EXECUTION COPY
$1,077,500,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 31, 2006
among
XXXXXXX INTERNATIONAL, INC.,
XXXXXXX TRANSIT LTD.
and
GREYHOUND CANADA TRANSPORTATION CORP.
as Borrowers
and
THE LENDERS PARTY HERETO
and
UBS SECURITIES LLC
as Syndication Agent
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent and Collateral Agent
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.
as Documentation Agent
and
CITIGROUP GLOBAL MARKETS INC., UBS SECURITIES LLC AND XXXXXX XXXXXXX
SENIOR FUNDING, INC.
as Joint Lead Arrangers and Joint Book-Running Managers
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................... 1
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions................................................. 36
SECTION 1.03. Accounting Terms........................................... 36
SECTION 1.04. Currency Equivalents Generally............................. 37
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit..................... 37
SECTION 2.02. Making the Advances........................................ 40
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit..................................................... 43
SECTION 2.04. Repayment of Advances...................................... 45
SECTION 2.05. Incremental Term Loan Commitments.......................... 49
SECTION 2.06. Termination or Reduction of the Commitments................ 50
SECTION 2.07. Prepayments................................................ 51
SECTION 2.08. Interest................................................... 52
SECTION 2.09. Fees....................................................... 54
SECTION 2.10. Conversion of Advances..................................... 55
SECTION 2.11. Increased Costs, Etc....................................... 56
SECTION 2.12. Payments and Computations.................................. 58
SECTION 2.13. Taxes...................................................... 60
SECTION 2.14. Sharing of Payments, Etc................................... 63
SECTION 2.15. Use of Proceeds............................................ 64
SECTION 2.16. Defaulting Lenders......................................... 64
SECTION 2.17. Evidence of Debt........................................... 66
SECTION 2.18. Drawings of Bankers' Acceptances and Notional Bankers'
Acceptances................................................ 67
SECTION 2.19. Renewal and Conversion of Bankers' Acceptances............. 69
SECTION 2.20. L/C Collateral Accounts.................................... 72
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to the Amendment and Restatement of
the Existing Credit Agreement and the Initial Extension of
Credit..................................................... 72
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal.................................................... 76
SECTION 3.03. Determinations Under Section 3.01.......................... 77
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............. 77
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants...................................... 82
SECTION 5.02. Negative Covenants......................................... 87
SECTION 5.03. Reporting Requirements..................................... 97
SECTION 5.04. Financial Covenants........................................ 99
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.......................................... 99
SECTION 6.02. Actions in Respect of the Letters of Credit, Bankers'
Acceptances BA Equivalent Advances upon Default............ 102
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action................................... 103
SECTION 7.02. Agents' Reliance, Etc...................................... 104
SECTION 7.03. CNAI, UBSS, Xxxxxx Xxxxxxx and Affiliates.................. 105
SECTION 7.04. Lender Party Credit Decision............................... 105
SECTION 7.05. Indemnification............................................ 105
SECTION 7.06. Successor Agents........................................... 106
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................ 107
SECTION 8.02. Notices, Etc............................................... 108
SECTION 8.03. No Waiver; Remedies........................................ 109
SECTION 8.04. Costs and Expenses......................................... 110
SECTION 8.05. Right of Set-off........................................... 111
SECTION 8.06. Binding Effect............................................. 111
SECTION 8.07. Assignments and Participations............................. 112
SECTION 8.08. Execution in Counterparts.................................. 115
SECTION 8.09. No Liability of the Issuing Banks.......................... 115
SECTION 8.10. Confidentiality............................................ 115
SECTION 8.11. Release of Guaranties...................................... 116
SECTION 8.12. Release of Collateral...................................... 116
SECTION 8.13. Replacement of Lenders..................................... 116
ii
SECTION 8.14. Amendments Affecting Term B Lenders and Canadian Term B
Lenders.................................................... 117
SECTION 8.15. Patriot Act Notice......................................... 117
SECTION 8.16. Jurisdiction, Etc.......................................... 118
SECTION 8.17. Judgment Currency.......................................... 118
SECTION 8.18. Governing Law.............................................. 119
SECTION 8.19. Limitation................................................. 119
SECTION 8.20. Waiver of Jury Trial....................................... 119
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - US Subsidiary Guarantors and Canadian Subsidiary Guarantors
Schedule III - Excluded Subsidiaries
Schedule 2.01(f) - Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(n) - Plans and Multiemployer Plans
Schedule 4.01(o) - Environmental Disclosure
Schedule 4.01(p) - Open Years; Unpaid Tax Liabilities; Adjusted Tax Basis
Schedule 4.01(q) - Surviving Debt
Schedule 4.01(r) - Liens
Schedule 4.01(s) - Investments
Schedule 4.01(t) - Material Contracts
Schedule 4.01(v) - Immaterial Subsidiaries
Schedule 5.01(j) - Canadian Registrations Requiring Estoppels
EXHIBITS
Exhibit A-1 - Form of Amended and Restated US Revolving Credit Note
Exhibit A-2 - Form of Amended and Restated Canadian Revolving Credit Note
Exhibit A-3 - Form of Amended and Restated Term A Note
Exhibit A-4 - Form of Term B Note/Canadian Term B Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Drawing
Exhibit C-1 - Form of US Security Agreement
Exhibit C-2 - Form of Canadian Security Agreement
Exhibit C-3 - Form of Hypothec
Exhibit D - Form of Assignment and Acceptance
Exhibit E-1 - Form of Amended and Restated US Subsidiary Guaranty
Exhibit E-1-A - Form of US Subsidiary Guaranty Reaffirmation
Exhibit E-2 - Form of Amended and Restated Canadian Subsidiary Guaranty
Exhibit E-2-A - Form of Canadian Subsidiary Guaranty Reaffirmation
Exhibit E-3 - Form of Parent Guaranty Reaffirmation
Exhibit F-1 - Form of Solvency Certificate for each Borrower
Exhibit F-2 - Form of Solvency Certificate for the Loan Parties
Exhibit G-1 - Form of Opinion of Xxxxxx & Xxxxxxx LLP
Exhibit G-2 - Form of Opinions of Goodmans LLP, BCF S.E.N.C.R.L./LLP and
Fraser Xxxxxx Casgrain LLP
iii
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") dated as of
July 31, 2006 among Xxxxxxx International, Inc., a Delaware corporation (the "US
BORROWER"), Xxxxxxx Transit Ltd., an Ontario corporation ("XXXXXXX TRANSIT") and
Greyhound Canada Transportation Corp., an Ontario corporation ("GREYHOUND
CANADA" and together with Xxxxxxx Transit, the "CANADIAN BORROWERS" and,
together with the US Borrower, the "BORROWERS"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as the initial lenders (the "INITIAL LENDERS"), the Issuing Banks (as
hereinafter defined), the Canadian Issuing Banks (as hereinafter defined), the
Swing Line Bank (as hereinafter defined), each other lender from time to time
party hereto (collectively, the "LENDERS" and individually, a "LENDER"), UBS
Securities LLC ("UBSS"), as syndication agent (the "SYNDICATION AGENT"), Xxxxxx
Xxxxxxx Senior Funding, Inc. ("XXXXXX XXXXXXX"), as documentation agent (the
"DOCUMENTATION AGENT"), Citicorp North America, Inc. ("CNAI"), as collateral
agent (together with any successor collateral agent appointed pursuant to
Article VII, the "COLLATERAL AGENT") and administrative agent (together with any
successor administrative agent or any Sub-Agent appointed pursuant to Article
VII, the "ADMINISTRATIVE AGENT" and, together with the Collateral Agent, the
"AGENTS") for the Lender Parties (as hereinafter defined) and Citigroup Global
Markets Inc., UBSS and Xxxxxx Xxxxxxx, as Joint Lead Arrangers and Joint
Book-Running Managers.
PRELIMINARY STATEMENTS:
(1) The Borrowers are party to a Credit Agreement dated as of June 30,
2005 (the "EXISTING CREDIT AGREEMENT") with the lenders from time to time party
thereto and CNAI as administrative agent.
(2) The Borrowers desire to amend and restate the Existing Credit
Agreement as hereinafter set forth to, among other things, provide for
$500,000,000 of term B loans to fund the Stock Repurchase (as hereinafter
defined), to pay transaction fees and expenses related thereto, to provide
working capital for the Borrowers and their Subsidiaries, to fund the
repatriation of cash from the Canadian Borrowers to the US Borrower and for
other general corporate purposes.
(3) The Lender Parties have indicated their willingness to amend and
restate the Existing Credit Agreement and to agree to lend such amounts on the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree to
amend and restate the Existing Credit Agreement as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank,
N.A. at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 00000000, Account Name: Agency/Medium Term Finance, Reference:
Xxxxxxx, Attn: Loan Administration Dept, or such other account as the
Administrative Agent shall specify in writing to the Lender Parties.
"ADVANCE" means a Term A Advance, a Term B Advance, a Canadian Term B
Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter of
Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"AGENTS" has the meaning specified in the recital of parties to this
Agreement.
"AGREEMENT VALUE" means, for all Hedge Agreements with a particular
counterparty, on any date of determination, an amount determined by the
Administrative Agent equal to: (a) in the case of a Hedge Agreement
documented pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc. (the
"MASTER AGREEMENT"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party", and (iii) the Administrative Agent was the sole party
determining such payment amount (with the Administrative Agent making such
determination pursuant to the provisions of the form of Master Agreement);
(b) in the case of a Hedge Agreement traded on an exchange, the
xxxx-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan
Party party to such Hedge Agreement reasonably determined by the
Administrative Agent based on the settlement price of such Hedge Agreement
on such date of determination; or (c) in all other cases, the
xxxx-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan
Party party to such Hedge Agreement reasonably determined by the
Administrative Agent as the amount, if any, by which (i) the present value
of the future cash flows to be paid by such Loan Party or Subsidiary
exceeds (ii) the present value of the future cash flows to be received by
such Loan Party or Subsidiary pursuant to such Hedge Agreement, net, in
each case, of any unrealized gains in respect of all such Hedge Agreements
in favor of the relevant Loan Party or Subsidiaries for which the
applicable counterparty is liable; capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in
the above described Master Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance, such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance, and such Lender's Canadian Lending Office in the
case of a Canadian Advance.
"APPLICABLE MARGIN" means, as of any date, with respect to the Term A
Advances, Revolving Credit Advances, Swing Line Advances and Letter of
Credit Advances, a percentage
2
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
BANKERS'
ACCEPTANCES AND
PUBLIC DEBT RATING BASE RATE EURODOLLAR RATE NOTIONAL BANKERS' CANADIAN
S&P/XXXXX'X ADVANCES ADVANCES ACCEPTANCES ADVANCES
----------------------- --------- --------------- ----------------- --------
Level I
BBB+ and Baa1 or higher 0% 0.60% 0.60% 0%
Level II
BBB and Baa2 0% 0.75% 0.75% 0%
Level III
BBB- and Baa3 0% 0.875% 0.875% 0%
Level IV
BB+ and Ba1 0.25% 1.25% 1.25% 0.25%
Level V
BB and Ba2 0.75% 1.75% 1.75% 0.75%
Level VI
BB- and Ba3 or lower 1.0% 2.0% 2.0% 1.0%
; and with respect to Term B Advances and Canadian Term B Advances, 1.75%
per annum for Eurodollar Rate Advances and 0.75% per annum for Base Rate
Advances.
"APPLICABLE PERCENTAGE" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
PUBLIC DEBT RATING APPLICABLE
S&P/XXXXX'X PERCENTAGE
----------------------- ----------
Level I 0.10%
BBB+ and Baa1 or higher
Level II 0.125%
BBB and Baa2
Level III 0.20%
BBB- and Baa3
Level IV 0.375%
BB+ and Ba1
Level V 0.50%
BB and Ba2
Level VI 0.50%
BB- and Ba3 or lower
"APPROPRIATE LENDER" means, at any time, with respect to (a) any of
the Term A Facility, the Term B Facility, the Canadian Term B Facility, the
Incremental Term Facility, the Revolving Credit Facility, a Lender that has
a Commitment with respect to such Facility at such time, (b) the US
Revolving Letter of Credit Facility, (i) any US Revolving Issuing Bank and
(ii) if the other
3
US Revolving Credit Lenders have made Revolving Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at such time, each such
other US Revolving Credit Lender, (c) the Canadian Letter of Credit
Facility, (i) any Canadian Issuing Bank and (ii) if the other Revolving
Credit Lenders have purchased Revolving Letter of Credit Advances pursuant
to Section 2.03(c) that are outstanding at such time, each such other
Revolving Credit Lender, (d) the Canadian Subfacility, (i) any Canadian
Lender and (ii) if the other US Revolving Credit Lenders have purchased
Canadian Revolving Credit Advances pursuant to Section 2.02(c) that are
outstanding at such time, each such other US Revolving Credit Lender, and
(e) the Swing Line Facility, (i) the Swing Line Bank and (ii) if the other
US Revolving Credit Lenders have made Swing Line Advances pursuant to
Section 2.01(d) that are outstanding at such time, each such other US
Revolving Credit Lender.
"APPROVED FUND" means any Fund that is administered or managed by (i)
a Lender Party, (ii) an Affiliate of a Lender Party or (iii) an entity or
an Affiliate of an entity that administers or manages a Lender Party.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee (with the consent of any
party whose consent is required by Section 8.07 or by the definition of
"Eligible Assignee"), and accepted by the Administrative Agent, in
accordance with Section 8.07 and in substantially the form of Exhibit D
hereto or any other form approved by the Administrative Agent.
"ATTORNEY" has the meaning specified in Section 7.01(e).
"AVAILABLE AMOUNT" of any Revolving Letter of Credit, at any time, the
maximum amount available to be drawn under such Revolving Letter of Credit
at such time (assuming compliance at such time with all conditions to
drawing).
"BA COLLATERAL" means all funds and financial assets from time to time
credited to the BA Collateral Account (including, without limitation, all
Cash Equivalents), all interest, dividends, distributions, cash,
instruments, and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
funds and financial assets, and in each case, proceeds thereof and interest
and earnings thereon, and all certificates and instruments, if any, from
time to time representing or evidencing the BA Collateral Account.
"BA COLLATERAL ACCOUNT" means the collateral deposit account, Account
No. 2/210087/008 that the Canadian Borrowers have opened with Citibank
Canada at its office at 000 Xxxxx Xxxxxx, Xxxx, Xxxxxxx, Xxxxxxx in the
name of the Sub-Agent and under the sole control and dominion of the
Sub-Agent and subject to the terms of this Agreement.
"BA EQUIVALENT ADVANCE" has the meaning specified in Section 2.18(a)
and includes any outstanding "BA Equivalent Advance" accepted under the
Existing Credit Agreement.
"BA LENDER" means any Canadian Lender that is a bank chartered under
the Bank Act (Canada) and which stamps and accepts bankers' acceptances.
"BA LENDING OFFICE" means, with respect to each BA Lender, the office
of such Lender set forth as its "BA Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a lender or such other office of such Lender in
4
Canada as such Lender may from time to time specify to the Canadian
Borrowers and the Administrative Agent for such purpose.
"BA RATE" means:
(a) for each Schedule I Lender, and in respect of each Notional
Bankers' Acceptance, the average rate (calculated on an annual basis
of a year of 365 days and rounded up to the nearest multiple of 1/4 of
1%, if such average is not such a multiple) for Canadian Dollar
bankers' acceptances having a comparable term that appears on the
Reuters Screen CDOR Page (or such other page as is a replacement page
for such bankers' acceptances) at 10:00 A.M. (Toronto time) or, if
such rate is not available at such time, the applicable discount rate
in respect of such Bankers' Acceptances or Notional Bankers'
Acceptances shall be the discount rate (calculated on an annual basis
of 365 days), quoted by the Sub-Agent at 9:30 A.M. (Toronto time) on
the date of such Drawing as the discount rate at which the Sub-Agent
would purchase, on such date, its own bankers' acceptances having an
aggregate Face Amount equal to and with a term to maturity the same as
the Bankers' Acceptances and Notional Bankers' Acceptances to be
acquired by such Canadian Lender as part of such Drawing; and
(b) for each Schedule II Lender and Schedule III Lender, the
lesser of (i) the discount rate of such Lender for Canadian Dollar
bankers' acceptances having a comparable term determined in accordance
with its normal practice at or about 10:00 A.M. (Toronto time) on the
date of issue and acceptance of such Bankers' Acceptances, and (ii)
the average rate determined by the Sub-Agent pursuant to (a) plus
0.1%.
"BANK ACT (CANADA)" means the Bank Act (Canada) as the same may from
time to time be in effect.
"BANKERS' ACCEPTANCE" has the meaning specified in Section 2.01(e) and
includes any outstanding "Bankers' Acceptance" made under the Existing
Credit Agreement.
"BANKRUPTCY LAW" means any proceeding of the type referred to in
Section 6.01(g) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank, N.A. in New
York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no
nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-week
moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States money
market banks, such three-week moving average (adjusted to the basis of a
year of 365 days) being determined weekly on each Monday (or, if such day
is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of
such rates reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to 100%
minus the average of the daily
5
percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for Citibank
with respect to liabilities consisting of or including (among other
liabilities) three-month US Dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring US Dollar deposits of Citibank
in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a US Revolving Credit Advance, a Term A
Advance, a Term B Advance, a Canadian Term B Advance and a Revolving Letter
of Credit Advance or an Incremental Term Advance that bears interest as
provided in Section 2.08(a)(i).
"BORROWERS" has the meaning specified in the recital of parties to
this Agreement.
"BORROWER'S ACCOUNT" means (i) with respect to the US Borrower, the
account of such Borrower maintained by such Borrower with JPMorgan Chase
Bank, N.A. at its office at New York, N.Y., Account No. 648171684, ABA No.
000000000, Account Name: Xxxxxxx International, Inc., or such other account
as such Borrower shall specify in writing to the Administrative Agent and
(ii) with respect to the Canadian Borrowers, the accounts of such Borrowers
maintained by such Borrowers with Canadian Imperial Bank of Commerce at its
office at Toronto, Canada, Account No. 01-01613 (with respect to Xxxxxxx
Transit) and with Royal Bank of Canada-Calgary, Alberta at its office at
Calgary, Canada Account No. 000-000-0, Transit No. 00009 (with respect to
Greyhound Canada), or such other account as such Canadian Borrower shall
specify in writing to the Administrative Agent.
"BORROWING" means a Term A Borrowing, a Term B Borrowing, a Canadian
Term B Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City or Toronto, Canada and, if
the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CANADIAN ADVANCES" has the meaning specified in Section 2.01(c) and
includes any outstanding "Canadian Advances" made under the Existing Credit
Agreement.
"CANADIAN AFFILIATE" means an Affiliate that is resident in Canada for
purposes of the Income Tax Act (Canada).
"CANADIAN BORROWERS" has the meaning specified in the recital of
parties to this Agreement.
"CANADIAN BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in Xxxxxxx, Xxxxxxx, Xxxxxx.
"CANADIAN DOLLARS" and "CN$" each means lawful money of Canada.
6
"CANADIAN INTERBANK RATE" means the interest rate, expressed as a
percentage per annum, which is customarily used by the Sub-Agent when
calculating interest due by it or owing to it arising from or in connection
with correction of errors between it and other Canadian chartered banks.
"CANADIAN ISSUING BANK" means the "Initial Canadian Issuing Bank"
under the Existing Credit Agreement and any Eligible Assignee to which the
Canadian Letter of Credit Commitment hereunder has been assigned pursuant
to Section 8.07 so long as such Eligible Assignee expressly agrees to
perform in accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as a Canadian
Issuing Bank and notifies the Administrative Agent of its Applicable
Lending Office and the amount of its Canadian Letter of Credit Commitment
(which information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Canadian Issuing Bank or Eligible
Assignee, as the case may be, shall have a Canadian Letter of Credit
Commitment.
"CANADIAN L/C COLLATERAL" means all funds and financial assets from
time to time credited to the Canadian L/C Collateral Account (including,
without limitation, all Cash Equivalents), all interest, dividends,
distributions, cash, instruments, and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of such funds and financial assets, and in each case,
proceeds thereof and interest and earnings thereon, and all certificates
and instruments, if any, from time to time representing or evidencing the
Canadian L/C Collateral Account.
"CANADIAN L/C COLLATERAL ACCOUNT" means the collateral deposit
account, Account No. 2/210087/016 that the Canadian Borrowers have opened
with Citibank Canada at its office at 000 Xxxxx Xxxxxx, Xxxx, Xxxxxxx,
Xxxxxxx in the name of the Sub-Agent and under the sole control and
dominion of the Sub-Agent and subject to the terms of this Agreement.
"CANADIAN L/C DISBURSEMENT" shall mean a payment or disbursement made
by any Canadian Issuing Bank pursuant to a Canadian Letter of Credit.
"CANADIAN LENDER" means any Lender listed on the signature pages
hereof as a Canadian Lender each of which is resident in Canada for
purposes of the Income Tax Act (Canada).
"CANADIAN LENDING OFFICE" means with respect to any Canadian Lender,
the office of such Canadian Lender specified as its Canadian Lending Office
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Canadian Lender, or such other Canadian
office of such Canadian Lender as such Canadian Lender may from time to
time specify to the US Borrower and the Administrative Agent.
"CANADIAN LETTER OF CREDIT ADVANCE" means an advance made by any
Canadian Issuing Bank or any US Revolving Credit Lender pursuant to Section
2.03(c) and includes any outstanding "Canadian Letter of Credit Advance"
made under the Existing Credit Agreement.
"CANADIAN LETTER OF CREDIT COMMITMENT" means, with respect to any
Canadian Issuing Bank at any time, the amount set forth opposite such
Issuing Bank's name on Schedule I hereto under the caption "Letter of
Credit Commitment" or, if such Issuing Bank has entered into one or more
Assignment and Acceptances, set forth for such Issuing Bank in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as such
Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
7
"CANADIAN LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Canadian Issuing
Banks' Canadian Letter of Credit Commitments at such time and (b)
U.S.$20,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"CANADIAN LETTERS OF CREDIT" has the meaning specified in Section
2.01(f).
"CANADIAN LOAN PARTY" means each Loan Party resident in Canada for
purposes of the Income Tax Act (Canada).
"CANADIAN PRIME RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal
to the higher of:
(a) the rate of interest announced publicly by the Sub-Agent in
Toronto, Canada from time to time as its prime rate for determining
rates of interest on commercial loans in Canadian Dollars made by it
in Canada; and
(b) 3/4 of one percent per annum above the rate for 30-day
Canadian Dollar bankers' acceptances that appears on the Reuters
Screen CDOR Page (or any replacement page) as of 10:00 A.M. (Toronto,
Ontario time) on the date of determination.
"CANADIAN REVOLVING CREDIT ADVANCE" means Canadian Advances, Canadian
Letter of Credit Advances, Bankers Acceptances, Notional Bankers'
Acceptances and BA Equivalent Advances.
"CANADIAN REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Canadian Revolving Credit Advances made by the Canadian
Lenders.
"CANADIAN REVOLVING CREDIT COMMITMENT" means, with respect to any
Canadian Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Canadian Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.06.
"CANADIAN REVOLVING CREDIT NOTE" means a promissory note of a Canadian
Borrower payable to the order of any Canadian Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Canadian Revolving Credit
Advances made by such Lender, as amended.
"CANADIAN SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"CANADIAN SECURITY INTEREST" has the meaning specified in Section
2.20(c).
"CANADIAN SUBFACILITY" means, at any time, an amount equal to the
aggregate amount of the Canadian Lenders' Canadian Revolving Credit
Commitments at such time.
"CANADIAN SUBSIDIARY GUARANTORS" means the Canadian Subsidiaries of
the US Borrower listed on Schedule II hereto and each other Canadian
Subsidiary of the US Borrower that shall be required to execute and deliver
a guaranty pursuant to Section 5.01(j).
8
"CANADIAN SUBSIDIARY GUARANTY" means the guaranty of the Canadian
Subsidiary Guarantors referred to in Section 3.01(a)(xi) together with each
other guaranty and guaranty supplement delivered pursuant to Section
5.01(j), in each case as amended, amended and restated, modified or
otherwise supplemented.
"CANADIAN TERM B ADVANCE" means a term loan or term loans in US
Dollars made pursuant to Section 2.01(h).
"CANADIAN TERM B BORROWING" means a borrowing consisting of
simultaneous Canadian Term B Advances of the same Type made by the Canadian
Term B Lenders.
"CANADIAN TERM B COMMITMENT" means, with respect to any Canadian Term
B Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "CANADIAN TERM B COMMITMENT" or, if
such Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(d) as such Lender's "CANADIAN TERM B
COMMITMENT", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"CANADIAN TERM B FACILITY" means, at any time, the aggregate amount of
the Canadian Term B Lenders' Canadian Term B Commitments at such time, in
an amount not to exceed $125,000,000.
"CANADIAN TERM B LENDER" means any Lender (whether resident in Canada
for purposes of the Income Tax Act (Canada) or organized under the laws of
a political subdivision of the United States or other nation) that has a
Canadian Term B Commitment.
"CANADIAN TERM B NOTE" means a promissory note of a Canadian Borrower
payable to the order of any Canadian Term B Lender, in substantially the
form of Exhibit A-4 hereto, evidencing the indebtedness of such Canadian
Borrower to such Lender resulting from the Canadian Term B Advance made or
deemed made by such Lender to such Canadian Borrower, as amended.
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or indirectly,
by such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price
less the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds, as the case
may be.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the US Borrower or any of its Subsidiaries free and clear of all Liens and
having a maturity of not greater than 360 days from the date of issuance:
(a) readily marketable direct obligations of the
9
Government of the United States or Canada or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States or Canada, (b) insured
certificates of deposit of or time deposits with any commercial bank that
is a Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause (c)
below, is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $500,000,000, (c)
commercial paper in an aggregate amount of no more than $20,000,000 per
issuer outstanding at any time, issued by any corporation organized under
the laws of any State of the United States and rated at least "Prime-1" (or
the then equivalent grade) by Xxxxx'x or "A-1" (or the then equivalent
grade) by S&P or (d) Investments, classified in accordance with GAAP as
Current Assets of the US Borrower or any of its Subsidiaries, in money
market investment programs registered under the Investment Company Act of
1940, as amended, that are administered by financial institutions that have
the highest rating obtainable from either Xxxxx'x or S&P, and the
portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of this
definition.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CFC" means an entity that is a controlled foreign corporation under
Section 957 of the Internal Revenue Code.
"CGMI" means Citigroup Global Markets Inc.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Interests of the US Borrower (or other
securities convertible into such Voting Interests) representing 40% or more
of the combined voting power of all Voting Interests of the US Borrower; or
(b) during any period of up to 24 consecutive months, commencing before or
after the date of this Agreement, Continuing Directors shall cease for any
reason to constitute a majority of the board of directors of the US
Borrower; or (c) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the US Borrower or
control over Voting Interests of the US Borrower (or other securities
convertible into such Voting Interests) representing 40% or more of the
combined voting power of all Voting Interests of the US Borrower.
"CITIBANK" means Citibank, N.A.
"CLOSING DATE" means the Effective Date.
"CNAI" has the meaning specified in the recital of parties to this
Agreement.
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"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COLLATERAL AGENT" has the meaning specified in the recital of parties
to this Agreement.
