify in form and detail reasonably satisfactory
to the applicable L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof;
(C)
the expiry date thereof (which shall not be later than the Letter of Credit
Expiration Date); (D) the name and address of the beneficiary thereof; (E)
the
documents to be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary
in case
of any drawing thereunder; (G) whether such Letter of Credit is to be issued
for
its own account or for the account of one of its Subsidiaries; provided
that the
U.S. Borrower shall be liable with respect to each Letter of Credit issued
for
the account of a Subsidiary; (H) in the case of any Canadian Letter of
Credit, whether such Letter of Credit is to be denominated in Dollars or
Canadian Dollars; and (I) such other matters as the applicable L/C Issuer
may
reasonably request. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form
and
detail reasonably satisfactory to the applicable L/C Issuer (A) the Letter
of
Credit to be amended; (B) the proposed date of amendment thereof (which shall
be
a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the applicable L/C Issuer may reasonably request. If requested
by the
applicable L/C Issuer, the applicable Borrower shall also submit a letter
of
credit application on the applicable L/C Issuer’s standard form in connection
with any request for the issuance or amendment of a Letter of
Credit.
(ii) Promptly
after receipt of any Letter of Credit Application, the applicable L/C Issuer
will confirm with the applicable Administrative Agent (by telephone or in
writing) that such Administrative Agent has received a copy of such Letter
of
Credit Application from the applicable Borrower and, if not, the applicable
L/C
Issuer will provide such Administrative Agent with a copy thereof. Upon receipt
by the applicable L/C Issuer of confirmation from the applicable Administrative
Agent that the requested issuance or amendment is permitted in accordance
with
the terms hereof, then, subject to the terms and conditions hereof, the
applicable L/C Issuer shall, on the requested date, issue a Letter of Credit
for
the account of the applicable Borrower or enter into the applicable amendment,
as the case may be. Immediately upon the issuance of each U.S. Letter of
Credit,
each U.S. Revolving Credit Lender shall be deemed to, and hereby irrevocably
and
unconditionally agrees to, purchase from the U.S. L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product
of such
Lender’s Pro Rata Share times
the
amount of such U.S. Letter of Credit and immediately upon the issuance of
each
Canadian Letter of Credit, each Canadian Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Canadian L/C
Issuer, a risk participation in such Letter of Credit in an amount equal
to the
product of such Lender’s Pro Rata Share times
the
amount of such Canadian Letter of Credit.
(iii) If
a
Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole and absolute discretion, agree to
issue a
Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal
Letter of Credit”);
provided
that any
such Auto-Renewal Letter of Credit must permit such L/C Issuer to prevent
any
such renewal at least once in each twelve-month period (commencing with the
date
of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Nonrenewal
Notice Date”)
in
each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the applicable L/C Issuer,
the
applicable Borrower shall not be required to make a specific request to the
applicable L/C Issuer for any such renewal. Once an Auto-Renewal Letter of
Credit has been issued, the applicable Lenders shall be deemed to have
authorized (but may not require) the applicable L/C Issuer to permit the
renewal
of such Letter of Credit at any time to an expiry date not later than the
earlier of (x) one year from the date of such renewal and (y) the Letter
of
Credit Expiration Date; provided,
however,
that no
L/C Issuer shall permit any such renewal if (A) such L/C Issuer has
determined that it would have no obligation at such time to issue such Letter
of
Credit in its renewed form under the terms hereof (by reason of the provisions
of Section
2.03(a)(ii)
or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Nonrenewal Notice Date (1) from any Administrative Agent that the Required
Lenders have elected not to permit such renewal or (2) from any
Administrative Agent, any Lender or any Borrower that one or more of the
applicable conditions specified in Section
4.02
are not
then satisfied.
(iv) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
each L/C Issuer will also deliver to the applicable Borrower and each
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) Drawings
and Reimbursements; Funding of Participations.
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the applicable L/C Issuer shall notify the U.S.
Borrower and the applicable Administrative Agent thereof. In the case of
a
Letter of Credit denominated in Canadian Dollars (other than the Canadian
Existing Letter of Credit, which unless the Canadian L/C Issuer otherwise
specified, shall be reimbursed by the U.S. Borrower in Dollars based on the
Dollar Equivalent), the applicable Borrower shall reimburse the Canadian
L/C
Issuer in Canadian Dollars, unless (A) the Canadian L/C Issuer (at its option)
shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the absence of any such requirement for reimbursement
in
Dollars, the applicable Borrower shall have notified the Canadian L/C Issuer
promptly following receipt of the notice of drawing that such Borrower will
reimburse the Canadian L/C Issuer in Dollars. In the case of any such
reimbursement in Dollars of a drawing under a Canadian Letter of Credit
denominated in Canadian Dollars, the Canadian L/C Issuer shall notify the
applicable Canadian Borrower (or the U.S. Borrower with respect to the Canadian
Existing Letter of Credit) of the Dollar Equivalent of the amount of the
drawing
promptly following the determination thereof. Not later than 11:00 a.m. (New
York City time) on the date of any payment by the applicable L/C Issuer under
a
Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
date
of any payment by such L/C Issuer under a Letter of Credit to be reimbursed
in
Canadian Dollars (each such date, an “Honor
Date”),
the
applicable Borrower shall reimburse the applicable L/C Issuer through the
applicable Administrative Agent in an amount equal to the amount of such
drawing
and in the applicable currency. If the applicable Borrower fails to so reimburse
such L/C Issuer by such time, such Administrative Agent shall promptly notify
each applicable Lenders of the Honor Date, the amount of the unreimbursed
drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof
in
the case of a Letter of Credit denominated in Canadian Dollars) (the
“Unreimbursed
Amount”),
and
the amount of such Lender’s Pro Rata Share thereof. In such event, the
applicable Borrower shall be deemed to have requested a Committed Borrowing
of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified
in
Section
2.02
for the
principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the applicable Revolving Credit Commitments and the conditions
set
forth in Section
4.02
(other
than the delivery of a Committed Loan Notice). Any notice given by an L/C
Issuer
or Administrative Agent pursuant to this Section
2.03(c)(i)
may be
given by telephone if immediately confirmed in writing; provided that the
lack
of such an immediate confirmation shall not affect the conclusiveness or
binding
effect of such notice.
(ii) Each
U.S.
Revolving Credit Lender (including the Lender acting as U.S. L/C Issuer)
shall
upon any notice pursuant to Section
2.03(c)(i)
make
funds available to the U.S. Administrative Agent for the account of the U.S.
L/C
Issuer at the U.S. Administrative Agent’s Office in an amount equal to its Pro
Rata Share of the Unreimbursed Amount with respect to any U.S. Letter of
Credit
not later than 2:00 p.m. (New York City time) on the Business Day on which
such
notice is provided (or, if such Lender has received such notice later than
12:00
noon (New York City time) on any day, no later than 11:00 a.m. (New York
City
time) on the immediately following Business Day), whereupon, subject to the
provisions of Section
2.03(c)(iii),
each
U.S. Revolving Credit Lender that so makes funds available shall be deemed
to
have made a Base Rate Loan to the U.S. Borrower in such amount. Each Canadian
Lender (including the Canadian Lender acting as Canadian L/C Issuer) shall
upon
any notice pursuant to Section
2.03(c)(i)
make
funds in the applicable currency (which, in the case of the Canadian Existing
Letter of Credit, unless otherwise specified by the Canadian L/C Issuer,
shall
be Dollars based on the Dollar Equivalent thereof) available to the Canadian
Administrative Agent for the account of the Canadian L/C Issuer at the Canadian
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount with respect to any Canadian Letter of Credit not later
than
2:00 p.m. (New York City time) on the Business Day on which such notice is
provided (or, if such Lender has received such notice later than 12:00 noon
(New
York City time) on any day, no later than 11:00 a.m. (New York City time)
on the
immediately following Business Day), whereupon, subject to the provisions
of
Section
2.03(c)(iii),
each
Canadian Lender that so makes funds available shall be deemed to have made
a
Base Rate Loan in the applicable currency to the applicable Canadian Borrower
in
such amount. The applicable Administrative Agent shall remit the funds so
received to the applicable L/C Issuer.
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in
Section
4.02
cannot
be satisfied or for any other reason, the applicable Borrower shall be deemed
to
have incurred from the applicable L/C Issuer an L/C Borrowing in the amount
of
and in the same currency as the Unreimbursed Amount that is not so refinanced,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each U.S. Revolving
Credit Lender’s or Canadian Lender’s, as the case may be, payment to the
applicable Administrative Agent for the account of the applicable L/C Issuer
pursuant to Section
2.03(c)(ii)
shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this Section
2.03.
(iv) Until
each applicable Lender funds its Revolving Credit Loan or L/C Advance pursuant
to this Section
2.03(c)
to
reimburse the applicable L/C Issuer for any amount drawn under any Letter
of
Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall
be solely for the account of the applicable L/C Issuer.
(v) Each
applicable Lender’s obligation to make Revolving Credit Loans or L/C Advances to
reimburse an L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section
2.03(c),
shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Lender may have against the applicable L/C Issuer, the applicable Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not
similar to any of the foregoing; provided,
however,
that
each Revolving Credit Lender’s obligation to make Revolving Credit Loans (but
not its obligation to make L/C Advances) pursuant to this Section
2.03(c)
is
subject to the conditions set forth in Section
4.02
(other
than delivery by the applicable Borrower of a Committed Loan Notice). No
such
making of an L/C Advance shall relieve or otherwise impair the obligation
of the
applicable Borrower to reimburse the applicable L/C Issuer for the amount
of any
payment made by such L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If
any
Lender fails to make available to the applicable Administrative Agent for
the
account of the applicable L/C Issuer any amount required to be paid by such
Lender pursuant to the foregoing provisions of this Section
2.03(c)
by the
time specified in Section
2.03(c)(ii),
the
applicable L/C Issuer shall be entitled to recover from such Lender (acting
through the applicable Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to
the
date on which such payment is immediately available to such L/C Issuer at
a rate
per annum equal to the Federal Funds Rate (or with respect to any Canadian
Letter of Credit denominated in Canadian Dollars, the Canadian Prime Rate)
from
time to time in effect or, if greater, a rate determined by the applicable
Administrative Agent in accordance with banking industry rules on interbank
compensation. A certificate of any L/C Issuer submitted to any Lender (through
the applicable Administrative Agent) with respect to any amounts owing under
this Section
2.03(c)(vi)
shall be
conclusive absent manifest error.
(d) Repayment
of Participations.
(i) If,
at
any time after an L/C Issuer has made a payment under any Letter of Credit
and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section
2.03(c),
the
applicable Administrative Agent receives for the account of such L/C Issuer
any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the applicable Borrower or otherwise, including proceeds
of Cash Collateral applied thereto by such Administrative Agent), such
Administrative Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period
of time during which such Lender’s L/C Advance was outstanding) in the same
funds as those received by such Administrative Agent.
(ii) If
any
payment received by an Administrative Agent for the account of any L/C Issuer
pursuant to Section
2.03(c)(i)
is
required to be returned under any of the circumstances described in Section
10.06
(including pursuant to any settlement entered into by such L/C Issuer in
its
discretion), each U.S. Revolving Credit Lender (with respect to any U.S.
Letter
of Credit) or each Canadian Lender (with respect to any Canadian Letter of
Credit) shall pay to the applicable Administrative Agent for the account
of such
L/C Issuer its Pro Rata Share thereof on demand of the applicable Administrative
Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate (or with respect to any Canadian Letter of Credit denominated
in
Canadian Dollars, the Canadian Prime Rate) from time to time in effect or,
if
greater, a rate determined by the applicable Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) Obligations
Absolute.
The
obligation of a Borrower to reimburse the applicable L/C Issuer for each
drawing
under each Letter of Credit issued at its request and to repay each L/C
Borrowing with respect thereto shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement
under
all circumstances, including the following:
(i) any
lack
of validity or enforceability of such Letter of Credit, this Agreement, or
any
other agreement or instrument relating thereto;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that
such
Borrower may have at any time against any beneficiary or any transferee of
such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the applicable L/C Issuer or any other Person,
whether in connection with this Agreement, the transactions contemplated
hereby
or by such Letter of Credit or any agreement or instrument relating thereto,
or
any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter
of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any
loss
or delay in the transmission or otherwise of any document required in order
to
make a drawing under such Letter of Credit;
(iv) any
payment by the applicable L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the
terms of such Letter of Credit; or any payment made by the applicable L/C
Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;
(v) any
exchange, release or nonperfection of any Collateral, or any release or
amendment or waiver of or consent to departure from the Guaranty or any other
guarantee, for all or any of the Obligations of such Borrower in respect
of such
Letter of Credit; or
(vi) any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, such Borrower.
The
applicable Borrower shall promptly examine a copy of each Letter of Credit
and
each amendment thereto that is delivered to it and, in the event of any claim
of
noncompliance with such Borrower’s instructions or other irregularity, such
Borrower will promptly notify the L/C Issuer. Each Borrower shall be
conclusively deemed to have waived any such claim against the applicable
L/C
Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role
of L/C Issuers.
Each
Lender and each Borrower agree that, in paying any drawing under a Letter
of
Credit, no L/C Issuer shall have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required
by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering
any
such document. No L/C Issuer, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of such L/C Issuer shall be liable
to
any Lender for (i) any action taken or omitted in connection herewith at
the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity
or
enforceability of any document or instrument related to any Letter of Credit
or
Letter of Credit Application. Each Borrower hereby assumes all risks of the
acts
or omissions of any beneficiary or transferee with respect to its use of
any
Letter of Credit; provided,
however,
that
this assumption is not intended to, and shall not, preclude a Borrower’s
pursuing such rights and remedies as it may have against the beneficiary
or
transferee at law or under any other agreement. No L/C Issuer, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees
of
such L/C Issuer, shall be liable or responsible for any of the matters described
in clauses
(i)
through
(v)
of
Section
2.03(e);
provided,
however,
that
anything in such clauses to the contrary notwithstanding, a Borrower may
have a
claim against an L/C Issuer, and an L/C Issuer may be liable to a Borrower,
to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by such Borrower which such Borrower proves
were
caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C
Issuer’s willful or grossly negligent failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter
of
Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and no L/C Issuer shall be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash
Collateral for L/C Obligations and Canadian BAs.
(i)
Upon the request of the applicable Administrative Agent, if an L/C Issuer
has
honored any full or partial drawing request under any Letter of Credit and
such
drawing has resulted in an L/C Borrowing and the conditions set forth in
Section 4.02
to a
Revolving Credit Borrowing cannot then be met, (ii) if, as of the Letter
of
Credit Expiration Date, any Letter of Credit issued for any Borrower may
for any
reason remain outstanding and partially or wholly undrawn, or (iii) if any
Borrower is required to Cash Collateralize L/C Obligations or Canadian BAs
pursuant to Section
8.02,
such
Borrower shall immediately Cash Collateralize the then Outstanding Amount
of all
of its L/C Obligations (in an amount equal to 100% of the Outstanding Amount
of
L/C Obligations with respect to Letters of Credit denominated in Dollars
and
105% of the Outstanding Amount of L/C Obligations denominated in Canadian
Dollars determined as of the date of such L/C Borrowing or Letter of Credit
Expiration Date) and the face amount of its Canadian BAs. The U.S. Borrower
hereby grants to the U.S. Administrative Agent, for the benefit of the U.S.
Lender and the U.S. Revolving Credit Lenders, and each Canadian Borrower
hereby
grants to the Canadian Administrative Agent, for the benefit of the Canadian
L/C
Issuer and each Canadian Lender, a security interest in any Cash Collateral
Account established for such Obligations of such Borrower and in all cash,
Cash
Equivalents, deposits and balances and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked deposit accounts at the applicable
Administrative Agent’s Office and pending application or release as herein
provided, shall be invested in Cash Equivalents (which, (i) in the case of
L/C
Obligations, shall be denominated in the same currency as the L/C Obligations
with respect to which such Cash Collateral was deposited and (ii) in the
case of
Canadian BAs, shall be denominated in Canadian Dollars and shall be invested
such that such Cash Equivalents shall mature in amounts sufficient to repay
the
face amount of the outstanding Canadian BAs at the scheduled maturity thereof)
reasonably acceptable to the applicable Administrative Agent; provided
that no
Administrative Agent or L/C Issuer shall be liable to any Borrower for any
investment losses suffered by any Borrower, including as a result of any
sale of
any such Cash Equivalents prior to the scheduled maturity thereof. If at
any
time an Administrative Agent determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than such Administrative
Agent or that the total amount of such funds in the applicable Cash Collateral
Account is less than the aggregate Outstanding Amount of all L/C Obligations
with respect to Letters of Credit issued under the applicable Revolving Credit
Facility (or, in the case of L/C Obligations with respect to Canadian Letters
of
Credit denominated in Canadian Dollars, 105% of the Outstanding Amount thereof)
and the face amount at maturity of all Canadian BAs of such Borrower, the
applicable Borrower will, forthwith upon demand by such Administrative Agent,
pay to such Administrative Agent, as additional funds to be deposited and
held
in the deposit accounts at such Administrative Agent’s Office as aforesaid, an
amount equal to the excess of (a) such aggregate Outstanding Amount and
face amount over (b) the total amount of funds, if any, then held as Cash
Collateral for such Borrower’s L/C Obligations and the face amount of such
Borrower’s Canadian BAs that such Administrative Agent determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit
and
at the maturity of any Canadian BA for which funds are on deposit as Cash
Collateral, such funds shall be applied, to the extent permitted under
applicable law, to reimburse the applicable L/C Issuer or holder of a Canadian
BA. To the extent the amount of any Cash Collateral exceeds the then Outstanding
Amount of L/C Obligations and the face amount of Canadian BAs of a Borrower
and
so long as no Event of Default has occurred and is continuing, the excess
shall
be refunded to the applicable Borrower.
(h) Applicability
of ISP98 and UCP.
Unless
otherwise expressly agreed by the applicable L/C Issuer and the applicable
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the “International
Standby Practices 1998” published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance) shall apply to each standby Letter of Credit, and (ii) the rules
of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce (the “ICC”)
at the
time of issuance shall apply to each commercial Letter of Credit.
(i) Letter
of Credit Fees.
The
U.S. Borrower shall pay to the U.S. Administrative Agent for the account
of each
U.S. Revolving Credit Lender in accordance with its Pro Rata Share a Letter
of
Credit fee for each U.S. Letter of Credit equal to the Applicable Rate
times
the
daily maximum amount then available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit if such maximum amount increases periodically pursuant to the terms
of
such Letter of Credit) and the Canadian Borrowers shall pay to the Canadian
Administrative Agent for the account of each Canadian Lender in accordance
with
its Pro Rata Share a Letter of Credit fee for each Canadian Letter of Credit
equal to the Applicable Rate times
the
daily maximum amount then available to be drawn under each such Letter of
Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit if such maximum amount increases periodically pursuant to the terms
of
such Letter of Credit). Such letter of credit fees shall be computed on a
quarterly basis in arrears. Such letter of credit fees shall be due and payable
on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance
of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on
demand. If there is any change in the Applicable Rate during any quarter,
the
daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that
such
Applicable Rate was in effect.
(j) Fronting
Fee and Documentary and Processing Charges Payable to L/C
Issuers.
The
U.S. Borrower shall pay directly to the U.S. L/C Issuer for its own account
a
fronting fee with respect to each U.S. Letter of Credit, which shall accrue
at
the rate of 0.125% per annum (computed on the average daily amount of the
Outstanding Amount of all L/C Obligations with respect to U.S. Letters of
Credit
(excluding any portion thereof attributable to Unreimbursed Amounts)) and
the
Canadian Borrowers shall pay directly to the Canadian L/C Issuer for its
own
account a fronting fee with respect to each Canadian Letter of Credit, which
shall accrue at the rate of 0.125% per annum (computed on the average daily
amount of the Outstanding Amount of all L/C Obligations with respect to Canadian
Letters of Credit (excluding any portion thereof attributable to Unreimbursed
Amounts)) during the period from and including the Closing Date to but excluding
the later of the Letter of Credit Expiration Date and the date on which the
Outstanding Amount of such L/C Obligations has been reduced to zero. Accrued
fronting fees shall be payable in arrears (i) on the last Business Day of
March,
June, September and December of each year, commencing on the first such date
to
occur after the Closing Date, (ii) on the Letter of Credit Expiration Date
and
(iii) following the Letter of Credit Expiration Date, on demand. All fronting
fees shall be paid in Dollars and, once paid, shall be nonrefundable. In
addition, each Borrower shall pay directly to the applicable L/C Issuer for
its
own account such L/C Issuing Bank’s customary issuance, presentation, amendment
and other processing fees (with respect to each Letter of Credit computed,
on
the U.S. Dollar Equivalent of the amount of such Letter of Credit, and payable
upon the issuance thereof, and with respect to any amendment of a commercial
Letter of Credit increasing the amount of such Letter of Credit, at a rate
separately agreed between the applicable Borrower and the applicable L/C
Issuer,
computed on the U.S. Dollar Equivalent of the amount of such increase, and
payable upon the effectiveness of such amendment), and other standard costs
and
charges, of such L/C Issuer relating to letters of credit as from time to
time
in effect. Such customary fees and standard costs and charges are due and
payable within five (5) Business Days of demand and are
nonrefundable.
(k) Conflict
with Letter of Credit Application.
In the
event of any conflict between the terms hereof and the terms of any Letter
of
Credit Application, the terms hereof shall control.
2.04 Swing
Line
Loans
.
(a) The
U.S. Swing Line.
(i) Subject
to the terms and conditions set forth herein, the U.S. Swing Line Lender
agrees
to make loans (each such loan, a “U.S.
Swing Line Loan”)
to the
U.S. Borrower from time to time on any Business Day until the Maturity Date
in
an aggregate amount not to exceed at any time outstanding the amount of the
U.S.
Swing Line Sublimit, notwithstanding the fact that such U.S. Swing Line Loans,
when aggregated with the Pro Rata Share of the Outstanding Amount of Loans
and
L/C Obligations of the Lender acting as U.S. Swing Line Lender, may exceed
the
amount of such Lender’s Commitment; provided,
however,
that
after giving effect to any U.S. Swing Line Loan, (A) the aggregate Outstanding
Amount of the U.S. Revolving Credit Loans of any Lender, plus
such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations with
respect to U.S. Letters of Credit, plus
such
Lender’s Pro Rata Share of the Outstanding Amount of all U.S. Swing Line Loans
shall not exceed such Lender’s U.S. Revolving Credit Commitment; provided,
further,
that
the U.S. Borrower shall not use the proceeds of any U.S. Swing Line Loan
to
refinance any outstanding U.S. Swing Line Loan. Within the foregoing limits,
and
subject to the other terms and conditions hereof, the U.S. Borrower may borrow
under this Section
2.04,
prepay
under Section
2.05,
and
reborrow under this Section
2.04.
Each
U.S. Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a
U.S. Swing Line Loan, each U.S. Revolving Credit Lender shall be deemed to,
and
hereby irrevocably and unconditionally agrees to, purchase from the U.S.
Swing
Line Lender a risk participation in such U.S. Swing Line Loan in an amount
equal
to the product of such Lender’s Pro Rata Share times
the
amount of such U.S. Swing Line Loan.
(ii) Subject
to the terms and conditions set forth herein, the Canadian Swing Line Lender
agrees to make loans (each such loan, a “Canadian
Swing Line Loan”
and
together with the U.S. Swing Line Loans, the “Swing
Line Loans”)
to the
Canadian Borrowers from time to time on any Business Day until the Maturity
Date
in Dollars or Canadian Dollars in an aggregate amount not to exceed at any
time
outstanding the amount of the Canadian Swing Line Sublimit, notwithstanding
the
fact that such Canadian Swing Line Loans, when aggregated with the Pro Rata
Share of the Outstanding Amount of Loans and L/C Obligations of the Lender
acting as Canadian Swing Line Lender, may exceed the amount of such Lender’s
Commitment; provided,
however,
that
after giving effect to any Canadian Swing Line Loan, the aggregate Outstanding
Amount of the Canadian Loans of any Lender plus
such
Lender’s Pro Rata Share of the Outstanding Amount of all Canadian L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all
Canadian Swing Line Loans shall not exceed such Lender’s Canadian Credit
Commitment; provided,
further,
that no
Canadian Borrower shall use the proceeds of any Canadian Swing Line Loan
to
refinance any outstanding Canadian Swing Line Loan. Within the foregoing
limits,
and subject to the other terms and conditions hereof, the Canadian Borrowers
may
borrow under this Section
2.04,
prepay
under Section
2.05,
and
reborrow under this Section
2.04.
Each
Canadian Swing Line Loan shall be a Base Rate Loan. Immediately upon the
making
of a Canadian Swing Line Loan, each Canadian Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Canadian
Swing Line Lender a risk participation in such Canadian Swing Line Loan in
an
amount equal to the product of such Lender’s Pro Rata Share times
the
amount of such Canadian Swing Line Loan.
(b) Borrowing
Procedures.
Each
Swing Line Borrowing shall be made upon the applicable Borrower’s irrevocable
notice to the applicable Swing Line Lender and the applicable Administrative
Agent, which may be given by telephone. Each such notice must be received
by the
applicable Swing Line Lender and the applicable Administrative Agent not
later
than 1:00 p.m. (New York City time) on the requested borrowing date, and
shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000
(or, in the case of a Canadian Swing Line Borrowing denominated in Canadian
Dollars, Cdn$100,000), and (ii) the requested borrowing date, which shall
be a Business Day. Each such telephonic notice must be confirmed promptly
by
delivery to the applicable Swing Line Lender and the applicable Administrative
Agent of a written Swing Line Loan Notice, appropriately completed and signed
by
a Responsible Officer of the applicable Borrower. Promptly after receipt
by a
Swing Line Lender of any telephonic Swing Line Loan Notice, such Swing Line
Lender will confirm with the applicable Administrative Agent (by telephone
or in
writing) that such Administrative Agent has also received such Swing Line
Loan
Notice and, if not, such Swing Line Lender will notify such Administrative
Agent
(by telephone or in writing) of the contents thereof. Unless the applicable
Swing Line Lender has received notice (by telephone or in writing) from the
applicable Administrative Agent (including at the request of any Lender)
prior
to 2:00 p.m. (New York City time) on the date of the proposed Swing Line
Borrowing (A) directing such Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.04(a),
or
(B) that one or more of the applicable conditions specified in Section 4.02
is not
then satisfied, then, subject to the terms and conditions hereof, such Swing
Line Lender will, not later than 3:00 p.m. (New York City time) on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing
Line
Loan available to the requesting Borrower.
(c) Refinancing
of Swing Line Loans.
(i) Any
Swing
Line Lender at any time in its sole and absolute discretion may request,
on
behalf of the U.S. Borrower (in the case of any U.S. Swing Line Borrowing)
or
any Canadian Borrower (in the case of any Canadian Swing Line Borrowing)
(and
each Borrower hereby irrevocably authorizes the applicable Swing Line Lender
to
so request on its behalf), that each U.S. Revolving Credit Lender (in the
case
of any U.S. Swing Line Borrowing) or each Canadian Lender (in the case of
any
Canadian Swing Line Borrowing) make a Base Rate Loan in an amount equal to
such
Lender’s Pro Rata Share of the amount of such Swing Line Loans then outstanding.
Such request shall be made in writing (which written request shall be deemed
to
be a Committed Loan Notice from the applicable Borrower for purposes hereof)
and
in accordance with the requirements of Section 2.02,
without
regard to the minimum and multiples specified therein for the principal amount
of Base Rate Loans, but subject to the unutilized portion of the aggregate
U.S.
Revolving Credit Commitments and Canadian Credit Commitments and the conditions
set forth in Section
4.02.
The
applicable Swing Line Lender shall furnish the applicable Borrower with a
copy
of the applicable Committed Loan Notice promptly after delivering such notice
to
the applicable Administrative Agent. Each U.S. Revolving Credit Lender (in
the
case of any U.S. Swing Line Borrowing) and each Canadian Lender (in the case
of
any Canadian Swing Line Borrowing) shall make an amount equal to its Pro
Rata
Share of the amount specified in such Committed Loan Notice available to
the
applicable Administrative Agent in immediately available funds for the account
of the applicable Swing Line Lender at the applicable Administrative Agent’s
Office not later than 1:00 p.m. (New York City time) on the day specified
in
such Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii),
each
Lender that so makes funds available shall be deemed to have made a Base
Rate
Loan to the applicable Borrower in such amount. The applicable Administrative
Agent shall remit the funds so received to the applicable Swing Line
Lender.
(ii) If
for
any reason any Swing Line Loan cannot be refinanced by such a U.S. Revolving
Credit Borrowing or Canadian Borrowing, as applicable, in accordance with
Section
2.04(c)(i),
the
request for Base Rate Loans submitted by the applicable Swing Line Lender
as set
forth herein shall be deemed to be a request by such Swing Line Lender that
each
of the U.S. Revolving Credit Lenders (in the case of any U.S. Swing Line
Borrowing) and each of the Canadian Lenders (in the case of any Canadian
Swing
Line Borrowing) fund its risk participation in the relevant Swing Line Loan
and
each such Lender’s payment to the applicable Administrative Agent for the
account of such Swing Line Lender pursuant to Section
2.04(c)(i)
shall be
deemed payment in respect of such participation.
(iii) If
any
Lender fails to make available to the applicable Administrative Agent for
the
account of the applicable Swing Line Lender any amount required to be paid
by
such Lender pursuant to the foregoing provisions of this Section
2.04(c)
by the
time specified in Section
2.04(c)(i),
the
applicable Swing Line Lender shall be entitled to recover from such Lender
(acting through the applicable Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required
to
the date on which such payment is immediately available to such Swing Line
Lender at a rate per annum equal to the Federal Funds Rate (or with respect
to
any Canadian Swing Line Loan denominated in Canadian Dollars, the Canadian
Prime
Rate) from time to time in effect or, if greater, a rate determined by the
applicable Administrative Agent in accordance with banking industry rules
on
interbank compensation. A certificate of the applicable Swing Line Lender
submitted to any Lender (through the U.S. Administrative Agent) with respect
to
any amounts owing under this clause
(iii)
shall be
conclusive absent manifest error.
(iv) Each
Lender’s obligation to make U.S. Revolving Credit Loans or Canadian Loans, as
applicable, or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c)
shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which
such Lender may have against the applicable Swing Line Lender, any Borrower
or
any other Person for any reason whatsoever, (B) the occurrence or continuance
of
a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided,
however,
that
each Lender’s obligation to make U.S. Revolving Credit Loans (but not its
obligation to fund risk participations) and each Canadian Lender’s obligation to
make Canadian Loans (but not its obligation to fund risk participations)
pursuant to this Section
2.04(c)
is
subject to the conditions set forth in Section
4.02.
No such
funding of risk participations shall relieve or otherwise impair the obligation
of the applicable Borrower to repay Swing Line Loans, together with interest
as
provided herein.
(d) Repayment
of Participations.
(i) At
any
time after any Lender has purchased and funded a risk participation in a
Swing
Line Loan, if the applicable Swing Line Lender receives any payment on account
of such Swing Line Loan, such Swing Line Lender will distribute to such Lender
its Pro Rata Share of such payment (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s risk
participation was funded) in the same funds as those received by such Swing
Line
Lender.
(ii) If
any
payment received by any Swing Line Lender in respect of principal or interest
on
any Swing Line Loan is required to be returned by such Swing Line Lender
under
any of the circumstances described in Section
10.06
(including pursuant to any settlement entered into by such Swing Line Lender
in
its discretion), each applicable Lender shall pay to such Swing Line Lender
its
Pro Rata Share thereof on demand of the applicable Administrative Agent,
plus
interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate (or with respect
to any Canadian Swing Line Loan denominated in Canadian Dollars, the Canadian
Prime Rate) or, if greater, a rate determined by the applicable Administrative
Agent in accordance with banking industry rules on interbank compensation.
The
applicable Administrative Agent will make such demand upon the request of
the
Swing Line Lender.
(e) Interest
for Account of Swing Line Lender.
Each
Swing Line Lender shall be responsible for invoicing the applicable Borrower
for
interest on the Swing Line Loans made by it. Until each applicable Revolving
Credit Lender funds its Base Rate Loan or risk participation pursuant to
this
Section
2.04
to
refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in
respect of such Pro Rata Share shall be solely for the account of the Swing
Line
Lender making such Swing Line Loan.
(f) Payments
Directly to Swing Line Lenders.
Each
Borrower shall make all payments of principal and interest in respect of
the
Swing Line Loans made to it directly to the Swing Line Lender making such
Swing
Line Loan.
2.05 Prepayments
.
(a) Optional.
(i) Each
Borrower may, upon notice to the applicable Administrative Agent, at any
time or
from time to time voluntarily prepay Loans (other than Canadian BAs) in whole
or
in part without premium or penalty; provided
that (1)
such notice must be received by the applicable Administrative Agent not later
than 12:30 p.m. (New York City time) (A) three (3) Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (B) on the date of
prepayment of Base Rate Loans; (2) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $2,000,000 or a whole multiple of $500,000
in
excess thereof; and (3) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 (or, in the case of Canadian Loans denominated
in
Canadian Dollars Cdn$500,000) or a whole multiple of $100,000 (or, in the
case
of Canadian Loans denominated in Canadian Dollars Cdn$100,000) in excess
thereof
or, in each case, if less, the entire principal amount thereof then outstanding
and (4) any such prepayment of Revolving Credit Loans of any Tranche shall
be made pro rata among the Revolving Credit Loans of such Tranche of the
same
Type of all Lenders that have made such Revolving Credit Loans. Each such
notice
shall specify the date and amount of such prepayment and the Type(s) of Loans
to
be prepaid. The applicable Administrative Agent will promptly notify each
applicable Lender of its receipt of each such notice, and of the amount of
such
Lender’s Pro Rata Share of such prepayment. If such notice is given by a
Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant
to
Section
3.05.
Each
prepayment of the outstanding Term B Loans pursuant to this Section
2.05(a)
shall be
applied to any principal repayment installments thereof in direct order of
maturity.
(ii) Each
Borrower may, upon notice to the applicable Swing Line Lender (with a copy
to
the applicable Administrative Agent), at any time or from time to time,
voluntarily prepay its Swing Line Loans in whole or in part without premium
or
penalty; provided
that (1)
such notice must be received by the applicable Swing Line Lender and
Administrative Agent not later than 1:00 p.m. (New York City time) on the
date
of the prepayment, and (2) any such prepayment shall be in a minimum principal
amount of $100,000 (or, in the case of Canadian Swing Line Loans denominated
in
Canadian Dollars, Cdn$100,000). Each such notice shall specify the date and
amount of such prepayment. If such notice is given by a Borrower, such Borrower
shall make such prepayment and the payment amount specified in such notice
shall
be due and payable on the date specified therein.
(iii) Notwithstanding
anything to the contrary contained in this Agreement, the applicable Borrower
may rescind any notice of prepayment under Section 2.05(a)(i)
or
(a)(ii)
if such
prepayment would have resulted from a refinancing of all of the Facilities,
which refinancing shall not be consummated or shall otherwise be
delayed.
(b) Mandatory.
(i) [intentionally
omitted].
(ii) Within
five (5) Business Days after financial statements are required to be delivered
pursuant to Section
6.01(a)
and the
related Compliance Certificate has been delivered pursuant to Section
6.02(b),
the
U.S. Borrower shall prepay an aggregate principal amount of Term B Loans
in
accordance with Section 2.05(b)(vii)
in an
amount equal to the excess of (A) 50% of Excess Cash Flow for the Excess
Cash Flow Period covered by such financial statements commencing with the
Excess
Cash Flow Period ending December 31, 2005 over (B) the amount of Term
B Loans repaid pursuant to Section 2.05(a)
during
such Excess Cash Flow Period; provided
that
such percentage shall be reduced to (A) 25% if the Leverage Ratio as of the
last day of the prior fiscal year was less than 4.00:1.00 and (B) 0% if the
Leverage Ratio as of the last day of the prior fiscal year was less than
3.50:1.00.