"COLLATERAL AGENT'S OFFICE" means, with respect to the Collateral
Agent or any successor Collateral Agent, the office of such Agent as such
Agent may from time to time specify to the Borrower and the Administrative
Agent.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Hypothec,
each of the collateral documents, instruments and agreements delivered
pursuant to Section 5.01(j), and each other agreement that creates or
purports to create a Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"COMMITMENT" means a Term A Commitment, a Term B Commitment, a
Canadian Term B Commitment, a Revolving Credit Commitment, a Letter of
Credit Commitment or an Incremental Term Commitment.
"COMMON STOCK" means the outstanding shares of common stock of the US
Borrower.
"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to any Agent or any Lender Party designated as confidential, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by such Agent or
any Lender Party of its obligations hereunder or that is or becomes
available to such Agent or such Lender Party from a source other than the
Loan Parties that is not, to the best of such Agent's or such Lender
Party's knowledge, acting in violation of a confidentiality agreement with
a Loan Party.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets of the US
Borrower and its Subsidiaries calculated on a Consolidated basis minus any
assets treated as intangible assets under GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person and, without
duplication, any Obligation or arrangement of such Person to guarantee or
intended to guarantee any Debt, leases, dividends or other payment
Obligations ("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make take-or-pay or
similar payments, if required, regardless of nonperformance by any other
party or parties to an agreement or (c) any Obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided,
however, that the
11
term "Contingent Obligation" shall not include endorsements of instruments
for deposit or collection or standard contractual indemnities in the
ordinary course of business or any warranties of deposit or collection in
the ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Contingent Obligation is
made (or, if less, the maximum amount of such primary obligation for which
such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming
such Person is required to perform thereunder), as determined by such
Person in good faith.
"CONTINUING DIRECTORS" means the directors of the US Borrower on the
Effective Date, and each other director, if, in each case, such other
director's nomination for election to the board of directors of the US
Borrower is recommended by at least a majority of the then Continuing
Directors.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.10 or 2.11.
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP.
"CUSTODIAN" has the meaning specified in Section 7.01(e).
"DEBT" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than accrued expenses and
trade payables not overdue by more than 90 days incurred in the ordinary
course of such Person's business), (c) all Obligations of such Person
evidenced by notes, bonds, debentures, bankers' acceptances or other
similar instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations of
such Person as lessee under Capitalized Leases, (f) all Obligations of such
Person under banker acceptance, letter of credit or similar facilities, (g)
all Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Redeemable Equity Interests in
such Person or any other Person valued, in the case of Redeemable Preferred
Interests, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations of such
Person in respect of Hedge Agreements, valued at the Agreement Value
thereof, (i) all Contingent Obligations and Off-Balance Sheet Obligations
of such Person and (j) all indebtedness and other payment Obligations
referred to in clauses (a) through (i) above of another Person secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, (a) all items that, in accordance with GAAP, would be
classified as indebtedness on a Consolidated balance sheet of such Person
and all Off-Balance Sheet Obligations of such Person at such date and (b)
all Obligations under bankers' acceptance, letter of credit or similar
facilities; provided
12
that in no event shall Debt in respect of any bonding facility be
considered to be "Debt for Borrowed Money" for any purpose hereunder. For
purposes of calculating "Debt for Borrowed Money" at any time, the amount
of Off-Balance Sheet Obligations shall be determined based on the principal
amount of such Off-Balance Sheet Obligations calculated consistent with
past practice or otherwise in a customary manner.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning set forth in Section 2.08(b).
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to any Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(f) as of such
time. In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.16(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be
made pursuant to Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) any Canadian Lender pursuant to Section 2.02(c) to purchase a portion
of a Canadian Revolving Credit Advance made by such Canadian Lender, (b)
any Revolving Issuing Bank pursuant to Section 2.03(c) to purchase a
portion of a Letter of Credit Advance made by such Revolving Issuing Bank,
(c) the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any other
Lender Party pursuant to Section 2.14 to purchase any participation in
Advances owing to such other Lender Party, (e) any Swing Line Bank pursuant
to Section 2.02(b) to purchase a portion of a Swing Line Advance made by
such Swing Line Bank and (f) any Agent or any Issuing Bank pursuant to
Section 7.05 to reimburse such Agent or such Issuing Bank for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to such Agent or such Issuing Bank as provided therein. In the
event that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.16(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(g).
"DOCUMENTATION AGENT" has the meaning specified in the recital of
parties to this Agreement.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case
13
may be, or such other office of such Lender Party as such Lender Party may
from time to time specify to the US Borrower and the Administrative Agent.
"DRAFT" means a xxxxx xxxx of exchange, within the meaning of the
Bills of Exchange Act (Canada), drawn in Canadian Dollars by a Canadian
Borrower on any BA Lender, and which, except as otherwise provided herein,
has not been completed or accepted by such Lender.
"DRAWING" means the simultaneous (i) acceptance of Drafts and purchase
of Bankers' Acceptances by the Canadian Lenders, in accordance with Section
2.18(a), and (ii) making of BA Equivalent Advances by Non-BA Lenders.
"DRAWING PURCHASE PRICE" means, with respect to each Bankers'
Acceptance to be purchased by any Canadian Lender at any time, the amount
(adjusted to the nearest whole cent or, if there is no nearest whole cent,
the next higher whole cent) obtained by dividing (i) the aggregate Face
Amount of such Bankers' Acceptance, by (ii) the sum of (A) one and (B) the
product of (1) the BA Rate in effect at such time (expressed as a decimal)
multiplied by (2) a fraction the numerator of which is the number of days
in the term to maturity of such Bankers' Acceptance and the denominator of
which is 365 days.
"EBITDA" means, at any date of determination, the sum, determined on a
Consolidated basis, of (a) net income (or net loss), (b) Interest Expense,
(c) income tax expense (or income tax recovery) including, without
duplication and to the extent included in GAAP, any foreign withholding
taxes, single business or unitary taxes or other similar state taxes, (d)
depreciation expense, (e) amortization expense, (f) any other non-cash
extraordinary items reducing net income, (g) losses from the disposition or
non-cash impairment of property and equipment and other long-term assets
dispositions, (h) non-cash charges relating to foreign currency losses, (i)
non-recurring expenses (including, legal and other professional fees,
refinancing costs and call and premium tender expenses) incurred in
connection with the Transaction, (j) losses on discontinued operations and
losses on disposals of discontinued operations, (k) costs, fees, charges,
expenses and any one time payments made related to any Investments
permitted under Section 5.02(e), dispositions of assets, and mergers,
dissolutions, liquidations, sales or consolidations permitted under Section
5.02(d) (provided that such costs, fees, charges, expenses and any one time
payments shall not exceed $10,000,000 in the aggregate in any Fiscal Year)
and (l) any costs or expenses for which the US Borrower or any of its
Subsidiaries have been indemnified or reimbursed, less the sum of (i) all
non-cash extraordinary items increasing net income, (ii) gains from the
disposition of property and equipment and other long-term assets, in each
case of the US Borrower and its Subsidiaries, and only to the extent
included in the calculation of net income, determined in accordance with
GAAP for the most recently completed Measurement Period, (iii) non-cash
charges relating to foreign currency gains, (iv) gains on discontinued
operations and gains on disposals of discontinued operations, (v) the sum
of (A) interest income and (B) extraordinary income or gains (as defined in
GAAP); provided, that (i) each item listed in clauses (b) through (l) above
and clauses (i) through (v) above shall only be added or subtracted, as
applicable, to net income (or net loss) to the extent taken into account in
determining net income (or net loss), (ii) non-operating income and income
tax recovery shall be excluded from EBITDA to the extent included therein,
(iii) the net income of any Subsidiary shall be excluded from EBITDA to the
extent that the declaration or payment of dividends or similar
distributions by such Subsidiary from such net income is not at the time
permitted by the terms of its charter or by-laws or any judgment, decree,
order, law, statute, role, regulation, agreement, indenture or other
instrument that is binding on such Subsidiary, (iv) the income or loss of
any Person (other than consolidated Subsidiaries of the US Borrower) in
which any other Person (other than the US Borrower or any of its
Subsidiaries) has a joint interest shall be excluded from
14
EBITDA, except to the extent of the amount of dividends or other
distributions actually paid to the US Borrower or any of its Subsidiaries
by such Person during the most recently completed Measurement Period and
(v) to the extent the determination of EBITDA in accordance with the
foregoing includes amounts attributable to minority interests in non-wholly
owned Subsidiaries of the US Borrower, EBITDA shall be reduced by amounts
attributable to such minority interests. For the purposes of calculating
EBITDA for any Measurement Period for purposes of determining the Leverage
Ratio and the Interest Coverage Ratio, if during such Measurement Period
any Borrower or any Subsidiary thereof shall have made any Investment
permitted under Section 5.02(e) or shall have consummated any disposition
of assets (whether or not such disposition occurred prior to or after the
date hereof), EBITDA for such Measurement Period shall be calculated after
giving pro forma effect thereto as if such Investment or disposition, as
the case may be, occurred on the first day of such Measurement Period.
"EFFECTIVE DATE" means the first date on which the conditions set
forth in Section 3.01 shall have been satisfied.
"ELIGIBLE ASSIGNEE" means (i) a Lender Party; (ii) an Affiliate of a
Lender Party; (iii) an Approved Fund; and (iv) any other Person (other than
any Person who is or whose Affiliates are primarily engaged in the
transportation industry and is a direct competitor of any Loan Party)
approved by the Administrative Agent and in the case of the Revolving
Credit Facility, unless an Event of Default has occurred and is continuing
at the time any assignment is effected pursuant to Section 8.07, the US
Borrower, such approval, in each case, not to be unreasonably withheld or
delayed; provided, however, that neither any Loan Party nor any Affiliate
of a Loan Party shall qualify as an Eligible Assignee under this
definition; provided, further that, with respect to (x) any Canadian
Revolving Credit Advances, (y) the Canadian Subfacility or (z) Canadian
Revolving Credit Commitments, any Person that is not resident in Canada for
purposes of the Income Tax Act (Canada) or any Person that is not
authorized to carry on business in Canada pursuant to the Bank Act (Canada)
or other applicable legislation shall not qualify as an Eligible Assignee
under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL DEED RESTRICTION" means any document recorded pursuant
to any Environmental Law against any property owned by the Loan Parties or
any of their Subsidiaries which materially restricts the use or occupation
of such property, or materially restricts the ownership or transfer of such
property.
"ENVIRONMENTAL LAW" means any federal, state, provincial, local,
municipal or foreign statute, law, ordinance, rule, regulation, code,
order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources applicable to the
operations of any Loan Party, including, without limitation, those relating
to the use, handling, transportation, treatment, storage, disposal, release
or discharge of Hazardous Materials.
15
"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, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"EQUIVALENT" means (a) in US Dollars of Canadian Dollars on any date
of determination, the equivalent in US Dollars of Canadian Dollars
determined by reference to the rate of exchange quoted by Citibank in New
York, New York 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 US Dollars with Canadian Dollars and (b) in Canadian Dollars
of US Dollars on any date of determination, the equivalent in Canadian
Dollars of US Dollars determined by reference to the rate of exchange
quoted by Citibank in New York, New York 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 Canadian Dollars with US Dollars.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
published thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by regulations or the PBGC or (ii) the requirements of Section
4043(b) of ERISA apply with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
any Loan Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was
a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of
any event or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
16
"ESCROW BANK" has the meaning specified in Section 2.16(c).
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
US Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in US Dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided, that, if for any reason such rate
is not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in US Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period); provided,
however, if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates) by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period.
"EURODOLLAR RATE ADVANCE" means a US Revolving Credit Advance, a Term
A Advance, a Term B Advance, a Canadian Term B Advance or an Incremental
Term Advance that bears interest as provided in Section 2.08(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING CREDIT AGREEMENT" has the meaning specified in the
Preliminary Statements.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before the occurrence of the Effective Date,
including the Debt under the Existing Credit Agreement.
17
"EXISTING LETTERS OF CREDIT" means the letters of credit issued under
the Existing Credit Agreement and listed on Schedule 2.01(f) hereto.
"FACE AMOUNT" means, with respect to any Bankers' Acceptance, the
amount payable to the holder of such Bankers' Acceptance on its then
existing Maturity Date, and, with respect to any Notional Bankers'
Acceptance, means the theoretical amount that would be payable to the
holder of such Notional Bankers' Acceptance on its then existing maturity
date; in this Agreement, the Face Amount of an outstanding Notional
Bankers' Acceptance shall mean an amount equal to the Face Amount of the
Notional Bankers' Acceptance in respect of which a particular outstanding
BA Equivalent Advance was made; in this Agreement, references to
outstanding Notional Bankers' Acceptances shall be references to the
outstanding BA Equivalent Advances made in respect of such Notional
Bankers' Acceptances.
"FACILITY" means the Term A Facility, the Term B Facility, the
Canadian Term B Facility, the Revolving Credit Facility, the Canadian
Subfacility, the Swing Line Facility, the US Revolving Letter of Credit
Facility, the Canadian Letter of Credit Facility and the Incremental Term
Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FEE LETTERS" means (i) the fee letter dated May 27, 2005 among the US
Borrower and the agents under the Existing Credit Agreement, CGMI, UBSS and
UBS Loan Finance LLC, as amended, (ii) the agency fee letter dated June 2,
2005 between the US Borrower and the Administrative Agent, as amended,
(iii) the fee letter dated July 6, 2006 among the US Borrower, the Agents,
the Joint Lead Arrangers and UBS Loan Finance LLC, as amended, and (iv) the
agency fee letter dated July 6, 2006 between the US Borrower and the
Administrative Agent, as amended.
"FISCAL YEAR" means a fiscal year of the US Borrower and its
Consolidated Subsidiaries ending on August 31 in any calendar year.
"FOREIGN DISREGARDED ENTITY" means an entity that, for U.S. Federal
income tax purposes, is disregarded as separate from a CFC (i.e., treated
directly or indirectly as a division of a CFC).
"FUND" means any Person (other than an individual) that is or will be
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course.
"GAAP" has the meaning specified in Section 1.03.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality,
18
commission, board, bureau or similar body, whether xxxxxxx, xxxxx,
xxxxxxxxxx, xxxxxxxxxxx, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right, undertaking
or other action of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
"GREYHOUND CANADA" has the meaning specified in the recital of parties
to this Agreement.
"GREYHOUND XXXXXXX FACILITY" means the Second Amended and Restated
Loan and Security Agreement dated as of June 30, 2005 among Greyhound
Lines, Inc. and the US Borrower.
"GUARANTEED OBLIGATIONS" has the meaning specified in each of the US
Subsidiary Guaranty, the Canadian Subsidiary Guaranty and the Parent
Guaranty.
"GUARANTORS" means the US Borrower (as guarantor under the Parent
Guaranty), the US Subsidiary Guarantors and the Canadian Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" means chemicals, materials or substances
designated, classified or regulated as hazardous or toxic or as a pollutant
or contaminant under any Environmental Law including, without limitation,
petroleum or petroleum products, byproducts or breakdown products,
radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts, fuel hedging contracts and other
hedging agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Hedge Agreement with any Borrower that is
required or permitted under Article V hereof.
"HYPOTHEC" has the meaning specified in Section 3.01(a)(ii).
"IMMATERIAL SUBSIDIARY" means any Subsidiary listed on Schedule
4.01(v) hereto and any Subsidiary formed or acquired after the date hereof
that is designated in writing by the US Borrower as an "Immaterial
Subsidiary"; provided that, at any time, the aggregate fair market value of
the assets of all Immaterial Subsidiaries may not exceed $20,000,000 in the
aggregate.
"INCOME TAX ACT (CANADA)" means the Income Tax Act (Canada) as the
same may from time to time be in effect.
"INCREMENTAL TERM A ADVANCES" means term advances made by one or more
Term A Lenders to the US Borrower pursuant to Section 2.01(a)(ii) in
accordance with the relevant Incremental Term Loan Assumption Agreement.
"INCREMENTAL TERM A COMMITMENT" means, at any time, the commitment of
any Incremental Term A Lender, established pursuant to Section 2.05, to
make Incremental Term A
19
Advances to the US Borrower or if such Incremental Term A Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Incremental Term A Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.06.
"INCREMENTAL TERM ADVANCES" means Incremental Term A Advances and
Incremental Term B Advances.
"INCREMENTAL TERM A FACILITY" means, at any time, the aggregate amount
of the Incremental Term Lenders' Incremental Term A Commitments at such
time.
"INCREMENTAL TERM AMOUNT" means an aggregate amount up to
$300,000,000.
"INCREMENTAL TERM B ADVANCES" means term advances made by one or more
Lenders to the US Borrower pursuant to Section 2.01(g)(ii) in accordance
with the relevant Incremental Term Loan Assumption Agreement.
"INCREMENTAL TERM B COMMITMENT" means, at any time, the commitment of
any Incremental Term Lender, established pursuant to Section 2.05, to make
Incremental Term B Advances to the US Borrower or if such Incremental Term
B Lender has entered into one or more Assignment and Acceptances, set forth
for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(d) as such Lender's "Incremental Term B
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"INCREMENTAL TERM B FACILITY" means, at any time, the aggregate amount
of the Incremental Term Lenders' Incremental Term B Commitments at such
time.
"INCREMENTAL TERM COMMITMENT" means an Incremental Term A Commitment
or an Incremental Term B Commitment.
"INCREMENTAL TERM FACILITY" means, at any time, the Incremental Term A
Facility and the Incremental Term B Facility.
"INCREMENTAL TERM LENDER" means a Lender with an Incremental Term
Commitment or outstanding Incremental Term Advances.
"INCREMENTAL TERM LOAN APPLICABLE MARGIN" has the meaning set forth in
Section 2.05(b).
"INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT" means an incremental term
loan assumption agreement in form and substance reasonably satisfactory to
the Administrative Agent and the US Borrower, among the US Borrower, the
Administrative Agent and one or more Incremental Term Lenders.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum dated July
2006 used by the Joint Lead Arrangers in connection with the syndication of
the Commitments.
"INITIAL BORROWING PERIOD" has the meaning specified in Section
2.02(d).
20
"INITIAL EXTENSION OF CREDIT" means the first to occur of the Term B
Borrowing or the Canadian Term B Borrowing hereunder.
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INITIAL PLEDGED DEBT" has the meaning specified in the Security
Agreement or the Hypothec.
"INITIAL PLEDGED EQUITY" has the meaning specified in the Security
Agreement or the Hypothec.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTEREST COVERAGE RATIO" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Interest Expense, in each case, of
or by the US Borrower and its Subsidiaries for the most recently completed
Measurement Period.
"INTEREST EXPENSE" means, at any date of determination, the sum of (a)
interest payable on, and amortization of debt discount and deferred finance
costs in respect of, all Debt for Borrowed Money (including, without
limitation, (i) bank and commitment fees, (ii) letter of credit fees and
(iii) allocated interest expense of capital leases determined in accordance
with GAAP) and (b) without duplication of (a) above, capitalized interest
to the extent required to be capitalized under GAAP, in each case, of or by
the US Borrower and its Subsidiaries for the most recently completed
Measurement Period.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the
period selected by the applicable Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one week or one,
two, three or six months or, with the consent of the Appropriate Lenders,
nine or twelve months, as the applicable Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(a) the applicable Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate principal
amount of Base Rate Advances and of Eurodollar Rate Advances having
Interest Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to the
aggregate principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to
21
occur on the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger, amalgamation or
consolidation (or similar transaction) and any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (i) or
(j) of the definition of "DEBT" in respect of such Person.
"ISSUING BANK" means a Revolving Issuing Bank.
"JOINT LEAD ARRANGERS" means each of CGMI, UBSS and Xxxxxx Xxxxxxx in
their capacities as joint lead arrangers and joint book-running managers in
connection with the Facility.
"XXXXXXX TRANSIT" has the meaning specified in the recital of parties
to this Agreement.
"L/C COLLATERAL ACCOUNTS" means the US L/C Collateral Account and the
Canadian L/C Collateral Account.
"L/C DISBURSEMENT" means a US L/C Disbursement or a Canadian L/C
Disbursement, as applicable.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(e)(ii)(A).
"LENDER PARTY" means any Lender, any Issuing Bank, the Swing Line Bank
or any Canadian Lender.
"LENDER REPRESENTATIVES" has the meaning specified in Section 8.10.
"LENDERS" means the Initial Lenders, the "Lenders" under the Existing
Credit Agreement and each Person that shall become a Lender hereunder
pursuant to Section 8.07 for so long as such Initial Lender or Person, as
the case may be, shall be a party to this Agreement.
"LETTER OF CREDIT ADVANCE" means a Canadian Letter of Credit Advance
or a US Revolving Letter of Credit Advance.
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
22
"LETTER OF CREDIT COMMITMENT" means a Canadian Letter of Credit
Commitment or a US Revolving Letter of Credit Commitment.
"LETTER OF CREDIT FACILITY" means, collectively, the Canadian Letter
of Credit Facility and the US Revolving Letter of Credit Facility.
"LETTERS OF CREDIT" means the Canadian Letters of Credit and the US
Revolving Letters of Credit.
"LEVERAGE RATIO" means, at any date of determination, the ratio of
Consolidated Debt for Borrowed Money of the US Borrower and its
Subsidiaries as of the last day of the most recently completed Measurement
Period to Consolidated EBITDA of the US Borrower and its Subsidiaries for
the most recently completed Measurement Period.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes, (iii) the
Collateral Documents, (iv) the Bankers' Acceptances, (v) the US Subsidiary
Guaranty, (vi) the Canadian Subsidiary Guaranty, (vii) the Parent Guaranty,
(viii) the Fee Letters, (ix) each Letter of Credit Agreement, (x) each
Incremental Term Loan Assumption Agreement and (xi) each Hedge Agreement
required or permitted under Article V that is entered into by and between
any Borrower and any Hedge Bank, in each case as amended; provided,
however, that the Fee Letters and the Hedge Agreements referred to in
clause (xi) above shall not be considered Loan Documents for purposes of
exercising acceleration rights under Section 6.01 or for purposes of
Section 8.01.
"LOAN PARTIES" means the Borrowers, the US Subsidiary Guarantors and
the Canadian Subsidiary Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, assets, operations, financial condition or material agreements of
the US Borrower and its Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, financial condition or material agreements of
the US Borrower and its Subsidiaries, taken as a whole, (b) the rights and
remedies of any Agent or any Lender Party under any Loan Document or (c)
the ability of any Loan Party to perform its Obligations under any Loan
Document to which it is or is to be a party.
"MATERIAL CONTRACT" means each agreement set forth on Schedule
4.01(t).
"MATURITY DATE" means, for each Bankers' Acceptance or BA Equivalent
Loan comprising part of the same Drawing, the date on which the Face Amount
for such Bankers' Acceptance or applicable Notional Bankers' Acceptance, as
the case may be, becomes due and payable in accordance with the provisions
set forth below, which shall be a Canadian Business Day occurring thirty,
sixty or ninety days or, if available to all Canadian Lenders purchasing
23
Bankers' Acceptances in connection with the applicable Drawing, one hundred
and eighty days after the date on which such Bankers' Acceptance or
Notional Bankers' Acceptance is created and purchased as part of any
Drawing, as the Canadian Borrower may select upon notice received by the
Administrative Agent not later than 11:00 a.m. (New York City time) on a
Canadian Business Day at least two Canadian Business Days prior to the date
on which such Bankers' Acceptance or Notional Bankers' Acceptance is to be
accepted and purchased (whether as a new Drawing, by renewal or by
Conversion); provided, however, that:
(a) such Borrower may not select any Maturity Date for any
Bankers' Acceptance or BA Equivalent Loan that occurs after the then
scheduled Termination Date;
(b) the Maturity Date for all Bankers' Acceptances and BA
Equivalent Loans comprising part of the same Drawing shall occur on
the same date; and
(c) whenever the Maturity Date for any Bankers' Acceptance or BA
Equivalent Loan would otherwise occur on a day other than a Canadian
Business Day, such Maturity Date shall be extended to occur on the
next succeeding Canadian Business Day.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the US Borrower
ending on or prior to such date, provided that for purposes of determining
interest expense in connection with the calculation of any financial
covenant or financial ratio for (w) the four fiscal quarters ended August
31, 2006, the amount of such item shall be equal to the annualized amount
of the item for the period from the date of the Initial Extension of Credit
through and including August 31, 2006, (x) the four fiscal quarters ended
November 30, 2006, the amount of such item shall be equal to the amount of
such item for the fiscal quarter ended November 30, 2006 multiplied by
four, (y) the four fiscal quarters ended February 28, 2007, the amount of
such item shall be equal to the amount of such item for the two fiscal
quarters ended February 28, 2007 multiplied by two and (z) the four fiscal
quarters ended May 31, 2007, the amount of such item shall be equal to the
amount of such item for the three fiscal quarters ended May 31, 2007
multiplied by 4/3.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"XXXXXX XXXXXXX" has the meaning specified in the recital of parties
to this Agreement.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, that is subject to ERISA and to which any Loan Party
or any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that is subject to ERISA and that (a) is
maintained for employees of any Loan Party or any ERISA Affiliate and at
least one Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
24
"NON-BA LENDER" means a Canadian Lender that is not permitted by
applicable law or by customary market practices to stamp, for purposes of
subsequent sale, or accept, a Bankers' Acceptance.
"NOTE" means a Term A Note, a Term B Note, a Canadian Term B Note or a
Revolving Credit Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF DRAWING" has the meaning specified in Section 2.18(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(f)(iii).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in Section
2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(f)(iii).
"NOTIONAL BANKERS' ACCEPTANCE" has the meaning specified in Section
2.18(a) and includes any outstanding "Notional Bankers' Acceptance" made
under the Existing Credit Agreement.
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(g). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, letter of
credit commissions, charges, expenses, fees, reasonable attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"OFF BALANCE SHEET OBLIGATION" means, with respect to any Person, any
Obligation of such Person under a synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
classified as an operating lease in accordance with GAAP, if such
Obligations would give rise to a claim against such Person in a proceeding
referred to in Section 6.01(g); provided, however, that bus operating
leases shall not be included in Off Balance Sheet Obligations to the extent
that the lease expense related thereto is applied to reduce net income.
"OPEN YEAR" has the meaning specified in Section 4.01(o)(iii).
"OTHER TAXES" has the meaning specified in Section 2.13(b).
25
"PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56, signed into law October 26, 2001.
"PARENT GUARANTY" means the guaranty of the US Borrower referred to in
Section 3.01(a)(xii), as amended.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b); (b) Liens imposed by law (such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens) and other similar Liens arising
in the ordinary course of business securing obligations that (i) are not
overdue for a period of more than 60 days and (ii) individually or together
with all other Permitted Liens outstanding on any date of determination do
not materially adversely affect the value of the property of the Borrowers
and their Subsidiaries, taken as a whole, and do not materially impair the
use thereof in the operation of the business of the Borrowers and their
Subsidiaries, taken as a whole; (c) pledges or deposits in the ordinary
course of business to secure obligations under workers' compensation,
unemployment insurance and other types of social security laws or similar
legislation or to secure public or statutory obligations; (d) deposits to
secure the performance of bids, trade and government contracts and leases
(other than Debt), statutory obligations, surety bonds (other than bonds
related to judgments or litigation), stay and customs bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business; (e) pledges or deposits of cash, cash equivalents or
marketable securities required to secure the payment of incurred losses in
respect of insurance programs (for captive insurance Subsidiaries), (f)
Liens arising by virtue of deposits made in the ordinary course of business
to secure liability for premiums to insurance carriers for insurance
obtained in the ordinary course of business; (g) Liens securing judgments
for the payment of money not constituting an Event of Default under Section
6.01(i) or securing appeal or other surety bonds related to such judgments
and in respect of which the applicable Loan Party is in good faith
prosecuting an appeal or proceedings for review in respect of which
adequate reserves are being maintained in accordance with GAAP, (h)
easements, rights of way, restrictions (including zoning restrictions,
covenants, licenses, encroachments, protrusions and other similar charges)
and other encumbrances on title to real property that do not render title
to the property encumbered thereby materially unmarketable or materially
adversely affect the use of such property for its present purposes;
provided that (x) with respect to clauses (c), (d) and (f) above, such
Liens are for amounts not yet due and payable or delinquent or, to the
extent such amounts are so due and payable, such amounts are being
contested in good faith by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP, which proceedings
or orders entered in connection with such proceedings have the effect of
preventing the forfeiture or sale of the property subject to any such Lien
and (y) with respect to clauses (c), (d), (e) and (f) above, to the extent
such Liens are not imposed by law, such Liens shall in no event encumber
any property other than cash and Cash Equivalents which are the subject of
such deposits.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
26
"PPSA" means, with respect to a particular Province of Canada, the
Personal Property Security Act enacted in force in such Province from time
to time or in respect of the Province of Quebec means the Register of
Personal and Moveable Real Rights.
"PREFERRED INTERESTS" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"PRO RATA SHARE" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount multiplied by a
fraction the numerator of which is the amount of such Lender's Revolving
Credit Commitment or such Lender's Canadian Revolving Credit Commitment, as
applicable, at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.06 or 6.01, such Lender's Revolving Credit Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Revolving Credit Facility or the Canadian Subfacility, if
applicable, at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.06 or 6.01, the Revolving Credit Facility or the
Canadian Subfacility, if applicable, as in effect immediately prior to such
termination).
"PUBLIC DEBT RATING" means, as of any date, the lowest rating that has
been most recently announced by either S&P or Moody's, as the case may be,
in respect of the Facilities. For purposes of the foregoing, (a) if neither
S&P nor Moody's or only one of S&P and Moody's shall have in effect a
Public Debt Rating, the Applicable Margin and the Applicable Percentage
will be set in accordance with Level VI under the definition of "Applicable
Margin" or "Applicable Percentage", as the case may be; (b) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Applicable Percentage shall be based upon (i) if
such ratings are one ratings grade apart, the higher of such ratings and
(ii) if such ratings are more than one ratings grade apart, the rating that
is one grade higher than the lower rating; (c) if any rating established by
S&P or Moody's shall be changed, such change shall be effective as of the
date on which such change is first announced publicly by the rating agency
making such change; and (d) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"REDEEMABLE" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates prior to the Termination Date in respect of the
Term A Facility, the Term B Facility or the Canadian Term B Facility,
whether by operation of a sinking fund or otherwise, or upon the occurrence
of a condition not solely within the control of the issuer or (b) is
redeemable at the option of the holder prior to the Termination Date.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Tender Offer Documents and the Tax
Agreement.
"REQUIRED FINANCIAL INFORMATION" means, as of any date, the most
recent financial statements required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or 5.03(c) on or prior to such date.
27
"REQUIRED LENDERS" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of, without duplication, (a) the
aggregate principal amount of the Advances outstanding at such time, (b)
the aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time and (d) the
aggregate Unused Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at such
time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time, (B) such
Lender's Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (C) such Lender's Pro Rata Share of the
aggregate Face Amount of all Bankers' Acceptances and Notional Bankers'
Acceptances outstanding at such time and (D) the Unused Revolving Credit
Commitment of such Lender at such time. For purposes of this definition,
(a) the aggregate principal amount of US Revolving Letter of Credit
Advances owing to any US Issuing Bank and of Swing Line Advances owing to
any Swing Line Bank and the Available Amount of each US Letter of Credit
shall be considered to be owed to the US Revolving Credit Lenders ratably
in accordance with their respective US Revolving Credit Commitments and (b)
the aggregate principal amount of Canadian Advances owing to any Canadian
Lender, of Canadian Letter of Credit Advances owing to any Canadian Issuing
Bank, the Available Amount of each Canadian Letter of Credit and the
Aggregate Face Amount of all Bankers' Acceptances and Notional Bankers'
Acceptances shall be considered, in each case, to be owed to the US
Revolving Credit Lenders and to the Canadian Revolving Credit Lenders, as
applicable, ratably in accordance with their respective Revolving Credit
Commitments.
"REQUIRED REVOLVING CREDIT LENDERS" means, at any time, Lenders (not
including any Defaulting Lender) owed or holding at least a majority in
interest of the sum of (a) the aggregate principal amount of the Revolving
Credit Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (c) the aggregate
Face Amount of all Bankers' Acceptances and Notional Bankers' Acceptances
outstanding at such time, and (d) the aggregate Unused Revolving Credit
Commitments at such time. For purposes of this definition, (i) the
aggregate principal amount of US Revolving Letter of Credit Advances owing
to any US Issuing Bank and of Swing Line Advances owing to any Swing Line
Bank and the Available Amount of each US Letter of Credit shall be
considered to be owed to the US Revolving Credit Lenders ratably in
accordance with their respective US Revolving Credit Commitments and (ii)
the aggregate principal amount of Canadian Revolving Credit Advances owing
to any Canadian Lender, of Canadian Letter of Credit Advances owing to any
Canadian Issuing Bank, the Available Amount of each Canadian Letter of
Credit and the Aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances shall be considered, in each case, to be owed
to the US Revolving Credit Lenders and to the Canadian Revolving Credit
Lenders, as applicable, ratably in accordance with their respective US
Revolving Credit Commitments.
"REQUIRED TERM A LENDERS" means, at any time, Lenders (not including
any Defaulting Lender) owed or holding at least a majority in interest of
the sum of (a) the aggregate principal amount of the Term A Advances
outstanding at such time and (b) the aggregate unused Term A Commitments at
such time.
"REQUIRED TERM A/REVOLVING CREDIT LENDERS" means, at any time, Lenders
(not including any Defaulting Lender) owed or holding at least a majority
in interest of the sum of (a) the aggregate principal amount of the Term A
Advances outstanding at such time, (b) the aggregate principal amount of
the Revolving Credit Advances outstanding at such time, (c) the
28
aggregate Available Amount of all Letters of Credit outstanding at such
time, (d) the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time, and (e) the
aggregate Unused Revolving Credit Commitments at such time. For purposes of
this definition, (i) the aggregate principal amount of US Revolving Letter
of Credit Advances owing to any US Issuing Bank and of Swing Line Advances
owing to any Swing Line Bank and the Available Amount of each US Letter of
Credit shall be considered to be owed to the US Revolving Credit Lenders
ratably in accordance with their respective US Revolving Credit Commitments
and (ii) the aggregate principal amount of Canadian Revolving Credit
Advances owing to any Canadian Lender, of Canadian Letter of Credit
Advances owing to any Canadian Issuing Bank, the Available Amount of each
Canadian Letter of Credit and the Aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances shall be considered, in each
case, to be owed to the US Revolving Credit Lenders and to the Canadian
Revolving Credit Lenders, as applicable, ratably in accordance with their
respective US Revolving Credit Commitments.
"REQUIRED TERM B LENDERS" means, at any time, Lenders (not including
any Defaulting Lender) owed or holding at least a majority in interest of
the sum of (a) the aggregate principal amount of the Term B Advances and
Canadian Term B Advances outstanding at such time and (b) the aggregate
unused Term B Commitments and Canadian Term B Commitments at such time.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or any of
its Subsidiaries.
"REVOLVING CREDIT ADVANCE" means a US Revolving Credit Advance or a
Canadian Revolving Credit Advance.
"REVOLVING CREDIT BORROWING" means a US Revolving Credit Borrowing or
a Canadian Revolving Credit Borrowing.
"REVOLVING CREDIT COMMITMENT" means a US Revolving Credit Commitment
or a Canadian Revolving Credit Commitment.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the US Revolving Credit Lenders' US Revolving Credit Commitments at such
time.
"REVOLVING CREDIT LENDER" means any US Revolving Credit Lender or any
Canadian Lender.
"REVOLVING CREDIT NOTE" means a US Revolving Credit Note or a Canadian
Revolving Credit Note.
"REVOLVING ISSUING BANKS" means each "Initial US Revolving Issuing
Bank" under the Existing Credit Agreement and any other US Revolving Credit
Lender approved as a US Revolving Issuing Bank or a Canadian Issuing Bank
by the Administrative Agent, and any Eligible Assignee to which a Letter of
Credit Commitment hereunder has been assigned pursuant to Section 8.07 so
long as each such US Revolving Credit Lender or each such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as a Revolving Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register),
29
for so long as such Initial US Revolving Issuing Bank, US Revolving Credit
Lender or Eligible Assignee, as the case may be, shall have a Letter of
Credit Commitment.
"REVOLVING LETTER OF CREDIT" means a US Revolving Letter of Credit or
a Canadian Letter of Credit.
"REVOLVING LETTER OF CREDIT COMMITMENT" means a US Letter of Credit
Commitment or a Canadian Letter of Credit Commitment.
"S&P" means Standard & Poor's, a division of The McGraw Hill
Companies, Inc.
"SCHEDULE I LENDERS" shall mean, at any time, the Lenders that are
listed in Schedule I to the Bank Act (Canada) at such time.
"SCHEDULE II LENDERS" shall mean, at any time, the Lenders that are
listed in Schedule II to the Bank Act (Canada) at such time.
"SCHEDULE III LENDERS" shall mean, at any time, the Lenders that are
listed in Schedule III to the Bank Act (Canada) at such time.
"SECURED PARTIES" means the Agents, the Lender Parties and the Hedge
Banks.
"SECURITY AGREEMENT" means the Canadian Security Agreement, the
Hypothec and the US Security Agreement.
"SENIOR NOTES" means the 10-3/4% Senior Notes due 2011 of the US
Borrower in an initial aggregate principal amount of $406 million issued
pursuant to the Senior Notes Indenture.
"SENIOR NOTES DOCUMENTS" means the Senior Notes Indentures and all
other agreements, indentures and instruments pursuant to which the Senior
Notes have been issued, in each case as amended to the extent permitted
under the Loan Documents.
"SENIOR NOTES INDENTURE" means the Indenture dated as of June 3, 2003
between the US Borrower and Deutsche Bank Trust, as trustee, as amended by
the First Supplemental Indenture, dated June 18, 2003.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that is subject to ERISA and that (a) is
maintained for employees of any Loan Party or any ERISA Affiliate and no
Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, 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
30
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.
"STAMPING FEE" means, with respect to each Bankers' Acceptance and
Notional Bankers' Acceptance, an amount equal to (a) the Applicable Margin,
as in effect on the date of the Drawing or renewal, as the case may be, of
such Bankers' Acceptance or Notional Bankers' Acceptance multiplied by (b)
the Face Amount of such Bankers' Acceptance or Notional Bankers'
Acceptance, calculated on the basis of the term to maturity of such
Bankers' Acceptance or Notional Bankers' Acceptance and a year of 365 days
or 366 days, as the case may be.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"STOCK REPURCHASE" means the proposed repurchase by the US Borrower of
its Common Stock (a) pursuant to the Tender Offer documents in an amount of
approximately $400,000,000 and (b) on the open market in an amount not to
exceed the difference between $500,000,000 and the amount of the shares
purchased pursuant to the Tender Offer.
"SUB-AGENT" means Citibank Canada, for and on behalf of either of the
Agents for the benefit of the Canadian Issuing Banks, the Canadian Lenders
and the Canadian Term B Lenders.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that for purposes of this Agreement, the
term "Subsidiary" shall not include the Persons listed on Schedule III
hereto or any less than wholly-owned Subsidiary of the US Borrower created
or acquired after the date hereof in accordance with the terms of this
Agreement.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in Section
7.01(c).
"SURVIVING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the Initial
Extension of Credit.
"SWING LINE ADVANCE" means an advance made by the Swing Line Bank
pursuant to Section 2.01(d), any US Revolving Credit Lender pursuant to
Section 2.02(b) and includes any outstanding "Swing Line Advance" made
under the Existing Credit Agreement.
"SWING LINE BANK" means the "Initial Swing Line Bank" under the
Existing Credit Agreement and any Eligible Assignee to which the Swing Line
Commitment hereunder has been assigned pursuant to Section 8.07 so long as
such Eligible Assignee expressly agrees to perform in accordance with their
terms all obligations that by the terms of this Agreement are required to
be performed by it as a Swing Line Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Swing Line
Commitment (which information shall be
31
recorded by the Administrative Agent in the Register), for so long as the
Initial Swing Line Bank or Eligible Assignee, as the case may be, shall
have a Swing Line Commitment.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank pursuant to Section 2.01(d) or the US
Revolving Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means with respect to the Swing Line Bank at
any time, the amount set forth opposite the Swing Line Bank's name on
Schedule I hereto under the caption "Swing Line Commitment" or, if the
Swing Line Bank has entered into an Assignment and Acceptance, set forth
for the Swing Line Bank in the Register maintained by the Administrative
Agent pursuant to Section 8.07(d) as the Swing Line Bank's "Swing Line
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"SWING LINE FACILITY" means, at any time, an amount equal to the
amount of the Swing Line Bank's Swing Line Commitments at such time (which,
as of the Closing Date are equal to $15,000,000), as such amount may be
reduced at or prior to such time pursuant to Section 2.06.
"TARGET RATING" means, at any time, a Public Debt Rating of at least
BB+ by S&P and at least Ba1 by Moody's, or a Public Debt Rating of at least
BBB- by S&P or a Public Debt Rating of at least Baa3 by Moody's (in each
case, with a stable outlook and assuming that the Collateral will be
released).
"TAX AGREEMENT" means that certain Tax Sharing Agreement among Xxxxxxx
International, Inc. and its Subsidiaries dated as of June 23, 2003, as
amended as of February 10, 2005, by and among the US Borrower and all of
the direct and indirect Subsidiaries of the US Borrower organized under the
laws of a political subdivision of the United States, as further amended,
to the extent permitted under this Agreement.
"TAXES" has the meaning specified in Section 2.13(a).
"TENDER OFFER" means the repurchase of Common Stock, as more fully
described in the Tender Offer Documents.
"TENDER OFFER DOCUMENTS" means the Offer to Purchase of the US
Borrower dated July 10, 2006, and the related Letter of Transmittal dated
July 10, 2006, each as amended from time to time, and all other letters,
notices, agreements, supplements and consents related thereto.
"TERM A ADVANCE" means a term loan or term loans in US Dollars made
pursuant to Sections 2.01(a)(i) of the Existing Credit Agreement and
outstanding as of the date hereof. Unless the context shall otherwise
require, the term "TERM A Advance" shall also include Incremental Term
Advances.
"TERM A BORROWING" means a borrowing consisting of simultaneous Term A
Advances of the same Type made by the Term A Lenders.
"TERM A COMMITMENT" means, with respect to any Term A Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "TOTAL TERM A COMMITMENT" or, if such Lender has entered
into one or more Assignment and Acceptances, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "TOTAL TERM A COMMITMENT", as such amount may
32
be reduced at or prior to such time pursuant to Section 2.06. Unless the
context shall otherwise require, after the effectiveness of any Incremental
Term Commitment, the term "TERM A COMMITMENT" shall include such
Incremental Term Commitment.
"TERM A FACILITY" means, at any time, the aggregate amount of the Term
A Lenders' Term A Commitments at such time.
"TERM A LENDER" means any Lender that has a Term A Commitment.
"TERM A NOTE" means a promissory note of the US Borrower payable to
the order of any Term A Lender, in substantially the form of Exhibit A-3
hereto, evidencing the indebtedness of the US Borrower to such Lender
resulting from the Term A Advance made or deemed made by such Lender, as
amended.
"TERM B ADVANCE" means a term loan or term loans in US Dollars made
pursuant to Section 2.01(g)(i). Unless the context shall otherwise require,
the term "TERM B ADVANCE" shall also include Incremental Term B Advances.
"TERM B BORROWING" means a borrowing consisting of simultaneous Term B
Advances of the same Type made by the Term B Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "TOTAL TERM B COMMITMENT" or, if such Lender has entered
into one or more Assignment and Acceptances, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "TOTAL TERM B COMMITMENT", as such amount may be
reduced at or prior to such time pursuant to Section 2.06. Unless the
context shall otherwise require, after the effectiveness of any Incremental
Term B Commitment, the term "TERM B COMMITMENT" shall include such
Incremental Term B Commitment.
"TERM B FACILITY" means, at any time, the aggregate amount of the Term
B Lenders' Term B Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the US Borrower payable to
the order of any Term B Lender, in substantially the form of Exhibit A-4
hereto, evidencing the indebtedness of the US Borrower to such Lender
resulting from the Term B Advance made or deemed made by such Lender, as
amended.
"TERMINATION DATE" means the earliest of (a) the date of termination
in whole of the Revolving Credit Commitments, the Letter of Credit
Commitments, the Swing Line Commitments, the Term A Commitments, the Term B
Commitments and the Canadian Term B Commitments pursuant to Section 2.06 or
6.01 and (b)(i) for purposes of the Revolving Credit Facility, the Swing
Line Facility, the Letter of Credit Facilities and the Term A Facility,
June 30, 2010, (ii) for purposes of the Term B Facility, the Canadian Term
B Facility and for all other purposes, July 31, 2013 and (iii) for purposes
of the Incremental Term Facility, the date set forth in the Incremental
Term Loan Assumption Agreement; provided, however, that, notwithstanding
anything contained herein to the contrary, other than pursuant to Section
6.01, the Termination Date in respect of any Canadian Term B Advance shall
not be earlier than the date that is five years and one day following the
date that such Advance is made.
33
"TRADE LETTER OF CREDIT" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory to any Borrower or any of its Subsidiaries to effect payment for
such inventory.
"TRANSACTION" means the Stock Repurchase and the other transactions
contemplated by the Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan Documents and
the Related Documents.
"TRIGGERING EVENT" means, in respect of any bonded contract under
which a Loan Party is obligated, an event under the applicable surety bond
that triggers the obligation of the relevant surety under such surety bond
to perform the obligations of the relevant Loan Party under such bonded
contract.
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UBSS" has the meaning specified in the recital of parties to this
Agreement.
"UNDERGROUND STORAGE TANK" means any tank regulated pursuant to the
Resource Conservation and Recovery Act, 42 U.S.C. Section 10901 et. seq.
"UNUSED CANADIAN REVOLVING CREDIT COMMITMENT" means, with respect to
any Canadian Lender at any time, (a) such Lender's Canadian Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Canadian Revolving Credit Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(without duplication) (ii) such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Canadian Letters of Credit outstanding at
such time, and (B) the aggregate principal amount of all Canadian Letter of
Credit Advances made by the Canadian Issuing Banks pursuant to Section
2.03(c) and outstanding at such time.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any US
Revolving Credit Lender at any time, (a) such Lender's US Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all US Revolving Credit Advances, Swing Line Advances and Letter
of Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (without duplication) (ii) such Lender's Pro
Rata Share of (A) with respect to US Revolving Credit Lenders, the
aggregate Available Amount of all Revolving Letters of Credit outstanding
at such time and with respect to Canadian Lenders, the aggregate Available
Amount of all Canadian Letters of Credit outstanding at such time, (B) with
respect to US Revolving Credit Lenders, the aggregate principal amount of
all Letter of Credit Advances made by the Issuing Banks pursuant to Section
2.03(c) and outstanding at such time and with respect to the Canadian
Lenders, the aggregate principal amount of all Canadian Letter of Credit
Advances made by the Canadian Issuing Banks pursuant to Section 2.03(c) and
outstanding at such time, (C) with respect to US Revolving Credit Lenders,
the aggregate principal amount of all Canadian Revolving Credit Advances
made by the Canadian Lenders and outstanding at such time, (D) with respect
to the US Revolving Credit Lenders, the aggregate principal amount of all
Swing Line Advances made by the Swing Line Banks pursuant to Section
2.01(d) and outstanding at such time and (E) the aggregate Face Amount of
all Bankers' Acceptances and Notional Bankers' Acceptances outstanding at
such time.
34
"US BORROWER" has the meaning specified in the recital of parties to
this Agreement.
"US DOLLARS", "U.S.$" or "$" each means lawful money of the United
States of America.
"US L/C COLLATERAL ACCOUNT" means Account No. 795427 that the US
Borrower has opened with Citibank, N.A. at its office at 111 Wall Street,
West, 14th Floor, New York, New York 10005 in the name of the Agent and
under the sole control and dominion of the Agent and subject to the terms
of this Agreement.
"US L/C DISBURSEMENT" shall mean a payment or disbursement made by any
US Issuing Bank pursuant to a US Letter of Credit.
"US LOAN PARTY" means each Loan Party organized under the laws of a
political subdivision of the United States.
"US REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(b) and includes US Revolving Letter of Credit Advances and outstanding
"US Revolving Credit Advances" made under the Existing Credit Agreement.
"US REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous US Revolving Credit Advances of the same Type made by the US
Revolving Credit Lenders.
"US REVOLVING CREDIT COMMITMENT" means, with respect to any US
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "US Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as such Lender's "US
Revolving Credit Commitment," as such amount may be reduced at or prior to
such time pursuant to Section 2.06.
"US REVOLVING CREDIT LENDER" means any US Revolving Credit Lender that
has a US Revolving Credit Commitment.
"US REVOLVING CREDIT NOTE" means a promissory note of the US Borrower
payable to the order of any US Revolving Credit Lender, in substantially
the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of
such Borrower to such Lender resulting from the US Revolving Credit
Advances and the Letter of Credit Advances and Swing Line Advances made by
such Lender, as amended.
"US REVOLVING ISSUING BANK" means Citibank, N.A. and any Eligible
Assignee to which the US Revolving Letter of Credit Commitment hereunder
has been assigned pursuant to Section 8.07 so long as such Eligible
Assignee expressly agrees to perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be
performed by it as an US Revolving Issuing Bank and notifies the
Administrative Agent of its Applicable Lending Office and the amount of its
US Revolving Letter of Credit Commitment (which information shall be
recorded by the Administrative Agent in the Register), for so long as such
Initial US Revolving Issuing Bank or Eligible Assignee, as the case may be,
shall have a US Revolving Letter of Credit Commitment.
"US REVOLVING LETTER OF CREDIT ADVANCE" means an advance made by any
US Revolving Issuing Bank or any US Revolving Credit Lender pursuant to
Section 2.03(c) and includes any
35
outstanding "US Revolving Letter of Credit Advance" made under the Existing
Credit Agreement.
"US REVOLVING LETTER OF CREDIT COMMITMENT" means, with respect to any
US Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "US Revolving Letter of
Credit Commitment" or, if such Issuing Bank has entered into one or more
Assignment and Acceptances, set forth for such Issuing Bank in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as such
Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"US REVOLVING LETTER OF CREDIT FACILITY" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the US Issuing Banks' US
Revolving Letter of Credit Commitments at such time and (b) $200 million,
as such amount may be reduced at or prior to such time pursuant to Section
2.06.
"US REVOLVING LETTERS OF CREDIT" has the meaning specified in Section
2.01(f).
"US SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii)
"US SUBSIDIARY GUARANTORS" means the United States Subsidiaries of the
US Borrower listed on Schedule II hereto (which, for the avoidance of
doubt, shall not include Immaterial Subsidiaries listed on Schedule 4.01(u)
hereto) and each other United States Subsidiary of the US Borrower that
shall be required to execute and deliver a guaranty pursuant to Section
5.01(j).
"US SUBSIDIARY GUARANTY" means the guaranty of the US Subsidiary
Guarantors referred to in Section 3.01(a)(x) together with each other
guaranty and guaranty supplement delivered pursuant to Section 5.01(j), in
each case as amended, amended and restated, modified or otherwise
supplemented.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents in the computation of periods of
time from a specified date to a later specified date, the word "FROM" means
"from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to (a) any agreement or contract
"AS AMENDED" shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms and (b) "INCLUDING" means "INCLUDING, WITHOUT
LIMITATION".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
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SECTION 1.04. Currency Equivalents Generally. Any amount specified in this
Agreement (other than in Articles II, VII and VIII) or any of the other Loan
Documents to be in US Dollars shall also include the equivalent of such amount
in any currency other than US Dollars, such equivalent amount to be determined
at the rate of exchange quoted by Citibank in New York, New York 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 US Dollars with such other
currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) (i) The Term A
Advances. The Term A Advances shall remain outstanding subject to the terms and
conditions of this Agreement. Term A Advances repaid or prepaid may not be
reborrowed.
(ii) The Incremental Term A Advances. Each Incremental Term Lender
severally agrees, on the terms and conditions set forth in Section 2.05, to make
one or more Incremental Term A Advances to the US Borrower on the relevant date
selected by the US Borrower in respect of such Incremental Term A Advances
pursuant to Section 2.05, in an amount not to exceed such Lender's Incremental
Term A Commitment at such time, subject to the terms and conditions described in
Section 2.05 and in the Incremental Term Loan Assumption Agreement. Amounts
borrowed under this Section 2.01(a)(ii) and repaid or prepaid may not be
reborrowed.
(b) The US Revolving Credit Advances. Each US Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "US REVOLVING CREDIT ADVANCE") in US Dollars to the US Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in respect of the Revolving Credit Facility in an
amount for each such Advance not to exceed an amount equal to such Lender's
Unused Revolving Credit Commitment at such time. Each US Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances
or Letter of Credit Advances) and shall consist of US Revolving Credit Advances
made simultaneously by the US Revolving Credit Lenders ratably according to
their US Revolving Credit Commitments. Within the limits of each US Revolving
Credit Lender's Unused Revolving Credit Commitment in effect from time to time,
the US Borrower may borrow under this Section 2.01(b), prepay pursuant to
Section 2.07(a) and reborrow under this Section 2.01(b).
(c) The Canadian Advances. Each Canadian Lender severally agrees on
the terms and conditions hereinafter set forth, to make advances (each a
"CANADIAN ADVANCE") in Canadian Dollars to any Canadian Borrower from time to
time on any Canadian Business Day during the period from the Effective Date
until the Termination Date in respect of the Canadian Subfacility; provided,
that the amount for each such Advance shall not exceed the lesser of (x) the
aggregate of the Unused Canadian Revolving Credit Commitments at such time and
(y) the aggregate of the Unused Revolving Credit Commitments of the US Revolving
Credit Lenders at such time (determined in the case of any Canadian Revolving
Credit Borrowing denominated in Canadian Dollars by reference to the Equivalent
thereof in US Dollars on such Business Day); and provided, further that after
giving effect to any Canadian Revolving Credit Borrowing under this Section
2.01(c), the sum of the Equivalent in US Dollars on such date of the aggregate
principal amount outstanding on such date of, without duplication, Canadian
Revolving Credit Advances, the aggregate Face Amount of all Bankers' Acceptances
and Notional
37
Bankers' Acceptances outstanding and the aggregate Available Amount of all
outstanding Canadian Letters of Credit shall not exceed U.S.$50,000,000. Each
Canadian Revolving Credit Borrowing shall be in an aggregate amount of
CN$3,000,000 or an integral multiple of CN$500,000 in excess thereof (other than
a Canadian Revolving Credit Borrowing the proceeds of which shall be used solely
to repay or prepay in full outstanding Letter of Credit Advances or Bankers'
Acceptances or Notional Bankers' Acceptances) and shall consist of Canadian
Revolving Credit Advances made simultaneously by the Canadian Lenders ratably
according to their Canadian Revolving Credit Commitments. Within the limits of
each Canadian Lender's Unused Canadian Revolving Credit Commitment in effect
from time to time, the Canadian Borrowers may borrow under this Section 2.01(c),
prepay pursuant to Section 2.07(a) and reborrow under this Section 2.01(c).