(iii) (A)
If
(x) Holdings, the U.S. Borrower or any of its Restricted Subsidiaries Disposes
of any property or assets (other than any Disposition of any property or
assets
permitted by Section
7.05(a),
(b),
(c),
(d)
(to the
extent constituting a Disposition by any Restricted Subsidiary that is not
a
Loan Party to a Loan Party), (e),
(f)
(but only with respect to any sale-leaseback transaction effected within
two
hundred seventy (270) days after the acquisition of the property that is
the
subject of such Transaction and only if such property was not acquired with
the
Net Cash Proceeds of a Disposition or Casualty Event), (g),
(h),
(i),
(k)
or
(l))
or (y)
any Casualty Event occurs, which in the aggregate for any transaction or
series
of related transactions results in the realization or receipt by Holdings,
the
U.S. Borrower or such Restricted Subsidiary of aggregate Net Cash Proceeds
in
excess of $5,000,000, the U.S. Borrower shall (1) give written notice to
the
Administrative Agents thereof on or prior to the date of the realization
or
receipt of such Net Cash Proceeds and (2) except to the extent the U.S. Borrower
elects in such notice to reinvest all or a portion of such Net Cash Proceeds
in
accordance with Section
2.05(b)(iii)(B)
(which
election may only be made if no Event of Default has occurred and is then
continuing), prepay an aggregate principal amount of Term B Loans in an amount
equal to 100% of all Net Cash Proceeds received therefrom within the earlier
of
(A) two (2) Business Days of receipt thereof by Holdings, the U.S. Borrower
or any Domestic Subsidiary which is a Restricted Subsidiary or (B) ten (10)
Business Days of receipt thereof by any Foreign Subsidiary which is a Restricted
Subsidiary.
(B) With
respect to any Net Cash Proceeds realized or received with respect to any
Disposition (other than as specifically excluded in Section
2.05(b)(iii)(A))
or
any Casualty Event, at the option of the U.S. Borrower or such Restricted
Subsidiary, and so long as no Event of Default shall have occurred and be
continuing, the U.S. Borrower may reinvest all or any portion of such Net
Cash
Proceeds in assets useful for its business no later than the later of
(x) three hundred and sixty-five (365) days following receipt of such Net
Cash Proceeds or (y) if the U.S. Borrower or such Restricted Subsidiary enters
into a binding contract to reinvest such Net Cash Proceeds within three hundred
and sixty-five (365) days of the receipt thereof, one hundred and eighty
(180)
days after the date of such contract (or if earlier, two Business Days after
such contract is terminated following such 365th day); provided,
however,
that if
any Net Cash Proceeds are no longer intended to be so reinvested at any time
after delivery of a notice of reinvestment election, an amount equal to any
such
Net Cash Proceeds shall be immediately applied to the prepayment of the Loans
as
set forth in this Section
2.05;
provided,
further,
however,
that no
such Net Cash Proceeds of a Casualty Event shall be reinvested for the repair
or
replacement of property damaged or lost in such Casualty Event if the net
book
value of such property exceeds $5,000,000 unless, after giving Pro Forma
Effect
to any Indebtedness to be incurred in connection with such replacement or
restoration, the Loan Parties would be in compliance with the financial
covenants set forth in Section
7.11
as of
the most recent fiscal quarter end preceding the date of
determination.
(iv) The
U.S.
Borrower shall prepay an aggregate principal amount of Term B Loans in an
amount
equal to 50% of all Net Cash Proceeds received from any Specified Equity
Issuance promptly, but in any event within five (5) Business Days after receipt
thereof by Holdings, the U.S. Borrower or any of its Restricted Subsidiaries;
provided
that
such percentage shall be reduced to (A) 25% if the Leverage Ratio as of the
last
day of the prior fiscal quarter was less than 4.00:1.00 and (B) 0% if the
Leverage Ratio as of the last day of the prior fiscal quarter was less than
3.50:1.00.
(v) Upon
the
incurrence or issuance by Holdings, the U.S. Borrower or any of its Restricted
Subsidiaries of (A) any Indebtedness incurred in violation of Section
7.03
or (B)
any Permitted Subordinated Indebtedness under Section 7.03(a)(ii)(B),
the
U.S. Borrower shall prepay an aggregate principal amount of Term B Loans
in an
amount equal to 100% of all Net Cash Proceeds received therefrom immediately
upon receipt thereof by Holdings, the U.S. Borrower or such Restricted
Subsidiary.
(vi) If
(A)
for any reason the aggregate U.S. Revolving Credit Exposure exceeds the U.S.
Revolving Credit Commitments then in effect, the U.S. Borrower shall immediately
prepay U.S. Revolving Credit Loans and U.S. Swing Line Loans and/or Cash
Collateralize L/C Obligations with respect to U.S. Letters of Credit in an
aggregate amount equal to such excess; provided,
however,
that
the U.S. Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section
2.05(b)(v)
except
to the extent that after the prepayment in full of the U.S. Revolving Credit
Loans and the Swing Line Loans, the Outstanding Amount of L/C Obligations
with
respect to U.S. Letters of Credit exceeds the U.S. Revolving Credit Commitments
then in effect.
(B) On
each
date when the aggregate Canadian Exposure exceeds the Canadian Credit Commitment
Amount as then in effect, the Canadian Borrowers shall prepay Canadian Loans
(other than Canadian BAs) and Canadian Swing Line Loans and/or Cash
Collateralize Canadian Letters of Credit in an aggregate amount equal to
such
excess; provided,
however,
that
the Canadian Borrower shall not be required to Cash Collateralize the L/C
Obligations with respect to Canadian Letters of Credit pursuant to this
Section
2.05(b)(vi)
except
to the extent that after the prepayment in full of the Canadian Loans (other
than Canadian BAs) and the Canadian Swing Line Loans, the Outstanding Amount
of
L/C Obligations with respect to Canadian Letters of Credit exceeds the Canadian
Credit Commitments then in effect.
(vii) Each
prepayment of Term B Loans pursuant to this Section
2.05(b)
required
to be made by U.S. Borrower shall be applied, in direct order of maturities,
to
any principal repayment installments of the Term B Facility.
(viii) All
prepayments under this Section
2.05
shall be
made together with, in the case of any such prepayment of a Eurodollar Rate
Loan
on a date other than the last day of an Interest Period therefor, any amounts
owing in respect of such Eurodollar Rate Loan pursuant to Section
3.05.
Notwithstanding any of the other provisions of Section
2.05(b),
so long
as no Event of Default shall have occurred and be continuing, if any prepayment
of Eurodollar Rate Loans is required to be made under this Section
2.05(b),
other
than on the last day of the Interest Period therefor, the applicable Borrower
may, in its sole discretion, deposit the amount of any such prepayment otherwise
required to be made thereunder into a Cash Collateral Account until the last
day
of such Interest Period, at which time the U.S. Administrative Agent shall
be
authorized (without any further action by or notice to or from the applicable
Borrower or any other Loan Party) to apply such amount to the prepayment
of such
Loans in accordance with this Section
2.05(b).
Upon
the occurrence and during the continuance of any Event of Default, the
applicable Administrative Agent shall also be authorized (without any further
action by or notice to or from the applicable Borrower or any other Loan
Party)
to apply such amount to the prepayment of the outstanding Loans of the
applicable Borrower in accordance with this Section
2.05(b).
2.06 Termination,
Reduction or Reallocation of Commitments
.
(a) Optional.
The
Borrowers may, upon written notice to each Administrative Agent, terminate
the
unused portions of the U.S. Letter of Credit Sublimit, the unused U.S. Revolving
Credit Commitments, or Canadian Credit Commitment or from time to time
permanently reduce the unused portions of the U.S. Letter of Credit Sublimit,
or
the unused Revolving Credit Commitments; provided
that (i)
any such notice shall be received by each Administrative Agent three (3)
Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $500,000 or any whole
multiple of $100,000 in excess thereof and (iii) the Borrowers shall not
terminate or reduce the unused portions of the U.S. Letter of Credit Sublimit,
or the unused Revolving Credit Commitments if, after giving effect thereto
and
to any concurrent prepayments hereunder, the aggregate U.S. Revolving Credit
Exposure would exceed the aggregate U.S. Revolving Credit Commitments or
the
aggregate Canadian Exposure would exceed the aggregate Canadian Credit
Commitments. Notwithstanding the foregoing, the U.S. Borrower may rescind
or
postpone any notice of termination of the Commitments if such termination
would
have resulted from a refinancing of all of the Facilities, which refinancing
shall not be consummated or otherwise shall be delayed.
(b) Mandatory.
(i) If
after
giving effect to any reduction or termination of unused U.S. Revolving Loan
Commitments under this Section
2.06,
the
U.S. Letter of Credit Sublimit or the U.S. Swing Line Sublimit exceeds the
amount of the U.S. Revolving Credit Facility, such Sublimit shall be
automatically reduced by the amount of such excess.
(ii) If
after
giving effect to any reduction or termination of unused Canadian Credit
Commitments under this Section
2.06,
the
Canadian Swing Line Sublimit exceeds the amount of the Canadian Revolving
Credit
Facility, such Sublimit shall be automatically reduced by the amount of such
excess.
(c) Application
of Commitment Reductions; Payment of Fees.
The
applicable Administrative Agent will promptly notify the applicable Lenders
of
any termination or reduction of unused portions of the U.S. Letter of Credit
Sublimit, or the unused U.S. Revolving Credit Commitment or unused Canadian
Credit Commitment under this Section
2.06.
Upon
any reduction of unused Commitments under a Facility, the Commitment of each
Lender under such Facility shall be reduced by such Lender’s Pro Rata Share of
the amount by which such Facility is reduced (other than the termination
of the
Commitment of any Lender as provided in Section
3.07).
All
commitment fees accrued until the effective date of any termination of the
Revolving Credit Commitments shall be paid on the effective date of such
termination.
(d) Subject
to the satisfaction of the conditions set forth in paragraph (e) below, the
U.S.
Borrower, upon at least thirty (30) days prior written notice (or such shorter
notice as to which the Administrative Agents may consent) to each Administrative
Agent, may reallocate all or a portion of a Lender’s Revolving Credit Commitment
once at any time during each fiscal quarter of the U.S. Borrower in accordance
with the following procedures. In the case of any such reallocation, the
total
U.S. Revolving Credit Commitments (in the case of a reallocation of a U.S.
Revolving Credit Commitment) or the total Canadian Credit Commitments (in
the
case of a reallocation of a Canadian Credit Commitment), as the case may
be,
shall be reduced by the amount of the reallocated Commitment (the “Reallocated
Commitment”)
and
the total Canadian Credit Commitments (if the Reallocated Commitment was
a U.S.
Revolving Credit Commitment) or the total U.S. Revolving Credit Commitments
(if
the Reallocated Commitment was a Canadian Credit Commitment) shall be increased
by an amount equal to the Reallocated Commitment. Any such reallocation shall
be
subject to execution of documentation with respect thereto by the Borrowers,
the
Administrative Agents, the Lender whose Commitment is reduced pursuant to
such
reallocation (the “Reduced
Lender”)
and
the Lender that will assume the increased Commitment resulting from such
reallocation, which may be the Reduced Lender or an affiliate of the Reduced
Lender (the “Increased
Lender”).
The
Administrative Agents shall notify the Revolving Credit Lenders of any such
reallocation. Any such reallocation shall not require any consent or approval
of
any Lender other than the Reduced Lender and the Increased Lender and the
amounts of the respective Revolving Credit Commitments of such other Lenders
shall not be changed by any such reallocation. In the event of any such
reallocation (i) the credit facility comprised of the Reallocated Commitment,
the other Revolving Credit Commitments of the same Tranche and the Loans
and
other Credit Extensions hereunder in respect of such Commitments is referred
to
herein as the “Reduced
Facility”,
and
(ii) the credit facility comprised of the Commitment of the Increased Lender,
the other Commitments of the same Tranche and the Loans and other Credit
Extensions hereunder in respect of such Commitments is referred to herein
as the
“Increased
Facility”.
(e) The
consummation of any reallocation pursuant to paragraph (d) above shall be
subject to satisfaction of the following conditions on the date of such
consummation:
(i) the
conditions to each Credit Extension set forth in Section
4.02
shall be
satisfied at the time;
(ii) each
of
the Administrative Agents, each L/C Issuer, the Reduced Lender and the Increased
Lender shall have consented in writing to such reallocation;
(iii) such
reallocation shall not result in the prepayment of any Canadian BA;
(iv) after
giving effect to such reallocation, the aggregate Canadian Commitments would
not
exceed $35,000,000;
(v) after
giving effect to such reallocation and the satisfaction of the conditions
specified above, (A) the aggregate U.S. Revolving Credit Exposure shall not
exceed the aggregate U.S. Revolving Credit Commitment and (B) the aggregate
Canadian Exposure shall not exceed the aggregate Canadian Credit Commitment;
and
(vi) if
the
Increased Lender is not already a Lender, such Increased Lender shall have
executed a joinder agreement in form satisfactory to the applicable
Administrative Agent and the U.S. Borrower pursuant to which it shall have
become a Lender hereunder.
(f) On
each
date of effectiveness of any reallocation of any Commitment pursuant to
clause
(d)
above (a
“Reallocation
Effectiveness Date”),
(i)
each of the Lenders having a Revolving Credit Commitment under the Reduced
Facility after giving effect to such reallocation (the “Remaining
Reduced Facility Lenders”)
shall
purchase from the Reduced Lender and the Reduced Lender shall sell to each
Remaining Reduced Facility Lender, at the principal amount thereof, such
interests in the Revolving Loans and participation interests in L/C Obligations
and Swing Line Loans outstanding under the Reduced Facility on such Reallocation
Effectiveness Date as shall be necessary in order that, after giving effect
to
all such assignments and purchases, such Revolving Loans and participation
interests in L/C Obligations and Swing Line Loans under the Reduced Facility
will be held by each Remaining Reduced Facility Lender ratably in accordance
with its respective Pro Rata Share of the aggregate Commitments under the
Reduced Facility and (ii) each of the Lenders having a Revolving Credit
Commitment under the Increased Facility (the “Existing
Increased Facility Lenders”)
shall
sell to the Increased Lender and the Increased Lender shall purchase from
each
Existing Increased Facility Lender, at the principal amount thereof, such
interests in the Revolving Loans and participation interests in L/C Obligations
and Swing Line Loans outstanding under the Increased Facility on such
Reallocation Effectiveness Date as shall be necessary in order that, after
giving effect to all such assignments and purchases, such Revolving Loans
and
participation interests in L/C Obligations and Swing Line Loans will be held
by
each Existing Increased Facility Lender and the Increased Lender ratably
in
accordance with its respective Pro Rata Share of the aggregate Commitments
under
the Increased Facility.
2.07 Repayment
of Loans
.
(a) Term
B
Loans.
The
U.S. Borrower shall repay to the U.S. Administrative Agent for the ratable
account of the Term B Lenders the aggregate principal amount of all Term
B Loans
outstanding in twenty-eight (28) consecutive quarterly installments as follows
(which installments shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section
2.05
or
increased as a result of any increase in the amount of Term B Loans pursuant
to
Section
2.14
(such
increased amortization payments to be calculated in the same manner (and
on the
same basis) as the schedule set forth below for the Term B Loans made as
of the
Closing Date)):
|
Date
|
Term
B Loan Principal Amortization Payment
|
|
November
27, 2004
|
$1,750,000
|
|
February
27, 2005
|
$1,750,000
|
|
May
27, 2005
|
$1,750,000
|
|
August
27, 2005
|
$1,750,000
|
|
November
27, 2005
|
$1,750,000
|
|
February
27, 2006
|
$1,750,000
|
|
May
27, 2006
|
$1,750,000
|
|
August
27, 2006
|
$1,750,000
|
|
November
27, 2006
|
$1,750,000
|
|
February
27, 2007
|
$1,750,000
|
|
May
27, 2007
|
$1,750,000
|
|
August
27, 2007
|
$1,750,000
|
|
November
27, 2007
|
$1,750,000
|
|
February
27, 2008
|
$1,750,000
|
|
May
27, 2008
|
$1,750,000
|
|
August
27, 2008
|
$1,750,000
|
|
November
27, 2008
|
$1,750,000
|
|
February
27, 2009
|
$1,750,000
|
|
May
27, 2009
|
$1,750,000
|
|
August
27, 2009
|
$1,750,000
|
|
November
27, 2009
|
$1,750,000
|
|
February
27, 2010
|
$1,750,000
|
|
May
27, 2010
|
$1,750,000
|
|
August
27, 2010
|
$1,750,000
|
|
November
27, 2010
|
$164,500,000
|
|
February
27, 2011
|
$164,500,000
|
|
May
27, 2011
|
$164,500,000
|
|
August
27, 2011
|
$164,500,000
|
provided,
however,
that
the final principal repayment installment of the Term B Loans shall be repaid
on
the Maturity Date and in any event shall be in an amount equal to the aggregate
principal amount of all Term B Loans outstanding on such date.
(b) Revolving
Credit Loans.
The
applicable Borrower shall repay to the applicable Administrative Agent for
the
ratable account of the applicable Revolving Credit Lenders on the Maturity
Date
the aggregate principal amount of all U.S. Revolving Credit Loans and Canadian
Loans outstanding on such date.
(c) Swing
Line Loans.
Each
Borrower shall repay each of its Swing Line Loans on the earlier to occur
of (i)
the date five (5) Business Days after such Swing Line Loan is made and
(ii) the Maturity Date.
2.08 Interest
.
(a) Subject
to the provisions of Section
2.08(b),
(i)
each Eurodollar Rate Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus
the
Applicable Rate; (ii) each Base Rate Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a
rate per annum equal to the Base Rate plus
the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at
a
rate per annum equal to the Base Rate plus
the
Applicable Rate for Revolving Credit Loans maintained as Base Rate
Loans.
(b) Any
past
due amount of the Obligations shall accrue interest at a fluctuating rate
per
annum at all times equal to the Default Rate to the fullest extent permitted
by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon
demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest Payment
Date
applicable thereto and at such other times as may be specified herein. Interest
hereunder shall be due and payable in accordance with the terms hereof before
and after judgment, and before and after the commencement of any proceeding
under any Debtor Relief Law.
(d) For
the
purposes of the Interest Act (Canada), whenever interest payable pursuant
to
this Agreement is calculated with respect to any monetary Obligation relating
to
the Canadian Facility on the basis of a period other than a calendar year
(the
“Calculation
Period”),
each
rate of interest determined pursuant to such calculation expressed as an
annual
rate is equivalent to such rate as so determined, multiplied by the actual
number of days in the calendar year in which the same is to be ascertained
and
divided by the number of days in the Calculation Period. The principle of
deemed
reinvestment of interest with respect to any monetary Obligation relating
to the
Canadian Facility shall not apply to any interest calculation under this
Agreement. The rates of interest with respect to any monetary Obligation
relating to the Canadian Facility stipulated in this Agreement are intended
to
be nominal rates and not effective rates or yields.
2.09 Fees
.
In
addition to certain fees described in Sections
2.03(i)
and
(j):
(a) Commitment
Fee.
The
U.S. Borrower shall pay to the U.S. Administrative Agent for the account
of each
Revolving Credit Lender in accordance with its Pro Rata Share, a commitment
fee
(“U.S.
Commitment Fee”)
equal
to the Applicable Rate per annum, times
the
actual daily amount by which the aggregate U.S. Revolving Credit Commitments
exceed the sum of (A) the Outstanding Amount of U.S. Revolving Credit Loans
and
(B) the Outstanding Amount of L/C Obligations with respect to U.S. Letters
of
Credit and the Canadian Borrowers shall pay to the Canadian Administrative
Agent
for the account of each Canadian Lender in accordance with its Pro Rata Share,
a
Commitment Fee (“Canadian Commitment
Fee”
and
together with the U.S. Commitment Fee, the “Commitment
Fees”)
equal
to the Applicable Rate per annum, times
the
actual daily amount by which the aggregate Canadian Credit Commitments exceed
the sum of (A) the Outstanding Amount of Canadian Loans and (B) the Outstanding
Amount of L/C Obligations with respect to Canadian Letters of Credit.
Notwithstanding the foregoing, any Commitment Fee accrued with respect to
any of
the Commitments of a Defaulting Lender during the period prior to the time
such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by any Borrower so long as such Lender shall be a Defaulting Lender except
to
the extent that such Commitment Fee shall otherwise have been due and payable
by
such Borrower prior to such time; and provided,
however,
that no
Commitment Fees shall accrue on any of the Commitments of a Defaulting Lender
so
long as such Lender shall be a Defaulting Lender. Subject to the foregoing
restrictions, the Commitment Fees shall accrue at all times from the date
hereof
until the Maturity Date, including at any time during which one or more of
the
conditions in Article
IV
are not
met, and shall be due and payable quarterly in arrears on the last Business
Day
of each March, June, September and December, commencing with the first such
date
to occur after the Closing Date, and on the Maturity Date. The Commitment
Fees
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.
(b) Other
Fees.
(i) The
U.S. Borrower shall pay to the Arrangers and the U.S. Administrative Agent
for
their own respective accounts fees in the amounts and at the times specified
in
the Fee Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 Computation
of Interest and Fees
.
All
computations of interest for Base Rate Loans shall be made on the basis of
a
year of three hundred and sixty-five (365) or three hundred and sixty-six
(366)
days, as the case may be, and actual days elapsed. All other computations
of
fees and interest shall be made on the basis of a three hundred and sixty
(360)
day year and actual days elapsed (which results in more fees or interest,
as
applicable, being paid than if computed on the basis of a three hundred and
sixty-five (365) day year). Interest shall accrue on each Loan for the day
on
which the Loan is made, and shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid in accordance with
the
terms of this Agreement; provided
that any
Loan that is repaid on the same day on which it is made shall, subject to
Section
2.12(a),
bear
interest for one (1) day. Each determination by the applicable Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding
for
all purposes, absent manifest error.
2.11 Evidence
of Indebtedness
.
(a) The
Credit Extensions made by each Lender shall be evidenced by one or more accounts
or records maintained by such Lender and evidenced by one or more entries
in the
Register maintained by each Administrative Agent (and the U.S. Administrative
Agent shall act solely for purposes of Treasury Regulation
Section 5f.103-1(c), as agent for the U.S. Borrower), in each case in the
ordinary course of business. The accounts or records maintained by the
applicable Administrative Agent and each Lender shall be prima facie
evidence
absent manifest error of the amount of the Credit Extensions made by the
Lenders
to the applicable Borrower and the interest and payments thereon. Any failure
to
so record or any error in doing so shall not, however, limit or otherwise
affect
the obligation of any Borrower hereunder to pay any amount owing with respect
to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the applicable
Administrative Agent in respect of such matters, the accounts and records
of the
applicable Administrative Agent shall control in the absence of manifest
error.
Upon the request of any Lender made through the applicable Administrative
Agent,
the applicable Borrower or Borrower(s) shall execute and deliver to such
Lender
(through the applicable Administrative Agent) a Note payable to such Lender,
which shall evidence such Lender’s Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon
the
date, Type (if applicable), amount and maturity of its Loans and payments
with
respect thereto.
(b) In
addition to the accounts and records referred to in Section
2.11(a),
each
Lender and the applicable Administrative Agent shall maintain in accordance
with
its usual practice accounts or records and, in the case of the Administrative
Agents, entries in the applicable Register, evidencing the purchases and
sales
by such Lender of participations in Letters of Credit and Swing Line Loans.
In
the event of any conflict between the accounts and records maintained by
the
applicable Administrative Agent and the accounts and records of any Lender
in
respect of such matters, the accounts and records of the applicable
Administrative Agent shall control in the absence of manifest
error.
(c) Entries
made in good faith by the applicable Administrative Agent in the Register
pursuant to Sections
2.11(a)
and
(b),
and by
each Lender in its account or accounts pursuant to Sections
2.11(a)
and
(b),
shall
be prima
facie
evidence
of the amount of principal and interest due and payable or to become due
and
payable from the Borrowers to, in the case of the applicable Register, each
applicable Lender and, in the case of such account or accounts, such Lender,
under this Agreement and the other Loan Documents, absent manifest error;
provided
that the
failure of an Administrative Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the applicable Register or such account
or accounts shall not limit or otherwise affect the obligations of any Borrower
under this Agreement and the other Loan Documents.
2.12 Payments
Generally
.
(a) All
payments to be made by the Borrowers shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by any Borrower hereunder
shall be made to the applicable Administrative Agent, for the account of
the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Domestic Office. All payments shall be made in U.S.
Dollars, except that all payments with respect to Canadian Loans, Canadian
Swing
Line Loans and Canadian Letters of Credit denominated in Canadian Dollars
(and,
for the avoidance of doubt, Canadian Commitment Fees shall be paid in U.S.
Dollars) shall be made in Canadian Dollars not later than 2:00 p.m. (New
York
City time) on the date specified herein. The applicable Administrative Agent
will promptly distribute to each applicable Lender its Pro Rata Share (or
other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by an
Administrative Agent after 2:00 p.m. (New York City time) shall be deemed
received on the next succeeding Business Day and any applicable interest
or fee
shall continue to accrue.
(b) If
any
payment to be made by any Borrower shall come due on a day other than a Business
Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the
case
may be; provided,
however,
that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Loans to be made in the next succeeding calendar month, such payment
shall
be made on the immediately preceding Business Day.
(c) Unless
a
Borrower or any Lender has notified the applicable Administrative Agent,
prior
to the date any payment is required to be made by it to an Administrative
Agent
hereunder, that such Borrower or Lender, as the case may be, will not make
such
payment, the applicable Administrative Agent may assume that such Borrower
or
Lender, as the case may be, has timely made such payment and may (but shall
not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto. If and to the extent that such payment was
not
in fact made to the applicable Administrative Agent in immediately available
funds, then:
(i) if
the
applicable Borrower failed to make such payment, each Lender shall forthwith
on
demand repay to the applicable Administrative Agent the portion of such assumed
payment that was made available to such Lender in immediately available funds,
together with interest thereon in respect of each day from and including
the
date such amount was made available by the applicable Administrative Agent
to
such Lender to the date such amount is repaid to the applicable Administrative
Agent in immediately available funds at the Federal Funds Rate (or the Canadian
Prime Rate, in the case of payments with respect to Canadian Dollar denominated
Canadian Loans, Canadian Swing Line Loans or Canadian Letters of Credit)
from
time to time in effect or, if greater, a rate determined by the applicable
Administrative Agent in accordance with banking industry rules on interbank
compensation; and
(ii) if
any
Lender failed to make such payment, such Lender shall forthwith on demand
pay to
the applicable Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made available by the applicable Administrative Agent to the applicable
Borrower to the date such amount is recovered by the applicable Administrative
Agent (the “Compensation
Period”)
at a
rate per annum equal to the Federal Funds Rate (or the Canadian Prime Rate,
in
the case of payments with respect to Canadian Dollar denominated Canadian
Loans,
Canadian Swing Line Loans or Canadian Letters of Credit) from time to time
in
effect or, if greater, a rate determined by the applicable Administrative
Agent
in accordance with banking industry rules on interbank compensation. When
such
Lender makes payment to the applicable Administrative Agent (together with
all
accrued interest thereon), then such payment amount (excluding the amount
of any
interest which may have accrued and been paid in respect of such late payment)
shall constitute such Lender’s Loan included in the applicable Borrowing. If
such Lender does not pay such amount forthwith upon the applicable
Administrative Agent’s demand therefor, the applicable Administrative Agent may
make a demand therefor upon the applicable Borrower, and the applicable Borrower
shall pay such amount to the applicable Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal to
the
rate of interest applicable to the applicable Borrowing. Nothing herein shall
be
deemed to relieve any Lender from its obligation to fulfill its Commitment
or to
prejudice any rights which the applicable Administrative Agent or the applicable
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
A
notice
of the applicable Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this Section
2.12(c)
shall be
conclusive, absent manifest error.
(d) If
any
Lender makes available to an Administrative Agent funds for any Loan to be
made
by such Lender as provided in the foregoing provisions of this Article
II,
and
such funds are not made available to the applicable Borrower by such
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article
IV
are not
satisfied or waived in accordance with the terms hereof, such Administrative
Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(e) The
obligations of the Lenders hereunder to make Loans and to fund participations
in
Letters of Credit and Swing Line Loans are several and not joint. The failure
of
any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for
the
failure of any other Lender to so make its Loan or purchase its
participation.
(f) Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any
Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
(g) Whenever
any payment received by an Administrative Agent under this Agreement or any
of
the other Loan Documents is insufficient to pay in full all amounts due and
payable to such Administrative Agent and the applicable Lenders under or
in
respect of this Agreement and the other Loan Documents on any date, such
payment
shall be distributed by such Administrative Agent and applied by such
Administrative Agent and the Lenders in the order of priority set forth in
Section
8.03.
If an
Administrative Agent receives funds for application to the Obligations of
the
Loan Parties under or in respect of the Loan Documents under circumstances
for
which the Loan Documents do not specify the manner in which such funds are
to be
applied, such Administrative Agent shall distribute such funds to each of
the
applicable Lenders in accordance with such Lender’s Pro Rata Share of the sum of
(a) the Outstanding Amount of all applicable Loans outstanding at such time
and
(b) the Outstanding Amount of all applicable L/C Obligations outstanding
at such
time, in repayment or prepayment of such of the outstanding applicable Loans
or
other applicable Obligations then owing to such Lender.
2.13 Sharing
of Payments
.
If,
other than as expressly provided elsewhere herein, any Lender shall obtain
on
account of the Loans made by it, or the participations in L/C Obligations
or in
Swing Line Loans held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) in excess of its
ratable share (or other share contemplated hereunder) thereof, such Lender
shall
immediately (a) notify each Administrative Agent of such fact, and
(b) purchase from the other Lenders such participations in the Loans made
by them and/or such subparticipations in the participations in L/C Obligations
or Swing Line Loans held by them, as the case may be, as shall be necessary
to
cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them;
provided
that
prior to the CAM Exchange Date, each Lender shall only purchase participations
in Loans, L/C Obligations and Swing Line Loans under the Facility with respect
to which they hold a Commitment; provided,
further,
however,
that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section
10.06
(including pursuant to any settlement entered into by the purchasing Lender
in
its discretion), such purchase shall to that extent be rescinded and each
other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect
of
the total amount so recovered, without further interest thereon. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff, but subject to Section
10.09)
with
respect to such participation as fully as if such Lender were the direct
creditor of the applicable Borrower in the amount of such participation.
The
applicable Administrative Agent will keep records (which shall be conclusive
and
binding in the absence of manifest error) of participations purchased under
this
Section 2.13
and will
in each case notify the Lenders following any such purchases or repayments.
Each
Lender that purchases a participation pursuant to this Section
2.13
shall
from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though
the
purchasing Lender were the original owner of the Obligations
purchased.
2.14 Increase
in Term Commitments
.
(a) Provided
there exists no Default, upon notice to the U.S. Administrative Agent (which
shall promptly notify the Term B Lenders), the U.S. Borrower may on up to
six
(6) different occasions (in the aggregate with Section
2.15),
request additional Term B Loans (the “Incremental
Term B Loans” and
the
related commitments, the “Incremental
Term Commitments”)
in an
amount not exceeding $200,000,000; provided
that
(i) after giving effect to any such Incremental Term Commitments, the
aggregate amount of Incremental Term Commitments and increased U.S. Revolving
Credit Commitments that have been effected pursuant to this Section 2.14
and
Section 2.15,
respectively, shall not exceed $200,000,000 at any time, (ii) any such
increase shall be in an aggregate amount of $500,000 or any whole multiple
of
$100,000 in excess thereof, (iii) the Incremental Term B Loans (A) shall
rank pari passu or junior in right of payment and right of security in respect
of the Collateral with the Loans existing immediately prior thereto,
(B) other than amortization, pricing or maturity date, shall have the same
terms as Term B Loans existing immediately prior to the effectiveness of
the
applicable Incremental Facility Amendment; provided
that
(x) if the interest rate spreads relating to such new Incremental Term B
Loans exceeds the Applicable Rate for the Term B Loans (for the corresponding
pricing levels) (or any Incremental Term B Loans previously borrowed) by
more
than 0.50%, then the Applicable Rate for the Term B Loans (and any Incremental
Term B Loans previously borrowed) shall be adjusted to be equal to such interest
rate spreads minus
0.50%,
(y) the Incremental Term B Loans shall not have a final maturity date
earlier than the Maturity Date of the Term B Loans and (iv) the Incremental
Term B Loans shall not have a Weighted Average Life to Maturity that is shorter
than that of the then-remaining Weighted Average Life to Maturity of the
Term B
Loans and any previously borrowed Incremental Term B Loans. At the time of
the
sending of such notice, the U.S. Borrower (in consultation with the U.S.
Administrative Agent) shall specify the time period within which each Lender
is
requested to respond (which shall in no event be less than ten (10) Business
Days from the date of delivery of such notice to the Lenders). Each Lender
with
a Term B Loan shall notify the U.S. Administrative Agent within such time
period
whether or not it agrees to such Incremental Term Commitment and, if so,
whether
by an amount equal to, greater than, or less than its Pro Rata Share of the
total Incremental Term B Loans so requested. Any Lender not responding within
such time period shall be deemed to have declined to increase its Term
Commitment and, to the extent any Term B Lender declines to make available
its
Pro Rata share of such increase the U.S. Borrower may also invite additional
Eligible Assignees to become Lenders. The U.S. Administrative Agent shall
notify
the U.S. Borrower and each Term B Loan Lender of the Lenders’ responses to each
request made hereunder. Any Term B Lender or additional bank or financial
institution electing to make available an Incremental Term Commitment (an
“Additional
Term Lender”)
shall
become a Lender or make its Incremental Term Commitment available, as the
case
may be, under this Agreement, pursuant to an amendment (an “Incremental
Facility Amendment”)
to
this Agreement, giving effect to the modifications permitted by this
Section 2.14,
and, as
appropriate, the other Loan Documents, executed by, the U.S. Loan Parties,
each
Additional Term Lender and the U.S. Administrative Agent. An Incremental
Facility Amendment may, without the consent of any other Lenders, effect
such
amendments to this Agreement and the other Loan Documents as may be necessary
or
appropriate, in the opinion of the U.S. Administrative Agent, to effect the
provisions of this Section (including voting provisions applicable to the
Additional Term Lenders as a separate Tranche with respect to matters relating
to such Incremental Term B Loans).
(b) If
any
Incremental Term Commitments are made in accordance with this Section
2.14,
the
U.S. Administrative Agent and the U.S. Borrower shall determine the effective
date (the “Term
Commitments Increase Effective Date”)
and
the final allocation of such increase. The U.S. Administrative Agent shall
promptly notify the U.S. Borrower and the Lenders of the final allocation
of
such increase and the Term Commitments Increase Effective Date. As a condition
precedent to such increase, the U.S. Borrower shall deliver to the U.S.
Administrative Agent a certificate of each Loan Party dated as of the Term
Commitments Increase Effective Date signed by a Responsible Officer of such
Loan
Party (i) certifying and attaching (A) the resolutions adopted by such Loan
Party approving or consenting to such increase and (B) a pro forma
Compliance Certificate demonstrating that, upon after giving Pro Forma Effect
to
such increase, the Loan Parties would be in compliance with the financial
covenants set forth in Section 7.11,
and
(ii) in the case of the U.S. Borrower, certifying that, before and after
giving
effect to such increase, (A) the representations and warranties contained
in
Article
V
and the
other Loan Documents are true and correct in all material respects on and
as of
the Term Commitments Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which
case they are true and correct in all material respects as of such earlier
date,
and except that for purposes of this Section 2.14,
the
representations and warranties contained in subsections (a) and (b) of
Section 5.05
shall be
deemed to refer to the most recent statements furnished pursuant to subsections
(a) and (b), respectively, of Section
6.01,
and (B)
no Default exists.
(c) This
Section shall supersede any provisions in Section 10.01
to the
contrary.
2.15 Increase
in Revolving Credit Commitments
.