(d) The Swing Line Advances. The Swing Line Bank agrees on the terms
and conditions hereinafter set forth to make Swing Line Advances to the US
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in respect of the Revolving Credit
Facility (i) in an aggregate amount not to exceed at any time outstanding the
Swing Line Commitment and (ii) in an amount for each such Swing Line Borrowing
not to exceed the aggregate of the Unused Revolving Credit Commitments of the US
Revolving Credit Lenders at such time. No Swing Line Advance shall be used for
the purpose of funding the payment of principal of any other Swing Line Advance.
Each Swing Line Borrowing shall be in an amount of $1,000,000 or an integral
multiple of $500,000 in excess thereof and shall be made as a Base Rate Advance.
Within the limits of the Swing Line Facility and within the limits referred to
in clause (ii) above, so long as any Swing Line Bank, in its sole discretion,
elects to make Swing Line Advances, the US Borrower may borrow under this
Section 2.01(d), repay pursuant to Section 2.04(c) or prepay pursuant to Section
2.07(a) and reborrow under this Section 2.01(d).
(e) The Bankers' Acceptances. (i) Each Canadian Lender severally
agrees on the terms and conditions hereinafter set forth, in the case of each BA
Lender, to accept Drafts (each such Draft so accepted, a "BANKERS' ACCEPTANCE")
for the account of any Canadian Borrower, and to purchase such Bankers'
Acceptances and in the case of non-BA Lenders to make BA Equivalents Advances,
from time to time on any Canadian Business Day during the period from the
Effective Date until the Termination Date; provided, that the Face Amount of
such Bankers' Acceptance and of any Notional Bankers' Acceptance shall not
exceed the lesser of (x) the Unused Canadian Revolving Credit Commitment of such
Canadian Lender and (y) the Unused Revolving Credit Commitments of the US
Revolving Credit Lenders at such time; provided, further, that after giving
effect to any Drawing under this Section 2.01(e), the sum of the Equivalent in
US Dollars on such date of the aggregate principal amount outstanding on such
date of, without duplication, Canadian Revolving Credit Advances, the aggregate
Face Amount of all Bankers' Acceptances and BA Equivalent Advances outstanding
and the aggregate Available Amount of all outstanding Canadian Letters of Credit
shall not exceed US$50,000,000. Each Drawing shall consist of the creation and
purchase of Bankers' Acceptances and the making of BA Equivalent Advances at or
about the same time by the Canadian Lenders ratably in accordance with their
respective Canadian Revolving Credit Commitments. Within the limits of the
Canadian Subfacility and within the limits referred to above in this Section
2.01(e), the Borrowers may borrow under this Section 2.01(e), prepay pursuant to
Section 2.07(a) and reborrow under this Section 2.01(e).
(f) Letters of Credit. (i) US Revolving Letters of Credit. (i) As of
the Effective Date, each Existing Letter of Credit issued for the account of the
US Borrower under the Existing Credit Agreement will be deemed to have been
issued hereunder by the applicable US Revolving Issuing Bank and continued for
the account of the US Borrower under this Agreement. Each US Revolving Issuing
Bank severally agrees, on the terms and conditions hereinafter set forth, to
issue (or cause its Affiliate that is a commercial bank to issue on its behalf)
letters of credit (including any such letters of credit deemed to
38
be issued hereunder, the "US REVOLVING LETTERS OF CREDIT") in US Dollars for the
account of the US Borrower from time to time on any Business Day during the
period from the Effective Date until 30 days before the Termination Date in
respect of the Revolving Credit Facility in an aggregate outstanding Available
Amount (A) for all US Revolving Letters of Credit issued (or deemed to have been
issued) by such US Revolving Issuing Bank not to exceed at any time the lesser
of (x) the US Revolving Letter of Credit Facility at such time and (y) such
Issuing Bank's Letter of Credit Commitment at such time and (B) for each such US
Revolving Letter of Credit not to exceed the Unused Revolving Credit Commitments
of the US Revolving Credit Lenders at such time; provided, however, that in no
event shall the aggregate outstanding Available Amount for all US Revolving
Letters of Credit exceed $200,000,000. Within the limits of the US Revolving
Letter of Credit Facility, and subject to the limits referred to above, the US
Borrower may request the issuance of US Revolving Letters of Credit under this
Section 2.01(f)(i), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.04(e) and request the issuance of additional US
Revolving Letters of Credit under this Section 2.01(f)(i).
(ii) Canadian Letters of Credit. As of the Effective Date, each
Existing Letter of Credit issued for the account of a Canadian Borrower under
the Existing Credit Agreement will be deemed to have been issued hereunder by
the applicable Canadian Issuing Bank and continued for the account of such
Canadian Borrower under this Agreement. Each Canadian Issuing Bank severally
agrees, on the terms and conditions hereinafter set forth, to issue (or cause
its Canadian Affiliate that is a commercial bank to issue on its behalf) letters
of credit (including any such letters of credit deemed to be issued hereunder,
the "CANADIAN LETTERS OF CREDIT") in Canadian Dollars for the account of a
Canadian Borrower from time to time on any Canadian Business Day during the
period from the Effective Date until 30 days before the Termination Date in
respect of the Revolving Credit Facility in an aggregate outstanding Available
Amount (A) for all Canadian Letters of Credit issued (or deemed to have been
issued) by such Canadian Issuing Bank not to exceed at any time the lesser of
(x) the Canadian Letter of Credit Facility at such time and (y) such Canadian
Issuing Bank's Canadian Letter of Credit Commitment at such time and (B) for
each such Canadian Letter of Credit not to exceed the Unused Revolving Credit
Commitments of the US Revolving Credit Lenders at such time; provided, however,
that in no event shall the aggregate outstanding Available Amount for all
Canadian Letters of Credit exceed the Canadian Equivalent of US$20,000,000;
provided, further that after giving effect to any issuance of a Canadian Letter
of Credit, the sum of (without duplication) (x) the Equivalent in US Dollars on
such date of the aggregate principal amount outstanding on such date of Canadian
Revolving Credit Advances, (y) the Equivalent in US Dollars on such date of the
aggregate Available Amount of all outstanding Canadian Letters of Credit and (z)
the Face Amount of all outstanding Bankers' Acceptances and Notional Bankers'
Acceptances shall not exceed U.S.$50,000,000. Within the limits of the Canadian
Letter of Credit Facility, and subject to the limits referred to above, the
applicable Canadian Borrower may request the issuance of Canadian Letters of
Credit under this Section 2.01(f)(ii), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Section 2.04(e) and request the
issuance of additional Canadian Letters of Credit under this Section
2.01(f)(ii).
(iii) Terms Applying to All Letters of Credit. No Letter of Credit
shall have an expiration date (including all rights of the applicable Borrower
or the beneficiary to require renewal) later than the earlier of 5 days before
the Termination Date in respect of the Revolving Credit Facility and (A) in the
case of a Standby Letter of Credit, one year after the date of issuance thereof,
but may by its terms be renewable annually upon notice (a "NOTICE OF RENEWAL")
given to the Issuing Bank that issued such Standby Letter of Credit and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit but in any event at least three Business Days prior to the
date of the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless such
Issuing Bank has notified the applicable Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Standby Letter of
39
Credit but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Standby Letter of Credit (a "NOTICE OF
TERMINATION") and (B) in the case of a Trade Letter of Credit, 60 days after the
date of issuance thereof; provided, that the terms of each Standby Letter of
Credit that is automatically renewable annually shall (x) require the Issuing
Bank that issued such Standby Letter of Credit to give the beneficiary named in
such Standby Letter of Credit notice of any Notice of Termination, (y) permit
such beneficiary, upon receipt of such notice, to draw under such Standby Letter
of Credit prior to the date such Standby Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 5 days before the Termination Date in respect of
the Revolving Credit Facility. If either a Notice of Renewal is not given by the
applicable Borrower or a Notice of Termination is given by the relevant Issuing
Bank pursuant to the immediately preceding sentence, such Standby Letter of
Credit shall expire on the date on which it otherwise would have been
automatically renewed; provided, however, that even in the absence of receipt of
a Notice of Renewal the relevant Issuing Bank may in its discretion, unless
instructed to the contrary by the Administrative Agent or the applicable
Borrower, deem that a Notice of Renewal had been timely delivered and in such
case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement.
(g) (i) The Term B Advances. Each Term B Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single advance (a
"TERM B ADVANCE") to the US Borrower on or before the sixth Business Day
following the Effective Date in an amount not to exceed such Lender's Term B
Commitment at such time. The Term B Borrowing shall consist of Term B Advances
made simultaneously by the Term B Lenders ratably according to their Term B
Commitments. Amounts borrowed under this Section 2.01(g)(i) and repaid or
prepaid may not be reborrowed.
(ii) The Incremental Term B Advances. Each Incremental Term Lender
severally agrees, on the terms and conditions set forth in Section 2.05, to make
one or more Incremental Term B Advances to the US Borrower on the relevant date
selected by the US Borrower in respect of such Incremental Term B Advances
pursuant to Section 2.05, in an amount not to exceed such Lender's Incremental
Term B Commitment at such time, subject to the terms and conditions described in
Section 2.05 and in the Incremental Term Loan Assumption Agreement. Amounts
borrowed under this Section 2.01(g)(ii) and repaid or prepaid may not be
reborrowed.
(h) The Canadian Term B Advances. Each Canadian Term B Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "CANADIAN TERM B ADVANCE") to each of the Canadian Borrowers
on or before the sixth Business Day following the Effective Date in an aggregate
amount not to exceed such Lender's Canadian Term B Commitment at such time. The
Canadian Term B Borrowing shall consist of Canadian Term B Advances made
simultaneously by the Canadian Term B Lenders ratably according to their
Canadian Term B Commitments. Amounts borrowed under this Section 2.01(h) and
repaid or prepaid may not be reborrowed.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on (A) the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or (B) the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances
or (C) the first Canadian Business Day prior to the date of the proposed
Borrowing, in the case of a Canadian Advance or (D) the third Canadian Business
Day prior to the date of the proposed Borrowing in the case of Bankers'
Acceptances and BA Equivalent Advances, in each case by the applicable Borrower
to the Administrative Agent, which shall give to each Appropriate Lender prompt
notice thereof by telecopier or electronic communication. Each such notice of a
Borrowing (a "NOTICE OF BORROWING") shall be by telephone,
40
confirmed immediately in writing, or by telecopier, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing (in the case of a US Revolving Credit Borrowing), (iv)
aggregate amount of such Borrowing, (v) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance and the
currency of each such Advance; provided, that for the first 20 Business Days
after the Initial Borrowing Period, the Borrowers may only select Interest
Periods of one month for any Term B Advance or Canadian Term B Advance that is a
Eurodollar Rate Advance and (vi) in the case of a Borrowing consisting of
Bankers' Acceptances and BA Equivalent Advances, the term of each such Advance.
Each Appropriate Lender shall, before 11:00 A.M. (New York City time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing in accordance
with the respective Commitments under the applicable Facility of such Lender and
the other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the applicable
Borrower by crediting the Borrower's Account; provided, however, that in the
case of any US Revolving Credit Borrowing, the Administrative Agent shall first
make (x) a portion of such funds equal to the aggregate principal amount of any
Canadian Revolving Credit Advances (other than any Bankers' Acceptance and any
outstanding Notional Bankers' Acceptance) and Canadian Letter of Credit Advances
made by any Canadian Lender or any Canadian Issuing Bank, as the case may be,
and by any other US Revolving Credit Lender and outstanding on the date of such
US Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and
as of such date, available to such Canadian Lender or such Canadian Issuing
Bank, as the case may be, and such other US Revolving Credit Lenders for
repayment of such Canadian Revolving Credit Advances and Canadian Letter of
Credit Advances, (y) a portion of such funds equal to the aggregate principal
amount of any US Revolving Letter of Credit Advances and any Swing Line Advances
made by any Swing Line Bank or any US Issuing Bank, as the case may be, and by
any other US Revolving Credit Lender and outstanding on the date of such US
Revolving Credit Borrowing, plus interest accrued and unpaid thereon to and as
of such date, available to such Swing Line Bank or US Issuing Bank, as the case
may be, and such other US Revolving Credit Lenders for repayment of such US
Revolving Letter of Credit Advances and Swing Line Advances and (z) a portion of
such funds equal to the Face Amount of any Bankers' Acceptance and any
outstanding Notional Bankers' Acceptance made by any Lender outstanding on the
date of such US Revolving Credit Borrowing shall be deposited in the BA
Collateral Account, and will be made available to such Lenders for repayment of
outstanding Bankers' Acceptances and BA Equivalent Advances, as the case may be,
upon the final maturity of such Bankers' Acceptances and BA Equivalent Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by the applicable Borrower to any Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF
SWING LINE BORROWING") shall be by telephone, confirmed immediately in writing,
or by telecopier, specifying therein the requested (i) date of such Borrowing
and (ii) amount of such Borrowing. If, in its sole discretion, such Swing Line
Bank elects to make the requested Swing Line Advance, such Swing Line Bank will
make the amount thereof available to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the applicable Borrower by crediting such Borrower's Account. Upon
written demand by any Swing Line Bank with an outstanding Swing Line Advance,
with a copy of such demand to the Administrative Agent, each other US Revolving
Credit Lender shall purchase from such Swing Line Bank, and such Swing Line Bank
shall sell and assign to each such other US Revolving Credit Lender, such other
Lender's Pro Rata Share of such outstanding Swing Line Advance as of the date of
such demand, by making available for the account of its Applicable Lending
Office to the
41
Administrative Agent for the account of such Swing Line Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. Each Borrower hereby agrees to each such sale and
assignment. Each US Revolving Credit Lender agrees to purchase its Pro Rata
Share of an outstanding Swing Line Advance on (i) the Business Day on which
demand therefor is made by the Swing Line Bank that made such Advance; provided,
that notice of such demand is given not later than 11:00 A.M. (New York City
time) on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by a Swing Line Bank to any other US Revolving Credit Lender of a
portion of a Swing Line Advance, such Swing Line Bank represents and warrants to
such other Lender that such Swing Line Bank is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Swing Line Advance,
the Loan Documents or any Loan Party. If and to the extent that any US Revolving
Credit Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such US Revolving Credit Lender agrees to
pay to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by such Swing Line Bank
until the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such amount for
the account of such Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by such Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Subject to Section 8.07(g), upon written demand by any Canadian
Lender, with a copy of such demand to the Administrative Agent, each other US
Revolving Credit Lender (or any of its Canadian Affiliates) shall (i) purchase
from such Canadian Lender, and such Canadian Lender shall sell to each such
other US Revolving Credit Lender (or such Affiliate) a participation in such
Canadian Lender's Pro Rata Share of Canadian Revolving Credit Advances (other
than Bankers' Acceptances and BA Equivalent Advances) and (ii) purchase from
such Canadian Lender a participation in any Bankers' Acceptances or BA
Equivalent Advances, as the case may be, outstanding as of the date of such
demand, by making available for the account of its Applicable Lending Office to
the Administrative Agent for the account of such Canadian Lender, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount (or Face Amount, in the case of
Bankers' Acceptances and Notional Bankers' Acceptances net of Stamping Fees paid
in respect of such Bankers' Acceptances and Notional Bankers' Acceptances,
adjusted in accordance with market practice) of such Canadian Revolving Credit
Advances to be purchased by such Lender (or such Affiliate). Each Borrower
hereby agrees to each such sale of a participation. Each US Revolving Credit
Lender agrees to purchase (or cause one of its Canadian Affiliates to purchase)
such a participation in its Pro Rata Share of outstanding Canadian Revolving
Credit Advances (including, without limitation, outstanding Bankers' Acceptances
and Notional Bankers' Acceptances) on (i) the Business Day on which demand
therefor is made by the Canadian Lenders that made such Advances; provided, that
notice of such demand is given not later than 11:00 A.M. (New York City time) on
such Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such sale of a
participation by a Canadian Lender to any other US Revolving Credit Lender (or
any of its Canadian Affiliates) of a portion of a Canadian Revolving Credit
Advance, such Canadian Lender (or such Affiliate) represents and warrants to
such other Lender that such Canadian Lender is the legal and beneficial owner of
such interest being sold by it, but makes no other representation or warranty
and assumes no responsibility with respect to such Canadian Revolving Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any US
Revolving Credit Lender (or any of its Canadian Affiliates) shall not have so
made the amount equal to the portion of the outstanding principal amount (or
Face Amount, in the case of Bankers' Acceptances and Notional Bankers'
Acceptances, adjusted in accordance with market practice) of the participation
acquired by such US Revolving Credit Lender (or
42
any of its Canadian Affiliates) in such Canadian Revolving Credit Advance
available to the Administrative Agent, such US Revolving Credit Lender agrees to
pay (or cause one of its Canadian Affiliates to pay) to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by such Canadian Lender until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate.
(d) Anything in subsection (a) above to the contrary notwithstanding,
(i) no Borrower may select Eurodollar Rate Advances (other than Eurodollar Rate
Advances with Interest Periods of one month) for the Term B Advances and the
Canadian Term B Advances hereunder for the period from the date hereof to the
date that is 20 Business Days following the Effective Date (or such earlier date
as shall be specified in its sole discretion by the Administrative Agent in a
written notice to the Borrowers and the Lenders) (the "INITIAL BORROWING
PERIOD") or for any Borrowing if the aggregate amount of such Borrowing is less
than US$5,000,000 or if the obligation of the Appropriate Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.10 or
2.11 and (ii) each of the Term A Advances, the Term B Advances and the Canadian
Term B Advances may not be outstanding as part of more than 3 separate
Borrowings and the Revolving Credit Advances may not be outstanding as part of
more than 10 separate Borrowings.
(e) Each Notice of Borrowing and Notice of Swing Ling Borrowing shall
be irrevocable and binding on the applicable Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the applicable Borrower shall indemnify each
Appropriate Lender against any loss, cost or expense incurred by such Lender as
a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(f) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and each Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the applicable
Borrower until the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of such Borrower, the interest rate applicable at such
time under Section 2.08 to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing for all purposes.
(g) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M.
43
(New York City time) on the third Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the US Borrower to any US Revolving
Issuing Bank or by a Canadian Borrower to any Canadian Issuing Bank, as the case
may be, which shall give to the Administrative Agent and each US Revolving
Credit Lender in the case of a US Revolving Letter of Credit, or each Canadian
Revolving Credit Lender in the case of a Canadian Letter of Credit, prompt
notice thereof by telecopier or electronic communication and such requirement
shall be deemed waived if such notice is accepted by the Administrative Agent
and the applicable Issuing Bank and received earlier than three days prior to
the date of proposed issuance. Each such notice of issuance of a Letter of
Credit (a "NOTICE OF ISSUANCE") shall be by telephone, confirmed immediately in
writing, or telecopier electronic communication, specifying therein the
requested (A) date of such issuance (which shall be a Business Day or a Canadian
Business Day, as applicable), (B) Available Amount and currency (which shall be
US Dollars, in the case of a US Revolving Letter of Credit or Canadian Dollars,
in the case of a Canadian Letter of Credit) of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
such Issuing Bank may specify to such Borrower for use in connection with such
requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If the requested
form of such Letter of Credit is reasonably acceptable to such Issuing Bank,
such Issuing Bank will, upon fulfillment of the applicable conditions set forth
in Article III, make such Letter of Credit available to such Borrower at its
office referred to in Section 8.02 or as otherwise agreed with such Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates and types of Letters of Credit issued
by such Issuing Bank during the previous week and drawings during such week
under all Letters of Credit issued by such Issuing Bank, (B) to each US
Revolving Credit Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates and types of Letters of Credit issued
by such Issuing Bank during the preceding month and drawings during such month
under all Letters of Credit issued by such Issuing Bank and (C) to the
Administrative Agent and each US Revolving Credit Lender on the first Business
Day of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit issued by such Issuing Bank.
(c) Participations in Letters of Credit. Upon the issuance of a
Revolving Letter of Credit by any Revolving Issuing Bank under Section 2.03(a),
such Revolving Issuing Bank shall be deemed, without further action by any party
hereto, to have sold to each Canadian Lender, in the case of a Canadian Letter
of Credit, or each US Revolving Credit Lender, in the case of a US Revolving
Letter of Credit, and each such Revolving Credit Lender shall be deemed, without
further action by any party hereto, to have purchased from such Issuing Bank, a
participation in such Letter of Credit in an amount for each Revolving Credit
Lender equal to such Lender's Pro Rata Share of the Available Amount of such
Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each US Revolving Credit
Lender hereby absolutely and unconditionally agrees to pay (or, in the case of a
Canadian Letter of Credit, to cause one of its Canadian Affiliates to pay) such
Lender's Pro Rata Share of each L/C Disbursement made by such Revolving Issuing
Bank and not reimbursed by the applicable Borrower forthwith on the date due as
provided in Section 2.04(e) by making available for the account of its
Applicable Lending Office to the Administrative Agent for the account of such
Issuing Bank by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to such Lender's Pro Rata Share of such L/C Disbursement.
Each Revolving Credit Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this Section 2.03(c) in respect of Revolving
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default or
44
the termination of the Commitments, and that each such payment shall be made
without any off-set, abatement, withholding or reduction whatsoever. If and to
the extent that any US Revolving Credit Lender (or, in the case of a Canadian
Letter of Credit, any of its Canadian Affiliates) shall not have so made the
amount of such L/C Disbursement available to the Administrative Agent, such US
Revolving Credit Lender agrees to pay (or, in the case of a Canadian Letter of
Credit, to cause one of its Canadian Affiliates to pay) to the Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date such L/C Disbursement is due pursuant to Section 2.04(e) until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of such Issuing Bank, as applicable.
(d) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the case of a Letter of Credit Advance made by
a US Revolving Issuing Bank or a Canadian Advance, in the case of a Letter of
Credit Advance made by a Canadian Issuing Bank, in each case in the amount of
such draft.
(e) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) (i) Term A Advances. The US
Borrower shall repay to the Administrative Agent for the ratable account of the
Term A Lenders the aggregate outstanding principal amount of the Term A Advances
(other than the Incremental Term Advances) on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.07):
Date Amount
---- ------
September 30, 2006 U.S. $ 7,500,000
December 31, 2006 U.S. $ 7,500,000
Xxxxx 00, 0000 X.X. $ 7,500,000
June 30, 2007 U.S. $ 7,500,000
September 30, 2007 U.S. $11,250,000
December 31, 2007 U.S. $11,250,000
Xxxxx 00, 0000 X.X. $11,250,000
June 30, 2008 U.S. $11,250,000
September 30, 2008 U.S. $11,250,000
December 31, 2008 U.S. $11,250,000
Xxxxx 00, 0000 X.X. $11,250,000
June 30, 2009 U.S. $11,250,000
September 30, 2009 U.S. $37,500,000
December 31, 2009 U.S. $37,500,000
Xxxxx 00, 0000 X.X. $37,500,000
June 30, 2010 U.S. $45,000,000
; provided, however, that the final principal installment shall be repaid on the
Termination Date in respect of the Term A Facility and in any event shall be in
an amount equal to the aggregate principal amount of the Term A Advances
outstanding on such date.
45
(ii) Term B Advances. The US Borrower shall repay to the
Administrative Agent for the ratable account of the Term B Lenders the aggregate
outstanding principal amount of the Term B Advances (other than the Incremental
Term B Advances) on the following dates in the amounts indicated (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.07):
Date Amount
---- ------
December 31, 2006 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2007 U.S. $937,500
September 30, 2007 U.S. $937,500
December 31, 2007 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2008 U.S. $937,500
September 30, 2008 U.S. $937,500
December 31, 2008 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2009 U.S. $937,500
September 30, 2009 U.S. $937,500
December 31, 2009 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2010 U.S. $937,500
September 30, 2010 U.S. $937,500
December 31, 2010 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2011 U.S. $937,500
September 30, 2011 U.S. $937,500
December 31, 2011 U.S. $937,500
Xxxxx 00, 0000 X.X. $937,500
June 30, 2012 U.S. $937,500
September 30, 2012 U.S. $937,500
December 31, 2012 U.S. $937,500
March 31, 2013 U.S. $937,500
; provided, however, that the final principal installment shall be repaid on the
Termination Date in respect of the Term B Facility and in any event shall be in
an amount equal to the aggregate principal amount of the Term B Advances
outstanding on such date.
(iii) Canadian Term B Advances. The Canadian Borrowers shall repay to
the Administrative Agent for the ratable account of the Canadian Term B Lenders
the aggregate outstanding principal amount of the Canadian Term B Advances on
the following dates in the amounts indicated (which amounts shall be reduced as
a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.07):
Date Amount
---- ------
December 31, 2006 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2007 U.S. $312,500
September 30, 2007 U.S. $312,500
December 31, 2007 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2008 U.S. $312,500
46
Date Amount
---- ------
September 30, 2008 U.S. $312,500
December 31, 2008 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2009 U.S. $312,500
September 30, 2009 U.S. $312,500
December 31, 2009 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2010 U.S. $312,500
September 30, 2010 U.S. $312,500
December 31, 2010 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2011 U.S. $312,500
September 30, 2011 U.S. $312,500
December 31, 2011 U.S. $312,500
Xxxxx 00, 0000 X.X. $312,500
June 30, 2012 U.S. $312,500
September 30, 2012 U.S. $312,500
December 31, 2012 U.S. $312,500
March 31, 2013 U.S. $312,500
; provided, however, that the final principal installment shall be repaid on the
Termination Date in respect of the Canadian Term B Facility and in any event
shall be in an amount equal to the aggregate principal amount of the Canadian
Term B Advances outstanding on such date; provided, further, that,
notwithstanding the foregoing or any other provision of this agreement
(including Section 2.02(f) and 2.07(b)) except Section 6.01, no Canadian
Borrower shall under any circumstances be obligated to pay more than 25% of the
Canadian Term B Advances made to such Borrower prior to the day following the
fifth anniversary of the date that such Advances are made pursuant to Section
2.01(h).
(iv) Incremental Term Advances. The US Borrower shall repay to the
Administrative Agent for the ratable account of the Incremental Term Lenders the
aggregate outstanding principal amount of the Incremental Term Advances on the
dates and amounts indicated in the Incremental Term Loan Assumption Agreement
(which amounts shall be reduced as a result of the application of prepayments in
accordance with Section 2.06 and the Incremental Term Loan Assumption
Agreement); provided, however, that the final principal installment shall be
repaid on the Termination Date in respect of the Incremental Term Facility and
in any event shall be in an amount equal to the aggregate principal amount of
the Incremental Term Advances outstanding on such date.
(b) US Revolving Credit Advances. The US Borrower shall repay to the
Administrative Agent for the ratable account of the US Revolving Credit Lenders
on the Termination Date in respect of the Revolving Credit Facility the
aggregate principal amount of the US Revolving Credit Advances then outstanding.
(c) Swing Line Advances. The US Borrower shall repay to the
Administrative Agent for the account of each Swing Line Bank and each other US
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
and the Termination Date.
(d) Canadian Revolving Credit Advances, Bankers' Acceptances and BA
Equivalent Advances. The applicable Canadian Borrower shall repay to the
Administrative Agent for the account of each Canadian Lender and each other US
Revolving Credit Lender that has purchased a Canadian
47
Revolving Credit Advance or purchased and accepted a participation in a Bankers'
Acceptance or made a BA Equivalent Advance the outstanding principal amount of
each Canadian Revolving Credit Advance and the aggregate Face Amount of the
Bankers' Acceptances and corresponding Notional Bankers' Acceptances, as
applicable, made by each of them on the Termination Date in respect of the
Revolving Credit Facility (subject to earlier repayment on the applicable
Maturity Date for Bankers' Acceptances as provided herein).
(e) Letter of Credit Advances. (i) The applicable Borrower shall repay
to the Administrative Agent for the account of each Revolving Issuing Bank and
each other US Revolving Credit Lender that has made a Letter of Credit Advance
on the earlier of one Business Day following demand and the Termination Date in
respect of the Revolving Credit Facility the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrowers under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by any Borrower is without prejudice to, and does not constitute a
waiver of, any rights such Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by such
Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of such Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
such Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a 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;
(E) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft, certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any release or amendment or waiver of or consent to departure from
the US Subsidiary Guaranty, the Canadian Subsidiary Guaranty or the Parent
Guaranty or any other guarantee, for all or any of the Obligations of such
Borrower in respect of the L/C Related Documents; or
48
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, such Borrower or a guarantor.
SECTION 2.05. Incremental Term Loan Commitments. (a) (i) The US Borrower
may, from time to time during the term of the Term A Facility, by written notice
to the Administrative Agent, request Incremental Term A Commitments which shall
have substantially similar terms to the Term A Commitments (other than with
respect to amortization and interest rate spread) in an amount not to exceed the
Incremental Term Amount from one or more Incremental Term Lenders, which may
include any existing Lender; provided, that each Incremental Term Lender, if not
already a Lender hereunder, shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld and, if
withheld, the reason therefor shall be specified in writing). Such notice shall
set forth the amount of the Incremental Term A Commitments being requested
(which shall be in a minimum amount of $50,000,000, a maximum amount (together
with all prior Incremental Term Commitments) of $300,000,000 and in minimum
increments of $1,000,000).
(ii) The US Borrower may, from time to time during the term of the
Term B Facility, by written notice to the Administrative Agent, request
Incremental Term B Commitments which shall have substantially similar terms to
the Term B Commitments (other than with respect to amortization and interest
rate spread) in an amount not to exceed the Incremental Term Amount from one or
more Incremental Term Lenders, which may include any existing Lender; provided,
that each Incremental Term Lender, if not already a Lender hereunder, shall be
subject to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld and, if withheld, the reason therefor shall be specified
in writing). Such notice shall set forth the amount of the Incremental Term B
Commitments being requested (which shall be in a minimum amount of $50,000,000,
a maximum amount (together with all prior Incremental Term Commitments) of
$300,000,000 and in minimum increments of $1,000,000).
(b) The US Borrower and each Incremental Term Lender shall execute and
deliver to the Administrative Agent an Incremental Term Loan Assumption
Agreement and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Incremental Term Commitment of such
Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall
specify the terms of the Incremental Term Advances to be made thereunder with
respect to interest rate spreads (the "INCREMENTAL TERM LOAN APPLICABLE
MARGIN"); provided, that, without the prior written consent of the Required
Lenders, (i) (A) the final maturity date of any Incremental Term A Advances
shall be no earlier than the Termination Date with respect to the Term A
Facility and (B) the average life to maturity of any Incremental Term A Advances
shall be no shorter than the average life to maturity of the loans under the
Term A Facility, and (ii) (A) the final maturity date of any Incremental Term B
Advances shall be no earlier than the Termination Date with respect to the Term
B Facility and (B) the average life to maturity of any Incremental Term B
Advances shall be no shorter than the average life to maturity of the loans
under the Term B Facility. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Incremental Term Loan Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness
of any Incremental Term Loan Assumption Agreement, this Agreement shall be
deemed amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Incremental Term Commitment evidenced thereby. Any
such deemed amendment may be memorialized in writing by the Administrative Agent
with the US Borrower's consent and furnished to the other parties hereto.
Notwithstanding the foregoing, to the extent any terms in the Incremental Term
Loan Assumption Agreement are more favorable to the Incremental Term Lenders (x)
with respect to Incremental Term A Advances than the terms of the Term A
Facility are to the Term A Lenders (other than pricing terms) or (y) with
respect to Incremental Term B Advances than the terms of the Term B Facility are
to the Term B Lenders (other than pricing terms), the Term A
49
Facility or the Term B Facility, as applicable, shall be modified to include
such more favorable terms to the extent directed by the Administrative Agent, in
its sole discretion.
(c) Notwithstanding the foregoing, no Incremental Term Commitment
shall become effective under this Section 2.05 unless (i) on the date of such
effectiveness, the conditions set forth in Section 3.02 shall be satisfied and
the Administrative Agent shall have received a certificate to that effect dated
such date and executed by the Chief Financial Officer, Treasurer or Assistant
Treasurer of the US Borrower, (ii) immediately before and immediately after
giving pro forma effect to any such Incremental Term Commitments, no Default
shall have occurred and be continuing and the US Borrower and its Subsidiaries
shall be in pro forma compliance with all of the covenants set forth in Section
5.04, such compliance to be determined on the basis of the Required Financial
Information most recently delivered to the Administrative Agent and the Lender
Parties as if the Incremental Term Commitments requested were incurred as
Incremental Term Advances on the first day of the fiscal period covered thereby,
and (iii) the Administrative Agent shall have received (with sufficient copies
for each of the Incremental Term Lenders) closing certificates and documentation
reasonably specified by the Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments. (a) Optional.
The Borrowers may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part (i) the unused
portions of the Term A Commitments, the Term B Commitments, the Canadian Term B
Commitments, the Canadian Subfacility, the US Revolving Letter of Credit
Facility or the Canadian Letter of Credit Facility and (ii) the Unused Revolving
Credit Commitments; provided, however, that each partial reduction of a Facility
(A) shall be in an aggregate amount of U.S. $5,000,000 or an integral multiple
of U.S. $1,000,000 in excess thereof (or, in each case, the Equivalent thereof
in Canadian Dollars) and (B) shall be made ratably among the Appropriate Lenders
in accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) From time to time upon each repayment or prepayment
of the Term A Advances, Term B Advances or Canadian Term B Advances, the
aggregate Term A Commitments of the Term A Lenders, Term B Advances of the Term
B Lenders or Canadian Term B Commitments of the Canadian Term B Lenders,
respectively, shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term A
Commitments, Term B Commitments or Canadian Term B Commitments, respectively,
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term A Advances, Term B Advances or Canadian Term B Advances,
respectively, then outstanding (after giving effect to any such repayment or
prepayment thereof).
(ii) The US Revolving Letter of Credit Facility shall be permanently
reduced from time to time on the date of each permanent reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the US
Revolving Letter of Credit Facility exceeds the Revolving Credit Facility after
giving effect to such permanent reduction of the Revolving Credit Facility.
(iii) The Canadian Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Canadian
Subfacility by the amount, if any, by which the amount of the Canadian Letter of
Credit Facility exceeds the Canadian Subfacility after giving effect to such
reduction of the Canadian Subfacility.
(iv) The Canadian Subfacility shall be permanently reduced from time
to time on the date of each permanent reduction in the Revolving Credit Facility
by the amount, if any, by which the amount of the Canadian Subfacility exceeds
the Revolving Credit Facility after giving effect to such permanent reduction of
the Revolving Credit Facility.
50
(v) The Swing Line Facility shall be permanently reduced from time to
time on the date of each permanent reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such permanent reduction of the
Revolving Credit Facility.
SECTION 2.07. Prepayments. (a) Optional. Any Borrower may, at its sole
discretion, upon at least one Business Day's notice in the case of Base Rate
Advances, one Canadian Business Day's notice in the case of Canadian Advances
and three Business Days' notice in the case of Eurodollar Rate Advances, in each
case to the Administrative Agent by 11:00 A.M. (New York City time) on such day,
stating the proposed date and aggregate principal amount of the prepayment,
prepay the outstanding aggregate principal amount of such Advances comprising
part of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of U.S. $5,000,000 or an integral multiple of U.S.
$1,000,000 in excess thereof (or the Equivalent thereof in Canadian Dollars, if
applicable) and (y) if any prepayment of a Eurodollar Rate Advance is made on a
date other than the last day of an Interest Period for such Advance, such
Borrower shall also pay any amounts owing pursuant to Section 8.04(c); provided,
further that optional prepayments of outstanding Bankers' Acceptances shall not
be permitted hereunder; provided, further, that each such notice shall be
irrevocable. Each such prepayment of any Term A Advances, Term B Advances,
Canadian Term B Advances or Incremental Term Facility shall be applied to the
installments thereof on a pro rata basis.
(b) Mandatory. (i) The Borrowers shall, on each Business Day, prepay
an aggregate principal amount of the US Revolving Credit Advances comprising
part of the same Borrowings, the US Revolving Letter of Credit Advances, the
Swing Line Advances, the Canadian Advances comprising part of the same
Borrowings and the Canadian Letter of Credit Advances and deposit an amount (A)
in the US L/C Collateral Accounts equal to the amount by which (1) the sum of
the aggregate principal amount of (x) the US Revolving Credit Advances and (y)
the US Revolving Letter of Credit Advances outstanding on the prior Business Day
plus the aggregate Available Amount of all US Letters of Credit outstanding on
the prior Business Day exceeds (2) the Revolving Credit Facility on such prior
Business Day (determined in the case of any of the foregoing denominated in
Canadian Dollars by reference to the Equivalent thereof in US Dollars on such
Business Day) and (B) in the Canadian L/C Collateral Accounts equal to the
amount by which (1) the sum of the aggregate principal amount of (x) the
Canadian Advances, (y) the Canadian Letter of Credit Advances and (z) the Face
Amount of outstanding Bankers' Acceptances and Notional Bankers' Acceptances
outstanding on the prior Canadian Business Day plus the aggregate Available
Amount of all Canadian Letters of Credit outstanding on the prior Canadian
Business Day exceeds (2) the Canadian Subfacility on such prior Canadian
Business Day (determined in the case of any of the foregoing by reference to the
Equivalent thereof in US Dollars on such prior Canadian Business Day); provided
that any such required prepayment that is attributable solely to fluctuations in
currency rates may be made on the second Canadian Business Day following such
prepayment event.
(ii) The Borrowers shall, on each Business Day, pay to the
Administrative Agent for deposit in (A) the US L/C Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the US L/C Collateral
Account to equal the amount by which the aggregate Available Amount of all US
Revolving Letters of Credit outstanding on the prior Business Day exceeds the US
Revolving Letter of Credit Facility on such prior Business Day and (B) the
Canadian L/C Collateral Account an amount sufficient to cause the aggregate
amount on deposit in the Canadian L/C Collateral Account to equal the amount by
which the aggregate Available Amount of all Canadian Revolving Letters of Credit
outstanding on the prior Canadian Business Day exceeds the Canadian Letter of
Credit Facility (determined in the case of any Canadian Letter of Credit by
reference to the Equivalent thereof in US Dollars on such prior Canadian
Business Day); provided that any such required prepayment that is
51
attributable solely to fluctuations in currency rates may be made on the second
Canadian Business Day following such prepayment event.
(iii) The applicable Canadian Borrower shall, on each Canadian
Business Day, pay to the Administrative Agent for deposit in the BA Collateral
Account an amount sufficient to cause the aggregate amount on deposit in such
account to equal the amount by which the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances then outstanding under the
Canadian Subfacility exceeds the Canadian Subfacility on such Canadian Business
Day.
(iv) Prepayments of the Revolving Credit Facility made pursuant to
clause (i) above shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied to prepay Swing
Line Advances then outstanding until such Advances are paid in full, third
applied to prepay ratably US Revolving Credit Advances then outstanding until
such Advances are paid in full and fourth deposited ratably in the L/C
Collateral Account and BA Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit and 100% of the Face Amount of
Bankers' Acceptances and Notional Bankers' Acceptances then outstanding,
respectively. Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Collateral Account, such funds shall be applied to reimburse
the relevant Issuing Bank or US Revolving Credit Lenders, as applicable. Upon
payment of any Bankers' Acceptance on its maturity or upon the maturity date of
a BA Equivalent Advance for which funds are on deposit in the BA Collateral
Account, such funds shall be applied to reimburse the relevant Canadian Lender
or Lenders, as applicable. For so long as no Event of Default has occurred and
is continuing, (i) cash collateral shall be released to the applicable Borrowers
upon the termination or expiry of any Revolving Letter of Credit, or the
maturity of any Bankers' Acceptance or BA Equivalent Advance, as the case may
be, in an amount equal to the cash collateral pledged in respect of such
Revolving Letter of Credit, Bankers' Acceptance or BA Equivalent Advance, as the
case may be, plus any accrued interest or (ii) if, because of a fluctuation in
the currency in which any such Revolving Letter of Credit, Bankers' Acceptance
or BA Equivalent Advance is denominated, amounts on deposit in the relevant cash
collateral account in respect of such Revolving Letter of Credit, Bankers'
Acceptance or BA Equivalent Advance exceed 100% of the Available Amount of such
Revolving Letter of Credit, or of the Face Amount of such Bankers' Acceptance or
the applicable Notional Bankers' Acceptance, as the case may be, the amount of
such excess cash collateral shall be released to the applicable Borrower.
(v) Notwithstanding any other provision of this Section 2.07 or any
other provision herein or in any other Loan Document to the contrary, no
Canadian Borrower or Canadian Subsidiary Guarantor shall be liable for or
required to repay any Obligation of the Loan Parties under the Loan Documents
other than those Obligations incurred under the Canadian Term B Facility or the
Canadian Subfacility. For the avoidance of doubt, this Section 2.07(b) shall not
apply to require any prepayment of the Canadian Term B Advances.
(vi) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 8.04(c).
SECTION 2.08. Interest. (a) Scheduled Interest. The US Borrower and the
Canadian Borrowers shall pay interest on the unpaid principal amount of each
Advance owing by each of them, respectively, to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears quarterly on
52
the last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or paid
in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(iii) Canadian Advances. (A) A rate per annum equal at all times to
the sum of (1) the Canadian Prime Rate in effect from time to time plus (2)
the Applicable Margin for Canadian Advances in effect from time to time,
payable in arrears quarterly on the last Business Day of each March, June,
September and December during such periods, on the date such Canadian
Advance shall be Converted, on the date of any repayment thereof pursuant
to Section 2.04, on the date of any prepayment thereof to the extent
required under Section 2.06 and on the Termination Date.
(B) For purposes of the Interest Act (Canada), (1) whenever any
interest or fee under this Agreement is calculated using a rate based
on a year different from the calendar year, such rate determined
pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate based on such year, (y)
multiplied by the actual number of days in the calendar year in which
the period for which such interest or fee is calculated ends, and (z)
divided by the number of days in such year; (2) the principle of
deemed reinvestment of interest shall not apply to any interest
calculation under this Agreement; and (3) the rates of interest
stipulated in this Agreement are intended to be nominal rates and not
effective rates or yields.
(C) Notwithstanding any provision to the contrary contained in
this Agreement, in no event shall the aggregate "interest" (as defined
in Section 347 of the Criminal Code, Revised Statutes of Canada, 1985,
c.46 as the same may be amended, replaced or re-enacted from time to
time) payable under this Agreement exceed the maximum amount of
interest on the "credit advanced" (as defined in that section) under
this Agreement lawfully permitted under that section and, if any
payment, collection or demand pursuant to this Agreement in respect of
"interest" (as defined in that section) is determined to be contrary
to the provisions of that section, such payment, collection or demand
shall be deemed to have been made by mutual mistake of the Borrowers
and the Agents and the Lenders and the amount of such payment or
collection shall be refunded to the Borrowers. For purposes of this
Agreement, the effective annual rate of interest shall be determined
in accordance with generally accepted actuarial practices and
principles over the term the Facility is outstanding on the basis of
annual compounding of the lawfully permitted rate of interest and, in
the event of dispute, a certificate of a Fellow of the Canadian
Institute of Actuaries appointed by the Administrative Agent will be
conclusive for the purposes of such determination.
(b) Default Interest. To the fullest extent permitted by applicable
law, (x) upon the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(g), the Administrative Agent shall and (y) upon the
occurrence and during the continuance of any other Event of Default, the
Administrative Agent may, and upon the request of the Required Lenders, shall
require that the US Borrower and the Canadian Borrowers pay interest on their
respective Obligations ("DEFAULT INTEREST") on
53
(i) the unpaid principal amount of each Advance owing to each Lender Party,
payable in arrears on the dates referred to in clause (i), (ii) or (iii) of
Section 2.08(a), as applicable, and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (i), (ii) or (iii) of Section 2.08(a), as applicable,
and (ii) the amount of any interest, fee or other amount payable under this
Agreement or any other Loan Document to any Agent or any Lender Party that is
not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid, in the case of interest, on the
Type of Advance on which such interest has accrued pursuant to clause (i) or
(ii) of Section 2.08(a) or on Canadian Advances pursuant to clause (iii) of
Section 2.08(a), as applicable, and, in all other cases, on Base Rate Advances
pursuant to clause (i) of Section 2.08(a); provided, however, that following the
acceleration of the Advances, or the giving of notice by the Administrative
Agent to accelerate the Advances, pursuant to Section 6.01, Default Interest
shall accrue and be payable hereunder whether or not previously required by the
Administrative Agent.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.10 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the applicable Borrower and each
Appropriate Lender of the applicable Interest Period and the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(a)(ii) above.
(d) BA Rate Determination. If the Reuters Screen CDOR Page is not
available for the timely determination of the BA Rate, and the BA Rate for any
Bankers' Acceptances or Notional Bankers' Acceptances can not otherwise be
determined in a timely manner in accordance with the definition of "BA Rate",
the Administrative Agent shall forthwith notify the applicable Canadian Borrower
and the Canadian Lenders that such interest rate cannot be determined for such
Bankers' Acceptances and Notional Bankers' Acceptances, and the obligation of
the Canadian Lenders to make, or to renew, Bankers' Acceptances and Notional
Bankers' Acceptances shall be suspended until the Administrative Agent shall
notify the applicable Canadian Borrower and the Canadian Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. Fees. (a) Commitment Fee. The US Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee, from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 2005, and on the Termination Date in respect of the
applicable Facility, at the rate per annum equal to the Applicable Percentage in
effect from time to time on the sum of the average daily Unused Revolving Credit
Commitment of each Appropriate Lender plus, if such Lender is a US Revolving
Credit Lender, its Pro Rata Share of (i) the average daily outstanding Canadian
Revolving Credit Advances during such quarter and (ii) the average daily
outstanding Swing Line Advances during such quarter to the extent the Lenders
have not purchased their Pro Rata Share of such Swing Line Advances; provided,
however, that 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 the US
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 the
US Borrower prior to such time; and provided, further that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender. It is understood and agreed that for
purposes of this Section 2.09(a) and (b) the Canadian Borrowers shall have no
liability in respect of fees payable by the US Borrower.
54
(b) Letter of Credit Fees, Etc. (i) The US Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing September 30, 2005, and on the earliest to
occur of the full drawing, expiration, termination or cancellation of any Letter
of Credit and on the Termination Date in respect of the US Revolving Letter of
Credit Facility and in respect of the Canadian Letter of Credit Facility, on
such Lender's Pro Rata Share of the average daily aggregate Available Amount
during such quarter of all Letters of Credit which are Revolving Letters of
Credit outstanding from time to time at the rate of at the Applicable Margin for
Eurodollar Rate Advances under the Revolving Credit Facility. Upon (x) the
occurrence and during the continuance of a Default under Section 6.01(a) or
6.01(g), the Administrative Agent shall and (y) the occurrence and during the
continuance of any other Event of Default, the Administrative Agent may, and
upon the request of the Required Lenders shall, increase the amount of
commission payable by the US Borrower under this clause (b)(i) by 2% per annum.
(ii) The US Borrower shall pay to each Issuing Bank, for its own
account, an issuance fee for each Letter of Credit issued by such Issuing Bank
in an amount equal to 0.25% of the Available Amount of such Letter of Credit on
the date of issuance of such Letter of Credit, payable on such date and such
other commissions, fronting fees, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as such
Borrower and such Issuing Bank shall agree.
(c) Agents' Fees. Each Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between such Borrower and
such Agent.
(d) Stamping Fees. Each Canadian Borrower shall, on the date of each
Drawing and on the date of each renewal of any outstanding Bankers' Acceptances
or BA Equivalent Advances, pay to the Administrative Agent, in Canadian Dollars,
for the ratable account of the Canadian Lenders accepting Drafts and purchasing
Bankers' Acceptances or making BA Equivalent Advances, the Stamping Fee with
respect to such Bankers' Acceptances or corresponding BA Equivalent Advances.
Each Canadian Borrower irrevocably authorizes each such Canadian Lender to
deduct the Stamping Fee payable with respect to each Bankers' Acceptance or
Notional Bankers' Acceptances of such Canadian Lender from the Drawing Purchase
Price payable by such Canadian Lender in respect of such Bankers' Acceptance or
Notional Bankers' Acceptances in accordance with Section 2.18 and to apply such
amount so withheld to the payment of such Stamping Fee for the account of the
applicable Canadian Borrower and, to the extent such Stamping Fee is so withheld
and legally permitted to be so applied, the applicable Canadian Borrower's
obligations under the preceding sentence in respect of such Stamping Fee shall
be satisfied.
SECTION 2.10. Conversion of Advances. (a) Optional. (x) Any Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and 2.11,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(d), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(d) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable
55
and binding on the applicable Borrower; and (y) any Canadian Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00
a.m. (New York City time) on a Business Day at least two Canadian Business Days
prior to the date of the proposed conversion and subject to the provisions of
Sections 2.08 or 2.11, convert all or any portion of the Canadian Revolving
Credit Advances comprising part of the same Borrowing to Drawings in accordance
with Section 2.18(a) hereof; provided, however, that any Conversion of Bankers'
Acceptances or BA Equivalent Advances shall be made in accordance with Section
2.19. Each such notice of Conversion shall specify (A) the date of such
Conversion, (B) the Canadian Revolving Credit Advances to be Converted, (C) if
less than all of the Canadian Revolving Credit Advances comprising part of any
Borrowing are to be Converted, the aggregate amount of Canadian Revolving Credit
Advances to be so Converted and (D) the initial term to maturity of the Bankers'
Acceptances or BA Equivalent Advances (which shall comply with the definition of
"Maturity Date" in Section 1.01); provided, however, that, if the Administrative
Agent determines in good faith (which determination shall be conclusive and
binding upon the applicable Canadian Borrower) that the Bankers' Acceptances or
BA Equivalent Advances cannot be Converted ratably by the Canadian Lenders, due
solely to the requested aggregate Face Amount thereof, the aggregate Face Amount
of Bankers' Acceptances and Notional Bankers' Acceptances to be created and
purchased by any Canadian Lender shall be reduced to such lesser amount as the
Administrative Agent determines will permit such Conversion to be so made and
each Canadian Lender shall make a Credit Advance in the amount of the difference
between such Canadian Lender's ratable portion of the original aggregate amount
of the Canadian Revolving Credit Advances to be Converted and the Face Amount of
the Bankers' Acceptances and Notional Bankers' Acceptances to be created by such
Canadian Lender after giving effect to such Conversion. Each notice of
Conversion under this Section 2.10 shall be irrevocable and binding on the
applicable Canadian Borrower. A Conversion shall not constitute the repayment or
prepayment of an Advance and the creation of a new Obligation hereunder; rather,
the existing Obligation shall continue upon Conversion with full force and
effect, as Converted.
To the extent of any inconsistency between the provisions of this
Section 2.10(a) and Section 2.19 as regards the conversion of Bankers'
Acceptances and BA Equivalent Advances, the provisions of Section 2.19 shall
apply.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any Default,
(x) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances or of
56
purchasing, accepting or maintaining Bankers' Acceptances or Notional Bankers'
Acceptances (excluding, for purposes of this Section 2.11, any such increased
costs resulting from (x) Taxes or Other Taxes (as to which Section 2.13 shall
govern) and (y) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then the
Borrowers shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party additional amounts sufficient to compensate
such Lender Party for such increased cost.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend, to accept, purchase, maintain loans, and/or
discount Bankers' Acceptances or to issue or participate in Letters of Credit
hereunder and other commitments of such type or the issuance or maintenance of
or participation in the Letters of Credit (or similar contingent obligations),
then, upon demand by such Lender Party or such corporation (with a copy of such
demand to the Administrative Agent), the US Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend, to accept, purchase,
maintain loans, and/or discount Bankers' Acceptances or Notional Bankers'
Acceptances or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrowers and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under such Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrowers that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrowers
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to
57
fund or maintain Eurodollar Rate Advances and would not, in the sole judgment of
such Lender, be otherwise disadvantageous to such Lender.
(e) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in the interpretation of any law or regulation
shall make it unlawful, or any central bank or other governmental authority
shall assert that it is unlawful, for any Canadian Lender or its BA Lending
Office to perform its obligations hereunder to complete and accept Drafts, to
purchase Bankers' Acceptances or Notional Bankers' Acceptances or to continue to
fund or maintain Bankers' Acceptances or Notional Bankers' Acceptances
hereunder, then, on notice thereof and demand therefor by such Canadian Lender
to the applicable Canadian Borrower through the Administrative Agent (i) an
amount equal to the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time shall, within three
Canadian Business Days following such demand (which shall only be made if deemed
necessary by the applicable Canadian Lender to comply with applicable law), be
deposited by the applicable Canadian Borrower into the BA Collateral Account
until the Maturity Date of each such Bankers' Acceptance and Notional Bankers'
Acceptance, (ii) upon the Maturity Date of any Bankers' Acceptance or Notional
Bankers' Acceptance in respect of which any such deposit has been made, the
Administrative Agent shall be, and hereby is, authorized (without notice to or
any further action by the applicable Canadian Borrower) to apply, or to direct
the Administrative Agent to apply, such amount (or the applicable portion
thereof) to the reimbursement of such Bankers' Acceptance and (iii) the
obligation of the Canadian Lenders to complete and accept Drafts and purchase
Bankers' Acceptances and Notional Bankers' Acceptance shall be suspended until
the Administrative Agent shall notify the Applicable Canadian Borrower that such
Lender has determined that the circumstances causing such suspension no longer
exist.
SECTION 2.12. Payments and Computations. (a) The Borrowers shall make each
payment hereunder or under the Notes or in respect of Bankers' Acceptances or BA
Equivalent Advances or any other Loan Document, without any deduction,
counterclaim or set-off (except as otherwise provided in Section 2.16), not
later than 11:00 A.M. (New York City time) on the day when due in US Dollars or
the Equivalent in Canadian Dollars, if applicable, to the Administrative Agent
at the Administrative Agent's Account in same day funds, with payments being
received by the Administrative Agent after such time being deemed to have been
received on the next succeeding Business Day. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrowers is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrowers is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrowers hereby authorize each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrowers' accounts with such Lender Party or such
Affiliate any amount so due (it being understood that the accounts of the
Canadian Borrowers shall not be charged for amounts owing in respect of the
Obligations of the US Borrower).
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(c) All computations of interest based on the Base Rate and the
Canadian Prime Rate shall be made by the Administrative Agent on the basis of a
year of 365 or 366 days, as the case may be, and all computations of interest
based on the Eurodollar Rate or the Federal Funds Rate and of fees and Letter of
Credit commissions shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes or in respect of
Bankers' Acceptances or BA Equivalent Advances or any other Loan Document shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment or
letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
any Borrower prior to the date on which any payment is due to any Lender Party
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the applicable Borrower shall not have so made such payment in
full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment hereunder or in respect of Bankers'
Acceptances or BA Equivalent Advances shall be stated to be due on a day other
than a Canadian Business Day such payment shall be made on the next succeeding
Canadian Business Day and such extension of time shall in such case be included
in the computation of payment of interest or commitment fee, as the case may be.