(a) Provided
there exists no Default, upon notice to the U.S. Administrative Agent (which
shall promptly notify the Lenders), the U.S. Borrower may on up to six (6)
different occasions (in the aggregate with Section
2.14)
request
an increase in the U.S. Revolving Credit Commitments on the same terms as
the
U.S. Revolving Credit Commitments on the Closing Date by an amount not exceeding
$100,000,000; provided
that
(i) after giving effect to any such increase in the U.S. Revolving Credit
Commitments, the aggregate amount of increased Commitments that have been
effected pursuant to Section 2.14
and this
Section 2.15
shall
not exceed $200,000,000 at any time and (ii) any such increase shall be in
an aggregate amount of $500,000 or any whole multiple of $100,000 in excess
thereof. At the time of the sending of such notice, the U.S. Borrower (in
consultation with the U.S. Administrative Agent) shall specify the time period
within which each Lender is requested to respond (which shall in no event
be
less than ten (10) Business Days from the date of delivery of such notice
to the
Lenders). Each Lender with a U.S. Revolving Loan Commitment shall notify
the
U.S. Administrative Agent within such time period whether or not it agrees
to
increase its U.S. Revolving Credit Commitment and, if so, whether by an amount
equal to, greater than, or less than its Pro Rata Share of such requested
increase. Any Lender not responding within such time period shall be deemed
to
have declined to increase its U.S. Revolving Credit Commitment and, to the
extent any such Lender declines to accept its Pro Rata Share of such increase,
the U.S. Borrower may also invite additional Eligible Assignees to become
U.S.
Revolving Credit Lenders. Any new U.S. Revolving Credit Lender shall become
a
Lender hereunder pursuant to a joinder agreement in form and substance
reasonably satisfactory to the U.S. Administrative Agent and its counsel,
which
joinder shall not require the consent of any Lenders other than those
participating in the incremental Revolving Credit Commitments. The U.S.
Administrative Agent shall notify the U.S. Borrower and each Lender of the
Lenders’ responses to each request made hereunder.
(b) If
the
U.S. Revolving Credit Commitments are increased in accordance with this
Section
2.15,
the
U.S. Administrative Agent and the U.S. Borrower shall determine the effective
date (the “Revolving
Credit Commitments Increase Effective Date”)
and
the final allocation of such increase. The U.S. Administrative Agent shall
promptly notify the U.S. Borrower and the Lenders of the final allocation
of
such increase and the Revolving Credit Commitments Increase Effective Date.
As a
condition precedent to such increase, the U.S. Borrower shall deliver to
the
U.S. Administrative Agent a certificate of each Loan Party dated as of the
Revolving Credit Commitments Increase Effective Date signed by a Responsible
Officer of such Loan Party (i) certifying and attaching (A) the
resolutions adopted by such Loan Party approving or consenting to such increase
and (B) a pro forma Compliance Certificate demonstrating that, after giving
pro forma effect to such increase, the Loan Parties would be in compliance
with
the financial covenants set forth in Section 7.11,
and
(ii) in the case of the U.S. Borrower, certifying that, before and after
giving effect to such increase, (A) the representations and warranties
contained in Article
V
and the
other Loan Documents are true and correct in all material respects on and
as of
the Revolving Credit Commitments Increase Effective Date, except to the extent
that such representations and warranties specifically refer to an earlier
date,
in which case they are true and correct in all material respects as of such
earlier date, and except that for purposes of this Section
2.15,
the
representations and warranties contained in subsections (a) and (b) of
Section
5.05
shall be
deemed to refer to the most recent statements furnished pursuant to subsections
(a) and (b), respectively, of Section
6.01,
and (B)
no Default exists. On each Revolving Credit Commitments Increase Effective
Date,
each of the Lenders having a U.S. Revolving Credit Commitment prior to such
Revolving Credit Commitments Increase Effective Date (the “Pre-Increase
Revolving Lenders”)
shall
assign to any Lender which is acquiring a new or additional Revolving Credit
Commitment on the Revolving Credit Commitments Increase Effective Date (the
“Post-Increase
Revolving Lenders”),
and
such Post-Increase Revolving Lenders shall purchase from each Pre-Increase
Revolving Lenders, at the principal amount thereof, such interests in the
U.S.
Revolving Loans and participation interests in U.S. L/C Obligations and U.S.
Swing Line Loans outstanding on such Revolving Credit Commitments Increase
Effective Date as shall be necessary in order that, after giving effect to
all
such assignments and purchases, such U.S. Revolving Loans and participation
interests in U.S. L/C Obligations and U.S. Swing Line Loans will be held
by
Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably
in
accordance with their U.S. Revolving Credit Commitments after giving effect
to
such increased U.S. Revolving Credit Commitments.
(c) This
Section
2.15
shall
supersede any provisions in Section 10.01
to the
contrary.
(d) For
the
avoidance of doubt, the First Increased Revolving Credit Commitments shall
not
be deemed to have been incurred pursuant to this Section
2.15
for any
purpose under this Agreement.
2.16 Canadian
BAs
.
(a) Not
in
limitation of any other provision of this Agreement, but in furtherance thereof,
the provisions of this Section
2.16
shall
further apply to the acceptance, rolling over and conversion of Canadian
BAs.
(b) If
the
Canadian Administrative Agent receives a Committed Loan Notice from a Canadian
Borrower requesting a Borrowing or a rollover of or a conversion into a Canadian
Loan by way of Canadian BAs, the Canadian Administrative Agent shall notify
each
of the applicable Canadian Lenders, prior to 11:00 a.m., New York City time,
on
the second Business Day prior to the date of such Credit Extension, of such
request and of each such Canadian Lender’s Pro Rata Share of such Canadian Loan.
Each applicable Canadian Lender shall, not later than 11:00 a.m., New York
City
time, on the date of each Canadian Loan by way of Canadian BAs (whether in
respect of the Credit Extension or pursuant to a rollover or conversion),
accept
drafts of a Canadian Borrower which are presented to it for acceptance and
which
have an aggregate face amount equal to such Canadian Lender’s Pro Rata Share of
the total Credit Extension being made available by way of Canadian BAs on
such
date. With respect to each drawdown of, rollover of or conversion into Canadian
BAs, each such Canadian Lender shall not be required to accept any draft
which
has a face amount which is not in an integral multiple of Cdn$100,000. It
shall
be the responsibility of each Canadian Lender to arrange, in accordance with
normal market practice, for the sale on the date of each Canadian Loan by
way of
Canadian BAs of the Canadian BAs issued by the applicable Canadian Borrower
and
to be accepted by that Canadian Lender, failing which such Canadian Lender
shall purchase such Canadian BAs in accordance with normal market practice
at or
about 10:00 a.m. (New York City time) on the date of such Canadian Loan (and
for
greater certainty, all such references in this Agreement to the “acceptance” of
Canadian BAs shall be deemed to include the “purchase” of Canadian BAs, as the
context may require). Concurrent with the acceptance of drafts of a Canadian
Borrower as aforesaid, each applicable Canadian Lender shall make available
to
the Canadian Administrative Agent the aggregate Notional BA Proceeds with
respect to the Canadian BAs being accepted and sold or purchased by such
Canadian Lender (net of the aggregate amount required to repay such Canadian
Lender’s outstanding Canadian BAs that are maturing on such date and/or Canadian
Prime Rate Loans of such Canadian Lender that are being converted on such
date).
The Canadian Administrative Agent shall, upon fulfillment by a Canadian Borrower
of the applicable terms and conditions set forth in Article
IV,
make
such amount, if any, received from the applicable Canadian Lenders available
to
a Canadian Borrower on the date of such Credit Extension by crediting the
designated account of the Canadian Borrower. Each Canadian BA to be accepted
by
any Canadian Lender shall be accepted by such Canadian Lender at its Domestic
Office located in Canada.
(c) To
facilitate the acceptance of Canadian BAs hereunder, each Canadian Borrower
hereby appoints each Canadian Lender as its attorney to sign and endorse
on its
behalf, as and when considered necessary by the Canadian Lender, an appropriate
number of drafts in the form prescribed by that Canadian Lender. Each Canadian
Lender may, at its option, execute any draft in handwriting or by the facsimile
or mechanical signature of any of its authorized officers, and the Canadian
Lenders are hereby authorized to accept or pay, as the case may be, any draft
of
a Canadian Borrower which purports to bear such a signature notwithstanding
that
any such individual has ceased to be an authorized officer of the Canadian
Lender, in which case any such draft or Canadian BA shall be as valid as
if he
or she were an authorized officer at the date of issue of the draft or Canadian
BA. Any drafts or Canadian BA signed by a Canadian Lender as attorney for
a
Canadian Borrower, whether signed in handwriting or by the facsimile or
mechanical signature of an authorized officer of a Canadian Lender, may be
dealt
with by the Canadian Administrative Agent or any Canadian Lender to all intents
and purposes and shall bind the Canadian Borrower as if duly signed and issued
by a Canadian Borrower. The receipt by the Canadian Administrative Agent
of a
request for a Borrowing by way of Canadian BAs shall be each applicable Canadian
Lender’s sufficient authority to execute, and each applicable Canadian Lender
shall, subject to the terms and conditions of this Agreement, execute drafts
in
accordance with such request and the advice of the Canadian Revolving
Administrative Agent given pursuant to this Section
2.16
and the
drafts so executed shall thereupon be deemed to have been presented for
acceptance.
(d) Each
Canadian Borrower and each applicable Canadian Lender hereby acknowledge
and
agree that from time to time certain Canadian Lenders may not be authorized
to
or may, as a matter of general corporate policy, elect not to accept Canadian
BA
drafts, and the Canadian Borrower and each applicable Canadian Lender agrees
that any such Canadian Lender may purchase Acceptance Notes of a Canadian
Borrower in accordance with the provisions of Section
2.16(e)
in lieu
of accepting Canadian BAs for its account.
(e) In
the
event that any Canadian Lender described in Section
2.16(d)
above
is unable to, or elects as a matter of general corporate policy not to, accept
Canadian BAs hereunder, such Canadian Lender shall not accept Canadian BAs
hereunder, but rather, if a Canadian Borrower requests the acceptance of
such
Canadian BAs, such Canadian Borrower shall deliver to such Canadian Lender
non-interest bearing promissory notes (each, an “Acceptance
Note”)
of
such Canadian Borrower, substantially in the form of Exhibit N
to the
Original Credit Agreement, having the same maturity as the Canadian BAs that
would otherwise be accepted by such Canadian Lender and in an aggregate
principal amount equal to the undiscounted face amount of such Canadian BAs.
Each such Canadian Lender hereby agrees to purchase each Acceptance Note
from
any Canadian Borrower at a purchase price equal to the Notional BA Proceeds
for
a Lender which would have been applicable if a Canadian BA draft had been
accepted by such Lender and such Acceptance Notes shall be governed by the
provisions of this Article
II
as if
they were Canadian BAs. Each
Canadian Borrower and each applicable Canadian Lender hereby acknowledge
and
agree that from time to time certain Canadian Lenders may elect not
to receive any Acceptance Notes, and each Canadian Borrower and each
applicable Canadian Lender agree that with respect to any such Canadian
Lender, in lieu of receiving Acceptance Notes, the applicable Canadian
Loan may be evidenced by a loan account which such Canadian Lender shall
maintain in its name, and in such event such loan account shall be entitled
to
all the benefits of Acceptance Notes.
(f) On
the
date of maturity of each Canadian BA, the applicable Canadian Borrower shall
pay
to the Canadian Administrative Agent, for the account of the holder of such
Canadian BA, Canadian Dollars in an amount equal to the face amount of such
Canadian BA, provided that the applicable Canadian Borrower may, at its option,
so reimburse the applicable Canadian Lenders, in whole or in part, by delivering
to the Canadian Administrative Agent a Committed Loan Notice contemplated
in
Section
2.02(g).
The
obligation of the applicable Canadian Borrower to make such payment shall
not be
prejudiced by the fact that the holder of any such Canadian BA is the Canadian
Lender that accepted such Canadian BA. No days of grace shall be claimed
by the
Canadian Borrower for the payment at maturity of any Canadian BA. If the
applicable Canadian Borrower does not make such payment and has not given
such
conversion notice, the amount of such required payment shall be deemed to
be a
Canadian Prime Rate Loan made to the applicable Canadian Borrower by the
Canadian Lenders that accepted such Canadian BA or purchased such Acceptance
Note. The Canadian Borrowers hereby confirm the application of the proceeds
of
such Canadian Prime Rate Loan in payment of the liability of such Canadian
Borrower with respect to the related Canadian BA or Acceptance
Note.
2.17 Additional
Canadian Borrowers
.
The
U.S. Borrower may, at its sole option, elect to cause any Canadian Subsidiary
of
the U.S. Borrower to become a Canadian Borrower hereunder by executing and
delivering to the U.S. Administrative Agent (in each case to the extent not
previously executed and delivered by such Canadian Subsidiary) a joinder
agreement to this Agreement, the Canadian Guaranty and the applicable Collateral
Documents, in each case, in form and substance satisfactory to the Canadian
Administrative Agent, together with such customary opinions and other documents
as the Canadian Administrative Agent may reasonably request.
ARTICLE
III
TAXES,
INCREASED COSTS PROTECTION AND ILLEGALITY
3.01 Taxes
.
(a) Except
as
provided in this Section
3.01
or as
otherwise expressly provided in this Agreement, any and all payments by the
Borrowers to or for the account of any Agent or any Lender under any Loan
Document shall be made free and clear of and without reduction for or on
account
of any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with respect thereto,
excluding,
in the
case of each Agent and each Lender, taxes imposed on or measured by its net
income (including branch profits), and capital and franchise (and similar)
taxes
imposed on it in lieu of net income taxes, by the jurisdiction (or any political
subdivision thereof) under the Laws of which such Agent or such Lender, as
the
case may be, is organized or maintains a lending office, and all liabilities
(including additions to tax, penalties and interest) with respect thereto
(all
such non-excluded taxes, duties, levies, imposts, deductions, assessments,
fees,
withholdings or similar charges, and liabilities being hereinafter referred
to
as “Taxes”).
If
the Borrowers shall be required by any Laws to deduct or withhold any Taxes
from
or in respect of any sum payable under any Loan Document to any Agent or
any
Lender, (i) the sum payable shall be increased as necessary so that after
making
all required deductions or withholdings (including amounts applicable to
additional sums payable under this Section
3.01),
each
of such Agent and such Lender receives an amount equal to the sum it would
have
received had no such deductions or withholdings been made, (ii) the Borrowers
shall make such deductions, (iii) the Borrowers shall pay the full amount
deducted or withheld to the relevant taxation authority or other authority
in
accordance with applicable Laws, and (iv) within thirty (30) days after the
date
of such payment, the Borrowers shall furnish to such Agent or Lender (as
the
case may be) the original or a certified copy of a receipt evidencing payment
thereof to the extent such a receipt is issued therefor, or other written
proof
of payment thereof that is reasonably satisfactory to the applicable
Administrative Agent.
(b) In
addition, each Borrower agrees to pay any and all present or future stamp,
court
or documentary taxes and any other excise, sales, goods and services, property,
intangible or mortgage recording taxes or charges or similar levies which
arise
from any payment made under any Loan Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to
the
exercise by an Agent or a Lender of its rights under, any Loan Document
(hereinafter referred to as “Other
Taxes”).
(c) Each
Borrower agrees to indemnify each Agent and each Lender for (i) the full
amount
of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section
3.01)
paid by
such Agent or such Lender, and (ii) any liability (including additions to
tax,
penalties, interest and expenses) arising therefrom or with respect thereto,
in
each case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided
such
Agent or Lender, as the case may be, provides applicable Borrower with a
written
statement thereof setting forth in reasonable detail the basis and calculation
of such amounts. Payment under this Section
3.01(c)
shall be
made within thirty (30) days after the date such Lender or such Agent makes
a
written demand therefor.
(d) No
Borrower shall be required pursuant to this Section
3.01
to pay
any additional amount to, or to indemnify, any Lender or Agent, as the case
may
be, to the extent that such Lender or such Agent becomes subject to Taxes
subsequent to the Closing Date (or, if later, the date such Lender or Agent
becomes a party to this Agreement) as a result of a change in the place of
organization of such Lender or Agent or a change in the lending office of
such
Lender, except to the extent that any such change is requested or required
by a
Borrower (and provided
that
nothing in this clause
(d)
shall be
construed as relieving any Borrower from any obligation to make such payments
or
indemnification (i) in accordance with Section
3.04
in the
event of a change that is a change in Law and (ii) in accordance with the
other
provisions of this Section
3.01
in
connection with an assignment made pursuant to a CAM Exchange).
(e) If
the
forms provided by a Lender or an Agent pursuant to Section 10.15(a)
at the
time such Lender or such Agent, as the case may be, first becomes a party
to
this Agreement (or first becomes a U.S. Lender other than as a result of
a CAM
Exchange) indicate a United States withholding tax rate in excess of zero,
United States withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender or Agent, as the case may be, provides
the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods
governed by such forms; provided,
however,
that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under clause (a)
of this
Section
3.01
in
respect of United States withholding tax with respect to interest paid at
such
date, then, to such extent, the term Taxes shall include (in addition to
United
States withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) United States withholding tax, if any, applicable
with respect to the Lender assignee on such date.
(f) Notwithstanding
any provision of this Section
3.01
(except
the last sentence of this Section
3.01(f)),
no
Canadian Loan Party shall have any obligation to gross-up, pay or indemnify
any
Secured Party (including, for such purpose, any L/C Issuer, Participant or
SPC),
their successors and assigns, that is not a Canadian Person for Taxes imposed
pursuant to Part XIII of the Income
Tax Act
(Canada)
(or any successor provision thereto) as a result of such Secured Party not
being
a Canadian Person, unless such Canadian Loan Party otherwise agrees in writing
to do so, and each Canadian Loan Party shall deduct or withhold any such
Taxes
required by any Laws to be deducted or withheld by it. Each Secured Party
(including any L/C Issuer, Participant or SPC) shall, upon request by a Canadian
Loan Party, confirm to the Canadian Loan Party if it is or is not a Canadian
Person and indemnify each Canadian Loan Party in respect of any inaccuracy
of
such confirmation. This Section
3.01(f)
shall
not apply to any Secured Party (including any L/C Issuer, Participant or
SPC)
which becomes a Secured Party (including any L/C Issuer, Participant or SPC)
as
a result of an assignment made in connection with a CAM Exchange.
(g) If
any
Lender or Agent determines that it has received a refund or overpayment credit
in respect of any Taxes or Other Taxes as to which indemnification or additional
amounts have been paid to it by the Borrowers pursuant to this Section 3.01,
it
shall promptly remit the amount of such refund or credit (including any interest
included in such refund or credit) to the applicable Borrower (to
the
extent that it reasonably determines that it can do so without prejudice
to the
retention of the refund or credit),
net of
all out-of-pocket expenses of the Lender or Agent, as the case may be;
provided,
however,
that
the applicable Borrower, upon the request of the Lender or Agent, as the
case
may be, agrees promptly to return such refund or credit to such party in
the
event such party is required to repay such refund or credit to the relevant
taxing authority. Such Lender or Agent, as the case may be, shall, at the
applicable Borrower’s request, provide the applicable Borrower with a copy of
any notice of assessment or other evidence of the requirement to repay such
refund or credit received from the relevant taxing authority (provided
that
such Lender or Agent may delete any information therein that such Lender
or
Agent deems confidential). Nothing
herein contained shall interfere with the right of a Lender or Agent to arrange
its tax affairs in whatever manner it thinks fit nor oblige any Lender or
Agent
to claim any tax refund or to disclose any information relating to its tax
affairs or any computations in respect thereof or require any Lender or Agent
to
do anything that would prejudice its ability to benefit from any other refunds,
credits, reliefs, remissions or repayments to which it may be
entitled.
(h) Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section
3.01(a)
or
(c)
with
respect to such Lender it will, if requested by any Borrower, use commercially
reasonable efforts (subject to such Lender’s overall internal policies of
general application and legal and regulatory restrictions) to avoid the
consequences of such event, including to designate another Lending Office
for
any Loan or Letter of Credit affected by such event; provided
that
such efforts are made on terms that, in the reasonable judgment of such Lender,
cause such Lender and its Lending Office(s) to suffer no material economic,
legal or regulatory disadvantage; and provided,
further,
that
nothing in this Section
3.01(h)
shall
affect or postpone any of the Obligations of any Borrower or the rights of
such
Lender pursuant to Sections
3.01(a)
and
(c).
3.02 Illegality
.
If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
or charge interest rates based upon the Eurodollar Rate, then, on notice
thereof
by such Lender to the U.S. Borrower through the applicable Administrative
Agent,
any obligation of such Lender to make or continue Eurodollar Rate Loans or
to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such
Lender notifies the applicable Administrative Agent and the applicable Borrower
that the circumstances giving rise to such determination no longer exist.
Upon
receipt of such notice, the applicable Borrower shall, upon demand from such
Lender (with a copy to the applicable Administrative Agent), prepay or, if
applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate
Loans,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the applicable
Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation
will avoid the need for such notice and will not, in the good faith judgment
of
such Lender, otherwise be materially disadvantageous to such
Lender.
3.03 Inability
To Determine Rates
.
(a) If
the
applicable Requisite Class Lenders determine that for any reason adequate
and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan,
or
that the Eurodollar Rate for any requested Interest Period with respect to
a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the
cost to
such Lenders of funding such Loan, or that Dollar deposits are not being
offered
to banks in the London interbank eurodollar market for the applicable amount
and
the Interest Period of such Eurodollar Rate Loan, the applicable Administrative
Agent will promptly so notify the applicable Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate
Loans shall be suspended until the applicable Administrative Agent (upon
the
instruction of the applicable Requisite Class Lenders) revokes such notice.
Upon
receipt of such notice, the applicable Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans
or,
failing that, will be deemed to have converted such request into a request
for a
Borrowing of Base Rate Loans in the amount specified therein.
(b) If
the
Canadian Administrative Agent shall have determined in good faith that by
reason
of circumstances affecting the Canadian money market, there is no market
for
Canadian BAs, then the right of the Canadian Borrowers to request the acceptance
of Canadian BAs and the acceptance thereof 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
Borrowers.
3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
Loans
.
(a) If
any
Lender determines that as a result of the introduction of or any change in
or in
the interpretation of any Law, in each case after the date hereof, or such
Lender’s compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or issuing or participating in Letters of Credit or accepting and
purchasing or selling any Canadian BA, or a reduction in the amount received
or
receivable by such Lender in connection with any of the foregoing (excluding
for
purposes of this Section
3.04(a)
any such
increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes
(as to which Section
3.01
shall
govern), (ii) changes in the basis of taxation of net income or gross income
(including branch profits), capital and franchise (and similar) taxes imposed
in
lieu of net income taxes, by the United States or any foreign jurisdiction
or
any political subdivision of either thereof under the Laws of which such
Lender
is organized or maintains a lending office, and (iii) reserve requirements
contemplated by Section
3.04(c)),
then
from time to time upon demand of such Lender setting forth in reasonable
detail
such increased costs (with a copy of such demand to the applicable
Administrative Agent given in accordance with Section 3.06),
the
U.S. Borrower (in the case of any payment to any U.S. Lender) or the Canadian
Borrowers (in the case of any payment to a Canadian Lender) shall pay to
such
Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.
(b) If
any
Lender determines that the introduction of any Law regarding capital adequacy,
reserve requirements or similar requirements or any change therein or in
the
interpretation thereof, in each case after the date hereof, or compliance
by
such Lender (or its Lending Office) therewith, has the effect of reducing
the
rate of return on the capital of such Lender or any corporation controlling
such
Lender as a consequence of such Lender’s obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender’s
desired return on capital), then from time to time upon demand of such Lender
setting forth in reasonable detail the charge and the calculation of such
reduced rate of return (with a copy of such demand to the applicable
Administrative Agent given in accordance with Section 3.06),
the
U.S. Borrower (in the case of any payment to any U.S. Lender) or the Canadian
Borrowers (in the case of any payment to a Canadian Lender) shall pay to
such
Lender such additional amounts as will compensate such Lender for such
reduction.
(c) The
U.S.
Borrower (in the case of any payment to any U.S. Lender) or the Canadian
Borrowers (in the case of any payment to a Canadian Lender) shall pay to
each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
funds
or deposits (currently known as “Eurocurrency
liabilities”),
additional interest on the unpaid principal amount of each Eurodollar Rate
Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender
(as determined by such Lender in good faith, which determination shall be
conclusive in the absence of manifest error), which shall be due and payable
on
each date on which interest is payable on such Loan; provided
the
applicable Borrower shall have received at least fifteen (15) days’ prior notice
(with a copy to the applicable Administrative Agent) of such additional interest
from such Lender. If a Lender fails to give notice fifteen (15) days prior
to
the relevant Interest Payment Date, such additional interest shall be due
and
payable fifteen (15) days from receipt of such notice.
(d) No
Borrower shall be required to compensate a Lender pursuant to Section
3.04(a),
(b),
(c)
or
(d)
for any
such increased cost or reduction incurred more than one hundred eighty (180)
days prior to the date that such Lender demands, or notifies such Borrower
of
its intention to demand, compensation therefor; provided
that, if
the circumstance giving rise to such increased cost or reduction is retroactive,
then such 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
(e) If
any
Lender requests compensation under this Section
3.04,
then
such Lender will, if requested by the U.S. Borrower, use commercially reasonable
efforts to designate another Lending Office for any Loan or Letter of Credit
affected by such event; provided
that
such efforts are made on terms that, in the reasonable judgment of such Lender,
do not cause such Lender and its Lending Office(s) to suffer to material
economic, legal or regulatory disadvantage, and provided further
that
nothing in this Section
3.04(e)
shall
affect or postpone any of the Obligations of any Borrower or the rights of
such
Lender pursuant to Section
3.04(a),
(b)
or
(c).
3.05 Funding
Losses
. Upon
demand of any Lender (with a copy to the U.S.
Administrative
Agent) from time to time, the U.S.
Borrower
shall promptly compensate such Lender for and hold such Lender harmless from
any
loss, cost or expense incurred by it as a result of:
(a) any
continuation, conversion, payment or prepayment of any Loan other than a
Base
Rate Loan on a day other than the last day of the Interest Period for such
Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise); or
(b) any
failure by the U.S. Borrower (for a reason other than the failure of such
Lender
to make a Loan) to prepay, borrow, continue or convert any Loan other than
a
Base Rate Loan on the date or in the amount notified by the U.S.
Borrower;
including
any
loss
or
expense arising from the liquidation or reemployment of funds obtained by
it to
maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained.
For
purposes of calculating amounts payable by the U.S. Borrower to the Lenders
under this Section
3.05,
each
Lender
shall be
deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London
interbank eurodollar market for a comparable amount and for a comparable
period,
whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Matters
Applicable to All Requests for Compensation
.
(a) A
certificate of any Agent or any Lender claiming compensation under this
Article
III
and
setting forth the additional amount or amounts to be paid to it hereunder
shall
be conclusive in the absence of manifest error. In determining such amount,
such
Agent or such Lender may use any reasonable averaging and attribution
methods.
(b) With
respect to any Lender’s claim for compensation under Section
3.01,
3.02,
3.03
or
3.04,
no
Borrower shall be required to compensate such Lender for any amount incurred
more than one hundred eighty (180) days prior to the date that such Lender
notifies such Borrower of the event that gives rise to such claim; provided
that, if
the circumstances giving rise to such claim are retroactive, then such 180-day
period shall be extended to include the period of retroactive effect thereof.
If
any
Lender requests compensation by any Borrower under Section 3.04,
such
Borrower may, by notice to such Lender (with a copy to the applicable
Administrative Agent), suspend the obligation of such Lender to make or continue
from one Interest Period to another Eurodollar Rate Loans, or to convert
Base
Rate Loans into Eurodollar Rate Loans, until the event or condition giving
rise
to such request ceases to be in effect (in which case the provisions of
Section
3.06(c)
shall be
applicable); provided
that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(c) If
the
obligation of any Lender to make or continue
from one Interest Period to another
any
Eurodollar Rate Loan, or to convert Base Rate Loans into Eurodollar Rate
Loans
shall be suspended pursuant to Section
3.06(b)
hereof,
such Lender’s Eurodollar Rate Loans shall be automatically converted into Base
Rate Loans on the last day(s) of the then current Interest Period(s) for
such
Eurodollar Rate Loans (or, in the case of an immediate conversion required
by
Section
3.02,
on such
earlier date as required by Law) and, unless and until such Lender gives
notice
as provided below that the circumstances specified in Section
3.01,
3.02,
3.03
or
3.04
hereof
that gave rise to such conversion no longer exist:
(i) to
the
extent that such Lender’s Eurodollar Rate Loans have been so converted, all
payments and prepayments of principal that would otherwise be applied to
such
Lender’s Eurodollar Rate Loans shall be applied instead to its Base Rate Loans;
and
(ii) all
Loans
that would otherwise be made or continued
from one Interest Period to another
by such
Lender as Eurodollar Rate Loans shall be made or continued instead as Base
Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be converted
into Eurodollar Rate Loans shall remain as Base Rate Loans.
(d) If
any
Lender gives notice to any Borrower (with a copy to the Agent) that the
circumstances specified in Section
3.01,
3.02,
3.03
or
3.04
hereof
that gave rise to the conversion of such Lender’s Eurodollar Rate Loans pursuant
to this Section
3.06
no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Rate Loans made by other Lenders
are
outstanding, such Lender’s Base Rate Loans shall be automatically converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Rate Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Eurodollar Rate Loans and
by such
Lender are held pro rata (as to principal amounts, interest rate basis, and
Interest Periods) in accordance with their respective Commitments.
3.07 Replacement
of Lenders Under Certain Circumstances
.
(a) If
at any
time (i) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section
3.01
or
3.04
as a
result of any condition described in such Sections or any Lender ceases to
make
Eurodollar Rate Loans as a result of any condition described in Section 3.02
or
3.03,
or (ii)
any Lender becomes a Defaulting Lender, then the applicable Borrower may,
on ten
(10) Business Days’ prior written notice to the applicable Administrative Agent
and such Lender, either (i) replace such Lender by causing such Lender to
(and such Lender shall be obligated to) assign pursuant to Section 10.07(b)
(with
the assignment fee to be paid by the applicable Borrower in such instance)
all
of its rights and obligations under this Agreement to one or more Eligible
Assignees; provided
that no
Administrative Agent or Lender shall have any obligation to such Borrower
to
find a replacement Lender or other such Person or (ii) terminate the
Commitment of such Lender and repay all obligations of such Borrower owing
to
such Lender relating to the Loans and participations held by such Lender
as of
such termination date.
(b) Any
Lender being replaced pursuant to Section
3.07(a)
above
shall (i) execute and deliver an Assignment and Assumption with respect to
such Lender’s Commitment and outstanding Loans and participations in L/C
Obligations and Swing Line Loans, and (ii) deliver any Notes evidencing
such Loans to the applicable Borrower(s) or applicable Administrative Agent.
Pursuant to such Assignment and Assumption, (i) the assignee Lender shall
acquire all or a portion, as the case may be, of the assigning Lender’s
Commitment and outstanding Loans and participations in L/C Obligations and
Swing
Line Loans, (ii) all obligations of the applicable Borrower(s) owing to the
assigning Lender relating to the Loans and participations so assigned shall
be
paid in full by the assignee Lender to such assigning Lender concurrently
with
such assignment and assumption and (iii) upon such payment and, if so
requested by the assignee Lender, delivery to the assignee Lender of the
appropriate Note or Notes executed by the applicable Borrower or Borrowers,
the
assignee Lender shall become a Lender hereunder and the assigning Lender
shall
cease to constitute a Lender hereunder with respect to such assigned Loans,
Commitments and participations, except with respect to indemnification
provisions under this Agreement, which shall survive as to such assigning
Lender.
(c) Notwithstanding
anything to the contrary contained above, (i) no Lender that acts as an L/C
Issuer may be replaced hereunder at any time that it has any Letter of Credit
outstanding hereunder unless arrangements satisfactory to such L/C Issuer
(including the furnishing of a back-up standby letter of credit in form and
substance, and issued by an issuer reasonably satisfactory to such L/C Issuer
or
the depositing of cash collateral into a cash collateral account in amounts
and
pursuant to arrangements reasonably satisfactory to such L/C Issuer) have
been
made with respect to such outstanding Letter of Credit and (ii) the Lenders
that
act as the Administrative Agents may not be replaced hereunder except in
accordance with the terms of Section
9.09.
3.08 Survival
.
All of
the Borrowers’ obligations under this Article
III
shall
survive termination of the Aggregate Commitments and repayment of all other
Obligations hereunder.
ARTICLE
IV
CONDITIONS
PRECEDENT TO EFFECTIVENESS
AND TO CREDIT EXTENSIONS
The
obligations of each Lender to make its initial Credit Extension under the
Original Credit Agreement are set forth in Section
4.01
of the
Original Credit Agreement.
4.01 Conditions
to
Effectiveness
(a) .
This
Agreement and the First Increased Revolving Credit Commitment shall become
effective when each of the conditions set forth below shall have been
satisfied:
(i) The
U.S.
Administrative Agent shall have received from each Loan Party, either (x)
a
counterpart of this Agreement signed on behalf of such party or (y) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Amendment) that such party
has
signed a counterpart of this Agreement;
(ii) The
U.S.
Administrative Agent shall have received signed counterparts (which need
not be
originals) of a consent to this Agreement from Lenders under the Original
Credit
Agreement constituting the Required Lenders under the Original Credit Agreement;
(iii) All
corporate and other proceedings taken or to be taken in connection with this
Agreement and all documents
incidental thereto, whether or not referred to herein, shall be satisfactory
in
form and substance to the Administrative Agent; and
(iv) The
U.S.
Administrative Agent shall have received an officer’s certificate from a duly
authorized officer of the U.S. Borrower stating that:
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(x)
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the
representations and warranties of each Borrower and each other
Loan Party
contained in Article
V
of
the Original Credit Agreement (immediately prior to the effectiveness
of
this Agreement), Article
V
of
this Agreement (immediately after the effectiveness of this Agreement)
or
any other Loan Document are true and correct in all material respects
on
and as of the Restatement Effective Date, except to the extent
that such
representations and warranties specifically refer to an earlier
date, in
which case they shall be true and correct in all material respects
as of
such earlier date; and
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|
(y)
|
immediately
after the effectiveness of this Agreement, no Default or Event
of Default
has occurred and is continuing.
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(v) The
U.S.
Administrative Agent shall have received from First Revolving Credit Commitment
Increase Lenders having First Increased Revolving Credit Commitments signed
copies of First Revolving Credit Commitment Increase Lender Addendum signed
by
the applicable First Revolving Credit Commitment Increase Lender, the U.S.
Administrative Agent and the U.S. Borrower for First Increased Revolving
Credit
Commitments of $100,000,000;
(vi) the
U.S.
Borrower shall cause the applicable U.S. Loan Parties to deliver the following
items to the U.S. Administrative Agent:
(A) with
respect to each Mortgage encumbering any Real Property, a mortgage amendment
(a
“Mortgage
Amendment”)
duly
executed and acknowledged by the applicable Loan Party, and in form for
recording in the recording office where each such Mortgage was recorded,
together with such certificates, affidavits, questionnaires or returns as
shall
be required in connection with the recording or filing thereof under applicable
law, in each case in form and substance reasonably satisfactory to the U.S.
Administrative Agent;
(B) with
respect to each Mortgage Amendment, an endorsement with respect to the existing
mortgage title insurance policy (collectively, the “Mortgage
Policy”)
relating to the Mortgage encumbering such Real Property assuring the U.S.
Administrative Agent that the Mortgage, as amended by the Mortgage Amendment
is
a valid and subsisting lien on such Real Property in favor of the U.S.