(g) Whenever any payment received by the Administrative Agent under
this Agreement or any of the other Loan Documents is insufficient to pay in full
all amounts due and payable to the Agents and the Lender Parties under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the Agents and
the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents (solely
in their respective capacities as Agents) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing Banks,
Swing Line Bank and the Canadian Lenders (solely in their respective
capacities as such) under or in respect of this Agreement and the other
Loan Documents on such date, ratably based upon the respective aggregate
amounts of all such fees, indemnification payments, costs and expenses
owing to the Issuing Banks and the Canadian Lenders on such date;
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(iii) third, to the payment of all of the indemnification payments,
costs and expenses that are due and payable to the Lenders under Sections
8.04 hereof and any similar section of any of the other Loan Documents on
such date, ratably based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to the Lenders on such
date;
(iv) fourth, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lender Parties under Sections
2.11 and 2.13 hereof on such date, ratably based upon the respective
aggregate amounts thereof owing to the Administrative Agent and the Lender
Parties on such date;
(v) fifth, to the payment of all of the fees that are due and payable
to the Lenders under Sections 2.09(a) and 2.09(b) on such date, ratably
based upon the respective aggregate Commitments of the Lenders under the
Facilities on such date;
(vi) sixth, to the payment of all of the accrued and unpaid interest
on the Obligations of the Borrowers under or in respect of the Loan
Documents that is due and payable to the Administrative Agent and the
Lender Parties under Section 2.08(b) on such date, ratably based upon the
respective aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.08(a) on such date, ratably
based upon the respective aggregate amounts of all such interest owing to
the Administrative Agent and the Lender Parties on such date;
(viii) eighth, to the payment of the principal amount of all of the
outstanding Advances that is due and payable to the Administrative Agent
and the Lender Parties on such date, ratably based upon the respective
aggregate amounts of all such principal owing to the Administrative Agent
and the Lender Parties on such date; and
(ix) ninth, 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 Agent and the Lender Parties on such date,
ratably based upon the respective aggregate amounts of all such Obligations
owing to the Administrative Agent and the Lender Parties on such date.
If the 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 Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lender Parties in accordance with such Lender Party's Pro Rata Share of
the sum of (A) the aggregate principal amount of all Advances outstanding at
such time and (B) the aggregate Available Amount of all Letters of Credit
outstanding at such time, in repayment or prepayment of such of the outstanding
Advances or other Obligations then owing to such Lender Party, and, in the case
of the Term A Facility, for application to such principal repayment installments
thereof, as the Administrative Agent shall direct. Notwithstanding the
foregoing, no payment made by any Canadian Borrower hereunder shall be applied
to satisfy the Obligations of the US Borrower hereunder.
SECTION 2.13. Taxes. (a) Any and all payments by any Loan Party to or for
the account of any Lender Party or any Agent hereunder or under the Notes or in
respect of any Bankers' Acceptances or BA Equivalent Advances or any other Loan
Document shall be made, in accordance with Section 2.12 or the applicable
provisions of such other Loan Document, if any, free and clear of and without
deduction for
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any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender Party and each Agent, income or franchise taxes (including
interest, penalties and other additions thereto) that are measured by or imposed
on its net income (i) by the United States or any state within the United
States, (ii) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent, as the case may be, is organized or in which its
principal office is located or any political subdivision thereof, and (iii) in
the case of each Lender Party, by the state or foreign jurisdiction of such
Lender Party's Applicable Lending Office or any political subdivision thereof
and any branch profits taxes imposed by the Unites States or any similar taxes
imposed by any other jurisdiction described in clauses (i), (ii), and (iii)
above (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
or in respect of any Bankers' Acceptances or BA Equivalent Advances or any other
Loan Document being hereinafter referred to as "TAXES"). Notwithstanding the
foregoing sentence, the term Taxes shall include (i) taxes imposed by the United
States or Canada, or any political subdivision thereof, in connection with the
domestication of the US Borrower as a Delaware corporation, and (ii) taxes
imposed by Canada or any political subdivision thereof that arise in any manner,
directly or indirectly, in the event that the domestication of the US Borrower
as a Delaware corporation is not effective or respected for purposes of the
Income Tax Act (Canada) or any Canadian provincial equivalent. If any Loan Party
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note or in respect of any Bankers' Acceptances or
BA Equivalent Advances or any other Loan Document to any Lender Party or any
Agent, (x) the sum payable by such Loan Party shall be increased as may be
necessary so that after such Loan Party and the Administrative Agent have made
all required deductions or withholdings (including deductions or withholdings
applicable to additional sums payable under this Section 2.13) and the Lender or
the Administrative Agent, as the case may be, has paid any taxes, including
taxes that would be excluded taxes hereunder, in respect of amounts received or
receivable pursuant to this Section 2.13, such Lender Party or such Agent, as
the case may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made, (y) such Loan Party shall make all
such deductions or withholdings and (z) such Loan Party shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, a Loan Party shall pay any present or future stamp,
documentary, excise, property, intangible, mortgage recording or similar taxes,
charges or levies that arise from any payment made by such Loan Party hereunder
or under any Notes or in respect of any Bankers' Acceptances or BA Equivalent
Advances or any other Loan Documents or from the execution, delivery or
registration of, performance under, or otherwise with respect to, this
Agreement, the Notes or the other Loan Documents (hereinafter referred to as
"OTHER TAXES").
(c) The Loan Parties shall indemnify each Lender Party and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes, and
for the full amount of Taxes, Other Taxes or taxes of any kind imposed or
asserted by any jurisdiction on amounts payable under this Section 2.13, imposed
on or paid by such Lender Party or such Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or such Agent (as the case may be) makes
written demand therefor; provided, however, that such Lender Party or Agent
shall have made such demand within 180 days of any payment thereby of such
taxes.
(d) Notwithstanding the foregoing, the Loan Parties shall not be
obligated to make payment to any Lender Party pursuant to Section 2.13(c) in
respect of penalties, interest and other liabilities attributable to any Taxes
or Other Taxes, if (i) such penalties, interest and other liabilities have
accrued after the Loan Party has indemnified or paid all additional amounts due
pursuant to
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Section 2.13(c) or (ii) such penalties, interest and other liabilities are
attributable to the gross negligence or willful misconduct of the Lender Party.
(e) Within 30 days after the date of any payment of Taxes or Other
Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at
its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing such payment, to the extent such a receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent.
(f) With respect to funds borrowed by the US Borrower, each Lender
Party (including any SPC under Section 8.07(k)), that is organized under the
laws of a jurisdiction outside the United States or whose Applicable Lending
Office is located outside the United States shall, (i) on or prior to the date
of its execution and delivery of this Agreement in the case of each Initial
Lender (ii) on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and (iii) the
date it designates a new Applicable Lending Office and from time to time
thereafter as reasonably requested in writing by any Borrower (but only so long
thereafter as such Lender Party remains lawfully able to do so), provide each of
the Administrative Agent and the US Borrower with two original Internal Revenue
Service Forms W-8BEN or W-8ECI or other applicable form, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments made by the US Borrower pursuant to this
Agreement or the Notes or any other Loan Document. If the forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement or designates a new Applicable Lending Office indicate an applicable
United States withholding tax rate on interest in excess of zero, withholding
tax at such rate shall be considered excluded from Taxes unless and until such
Lender Party 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 effective date of the Assignment and Acceptance or that a Lender
Party designates a new Applicable Lending Office pursuant to which a Lender
Party becomes a party to this Agreement, the Lender Party assignor was entitled
to payments under subsection (a) of this Section 2.13 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 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 Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI or the related certificate described
above, that the applicable Lender Party reasonably considers to be confidential,
such Lender Party shall give notice thereof to the applicable Borrower and shall
not be obligated to include in such form or document such confidential
information. For purposes of this Section 2.13(e), the terms "UNITED STATES" and
"UNITED STATES PERSON" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(g) For any period with respect to which a Lender Party that is
lending to the US Borrower has failed to provide the US Borrower with the
appropriate form, certificate or other document described in subsection (f)
above, which failure shall include for this purpose any material failure, at any
time such Lender Party remains a party to this Agreement, of the form,
certificate or other document to specify the correct rate of United States
withholding tax, to the extent such specification is required by such form,
certificate or other document (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring after the date
on which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not
required under subsection (f) above), such Lender Party shall not be entitled
(during the period such failure exists) to the increase described in subsection
(a)(x) or the indemnification under subsection (c) of
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this Section 2.13 with respect to Taxes imposed by the United States by reason
of such failure; provided, however, that should a Lender Party become subject to
Taxes because of its failure to deliver a form, certificate or other document
required hereunder, the Loan Parties shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes and
such Lender Party shall be responsible for such Loan Parties' reasonable out of
pocket expenses.
(h) If a Lender Party determines, in its sole discretion, that it has
received a refund or credit (in lieu of such refund other than a foreign tax
credit) of any Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which such Borrower has paid additional amounts
pursuant to this Section 2.13, it shall pay to such Borrower an amount equal to
such refund or credit (but only to the extent of indemnity payments made, or
additional amounts paid, by such Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that such
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require the Administrative Agent or
such Lender Party to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to such Borrower or any other
Person.
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 8.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes, in respect of any Bankers'
Acceptances or BA Equivalent Advances and the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party and under any Bankers'
Acceptances and BA Equivalent Advances at such time to (ii) the aggregate amount
of the Obligations due and payable to all Lender Parties hereunder and under the
Notes, under any Bankers' Acceptances and BA Equivalent Advances and the other
Loan Documents at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder and under the Notes and under any
Bankers' Acceptances and BA Equivalent Advances at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes, under any
Bankers' Acceptances and BA Equivalent Advances and the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes, under any Bankers' Acceptances and
BA Equivalent Advances and the other Loan Documents at such time) of payments on
account of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes and under any Bankers' Acceptances and BA
Equivalent Advances at such time obtained by all of the Lender Parties at such
time, such Lender Party shall forthwith purchase from the other Lender Parties
such interests or participating interests in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender Party to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender Party shall be rescinded and such other Lender Party shall repay to
the purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's ratable share (according to the proportion of (i) the amount of such
other Lender Party's required repayment to (ii) the total amount so
63
recovered from the purchasing Lender Party) of any interest or other amount paid
or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided, further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders; provided, further, that to the extent any such excess
payment was received by such Lender Party due to an error of the Administrative
Agent, such Lender shall forward such excess payment back to the Administrative
Agent for proper disbursement. Each Borrower agrees that any Lender Party so
purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such interest or participating interest, as the case may be, as fully as if
such Lender Party were the direct creditor of such Borrower in the amount of
such interest or participating interest, as the case may be.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances, the Drawings
under the Bankers' Acceptances and issuances of Letters of Credit shall be
available (and each Borrower agrees that it shall use such proceeds and Letters
of Credit) solely to finance the consummation of the Transaction (and the
"Transaction" as defined under the Existing Credit Agreement), pay transaction
fees and expenses, provide working capital for each Borrower and its
Subsidiaries and for general corporate purposes, including funding Capital
Expenditures. The Canadian Term B Advances shall also be available for the
repatriation of cash from the Canadian Borrowers to the US Borrower.
SECTION 2.16. Defaulting Lenders. (a) In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to any Borrower and (iii) such Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then such Borrower may, so long as no
Event of Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of such Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, such Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by such Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The applicable Borrower shall notify the
Administrative Agent at any time such Borrower exercises its right of set-off
pursuant to this subsection (a) and shall set forth in such notice (A) the name
of the Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by such Borrower to or for the account of
such Defaulting Lender which is paid by such Borrower, after giving effect to
the amount set off and otherwise applied by such Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) any Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the
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Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by such Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
such Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Banks, the Swing Line Banks and the
Canadian Lenders for any Defaulted Amounts then owing to them, in their
capacities as such, ratably in accordance with such respective Defaulted
Amounts then owing to the Issuing Banks, the Swing Line Banks and the
Canadian Lenders; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) any Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then such Borrower or such Agent or such other Lender Party shall pay such
amount to the Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with a bank (the "ESCROW BANK") selected by the Administrative
Agent, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be the Escrow Bank's standard
terms applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative Agent
shall, to the fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any
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time be insufficient to make and pay all such Advances and amounts required to
be made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by such
Defaulting Lender to them hereunder, in their capacities as such, ratably
in accordance with such respective amounts then due and payable to the
Agents;
(ii) second, to the Issuing Banks, the Swing Line Banks and the
Canadian Lenders for any amounts then due and payable to them hereunder, in
their capacities as such, by such Defaulting Lender, ratably in accordance
with such respective amounts then due and payable to the Issuing Banks, the
Swing Line Banks and the Canadian Lenders;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to such Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.16 are in addition to other rights and remedies that such Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.17. Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Each
Borrower agrees that upon notice by any Lender Party to any Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, such
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a US Revolving Credit Note, a Canadian Revolving
Credit Note, a Term A Note, a Term B Note and/or a Canadian Term B Note, as
applicable, in substantially the form of Exhibits X-0, X-0, X-0 and A-4 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment, the Term A Commitment, the Term B
Commitment and/or the Canadian Term B Commitment, respectively, of such Lender
Party. All references to Notes in the Loan Documents shall mean Notes, if any,
to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the
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terms of each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become due and
payable from such Borrower to each Lender Party hereunder, and (iv) the amount
of any sum received by the Administrative Agent from such Borrower hereunder and
each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from such Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of such Borrower under this
Agreement.
SECTION 2.18. Drawings of Bankers' Acceptances and Notional Bankers'
Acceptances. (a) Request for Drawing. Each Drawing shall be made on notice,
given not later than 11:00 a.m. (New York City time) on a Canadian Business Day
at least three Canadian Business Days prior to the date of the proposed Drawing,
by any Canadian Borrower to the Administrative Agent, which shall give each
Canadian Lender prompt notice thereof by telecopier. Each notice of a Drawing (a
"NOTICE OF DRAWING") shall be in writing (including by telecopier), in
substantially the form of Exhibit B-2 hereto, specifying therein the requested
(i) date of such Drawing (which shall be a Canadian Business Day), (ii)
aggregate Face Amount of such Drawing and (iii) initial Maturity Date for each
Bankers' Acceptance and BA Equivalent Advances comprising part of such Drawing;
provided, however, that, if the Administrative Agent determines in good faith
(which determination shall be conclusive and binding upon such Canadian
Borrower) that the Drafts to be accepted and purchased as part of any Drawing
cannot, due solely to the requested aggregate Face Amount thereof, be accepted
and/or purchased ratably by the Canadian Lenders in accordance with Section
2.01(e), then the aggregate Face Amount of such Drawing (or the Face Amount of
Bankers' Acceptances and Notional Bankers' Acceptances to be created and
purchased by any Canadian Lender) shall be reduced to such lesser amount as the
Administrative Agent determines will permit such Drafts comprising part of such
Drawing to be so accepted and purchased and, unless such Canadian Borrower shall
have given written notice to the contrary to the Administrative Agent, each
Canadian Lender shall fund the difference between such Lender's ratable portion
of the original aggregate Face Amount of such Drawing and the Face Amount of the
Bankers' Acceptances to be created by such Lender after giving effect to such
reduction in the form of a Canadian Advance, which shall be deemed for all
purposes hereof to be a Canadian Advance made pursuant to Section 2.01(c). The
Administrative Agent agrees that it will, as promptly as practicable, notify
such Canadian Borrower of the unavailability of Bankers' Acceptances and, if
applicable, of the date and the amount of each Canadian Advance to be made or
actually made in accordance with the immediately preceding sentence. Each Draft
in connection with any requested Drawing (A) shall be in a minimum amount of
CN$1,000,000 or an integral multiple of CN$100,000 in excess thereof, and (B)
shall be dated the date of the proposed Drawing. Each Canadian Lender that is a
BA Lender shall, before 1:00 P.M. (Toronto time) on the date of each Drawing,
complete one or more Drafts in accordance with the related Notice of Drawing,
accept such Drafts and purchase the Bankers' Acceptances created thereby for the
Drawing Purchase Price and shall, before 1:00 P.M. (Toronto time) on such date,
make available for the account of its Applicable Lending Office to the
Administrative Agent at its appropriate Administrative Agent's Account, in same
day funds, the Drawing Purchase Price payable by such Lender for such Drawing
less the Stamping Fee payable to such Lender with respect thereto under Section
2.09(d). Each Non-BA Lender shall, in lieu of accepting its proportionate amount
of Bankers Acceptances forming part of a Drawing, make available to Borrower a
loan (a "BA EQUIVALENT ADVANCE") in Canadian Dollars in an amount equal to the
Drawing Purchase Price of the Bankers' Acceptances (which Bankers' Acceptances
are referred to herein collectively as the "NOTIONAL BANKERS' ACCEPTANCES") that
Non-BA Lender would have been required to accept if it were a
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BA Lender. Each Non-BA Lender shall, before 1:00 p.m. (Toronto time) on the date
of each Drawing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its appropriate Administrative Agent's Account,
in same day funds, the amount of the BA Equivalent Advance, less an amount equal
to the Stamping Fee that would have been applicable to the Notional Bankers'
Acceptance had it been a Bankers' Acceptance. In this Agreement, for the
purposes of calculating the outstanding amount of any BA Equivalent Advance,
such outstanding amount will be equal to the Face Amount of the Notional
Bankers' Acceptance that corresponds to such BA Equivalent Advance. Upon the
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make the funds it has received from the Canadian
Lenders available to such Canadian Borrower by crediting the Canadian Borrower's
Account.
(b) Limitations on Drawings. Anything in Section 2.18(a) to the
contrary notwithstanding, no Canadian Borrower may select a Drawing if the
obligation of the Canadian Lenders to purchase and accept Bankers' Acceptances
shall then be suspended pursuant to Section 2.18(d) or 2.11.
(c) Binding Effect of Notices of Drawing. Each Notice of Drawing shall
be irrevocable and binding on the applicable Canadian Borrower. In the case of
any proposed Drawing, the applicable Canadian Borrower shall indemnify each
Canadian Lender (absent any gross negligence or willful misconduct by the
Canadian Lender) against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in the Notice
of Drawing for such Drawing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Drawing Purchase Price (or in the case of Non-BA Lenders, the
BA Equivalent Advance) to be paid by such Lender as part of such Drawing when,
as a result of such failure, such Drawing is not made on such date (but, in any
event, excluding any loss of profit and the Stamping Fee applicable to such
Drawing or Advance).
(d) Circumstances Making Bankers' Acceptances Unavailable. (i) If,
with respect to any proposed Drawing, the Administrative Agent determines in
good faith that circumstances affecting the money markets at the time any
related Notice of Drawing is delivered or is outstanding will result in no
market for the Bankers' Acceptances to be created in connection with such
Drawing or an insufficient demand for such Bankers' Acceptances to allow the
Lenders creating such Bankers' Acceptances to sell or trade the Bankers'
Acceptances to be created and purchased or discounted by them hereunder in
connection with such Drawing, then, upon notice to the applicable Canadian
Borrower and the Canadian Lenders thereof, (A) the Notice of Drawing with
respect to such proposed Drawing shall be canceled and the Drawing requested
therein shall not be made and (B) the right of such Canadian Borrower to request
a Drawing shall be suspended until the Administrative Agent shall notify such
Borrower that the circumstances causing such suspension no longer exist. In the
case of any such cancellation of a Notice of Drawing, unless such Canadian
Borrower shall give written notice to the contrary to the Administrative Agent,
the cancellation of any such Notice of Drawing shall be deemed to be the giving
by such Canadian Borrower of a Notice of Borrowing for Canadian Borrower
Advances consisting of Canadian Advances in an aggregate principal amount equal
to the aggregate Face Amount of such proposed Drawing and the Canadian Lenders
shall, subject to the terms and conditions hereof applicable to the making of
Canadian Advances, make such Advances available to such Canadian Borrower, if
practicable, on the same Business Day as the date of the requested Drawing, and
otherwise on the next Business Day. The Administrative Agent agrees that it
will, as promptly as practicable, notify such Canadian Borrower of the
unavailability of Bankers' Acceptances and, if applicable, of the date and the
amount of each Canadian Advance to be made or actually made in accordance with
the immediately preceding sentence.
(ii) Upon the occurrence and during the continuance of any Default,
the obligation of the Canadian Lenders to create and purchase Bankers'
Acceptances shall be suspended.
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(e) Assumptions of the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Canadian Lender prior to the date of any
Drawing that such Lender will not make available to it such Lender's ratable
share of the proceeds of such Drawing, in accordance with Section 2.18(a), the
Administrative Agent may assume that such Lender has made such ratable share
available to it on the date of such Drawing in accordance with Section 2.18(a)
and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Canadian Borrower on such date a corresponding
amount. If and to the extent that any such Lender shall not have so made such
ratable share available to the Administrative Agent, such Lender and the
Canadian Borrowers severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount, together with interest thereon,
for each day from the date such amount is made available to the applicable
Canadian Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the applicable Canadian Borrower, a
rate per annum equal to the BA Rate used in calculating the Drawing Purchase
Price with respect to such Drawing, and (ii) in the case of such Lender, the
Canadian Interbank Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
ratable share of the proceeds of such Drawing for all purposes under this
Agreement.
(f) Presigned Draft Forms. To enable the Canadian Lenders which are BA
Lenders to create Bankers' Acceptances in accordance with Section 2.01(e) and
this Section 2.18, the Canadian Borrowers shall supply each BA Lender, upon the
Canadian Borrowers' execution of this Agreement and from time to time
thereafter, with such number of Drafts provided to the Canadian Borrowers by the
Administrative Agent as the Administrative Agent may from time to time
reasonably request, duly endorsed and executed on behalf of each Canadian
Borrower by any one or more of its duly authorized officers. Each BA Lender
shall exercise such care in the custody and safekeeping of any Drafts in its
possession from time to time as it would exercise in the custody and safekeeping
of similar property owned by it. The signatures of officers of the Canadian
Borrowers on Drafts may be mechanically reproduced in facsimile and Bankers'
Acceptances bearing such facsimile signatures shall be binding upon each
Canadian Borrower as if they had been manually signed by such officers.
Notwithstanding that any of the individuals whose manual or facsimile signature
appears on any Draft as one of such officers may no longer hold office at the
date of such draft or at the date of its acceptance by a Lender hereunder or at
any time thereafter, any Draft or Bankers' Acceptance so signed shall be valid
and binding upon, and enforceable against, each Canadian Borrower. Each Canadian
Borrower hereby appoints each Canadian Lender holding a Draft with respect to a
Drawing made under this Agreement, as its attorney-in-fact to, from time to
time, complete such Draft to adequately reflect such Drawing made by such
Canadian Lender.
(g) Distribution of Bankers' Acceptances. Bankers' Acceptances
purchased by a Canadian Lender in accordance with the terms of Section 2.01(e)
and this Section 2.18 may, in such Lender's sole discretion, be held by such
Lender for its own account until the applicable Maturity Date or sold,
rediscounted or otherwise disposed of by it at any time prior thereto in any
relevant market therefor.
(h) Failure to Fund in Respect of Drawings. The failure of any
Canadian Lender to fund the Drawing Purchase Price to be funded by it as part of
any Drawing or to make a BA Equivalent Advance shall not relieve any other
Canadian Lender of its obligation hereunder to fund its Drawing Purchase Price
on the date of such Drawing or to make a BA Equivalent Advance, but no Canadian
Lender shall be responsible for the failure of any other Canadian Lender to fund
the Drawing Purchase Price or make the BA Equivalent Advance to be funded or
made, as the case may be by such other Canadian Lender on the date of any
Drawing.
SECTION 2.19. Renewal and Conversion of Bankers' Acceptances. (a) Optional
Renewal. Any Canadian Borrower may on any Canadian Business Day, upon notice
given to the Administrative
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Agent not later than 11:00 a.m. (New York City time) on a Business Day at least
three Canadian Business Days prior to the date of the proposed renewal and
subject to the provisions of Section 2.11, renew all or any portion of the
Bankers' Acceptances and BA Equivalent Advances comprising part of the same
Drawing; provided, however, that:
(i) any renewal of Bankers' Acceptances or BA Equivalent Advances
shall be made only on the then existing Maturity Date for such Bankers'
Acceptances or BA Equivalent Advances;
(ii) each renewal of Bankers' Acceptances and BA Equivalent Advances
comprising part of the same Drawing shall be made ratably among the Lenders
holding such Bankers' Acceptances and having made BA Equivalent Advances in
accordance with the respective amount of such Bankers' Acceptances so held
and BA Equivalent Advances so made; and
(iii) upon the occurrence and during the continuance of any Event of
Default no renewal of any Bankers' Acceptance or BA Equivalent Advances may
be made.
Each such notice of renewal shall, within the restrictions set forth above,
specify (A) the date of such renewal (which shall be the then existing Maturity
Date of such Bankers' Acceptances and BA Equivalent Advances and shall be a
Canadian Business Day), (B) the Bankers' Acceptances to be renewed, (C) if less
than all of the Bankers' Acceptances and BA Equivalent Advances comprising part
of any Drawing are to be renewed, the aggregate Face Amount for such renewal and
(D) the term to maturity of the renewed Bankers' Acceptances and BA Equivalent
Advances (which shall comply with the definition of "Maturity Date" in Section
1.01); provided, however, that, if the Administrative Agent determines in good
faith (which determination shall be conclusive and binding upon such Canadian
Borrower) that the Bankers' Acceptances and BA Equivalent Advances cannot, due
solely to the requested aggregate Face Amount thereof, be renewed ratably by the
Canadian Lenders, the aggregate Face Amount of such renewal (or the Face Amount
of Bankers' Acceptances or Notional Bankers' Acceptances to be created by any
Canadian Lender) shall be reduced to such lesser amount as the Administrative
Agent determines in good faith will permit such renewal to be so made and each
Canadian Lender shall fund the difference between such Canadian Lender's ratable
portion of the original aggregate Face Amount of such renewal and the Face
Amount of the Bankers' Acceptances or Notional Bankers' Acceptances to be
created by such Canadian Lender after giving effect to such reduction in the
form of a Canadian Advance, which shall be deemed for all purposes hereof to be
a Canadian Advance made pursuant to Section 2.01(c). Each notice of renewal
under this Section 2.19 shall be irrevocable and binding on the applicable
Canadian Borrower. Upon any renewal of Bankers' Acceptances and BA Equivalent
Advances comprising part of any Drawing in accordance with this Section 2.19(a),
the Canadian Lenders that hold the Bankers' Acceptances and that made BA
Equivalent Advances to be renewed shall exchange such maturing Bankers'
Acceptances for new Bankers' Acceptances and shall make new BA Equivalent
Advances, containing the terms set forth in the applicable notice of renewal,
and the Drawing Purchase Price payable for each such renewed Bankers' Acceptance
and the proceeds of the new BA Equivalent Advance shall be applied, together
with other funds, if necessary, available to the applicable Canadian Borrower,
to reimburse the Bankers' Acceptances and BA Equivalent Advances otherwise
maturing on such date. Each Canadian Borrower hereby irrevocably authorizes and
directs each Canadian Lender to apply the proceeds of each renewed Bankers'
Acceptance or BA Equivalent Advance owing to it to the reimbursement, in
accordance with this Section 2.19(a), of the Bankers' Acceptances or BA
Equivalent Advances owing to such Canadian Lender and maturing on such date.
(b) Optional Conversion. Each Canadian Borrower may on any Canadian
Business Day, upon notice given to the Administrative Agent not later than 11:00
a.m. (New York City time) on a Business Day at least two Canadian Business Days
prior to the date of the proposed Conversion and
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subject to the provisions of Section 2.19, Convert all or any portion of the
Bankers' Acceptances or BA Equivalent Advances comprising part of the same
Drawing to a Canadian Revolving Credit Borrowing comprised of Canadian Advances;
provided, however, that:
(i) any Conversion of Bankers' Acceptances and BA Equivalent Advances
shall be made only on the then existing Maturity Date for such Bankers'
Acceptances and BA Equivalent Advances;
(ii) each Conversion of Bankers' Acceptances and BA Equivalent
Advances comprising part of the same Drawing shall be made ratably among
the Lenders that hold such Bankers' Acceptances and that made such BA
Equivalent Advances in accordance with the respective amounts of such
Bankers' Acceptances and BA Equivalent Advances so held and made; and
(iii) no Conversion may be made if (A) the amount of the Advance to be
made by any Canadian Lender in connection with such Conversion would exceed
such Canadian Lender's unused portion of its Canadian Revolving Credit
Commitment under the Canadian Subfacility in effect at the time of such
Conversion, or (B) after giving effect to such Conversion, the sum of, in
each case without duplication, the aggregate principal amount of
outstanding Canadian Advances plus the aggregate Face Amount of Bankers'
Acceptances and Notional Bankers' Acceptances then outstanding in respect
of outstanding BA Equivalent Advances then outstanding plus the aggregate
Available Amount of all Canadian Letters of Credit outstanding at such time
plus outstanding Canadian Letter of Credit Advances would exceed the
Canadian Subfacility.
Each such notice of Conversion shall, within the restrictions set forth above,
specify (A) the date of such Conversion (which shall be the then existing
Maturity Date of such Bankers' Acceptances and BA Equivalent Advances and shall
be a Canadian Business Day), (B) the Bankers' Acceptances and BA Equivalent
Advances to be Converted and (C) if less than all of the Bankers' Acceptances
and BA Equivalent Advances comprising part of any Drawing are to be Converted,
the aggregate Face Amount of such Conversion. Each notice of Conversion under
this Section 2.19 shall be irrevocable and binding on each Canadian Borrower.
Upon any Conversion of Bankers' Acceptances and BA Equivalent Advances
comprising part of the same Drawing in accordance with this Section 2.19(b), the
obligation of the Canadian Borrower to reimburse the Lenders under Section 2.12
in respect of the Bankers' Acceptances and BA Equivalent Advances otherwise
maturing on such date shall, to the extent of such conversion, be Converted to
an obligation to reimburse the Lenders making the Canadian Advances made in
respect of such maturing Bankers' Acceptances and BA Equivalent Advances on such
date ratably in accordance with the amount of the Advances held by such Lender
at the time of reimbursement. Each Canadian Borrower hereby irrevocably
authorizes and directs each Canadian Lender to apply the net proceeds of each
Canadian Advance made by such Lender pursuant to this Section 2.19(b) to the
reimbursement of the Bankers' Acceptances or Notional Bankers' Acceptances owing
to such Lender and maturing on such date.
(c) Mandatory Conversion. Upon the occurrence and during the
continuance of any Event of Default, or if the Canadian Borrower shall fail (i)
to deliver a properly completed notice of renewal under Section 2.19(a) or a
properly completed notice of Conversion under Section 2.19(b) indicating its
intention to renew or to Convert any maturing Bankers' Acceptances and BA
Equivalent Advances or (ii) to reimburse the Canadian Lenders for any Bankers'
Acceptances and BA Equivalent Advances comprising part of the same Drawing
pursuant to Section 2.04, the Administrative Agent will forthwith so notify the
applicable Canadian Borrower and the Canadian Lenders, whereupon each such
Bankers' Acceptance and BA Equivalent Advances will automatically, on the then
existing Maturity Date of such Bankers' Acceptance or BA Equivalent Advances,
Convert into a Canadian Advance.
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SECTION 2.20. L/C Collateral Accounts. (a) The US Borrower hereby grants to
the Administrative Agent a security interest in such US Borrower's right, title
and interest in and to the US L/C Collateral Account and all funds and financial
assets from time to time credited thereto (including, without limitation, all
Cash Equivalents), all interest, dividends, distributions, cash, instruments and
other property from time to time received or receivable in respect of or in
exchange for any or all of such funds and financial assets, and all certificates
and instruments, if any, from time to time representing or evidencing the US L/C
Collateral Account.
(b) Each of the Canadian Borrowers hereby unconditionally sells,
assigns, transfers and conveys to the Sub-Agent all of such Canadian Borrower's
right, title and interest in and to the BA Collateral Account, the BA
Collateral, the Canadian L/C Collateral Account and the Canadian L/C Collateral.
(c) If a court of competent jurisdiction determines that each Canadian
Borrower's right, title and interest in and to the BA Collateral Account, the BA
Collateral, the Canadian L/C Collateral Account and the Canadian L/C Collateral
have not been sold, assigned, transferred and conveyed by such Canadian Borrower
to the Sub-Agent pursuant to Section 2.20(b) for any reason whatsoever, then
each Canadian Borrower, as a separate and distinct obligation, hereby (i) grants
to the Sub-Agent a security interest (the "CANADIAN SECURITY INTEREST"), in such
Canadian Borrower's right, title and interest in and to the BA Collateral
Account, the BA Collateral, the Canadian L/C Collateral Account and the Canadian
L/C Collateral, and (ii) consents to the filing, prior to the Initial Extension
of Credit, of financing statements against such Canadian Borrower under the PPSA
in all jurisdictions required in order to perfect and protect the first priority
liens and security interests created by the Canadian Security Interest covering
the BA Collateral Account, the BA Collateral, the Canadian L/C Collateral
Account and the Canadian L/C Collateral.
(d) If a court of competent jurisdiction determines that (i) each
Canadian Borrower's right, title and interest in and to the BA Collateral
Account, the BA Collateral, the Canadian L/C Collateral Account and the Canadian
L/C Collateral have not been sold, assigned, transferred and conveyed by such
Canadian Borrower to the Sub-Agent pursuant to Section 2.20(b) for any reason
whatsoever and (ii) a Canadian Security Interest in the BA Collateral Account,
the BA Collateral, the Canadian L/C Collateral Account and the Canadian L/C
Collateral has not been created pursuant to Section 2.20(c) for any reason
whatsoever, each Canadian Borrower, as a distinct and separate obligation,
hereby agrees and acknowledges that the Sub-Agent has: (x) upon deposit of any
BA Collateral in the BA Collateral Account, a perfected a security interest by
possession in such BA Collateral, pursuant to the applicable PPSA and (y) upon
deposit of any Canadian L/C Collateral in the Canadian L/C Collateral Account, a
perfected a security interest by possession in such Canadian L/C Collateral,
pursuant to the applicable PPSA.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to the Amendment and Restatement of the
Existing Credit Agreement and the Initial Extension of Credit. The obligation of
each Lender under the Existing Credit Agreement to amend and restate such
agreement in accordance with the terms hereof and the applicable Lenders to make
an Advance on or after the Closing Date under the Term B Commitment or the
Canadian Term B Commitment, as applicable in accordance with the terms hereof is
subject to the reasonable satisfaction or waiver of the following conditions
precedent before or concurrently with the Initial Extension of Credit:
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(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance reasonably satisfactory to the
Lender Parties (unless otherwise specified) and (except for the Notes) in a
number of copies reasonably requested by the Administrative Agent for each
Lender Party:
(i) The Notes payable to the order of the Lenders to the extent
requested by the Lenders pursuant to the terms of Section 2.17.
(ii) A security agreement in substantially the form of Exhibit C-1
hereto (the "US SECURITY AGREEMENT"), a security agreement in substantially
the form of Exhibit C-2 hereto (the "CANADIAN SECURITY AGREEMENT"), and
deeds of hypothec and the related debentures and pledges of debentures in
substantially the form of Exhibit C-3 hereto (collectively, the
"HYPOTHEC"), if applicable, duly executed by each Loan Party, together
with:
(A) certificates representing the Initial Pledged Equity referred
to therein accompanied by undated stock powers executed in blank
and instruments evidencing the Initial Pledged Debt referred to
therein, indorsed in blank,
(B) proper financing statements or other registration
documentation in form appropriate for filing under the Uniform
Commercial Code or other applicable legislation in the
jurisdiction of organization of each applicable Loan Party or
other jurisdiction that the Administrative Agent may reasonably
deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the
Security Agreement or the Hypothec, in respect of the Collateral
described in the Security Agreement or the Hypothec,
(C) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement or the
Hypothec that the Administrative Agent may deem necessary in
order to perfect and protect the security interest created
thereunder, and
(D) evidence that all other action that the Administrative Agent
may deem necessary in order to perfect and protect the first
priority liens and security interests created under the Security
Agreement or the Hypothec has been taken (including, without
limitation, receipt of duly executed payoff letters, UCC-3
termination statements or discharge statements under other
applicable legislation).
(iii) The filing of the financing statements required pursuant to
Section 2.20(c).
(iv) Certified copies of the resolutions of the Board of Directors of
each Loan Party approving the Transaction and each Transaction Document to
which it is or is to be a party, and of all documents evidencing other
necessary corporate action and governmental and other third party approvals
and consents, if any, with respect to the Transaction and each Transaction
Document to which it is or is to be a party.
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(v) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each US Loan Party, dated reasonably near
the date of the Initial Extension of Credit, certifying (A) as to a true
and correct copy of the charter of such Loan Party and each amendment
thereto, if any, on file in such Secretary's office and (B) that (1) such
amendments, if any, are the only amendments to such Loan Party's charter on
file in such Secretary's office, (2) such Loan Party has paid all franchise
taxes to the date of such certificate and (3) such Loan Party is duly
incorporated and in good standing or presently subsisting under the laws of
the State of the jurisdiction of its incorporation.
(vi) A copy of the articles of each Canadian Loan Party incorporated
under the Canada Business Corporations Act, certified by Industry Canada
dated reasonably near the date of the Initial Extension of Credit.
(vii) A copy of the articles of each Canadian Loan Party incorporated
under a Province of Canada, duly certified by the Secretary or an Assistant
Secretary of such Loan Party to be true and correct and dated the date of
the Initial Extension of Credit.
(viii) A certificate of compliance or certificate of status, as the
case may be, in respect of each Canadian Loan Party, dated reasonably near
the date of the Initial Extension of Credit.
(ix) A certificate of each Loan Party, signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary or any authorized officer, dated the date of the
Initial Extension of Credit (the statements made in which certificate shall
be true on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the charter of such
Loan Party since the date of the Secretary of State's certificate referred
to in Section 3.01(a)(iv) or the Certificate of Industry Canada referred to
in Section 3.01(a)(v), (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions referred to in
Section 3.01(a)(iii) were adopted and on the date of the Initial Extension
of Credit, (C) the due incorporation and good standing or valid existence
of such Loan Party as a corporation organized under the laws of the
jurisdiction of its incorporation, and the absence of any proceeding for
the dissolution or liquidation of such Loan Party, (D) the truth of the
representations and warranties contained in the Loan Documents as though
made on and as of the date of the Initial Extension of Credit and (E) the
absence of any event occurring and continuing, or resulting from the
Initial Extension of Credit, that constitutes a Default.
(x) A certificate of the Secretary or an Assistant Secretary or any
authorized officer of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to sign each
Transaction Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.
(xi) Certified copies of each of the Related Documents, duly executed
by the parties thereto and in form and substance reasonably satisfactory to
the Lender Parties, together with all agreements, instruments and other
documents delivered in connection therewith as the Administrative Agent
shall reasonably request.
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(xii) The US Subsidiary Guaranty in substantially the form of Exhibit
E-1 hereto or the US Subsidiary Guaranty Reaffirmation in substantially the
form of Exhibit E-1-A, as applicable, duly executed by each US Subsidiary
Guarantor.
(xiii) The Canadian Subsidiary Guaranty in substantially the form of
Exhibit E-2 hereto or the Canadian Subsidiary Guaranty Reaffirmation in
substantially the form of Exhibit E-2-A hereto, as applicable, duly
executed by each Canadian Subsidiary Guarantor in respect of the Canadian
Subfacility and the Canadian Term B Facility.
(xiv) The Parent Guaranty Reaffirmation in substantially the form of
Exhibit E-3 hereto, duly executed by the US Borrower, as parent guarantor.
(xv) Certificates, in substantially the form of Exhibit F-1 and
Exhibit F-2 hereto, respectively, attesting to the Solvency of (A) each
Borrower and (B) the Borrowers and their Subsidiaries on a consolidated
basis, in each case, before and after giving effect to the Transaction,
from the Chief Financial Officer of the appropriate Borrower.
(xvi) Counterparts of this Agreement executed by the "Required
Lenders" under the Existing Credit Agreement.
(xvii) A favorable opinion of Xxxxxx & Xxxxxxx LLP, counsel for the
Loan Parties in form and substance reasonably satisfactory to the Lender
Parties, in substantially the form of Exhibit G-1 hereto.
(xviii) Favorable opinions of Goodmans LLP, BCF S.E.N.C.R.L./LLP and
Fraser Xxxxxx Casgrain LLP, Canadian counsel for the Loan Parties in form
and substance reasonably satisfactory to the Lender Parties, in
substantially the form of Exhibit G-2 hereto.
(xix) Favorable opinions of in-house and/or local counsel for the Loan
Parties in states and provinces in which the Loan Parties are located in
form and substance reasonably satisfactory to the Administrative Agent.
(xx) A favorable opinion of Shearman & Sterling, counsel for the Joint
Lead Arrangers, in form and substance satisfactory to the Lenders.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or, to
the knowledge of the Borrowers, threatened before any Governmental Authority
that (i) could be reasonably expected to (A) have a material adverse effect on
the business, assets, operations, properties, condition (financial or
otherwise), contingent liabilities or material agreements of the US Borrower and
its Subsidiaries, taken as a whole, (B) adversely affect the rights and remedies
of any Agent or any Lender Party under any Loan Document or (C) adversely affect
the ability of any Loan Party to perform its Obligations under any Loan Document
to which it is or is to be a party or (ii) could be reasonably likely to
adversely affect the legality, validity or enforceability of any Transaction
Document or the consummation of the Transaction.
(c) All Governmental Authorizations and third party consents and
approvals necessary in connection with the Transaction shall have been obtained
(without the imposition of any conditions that are not reasonably acceptable to
the Lender Parties) and shall remain in effect;
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all applicable waiting periods in connection with the Transaction shall have
expired without any action being taken by any competent authority; and no law or
regulation shall be applicable in the reasonable judgment of the Lender Parties,
in each case that restrains, prevents or imposes materially adverse conditions
upon the Transaction.
(d) The Lender Parties shall be reasonably satisfied with each of the
Related Documents and all other agreements, instruments and documents relating
to the Transaction and the Tender Offer shall have been (or concurrently
herewith shall be) successfully consummated.
(e) The Borrowers shall have paid all accrued fees of the Agents, the
Joint Lead Arrangers and the Lender Parties and all reasonable and invoiced
accrued expenses of the Agents and the Joint Lead Arrangers (including the
reasonable and invoiced accrued fees and expenses of counsel to the
Administrative Agent and local counsel to the Lender Parties), to the extent
required to be paid under the Loan Documents.
(f) The Lender Parties shall have received a pro forma consolidated
balance sheet of the US Borrower and its Subsidiaries as of May 31, 2006, after
giving effect to the Transactions, together with a certificate of the chief
financial officer of the US Borrower to the effect that such statements
accurately present in all material respects the pro forma financial position of
the US Borrower and its Subsidiaries in accordance with GAAP, and the Lender
Parties shall be satisfied that such balance sheet is not materially
inconsistent with the forecasts previously provided to the Lender Parties.
(g) The Administrative Agent shall have received evidence reasonably
satisfactory to it that the amount, types and terms and conditions of all
insurance maintained by the Borrowers and their Subsidiaries (including business
interruption insurance) are consistent with past practices.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a US Revolving Credit
Lender pursuant to Section 2.03(c), a Swing Line Advance made by a US Revolving
Credit Lender pursuant to Section 2.02(b) and a Canadian Advance made by a US
Revolving Credit Lender pursuant to Section 2.02(c)) on the occasion of each
Borrowing (including the initial Borrowing), and the obligation of each Issuing
Bank to issue a Letter of Credit (including the initial issuance) or renew a
Letter of Credit and the right of the Borrowers to request a Swing Line
Borrowing and the obligation of the Canadian Lenders to accept and/or purchase
Bankers' Acceptances or make BA Equivalent Advances, shall be subject to the
further conditions precedent that on the date of such Borrowing or issuance or
renewal the following statements shall be true and the Administrative Agent
shall have received for the account of such Lender or such Issuing Bank a
certificate signed by a duly authorized officer of the applicable Borrower and
the US Borrower, dated the date of such Borrowing or issuance or renewal,
stating that and the acceptance by the applicable Borrower of the proceeds of
such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by such Borrowers that
both on the date of such notice and on the date of such Borrowing or issuance or
renewal such statements are true:
(i) the representations and warranties contained in each Loan Document
are correct in all material respects on and as of such date, before and
after giving effect to such Borrowing or issuance or renewal and to the
application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing or
issuance or renewal, in which case as of such specific date; and
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(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party 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 the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if applicable, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of the Term B Borrowing
or the Canadian Term B Borrowing, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The US
Borrower represents and warrants, after giving effect to the transactions
contemplated by the Loan Documents, as though such transactions were consummated
on and as of the Effective Date, as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is an
organization duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, amalgamation or continuance, (ii)
is duly qualified and in good standing as a foreign corporation in each other
jurisdiction in which the conduct of its business requires it to so qualify or
be licensed except where the failure to so qualify or be licensed could not be
reasonably likely to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all Governmental
Authorizations) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted except where the
failure to have such power and authority could not be reasonably likely to have
a Material Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party as of the Effective Date, showing as
of the Effective Date (as to each such Subsidiary) the jurisdiction of its
incorporation and the percentage of each such class of its Equity Interests
owned (directly or indirectly) by such Loan Party. All of the outstanding Equity
Interests in each Loan Party's Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except Liens permitted under Section
5.02(a).
(c) The execution, delivery and performance by each Loan Party of each
Transaction Document to which it is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene such
Loan Party's charter or bylaws, (ii) violate any law, rule, regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan Documents, result
in or require the creation or imposition of any Lien upon or with respect to any
of the properties of any Loan Party or any of
77
its Subsidiaries, except in each case where such violation, conflict,
contravention or imposition would not result in a Material Adverse Change. No
Loan Party or any of its Subsidiaries is in violation of any such charter,
bylaw, law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation or
breach of which could be reasonably likely to have a Material Adverse Effect.
(d) Except to the extent obtained, no Governmental Authorization, and
no notice to or filing with, any Governmental Authority or any other third party
is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Transaction Document to which it is or is
to be a party, or for the consummation of the Transaction or (ii) the exercise
by any Agent or any Lender Party of its rights under the Loan Documents, except
where the failure to obtain such Governmental Authorization could not reasonably
be expected to have a Material Adverse Effect.
(e) This Agreement has been, and each other Transaction Document when
delivered hereunder will have been, duly executed and delivered by each Loan
Party party thereto. This Agreement is, and each other Transaction Document when
delivered hereunder will be, the legal, valid and binding obligation of each
Loan Party party thereto, enforceable against such Loan Party in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors generally and the effect of
general principles of equity.
(f) There is no action, suit, litigation, proceeding or official
investigation (of which any of the Loan Parties have received written notice
from the applicable authority) affecting any Loan Party or any of its
Subsidiaries, including any Environmental Action, pending or, to the actual
knowledge of any Loan Party, threatened before any Governmental Authority that
(i) could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of any Transaction
Document or the consummation of the Transaction.
(g) The Consolidated balance sheets of the US Borrower and its
Subsidiaries as at August 31, 2005, and the related Consolidated statements of
income and Consolidated statement of cash flows of the US Borrower and its
Subsidiaries for the fiscal year then ended, accompanied (in the case of such
Consolidated financial statements) by an unqualified opinion of
PricewaterhouseCoopers, independent public accountants, and the Consolidated
balance sheets of the US Borrower and its Subsidiaries as at May 31, 2006, and
the related Consolidated statements of income and Consolidated statement of cash
flows of the US Borrower and its Subsidiaries for the six months then ended,
duly certified by the Chief Financial Officer or Treasurer of the US Borrower,
copies of which have been furnished to each Lender Party, fairly present the
Consolidated financial condition of the US Borrower and its Subsidiaries as at
such dates and the Consolidated results of operations of the US Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with GAAP
applied on a consistent basis, and since August 31, 2005, there has been no
Material Adverse Change.
(h) The pro forma Consolidated balance sheet of the US Borrower and
its Subsidiaries as of May 31, 2006, certified by the chief financial officer of
the US Borrower, copies of which have been furnished to each Lender Party,
fairly present in all material respects the Consolidated pro forma financial
condition of the US Borrower and its Subsidiaries as at such date, giving effect
to the Transaction, in accordance with GAAP.
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(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any Agent or
any Lender Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading in light of the circumstances
under which such statements are made.
(j) No Borrower is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance
or drawings under any Letter of Credit 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.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(l) Upon the filing of the financing statements delivered hereunder
pursuant to Section 3.01(a)(ii) under the applicable PPSA, all filings and other
actions necessary or desirable to perfect and protect the Canadian Security
Interest in the BA Collateral Account, the BA Collateral, the Canadian L/C
Collateral Account and in the Canadian L/C Collateral have been duly made or
taken and are in full force and effect, and Section 2.20(c) of this Agreement
creates in favor of the Sub-Agent for the benefit of the Canadian Issuing Banks,
a valid and, together with such filings and other actions, perfected first
priority security interest in the BA Collateral Account, the BA Collateral, the
Canadian L/C Collateral Account and in the Canadian L/C Collateral, and all
filings and other actions necessary or desirable to perfect and protect the
Canadian Security Interest have been duly taken.
(m) Each Borrower is, individually and the Borrowers together with
their Subsidiaries are, Solvent.
(n) (i) Set forth on Schedule 4.01(n) hereto is a complete and
accurate list of all material Plans and Multiemployer Plans as of the Effective
Date.
(ii) No ERISA Event has occurred after the date hereof or is
reasonably expected to occur with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status of such Plan
as of the end of such Plan Year, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan that could reasonably be expected to have a Material Adverse Effect.
(v) Except as could not reasonably be expected to have a Material
Adverse Effect, neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been
79
terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
(vi) With respect to each scheme or arrangement mandated by a
government other than the United States (a "FOREIGN GOVERNMENT SCHEME OR
ARRANGEMENT") and with respect to each employee benefit plan maintained or
contributed to by any Loan Party or any Subsidiary of any Loan Party that
is not subject to United States law (a "FOREIGN PLAN"):
(A) Any employer and employee contributions required by law or by
the terms of any Foreign Government Scheme or Arrangement or any
Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices.
(B) The fair market value of the assets of each funded Foreign
Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign
Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date
hereof, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations
most recently used to account for such obligations in accordance with
applicable generally accepted accounting principles, except to the
extent that any such unfunded accrued benefit obligations could not
reasonably be expected to have a Material Adverse Effect.
(C) Each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
regulatory authorities, except to the extent failure to so register or
maintain the Foreign Plan in good standing could not reasonably be
expected to result in a Material Adverse Effect.
(o) Except as could not reasonably be likely individually or in the
aggregate to have a Material Adverse Effect: (i) the operations and properties
of each Loan Party and each of its Subsidiaries comply in all respects with all
applicable Environmental Laws and Environmental Permits; (ii) all past
non-compliance with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs; (iii) no circumstances exist that
could (A) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any of their properties or (B) cause any such
property to be subject to any Environmental Deed Restriction; (iv) none of the
properties currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries is listed or to the knowledge of the Loan Parties proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state, provincial
or local list; (v) there are no underground storage tanks in which Hazardous
Materials are being or have been stored in violation of applicable Environmental
Laws on any property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; (vi) there is no asbestos
or asbestos-containing material on any property currently owned or operated by
any Loan Party or any of its Subsidiaries that requires removal or encapsulation
under Environmental Law; (vii) Hazardous Materials have not been released,
discharged or disposed in violation of Environmental Law on any currently or,
during any Loan Party's or any Subsidiaries' ownership or operation thereof,
formerly owned or operated property; (viii) neither any Loan Party nor any of
its Subsidiaries has been identified as a potentially responsible party at any
third-party waste
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disposal facility; and (ix) all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any currently or, during any
Loan Party's or any Subsidiaries' ownership or operation thereof, formerly owned
or operated property, by any Loan Party or any of its Subsidiaries or to the
knowledge of any Loan Party or any of its Subsidiaries, by any other Person,
have been disposed of in a manner not reasonably expected to result in an
Environmental Action against any Loan Party or any of its Subsidiaries.
(p) (i) Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement other than the Tax Agreement.
(ii) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all income and other material
tax returns (federal, state, provincial, local, municipal and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(iii) Set forth on Schedule 4.01(p) hereto is a complete and accurate
list, as of the Effective Date, of each taxable year of each Loan Party and
each of its Subsidiaries for which federal income tax returns have been
filed and for which the expiration of the applicable statute of limitations
for assessment or collection has not occurred by reason of extension or
otherwise (an "OPEN YEAR").
(iv) The aggregate unpaid amount, as of the Effective Date, of
adjustments to the federal income tax liability of each Loan Party and each
of its Subsidiaries proposed in writing by the Internal Revenue Service or
the Canada Revenue Agency, as the case may be, with respect to Open Years
does not exceed $15,000,000. No issues have been raised by the Internal
Revenue Service or the Canada Revenue Agency, as the case may be, in
respect of Open Years that, in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(v) The aggregate unpaid amount, as of the Effective Date, of
adjustments to the state, provincial, local and foreign tax liability of
each Loan Party and its Subsidiaries proposed by all state, provincial,
local and foreign taxing authorities (other than amounts arising from
adjustments to federal income tax returns) does not exceed $3,000,000. No
issues have been raised by such taxing authorities that, in the aggregate,
could be reasonably likely to have a Material Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is a complete and accurate
list of all Surviving Debt (other than intercompany Debt among Loan Parties),
showing as of the Effective Date the obligor and the principal amount
outstanding thereunder, the maturity date thereof and the amortization schedule
therefor.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of the Effective Date the lienholder thereof and the
property or assets of such Loan Party or such Subsidiary subject thereto, and as
of the Effective Date, such Liens either (i) secure only Capital Leases,
purchase money Debt, operating leases, or Surviving Debt or (ii) are
precautionary filings under applicable law.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries on the
Effective Date, showing as of the Effective Date the amount, obligor or issuer
and maturity, if any, thereof.
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(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries, showing
as of the Effective Date the parties, subject matter and term thereof.
(u) The aggregate fair market value of the assets held by the
Immaterial Subsidiaries is not greater than $20,000,000.