Administrative Agent for the benefit of the Secured Parties free and clear
of
all defects and encumbrances and liens except Permitted Encumbrances and
Permitted Liens (as defined in the applicable Mortgage), and such Mortgage
Policy shall otherwise be in form and substance reasonably satisfactory to
the
U.S. Administrative Agent; and
(C) with
respect to each Mortgage Amendment, opinions of local counsel to the Loan
Parties, which opinions (x) shall be addressed to the U.S. Administrative
Agent and each of the Lenders, (y) shall cover the enforceability of the
respective Mortgage as amended by the Mortgage Amendment and such other matters
incident to the transactions contemplated herein as the U.S. Administrative
Agent may reasonably request and (z) shall be in form and substance
reasonably satisfactory to the U.S. Administrative Agent;
(vii) The
Administrative Agent shall have received a legal opinion, in form and substance
reasonably satisfactory to the Administrative Agent, from Ropes & Xxxx LLP,
counsel to the U.S. Borrower;
(viii) The
representations and warranties of each Borrower and each other Loan Party
contained in Article
V
or any
other Loan Document shall be true and correct in all material respects on
and as
of the Restatement Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which
case they shall be true and correct in all material respects as of such earlier
date;
(ix) No
Default or Event of Default has occurred and is continuing;
(x) Nortek
International Holdings B.V. shall have pledged the Equity Interests of Broan
Nutone Canada Inc. to the Administrative Agent; and
(xi) The
U.S.
Administrative Agent shall have received the U.S. Borrower’s audited
consolidated financial statements for the year ended
December 31, 2005.
4.02 Conditions
to All Credit Extensions
.
The
obligation of each Lender to honor any Request for Credit Extension (other
than
a Committed Loan Notice requesting only a conversion of Loans to the other
Type,
or a continuation of Eurodollar Rate Loans or the continuation or conversion
of
a Canadian BA) is subject to the following conditions precedent:
(a) The
representations and warranties of each Borrower and each other Loan Party
contained in Article
V
or any
other Loan Document shall be true and correct in all material respects on
and as
of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which
case they shall be true and correct in all material respects as of such earlier
date, and except that for purposes of this Section
4.02,
the
representations and warranties contained in Sections
5.05(a)
and
(b)
shall be
deemed to refer to the most recent statements furnished pursuant to Sections
6.01(a)
and
(b),
respectively.
(b) No
Default shall exist, or would result from such proposed Credit Extension
or from
the application of the proceeds therefrom.
(c) The
applicable Administrative Agent and, if applicable, the applicable L/C Issuer
or
the Swing Line Lender shall have received a Request for Credit Extension
in
accordance with the requirements hereof.
Each
Request for Credit Extension (other than a Committed Loan Notice requesting
only
a conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans or the continuation or conversion of a Canadian BA) submitted by any
Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections
4.02(a)
and
(b)
have
been satisfied on and as of the date of the applicable Credit
Extension.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
Each
of
Holdings and each Borrower represents and warrants to the Agents and the
Lenders
that:
5.01 Existence,
Qualification and Power; Compliance with Laws
.
Each
Loan Party and each of its Subsidiaries (a) is a Person duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it
is a
party, and (c) is duly qualified and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except in each case
referred to in clause
(c)
to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02 Authorization;
No Contravention
.
The
execution, delivery and performance by each Loan Party of each Loan Document
to
which such Person is a party is within such Loan Party’s corporate or other
powers, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of
any of such Person’s Organization Documents, (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under (other
than as
permitted by Section 7.01),
or
require any payment to be made under (i) any Contractual Obligation to which
such Person is a party or affecting such Person or the properties of such
Person
or any of its Subsidiaries or (ii) any order, injunction, writ or decree
of any
Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law; except with respect to any breach
or contravention or payment (but not creation of Liens) referred to in
clause
(b)(i),
to the
extent that such conflict, breach, contravention or payment could not reasonably
be expected to have a Material Adverse Effect.
5.03 Governmental
Authorization; Other Consents
.
No
material approval, consent, exemption, authorization, or other action by,
or
notice to, or filing with, any Governmental Authority or any other Person
is
necessary or required in connection with (a) the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement
or any
other Loan Document, (b) the grant by any Loan Party of the Liens granted
by it pursuant to the Collateral Documents, (c) the perfection or
maintenance of the Liens created under the Collateral Documents (including
the
priority thereof) or (d) the exercise by any Administrative Agent or any
Lender of its rights under the Loan Documents or the remedies in respect
of the
Collateral pursuant to the Collateral Documents, except for (i) filings
necessary to perfect the Liens on the Collateral granted by the Loan Parties
in
favor of the Administrative Agent (which filings are disclosed in the Perfection
Certificate) or (ii) the approvals, consents, exemptions, authorizations,
actions, notices and filings which have been duly obtained, taken, given
or made
and are in full force and effect.
5.04 Binding
Effect
.
This
Agreement and each other Loan Document has been duly executed and delivered
by
each Loan Party that is party thereto. This Agreement and each other Loan
Document constitutes, a legal, valid and binding obligation of such Loan
Party,
enforceable against each Loan Party that is party thereto in accordance with
its
terms, except as such enforceability may be limited by bankruptcy insolvency,
reorganization, receivership, moratorium or other laws affecting creditors’
rights generally and by general principles of equity.
5.05 Financial
Statements; No Material Adverse Effect
.
(a) The
Audited Financial Statements fairly present in all material respects the
financial condition of the U.S. Borrower and its consolidated Subsidiaries
as of
the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein. During the period from
December 31, 2005 to and including the Restatement Effective Date, there
has
been (i) no sale, transfer or other disposition by the U.S. Borrower or any
of its consolidated Subsidiaries of any material part of the business or
property of the U.S. Borrower and its consolidated Subsidiaries, taken as
a
whole and (ii) no purchase or other acquisition by any of them of any business
or property (including any Equity Interests of any other Person) material
in
relation to the consolidated financial condition of the U.S. Borrower and
its
consolidated Subsidiaries, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto or
has
not otherwise been disclosed in writing to the Lenders prior to the Restatement
Effective Date.
(b) From
December 31, 2005 to the Restatement Effective Date, except as set forth
on
Schedule 5.05,
Holdings, the U.S. Borrower and their respective Subsidiaries have not incurred
any material Indebtedness or other liabilities, direct or contingent, that,
in
accordance with GAAP, would be required to be disclosed in the U.S. Borrower’s
financial statements.
(c) Since
the
date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to result in a material adverse change in the condition
(financial or otherwise), business, operations, assets or liabilities of
the
U.S. Borrower and its Subsidiaries taken as a whole.
(d) The
consolidated forecasted balance sheets, statements of income and statements
of
cash flows of Holdings and its Subsidiaries for, and as of the end of, each
fiscal year commencing after December 31, 2005 and ending on or prior to
December 31, 2011 delivered prior to the Closing Date were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were
reasonable in light of the conditions existing at the time of delivery of
such
forecasts; it being understood that actual results may vary from such forecasts
and that such variations may be material.
5.06 Litigation
.
Except
as set forth on Schedule
5.06
to the
Original Credit Agreement, there are no actions, suits, proceedings, claims
or
disputes pending or, to the knowledge of Holdings or any Borrower, threatened
or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against Holdings, the U.S. Borrower or any of its Subsidiaries
or against any of their properties or revenues that (a) purport to affect
or
pertain to this Agreement, any other Loan Document or (b) either individually
or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
5.07 No
Default
.
None of
Holdings, the U.S. Borrower or any Subsidiary is in default under or with
respect to, or a party to, any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.08 Ownership
of Property; Liens
.
(a) Each
Loan
Party and each of its Subsidiaries has good record and indefeasible title
in fee
simple to, or valid leasehold interests in, all real property necessary in
the
ordinary conduct of its business, free and clear of all Liens except for
minor
defects in title that do not materially interfere with its ability to conduct
its business or to utilize such assets for their intended purposes and Liens
permitted by clauses (a),
(c),
(d),
(g),
(h),
(i),
(j)
and
(v)
of
Section
7.01.
(b) Set
forth
on Schedule 5.08(b)
of the
Original Credit Agreement is a complete and accurate list of all real property
owned by any U.S. Loan Party or any of its Subsidiaries located in the United
States, as of the Closing Date, showing as of the date hereof the street
address
(to the extent available), county or other relevant jurisdiction, state and
record owner.
(c) Set
forth
on Schedule 5.08(c)
of the
Original Credit Agreement is a complete and accurate list of all leases of
real
property material to the conduct of the business of the Loan Parties under
which
any Loan Party or any of its Subsidiaries is the lessee as of the Closing
Date,
showing as of the date hereof the street address (to the extent available),
county or other relevant jurisdiction, state, lessor and lessee.
5.09 Environmental
Compliance
.
(a) Each
Loan
Party and each of its Subsidiaries, and each Subsidiary of their operations
and
properties is in compliance with all applicable Environmental Laws except
to the
extent any non-compliance could not reasonably be expected to result in a
Material Adverse Effect.
(b) Except
as
specifically disclosed on Schedule 5.09
of the
Original Credit Agreement, there are no actions, claims, notices of violation
or
potential responsibility, or proceedings alleging liability under or
non-compliance with any Environmental Law on the part of any Loan Party or
any
of its Subsidiaries that could, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect.
(c) Except
as
specifically disclosed in Schedule
5.09
of the
Original Credit Agreement, or except as could not reasonably be expected
to have
a Material Adverse Effect, (i) none of the properties currently or, to the
knowledge of any Loan Party formerly, owned or operated by any Loan Party
or any
of its Subsidiaries is listed or proposed for listing on the NPL or on the
CERCLIS or any analogous foreign, state or local list; (ii) there are no
and never have been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials
are being or have been treated, stored or disposed on any property currently
owned or operated by any Loan Party or any of its Subsidiaries or, to its
knowledge, on any property formerly owned or operated by any Loan Party or
any
of its Subsidiaries; (iii) there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party or
any of
its Subsidiaries; and (iv) Hazardous Materials have not been Released on,
under or from any property currently or formerly owned or operated by any
Loan
Party or any of its Subsidiaries except for such releases, discharges or
disposal that were in material compliance with Environmental Laws.
(d) The
Properties do not contain any Hazardous Materials in amounts or concentrations
which (i) constitute a violation of, (ii) require any action or
inaction under, or (iii) could give rise to liability under, Environmental
Laws, which violations, actions and liabilities, in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
(e) Except
as
disclosed in Schedule
5.09
of the
Original Credit Agreement, neither the U.S. Borrower nor any of its Subsidiaries
is undertaking, and has not completed, either individually or together with
other potentially responsible parties, any investigation or assessment or
response or other corrective action relating to any actual or threatened
Release, Hazardous Materials at, on, under or from any location, either
voluntarily or pursuant to the order of any Governmental Authority or the
requirements of any Environmental Law except for any such action that, in
the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(f) Except
as
disclosed on Schedule
5.09
of the
Original Credit Agreement, all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries have
been disposed of in a manner which would not reasonably expected to result
in a
Material Adverse Effect.
5.10 Insurance
.
The
properties of U.S. Borrower and its Restricted Subsidiaries are insured with
financially sound and reputable insurance companies, in such amounts (after
giving effect to any self-insurance reasonable and customary for similarly
situated Persons engaged in the same or similar businesses as U.S. Borrower
and
its Restricted Subsidiaries) with such deductibles and covering such risks
as
are customarily carried by prudent companies engaged in similar businesses
and
owning similar properties in localities where U.S. Borrower or the applicable
Restricted Subsidiary operates.
5.11 Taxes
.
The U.S.
Borrower and its Subsidiaries have filed all Federal and material state,
foreign
and other tax returns and reports required to be filed, and have paid all
Federal and material state and other taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income
or
assets otherwise due and payable, except those (a) which are not overdue
by more
than thirty (30) days or (b) which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP or (c) with respect to which the
failure to make such filing or payment could not reasonably be expected to
have
a Material Adverse Effect.
5.12 ERISA
Compliance
.
(a) Each
Plan
is in compliance in all material respects with the applicable provisions
of
ERISA, the Code and other applicable Federal or state Laws. Each Plan that
is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS, or has been established pursuant to a
prototype plan that has received a favorable opinion letter from the IRS
or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the knowledge of any Borrower or Holdings, nothing
has
occurred which would prevent, or cause the loss of, such qualification. Each
Loan Party and each ERISA Affiliate have made all required contributions
to each
Plan subject to Section 412 of the Code, and no application for a funding
waiver
or an extension of any amortization period pursuant to Section 412 of the
Code has been made with respect to any Plan.
(b) There
are
no pending or, to the knowledge of any Borrower or Holdings, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect
to
any Plan that could be reasonably be expected to have a Material Adverse
Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(c) (i)
No
ERISA Event has occurred within the prior 2 years or is reasonably expected
to
occur; (ii) no Pension Plan has an “accumulated funding deficiency” (as
defined in Section 412 of the Code), whether or not waived, and no application
for a waiver of the minimum funding standard has been filed with respect
to any
Pension Plan; (iii) neither any Loan Party nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither any Loan Party nor any ERISA Affiliate
has
incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; (v) neither any Loan Party nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections
4069 or
4212(c) of ERISA; and (vi) the present value of all accumulated benefit
obligations of all underfunded Pension Plans (based on the assumptions used
for
purposes of Statement of Financial Accounting Standards No. 87) did not,
as of
the date of the most recent financial statements reflecting such amounts,
exceed
by more than $80,000,000 the fair market value of the assets of all such
underfunded Pension Plans; except, with respect to each of the foregoing
clauses
of this Section
5.12(c),
as
could not reasonably be expected, individually or in the aggregate, to result
in
a Material Adverse Effect.
(d) Except
where noncompliance would not reasonably be expected to result in a Material
Adverse Effect, each Foreign Plan has been maintained in substantial compliance
with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where required,
in good standing with applicable Governmental Authorities, and neither the
U.S.
Borrower nor any Subsidiary have incurred any material obligation in connection
with the termination of or withdrawal from any Foreign Plan.
5.13 Subsidiaries;
Equity Interests
.
As of
the Closing Date, each Loan Party has no Subsidiaries other than those
specifically disclosed in Schedule
5.13,
and all
of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by a Loan Party free
and
clear of all Liens except (i) those created under the Collateral Documents
and (ii) any nonconsensual Lien that is permitted under Section
7.01.
5.14 Margin
Regulations; Investment Company Act;
.
(a) The
Borrowers are not engaged and will not engage, principally or as one of their
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit
for
the purpose of purchasing or carrying margin stock and no Credit Extension
will
be used to purchase or carry any margin stock or to extend credit to others
for
the purpose of purchasing or carrying any margin stock.
(b) None
of
the U.S. Borrower, any Person Controlling the U.S. Borrower or any Subsidiary
is
or is required to be registered as an “investment company” under the Investment
Company Act of 1940. Neither the making of any Credit Extension, nor the
application of the proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated by the Loan Documents,
will
violate any provision of any such Act or any rule, regulation or order of
the
SEC thereunder.
5.15 Disclosure
.
No
report, financial statement, certificate or other information (including,
without limitation, the Information Memorandum) furnished (whether in writing
or
orally) by or on behalf of any Loan Party to any Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation
of this
Agreement or delivered hereunder or any other Loan Document (as modified
or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not materially misleading; provided
that,
with respect to projected financial information, the U.S. Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time of preparation; it being understood
that
such projections may vary from actual results and that such variances may
be
material.
5.16 Compliance
with Laws
.
Each
Loan Party and its Subsidiaries is in compliance in all material respects
with
the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or
(b) the failure to comply therewith, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual
Property; Licenses, Etc.
Each
Loan
Party and its Subsidiaries own, or possess the right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (collectively,
“IP
Rights”)
that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person, except to the extent
such
conflicts or failures to own or possess such rights, either individually
or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Borrowers, no slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by any Loan Party or any
Subsidiary infringes upon any rights held by any other Person except for
such
infringements, individually or in the aggregate, which could not reasonably
be
expected to have a Material Adverse Effect. No claim or litigation regarding
any
of the foregoing is pending or, to the knowledge of the Borrowers, threatened,
which, either individually or in the aggregate, could reasonably be expected
to
have
a
Material Adverse Effect.
5.18 Solvency
.
Each of
the Borrowers, on a consolidated basis with its Subsidiaries, is
Solvent.
5.19 Casualty,
Etc.
Neither
the business nor the properties of any Loan Party or any of its Subsidiaries
are
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public
enemy or other casualty (whether or not covered by insurance) that could
reasonably be expected to have a Material Adverse Effect.
5.20 Perfection,
Etc.
All
filings and other actions necessary or desirable to perfect and protect the
Liens in the Collateral created under the Collateral Documents and to render
such Liens opposable to third parties have been or will be, during the periods
required by the Loan Documents, duly made or taken and are in full force
and
effect, and the Collateral Documents create in favor of (i) the U.S.
Administrative Agent for the benefit of the Secured Parties and (ii) the
Canadian Administrative Agent for the benefit of the Canadian Secured Parties,
a
valid and, together with such filings and other actions, perfected first
priority Lien in the U.S. Collateral and the Canadian Collateral, respectively,
securing the payment of the Secured Obligations (in the case of the U.S.
Collateral) and the Canadian Obligations (in the case of the Canadian
Collateral), subject to Liens permitted by Section 7.01.
The
Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens created or permitted under the Loan
Documents.
5.21 Tax
Shelter Regulations
.
The
U.S. Borrower does not intend to treat the Loans and/or Letters of Credit
and
related transactions as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). In the event the U.S. Borrower determines
to take any action inconsistent with such intention, it will promptly notify
the
U.S. Administrative Agent thereof. If the U.S. Borrower so notifies the U.S.
Administrative Agent, the U.S. Borrower acknowledges that one or more of
the
Lenders may treat its Loans and/or its interest in Swing Line Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable,
may
maintain the lists and other records required by such Treasury
Regulation.
5.22 Anti-Terrorism
Law
.
(a) No
Loan
Party and, to the knowledge of Holdings and the Borrowers, none of their
Affiliates is in violation of any laws relating to terrorism or money laundering
(“Anti-Terrorism
Laws”),
including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the “Executive
Order”),
the
Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 or the Proceeds
of Crime (Money-Laundering) and Terrorist Financing Act (Canada).
(b) No
Loan
Party and to the knowledge of the Loan Parties, no Affiliate or broker or
other
agent of any Loan Party acting or benefiting in any capacity in connection
with
the Loans is any of the following:
(i) a
person
that is listed in the annex to, or is otherwise subject to the provisions
of,
the Executive Order;
(ii) a
person
owned or controlled by, or acting for or on behalf of, any person that is
listed
in the annex to, or is otherwise subject to the provisions of, the Executive
Order;
(iii) a
person
with which any Lender is prohibited from dealing or otherwise engaging in
any
transaction by any Anti-Terrorism Law;
(iv) a
person
that commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order; or
(v) a
person
that is named as a “specially designated national and blocked person” on the
most current list published by the U.S. Treasury Department Office of Foreign
Assets Control (“OFAC”)
at its
official website or any replacement website or other replacement official
publication of such list.
(c) No
Loan
Party and, to the knowledge of Holdings and the Borrowers, no broker or other
agent of any Loan Party acting in any capacity in connection with the Loans
(i) conducts any business or engages in making or receiving any
contribution of funds, goods or services to or for the benefit of any person
described in paragraph (b) above, (ii) deals in, or otherwise engages
in any transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to engage
in any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
ARTICLE
VI
AFFIRMATIVE
COVENANTS
So
long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued or payable remains unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding, each of Holdings and the Borrowers
shall, and shall (except in the case of the covenants set forth in Sections
6.01,
6.02
and
6.03)
cause
each Restricted Subsidiary to:
6.01 Financial
Statements
.
Deliver
to the Administrative Agents for further distribution to each
Lender:
(a) as
soon
as available, but in any event within ninety (90) days after the end of each
fiscal year of the U.S. Borrower (or, if earlier, the date on which the U.S.
Borrower’s Form 10-K would be required to be filed with the SEC whether or not
it is then subject to Section 13(d) or 15 of the Exchange Act), a
consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at
the
end of such fiscal year, and the related consolidated statements of income
or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of Ernst & Young, LLP or any other
independent certified public accountant of nationally recognized standing,
which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope
of
such audit, together with the related unaudited consolidating balance sheet
and
statement of income or operations reflecting the adjustments necessary to
eliminate the accounts of Unrestricted Subsidiaries (if any) from such
consolidated financial statements;
(b) as
soon
as available, but in any event within forty-five (45) days after the end
of each
of the first three (3) fiscal quarters of each fiscal year of the U.S. Borrower
(or, if earlier, the date on which the U.S. Borrower’s 10-Q would be required to
be filed with the SEC whether or not it is then subject to Section 13(d)
or 15
of the Exchange Act), a consolidated balance sheet of the U.S. Borrower and
its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such
fiscal quarter and for the portion of the fiscal year then ended, setting
forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the U.S. Borrower as fairly presenting in all material respects
the
financial condition, results of operations, shareholders’ equity and cash flows
of the U.S. Borrower and its Subsidiaries in accordance with GAAP, subject
only
to normal year-end audit adjustments and the absence of footnotes, together
with
the related unaudited consolidating balance sheet and statement of income
or
operations reflecting the adjustments necessary to eliminate the accounts
of
Unrestricted Subsidiaries (if any) from such consolidated financial
statements;
(c) at
the
time of delivery of the financial statements provided for in Sections
6.01(a)
and
(b)
above, a
management’s discussion and analysis of the financial condition and results of
operation for such fiscal quarter or fiscal year, as the case may be, as
compared to the previous fiscal period; provided
that a
copy of the U.S. Borrower’s Form 10-K or Form 10-Q for the applicable period
shall be deemed to satisfy such requirement; and
(d) as
soon
as available, but in any event no later than seventy-five (75) days after
the
end of each fiscal year, forecasts prepared by management of the U.S. Borrower,
in form reasonably satisfactory to the U.S. Administrative Agent, of
consolidated balance sheets, income statements and cash flow statements of
the
U.S. Borrower and its Subsidiaries. All forecasts delivered hereunder shall
be
prepared on an annual basis for the fiscal year following such fiscal year
then
ended.
6.02 Certificates;
Other Information
.
Deliver
to the Administrative Agents for further distribution to each Lender, in
form
and detail reasonably satisfactory to the Administrative Agents and the Required
Lenders:
(a) no
later
than five (5) days after the delivery of the financial statements referred
to in
Section 6.01(a),
a
certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Event of Default under Section 7.11
or, if
any such Event of Default shall exist, stating the nature and status of such
event;
(b) concurrently
with the delivery of the financial statements referred to in Sections 6.01(a)
and
(b),
(i) a duly completed Compliance Certificate signed by a Responsible Officer
of U.S. Borrower and, if such Compliance Certificate demonstrates an Event
of
Default of any covenant under Section
7.11,
the
Equity Investors may deliver, together with such Compliance Certificate,
notice
of their intent to cure (a “Notice
of Intent to Cure”)
such
Event of Default through capital contributions or the purchase of Equity
Interests as contemplated pursuant to clause
(b)(xviii)
and the
final proviso of the definition of “Consolidated EBITDA”; provided
that the
delivery of a Notice of Intent to Cure shall in no way affect or alter the
occurrence, existence or continuation of any such Event of Default or the
rights, benefits, powers and remedies of the Administrative Agents and the
Lenders under any Loan Document and (ii) a description of each event, condition
or circumstance during the last fiscal quarter covered by such Compliance
Certificate requiring a mandatory prepayment under Section
2.05(b);
(c) promptly
after the same are available, (i) copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders
of
the U.S. Borrower or Holdings, (ii) copies of all annual, regular, periodic
and special reports and registration statements which the U.S. Borrower or
Holdings may file or be required to file, copies of any report, filing or
communication with the SEC under Section 13 or 15(d) of the Securities Exchange
Act of 1934, or with any Governmental Authority that may be substituted
therefor, or with any national securities exchange, and (iii) a copy of any
“management letter” received by any Loan Party from its certified public
accountants identifying any significant deficiencies in the design or operation
of internal controls which could materially adversely affect the U.S. Borrower’s
or Holdings’ ability to record, process, summarize and report financial data,
and the management’s responses thereto (provided
that
such disclosure by the U.S. Borrower is authorized by such accountants (and
the
U.S. Borrower agrees to request that such certified public accountants permit
such disclosure));
(d) promptly
after the furnishing thereof, copies of any requests or notices received
by any
Loan Party (other than in the ordinary course of business) from, or statements
or reports furnished to, any holder of debt securities of any Loan Party
or of
any of its Subsidiaries pursuant to the terms of any Junior Financing
Documentation in a principal amount greater than the Threshold Amount and
not
otherwise required to be furnished to the Lenders pursuant to any other clause
of this Section 6.02;
(e) promptly
after the receipt thereof by any Loan Party or any of its Subsidiaries, copies
of each notice or other correspondence received from the SEC (or comparable
agency in any applicable non-U.S. jurisdiction) concerning any material
investigation or other material inquiry by such agency regarding financial
or
other operational results of any Loan Party or any of its
Subsidiaries;
(f) promptly
after the assertion or occurrence thereof, notice of any occurrence, event
or
action that could result in Environmental Liability on the part of any Loan
Party or any of its Subsidiaries or of any noncompliance by any Loan Party
or
any of its Subsidiaries with any Environmental Law or Environmental Permit,
in
each case that could reasonably be expected to have a Material Adverse
Effect;
(g) concurrently
with any delivery of financial statements under Section 6.01(a),
a
certificate of a Responsible Officer setting forth the information required
pursuant to the Perfection Certificate Supplement or confirming that there
has
been no change in such information since the date of the Perfection Certificate
or latest Perfection Certificate Supplement;
(h) promptly
after the furnishing thereof, copies of all financial statements, forecasts,
budgets or other similar information of Holdings furnished to the lenders
or
holders of any Permitted Holdco Debt;
(i) promptly
after U.S. Borrower has notified the U.S. Administrative Agent of any intention
by U.S. Borrower to treat the Loans and/or Letters of Credit and related
transactions as being a “reportable transaction” (within the meaning of Treasury
Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any
successor form;
(j) upon
request by the U.S. Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by any Loan Party or ERISA Affiliate with the Internal Revenue Service
with respect to each Pension Plan; (ii) the most recent actuarial valuation
report for each Pension Plan; (iii) all notices received by any Loan Party
or
ERISA Affiliate from a Multiemployer Plan sponsor or any governmental agency
concerning an ERISA Event; and (iv) such other documents or governmental
reports
or filings relating to any Plan as the U.S. Administrative Agent shall
reasonably request; and
(k) promptly,
such additional information regarding the business, legal, financial or
corporate affairs of any Loan Party or any Subsidiary, or compliance with
the
terms of the Loan Documents, as any Administrative Agent or any Lender may
from
time to time reasonably request.
Documents
required to be delivered pursuant to Section
6.01(a),
(b),
(c)
or
(d)
or
Section
6.02(d)
(to the
extent any such documents are included in materials otherwise filed with
the
SEC) may be delivered electronically and if so delivered, shall be deemed
to
have been delivered on the date (i) on which the U.S. Borrower posts such
documents, or provides a link thereto on the U.S. Borrower’s website on the
Internet at the website address listed on Schedule
10.02;
or (ii)
on which such documents are posted on the U.S. Borrower’s behalf on
IntraLinks/ IntraAgency
or another relevant website, if any, to which each Lender and each
Administrative Agent have access (whether a commercial, third-party website
or
whether sponsored by an Administrative Agent); provided
that (i)
the U.S. Borrower shall deliver paper copies of such documents to the
Administrative Agents for further distribution to each Lender until a written
request to cease delivering paper copies is given by the each Administrative
Agent or such Lender and (ii) the U.S. Borrower shall notify (which may be
by
facsimile or electronic mail) each Administrative Agent of the posting of
any
such documents and provide to each Administrative Agent by electronic mail
electronic versions (i.e.,
soft
copies) of such documents. Notwithstanding anything contained herein, in
every
instance U.S. Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section
6.02(b)
to the
Administrative Agents. Except for such Compliance Certificates, the
Administrative Agents shall have no obligation to request the delivery or
to
maintain copies of the documents referred to above, and in any event shall
have
no responsibility to monitor compliance by any Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
6.03 Notices
.
Promptly
after obtaining knowledge thereof notify the Administrative Agents for further
distribution to each Lender:
(a) of
the
occurrence of any Default; and
(b) of
any
matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including arising out of or resulting from (i) breach or
non-performance of, or any default under, a Contractual Obligation of any
Loan
Party or any Subsidiary, (ii) any dispute, litigation, investigation,
proceeding or suspension between any Loan Party or any Subsidiary and any
Governmental Authority, (iii) the commencement of, or any material development
in, any litigation or proceeding affecting any Loan Party or any Subsidiary,
including pursuant to any applicable Environmental Laws and or in respect
of IP
Rights, or (iv) the occurrence of any ERISA Event.
Each
notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer of the U.S. Borrower setting forth details of the occurrence
referred to therein and stating what action the U.S. Borrower has taken and
proposes to take with respect thereto. Each notice pursuant to Section
6.03(a)
shall
describe with particularity any and all provisions of this Agreement and
any
other Loan Document that have been breached.
6.04 Payment
of Obligations
.
Pay,
discharge or otherwise satisfy as the same shall become due and payable,
all its
obligations and liabilities, including (a) all tax liabilities, assessments
and
governmental charges or levies upon it or its properties or assets, unless
the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained
by
the U.S. Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by the U.S.
Borrower or such Subsidiary; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness except, in each case, to the extent
the failure to pay or discharge the same could not reasonably be expected
to
have a Material Adverse Effect.
6.05 Preservation
of Existence, Etc.
(a) Preserve,
renew and maintain in full force and effect its legal existence under the
Laws
of the jurisdiction of its organization except in a transaction permitted
by
Section
7.04
or
7.05,
(b) take all reasonable action to maintain all rights, privileges
(including its good standing), permits, licenses and franchises necessary
or
desirable in the normal conduct of its business, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect, and (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, the non-preservation of which could reasonably
be
expected to have a Material Adverse Effect.
6.06 Maintenance
of Properties
.
(a) Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order,
repair and condition, ordinary wear and tear excepted and casualty or
condemnation excepted, and (b) make all necessary renewals, replacements,
modifications, improvements, upgrades, extensions and additions thereof or
thereto in accordance with prudent industry practice.
6.07 Maintenance
of Insurance
.
Maintain
with financially sound and reputable insurance companies, insurance with
respect
to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such
types and in such amounts (after giving effect to any self-insurance reasonable
and customary for similarly situated Persons engaged in the same or similar
businesses as the U.S. Borrower and its Restricted Subsidiaries) as are
customarily carried under similar circumstances by such other
Persons.
6.08 Compliance
with Laws
.
Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except if the failure to comply therewith could not reasonably be expected
to
have a Material Adverse Effect.
6.09 Books
and Records
.
Maintain
proper books of record and account, in which full, true and correct entries
in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the U.S. Borrower
or such Restricted Subsidiary, as the case may be.
6.10 Inspection
Rights
.
Permit
representatives and independent contractors of the Administrative Agents
and
each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at the expense of the
Borrowers and at such reasonable times during normal business hours and as
often
as may be reasonably desired, upon reasonable advance notice to the U.S.
Borrower; provided that,
excluding any such visits and inspections during the continuation of an Event
of
Default, the Lenders shall not exercise such rights more often than two times
during any calendar year absent the existence of an Event of Default and
only
one (1) such time shall be at the Borrowers’ expense; provided,
further
that
when
an Event of Default exists the Administrative Agent or any Lender (or any
of
their respective representatives or independent contractors) may do any of
the
foregoing at the expense of the Borrowers at any time during normal business
hours and upon reasonable notice. The Administrative Agent and the Lenders
shall
give the Borrowers the opportunity to participate in any discussions with
the
Borrowers’ accountants.
6.11 Use
of
Proceeds
.
The
Borrowers will use the proceeds of any Credit Extension for general corporate
purposes not in contravention of any Law or of any Loan Document.
6.12 Covenant
To Guarantee Obligations and Give Security
.
(a) Upon
the
formation or acquisition of any new direct or indirect Restricted Subsidiaries
by any U.S. Loan Party or upon any Domestic Subsidiary ceasing to meet the
definition of Non-Guarantor Domestic Subsidiary or upon the redesignation
of any
Unrestricted Subsidiary as a Restricted Subsidiary or the acquisition of
any
Material Real Estate, the U.S. Borrower shall promptly notify the Administrative
Agents thereof and if such property, in the reasonable judgment of the U.S.
Administrative Agent, shall not already be subject to a perfected Lien in
favor
of the U.S. Administrative Agent for the benefit of the Secured Parties,
then
the U.S. Borrower shall, in each case at the U.S. Borrower’s
expense:
(i) in
connection with the formation or acquisition of a Restricted Subsidiary or
upon
any Domestic Subsidiary which was a Non-Guarantor Domestic Subsidiary ceasing
for any reason to meet the definition thereof or the redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary, within thirty (30) days
after such formation, acquisition, or change of status or such longer period
as
the Administrative Agent may agree in its sole discretion, (A) cause each
such
Restricted Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of
a
Foreign Subsidiary) to duly execute and deliver to the U.S. Administrative
Agent
a guaranty or guaranty supplement, in form and substance reasonably satisfactory
to the U.S. Administrative Agent, guaranteeing the other Loan Parties’
obligations under the Loan Documents, and (B) deliver all certificates
representing the Pledged Interests of each such Restricted Subsidiary owned
by a
U.S. Loan Party, accompanied by undated stock powers or other appropriate
instruments of transfer executed in blank, and all instruments evidencing
the
Pledged Debt of each such Restricted Subsidiary owned by a U.S. Loan Party,
indorsed in blank to the U.S. Administrative Agent, together with, if requested
by the U.S. Administrative Agent, supplements to the U.S. Security Agreement
with respect to the pledge of any Equity Interests or Indebtedness; provided
that
only 65% of Equity Interests of any Foreign Subsidiary owned by a U.S. Loan
Party shall be required to be pledged as Collateral,
(ii) within
ten (10) days after such request, formation or acquisition, or such longer
period as the U.S. Administrative Agent may agree in its sole discretion,
furnish to the U.S. Administrative Agent a Perfection Certificate
Supplement,
(iii) within
thirty (30) days after such request, formation or acquisition or change of
status, or such longer period as the U.S. Administrative Agent may agree
in its
sole discretion, duly execute and deliver, and cause each such Restricted
Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of a Foreign
Subsidiary) to duly execute and deliver, to the U.S. Administrative Agent
Mortgages encumbering Material Real Estate, Security Agreement Supplements,
IP
Security Agreement Supplements and other security agreements, as specified
by
and in form and substance reasonably satisfactory to the U.S. Administrative
Agent (consistent with the U.S. Security Agreement, IP Security Agreement
and
Mortgages), securing payment of all the Obligations and constituting Liens
on
all such properties,
(iv) within
thirty (30) days after such request, formation, acquisition or change of
status,
or such longer period, not to exceed an additional sixty (60) days, as the
U.S.
Administrative Agent may agree in its sole discretion, take, and cause such
Restricted Subsidiary that is not a Foreign Subsidiary (or a Subsidiary of
a
Foreign Subsidiary) to take, whatever action (including, without limitation,
the
recording of Mortgages on Material Real Estate, the filing of Uniform Commercial
Code financing statements, the giving of notices and the endorsement of notices
on title documents and delivery of stock and membership interest certificates)
may be necessary or advisable in the reasonable opinion of the U.S.
Administrative Agent to vest in the U.S. Administrative Agent (or in any
representative of the U.S. Administrative Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the Mortgages
on
Material Real Estate, Security Agreement Supplements, IP Security Agreement
Supplements and security agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their
terms,
(v) within
thirty (30) days after the request of the U.S. Administrative Agent, deliver
to
the U.S. Administrative Agent, a signed copy of an opinion, addressed to
the
U.S. Administrative Agent and the other Secured Parties, of counsel for the
Loan
Parties reasonably acceptable to the U.S. Administrative Agent as to such
matters as the U.S. Administrative Agent may reasonably request,
(vi) as
promptly as practicable after the request of the Administrative Agent, to
the
applicable Administrative Agent with respect to each parcel of real property
on
which Mortgages on Material Real Estate that is the subject of such request,
title reports in scope, form and substance reasonably satisfactory to the
applicable Administrative Agent and, to the extent available, surveys and
environmental assessment reports, and
(vii) at
any
time and from time to time, promptly execute and deliver any and all further
instruments and documents and take all such other action as the applicable
Administrative Agent in its reasonable judgment may deem necessary or desirable
in obtaining the full benefits of, or in perfecting and preserving the Liens
of,
such guaranties, Mortgages, Security Agreement Supplements, IP Security
Agreement Supplements and security agreements; and
(b) Upon
the
formation or acquisition of any new direct or indirect Restricted Subsidiaries
that are Canadian Subsidiaries by any Canadian Loan Party, or upon the
redesignation of any Unrestricted Subsidiary that is a Canadian Subsidiary
as a
Restricted Subsidiary, the Canadian Borrowers shall promptly notify the
Administrative Agents thereof and the Canadian Borrowers shall, in each case
at
the Canadian Borrowers’ expense:
(i) in
connection with the formation or acquisition of a Restricted Subsidiary or
the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary,
within
thirty (30) days after such formation, acquisition or change of status or
such longer period as the Canadian Administrative Agent may agree in its
sole
discretion, cause each such Restricted Subsidiary (if it has not already
done
so) to duly execute and deliver to the Canadian Administrative Agent a guaranty
or guaranty supplement, in form and substance reasonably satisfactory to
the
Canadian Administrative Agent, guaranteeing the other Canadian Loan Parties’
obligations under the Loan Documents,
(ii) within
ten (10) days after such request, formation or acquisition, or such longer
period as the U.S. Administrative Agent may agree in its sole discretion,
furnish to each Administrative Agent a Perfection Certificate
Supplement,
(iii) within
thirty (30) days after such request, formation or acquisition or change of
status, or such longer period as the Canadian Administrative Agent may agree
in
its sole discretion, duly execute and deliver, and cause each such Restricted
Subsidiary that is a Canadian Subsidiary to duly execute and deliver, to
the
Canadian Administrative Agent new Canadian Security Agreements and/or Canadian
Security Agreement Supplements and other security agreements charging
a Lien in such Restricted Subsidiaries’ personal property,
as
specified by and in form and substance reasonably satisfactory to the Canadian
Administrative Agent (consistent with the Canadian Security Agreement), securing
payment of all the Canadian Obligations under the Loan Documents and
constituting Liens on all such properties,
(iv) within
thirty (30) days after such request, formation, acquisition or change of
status,
or such longer period, not to exceed an additional sixty (60) days, as the
Canadian Administrative Agent may agree in its sole discretion, take, and
cause
such Subsidiary that is a Canadian Subsidiary or such parent to take, whatever
action (including, without limitation, the filing of PPSA financing statements
and other similar filings in all applicable jurisdictions) may be necessary
or
advisable in the reasonable opinion of the Canadian Administrative Agent
to vest
in the Canadian Administrative Agent (or in any representative of the Canadian
Administrative Agent designated by it) valid and subsisting Liens on the
personal properties purported to be subject to the Canadian Security Agreement
Supplements and other security agreements delivered pursuant to this
Section 6.12,
enforceable against all third parties in accordance with their terms,
and
(v) within
thirty (30) days after the request of the Canadian Administrative Agent,
deliver
to the Canadian Administrative Agent a signed copy of an opinion, addressed
to
the Canadian Administrative Agent and the other Canadian Secured Parties,
of
counsel for the Loan Parties reasonably acceptable to the Canadian
Administrative Agent as to such matters as the Canadian Administrative Agent
may
reasonably request.
(c) If
on
June 30, 2007 the applicable U.S. Loan Party has not sold the real property
located at 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx; or 0000 Xxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxx, such Loan Party shall deliver or shall cause to be delivered,
within sixty (60) Business Days of such date, unless waived or extended by
the
U.S. Administrative Agent in its sole discretion, a Mortgage encumbering
such
real property together with such other items required by Sections
4.01(a)(xi)(A)
through
(E)
of the
Original Credit Agreement, 4.01(a)(xv)
and
4.01(a)(xx)
of the
Original Credit Agreement, as well as copies of all leases required by
Section
6.16(d)(iii)
of the
Original Credit Agreement.
(d) Prior
to
the 60th
day
following the Restatement Effective Date, the applicable U.S. Loan Party
shall
deliver or shall cause to be delivered, unless waived or extended by the
U.S.
Administrative Agent in its sole discretion, a Mortgage encumbering the real
property located at 0000 Xxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx and 0000X Xxxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx together with such other items required by
Sections
4.01(a)(xi)(A)
through
(E)
of the
Original Credit Agreement, 4.01(a)(xv)
and
4.01(a)(xx)
of the
Original Credit Agreement, as well as copies of all leases required by
Section
6.16(d)(iii)
of the
Original Credit Agreement.
(e) Notwithstanding
the foregoing, (x) the Administrative Agents shall not take a security interest
in any assets as to which such Administrative Agent shall determine, in its
reasonable discretion, that the cost of obtaining such Lien (including any
mortgage, stamp, intangibles or other tax) are excessive in relation to the
benefit to the Secured Parties of the security afforded thereby, (y) the
Loan
Parties shall not be required to take any action to pledge any Equity Interests
of a Foreign Subsidiary unless such Foreign Subsidiary has either (i) revenues
(on a consolidated basis with its Subsidiaries) of at least $5,000,000 for
its
most recently ended fiscal year for which financial statements are available
or
(ii) total assets (on a consolidated basis with its Subsidiaries) of at least
$2,500,000 as of the end of its most recently completed fiscal year for which
financial statements are available and (z) in no event shall any Loan Party
be
required to take any action in order to pledge any Equity Interests of any
Subsidiary organized under the laws of the People’s Republic of
China.
6.13 Compliance
with Environmental Laws
.
(a) Except,
in each case, to the extent that the failure to do so could not reasonably
be
expected to have a Material Adverse Effect, comply, and cause all lessees
and
other Persons operating or occupying its properties to comply with all
applicable Environmental Laws and Environmental Permits; obtain and renew
all
Environmental Permits necessary for its operations and properties; and conduct
any investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to address Hazardous Materials
at,
on, under or emanating from any of its properties, in accordance with the
requirements of all applicable Environmental Laws.
(b) If
a
Default caused by reason of a breach of Section 5.09
or
Section
6.13(a)
shall
have occurred and be continuing for more than 20 days without the Borrower
Parties commencing activities reasonably likely to cure such Default, at
the
written request of the U.S. Administrative Agent, provide to the Lenders
within
45 days after such request, at the expense of the Loan Party, an environmental
assessment report for any property owned or operated by any Borrower Party
regarding the matters which are the subject of such Default, including, where
appropriate, any soil and/or groundwater sampling, prepared by an environmental
consulting firm and, in the form and substance, reasonably acceptable to
the
applicable Administrative Agent and indicating the presence or absence of
Hazardous Materials and the estimated cost to address any non-compliance
with or
conduct any response or other corrective action with respect to such Hazardous
Material required under any Environmental Law.
6.14 Further
Assurances
.
Promptly upon request by either Administrative Agent, or any Lender through
either Administrative Agent, (i) correct any material defect or error that
may be discovered in the execution, acknowledgment, filing or recordation
of any
Loan Document or other document or instrument relating to any Collateral,
and
(ii) do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds, certificates,
assurances and other instruments as either Administrative Agent, or any Lender
through either Administrative Agent, may reasonably require from time to
time in
order to carry out more effectively the purposes of the Loan
Documents.
6.15 Unrestricted
Subsidiaries
.
Ensure
that all financial statements of each Unrestricted Subsidiary distributed
to any
creditor of an Unrestricted Subsidiary clearly states the separateness of
such
Unrestricted Subsidiary from the Loan Parties.
ARTICLE
VII
NEGATIVE
COVENANTS
So
long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder which is accrued or payable shall remain unpaid or unsatisfied,
or any
Letter of Credit shall remain outstanding, Holdings and each Borrower shall
not,
nor shall they permit any of their Restricted Subsidiaries to, directly or
indirectly, following the Closing Date:
7.01 Liens
.
Create,
incur, assume or suffer to exist any Lien upon any of its property, assets
or
revenues, whether now owned or hereafter acquired, or sign or file or authorize
the filing under the Uniform Commercial Code, the PPSA, the Civil Code of
Quebec
or similar law of any jurisdiction a financing statement or similar filing
or
registration that names Holdings, U.S. Borrower or any of its Restricted
Subsidiaries as debtor, or sign any security agreement authorizing any secured
party thereunder to file such financing statement or similar filing or
registration, other than the following:
(a) Liens
pursuant to any Loan Document;
(b) Liens
existing on the Closing Date and listed on Schedule
7.01
of the
Original Credit Agreement and any modifications, replacements, renewals or
extensions thereof; provided
that (i)
the Lien does not extend to any additional property other than (A)
after-acquired property that is affixed or incorporated into the property
covered by such Lien and (B) proceeds and products thereof and (ii) the renewal,
extension or refinancing of the obligations secured or benefited by such
Liens
is permitted by Section
7.03;
(c) Liens
for
taxes, assessments or governmental charges which are not required to be paid
pursuant to Section
6.04;
(d) statutory
Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen
or
other like Liens arising in the ordinary course of business which secure
amounts
not overdue for a period of more than thirty (30) days or if more than thirty
(30) days overdue, are unfiled and no other action has been taken to enforce
such Lien or which are being contested in good faith and by appropriate
proceedings diligently conducted which proceedings have the effect of preventing
the forfeiture or sale of the property subject to such Lien, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(e) (i) pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA and (ii) pledges and deposits in the
ordinary course of business securing liability for reimbursement or
indemnification obligations of (including obligations in respect of letters
of
credit or bank guarantees for the benefit of) insurance carriers providing
property, casualty or liability insurance to Holdings, the U.S. Borrower
or any
of its Subsidiaries;
(f) deposits
to secure the performance of bids, trade contracts, governmental contracts
and
leases (other than Indebtedness for borrowed money), statutory obligations,
surety, stay, customs and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business and not in
connection with Indebtedness for money borrowed;
(g) easements,
rights-of-way, restrictions, encroachments, protrusions and other similar
encumbrances and minor title defects affecting real property which, in the
aggregate, do not in any case materially interfere with the ordinary conduct
of
the business of the applicable Person;
(h) Liens
securing judgments for the payment of money not constituting an Event of
Default
under Section
8.01(h)
and not
yet required to be paid pursuant to Section
6.04;
(i) Liens
securing Indebtedness permitted under Section
7.03(b)(v);
provided
that (i)
such Liens attach concurrently with or within one hundred eighty (180) days
after the acquisition, repair, replacement or improvement (as applicable)
of the
property subject to such Liens, (ii) such Liens do not at any time encumber
any
property other than the property financed by such Indebtedness and the proceeds
and the products thereof and (iii) with respect to Capitalized Leases, such
Liens do not at any time extend to or cover any assets other than the assets
subject to such Capitalized Leases; provided
that
individual financings of equipment provided by one lender may be
cross-collateralized to other financings of equipment provided by such lender
on
customary terms;
(j) leases,
licenses, subleases or sublicenses granted to others in the ordinary course
of
business and not interfering in any material respect with the business of
the
U.S. Borrower or any of its material Restricted Subsidiaries so long as any
such
leases or subleases on any Real Property are subordinated to the Liens granted
pursuant to the Loan Documents;
(k) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in
the
ordinary course of business;
(l) Liens
(i)
of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary
course
of business; and (iii) in favor of a banking institution arising as a matter
of
law encumbering deposits (including the right of set-off) and which are within
the general parameters customary in the banking industry;
(m) Liens
(i) on cash advances in favor of the seller of any property to be acquired
in an Investment permitted pursuant to Sections 7.02(h)
and
(n)
to be
applied against the purchase price for such Investment, and (ii) consisting
of an agreement to Dispose of any property in a Disposition permitted under
Section
7.05,
in each
case, solely to the extent such Investment or Disposition, as the case may
be,
would have been permitted on the date of the creation of such Lien;
(n) Liens
on
property of any Foreign Subsidiary (other than a Canadian Subsidiary) securing
Indebtedness of such Foreign Subsidiary to the extent permitted under
Section 7.03(b)(vi);
(o) Liens
in
favor of the U.S. Borrower or a Subsidiary of the U.S. Borrower securing
Indebtedness permitted under Section
7.03(b)(iv);
provided
that if
such Liens are on any property of a U.S. Loan Party, such Liens are in favor
of
a U.S. Loan Party and if such Liens are on any property of a Canadian Loan
Party, such Liens are in favor of a Loan Party;
(p) Liens
existing on property at the time of its acquisition or existing on the property
of any Person that becomes a Restricted Subsidiary after the date hereof
(other
than Liens on the Equity Interests of any Person that becomes a Restricted
Subsidiary); provided
that
(i) such Lien was not created in contemplation of such acquisition or such
Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to
or cover any other assets or property (other than the proceeds or products
thereof), and (iii) the Indebtedness secured thereby is permitted under
Section 7.03(b)(v),
(ix)
or
(xii);
(q) Liens
arising from precautionary UCC financing statement (or the foreign equivalent
thereof) filings regarding leases entered into by U.S. Borrower or any of
its
Restricted Subsidiaries in the ordinary course of business;
(r) any
interest or title of a lessor, sublessor, licensee, sublicensee, licensor
or
sublicensor under any lease or license agreement in the ordinary course of
business permitted by this Agreement;
(s) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the U.S. Borrower or any of
its
Restricted Subsidiaries in the ordinary course of business permitted by this
Agreement;
(t) Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 7.02;
(u) Liens
encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;
(v) Permitted
Encumbrances; and
(w) other
Liens securing Indebtedness outstanding in an aggregate principal amount
not to
exceed $37,500,000.
7.02 Investments
.
Make or
hold any Investments, except:
(a) Investments
held by the U.S. Borrower or such Restricted Subsidiary in the form of Cash
Equivalents;
(b) loans
or
advances to officers, directors and employees of the U.S. Borrower and
Restricted Subsidiaries in an aggregate amount not to exceed $5,000,000 at
any time outstanding;
(c) Investments
(i) by Holdings, the U.S. Borrower or any of its Restricted Subsidiaries
in any
U.S. Loan Party (including any new Restricted Subsidiary which becomes a
U.S.
Loan Party), (ii) by any Canadian Loan Party (x) in any other Canadian
Loan Party and (y) in any Foreign Subsidiary that is a Restricted
Subsidiary but not a Loan Party in an amount not to exceed $35,000,000 at
any
time outstanding, (iii) by any Restricted Subsidiary that is not a Loan
Party in any other such Restricted Subsidiary, (iv) Investment by the U.S.
Borrower or any Restricted Subsidiary that is a Loan Party in any Restricted
Subsidiary that is not a U.S. Loan Party in an aggregate amount not to exceed
$50,000,000 at any time outstanding plus any Specified Issuance Proceeds
Not
Otherwise Applied, and (v) by the U.S. Borrower or any Restricted Subsidiary
in
any Foreign Subsidiary consisting of (A) the contribution of Equity
Interests of any other Foreign Subsidiary held directly by the U.S. Borrower
or
such Restricted Subsidiary in exchange for Indebtedness, Equity Interests
or a
combination thereof of the Foreign Subsidiary to which such contribution
is
made
provided
that if
such Equity Interests are of a Canadian Loan Party either (x) such contribution
is to a Canadian Loan Party or (y) the Restricted Subsidiary receiving such
Equity Interests pledges such Equity Interests to secure the Canadian
Obligations; or (B) the exchange of Equity Interests in any Foreign Subsidiary
for Indebtedness of such Foreign Subsidiary;
(d) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes
receivable arising from the grant of trade credit in the ordinary course
of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors;
(e) Investments
arising out of transactions expressly permitted under Sections
7.01,
7.03(b)(iv)
(other
than subclause
(C)(2)
thereof)
and (c)(iii),
7.05
(other
than clauses (b),
(d),
(g),
(h)
and
(l)
thereof)
and 7.06;
(f) Investments
existing on the Restatement Effective Date and set forth on Schedule
7.02
and any
modification, replacement, renewal or extension thereof; provided
that the
amount of the original Investment is not increased except as otherwise permitted
by this Section
7.02;
(g) Investments
in Swap Contracts permitted under Section 7.03;
(h) the
purchase or other acquisition of all or substantially all of the property
and
assets or business of, any Person or of assets constituting a business unit,
a
line of business or division of such Person, or of at least 80% of the Equity
Interests in a Person that, upon the consummation thereof, will be owned
directly by the U.S. Borrower or one or more of its wholly owned Restricted
Subsidiaries (including, without limitation, as a result of a merger or
consolidation); provided
that,
with respect to each purchase or other acquisition made pursuant to this
Section
7.02(h)
(each, a
“Permitted
Acquisition”):
(A) each
applicable Loan Party and any such newly created or acquired Subsidiary shall
comply with the applicable requirements of Section
6.12;
(B)
(1)
immediately before and immediately after giving Pro Forma Effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing
and (2) immediately after giving effect to such purchase or other acquisition,
(x) Holdings and its Subsidiaries shall be in Pro Forma Compliance with all
of
the covenants set forth in Section
7.11,
such
compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agents and the Lenders pursuant
to
Section
6.01(a)
or
(b)
as
though such purchase or other acquisition had been consummated as of the
first
day of the fiscal period covered thereby and evidenced by a certificate from
the
Chief Financial Officer of the U.S. Borrower demonstrating such compliance
calculation in reasonable detail, (y) at least $25,000,000 of the U.S. Revolving
Credit Facility shall be available for the borrowing of Revolving Credit
Loans;
(C) the
U.S.
Borrower shall have delivered to the U.S. Administrative Agent, on behalf
of the
Lenders, at least one (1) Business Day prior to the date on which any such
purchase or other acquisition is to be consummated, a certificate of a
Responsible Officer, in form and substance reasonably satisfactory to the
U.S.
Administrative Agent, certifying that all of the requirements set forth in
this
clause
(h)
have
been satisfied or will be satisfied on or prior to the consummation of such
purchase or other acquisition; and
(D) except
to
the extent the purchase price therefor is paid by a Foreign Subsidiary, the
fair
market value of all property acquired in Permitted Acquisitions which is
contributed to or owned by Subsidiaries that are not U.S. Loan Parties shall
be
deemed to be an Investment permitted only to the extent made pursuant to
Section 7.02(c)(iv);
(i) Investments
that U.S. Borrower has elected to be treated as Restricted Payments that
are
permitted by Section
7.06;
(j) Investments
in the ordinary course of business consisting of (i) endorse-ments for
collection or deposit and (ii) customary trade arrangements with customers
consistent with past practices;
(k) Investments
(including debt obligations and Equity Interests) received in connection
with
the bankruptcy or reorganization of suppliers and customers and in settlement
of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business and upon the foreclosure with
respect
to any secured Investment or other transfer of title with respect to any
secured
Investment;
(l) the
licensing, sublicensing or contribution of IP Rights pursuant to joint marketing
arrangements with Persons other than Holdings and its Restricted Subsidiaries
in
the ordinary course of business;
(m) loans
and
advances to Holdings in lieu of, and not in excess of the amount of (after
giving effect to any other loans, advances or Restricted Payments in respect
thereof), Restricted Payments to the extent permitted to be made to Holdings
in
accordance with Section
7.06;
(n) so
long
as immediately after giving effect to any such Investment, (i) no Event of
Default has occurred and is continuing and (ii) at least $25,000,000 of the
U.S.
Revolving Credit Facility shall be available for the borrowing of Revolving
Credit Loans, other Investments by the U.S. Borrower and its Restricted
Subsidiaries (or which are immediately contributed to the U.S. Borrower or
its
Subsidiaries) not exceeding $25,000,000 in any fiscal year (with a prorated
amount available for the period from the Closing Date to December 31, 2004
plus
the amount of Specified Issuance Proceeds Not Otherwise Applied; provided,
however,
that
(i) such $25,000,000 annual amount shall be increased to (A) $30,000,000,
for so
long as the Leverage Ratio as of the last day of the immediately preceding
four
fiscal quarters was less than 4.5:1 and (B) $35,000,000 for so long as the
Leverage Ratio as of the last day of the immediately preceding four fiscal
quarters was less than 4.0:1 and (ii) any unutilized amounts may be carried
over
to subsequent years; provided,
further,
that,
to the extent that any such Investment (or series of related Investments)
made
pursuant to this clause (n)
consists
of the contribution(s) or other transfer(s) of property (other than cash)
having
an aggregate net book value in excess of $5,000,000 to a Joint Venture for
consideration less than the fair market value of such property, then the
U.S.
Borrower shall have delivered to the U.S. Administrative Agent a pro forma
Compliance Certificate demonstrating that, upon after giving Pro Forma Effect
to
such Investment(s), the Loan Parties would be in compliance with the financial
covenants set forth in Section
7.11;
and
(o) Investments
by the U.S. Borrower or any Restricted Subsidiary deemed to occur upon the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary;
provided
that the
aggregate amount of all Investments made by the U.S. Borrower and its Restricted
Subsidiaries pursuant to this Section
7.02(o)
(measured based on the fair market value of each such Investment on the date
of
designation without giving effect to any subsequent changes in fair market
value) does not exceed $25,000,000.
7.03 Indebtedness
.
Create,
incur, assume or suffer to exist any Indebtedness, except:
(a) in
the
case of the U.S. Borrower:
(i) the
Nortek Existing Senior Subordinated Notes; and
(ii) Permitted
Subordinated Indebtedness (A) in an aggregate amount not to exceed
$50,000,000 at any time outstanding, and (B) in an aggregate amount in
excess of $50,000,000 solely to the extent that such excess amounts are applied
to prepay the Loans pursuant to Section
2.05(b)(v);
(b) in
the
case of U.S. Borrower and its Restricted Subsidiaries:
(i) Indebtedness
of the Loan Parties under the Loan Documents;
(ii) Indebtedness
(other than with respect to the Senior Subordinated Notes) outstanding on
the
Restatement Effective Date and listed on Schedule 7.03(b)
and any
modifications, refinancings, refundings, renewals or extensions thereof;
provided
that (A)
the amount of such Indebtedness is not increased at the time of such
modification, refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing or as
otherwise permitted pursuant to this Section
7.03,
and (B)
the terms and conditions (including, if applicable, as to collateral and
subordination) of any such modified, extending, refunding or refinancing
Indebtedness are not materially less favorable to the Loan Parties or the
Lenders than the terms and conditions of the Indebtedness being modified,
extended, refunded or refinanced;
(iii) Guarantees
of the U.S. Borrower and its Restricted Subsidiaries in respect of Indebtedness
of the U.S. Borrower or such Restricted Subsidiary otherwise permitted under
this Section
7.03(b);
provided
that (i)
if such Guarantee is a Guarantee of Indebtedness of a U.S. Loan Party by
any
Restricted Subsidiary, such Restricted Subsidiary is a U.S. Loan Party or
such
Restricted Subsidiary shall have also provided a Guarantee of the Obligations
substantially on the terms set forth in the U.S. Subsidiary Guaranty,
(ii) if such Guarantee is a Guarantee of Indebtedness of a Canadian Loan
Party by any Restricted Subsidiary, such Restricted Subsidiary is a Loan
Party
or such Restricted Subsidiary shall have also provided a Guarantee of the
Canadian Obligations substantially on the terms set forth in the Canadian
Guaranty and (iii) if such Indebtedness is subordinated to the Obligations,
such
Guarantee shall be also be subordinated to the Obligations on terms no less
favorable to the Lenders;
(iv) Indebtedness
of (A) any U.S. Loan Party owing to any other U.S. Loan Party, (B) any
Canadian Loan Party owing to any other Loan Party, (C) any Restricted Subsidiary
that is not a Loan Party owing to (1) any other Restricted Subsidiary that
is not a Loan Party or (2) Holdings or a Loan Party in respect of an Investment
permitted under Section 7.02(c)
or
(n),
and (D)
any Loan Party owing to any Restricted Subsidiary which is not a Loan Party;
provided
that all
such Indebtedness of any Loan Party in this clause
(iv)(D)
must be
expressly subordinated to the Obligations or the Canadian Obligations, as
applicable and be represented by the Intercompany Note;
(v) Attributable
Indebtedness and purchase money obligations (including obligations in respect
of
mortgage, industrial revenue bond, industrial development bond and similar
financings) to finance the purchase, repair or improvement of fixed or capital
assets within the limitations set forth in Section 7.01(i)
and any
Permitted Refinancing thereof; provided,
however,
that
the aggregate amount of all such Indebtedness at any one time outstanding
shall
not exceed $30,000,000;
(vi) Indebtedness
of Foreign Subsidiaries (x) in an aggregate principal amount at any time
outstanding for all such Persons taken together not exceeding $50,000,000
less
the
aggregate amount of the Canadian Credit Commitments at such time and (y)
incurred prior to September 30, 2006 for the purpose of making investments
in
Poland operations of the Foreign Subsidiaries in an amount not to exceed
$15,000,000;
(vii) Indebtedness
in respect of Swap Contracts designed to hedge against foreign exchange rates
or
commodities pricing risks incurred in the ordinary course of business and
not
for speculative purposes;
(viii) Indebtedness
(other than for borrowed money) subject to Liens permitted under Section
7.01;
(ix) Indebtedness
(A) of the U.S. Borrower or a Restricted Subsidiary assumed in connection
with
any Permitted Acquisition (and not created in contemplation thereof) or (B)
Indebtedness of the U.S. Borrower owed to the seller of any property acquired
in
a Permitted Acquisition on an unsecured subordinated basis (on terms no less
favorable to the Lenders than the terms of the Senior Subordinated Notes),
in
each case, so long as both immediately prior and after giving effect thereto,
(x) no Event of Default shall exist or result therefrom, and (y) U.S.
Borrower and its Subsidiaries will be in Pro Forma Compliance with the covenants
set forth in Section 7.11,
after
giving effect to such Permitted Acquisition and the incurrence or issuance
of
such Indebtedness and any Permitted Refinancing thereof; provided
that the
aggregate principal amount of Indebtedness incurred pursuant to clause
(B)
that
matures prior to the Maturity Date of all of the Facilities shall not exceed
$100,000,000 at any time outstanding;
(x) [intentionally
omitted];
(xi) Indebtedness
consisting of promissory notes issued by any Loan Party to current or former
officers, directors and employees, their respective estates, spouses or former
spouses to finance the purchase or redemption of Equity Interests of Holdings
or
Investors LLC permitted by Section 7.06;
(xii) Indebtedness
incurred by the U.S. Borrower or its Restricted Subsidiaries in a Permitted
Acquisition or Disposition under agreements providing for customary adjustments
of the purchase price;
(xiii) [intentionally
omitted];
(xiv) Cash
Management Obligations and other Indebtedness in respect of endorsements
for
collection or deposit, netting services, overdraft protections and similar
arrangements in each case in connection with deposit accounts;
(xv) Indebtedness
in an aggregate principal amount not to exceed $75,000,000 at any time
outstanding;
(xvi) Indebtedness
evidenced by the Senior Subordinated Notes and any Permitted Refinancing
thereof;
(xvii) Indebtedness
consisting of (a) the financing of insurance premiums, (b) take-or-pay
obligations contained in supply arrangements and (c) customary indemnification
obligations, in each case, incurred in the ordinary course of business and
not
in connection with debt for money borrowed;
(xviii) Indebtedness
incurred by the U.S. Borrower or any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to letters of credit issued in the
ordinary course of business in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability
insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation claims in the
ordinary course of business; provided
that
upon the drawing of such letters of credit or the incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or incurrence; and
(xix) obligations
in respect of performance and surety bonds and performance and completion
guarantees provided by the U.S. Borrower or any of its Restricted Subsidiaries
or obligations in respect of letters of credit related thereto, in each case
in
the ordinary course of business consistent with past practice and not in
connection with debt for money borrowed; and
(c) in
the
case of Holdings:
(i) Indebtedness
under the Loan Documents;
(ii) unsecured
Indebtedness of Holdings that (“Permitted
Holdco Debt”)
(A) is not subject to any Guarantee by the U.S. Borrower or any of its
Restricted Subsidiaries, (B) will not mature prior to the date that is
ninety-one (91) after the Maturity Date of the Term B Facility, (C) has no
amortization, mandatory prepayment events or payments of principal,
(D) does not permit any payments in cash of interest or other amounts in
respect of the principal thereof for at least five (5) years from the date
of
the issuance or incurrence thereof, and (E) has mandatory prepayment
(including any original issue discount catch-up payment not earlier than
the
first scheduled interest payment following the fifth anniversary of the date
of
issuance), repurchase or redemption, covenant, default and remedy provisions
customary for senior discount notes of an issuer that is the parent of a
borrower under senior secured credit facilities, and in any event, with respect
to covenant, default and remedy provisions, no more restrictive than those
contained in the Senior Subordinated Notes Indenture, taken as a whole (other
than provisions customary for senior discount notes of a holding company);
provided
any such
Indebtedness shall constitute Permitted Holdco Debt only if (i) both before
and after giving effect to the issuance or incurrence thereof, no Default
or
Event of Default shall have occurred and be continuing, and (ii) after
giving Pro Forma Effect to the issuance or incurrence thereof, the Holdings
Consolidated Leverage Ratio shall be less than 6.00:1.00 and the Leverage
Ratio
shall be less than 4.25:1.00;
(iii) [intentionally
omitted]
(iv) Indebtedness
permitted to be incurred by Holdings pursuant to clause
(b)(iv)
above;
(v) Indebtedness
which is owed to the seller of any property acquired in a Permitted Acquisition
on an unsecured subordinated basis (on terms no less favorable to the Lenders
than those set forth in the Senior Subordinated Notes) so long as (A) the
Holdings Consolidated Leverage Ratio shall be less than 6.00:1.00 and (B)
if
applicable, Holdings complies with the proviso in Section 7.06(f)(v)
(whether
or not any Restricted Payment is made to Holdings); and
(vi) Indebtedness
of the type described in Sections 7.03(b)(viii),
(xi), (xii), (xvii)(a)
and
(xix).
7.04 Fundamental
Changes
.
Merge,
dissolve, liquidate, amalgamate, consolidate with or into another Person,
or
Dispose of (whether in one transaction or in a series of transactions) all
or
substantially all of its assets (whether now owned or hereafter acquired)
to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:
(a) any
Restricted Subsidiary may merge with (i) the U.S. Borrower (including a merger,
the purpose of which is to reorganize the U.S. Borrower into a new jurisdiction
which is a State of the United States of America), provided
that the
U.S. Borrower shall be the continuing or surviving Person or the surviving
Person shall expressly assume the obligations of the U.S. Borrower pursuant
to
documents reasonably acceptable to the U.S. Administrative Agent, or (ii)
any
one or more other Restricted Subsidiaries, provided
that
when any U.S. Guarantor is merging with another Restricted Subsidiary, the
U.S.
Guarantor shall be the continuing or surviving Person;
(b) any
Canadian Subsidiary may merge or amalgamate with (i) a Canadian Borrower
(including a merger or amalgamation, the purpose of which is to reorganize
a
Canadian Borrower into a new jurisdiction which is a province of Canada),
provided
that
such Canadian Borrower shall be the continuing or surviving Person or the
surviving Person shall expressly assume the obligations of such Canadian
Borrower pursuant to documents reasonably acceptable to the Canadian
Administrative Agent, or (ii) any one or more other Restricted Subsidiaries,
provided
that
when any Canadian Guarantor is merging or amalgamating with another Restricted
Subsidiary, a Guarantor shall be the continuing or surviving
Person;
(c) any
Restricted Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to (i) the U.S. Borrower or to
another Restricted Subsidiary; provided
that if
the transferor in such a transaction is a Guarantor, then the transferee
must
either be the U.S. Borrower or a U.S. Guarantor or (ii) a Canadian Borrower
or
another Restricted Subsidiary; provided
that if
the transferor in such transaction is a Canadian Loan Party, then the transferee
must be a Loan Party;
(d) any
Restricted Subsidiary may merge or amalgamate with or Dispose of all or
substantially all of its assets to any other Person in order to effect an
Investment permitted pursuant to Section
7.02;
provided
that if
the continuing or surviving Person shall be a Restricted Subsidiary, such
Restricted Subsidiary and each of its Restricted Subsidiaries shall have
complied with the applicable requirements of Section
6.12;
(e) [intentionally
omitted]; and
(f) a
merger,
dissolution, liquidation, consolidation or Disposition, the purpose of which
is
to effect a Disposition permitted pursuant to Section
7.05
(other
than clause
(e)
thereof).
7.05 Dispositions
. Make
any
Disposition or enter into any agreement to make any Disposition,
except:
(a) Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired,
in
the ordinary course of business and Dispositions of property no longer used
in
the conduct of the business of the U.S. Borrower and its Restricted
Subsidiaries;
(b) Dispositions
of inventory in the ordinary course of business;
(c) Dispositions
of property to the extent that (i) such property is exchanged for credit
against
the purchase price of similar replacement property or (ii) the proceeds of
such
Disposition are promptly applied to the purchase price of such replacement
property;
(d) Dispositions
of property by any Restricted Subsidiary to the U.S. Borrower or to a Restricted
Subsidiary; provided
that
(A) if the transferor of such property is a U.S. Loan Party either
(i) the transferee is a U.S. Loan Party or (ii) to the extent such
transaction constitutes an Investment, such transaction is permitted under
Section 7.02
and (B)
if the transferor of such property is a Canadian Loan Party either (i) the
transferee is a Loan Party or (ii) to the extent such transaction constitutes
an
Investment, such transaction is permitted under Section
7.02;
(e) Dispositions
permitted by Sections
7.04
and
7.06
(solely
with respect to reissuances of Equity Interests of treasury stock of
Holdings);
(f) Dispositions
by the U.S. Borrower and its Restricted Subsidiaries of property pursuant
to
sale-leaseback transactions; provided
that (i)
the fair market value of all property so Disposed of shall not exceed
$25,000,000 from and after the Closing Date and (ii) the purchase price for
such
property shall be paid to the U.S. Borrower or such Restricted Subsidiary
for
not less than 75% cash consideration;
(g) Dispositions
of Cash Equivalents;
(h) Dispositions
of accounts receivable in connection with the collection or compromise
thereof;
(i) licensing
or sublicensing of IP Rights in the ordinary course of business on customary
terms;
(j) Dispositions
of assets listed on Schedule 7.05(j)
to the
Original Credit Agreement;
(k) leases,
subleases, licenses or sublicenses of property in the ordinary course of
business and which do not materially interfere with the business of Holdings
and
its Subsidiaries;
(l) transfers
of property subject to Casualty Events upon receipt of the Net Cash Proceeds
of
such Casualty Event; and
(m) Dispositions
by the U.S. Borrower and its Restricted Subsidiaries not otherwise permitted
under this Section
7.05;
provided
that (i)
at the time of such Disposition, no Event of Default shall exist or would
result
from such Disposition, (ii) the aggregate fair market value of all property
Disposed of in reliance on this clause
(m)
shall
not exceed $75,000,000 since the Restatement Effective Date (excluding any
property Disposed of in a Disposition or series of related Dispositions
involving property with an aggregate fair market value of less than $5,000,000),
and (iii) the purchase price for such property shall be paid to the U.S.
Borrower or such Subsidiary for not less than 75% cash consideration;
provided,
however,
that
(x) any Disposition of any property pursuant to this Section
7.05
(except
pursuant to Sections 7.05(d)(A)(i),
(d)(B)(i),
(e),
(h)
and
(j)),
shall
be for no less than the fair market value of such property at the time of
such
Disposition and (y) if (A) such Disposition constitutes a Material Disposition
and (B) at least $25,000,000 in Material Dispositions pursuant to Section
7.05(m)
have
been made in the aggregate following the Closing Date, prior to any Disposition
of such property pursuant to Section
7.05(m),
the
U.S. Borrower shall deliver to the Administrative Agents a pro forma Compliance
Certificate demonstrating that, upon giving effect on a Pro Forma Basis to
such
transaction, the Loan Parties would be in compliance with the financial
covenants set forth in Section
7.11.