(v) All filings and other actions necessary to perfect and protect the
security interest in the Collateral created under the Collateral Documents have
been duly made or taken and are in full force and effect, and the Collateral
Documents create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid and, together with such filings and other actions, perfected
first priority (subject to Permitted Liens and liens permitted under Section
5.02(a)(xiv) (other than liens arising in connection with Debt of a Canadian
Subsidiary so long as any amounts remain outstanding under the Canadian Term B
Facility) and (xv)) security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary to perfect
and protect such security interest have been duly taken. The Loan Parties are
the legal and beneficial owners of the Collateral free and clear of any Lien,
except for the liens and security interests created or permitted under the Loan
Documents (subject to Permitted Liens and liens permitted under Section
5.02(a)(xiv) (other than liens arising in connection with Debt of a Canadian
Subsidiary so long as any amounts remain outstanding under the Canadian Term B
Facility) and (xv)).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, except
contingent indemnification obligations, a claim for which has not been asserted,
any Letter of Credit or any Bankers' Acceptance or BA Equivalent Advance shall
be outstanding or any Lender Party shall have any Commitment hereunder, the US
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970, except where failure to do so could not be reasonably
likely to result in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful material claims that, if unpaid,
might by law become a Lien upon its property, including, without limitation, any
Foreign Plan obligation; provided, however, that neither the US Borrower nor any
of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained in
accordance with GAAP, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and require each of
its Subsidiaries and use commercially reasonable efforts to cause all lessees
and other Persons operating or occupying its properties to comply, in all
material respects, with all applicable
82
Environmental Laws and material Environmental Permits; obtain and renew, and
cause each of its Subsidiaries to obtain and renew, all material Environmental
Permits necessary for its operations and properties; and conduct, and cause each
of its Subsidiaries to conduct, any investigation, study, sampling and testing,
and undertake any cleanup, removal, remedial or other action necessary to remove
and clean up all Hazardous Materials from any of its properties, to the extent
required by Environmental Laws in accordance with any Governmental Authority;
provided, however, that neither the US Borrower nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in good
faith and by proper proceedings, appropriate reserves are being maintained with
respect to such circumstances and any such Hazardous Materials do not and could
not reasonably be expected to pose an imminent and substantial endangerment to
human health or the environment.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance, including, without limitation, business
interruption insurance with responsible and reputable insurance companies or
associations (or through self-insurance in a manner consistent with commercially
reasonable practices) in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the US Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence
(except as permitted under Section 5.02(d)), legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals and franchises; provided,
however, that neither the US Borrower nor any of its Subsidiaries shall be
required to preserve its legal structure, preserve its legal name, or preserve
any right, permit, license, approval or franchise if the management of the US
Borrower or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the US Borrower or such
Subsidiary, as the case may be, and that the loss thereof could not be
reasonably likely, either individually or together with all other similar
losses, to have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time during normal business
hours and from time to time, permit any of the Agents or, if accompanied by an
Agent, any of the Lender Parties or any agents or representatives thereof, to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the US Borrower and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of the US Borrower and any of
its Subsidiaries with any of their officers or directors and with their
independent certified public accountants (provided a representative of the US
Borrower shall have an opportunity to be present); provided that so long as no
Event of Default shall have occurred and be continuing, only one such visit of
each Agent and Lender Party per Fiscal Year shall be at the expense of the US
Borrower.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which entries (which shall be full
and correct in all material respects) shall be made of all financial
transactions and the assets and business of the US Borrower and each such
Subsidiary in accordance with United States generally accepted accounting
principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties that
are used or useful in the conduct of its business in normal working order and
condition, ordinary wear and tear excepted and will
83
from time to time make or cause to be made all appropriate repairs, renewals and
replacements thereof except, in each case, where failure to do so could not be
reasonably likely to result in a Material Adverse Effect.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the US Borrower or such Subsidiary than it would obtain in
a comparable arm's-length transaction with a Person not an Affiliate, other than
transactions among Loan Parties, except that the following shall be permitted:
(i) dividend payments permitted under Section 5.02(f); (ii) Investments
permitted under Section 5.02(e), including, without limitation, Debt permitted
under Section 5.02(b); (iii) reasonable and customary director, officer and
employee compensation (including bonuses) and other benefits (including
retirement, health, stock option and other benefit plans) and indemnification
arrangements, in each case approved by the Board of Directors of the applicable
Person; (iv) transactions with customers, clients, suppliers, joint venture
partners or purchasers or sellers of goods and services, in each case in the
ordinary course of business and otherwise not prohibited by the Loan Documents;
(v) sales of capital stock of the US Borrower to Affiliates of the US Borrower
not otherwise prohibited by the Loan Documents and the granting of registration
and other customary rights in connection therewith; (vi) any transactions with
an Affiliate where the only consideration paid by any Loan Party is capital
stock; (vii) any tax sharing payments required under the Tax Agreement; (viii)
loans to employees, directors and officers in the ordinary course of business
and otherwise permitted under Section 5.02(e)(iii); and (ix) any allocations or
charges of insurance premiums on a reasonable basis and in the ordinary course
of business.
(j) Covenant to Guarantee Obligations and Give Security. (i) Upon the
formation or acquisition of any new direct or indirect Subsidiaries that are not
Immaterial Subsidiaries by any Loan Party, then at the US Borrower's expense:
(A) in connection with the formation or acquisition of a
wholly-owned Subsidiary that is not an insurance company, within 30
days after such formation or acquisition, cause each such Subsidiary,
and cause each direct and indirect parent of such Subsidiary (if it
has not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and
substance satisfactory to the Administrative Agent, guaranteeing the
other Loan Parties' obligations under the Loan Documents or, if a
Canadian Subsidiary, guaranteeing the Obligations of the Canadian Loan
Parties under the Loan Documents, provided, however, that solely with
respect to a guaranty or guaranty supplement to secure the Obligations
of the U.S. Loan Parties under the Loan Documents, this clause (i)
will not apply to any Subsidiary that is (A) a CFC or (B) a Subsidiary
that is held directly or indirectly by a CFC;
(B) so long as the (x) Term B Advances or the Canadian Term B
Advances are outstanding or (y) the Revolving Credit Facility and the
Term Loan A Facility do not have a Target Rating (to the extent that
any Obligations under the Revolving Credit Agreement or the Term Loan
A Facility or any Term A Commitments or Revolving Credit Commitments
remain outstanding), within 30 days (or such longer period as agreed
by the Administrative Agent) after (A) such formation or acquisition
of a wholly-owned Subsidiary that is not an insurance company by any
Loan Party, duly execute and deliver, and cause each Loan Party to
duly execute and deliver, to the Collateral Agent such additional
pledges, assignments, security agreement supplements, and other
security agreements as specified by, and in form and substance
satisfactory to the Collateral
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Agent, securing payment of all the Obligations of such Loan Party
under the Loan Documents and constituting Liens on all intercompany
Debt of such Subsidiary and (B) such formation or acquisition of any
new wholly owned Subsidiary, duly execute and deliver and cause such
Subsidiary and each Loan Party acquiring Equity Interests in such
Subsidiary to duly execute and deliver to the Collateral Agent
pledges, assignments, security agreement supplements and other
security agreements as specified by, and in form and substance
satisfactory to, the Collateral Agent, securing payment of all of the
Obligations of such Subsidiary or Loan Party and constituting Liens on
the Equity Interests in such new Subsidiary, respectively, under the
Loan Documents; provided that (x) the Equity Interests and
intercompany Debt of any Subsidiary held by a CFC shall not be
required to be pledged to secure Obligations of a US Loan Party, (y)
if such new property is Equity Interests in a CFC, no more than 66% of
the Equity Interests in such CFC shall be pledged in favor of the
Secured Parties and (z) no CFC or Foreign Disregarded Entity shall be
required to make any pledge, assignment, or enter into any security
agreement to secure the Obligations of any U.S. Loan Party.
(C) so long as the (x) Term B Advances or the Canadian Term B
Advances are outstanding or (y) the Revolving Credit Facility and the
Term Loan A Facility do not have a Target Rating (to the extent that
any Obligations under the Revolving Credit Agreement or the Term Loan
A Facility or any Term A Commitments or Revolving Credit Commitments
remain outstanding), within 30 days (or such longer period as agreed
by the Administrative Agent) after such formation or acquisition,
take, and cause each Loan Party and each newly acquired or newly
formed wholly owned Subsidiary (other than any Subsidiary that is a
CFC or a Foreign Disregarded Entity) to take, whatever action
(including, without limitation, the filing of Uniform Commercial Code
financing statements) may be necessary in the good faith opinion of
the Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid and
subsisting Liens on the Equity Interests and intercompany Debt
purported to be subject to the pledges, assignments, security
agreement supplements and security agreements delivered pursuant to
this Section 5.01(j), enforceable against all third parties in
accordance with their terms;
(D) within 60 days after such formation or acquisition, deliver
to the Administrative Agent, but only upon the reasonable request of
the Administrative Agent, a signed copy of a favorable opinion,
addressed to the Administrative Agent, of counsel for the Loan Parties
acceptable to the Administrative Agent as to (1) the matters contained
in clause (i) above, (2) such guaranties and guaranty supplements
being legal, valid and binding obligations of each Loan Party party
thereto enforceable in accordance with their terms, and (3) such other
matters as the Administrative Agent may reasonably request; and
(E) so long as the (x) Term B Advances or the Canadian Term B
Advances are outstanding or (y) the Revolving Credit Facility and the
Term Loan A Facility do not have a Target Rating (to the extent that
any Obligations under the Revolving Credit Agreement or the Term Loan
A Facility or any Term A Commitments or Revolving Credit Commitments
remain outstanding), at any time and from time to time, promptly
execute and deliver, and cause each Loan Party and each newly acquired
or newly formed wholly owned Subsidiary (other than any Subsidiary
that is a CFC or a Foreign Disregarded Entity) to execute and deliver,
any and all further instruments and documents and take, and cause each
Loan Party and each newly acquired or newly formed wholly owned
Subsidiary (other than any Subsidiary that is a CFC or a Foreign
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Disregarded Entity) to take, all such other action as the Collateral
Agent may deem necessary in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, pledges,
assignments, security agreement supplements and security agreements.
(ii) In the event that 2026992 Ontario Ltd. has not been amalgamated
with Xxxxxxx Transit to form the amalgamated entity Xxxxxxx Transit Ltd.
within 45 days following the Effective Date (or such later date as agreed
by the Collateral Agent in its sole discretion), (A) the US Borrower or
Xxxxxxx Transit, as applicable, shall on such date (1) execute and deliver
to the Collateral Agent pledges, assignments, security agreement
supplements and other security agreements as specified by, and in form and
substance satisfactory to, the Collateral Agent constituting Liens on no
more than 66% of the Equity Interests in 2026992 Ontario Ltd. under the
Loan Documents and (2) take whatever action (including, without limitation,
the filing of Uniform Commercial Code or other applicable financing
statements) that may be reasonably necessary in the good faith opinion of
the Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid and
subsisting Liens on such Equity Interests, enforceable against all third
parties in accordance with their terms and (B) 2026992 Ontario Ltd. shall,
on such date, execute and deliver the Amended and Restated Canadian
Subsidiary Guaranty and the Canadian Security Agreement, or supplements for
each, as applicable.
(iii) Within 30 days following the Effective Date (or such later date
as agreed by the Collateral Agent in its sole discretion), the Borrowers
shall obtain estoppels in form and substance reasonably acceptable to the
Collateral Agent or make such other arrangements as may be acceptable to
the Collateral Agent with respect to the registrations set forth on
Schedule 5.01(j) hereto.
(k) Further Assurances. (i) Promptly upon the reasonable request by
any Agent, or any Lender Party through the Administrative Agent, correct, and
cause each of its Subsidiaries promptly to correct, any material defect or error
that may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon the reasonable request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such
further acts, pledge agreements, financing statements, termination
statements, certificates, assurances and other instruments as any Agent, or
any Lender Party through the Administrative Agent, may reasonably require
from time to time in order to (A) carry out more effectively the purposes
of the Loan Documents and (B) to the fullest extent permitted by applicable
law, subject any Loan Party's or any of its wholly owned Subsidiaries'
properties, assets, rights or interests to the Liens now or hereafter
intended to be covered by any of the Collateral Documents, (C) perfect and
maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created thereunder and (D)
assure, convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Lender Parties the rights granted or now or hereafter
intended to be granted to the Lender Parties under any Loan Document or
under any other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a party, and
cause each of its applicable Subsidiaries to do so.
(l) Performance of Related Documents. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and provisions
of each Related Document to be performed or observed by it, maintain each such
Related Document in full force and effect,
86
and enforce such Related Document in accordance with its terms, except in each
case for any action or inaction that could not reasonably be likely to have a
Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, except
contingent indemnification obligations, the claim for which has not been
asserted, any Letter of Credit or any Bankers' Acceptance or any BA Equivalent
Advance shall be outstanding or any Lender Party shall have any Commitment
hereunder, the US Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on
or with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file
or suffer to exist, or permit any of its Subsidiaries to sign or file or suffer
to exist, under the Uniform Commercial Code of any jurisdiction, or the
applicable PPSA, a financing statement that names the US Borrower or any of its
Subsidiaries as debtor, or sign or suffer to exist, or permit any of its
Subsidiaries to sign or suffer to exist, any security agreement authorizing any
secured party thereunder to file such financing statement, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
4.01(r) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the US Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such property
or equipment or to secure Debt incurred solely for the purpose of financing
the acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do not secure the
purchase price), or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided, however, that no such
foregoing Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced; and
provided further that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iv) shall not exceed at any time
outstanding (together with Liens incurred pursuant to Section 5.02(a)(v))
an aggregate amount equal to 7.5% of Consolidated Tangible Assets at such
time;
(v) Liens arising in connection with Capitalized Leases permitted
under Section 5.02(b)(ii)(B); provided, that no such Lien shall extend to
or cover any assets other than the assets subject to such Capitalized
Leases;
(vi) Liens on property of a Person existing at the time (A) such
Person is merged into or amalgamated or consolidated with a Borrower or any
Subsidiary of a Borrower, (B) becomes a Subsidiary of a Borrower or (C)
such property is acquired and, in the case of clauses (A) and (B), which
Liens secure Debt permitted by Section 5.02(b)(ii)(E), and in the case of
clause (C), which Liens secure Debt permitted by
87
Section 5.02(b); provided, in each case, that (x) such merger or
amalgamation or consolidation is otherwise permitted under the Loan
Documents, (y) such Liens were not created in contemplation of such merger,
amalgamation, consolidation or investment and do not extend to any assets
other than those of the Person merged into or consolidated with such
Borrower or such Subsidiary or acquired by such Borrower or such Subsidiary
and improvements on such assets and (z) such Liens are no more favorable to
the lienholders than the terms or conditions of such liens immediately
prior to such merger, amalgamation, consolidation or investment;
(vii) other Liens securing Debt outstanding in an aggregate principal
amount not to exceed $100,000,000;
(viii) the replacement, extension or renewal of any Lien permitted by
clauses (iii) through (vii) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without increase
in the amount or change in any direct or contingent obligor) of the Debt
secured thereby;
(ix) Operating Leases or subleases of the properties of the US
Borrower or such Subsidiary, in each case entered into in the ordinary
course of business so long as such Leases or subleases do not, individually
or in the aggregate, interfere in any material respect with the ordinary
conduct of the business of the US Borrower or such Subsidiary;
(x) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the US Borrower or such Subsidiary in the ordinary course of business in
accordance with its past practices;
(xi) bankers' Liens, rights of setoff and other similar Liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more
accounts maintained by the US Borrower or such Subsidiary (including any
restriction on the use of such cash and Cash Equivalents), in each case
granted in the ordinary course of business in favor of the bank or banks
with which such accounts are maintained, securing amounts owing to such
bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements;
(xii) licenses of intellectual property granted by the US Borrower or
such Subsidiary in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of the US
Borrower or such Subsidiary;
(xiii) interests of lessors in leased property, including the filing
of UCC financing statements solely as a precautionary measure in connection
with operating leases or consignment of goods;
(xiv) Liens arising in connection with Debt of a non-U.S. Subsidiary
permitted under Section 5.02(b)(i)(B); provided that such Liens extend only
to the property (or Equity Interests) of the non-U.S. Subsidiary incurring
such Debt;
(xv) Liens granted by Greyhound Lines, Inc. and their respective
Subsidiaries in favor of the US Borrower in respect of Debt permitted under
Section 5.02(b)(i)(A) in connection with the Greyhound Xxxxxxx Facility;
88
(xvi) Liens arising in connection with Hedge Agreements permitted
under Section 5.02(b)(ii)(J) (other than fuel related Hedge Agreements);
and
(xvii) Liens arising in connection with fuel related Hedge Agreements
permitted under Section 5.02(b)(ii)(J); provided that such Liens (A) are
incurred in the ordinary course of business and consistent with prudent
business practice and (B) do not secure obligations in excess of
$35,000,000 in the aggregate at any time outstanding.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the US Borrower and any Subsidiary of the US
Borrower,
(A) Debt owed to the US Borrower or to a wholly owned Subsidiary
of the US Borrower, provided that, in each case, such Debt (x) shall,
in the case of Debt owed to an Immaterial Subsidiary or a Subsidiary
that is not a Loan Party or is in respect of the Greyhound Xxxxxxx
Facility, be subordinated to the Obligations of the US Borrower or
such Subsidiary under the Loan Documents on terms acceptable to the
Administrative Agent and (y) shall be permitted by Section
5.02(e)(ii); and
(B) Debt of non-U.S. Subsidiaries incurred in the ordinary course
of business in an aggregate amount not to exceed $50,000,000 at any
time outstanding; and
(ii) in the case of the Borrowers and their Subsidiaries,
(A) Debt under the Loan Documents;
(B) at any time outstanding (1) Debt secured by Liens permitted
by Section 5.02(a)(iv) and (2) Capitalized Leases (including the
aggregate amount of Capitalized Leases assumed in connection with any
acquisition permitted under Section 5.02(e)(xii)) not to exceed an
aggregate amount equal to 7.5% of Consolidated Tangible Assets at such
time, and (3) in the case of Capitalized Leases to which any
Subsidiary of the US Borrower is a party, Debt of the US Borrower of
the type described in clause (i) of the definition of "DEBT"
guaranteeing the Obligations of such Subsidiary under such Capitalized
Leases subject to the limitations set forth in Section 5.02(e)(ii);
(C) So long as the US Borrower is in pro forma compliance with
all of the covenants set forth in Section 5.04, Debt of any Loan
Party; provided that any such Debt shall be on market terms and shall
not mature prior to the Termination Date;
(D) Surviving Debt, and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any Surviving Debt;
provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are
89
otherwise not prohibited by the Loan Documents; provided further that
the principal amount of such Surviving Debt shall not be increased
above the principal amount thereof outstanding immediately prior to
such extension, refunding or refinancing, plus the amount of any
premiums required to be paid thereon and reasonable fees and expenses
associated therewith, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing; and provided further that (1)
such extending, refunding or refinancing Debt shall have (x) a final
maturity no earlier than the final maturity of Debt being extended,
refunded or refinanced and (y) a weighted average life at least as
long as the Debt being extended, refunded or refinanced and (2) the
terms relating to maturity and subordination (if any) of any such
extending, refunding or refinancing Debt, and of any agreement entered
into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or the Lender
Parties than the terms of any agreement or instrument governing the
Surviving Debt being extended, refunded or refinanced;
(E) Debt of any Person that becomes a Subsidiary of a Borrower
after the date hereof in accordance with the terms of Section
5.02(e)(xii) or (xiii) and extensions, renewals or replacements of
such Debt that do not increase the principal amount thereof, which
Debt is existing at the time such Person becomes a Subsidiary of such
Borrower (other than Debt incurred solely in contemplation of such
Person becoming a Subsidiary of such Borrower); provided that there is
no change in the direct or indirect obligors in respect of such Debt;
(F) Debt consisting of customary purchase price adjustments,
earn-outs, indemnification obligations and similar items of the Loan
Parties in connection with any sale or other disposition of assets or
any acquisition permitted under Section 5.02(e);
(G) Debt, not to exceed $150,000,000 at any time outstanding,
incurred in connection with the sale of accounts receivable;
(H) Debt incurred in the ordinary course of business in respect
of netting services and overdraft protections in connection with
deposit accounts;
(I) Debt in respect of bid, performance and surety bonds and
appeal bonds issued for the account of the US Borrower or any of its
Subsidiaries in the ordinary course of business, including guarantees
and obligations of the US Borrower or any of its Subsidiaries with
respect to such bids and bonds and letters of credit supporting such
bids;
(J) Debt in respect of Hedge Agreements designed to hedge against
fluctuations in interest rates or foreign exchange rates or fuel
hedging contracts incurred in the ordinary course of business and
consistent with prudent business practice;
(K) guarantees by the US Borrower or any Subsidiary of Debt that
is otherwise permitted hereunder; and
(L) guarantees by the US Borrower of Greyhound Lines, Inc.'s
self-insurance liabilities.
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(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of the business of the
US Borrower and its Subsidiaries, taken as a whole, as carried on at the date
hereof and any business ancillary or incidental thereto or any reasonable
expansion thereof.
(d) Mergers, Etc. 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 the assets (whether now
owned or hereafter acquired), except that:
(i) any Subsidiary of the US Borrower may merge into, amalgamate, or
consolidate with any other Subsidiary of the US Borrower; provided, that,
in the case of any such merger, amalgamation or consolidation, the Person
formed by such merger, amalgamation or consolidation shall be a Subsidiary
of the US Borrower; provided, further, that, in the case of any such
merger, amalgamation or consolidation to which a US Subsidiary Guarantor or
a Canadian Subsidiary Guarantor is a party, the Person formed by such
merger, amalgamation or consolidation shall be a US Subsidiary Guarantor or
Canadian Subsidiary Guarantor, respectively; provided further that in the
case of a merger, amalgamation or consolidation to which both a US
Subsidiary Guarantor and a Canadian Subsidiary Guarantor are parties, the
person formed by such merger, amalgamation or consolidation shall be a US
Subsidiary Guarantor;
(ii) as part of any acquisition permitted under Section 5.02(e), any
Subsidiary of the US Borrower may merge into, amalgamate or consolidate
with any other Person or permit any other Person to merge into, amalgamate
or consolidate with it; provided, that (i) the Person surviving such merger
or amalgamation shall be a Subsidiary of the US Borrower and (ii) in the
case of any such merger, amalgamation or consolidation to which a US
Subsidiary Guarantor or a Canadian Subsidiary Guarantor is a party, the
Person formed by such merger, amalgamation or consolidation shall be a US
Subsidiary Guarantor or a Canadian Subsidiary Guarantor, respectively;
(iii) as part of any sale or other disposition, any Subsidiary of the
US Borrower may merge into, amalgamate or consolidate with any other Person
or permit any other Person to merge into, amalgamate or consolidate with
it;
(iv) any of the US Borrower's Subsidiaries may merge into the US
Borrower (with the US Borrower being the surviving entity);
(v) any Subsidiary that is not a Loan Party may merge into, amalgamate
or consolidate with any other Subsidiary that is not a Loan Party;
(vi) any Subsidiary that is not a Loan Party may dissolve, liquidate
or wind up its affairs at any time if the US Borrower determines in good
faith that such dissolution, liquidation or winding up, as applicable,
could not reasonably be expected to have a Material Adverse Effect; and
(vii) any Immaterial Subsidiary or Subsidiary that is no longer useful
in the business of the Borrowers (as determined by US Borrower in its
reasonable discretion) may dissolve, liquidate or wind up its affairs at
any time so long as the assets are transferred to another Loan Party;
91
provided, however, that in each case, immediately before and after giving effect
thereto, no Event of Default shall have occurred and be continuing.
(e) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries (other than any insurance company Subsidiaries) to make or hold,
any Investment in any Person, except:
(i) Investments existing on the date hereof and described on Schedule
4.01(s) hereto;
(ii) (A) Investments by the US Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof, (B) additional Investments by
the US Borrower and its Subsidiaries in Loan Parties; provided that the
aggregate amount invested in non-U.S. Loan Parties from the date hereof
shall not exceed an amount, when added to all other amounts invested
pursuant to this clause, equal to 8.50% of Consolidated Tangible Assets at
such time, (C) additional Investments by Subsidiaries of the US Borrower
that are not Loan Parties in other Subsidiaries that are not Loan Parties,
(D) additional Investments by the Loan Parties in Subsidiaries that (1) are
Immaterial Subsidiaries or (2) are not Loan Parties in an aggregate amount
invested not to exceed $50,000,000 and (E) additional Investments in
Subsidiaries in order to effectuate payments required under the Tax
Agreement;
(iii) loans and advances to directors, employees and officers of the
US Borrower and its Subsidiaries in the ordinary course of the business of
the US Borrower and its Subsidiaries as presently conducted for bona fide
business purposes and, so long as no Default shall have occurred and be
continuing, to purchase Equity Interests of the US Borrower in an aggregate
principal amount not to exceed $10,000,000 at any time outstanding;
provided that no loans in violation of Section 402 of the Xxxxxxxx-Xxxxx
Act shall be permitted hereunder;
(iv) Investments by the US Borrower and its Subsidiaries in (A) cash
and Cash Equivalents, (B) accounts receivables owing to any of them if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary terms, (C) negotiable
instruments held for collection in the ordinary course of business and (D)
lease, utility and other deposits in the ordinary course of business;
(v) Investments by the US Borrower in Hedge Agreements permitted under
Section 5.02(b)(ii)(J);
(vi) Investments by the US Borrower in its insurance company
Subsidiaries to the extent necessary for such Subsidiaries to pay any
required insurance premiums and contributions of capital of such
Subsidiaries in order to collateralize potential losses in accordance with
prudent business practices;
(vii) Investments by the US Borrower and its Subsidiaries in
securities of trade creditors or customers in the ordinary course of
business and consistent with such US Borrower's and its Subsidiaries' past
practices that are received in settlement of bona fide disputes or pursuant
to any plan of reorganization or liquidation or similar arrangement upon
the bankruptcy or insolvency of such trade creditors or customers;
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(viii) Investments consisting of the non-cash consideration for any
disposition of assets;
(ix) Investments consisting of deposits of cash in favor of banks or
other depository institutions, solely to the extent incurred in connection
with the maintenance of such deposit accounts in the ordinary course of
business;
(x) Investments by the US Borrower and its Subsidiaries in an
aggregate amount not to exceed $10,000,000 consisting of preferred shares
in a certain performance bonding company for the purpose of procuring
performance bonds;
(xi) Investments consisting of intercompany Debt permitted under
Section 5.02(b);
(xii) the purchase or other acquisition of all of the Equity Interests
in any Person that, upon the consummation thereof, will be wholly owned
directly by the US Borrower or one or more of its wholly owned Subsidiaries
(including, without limitation, as a result of a merger, amalgamation or
consolidation) and the purchase or other acquisition by the US Borrower or
one or more of its wholly-owned Subsidiaries of all or substantially all of
the property and assets (or a business or division) of any Person; provided
that, with respect to each purchase or other acquisition made pursuant to
this clause (xii):
(A) the Loan Parties and any such newly created or acquired
Subsidiary shall comply with the requirements of Section 5.01(j);
(B) any such newly created or acquired Subsidiary shall be
domiciled in the United States or Canada, except such Subsidiaries for
which the purchase prices do not exceed $50,000,000 in the aggregate;
(C) (1) immediately before and immediately after giving effect to
any such purchase or other acquisition, no Event of Default shall have
occurred and be continuing and (2) immediately after giving effect to
such purchase or other acquisition, the US Borrower and its
Subsidiaries shall be in pro forma compliance with all of the
covenants set forth in Section 5.04, such compliance to be determined
on the basis of the Required Financial Information most recently
delivered to the Administrative Agent and the Lender Parties as though
such purchase or other acquisition had been consummated as of the
first day of the fiscal period covered thereby; and
(D) for acquisitions in excess of $5,000,000, the Borrowers shall
have delivered to the Administrative Agent, on behalf of the Lender
Parties, at least five Business Days 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 Administrative Agent, certifying that all of the
requirements set forth in this clause (xii) have been satisfied or
will be satisfied on or prior to the consummation of such purchase or
other acquisition;
(xiii) Investments by the US Borrower and its Subsidiaries (including
Investments in joint ventures) not otherwise permitted under this Section
5.02(e) in an
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aggregate amount not to exceed U.S. $