To the
extent any Collateral is Disposed of as expressly permitted by this Section
7.05
(other
than to a Loan Party), such Collateral shall be sold free and clear of the
Liens
created by the Loan Documents, and the Administrative Agents shall be authorized
to take any actions deemed appropriate in order to effect the
foregoing.
7.06 Restricted
Payments
.
Declare
or make, directly or indirectly, any Restricted Payment, except:
(a) each
Restricted Subsidiary may make Restricted Payments to the U.S. Borrower and
to
Restricted Subsidiaries (and, in the case of a Restricted Payment by a
non-wholly-owned Restricted Subsidiary, to the U.S. Borrower and any Restricted
Subsidiary and to each other owner of Equity Interests of such Restricted
Subsidiary based on their relative ownership interests);
(b) Holdings
and each Restricted Subsidiary may declare and make dividend payments or
other
distributions payable solely in the Equity Interests (other than Disqualified
Equity Interests) of such Person;
(c) so
long
as no Default shall have occurred and be continuing or would result therefrom,
Holdings and the Borrower may make Restricted Payments with the Net Cash
Proceeds from any Permitted Equity Issuance
or
Permitted Holdco Debt (in each case, to the extent constituting Specified
Issuance Proceeds) or up to $25,000,000 of Permitted Subordinated Debt since
the
Closing Date, in each case, to the extent Not Otherwise Applied;
(d) the
U.S.
Borrower may make Restricted Payments in an amount equal to any reduction
in
taxes realized by the U.S. Borrower and its Restricted Subsidiaries in the
form
of refunds or deductions realized in connection with the Transactions (the
“Tax
Reduction Amount”)
minus the amount used to prepay, redeem, purchase or defease Junior
Financing pursuant to Section
7.14(a)(i)(B)
in
reliance on this Section
7.06(d);
provided
that,
(x) prior to making a Restricted Payment pursuant to this Section
7.06(d),
a
Responsible Officer of the U.S. Borrower shall have delivered an officer’s
certificate to the U.S. Administrative Agent setting forth a reasonably detailed
calculation of the Tax Reduction Amount realized by the U.S. Borrower as
of the
date of such officer’s certificate and the amount of Restricted Payments and the
amount of prepayments, redemptions, purchases and defeasances of Junior
Financing previously made in reliance on this Section
7.06(d)
(or
Section 7.06(d)
of the
Original Credit Agreement) and demonstrating Pro Forma Compliance with each
of
the covenants set forth in Section 7.11;
(e) to
the
extent constituting Restricted Payments, the U.S. Borrower and its Restricted
Subsidiaries may enter into transactions expressly permitted by Section
7.04
or
7.08;
(f) any
Restricted Subsidiary of Holdings may make Restricted Payments to Holdings
(and
Holdings may make the Restricted Payments referred to in paragraph (iv)
of this
clause
(f)):
(i) the
proceeds of which will be used to pay the tax liability for the relevant
jurisdiction in respect of consolidated, combined, unitary or affiliated
returns
for the relevant jurisdiction of Holdings attributable to the U.S. Borrower
and
its Restricted Subsidiaries determined as if the U.S. Borrower and its
Restricted Subsidiaries filed separately;
(ii) the
proceeds of which shall be used by Holdings to pay its (or to make a Restricted
Payment to any direct or indirect parent company of the U.S. Borrower to
enable
it to pay) operating expenses incurred in the ordinary course of business
and
other corporate overhead costs and expenses (including, without limitation,
administrative, legal, accounting and similar expenses provided by third
parties), which are reasonable and customary and incurred in the ordinary
course
of business, in an aggregate amount not to exceed $3,000,000 in any fiscal
year
plus
any
reasonable and customary indemnification claims made by directors or officers
of
Holdings or any direct or indirect parent company of the U.S. Borrower
attributable to the ownership or operations of the U.S. Borrower and its
Restricted Subsidiaries;
(iii) the
proceeds of which shall be used by Holdings to pay (or to make a Restricted
Payment to any direct or indirect parent company of the U.S. Borrower to
enable
it to pay to enable it to pay) its franchise taxes;
(iv) the
proceeds of which will be used to repurchase the Equity Interests of Holdings
from, or to make a Restricted Payment to any direct or indirect parent company
of the U.S. Borrower to enable it to repurchase its Equity Interests from,
directors, employees or members of management of Holdings or any direct or
indirect parent company of the U.S. Borrower, the U.S. Borrower or any
Restricted Subsidiary (or their estate, family members, spouse and/or former
spouse), in an aggregate amount not in excess of $7,500,000 in any calendar
year
plus
the
proceeds of any key-man life insurance maintained by Holdings, the U.S. Borrower
or any of its Restricted Subsidiaries; provided
that the
U.S. Borrower may carry-over and make in any subsequent calendar year or
years,
in addition to the amount for such calendar year, the amount not utilized
in the
prior calendar year or years up to a maximum of $15,000,000;
(v) to
finance any Investment permitted to be made pursuant to Section
7.02;
provided
that (A)
such Restricted Payment shall be made concurrently with the closing of such
Investment and (B) Holdings shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests)
to
be contributed to the U.S. Borrower or its Restricted Subsidiaries or (2)
the
merger (to the extent permitted in Section
7.04)
of the
Person formed or acquired into the U.S. Borrower or its Subsidiaries in order
to
consummate such Permitted Acquisition; or
(vi) the
proceeds of which shall be used by Holdings or any direct or indirect parent
company of the U.S. Borrower to pay fees and expenses (other than to Affiliates)
related to any unsuccessful equity or debt offering;
(g) in
addition to the foregoing Restricted Payments, so long as no Default shall
have
occurred and is continuing or would result therefrom, the U.S. Borrower may
make
additional Restricted Payments to Holdings the proceeds of which may be utilized
by Holdings to make additional Restricted Payments in an aggregate amount
not to
exceed (A) $10,000,000 since the Closing Date (such amount to be increased
to (x) $20,000,000 for so long as at the Leverage Ratio at the time of
determination is less than 4.00:1.00 as of the end of the most recent fiscal
quarter for which financial statements were required to be delivered pursuant
to
Sections
6.01(a)
and
6.01(b)
and
(y) $30,000,000 for so long as at the Leverage Ratio is less than 3.50:1.00
as of the end of the most recent fiscal quarter for which financial statements
were required to be delivered pursuant to Sections
6.01(a)
and
6.01(b))
plus
(B) without duplication, 50% of Consolidated Net Income for the period
(taken as one accounting period) commencing with the start of the U.S.
Borrower’s 2005 fiscal year and ending on the date of the U.S. Borrower’s most
recently ended fiscal quarter for which financial statements required to
be
delivered pursuant to Section
6.01(a)
or
(b)
are
available at the time of such Restricted Payment (or, if Consolidated Net
Income
for such period is negative, less 100% of such deficit) minus (C) the
amount used to prepay, redeem, purchase or defease Junior Financing pursuant
to
Section
7.14(a)(i)(B);
and
(h) repurchases
of Equity Interests of Holdings deemed to occur upon the non-cash exercise
of
stock options and warrants.
7.07 Change
in Nature of Business
.
Engage
in any material line of business substantially different from those lines
of
business conducted by the U.S. Borrower and its Restricted Subsidiaries on
the
date hereof or any business reasonably related or ancillary
thereto.
7.08 Transactions
with Affiliates
.
Enter
into any transaction of any kind with any Affiliate of the U.S. Borrower,
whether or not in the ordinary course of business, other than
(a) transactions (i) between or among U.S. Loan Parties,
(ii) between or among Canadian Loan Parties, (iii) between or among
Canadian Loan Parties and U.S. Loan Parties on terms substantially as favorable
to the U.S. Loan Parties as would be obtainable by the U.S. Loan Parties
at the
time in a comparable arm’s-length transaction with a Person other than an
Affiliate, (iv) between or among Canadian Loan Parties and Subsidiaries that
are
not Loan Parties on terms substantially as favorable to the Canadian Loan
Parties as would be obtainable by the Canadian Loan Parties at the time in
a
comparable arm’s-length transaction with a Person other than an Affiliate, (v)
between or among Restricted Subsidiaries that are not Loan Parties and
(vi) between or among the Loan Parties, the Restricted Subsidiaries and/or
any joint venture in which any of them owns an interest, in each case, in
the
ordinary course of business, (b) on fair and reasonable terms substantially
as favorable to the applicable Borrower or such Restricted Subsidiary as
would
be obtainable by the applicable Borrower or such Restricted Subsidiary at
the
time in a comparable arm’s-length transaction with a Person other than an
Affiliate, (c) the payment of fees, expenses and other payments made in
connection with the consummation of the Transactions, (d) so long as no
Event of Default shall have occurred and be continuing under Section 8.01(f),
the
payment of fees to the Sponsor pursuant to the Sponsor Management Agreement,
(e) equity issuances by Holdings permitted under Section
7.06,
(f)
loans and other transactions by Holdings and its Restricted Subsidiaries
to the
extent permitted under Section
7.06 or
clauses (b),
(c),
(e)
and
(m)
of
Section
7.02,
(g) customary fees may be paid to any directors of Holdings and
reimbursement of reasonable out-of-pocket costs of the directors of Holdings,
(h) Holdings and its Restricted Subsidiaries may enter into employment and
severance arrangements with officers and employees in the ordinary course
of
business, (i) the payment of customary fees and reasonable out-of-pocket
cost to, and indemnities provided on behalf of, directors, officers, employees
and consultants of the Holdings, the U.S. Borrower and the Subsidiaries in
the
ordinary course of business to the extent attributable to the ownership or
operation of the U.S. Borrower and its Restricted Subsidiaries, as determined
in
good faith by the board of directors of the U.S. Borrower or senior management
thereof, (j) transactions pursuant to permitted agreements in existence on
the
Closing Date and set forth on Schedule
7.08
to the
Original Credit Agreement or any amendment thereto to the extent such an
amendment is not adverse to the Lenders in any material respect,
(k) dividends, redemptions and repurchases permitted under Section
7.06,
and (l)
payments by Holdings, the U.S. Borrower and any Restricted Subsidiaries to
the
Sponsor made for any customary financial advisory, financing, underwriting
or
placement services or in respect of other investment banking activities,
including in connection with acquisitions or divestitures, which payments
are
(A) pursuant to the Sponsor Management Agreement as in effect on the
Closing Date and (B) approved by the majority of the members of the board
of directors or a majority of the disinterested members of the board of
directors of the U.S. Borrower, in each case in good faith.
7.09 Burdensome
Agreements
. Enter
into or permit to exist any Contractual Obligation (other than this Agreement
or
any other Loan Document) that limits the ability (a) of any Restricted
Subsidiary of the U.S. Borrower to make Restricted Payments to the U.S. Borrower
or any Guarantor or to otherwise transfer property to or invest in the Borrower
or any Guarantor, except for any agreement in effect (i) (x) on the date
hereof and (y) to the extent Contractual Obligations permitted by clause
(x) are
set forth in an agreement evidencing Indebtedness, are set forth in any
agreement evidencing any permitted renewal, extension or refinancing of such
Indebtedness so long as such renewal, extension or refinancing does not expand
the scope of such Contractual Obligation, (ii) at the time any Subsidiary
becomes a Restricted Subsidiary, so long as such agreement was not entered
into
solely in contemplation of such Person becoming a Restricted Subsidiary,
(iii)
representing Indebtedness of a Restricted Subsidiary which is not a Loan
Party
which is permitted by Section
7.03,
or (iv)
in connection with any Disposition permitted by Section
7.05
relating
solely to the assets to be disposed of, and (b) of the U.S. Borrower or any
Loan
Party to create, incur, assume or suffer to exist Liens on property of such
Person for the benefit of the Lenders with respect to the Facilities and
the
Obligations or under the Loan Documents except for (i) negative pledges and
restrictions on Liens in favor of any holder of Indebtedness permitted under
Section 7.03
but
solely to the extent any negative pledge relates to the property subject
to a
Lien permitted by Section
7.01
or
(ii) customary restrictions on leases, subleases, licenses or asset sale
agreements otherwise permitted hereby so long as such restrictions may relate
to
the assets subject thereto; provided,
however,
that
clauses (a) and (b) shall not prohibit Contractual Obligations that (i) are
customary provisions in joint venture agreements and other similar agreements
applicable to joint ventures permitted under Section
7.02
and
applicable solely to such joint venture entered into in the ordinary course
of
business, or (ii) apply only to the property or assets securing Indebtedness
permitted to be secured by such property or assets by Section
7.01
and
Section
7.03,
(iii)
are customary provisions restricting subletting or assignment of any lease
governing a leasehold interest, (iv) are customary provisions restricting
assignment of any agreement entered into in the ordinary course of business
and
(v) are restrictions on cash or other deposits imposed by customers under
contracts entered into in the ordinary course of business.
7.10 Use
of
Proceeds
.
Use the
proceeds of any Credit Extension, whether directly or indirectly, to purchase
or
carry margin stock (within the meaning of Regulation U of the FRB) or to
extend
credit to others for the purpose of purchasing or carrying margin stock or
to
refund Indebtedness originally incurred for such purpose.
7.11 Financial
Covenants
.
(a) Leverage
Ratio.
Permit
the Leverage Ratio as of the end of any fiscal quarter of the U.S. Borrower
set
forth below to be greater than the ratio set forth below opposite such
period:
|
Fiscal
Year
|
March
31
|
June
30
|
September
30
|
December
31
|
|
2005
|
N/A
|
N/A
|
N/A
|
6.35:1:00
|
|
2006
|
6.25:1:00
|
6.25:1:00
|
6.25:1:00
|
6.10:1:00
|
|
2007
|
6.10:1:00
|
6.10:1:00
|
6.10:1:00
|
5.85:1:00
|
|
2008
|
5.85:1:00
|
5.60:1:00
|
5.60:1:00
|
5.25:1:00
|
|
2009
|
5.25:1:00
|
5.25:1:00
|
5.00:1:00
|
5.00:1:00
|
|
2010
|
5.00:1:00
|
5.00:1:00
|
5.00:1:00
|
4.75:1:00
|
|
2011
|
4.50:1:00
|
4.50:1:00
|
N/A
|
N/A
|
(b) Interest
Coverage Ratio.
Permit
the Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower
as set forth below to be less than the ratio set forth below opposite such
fiscal quarter:
|
Fiscal
Year
|
March
31
|
June
30
|
September
30
|
December
31
|
|
2005
|
N/A
|
N/A
|
N/A
|
1.75:1:00
|
|
2006
|
1.85:1:00
|
1.85:1:00
|
1.95:1:00
|
1.95:1:00
|
|
2007
|
2.00:1:00
|
2.00:1:00
|
2.10:1:00
|
2.10:1:00
|
|
2008
|
2.20:1:00
|
2.20:1:00
|
2.20:1:00
|
2.20:1:00
|
|
2009
|
2.30:1:00
|
2.30:1:00
|
2.30:1:00
|
2.30:1:00
|
|
2010
|
2.30:1:00
|
2.30:1:00
|
2.30:1:00
|
2.30:1:00
|
|
2011
|
2.30:1:00
|
2.30:1:00
|
N/A
|
N/A
|
(c) Limitation
on Capital Expenditures.
Permit
the aggregate amount of Capital Expenditures made in any period set forth
below
to exceed the amount set forth opposite such period below:
|
Test
Period
|
Amount
|
|
Closing
Date - December
31, 2004
|
$22,000,000
|
|
January
1, 2005 - December
31, 2005
|
$40,000,000
|
|
January
1, 2006 - December
31, 2006
|
$45,000,000
|
|
January
1, 2007 - December
31, 2007
|
$45,000,000
|
|
January
1, 2008 - December
31, 2008
|
$45,000,000
|
|
January
1, 2009 - December
31, 2009
|
$50,000,000
|
|
January
1, 2010 - December
31, 2010
|
$50,000,000
|
|
January
1, 2011 - August
27, 2011
|
$33,333,333
|
;
provided,
however,
that
(x) if the aggregate amount of Capital Expenditures made in any test period
set forth above shall be less than the maximum amount of Capital Expenditures
permitted under this Section 7.11(c)
for such
test period (after giving effect to any carryover), then an amount of such
shortfall not exceeding 50% of such maximum amount (before giving effect
to any
carryover) may be added to the amount of Capital Expenditures permitted under
this Section 7.11(c)
for the
immediately succeeding (but not any other) test period and (y) in
determining whether any amount is available for carryover, the amount expended
in any fiscal year shall first be deemed to be from the amount allocated
to
carryover for such fiscal year.
7.12 Amendments
of Organization Documents,
Etc
.
Amend
any of its Organization Documents, the Sponsor Management Agreement or the
documentation governing the Equity Contribution (as defined in the Original
Credit Agreement) in a manner materially adverse to the Administrative Agents
or
the Lenders.
7.13 Accounting
Changes
.
Make
any change in the periods covered by the U.S. Borrower’s fiscal
year.
7.14 Prepayments,
Etc. of Indebtedness
.
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner any of the Senior Subordinated Notes,
the Nortek Existing Senior Subordinated Notes, Indebtedness incurred pursuant
to
Section
7.03(b)(ix)(B)
or
Section
7.03(c)(v)
any
Permitted Subordinated Indebtedness and any Permitted Holdco Debt (collectively,
“Junior
Financing”)
or
make any payment in violation of any subordination terms of any Junior Financing
Documentation, except so long as no Default shall have occurred and is
continuing or would result therefrom (i) the prepayment, redemption,
purchase or defeasance thereof with (A) the Net Cash Proceeds of any
Specified Issuance Proceeds Not Otherwise Applied or (B) amounts available
to make Restricted Payments pursuant to Section
7.06 (d)(ii)(B) or
(g),
(ii) the conversion of any Junior Financing to Equity Interests (other than
Disqualified Equity Interests), and (iii) scheduled mandatory payments of
applicable high yield discount by Holdings on Junior Financing of Holdings
on
the date that is not prior to the first scheduled interest payment date
thereunder after the fifth anniversary of the issuance date or (b) amend,
modify or change in any manner materially adverse to the interests of the
Administrative Agent or the Lenders any term or condition of any Junior
Financing Documentation.
7.15 Amendment
of Acquisition
Agreement
.
Amend,
modify or supplement the Acquisition Agreement (as defined in the Original
Credit Agreement) or waive or otherwise consent to any change or departure
from
any of the terms or conditions of the Acquisition Agreement in any manner
materially adverse to the Administrative Agents or the Lenders.
7.16 Equity
Interests of the U.S. Borrower and Subsidiaries
.
(a) (i)
Permit the U.S. Borrower or any of its Restricted Subsidiaries to own directly
or indirectly less than 80% of the Equity Interests of any of the Domestic
Subsidiaries except as a result of or in connection with a dissolution, merger,
consolidation or Disposition of a Subsidiary permitted by Section
7.04
or
7.05
or an
Investment in any Person permitted under Section
7.02;
or
(b) Permit
the U.S. Borrower or any of its Restricted Subsidiaries to own directly or
indirectly less than 80% of the Equity Interests of any of the Foreign
Subsidiaries which are Restricted Subsidiaries except (A) to qualify
directors where required by applicable Law or to satisfy other requirements
of
applicable Law with respect to the ownership of Equity Interests of Foreign
Subsidiaries or (B) as a result of or in connection with a dissolution,
merger, consolidation or disposition of a Subsidiary permitted by Section
7.04
and
7.05
or an
Investment in any Person permitted under Section
7.02;
or
(c) Create,
incur, assume or suffer to exist any Lien on any Equity Interests of any
Borrower (other than Liens pursuant to the Loan Documents and non-consensual
Liens arising solely by operation of law and customary restrictions in joint
venture agreements).
7.17 Holding
Company
.
(a) In
the
case of Holdings, (i) conduct, transact or otherwise engage in any business
or operations other than those incidental to its ownership of the Equity
Interests of the U.S. Borrower, the performance of the Loan Documents and
any
transactions that Holdings is permitted to enter into or consummate under
this
Article
VII
or
(ii) incur any Indebtedness other than Indebtedness permitted pursuant to
Section 7.03(c);
(b) Permit
the U.S. Borrower to be a Subsidiary that is not wholly owned by Holdings;
or
(c) Except
as
permitted by Section
7.04,
permit
any Canadian Borrower to be a Subsidiary that is not wholly owned (directly
or
indirectly) by the U.S. Borrower.
7.18 Designated
Senior Debt
.
Designate any other Indebtedness of the U.S. Borrower or any of its Restricted
Subsidiaries as “Designated Senior Debt” (or any comparable term) under, and as
defined in, the Senior Subordinated Notes Indenture or any other applicable
Junior Financing Documentation.
7.19 Maintenance
of Corporate Separateness
.
Permit
any Unrestricted Subsidiary to (a) fail to satisfy customary corporate
formalities, including (i) the holding of regular board of directors’ and
shareholders’ meetings, (ii) the maintenance of separate corporate records
and (iii) the maintenance of separate bank accounts in its own name;
(b) fail to act solely in its own corporate name and through its authorized
officers and agents; (c) commingle any of its money or other assets with
any
money or other assets of any Loan Party; or (d) take any action, or conduct
its affairs in a manner which is reasonably likely to result in the separate
corporate existence of the Loan Parties from the Unrestricted Subsidiaries
to be
ignored or the assets and liabilities of any Unrestricted Subsidiary being
substantively consolidated with those of any Loan Party in any bankruptcy,
insolvency proceeding; or permit any Loan Party to make any payment to any
creditor of any Unrestricted Subsidiary or provide any direct or indirect
Guarantee for any Indebtedness or other obligations of any Unrestricted
Subsidiary except to the extent permitted by the definition of “Unrestricted
Subsidiary”.
ARTICLE
VIII
EVENTS
OF
DEFAULT AND REMEDIES
8.01 Events
of Default
.
Any of
the following shall constitute an Event of Default:
(a) Non-Payment.
Any
Borrower or any other Loan Party fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan or Unreimbursed Amount,
or
(ii) within five (5) Business Days after the same becomes due, any interest
on any Loan or any other amount payable hereunder or with respect to any
other
Loan Document; or
(b) Specific
Covenants.
Any
Borrower fails to perform or observe any term, covenant or agreement contained
in any of Sections
6.03(a),
6.05
(solely
with respect to Holdings and the Borrowers) or 6.11
or
Article
VII;
provided
that any
Event of Default under Section 7.11
is
subject to cure as contemplated by the last proviso set forth in the definition
of “Consolidated EBITDA”; or
(c) Other
Defaults.
Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in Section
8.01(a)
or
(b)
above)
contained in any Loan Document on its part to be performed or observed and
such
failure continues for thirty (30) days after notice thereof by either
Administrative Agent to the U.S. Borrower; or
(d) Representations
and Warranties.
Any
representation, warranty, certification or statement of fact made or deemed
made
by or on behalf of the U.S. Borrower or any other Loan Party herein, in any
other Loan Document, or in any document required to be delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or
(e) Cross-Default.
Any
Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond
the
applicable grace period with respect thereto, if any (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect
of
any Indebtedness (other than Indebtedness hereunder) having an aggregate
principal amount of more than the Threshold Amount, or (B) fails to observe
or
perform any other agreement or condition relating to any such Indebtedness
or
any other event occurs, the effect of which default or other event is to
cause,
or to permit the holder or holders of such Indebtedness (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 or
to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity; provided that
this
clause (e)(B) shall not apply to Indebtedness secured by a Lien on any asset
which is permitted by Section
7.02
that
becomes due solely as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness, to the extent such sale or transfer
is
permitted hereunder and under the documents governing such Indebtedness and
the
proceeds thereof are applied in accordance with this Agreement and the terms
of
such Indebtedness; or
(f) Insolvency
Proceedings, Etc.
Any
Loan Party or any of its Subsidiaries institutes or consents to the institution
of any proceeding under any Debtor Relief Law, or makes an assignment for
the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to
all or
any material part of its property is instituted without the consent of such
Person and continues undismissed or unstayed for sixty (60) calendar days,
or an
order for relief is entered in any such proceeding; or
(g) Inability
to Pay Debts; Attachment.
(i) Any Loan Party or any Subsidiary becomes unable or admits in writing
its inability or fails generally to pay its debts as they become due, or
(ii)
any writ or warrant of attachment or execution or similar process is issued
or
levied against all or any material part of the property of any such Person
and
is not released, vacated or fully bonded within sixty (60) days after its
issue
or levy; or
(h) Judgments.
There
is entered against any Loan Party or any Restricted Subsidiary a final judgment
or order for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as
to
which the insurer has been notified of such judgment or order and does not
deny
coverage) and there is a period of sixty (60) consecutive days during which
a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or
(i) ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan, or similar event of noncompliance with respect to a Foreign Plan, which
has resulted or could reasonably be expected to result in liability of any
Loan
Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of the Threshold Amount, or
(ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, installment payments with respect
to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity
of Loan Documents.
Any
provision of any Loan Document, at any time after its execution and delivery
and
for any reason other than as expressly permitted hereunder or thereunder
(including as a result of a transaction permitted under Section
7.04
or
7.05)
or
satisfaction in full of all the Obligations, ceases to be in full force and
effect; or any Loan Party contests in writing the validity or enforceability
of
any provision of any Loan Document; or any Loan Party denies that it has
any or
further liability or obligation under any Loan Document (other than as a
result
of repayment in full of the Obligations and termination of the Aggregate
Commitments), or purports to revoke or rescind any Loan Document;
or
(k) Change
of Control.
There
occurs any Change of Control; or
(l) Collateral
Document.
Any
Collateral Document after delivery thereof pursuant to Section 4.01
or
6.12
shall
for any reason (other than pursuant to the terms thereof including as a result
of a transaction permitted under Section
7.04
or
7.05)
cease
to, or shall be asserted in writing by any Loan Party not to, create a valid
and
perfected first priority lien on and security interest in the Collateral
covered
thereby, subject to Liens permitted under Section
7.01
(except
to the extent that any such loss of perfection or priority results from the
failure of an Administrative Agent to make filings, renewals and continuations
(or other equivalent filings) which the U.S. Borrower has indicated in the
Perfection Certificate or pursuant to Section
6.02(g)
are
required to be made or the failure of an Administrative Agent to maintain
possession of certificates actually delivered to it representing securities
pledged under the Collateral Documents (it being understood that, if requested
by an Administrative Agent, the U.S. Borrower shall use reasonable efforts
to
replace any such lost certificate)); or
(m) Junior
Financing Documentation.
(i) Any of the Obligations of the Loan Parties under the Loan Documents for
any reason shall cease to be “Designated Senior Debt” (or any comparable term)
or “Senior Debt” (or any comparable term) under, and as defined in, the Senior
Subordinated Notes Indenture and any other applicable Junior Financing
Documentation or (ii) the subordination provisions set forth in the Senior
Subordinated Notes Indenture (or comparable provisions in any other Junior
Financing Documentation) shall, in whole or in part, cease to be effective
or
cease to be legally valid, binding and enforceable against the holders of
the
Senior Subordinated Notes or any other Junior Financing, if
applicable.
Solely
for the purpose of determining whether a Default has occurred under clause
(f)
or
(g)
of this
Section
8.01,
any
reference in any such clause to any Subsidiary or Loan Party shall be deemed
not
to include any Subsidiary affected by any event or circumstances referred
to in
any such clause that did not, as of the last day of the most recent completed
fiscal quarter of the U.S. Borrower, in the case of any single Subsidiary,
have
assets with a value in excess of 5% of the Consolidated Assets of the U.S.
Borrower and its Subsidiaries or did not, as of the four quarter period ending
on the last day of such fiscal quarter, have revenues exceeding 5% of the
Consolidated Revenues of the U.S. Borrower and its Subsidiaries (it being
agreed
that each Subsidiary affected by any event or circumstance referred to in
any
such clause shall be considered to be a single consolidated Subsidiary for
purposes of determining whether the condition specified above is
satisfied).
8.02 Remedies
upon Event of Default
.
If any
Event of Default occurs and is continuing, the Administrative Agents may,
and
shall at the request of the Required Lenders, take any or all of the following
actions:
(a) declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare
the unpaid principal amount of all outstanding Loans, all interest accrued
and
unpaid thereon, and all other amounts owing or payable hereunder or under
any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrowers;
(c) require
that the applicable Borrowers Cash Collateralize the applicable L/C Obligations
and Canadian BAs (in an amount equal to the then Outstanding Amount thereof)
of
such Borrowers; and
(d) exercise
on behalf of itself and the Lenders all rights and remedies available to
it and
the Lenders under the Loan Documents or applicable Law;
provided,
however,
that
upon the occurrence of an Event of Default of the type referred to in
Section
8.01(f)
with
respect to Holdings or any Borrower, the obligation of each Lender to make
Loans
and any obligation of any L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become
due
and payable, and the obligation of the Borrowers to Cash Collateralize the
L/C
Obligations and Canadian BAs as aforesaid shall automatically become effective,
in each case without further act of any Administrative Agent or any
Lender.
8.03 Application
of Funds
.
(a) After
the
exercise of remedies provided for in Section
8.02
(or
after the Loans have automatically become immediately due and payable and
the
L/C Obligations have automatically been required to be Cash Collateralized
as
set forth in the proviso to Section
8.02),
subject to Section
10.20
any
amounts received on account of the Obligations from any U.S. Loan Party shall
be
applied by the U.S. Administrative Agent in the following order:
First,
to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (other than principal and interest, including
Attorney Costs payable under Section
10.04
and
amounts payable under Article
III)
payable
to the Administrative Agents in their capacities as such or to the
Administrative Agents in their capacities as Canadian fondé de pouvoir and
Canadian Custodian and U.S. fondé de pouvoir and U.S. Custodian,
respectively;
Second,
to
payment of that portion of the Obligations constituting fees, indemnities
and
other amounts (other than principal and interest) payable to the Lenders
(including Attorney Costs payable under Section
10.05
and
amounts payable under Article
III),
ratably among them in proportion to the amounts described in this clause
Second
payable
to them;
Third,
to
payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause Third
payable
to them;
Fourth,
to
payment of that portion of the Obligations constituting unpaid principal
of the
Loans and L/C Borrowings and the termination value under Secured Hedge
Agreements and, to the extent remaining unpaid after application pursuant
to
this clause, the Cash Management Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth
held by
them;
Fifth,
to the
Administrative Agent for the account of the L/C Issuers, to Cash Collateralize
that portion of the applicable L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit issued under the applicable Tranche of
the
Revolving Credit Facility;
Sixth,
to the
payment of all other Obligations of the Loan Parties owing under or in respect
of the Loan Documents that are due and payable to the Administrative Agents
and
the other Secured Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Administrative Agent
and
the other Secured Parties on such date; and
Last,
the
balance, if any, after all of the Obligations have been indefeasibly paid
in
full, to the Borrower or as otherwise required by Law.
Subject
to Section
2.03(c),
amounts
used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to clause Fifth
above
shall be applied to satisfy drawings under such Letters of Credit as they
occur.
If any amount remains on deposit as Cash Collateral after all Letters of
Credit
have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.
(b) After
the
exercise of remedies provided for in Section
8.02
(or
after the Loans have automatically become immediately due and payable and
the
L/C Obligations have automatically been required to be Cash Collateralized
as
set forth in the proviso to Section
8.02),
subject to Section
10.20
any
amounts received from the Canadian Loan Parties on account of the Canadian
Obligations shall be applied by the Canadian Administrative Agent in the
following order:
First,
to
payment of that portion of the Canadian Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs payable
under
Section
10.04
and
amounts payable under Article
III)
payable
to the Canadian Administrative Agent in its capacity as such or as Canadian
fondé de pouvoir or Canadian Custodian;
Second,
to
payment of that portion of the Canadian Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable
to the
Canadian Lenders (including Attorney Costs payable under Section
10.05
and
amounts payable under Article
III),
ratably among them in proportion to the amounts described in this clause
Second
payable
to them;
Third,
to
payment of that portion of the Canadian Obligations constituting accrued
and
unpaid interest on the Loans and L/C Borrowings in respect of Canadian Letters
of Credit, ratably among the Lenders in proportion to the respective amounts
described in this clause Third
payable
to them;
Fourth,
to
payment of that portion of the Canadian Obligations constituting unpaid
principal of the Canadian Loans and L/C Borrowings in respect of Canadian
Letters of Credit, ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth
held by
them;
Fifth,
to the
Canadian Administrative Agent for the account of the Canadian L/C Issuer,
to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Canadian Letters of Credit;
Sixth,
to the
payment of all other Canadian Obligations of the Canadian Loan Parties owing
under or in respect of the Loan Documents that are due and payable to the
Canadian Administrative Agent and the other Canadian Secured Parties on such
date, ratably based upon the respective aggregate amounts of all such
Obligations owing to the Canadian Administrative Agent and the other Canadian
Secured Parties on such date; and
Last,
the
balance, if any, after all of the Canadian Obligations have been indefeasibly
paid in full, to the Canadian Borrowers or as otherwise required by
Law.
Subject
to Section
2.03(c),
amounts
used to Cash Collateralize the aggregate undrawn amount of Canadian Letters
of
Credit pursuant to clause Fifth
above
shall be applied to satisfy drawings under such Canadian Letters of Credit
as
they occur. If any amount remains on deposit as Cash Collateral after all
Canadian Letters of Credit have either been fully drawn or expired, such
remaining amount shall be applied to the other Canadian Obligations, if any,
in
the order set forth above.
ARTICLE
IX
ADMINISTRATIVE
AGENT
AND
OTHER AGENTS
9.01 Appointment
and Authorization of Agents
.
(a) Each
Lender hereby irrevocably appoints, designates and authorizes the Administrative
Agents to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such
duties
as are expressly delegated to them by the terms of this Agreement or any
other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein
or in
any other Loan Document, (i) no Agent shall have any duties or responsibilities,
except those expressly set forth herein, nor shall any Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, 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 any Agent, (ii) no Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that such Agent is required to exercise in writing by the Required Lenders
or
the Requisite Class Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance), (iii) except as expressly set
forth in the Loan Documents, no Agent shall have any duty to disclose or
shall
be liable for the failure to disclose, any information relating to any Loan
Party or any of its Subsidiaries that is communicated to or obtained by the
bank
serving as such Agent or any of its Affiliates in any capacity and (iv) no
Agent
shall be liable to any Secured Party for any action taken or not taken by
it
with the consent or at the request of the Required Lenders or the Requisite
Class Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) or in the absence of its own gross negligence or
willful
misconduct. Without limiting the generality of the foregoing sentence, the
use
of the term “agent” herein and in the other Loan Documents with reference to any
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead,
such
term is used merely as a matter of market custom, and is intended to create
or
reflect only an administrative relationship between independent contracting
parties.
(b) The
L/C
Issuers shall act on behalf of the applicable Lenders with respect to any
Letters of Credit issued by them and the documents associated therewith,
and
each L/C Issuer shall have all of the benefits and immunities (i) provided
to the Agents in this Article
IX
with
respect to any acts taken or omissions suffered by such L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters
of
Credit as fully as if the term “Agent” as used in this Article
IX
and in
the definition of “Agent-Related Person” included the L/C Issuer with respect to
such acts or omissions, and (ii) as additionally provided herein with
respect to such L/C Issuer.
(c) The
U.S.
Administrative Agent with respect to the U.S. Collateral and the Canadian
Administrative Agent with respect to the Canadian Collateral shall also act
as
the “collateral agent” under the Loan Documents, and each of the Lenders (in its
capacities as a Lender, Swing Line Lender (if applicable), L/C Issuer (if
applicable) and a potential Hedge Bank) hereby irrevocably appoints and
authorizes each Administrative Agent to act as the agent of such Lender for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Secured Obligations,
together with such powers and discretion as are reasonably incidental thereto
(and agrees for the benefit of the Agents and the Lenders (but not for the
benefit of the Loan Parties) that it will not attempt to enforce the Liens
on
the Collateral without the consent of the applicable Administrative Agent).
In
this connection, the applicable Administrative Agent, as “collateral agent” (and
any co-agents, sub-agents and attorneys-in-fact appointed by such Administrative
Agent pursuant to Section
9.02
for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of such Administrative Agent), shall
be
entitled to the benefits of all provisions of this Article
IX
(including, without limitation, Section 9.07,
as
though such co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect
thereto.
(d) Without
prejudice to the foregoing, each Canadian Lender, for itself and on behalf
of
each of its Affiliates, hereby irrevocably appoints and authorizes the Canadian
Administrative Agent (and any successor acting as the Canadian Administrative
Agent) to act as the person holding the power of attorney (in such capacity,
the
“Canadian
fondé de pouvoir”)
of
each Canadian Lender and each Canadian Secured Party as contemplated under
Article 2692 of the Civil Code of Quebec, and to enter into, to take and
to hold
on their behalf, and for their benefit, each hypothec granted by the Canadian
Borrower or any Canadian Guarantor under the Civil Code of Quebec (a
“Canadian
Borrower Hypothec”),
and
to exercise such powers and duties which are conferred upon the Canadian
fondé
de pouvoir under each Canadian Borrower Hypothec. Moreover, without prejudice
to
such appointment and authorization to act as the Person holding the power
of
attorney as aforesaid, each Canadian Lender, for itself and on behalf of
each of
its Affiliates referred to above, hereby irrevocably appoints and authorizes
the
Canadian Administrative Agent (and any successor acting as the Canadian
Administrative Agent) (in such capacity, the “Canadian Custodian”)
to act
as agent and custodian for and on behalf of the Canadian Lenders and other
such
Canadian Secured Parties to hold and to be the sole registered holder of
any
debenture or bond which may be issued under any Canadian Borrower Hypothec,
the
whole notwithstanding Section 32 of the Act
Respecting the Special Powers of Legal Persons
(Quebec)
or any other applicable Law. In this respect, (i) (as specified in Section
2.11)
records
shall be kept indicating the names and addresses of, and the pro rata portion
of
the obligations and indebtedness secured by any pledge of any such debenture
or
bond and owing to, each Canadian Lender and other Canadian Secured Party,
and
(ii) each Canadian Lender and other such Canadian Secured Party will be entitled
to the benefits of any collateral covered by any Canadian Borrower Hypothec
and
will participate in the proceeds of realization of any such collateral, the
whole in accordance with the terms hereof.
Each
of
the Canadian fondé de pouvoir and the Canadian Custodian shall (a) exercise, in
accordance with the terms hereof, all rights and remedies given to the Canadian
fondé de pouvoir and the Canadian Custodian (as applicable) with respect to the
collateral under any Canadian Borrower Hypothec, any debenture or bond or
pledge
thereof relating to any Canadian Borrower Hypothec, applicable Laws or
otherwise, (b) benefit from and be subject to all provisions hereof with
respect
to the Administrative Agents mutatis mutandis,
including, without limitation, all such provisions with respect to the liability
or responsibility to and indemnification by the Lenders, and (c) be entitled
to
delegate from time to time any of its powers or duties under any Canadian
Borrower Hypothec, any debenture or bond or pledge thereof relating to any
Canadian Borrower Hypothec, applicable Laws or otherwise and on such terms
and
conditions as it may determine from time to time. Any Person who becomes
a
Canadian Lender or a Canadian Secured Party, for itself and on behalf of
its
Affiliates referred to above, shall be deemed to have consented to and
confirmed: (i) the Canadian fondé de pouvoir as the Person holding the power of
attorney as aforesaid, and to have ratified, as of the date it becomes a
Canadian Lender or a Canadian Secured Party, all actions taken by the Canadian
fondé de pouvoir as the Person holding the power of attorney as aforesaid; and
(ii) the Canadian Custodian as the agent and custodian as aforesaid and to
have
ratified, as the date it becomes a Canadian Lender or a Canadian Secured
Party,
all actions taken by the Canadian Custodian in such capacity.
The
Canadian Administrative Agent accepts the foregoing appointments as Canadian
fondé de pouvoir and Canadian Custodian and agrees to act in such
capacities.
(e) Without
prejudice to the foregoing, each Lender, for itself and on behalf of each
of its
Affiliates, hereby irrevocably appoints and authorizes the U.S. Administrative
Agent (and any successor acting as the U.S. Administrative Agent) to act
as the
Person holding the power of attorney (in such capacity, the “U.S.
fondé de pouvoir”)
of
each Lender and each Secured Party as contemplated under Article 2692 of
the
Civil Code of Quebec, and to enter into, to take and to hold on their behalf,
and for their benefit, each hypothec granted by Commercial Environmental
Systems
Group, Inc. under the Civil Code of Quebec (a “CES
Hypothec”),
and
to exercise such powers and duties which are conferred upon the U.S. fondé de
pouvoir under each CES Hypothec. Moreover, without prejudice to such appointment
and authorization to act as the Person holding the power of attorney as
aforesaid, each Lender, for itself and on behalf of each of its Affiliates
referred to above, hereby irrevocably appoints and authorizes the U.S.
Administrative Agent (and any successor acting as the U.S. Administrative
Agent)
(in such capacity, the “U.S.
Custodian”)
to act
as agent and custodian for and on behalf of the Lenders and other such Secured
Parties to hold and to be the sole registered holder of any debenture or
bond
which may be issued under any CES Hypothec, the whole notwithstanding Section
32
of the Act
Respecting the Special Powers of Legal Persons
(Quebec)
or any other applicable Law. In this respect, (i) (as specified in Section
2.11)
records
shall be kept indicating the names and addresses of, and the pro rata portion
of
the obligations and indebtedness secured by any pledge of any such debenture
or
bond and owing to each Lender and other Secured Party, and (ii) each Lender
and
other such Secured Party will be entitled to the benefits of any collateral
covered by any CES Hypothec and will participate in the proceeds of realization
of any such collateral, the whole in accordance with the terms
hereof.
Each
of
the U.S. fondé de pouvoir and the U.S. Custodian shall (a) exercise, in
accordance with the terms hereof, all rights and remedies given to the U.S.
fondé de pouvoir and the U.S. Custodian (as applicable) with respect to the
collateral under any CES Hypothec, any debenture or bond or pledge thereof
relating to any CES Hypothec, applicable Laws or otherwise, (b) benefit from
and
be subject to all provisions hereof with respect to the Administrative Agents
mutatis mutandis,
including, without limitation, all such provisions with respect to the liability
or responsibility to and indemnification by the Lenders, and (c) be entitled
to
delegate from time to time any of its powers or duties under any CES Hypothec,
any debenture or bond or pledge thereof relating to any CES Hypothec, applicable
Laws or otherwise and on such terms and conditions as it may determine from
time
to time. Any Person who becomes a Lender or a Secured Party, for itself and
on
behalf of its Affiliates referred to above, shall be deemed to have consented
to
and confirmed: (i) the U.S. fondé de pouvoir as the Person holding the power of
attorney as aforesaid, and to have ratified, as of the date it becomes a
Lender
or a Secured Party, all actions taken by the U.S. fondé de pouvoir as the Person
holding the power of attorney as aforesaid; and (ii) the U.S. Custodian as
the
agent and custodian as aforesaid and to have ratified, as the date it becomes
a
Lender or a Secured Party, all actions taken by the U.S. Custodian in such
capacity.
The
U.S.
Administrative Agent accepts the foregoing appointments as U.S. fondé de pouvoir
and U.S. Custodian and agrees to act in such capacities.
9.02 Delegation
of Duties
.
Each
Administrative Agent may execute any of its duties under this Agreement or
any
other Loan Document (including for purposes of holding or enforcing any Lien
on
the Collateral (or any portion thereof) granted under the Collateral Documents
or of exercising any rights and remedies thereunder) by or through
agents
(including appointing CIBC Mellon Trust Company or any other Person to hold
the
documents representing the bonds referred to in Sections 9.01(d) and (e),
in
which event CIBC Mellon Trust Company or such other Person shall be deemed
to be
an Agent-Related Person for the purposes of Sections 9.03,
9.06,
9.07
and
10.05
hereof),
employees or attorneys-in-fact and shall be entitled to advice of counsel
and
other consultants or experts concerning all matters pertaining to such duties.
No Administrative Agent shall be responsible for the negligence or misconduct
of
any agent or attorney-in-fact that they select in the absence of gross
negligence or willful misconduct.
9.03 Liability
of Agents
.
No
Agent-Related Person shall (a) be liable for any action taken or omitted
to be
taken by any of them under or in connection with this Agreement or any other
Loan Document or the transactions contemplated hereby (except for its own
gross
negligence or willful misconduct in connection with its duties expressly
set
forth herein), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan Party
or
any officer thereof, contained herein or in any other Loan Document, or in
any
certificate, report, statement or other document referred to or provided
for in,
or received by an Administrative Agent under or in connection with, this
Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan
Document, or the perfection or priority of any Lien or security interest
created
or purported to be created under the Collateral Documents, or for any failure
of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under
any
obligation to any Lender or participant 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 or any Affiliate thereof.
9.04 Reliance
by Agents
.
(a) Each
Agent shall be entitled to rely, and shall be fully protected in relying,
upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made
by the proper Person or Persons, and upon advice and statements of legal
counsel
(including counsel to any Loan Party), independent accountants and other
experts
selected by such Agent. Except for their express obligations to the Loan
Parties
under the Loan Documents, each Agent shall be fully justified in failing
or
refusing to take any action under any Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, 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 Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance
with
a request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and
any
action taken or failure to act pursuant thereto shall be binding upon all
the
Lenders.
(b) For
purposes of determining compliance with the conditions specified in Section
4.01,
each
Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
9.05 Notice
of Default
.
No
Administrative Agent shall be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment
of
principal, interest and fees required to be paid to such Administrative Agent
for the account of the Lenders, unless such Administrative Agent shall have
received written notice from a Lender or the U.S. Borrower referring to this
Agreement, describing such Default and stating that such notice is a “notice of
default.” The applicable Administrative Agent will notify the Lenders of its
receipt of any such notice. The Administrative Agents shall take such action
with respect to any Event of Default as may be directed by the Required Lenders
in accordance with Article
VIII;
provided,
however,
that
unless and until an Administrative Agent has received any such direction,
either
Administrative Agent may (but shall not be obligated to) take such action,
or
refrain from taking such action, with respect to such Event of Default as
it
shall deem advisable or in the best interest of the Lenders.
9.06 Credit
Decision; Disclosure of Information by Agents
.
Each
Lender acknowledges that no Agent-Related Person or any other Lender has
made
any representation or warranty to it, and that no act by any Agent hereafter
taken, including any consent to and acceptance of any assignment or review
of
the affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person or
any
other Lender to any Lender as to any matter, including whether Agent-Related
Persons or other Lenders have disclosed material information in their
possession. Each Lender represents to each Agent that it has, independently
and
without reliance upon any Agent-Related Person 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, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrowers and the
other
Loan Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person 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 investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to
the
Lenders by any Agent herein, such Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
9.07 Indemnification
of Agents
.
Whether
or not the transactions contemplated hereby are consummated, the Lenders
shall
indemnify upon demand each Agent-Related Person (to the extent not reimbursed
by
or on behalf of any Loan Party and without limiting the obligation of any
Loan
Party to do so), pro rata, and hold harmless each Agent-Related Person from
and
against any and all Indemnified Liabilities incurred by it; provided,
however,
that no
Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person’s own gross negligence or willful misconduct;
provided,
however,
that no
action taken in accordance with the directions of the Required Lenders shall
be
deemed to constitute gross negligence or willful misconduct for purposes
of this
Section
9.07;
provided,
further,
that to
the extent an L/C Issuer is entitled to indemnification under this Section
9.07
solely
in its capacity and role as L/C Issuer, only the Revolving Credit Lenders
holding Commitments under the Tranche under which such L/C Issuer is acting
in
such capacity shall be required to indemnify such L/C Issuer in accordance
with
this Section
9.07.
In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Liabilities, this Section
9.07
applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agents upon demand for their ratable share
of
any costs or out-of-pocket expenses (including Attorney Costs) incurred by
the
Administrative Agents in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of
rights or responsibilities under, this Agreement, any other Loan Document,
or
any document contemplated by or referred to herein, to the extent that either
Administrative Agent is not reimbursed for such expenses by or on behalf
of the
Borrowers. The undertaking in this Section
9.07
shall
survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of either Administrative Agent.
9.08 Agents
in Their Individual Capacities
.
UBS AG,
Stamford Branch and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire Equity Interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though UBS AG, Stamford Branch were not the U.S. Administrative Agent
or the
Canadian Administrative Agent hereunder and without notice to or consent
of the
Lenders. The Lenders acknowledge that, pursuant to such activities, UBS AG,
Stamford Branch or its Affiliates may receive information regarding any Loan
Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate)
and
acknowledge that the Administrative Agents shall be under no obligation to
provide such information to them. With respect to its Loans, UBS AG, Stamford
Branch and its Affiliates shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as
though
it were not the U.S. Administrative Agent and the Canadian Administrative
Agent,
and the terms “Lender” and “Lenders” include UBS AG, Stamford Branch in its
individual capacity.
9.09 Successor
Agents
.
Either
Administrative Agent may resign as an Administrative Agent upon thirty (30)
days’ notice to the Lenders. If an Administrative Agent resigns under this
Agreement, the Required Lenders (or the Requisite Class Lenders holding Canadian
Commitments, with respect to a resignation by the Canadian Administrative
Agent)
shall appoint from among the Lenders a successor agent for such Lenders,
which
successor agent shall be consented to by the U.S. Borrower at all times other
than during the existence of an Event of Default under Section 8.01(a)
or
(f)
(which
consent of the U.S. Borrower shall not be unreasonably withheld or delayed).
If
no successor agent is appointed prior to the effective date of the resignation
of an Administrative Agent, such Administrative Agent may appoint, after
consulting with the Lenders and the U.S. Borrower, a successor agent from
among
the applicable Lenders. Upon the acceptance of its appointment as successor
agent hereunder, the Person acting as such successor agent shall succeed
to all
the rights, powers and duties of the retiring applicable Administrative Agent
and the term “U.S. Administrative Agent,” or “Canadian Administrative Agent,” as
the case may be shall mean such successor administrative agent and/or
supplemental administrative agent, as the case may be, and the applicable
retiring Administrative Agent’s appointment, powers and duties as the applicable
Administrative Agent shall be terminated. After the applicable retiring
Administrative Agent’s resignation hereunder as the applicable Administrative
Agent, the provisions of this Article
IX
and
Sections 10.04
and
10.05
shall
inure to its benefit as to any actions taken or omitted to be taken by it
while
it was the applicable Administrative Agent under this Agreement. If no successor
agent has accepted appointment as the applicable Administrative Agent by
the
date which is thirty (30) days following the applicable retiring Administrative
Agent’s notice of resignation, such retiring Administrative Agent’s resignation
shall nevertheless thereupon become effective and the Lenders shall perform
all
of the duties of such Administrative Agent hereunder until such time, if
any, as
the Required Lenders (or the Requisite Class Lenders holding Canadian
Commitments, with respect to a resignation by the Canadian Administrative
Agent)
appoint a successor agent as provided for above. Upon the acceptance of any
appointment as an Administrative Agent hereunder by a successor every successor
Administrative Agent shall thereupon succeed to and become vested with all
the
rights, powers, discretion, privileges, and duties of such retiring
Administrative Agent, and such retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After an
Administrative Agent’s resignation hereunder as an Administrative Agent, the
provisions of this Article
IX
shall
continue in effect for its benefit in respect of any actions taken or omitted
to
be taken by it while it was acting as Administrative Agent.
9.10 Administrative
Agents May File Proofs of Claim
.
In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agents (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due
and
payable as herein expressed or by declaration or otherwise and irrespective
of
whether an Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to
file
and prove a claim for the whole amount of the principal and interest owing
and
unpaid in respect of the Loans, L/C Obligations and all other Obligations
that
are owing and unpaid and to file such other documents as may be necessary
or
advisable in order to have the claims of the Lenders and the Administrative
Agents (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agents and
their respective agents and counsel and all other amounts due the Lenders
and
the Administrative Agents under Sections
2.03(i)
and
(j),
2.09
and
10.04)
allowed
in such judicial proceeding; and
(b) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each
Lender to make such payments to the Administrative Agents and, in the event
that
the Administrative Agents shall consent to the making of such payments directly
to the Lenders, to pay to the Administrative Agents any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agents
and
their respective agents and counsel, and any other amounts due the
Administrative Agents under Sections 2.09
and
10.04.
Nothing
contained herein shall be deemed to authorize the Administrative Agents to
authorize or consent to or accept or adopt on behalf of any Lender any plan
of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agents to
vote in
respect of the claim of any Lender in any such proceeding.
9.11 Collateral
and Guaranty Matters
.
The
Lenders irrevocably authorize the Administrative Agents, at their option
and in
their discretion,
(a) to
release any Lien on any property granted to or held by such Administrative
Agent
under any Loan Document (i) upon termination of the Aggregate Commitments
and
payment in full of all Obligations (other than (x) obligations under Secured
Hedge Agreements, (y) Cash Management Obligations not yet due and payable
and
(z)contingent indemnification obligations not yet accrued and payable) and
the
expiration or termination of all Letters of Credit, (ii) that is transferred
or
to be transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document (other than to a Loan Party),
(iii) subject to Section
10.01,
if
approved, authorized or ratified in writing by the Required Lenders or (iv)
owned by a Guarantor upon release of such Guarantor from its obligations
under
its Guaranty pursuant to clause
(c)
below;
(b) to
subordinate any Lien on any property granted to or held by the applicable
Administrative Agent under any Loan Document to the holder of any Lien on
such
property that is permitted by Section 7.01(i);
and
(c) to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Restricted Subsidiary as a result of a transaction permitted
hereunder.
Upon
request by either Administrative Agent at any time, the Required Lenders
will
confirm in writing such Administrative Agent’s authority to release its interest
in particular types or items of property, or to release any Guarantor from
its
obligations under the Guaranty pursuant to this Section
9.11.
In each
case as specified in this Section
9.11,
the
applicable Administrative Agent will, at the U.S. Borrower’s expense, execute
and deliver to the applicable Loan Party such documents as such Loan Party
may
reasonably request to evidence the release of such item of Collateral from
the
assignment and security interest granted under the Collateral Documents,
or to
release such Guarantor from its obligations under the Guaranty, in each case
in
accordance with the terms of the Loan Documents and this Section
9.11.
9.12 Other
Agents; Arrangers and Managers
.
None of
the Lenders or other Persons identified on the facing page or signature pages
of
this Agreement as a “syndication agent”, “documentation agent”, “co-agent”,
“co-book manager” or “co-arranger” shall have any obligation, liability,
responsibility or duty under this Agreement other than those applicable to
all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will
not
rely, on any of the Lenders or other Persons so identified in deciding to
enter
into this Agreement or in taking or not taking action hereunder.
9.13 Appointment
of Supplemental Administrative Agents
.
(a) It
is the
purpose of this Agreement and the other Loan Documents that there shall be
no
violation of any Law of any jurisdiction denying or restricting the right
of
banking corporations or associations to transact business as agent or trustee
in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of
the
enforcement of any of the Loan Documents, or in case either Administrative
Agent
deems that by reason of any present or future Law of any jurisdiction it
may not
exercise any of the rights, powers or remedies granted herein or in any of
the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, either Administrative Agent is hereby
authorized to appoint an additional individual or institution selected by
such
Administrative Agent in its sole discretion as a separate trustee, co-trustee,
administrative agent, collateral agent, administrative sub-agent or
administrative co-agent (any such additional individual or institution being
referred to herein individually as a “U.S.
Supplemental Administrative Agent”
or
the
“Canadian
Supplemental Administrative Agent,”
as
applicable, and collectively as “Supplemental
Administrative Agents”).
(b) In
the
event that either Administrative Agent appoints a Supplemental Administrative
Agent with respect to any Collateral, (i) each and every right, power, privilege
or duty expressed or intended by this Agreement or any of the other Loan
Documents to be exercised by or vested in or conveyed to such Administrative
Agent with respect to such Collateral shall be exercisable by and vest in
such
Supplemental Administrative Agent to the extent, and only to the extent,
necessary to enable such Supplemental Administrative Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary or related to the exercise
or
performance thereof by such Supplemental Administrative Agent shall run to
and
be enforceable by either such Administrative Agent or such Supplemental
Administrative Agent, and (ii) the provisions of this Article
IX
and of
Section
9.07
(obligating the U.S. Borrower to pay the Administrative Agents’ expenses and to
indemnify the Administrative Agents) that refer to such Administrative Agent
shall inure to the benefit of such Supplemental Administrative Agent and
all
references therein to such Administrative Agent shall be deemed to be references
to such Administrative Agent and/or such Supplemental Administrative Agent,
as
the context may require.
(c) Should
any instrument in writing from the U.S. Borrower, Holdings or any other Loan
Party be required by any Supplemental Administrative Agent so appointed by
an
Administrative Agent for more fully and certainly vesting in and confirming
to
him or it such rights, powers, privileges and duties, the U.S. Borrower or
Holdings, as applicable, shall, or shall cause such Loan Party to, execute,
acknowledge and deliver any and all such instruments promptly upon request
by
such Administrative Agent. In case any Supplemental Administrative Agent,
or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental
Administrative Agent, to the extent permitted by Law, shall vest in and be
exercised by such Administrative Agent until the appointment of a new
Supplemental Administrative Agent.
ARTICLE
X
MISCELLANEOUS
10.01 Amendments,
Etc.
No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrowers or any other Loan
Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrowers or the applicable Loan Party, as the case may be,
and
each such waiver or consent shall be effective only in the specific instance
and
for the specific purpose for which given; provided,
however,
that no
such amendment, waiver or consent shall:
(a) extend
or
increase the Commitment of any Lender without the written consent of each
Lender
directly affected thereby (it being understood that a waiver of any condition
precedent set forth in Section
4.02
or the
waiver of any Event of Default or mandatory prepayment or mandatory reduction
of
the Commitments pursuant to Section
2.05
shall
not constitute an extension or increase of any Commitment of any
Lender);
(b) postpone
any date scheduled for any payment of principal, interest or fees under
Section
2.07,
2.08
or
2.09
without
the written consent of each Lender directly affected thereby, it being
understood that the waiver of any mandatory prepayment of the Term B Loans
pursuant to Section
2.05
shall
not constitute a postponement of any date scheduled for the payment of principal
or interest;
(c) reduce
or
forgive the principal of, or the rate of interest specified herein on, any
Loan
or L/C Borrowing, or (subject to clause
(iii)
of the
second proviso to this Section
10.01)
any
fees or other amounts payable hereunder or under any other Loan Document
without
the written consent of each Lender directly affected thereby, it being
understood that any change to the definition of Leverage Ratio or in the
component definitions thereof shall not constitute a reduction in the rate;
provided,
however,
that
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of a Borrower to pay
interest at the Default Rate;
(d) change
the order of application of any reduction in the Commitments or any prepayment
of Loans between the Facilities from the application thereof set forth in
the
applicable provisions of Section
2.05(b)
or
2.06(b),
respectively, in any manner that materially and adversely affects the Lenders
under such Facilities without the written consent of the Requisite Class
Lenders
of each affected Tranche;
(e) change
any provision of this Section
10.01
or the
definition of “Required Lenders” without the written consent of each Lender or
change any other provision of any Loan Document specifying the number or
percentage of Lenders (or the Lenders under any Tranche, as the case may
be)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent
of
such specified number or percentage of the Lenders (or the Lenders under
such
Tranche, as the case may be);
(f) release
all or substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;
(g) other
than in connection with a transaction permitted under Section
7.04
or
7.05,
release
all or substantially all of the value of the Guaranty, without the written
consent of each Lender; or
(h) change
the application of proceeds provisions of Section
8.03,
the pro
rata treatment provisions of Section
2.12,
or the
sharing of payment provisions of Section
2.13
without
the consent of each Lender adversely affected thereby;
and
provided,
further,
that
(i) no amendment, waiver or consent shall, unless in writing and signed by
the
applicable L/C Issuer in addition to the Lenders required above, affect the
rights or duties of such L/C Issuer under this Agreement or any Letter of
Credit
Application relating to any Letter of Credit issued or to be issued by it;
(ii)
no amendment, waiver or consent shall, unless in writing and signed by the
applicable Swing Line Lender in addition to the Lenders required above, affect
the rights or duties of such Swing Line Lender under this Agreement; (iii)
no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent to be effected thereby in addition to the Lenders required
above, affect the rights or duties of, or any fees or other amounts payable
to,
such Administrative Agent under this Agreement or any other Loan Document;
(iv)
Section
10.07(g)
may not
be amended, waived or otherwise modified without the consent of each Granting
Lender all or any part of whose Loans are being funded by an SPC at the time
of
such amendment, waiver or other modification; (v) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed only by
the
parties thereto; (vi) no amendment may be made to the Loan Documents prior
to
the completion of syndication of the Commitments and the Loans (as determined
by
the Arrangers) without the prior consent of UBS AG, Stamford Branch and CSFB
and
(vii) the definition of “Super Majority Lenders” may not be amended without
the written consent of the Super Majority Lenders. Notwithstanding anything
to
the contrary herein, no Defaulting Lender shall have any right to approve
or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender (it being understood that any Commitments or Loans held or
deemed
held by any Defaulting Lender shall be excluded for a vote of the Lenders
hereunder requiring any consent of the Lenders).
Notwithstanding
the foregoing, this Agreement may be amended (or amended and restated) with
the
written consent of the Required Lenders, the Administrative Agents, Holdings
and
the Borrowers (a) to add one or more additional credit facilities to this
Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share
ratably
in the benefits of this Agreement and the other Loan Documents with the Term
B
Loans and the applicable Revolving Credit Loans and the accrued interest
and
fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required
Lenders.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agents, Holdings, the Borrowers and
the
Lenders providing the relevant Replacement Term B Loans (as defined below)
to
permit the refinancing of all outstanding Term B Loans (“Refinanced
Term Loans”)
with a
replacement Term B Loan tranche hereunder (“Replacement
Term Loans”);
provided
that
(a) the aggregate principal amount of such Replacement Term Loans shall not
exceed the aggregate principal amount of such Refinanced Term Loans,
(b) the Applicable Rate for such Replacement Term Loans shall not be higher
than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted
Average Life to Maturity of such Replacement Term Loans shall not be shorter
than the Weighted Average Life to Maturity of such Refinanced Term Loans
at the
time of such refinancing (except to the extent of nominal amortization for
periods where amortization has been eliminated as a result of prepayment
of the
Term B Loans) and (d) all other terms applicable to such Replacement Term
Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than, those applicable to such Refinanced
Term Loans, except to the extent necessary to provide for covenants and other
terms applicable to any period after the latest final maturity of the Term
B
Loans in effect immediately prior to such refinancing.
Notwithstanding
anything to the contrary contained in Section 10.01, in the event that the
Borrowers request that this Agreement be modified or amended in a manner
that
would require the unanimous consent of all of the Lenders and such modification
or amendment is agreed to by the Super Majority Lenders (as hereinafter
defined), then with the consent of the Borrowers and the Super Majority Lenders,
the Borrowers and the Super Majority Lenders shall be permitted to amend
the
Agreement without the consent of the Lender or Lenders that did not agree
to the
modification or amendment requested by the Borrowers (such Lender or Lenders,
collectively the “Minority
Lenders”)
to
provide for (w) the termination of the Commitment of each of the Minority
Lenders, (x) the addition to this Agreement of one or more other financial
institutions (each of which shall be an Eligible Assignee and shall consent
to
the requested modification or amendment), or an increase in the Commitment
of
one or more of the Super Majority Lenders (with the written consent thereof),
so
that the total Commitment after giving effect to such amendment shall be
in the
same amount as the total Commitment immediately before giving effect to such
amendment (provided
that in
the case of such an assignment to an Eligible Assignee, such assignee shall
pay
the processing and recordation fee referred to in Section 10.07(b)),
(y) if any Loans are outstanding at the time of such amendment, the making
of such additional Loans by such new financial institutions or Super Majority
Lender or Lenders, as the case may be, as may be necessary to repay in full,
at
par, the outstanding Loans of and interest and fees payable to the Minority
Lenders immediately before giving effect to such amendment and (z) such
other modifications to this Agreement as may be appropriate to effect the
foregoing clauses (w), (x) and (y). As used herein, the term “Super
Majority Lenders”
shall
mean, as of any date of determination, Lenders having more than 66 2/3% of
the sum of the (a) Total Outstandings (with the aggregate amount of each
Lender’s risk participation and funded participation in L/C Obligations and
Swing Line Loans (in each case, based on the U.S. Dollar Equivalent thereof
to
the extent denominated in Canadian Dollars) being deemed “held” by such Lender
for purposes of this definition); (b) aggregate unused Term Commitments and
(c) aggregate unused Revolving Credit Commitments; provided
that the
unused Term Commitment, unused Revolving Credit Commitment of, and the portion
of the Total Outstandings held or deemed held by, any Defaulting Lender shall
be
excluded for purposes of making a determination of Super Majority
Lenders.
10.02 Notices
and Other Communications; Facsimile Copies
.
(a) General.
Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder or any other Loan Document shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed
or
delivered to the applicable address, facsimile number or (subject to
Section
10.02(c))
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if
to a
Borrower, an Administrative Agent, an L/C Issuer or a Swing Line Lender,
to the
address, facsimile number, electronic mail address or telephone number specified
for such Person on Schedule
10.02
or to
such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and
(ii) if
to any
other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire or to such
other
address, facsimile number, electronic mail address or telephone number as
shall
be designated by such party in a notice to the applicable Borrowers, the
applicable Administrative Agent, the applicable L/C Issuer and the applicable
Swing Line Lender.
All
such
notices and other communications shall be deemed to be given or made upon
the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A)
if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, four (4) Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of Section
10.02(c)),
when
delivered; provided,
however,
that
notices and other communications to an Administrative Agent, L/C Issuer or
Swing
Line Lender pursuant to Article
II
shall
not be effective until actually received by such Person; provided,
further,
that
failure to deliver courtesy copies of notices and other communications shall
in
no event affect the validity or effectiveness of such notices and other
communications. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness
of Facsimile Documents and Signatures.
Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of
any such documents and signatures shall, subject to applicable Law, have
the
same force and effect as manually-signed originals and shall be binding on
all
Loan Parties, the Agents and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided,
however,
that
the failure to request or deliver the same shall not limit the effectiveness
of
any facsimile document or signature.
(c) Limited
Use of Electronic Mail.
Electronic mail and Internet and intranet websites may be used only to
distribute routine communications, such as financial statements and other
information as provided in Section
6.02,
and to
distribute Loan Documents for execution by the parties thereto, and may not
be
used for any other purpose.
(d) Reliance
by Agents and Lenders.
The
Administrative Agents and the Lenders shall be entitled to rely and act upon
any
notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrowers even if (i) such
notices were not made in a manner specified herein, were incomplete or were
not
preceded or followed by any other form of notice specified herein, or (ii)
the
terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrowers shall indemnify each Agent-Related Person and each
Lender
from all losses, costs, expenses and liabilities resulting from the reliance
by
such Person on each notice purportedly given by or on behalf of the Borrowers
in
the absence of gross negligence or willful misconduct. All telephonic notices
to
an Administrative Agent may be recorded by such Administrative Agent, and
each
of the parties hereto hereby consents to such recording.
10.03 No
Waiver; Cumulative Remedies
.
No
failure by any Lender or an Administrative Agent to exercise, and no delay
by
any such Person in exercising, any right, remedy, power or privilege hereunder
or under any other Loan Document 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, and provided under each other Loan Document,
are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by Law.
10.04 Attorney
Costs, Expenses and Taxes
.
The U.S.
Borrower agrees (a) to pay or reimburse the Agents for all reasonable costs
and
expenses incurred in connection with the preparation, negotiation, syndication
and execution of the commitments to provide the Credit Extensions hereunder,
this Agreement and the other Loan Documents, and any actual or proposed
amendment, waiver, consent or other modification of the provisions hereof
and
thereof (whether or not the transactions contemplated thereby are consummated),
and the consummation and administration of the transactions contemplated
hereby
and thereby, including all Attorney Costs of Xxxxxx Xxxxxx &
Xxxxxxx llp
and
local counsel,
and (b)
to pay or reimburse the Agents and each Lender for all reasonable costs and
expenses incurred in connection with the enforcement of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs
and
expenses incurred during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs of counsel to the Agents.
The foregoing costs and expenses shall include all search, filing, recording,
title insurance and appraisal charges and fees and taxes related thereto
and all
other expenses relating to the perfection, preservation or enforcement of
the
Liens on Collateral, and other out-of-pocket expenses incurred by any Agent.
All
amounts due under this Section
10.04
shall be
paid within twenty (20) Business Days after invoiced or demand therefor.
The
agreements in this Section
10.04
shall
survive the termination of the Aggregate Commitments and repayment of all
other
Obligations. If any Loan Party fails to pay when due any costs, expenses
or
other amounts payable by it hereunder or under any Loan Document, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender, in its sole discretion.
10.05 Indemnification
by the Borrowers
.
Whether
or not the transactions contemplated hereby are consummated, the Borrowers
shall
indemnify and hold harmless each Agent-Related Person, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and,
in
the case of any funds, trustees and advisors and attorneys-in-fact (collectively
the “Indemnitees”)
from
and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements
(including Attorney Costs (which shall be limited to one (1) counsel to the
Administrative Agents and the Lenders (plus any local counsel), unless
(x) the interests of the Administrative Agents and the Lenders are
sufficiently divergent, in which case one (1) additional counsel may be
appointed, and (y) if the interests of any Lender or group of Lenders
(other than all of the Lenders) are distinctly or disproportionately affected,
one (1) additional counsel for such Lender or group of Lenders)) of any kind
or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against any such Indemnitee in any way relating to or arising out of or in
connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment,
Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by an L/C Issuer to honor a demand for payment under
a
Letter of Credit if the documents presented in connection with such demand
do
not strictly comply with the terms of such Letter of Credit), or (c) any
actual
or alleged presence, Release or threatened Release of Hazardous Materials
at,
under, on or from any property currently or formerly owned or operated by
the
U.S. Borrower, any Subsidiary or any other Loan Party, or any Environmental
Liability related in any way to the U.S. Borrower, any Subsidiary or any
other
Loan Party, or (d) any actual or prospective claim, litigation, investigation
or
proceeding relating to any of the foregoing, whether based on contract, tort
or
any other theory (including any investigation of, preparation for, or defense
of
any pending or threatened claim, investigation, litigation or proceeding)
and
regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the “Indemnified
Liabilities”),
in
all cases, whether or not caused by or arising, in whole or in part, out
of the
negligence of the Indemnitee; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses or disbursements are determined
by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee
or
breach of the Loan Documents by such Indemnitee. No Indemnitee shall be liable
for any damages arising from the use by others of any information or other
materials obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee or any
Loan
Party have any liability for any special, punitive, indirect or consequential
damages relating to this Agreement or any other Loan Document or arising
out of
its activities in connection herewith or therewith (whether before or after
the
Closing Date). In the case of an investigation, litigation or other proceeding
to which the indemnity in this Section
10.05
applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnitee or any other Person, whether or not any Indemnitee
is
otherwise a party thereto and whether or not any of the transactions
contemplated hereunder or under any of the other Loan Documents is consummated.
All amounts due under this Section
10.05
shall be
payable within twenty (20) Business Days after demand therefor; provided
that any
Indemnitee shall promptly refund amounts paid to such Indemnitee pursuant
to
this Section
10.05
to the
extent that a court of competent jurisdiction determines in a final,
nonappealable judgment that such Indemnitee was not entitled to indemnification
with respect to such payment pursuant to the express terms of this Section
10.05.
The
agreements in this Section
10.05
shall
survive the resignation of either Administrative Agent, the replacement of
any
Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.06 Payments
Set Aside
.
To the
extent that any payment by or on behalf of any Borrower is made to any Agent
or
any Lender, or any Agent or any Lender exercises its right of setoff, and
such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by such Agent or such
Lender
in its discretion) to be repaid to a trustee, receiver or any other party,
in
connection with any proceeding under any Debtor Relief Law or otherwise,
then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect
as if such payment had not been made or such setoff had not occurred, and
(b)
each Lender severally agrees to pay to the applicable Administrative Agent
upon
demand its applicable share of any amount so recovered from or repaid by
any
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate (to the
extent such amount was required to be paid in Dollars) or the Canadian Prime
Rate (to the extent such amount was required to be paid in Canadian Dollars)
from time to time in effect.
10.07 Successors
and Assigns
.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted
hereby,
except that Holdings and the Borrowers may not assign or otherwise transfer
any
of their rights or obligations hereunder (except as expressly permitted by
Article VII)
without
the prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section
10.07(b),
(ii) by
way of participation in accordance with the provisions of Section
10.07(d),
(iii)
by way of pledge or assignment of a security interest subject to the
restrictions of Section
10.07(f)
or
(h)
or (iv)
to an SPC in accordance with the provisions of Section
10.07(g)
(and any
other attempted assignment or transfer by any party hereto shall be null
and
void). Nothing in this Agreement, expressed or implied, shall be construed
to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided
in
Section 10.07(d)
and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans (including for purposes of this Section
10.07(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing
to
it); provided
that (i)
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect,
the outstanding principal balance of the Loan of the assigning
Lender subject
to each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent
or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, in the case of any assignment in
respect of the U.S. Revolving Credit Facility or the Canadian Facility, or
$1,000,000, in the case of any assignment in respect of the Term B Facility,
except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, unless
each of the applicable Administrative Agent and, so long as no Default has
occurred and is continuing, the U.S. Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all
the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loans or the Commitment assigned, except that this clause
(ii)
shall
not (x) apply to rights in respect of Swing Line Loans or (y) prohibit any
Lender from assigning all or a portion of its rights and obligations among
separate Facilities on a non-pro rata basis; (iii) any assignment of a U.S.
Revolving Credit Commitment must be approved by the U.S. Administrative Agent,
the U.S. L/C Issuer and the U.S. Swing Line Lender, and any assignment of
a
Canadian Credit Commitment must be approved by the Canadian Administrative
Agent, the Canadian Swing Line Lender and the Canadian L/C Issuer, in each
case
unless the Person that is the proposed assignee is itself a Revolving Credit
Lender of the applicable Facility (whether or not the proposed assignee would
otherwise qualify as an Eligible Assignee); (iv) the parties to each assignment
shall execute and deliver to the applicable Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500;
and
(v) the assigning Lender shall deliver any Notes evidencing such Loans to
the U.S. Borrower or the applicable Administrative Agent; provided,
further,
that in
the case of an assignment to an Affiliate of the assigning Lender, such
assignment shall be effective as between such Lender and its Affiliate
immediately without compliance with the conditions for assignment under this
Section
10.07(b)
or
Section
10.07(d),
but
shall not be effective with respect to any Borrower, Administrative Agent,
L/C
Issuer, Swing Line Lender or any other Lender, and each Borrower, Administrative
Agent, L/C Issuer, Swing Line Lender or other Lender shall be entitled to
deal
solely with (and continue to treat as the Lender hereunder for all purposes)
such assigning Lender under any such assignment, in each case, until the
conditions for assignment under this Section
10.07(b)
and
Section
10.07(c)
have
been complied with.
Subject
to acceptance and recording thereof by the applicable Administrative Agent
pursuant to Section
10.07(c),
from
and after the effective date specified in each Assignment and Assumption,
the
Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections
3.01,
3.04,
3.05,
10.04
and
10.05
with
respect to facts and circumstances occurring prior to the effective date
of such
assignment). Upon request, and the surrender by the assigning Lender of its
Note, the applicable Borrowers (at its expense) shall execute and deliver
a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights
or
obligations under this Agreement that does not comply with this clause
(b)
shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
10.07(d).
(c) Each
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at its Administrative Agent’s Office a copy of each
Assignment and Assumption relating to the Canadian Loans in the case of the
Canadian Administrative Agent and relating to the U.S. Loans in the case
of the
U.S. Administrative Agent delivered to it and a register for the recordation
of
the names and addresses of the applicable Lenders, and the applicable
Commitments of, and principal amounts (and related interest amounts) of the
applicable Loans, applicable L/C Obligations (specifying the Unreimbursed
Amounts), L/C Borrowings and amounts due under Section 2.03,
owing
to, each Lender pursuant to the terms hereof from time to time (each, a
“Register”).
The
entries in the applicable Register shall be conclusive, absent manifest error,
and the Borrowers, the Agents and the Lenders shall treat each Person whose
name
is recorded in such Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The
Registers shall be available for inspection by the Borrowers, any Agent and
any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any
Lender may at any time, without the consent of, or notice to, the Borrower
or
the Administrative Agent, sell participations to any Person (other than a
natural person) (each, a “Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including
such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to
it); provided
that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Agents and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such
a
participation shall provide that such Lender shall retain the sole right
to
enforce this Agreement and to approve any amendment, modification or waiver
of
any provision of this Agreement; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section
10.01
that
directly affects such Participant. Subject to Section
10.07(e),
the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections
3.01,
3.04
and
3.05 to
the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section
10.07(b)
but
shall not be entitled to recover greater amounts under such Sections
than the
selling Lender would have been entitled to recover. To the extent permitted
by
law, each Participant also shall be entitled to the benefits of Section 10.09 as
though
it were a Lender, provided
such
Participant agrees to be subject to Section
2.13
as
though it were a Lender.
(e) A
Participant shall not be entitled to receive any greater payment under
Section
3.01,
3.04
or
3.05 than
the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to
such Participant is made with the applicable Borrower’s prior written consent. A
Participant shall not be entitled to the benefits of Section 3.01
unless
the applicable Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the applicable
Borrower, to comply with Section 10.15
as
though it were a Lender.
(f) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if
any) to
secure obligations of such Lender, including any pledge or assignment to
secure
obligations to a Federal Reserve Bank; provided
that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party
hereto.
(g) Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting
Lender”)
may
grant to a special purpose funding vehicle identified as such in writing
from
time to time by the Granting Lender to the applicable Administrative Agent
and
the applicable Borrower (an “SPC”)
the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided
that (i)
nothing herein shall constitute a commitment by any SPC to fund any Loan,
and
(ii) if an SPC elects not to exercise such option or otherwise fails to make
all
or any part of such Loan, the Granting Lender shall be obligated to make
such
Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations
of the Borrowers under this Agreement (including their obligations under
Section 3.01
or
3.04),
(ii)
no SPC shall be liable for any indemnity or similar payment obligation under
this Agreement for which a Lender would be liable, and (iii) the Granting
Lender
shall for all purposes, including the approval of any amendment, waiver or
other
modification of any provision of any Loan Document, remain the lender of
record
hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made
by
such Granting Lender. Notwithstanding anything to the contrary contained
herein,
any SPC may (i) with notice to, but without prior consent of the U.S.
Borrower and the applicable Administrative Agent and with the payment of
a
processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (ii) disclose
on a
confidential basis any non-public information relating to its funding of
Loans
to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.
(h) Notwithstanding
anything to the contrary contained herein, any Lender that is a Fund may
create
a security interest in all or any portion of the Loans owing to it and the
Note,
if any, held by it to the trustee for holders of obligations owed, or securities
issued, by such Fund as security for such obligations or securities;
provided
that
unless and until such trustee actually becomes a Lender in compliance with
the
other provisions of this Section
10.07,
(i) no
such pledge shall release the pledging Lender from any of its obligations
under
the Loan Documents and (ii) such trustee shall not be entitled to exercise
any
of the rights of a Lender under the Loan Documents even though such trustee
may
have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(i) Notwithstanding
anything to the contrary contained herein, if at any time Bank of America,
N.A.
or UBS Loan Finance LLC assigns all of its U.S. Commitments and U.S. Loans
pursuant to Section
10.07(b),
Bank of
America, N.A. or UBS Loan Finance LLC may, (i) upon thirty (30) days’ notice to
the U.S. Borrower and the applicable U.S. Lenders, resign as a U.S. L/C Issuer
and/or (ii) upon thirty (30) days’ notice to the U.S. Borrower, resign as U.S.
Swing Line Lender. In the event of any such resignation as U.S. L/C Issuer
or
U.S. Swing Line Lender, the U.S. Borrower shall be entitled to appoint from
among the U.S. Lenders a successor U.S. L/C Issuer or U.S. Swing Line Lender
under the U.S. Revolving Credit Facility hereunder; provided,
however,
that no
failure by the U.S. Borrower to appoint any such successor shall affect the
resignation of Bank of America, N.A. or UBS Loan Finance LLC, as applicable,
as
a U.S. L/C Issuer or U.S. Swing Line Lender, as the case may be. If Bank
of
America, N.A. resigns as U.S. L/C Issuer, it shall retain all the rights
and
obligations of the U.S. L/C Issuer hereunder with respect to all U.S. Letters
of
Credit issued by it that are outstanding as of the effective date of its
resignation as a U.S. L/C Issuer and all U.S. L/C Obligations with respect
thereto (including the right to require the applicable Lenders to make Base
Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to
Section
2.03(c)).
If UBS
Loan Finance LLC resigns as U.S. Swing Line Lender, it shall retain all the
rights of the U.S. Swing Line Lender provided for hereunder with respect
to U.S.
Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate
Loans
or fund risk participations in outstanding U.S. Swing Line Loans pursuant
to
Section
2.04(c).
(j) Notwithstanding
anything to the contrary contained herein, if at any time Bank of America,
N.A.
(Canada Branch) or UBS AG Canada Branch assigns all of its Canadian Commitments
and Canadian Loans pursuant to Section
10.07(b),
Bank of
America, N.A. (Canada Branch) or UBS AG Canada Branch may, (i) upon thirty
(30)
days’ notice to the Canadian Borrower and the applicable Canadian Lenders,
resign as a Canadian L/C Issuer and/or (ii) upon thirty (30) days’ notice to the
Canadian Borrower, resign as Canadian Swing Line Lender. In the event of
any
such resignation as Canadian L/C Issuer or Canadian Swing Line Lender, the
Canadian Borrowers shall be entitled to appoint from among the Canadian Lenders
a successor Canadian L/C Issuer or Canadian Swing Line Lender under the Canadian
Facility hereunder; provided,
however,
that no
failure by the Canadian Borrowers to appoint any such successor shall affect
the
resignation of Bank of America, N.A. (Canada Branch) or UBS AG Canada Branch,
as
applicable, as a Canadian L/C Issuer or Canadian Swing Line Lender, as the
case
may be. If Bank of America, N.A. (Canada Branch) resigns as Canadian L/C
Issuer,
it shall retain all the rights and obligations of the Canadian L/C Issuer
hereunder with respect to all Canadian Letters of Credit issued by it that
are
outstanding as of the effective date of its resignation as a Canadian L/C
Issuer
and all Canadian L/C Obligations with respect thereto (including the right
to
require the applicable Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section
2.03(c)).
If UBS
AG Canada Branch, resigns as Canadian Swing Line Lender, it shall retain
all the
rights of the Canadian Swing Line Lender provided for hereunder with respect
to
Canadian Swing Line Loans made by it and outstanding as of the effective
date of
such resignation, including the right to require the Lenders to make Base
Rate
Loans or fund risk participations in outstanding Canadian Swing Line Loans
pursuant to Section
2.04(c).
(k) For
the
avoidance of doubt any reallocation of Loans as contemplated by Article
II
shall
not be subject to the provisions of this Section
10.07.
10.08 Confidentiality
.
Each of
the Agents and the Lenders agrees to maintain the confidentiality of the
Information, except that Information may be disclosed (a) to its directors,
officers, employees and agents, including accountants, legal counsel and
other
advisors (it being understood that the Persons to whom such disclosure is
made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by applicable Laws or
regulations or by any subpoena or similar legal process; (d) to any other
party
to this Agreement; (e) subject to an agreement containing provisions
substantially the same as those of this Section
10.08
(or as
may otherwise be reasonably acceptable to the Borrower), to any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement; (f)
with
the consent of any Borrower; (g) to the extent such
Information becomes publicly available other than as a result of a breach
of this Section
10.08;
(h) to
any state, provincial, Federal or foreign authority or examiner (including
the
National Association of Insurance Commissioners or any other similar
organization) regulating any Lender; (i) to any rating agency when required
by
it (it being understood that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Information relating
to
the Loan Parties received by it from such Lender) or (j) in connection with
the
exercise of any remedy hereunder or any suit, action or proceeding relating
to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder. In addition, the Agents and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market
data
collectors, similar service providers to the lending industry, and service
providers to the Agents and the Lenders in connection with the administration
and management of this Agreement, the other Loan Documents, the Commitments,
and
the Credit Extensions. For the purposes of this Section 10.08,
“Information”
means
all information received from any Loan Party relating to any Loan Party or
its
business, other than any such information that is publicly available to any
Agent or any Lender prior to disclosure by any Loan Party other than as a
result
of a breach of this Section 10.08;
provided
that, in
the case of information received from a Loan Party after the date hereof,
such
information is clearly identified at the time of delivery as confidential.
Any
Person required to maintain the confidentiality of Information as provided
in
this Section
10.08
shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
10.09 Setoff
.
In
addition to any rights and remedies of the Lenders provided by Law, upon
the
occurrence and during the continuance of any Event of Default, each Lender
is
authorized at any time and from time to time, without prior notice to the
Borrowers or any other Loan Party, any such notice being waived by the Borrowers
(on their own behalf and on behalf of each Loan Party) to the fullest extent
permitted by Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
Indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing
to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall
have
made demand under this Agreement or any other Loan Document and although
such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or Indebtedness; provided
that, in
the case of any such deposits or other Indebtedness for the credit or the
account of any Canadian Subsidiary, such set off may only be against any
Canadian Obligations. Each Lender agrees promptly to notify the applicable
Borrower and the applicable Administrative Agent after any such setoff and
application made by such Lender; provided,
however,
that
the failure to give such notice shall not affect the validity of such setoff
and
application. The rights of the Administrative Agents and each Lender under
this
Section 10.09
are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) that the Administrative Agents and such Lender may have.
Notwithstanding anything herein or in any other Loan Document to the contrary,
in no event shall the assets of any Foreign Subsidiary constitute security,
or
shall the proceeds of such assets be available for, payment of the Obligations
with respect to the U.S. Facility, it being understood that (a) the Equity
Interests of any Foreign Subsidiary owned directly by a U.S. Loan Party do
not
constitute such an asset and (b) the provisions hereof shall not limit,
reduce or otherwise diminish in any respect the U.S. Borrower’s obligations to
make any mandatory prepayment pursuant to Section 2.05(b)(ii).
10.10 Interest
Rate Limitation
.
(a) Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid
or
agreed to be paid under the Loan Documents shall not exceed the maximum rate
of
non-usurious interest permitted by applicable Law (the “Maximum
Rate”).
If
any Agent or any Lender shall receive interest in an amount that exceeds
the
Maximum Rate, the excess interest shall be applied to the principal of the
Loans
or, if it exceeds such unpaid principal, refunded to the applicable Borrower.
In
determining whether the interest contracted for, charged, or received by
an
Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and
spread in equal or unequal parts the total amount of interest throughout
the
contemplated term of the Obligations hereunder.
(b) In
addition to the provisions of Section
10.10(a),
if any
provision of this Agreement or of any of the other Loan Documents would obligate
a Canadian Borrower or any other Canadian Loan Party to make any payment
of
interest or other amount payable to the Canadian Lender in an amount or
calculated at a rate which would be prohibited by law or would result in
a
receipt by a Canadian Lender of interest at a criminal rate (as such terms
are
construed under the Criminal
Code
(Canada)), then, notwithstanding such provisions, 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 Canadian Lender of interest at a criminal rate,
such
adjustment to be effected, to the extent necessary, as follows: (1) firstly,
by
reducing the amount or rate of interest required to be paid to such Lender
under
this Section
10.10(b),
and (2)
thereafter, by reducing any fees, commissions, premiums and other amounts
required to be paid to the Canadian Lender which would constitute “interest” for
purposes of Section 347 of the Criminal
Code
(Canada). Notwithstanding the foregoing, and after giving effect to all
adjustments contemplated thereby, if the Canadian Lender shall have received
an
amount in excess of the maximum permitted by that section of the Criminal
Code
(Canada), the excess shall be applied in accordance with Section
10.10(a).
Any
amount or rate of interest referred to in this Section
10.10(b)
shall be
determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that the
applicable Canadian Loan remains outstanding 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 Maturity Date and, in the event of a dispute, a certificate of
a
Fellow of the Canadian Institute of Actuaries appointed by Canadian
Administrative Agent shall be conclusive for the purposes of such
determination.
10.11 Counterparts
.
This
Agreement and each other Loan Document may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery by telecopier
of
an executed counterpart of a signature page to this Agreement and each other
Loan Document shall be effective as delivery of an original executed counterpart
of this Agreement and such other Loan Document. The Agents may also require
that
any such documents and signatures delivered by telecopier be confirmed by
a
manually-signed original thereof; provided
that the
failure to request or deliver the same shall not limit the effectiveness
of any
document or signature delivered by telecopier.
10.12 Integration
.
This
Agreement, together with the other Loan Documents, comprises the complete
and
integrated agreement of the parties on the subject matter hereof and thereof
and
supersedes all prior agreements, written or oral, on such subject matter.
In the
event of any conflict between the provisions of this Agreement and those
of any
other Loan Document, the provisions of this Agreement shall control;
provided
that the
inclusion of supplemental rights or remedies in favor of the Agents or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of
the
respective parties thereto and shall be construed neither against nor in
favor
of any party, but rather in accordance with the fair meaning
thereof.
10.13 Survival
of Representations and Warranties
.
All
representations and warranties made hereunder and in any other Loan Document
or
other document delivered pursuant hereto or thereto or in connection herewith
or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any
Lender
or on their behalf and notwithstanding that any Agent or any Lender may have
had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of
Credit
shall remain outstanding.
10.14 Severability
.
If any
provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall
not be
affected or impaired thereby. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
10.15 Tax
Forms
.
(a) (i)
Except in connection with a CAM Exchange (in which case each Foreign Lender
shall comply with Section
10.15(a)(i)
to the
extent practicable) each Lender and Agent that is not a “United States person”
within the meaning of Section 7701(a)(30) of the Code (each, a “Foreign
Lender”)
shall
deliver to the U.S. Borrower and the U.S. Administrative Agent, prior to
receipt
of any payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed, properly completed copies
of
either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender
and entitling it to an exemption from, or reduction of, United States
withholding tax on all payments to be made to such Foreign Lender by the
U.S.
Borrower or any other Loan Party pursuant to this Agreement or any other
Loan
Document) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Lender by the U.S. Borrower or any other Loan
Party
pursuant to this Agreement or any other Loan Document) or such other evidence
reasonably satisfactory to the U.S. Borrower and the U.S. Administrative
Agent
that such Foreign Lender is entitled to an exemption from, or reduction of,
United States withholding tax, including any exemption pursuant to Section
881(c) of the Code, and in the case of a Foreign Lender claiming such an
exemption under Section 881(c) of the Code, a certificate that establishes
in
writing to the U.S. Borrower and the U.S. Administrative Agent that such
Foreign
Lender is not (i) a “bank” as described in Section 881(c)(3)(A) of the Code,
(ii) a 10-percent shareholder within the meaning of Section 871(h)(3)(B)
of the
Code, and (iii) a controlled foreign corporation related to the U.S. Borrower
with the meaning of Section 864(d) of the Code. Thereafter and from time
to
time, each such Foreign Lender shall (A) promptly submit to the U.S. Borrower
and the U.S. Administrative Agent such additional duly completed and signed
copies of one or more of such forms or certificates (or such successor forms
or
certificates as shall be adopted from time to time by the relevant United
States
taxing authorities) as may then be available under then current United States
laws and regulations to avoid, or such evidence as is reasonably satisfactory
to
the U.S. Borrower and the U.S. Administrative Agent of any available exemption
from, or reduction of, United States withholding taxes in respect of all
payments to be made to such Foreign Lender by the U.S. Borrower or other
Loan
Party pursuant to this Agreement, or any other Loan Document, in each case,
(1) on or before the date that any such form, certificate or other evidence
expires or becomes obsolete, (2) after the occurrence of any event
requiring a change in the most recent form, certificate or evidence previously
delivered by it to the U.S. Borrower and the U.S. Administrative Agent and
(3) from time to time thereafter if reasonably requested by the U.S.
Borrower or the U.S. Administrative Agent, and (B) promptly notify the U.S.
Borrower and the U.S. Administrative Agent of any change in circumstances
which
would modify or render invalid any claimed exemption or reduction.
(ii) Each
Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Foreign
Lender under any of the Loan Documents (for example, in the case of a typical
participation by such Foreign Lender), shall deliver to the applicable Borrower
and the applicable Administrative Agent on the date when such Foreign Lender
ceases to act for its own account with respect to any portion of any such
sums
paid or payable, and at such other times as may be necessary in the
determination of the applicable Borrower or the applicable Administrative
Agent
(in either case, in the reasonable exercise of its discretion), (A) two duly
signed completed copies of the forms or statements required to be provided
by
such Foreign Lender as set forth above, to establish the portion of any such
sums paid or payable with respect to which such Foreign Lender acts for its
own
account that is not subject to United States withholding tax, and (B) two
duly signed completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Foreign Lender chooses to transmit with
such
form, and any other certificate or statement of exemption required under
the
Code, to establish that such Foreign Lender is not acting for its own account
with respect to a portion of any such sums payable to such Foreign
Lender.
(iii) The
Borrowers shall not be required to pay any additional amount or any indemnity
payment under Section 3.01
to
(A) any Foreign Lender with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of
exemption such Lender transmits with an IRS Form W-8IMY pursuant to this
Section
10.15(a),
(B) any Foreign Lender by reason of such Foreign Lender failing to satisfy
the foregoing provisions of this Section
10.15(a),
or
(C) any U.S. Lender by reason of such U.S. Lender failing to satisfy the
provisions of Section 10.15(b);
provided
that if
such Lender shall have satisfied the requirement of this Section 10.15(a)
or
Section 10.15(b),
as
applicable, on the date such Lender became a Lender or ceased to act for
its own
account with respect to any payment under any of the Loan Documents, nothing
in
this Section
10.15(a)
or
Section 10.15(b)
shall
relieve the Borrowers of their obligation to pay any amounts pursuant to
Section
3.01
in the
event that, as a result of any change in any applicable Law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent
date
establishing the fact that such Lender or other Person for the account of
which
such Lender receives any sums payable under any of the Loan Documents is
not
subject to withholding or is subject to withholding at a reduced
rate.
(iv) Either
Administrative Agent may deduct and withhold any taxes required by any Laws
to
be deducted and withheld from any payment under any of the Loan Documents
and
shall promptly provide notice to the applicable Borrower if it does so. If
an
Administrative Agent deducts or withholds any such taxes, the obligations
of any
Loan Party to gross-up or indemnify, or the rights of any Loan Party to not
gross-up or indemnify, for such taxes or related amounts shall be as otherwise
stated in this Agreement.
(b) Each
Lender and Agent that is a “United States person” within the meaning of Section
7701(a)(30) of the Code (each, only for the purposes of this Section 10.15,
a
“U.S.
Lender”)
shall
deliver to the Administrative Agent and the Borrower two duly signed, properly
completed copies of IRS Form W-9 on or prior to the Closing Date (or on or
prior
to the date it becomes a party to this Agreement), certifying that such U.S.
Lender is entitled to an exemption from United States backup withholding
tax, or
any successor form. If such U.S. Lender fails to deliver such forms, then
the
Administrative Agent may withhold from any payment to such U.S. Lender an
amount
equivalent to the applicable backup withholding tax imposed by the
Code.
(c) Each
Canadian Lender shall deliver to the Canadian Borrowers and the Canadian
Administrative Agent, at the time such Canadian Lender first becomes party
to
this Agreement, such certificates as are reasonably satisfactory to the Canadian
Borrowers and the Canadian Administrative Agent that such Canadian Lender
is not
subject to, or, if applicable, is entitled to a reduction of, Canadian
withholding tax in respect of amounts paid or credited to it pursuant to
the
Loan Documents, and thereafter from time to time each such Canadian Lender
shall
promptly submit to the Canadian Borrowers and the Canadian Administrative
Agent
(i) after the occurrence of an event requiring a change in the most recent
certificate previously delivered by it pursuant to this section (including
any
event whereby the Canadian Lender ceases to act for its own account with
respect
to any amounts payable to it under any of the Loan Documents) and (ii) upon
request of the Canadian Borrowers or the Canadian Administrative Agent, such
additional duly completed and signed certificates as needed to determine
the
eligibility of Canadian withholding tax, or the rate thereof, and in any
event
shall promptly notify the Canadian Borrowers and the Canadian Administrative
Agent of any change in circumstances which would modify or render invalid
a
previously delivered certificate. The Canadian Borrowers confirm that following
certificates shall be satisfactory to them for the purposes of this Section
10.15(c):
(x) in
the case of certifying that a Canadian Lender is not subject to Canadian
withholding tax, a certificate signed by an authorized representative of
such
Canadian Lender certifying (in such person’s capacity as a representative and
not in his or her personal capacity) that such Canadian Lender is
a
Canadian Person;
and (y)
in the case of certifying that a Canadian Lender is entitled to a reduction
of
Canadian withholding tax, a certification in the form provided in Canada
Revenue
Agency Information Circular 76-12R5.
10.16 Governing
Law
.
(a) THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH, THE
LAW
OF THE
STATE OF NEW YORK.
(b) ANY
LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK
CITY
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, EACH AGENT
AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, EACH AGENT
AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED
THERETO.
10.17 Waiver
of Right to Trial by Jury
.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT
OR
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
10.17
WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
10.18 Binding
Effect
.
This
Agreement shall become effective when it shall have been executed by the
parties
hereto and thereafter shall be binding upon and inure to the benefit of the
Borrowers, each Agent and each Lender and their respective successors and
assigns, except that the Borrowers shall not have the right to assign their
rights hereunder or any interest herein without the prior written consent
of the
Lenders except as permitted by Section
7.04.
10.19 Judgment
Currency
.
(a) Each
Borrower’s obligation hereunder and under the other Loan Documents to make
payments in Dollars or Canadian Dollars, as specified in Article II,
shall
not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than Dollars or
Canadian Dollars, as applicable, except to the extent that such tender or
recovery results in the effective receipt by the applicable Administrative
Agent
or the respective Lender of the full amount of Dollars or Canadian Dollars,
as
applicable, expressed to be payable to such Administrative Agent or such
Lender
under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against a Borrower in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the currency specified herein as the currency to be paid (such other
currency being hereinafter referred to as the “Judgment
Currency”)
an
amount due in dollars, the conversion shall be made at the rate of exchange
(as
quoted by the applicable Administrative Agent or if such Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in
such
currency designated by such Administrative Agent) determined, in each case,
as
of the Business Day immediately preceding the day on which the judgment is
given
(such Business Day being hereinafter referred to as the “Judgment
Currency Conversion Date”).
(b) If
there
is a change in the rate of exchange prevailing between the Judgment Currency
Conversion Date and the date of actual payment of the amount due, each Borrower
covenants and agrees to pay, or cause to be paid, such additional amounts,
if
any (but in any event not a lesser amount) as may be necessary to ensure
that
the amount paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of Dollars or
Canadian Dollars, as applicable, which could have been purchased with the
amount
of Judgment Currency stipulated in the judgment or judicial award at the
rate of
exchange prevailing on the Judgment Currency Conversion Date.
(c) For
purposes of determining any rate of exchange for this Section 10.19,
such
amounts shall include any premium and costs payable in connection with the
purchase of Dollars or Canadian Dollars, as applicable.
10.20 Collection
Allocation Mechanism
.
(a) On
the
CAM Exchange Date, (i) each U.S. Revolving Credit Lender shall immediately
be deemed to have acquired (and shall promptly make payment therefor to the
U.S.
Administrative Agent in accordance with Section 2.04(c)(ii))
participations in the U.S. Swing Line Loans in an amount equal to such U.S.
Revolving Lender’s Pro Rata Share of each U.S. Swing Line Loan outstanding on
such date, (ii) each U.S. Revolving Credit Lender shall immediately be
deemed to have acquired (and shall promptly make payment therefor to the
U.S.
Administrative Agent in accordance with Section 2.03(c)(i))
participations in the Outstanding Amount of L/C Obligations with respect
to each
U.S. Letter of Credit in an amount equal to such U.S. Revolving Credit Lender’s
Pro Rata Share of the aggregate amount available to be drawn under such U.S.
Letter of Credit, (iii) each Canadian Lender shall immediately be deemed
to have
acquired (and shall promptly make payment therefor to the Canadian
Administrative Agent in accordance with Section
2.04(c)(ii))
participations in the Canadian Swing Line Loans in an amount equal to such
Canadian Lender’s Pro Rata Share of each Canadian Swing Line Loan outstanding on
such date, (iv) each Canadian Lender shall immediately be deemed to have
acquired (and shall promptly make payment therefor to the Canadian
Administrative Agent in accordance with Section 2.03(c)(i))
participations in the Outstanding Amount of L/C Obligations with respect
to each
Canadian Letter of Credit in an amount equal to such Canadian Lender’s Pro Rata
Share of the aggregate amount available to be drawn under such Canadian Letter
of Credit, (v) simultaneously with the automatic conversions pursuant to
clause (vi) below, the Lenders shall automatically and without further act
(and without regard to the provisions of Section 10.04)
be
deemed to have exchanged interests in the Loans (other than the Swing Line
Loans) and Canadian BAs and participations in the Swing Line Loans and Letters
of Credit, such that in lieu of the interest of each Lender in each Loan,
Canadian BA and L/C Obligations in which it shall participate as of such
date
(including such Lender’s interest in the Obligations, Guaranty and Collateral of
each Loan Party in respect of each such Loan, Canadian BA and L/C Obligations),
such Lender shall hold an interest in every one of the Loans (other than
the
Swing Line Loans) and Canadian BAs and a participation in every one of the
Swing
Line Loans and all of the L/C Obligations (including the Obligations, Guaranty
and Collateral of each Loan Party in respect of each such Loan), whether
or not
such Lender shall previously have participated therein, equal to such Lender’s
CAM Percentage thereof and (vi) simultaneously with the deemed exchange of
interests pursuant to clause (v) above, the interest in the Loans and
Canadian BAs denominated in Canadian Dollars to be received in such deemed
exchange shall be converted into Obligations denominated in Dollars and on
and
after such date all amounts accruing and owed to Lenders in respect of such
Obligations shall accrue and be payable in Dollars at the rates otherwise
applicable hereunder. It is understood and agreed that Lenders holding interests
in Canadian BAs on the CAM Exchange Date shall discharge the obligations
to such
Canadian BAs at maturity in exchange for the interests acquired by such Lenders
in the CAM Exchange. Each Lender and each Loan Party hereby consents and
agrees
to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be
binding upon its successors and assigns and any person that acquires a
participation in its interests in any Loan or Canadian BA or any participation
in any Swingline Loan or Letter of Credit. Each Loan Party agrees from time
to
time to execute and deliver to the applicable Administrative Agent all such
promissory notes and other instruments and documents as the applicable
Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange,
and
each Lender agrees to surrender any promissory notes originally received
by it
in connection with its Loans hereunder to the applicable Administrative Agent
against delivery of any promissory notes evidencing its interests in the
Loans
and Canadian BAs so executed and delivered; provided,
however,
that
the failure of any Loan Party to execute or deliver or of any Lender to accept
any such promissory note, instrument or document shall not affect the validity
or effectiveness of the CAM Exchange.
(b) As
a
result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by any Administrative Agent pursuant to any Loan Document in respect
of
any of the Obligations, and each distribution made by any Administrative
Agent
in respect of the Obligations, shall be distributed to the Lenders pro rata
in
accordance with their respective CAM Percentages. Any direct payment received
by
a Lender upon or after the CAM Exchange Date, including by way of setoff,
in
respect of an Obligation shall be paid over to the U.S. Administrative Agent
for
distribution to the Lenders in accordance herewith.
10.21 Covenant
to Pay
.
(a) For
value
received, each
U.S.
Loan Party (collectively the “Covenant
to Pay Parties”
and
each a “Covenant
to Pay Party”)
hereby
agrees and covenants with the U.S. Administrative Agent that it shall pay
to the
U.S. Administrative Agent on first demand, if and when such amounts become
due
and payable, amounts equal to all amounts which such Covenant to Pay Party
is
now or may at any time and from time to time hereafter be obligated to pay
to
the Secured Parties or any one or more of them under any of the Loan Documents
to which such Covenant to Pay Party is now or may at any time become a party
(such agreement and covenant is hereafter referred to as a “Covenant
Obligation”).
(b) If,
after
foreclosure of all Dutch Collateral in which a Lien is granted by any Covenant
to Pay Party, the proceeds are not sufficient to satisfy and discharge such
Covenant to Pay Party’s Covenant Obligation, the remainder of such Covenant
Obligation shall then cease to exist, but without prejudice to any other
Obligations which such Covenant to Pay Party may have and without prejudice
to
any other remedies which the Secured Parties may have under any of the Loan
Documents.
(c) Each
of
the Covenant to Pay Parties and the U.S. Administrative Agent agree and
acknowledge that (i) each Covenant to Pay Party’s Covenant Obligation
consists of obligations and liabilities of such Covenant to Pay Party to
UBS AG,
Stamford Branch, as U.S. Administrative Agent, separate and independent from
and
without prejudice to the other Obligations which such Covenant to Pay Party
has
or may have at any time to the Secured Parties (or any of them) (including
UBS
AG, Stamford Branch) under this Agreement or any of the other Loan Documents
or
otherwise, and (ii) each such Covenant to Pay Party’s Covenant Obligation
represents the U.S. Administrative Agent’s own claim (i.e., “vordering
op naam”)
to
receive payment of such Covenant to Pay Party’s Covenant Obligation, separate
and independent from any claims of the Secured Parties on such Covenant to
Pay
Party, provided
that the
total liability of each Covenant to Pay Party under its Covenant Obligation
shall be decreased from time to time to the extent that such Covenant to
Pay
Party, or any other applicable Loan Party, shall have permanently paid any
amounts due under this Agreement or any of the other Loan Documents with
respect
to its other Obligations. Consequently, the total liability of each Covenant
to
Pay Party under its Obligations shall be decreased from time to time to the
extent that such Covenant to Pay Party, or any other applicable Loan Party,
shall have fully and finally paid any amounts due under this Agreement or
any of
the other Loan Documents with respect to its Covenant Obligation.
(d) Without
limitation of the foregoing provisions of this Section
10.21,
nothing
contained in this Section shall in any way negate or affect any Obligations
other than the Covenant Obligation which any of the Covenant to Pay Parties
has
or at any time may have under the Loan Documents or otherwise to any Secured
Party, including the U.S. Administrative Agent and all payments pursuant
to this
Section
10.21
shall be
applied in the manner set forth in Section
8.03.
This
Section
10.21
shall no
longer apply, and cease to have any force or effect, after all Dutch Collateral
has been foreclosed upon or other Disposed of in accordance with the Loan
Documents, but shall become effective at any subsequent time that a Lien
is
granted under the Loan Documents with respect to any Dutch
Collateral.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the date
first above written.
NORTEK,
INC.
By:
Name:
Title:
NORTEK
HOLDINGS, INC.
By:
Name:
Title:
BROAN-NUTONE
CANADA INC.
By:
Name:
Title:
VENTROL
AIR HANDLING SYSTEMS INC.
By:
Name:
Title:
UBS
AG,
STAMFORD BRANCH, as U.S. Administrative Agent and Canadian Administrative
Agent
By:
Name:
Title:
By:
Name:
Title:
:
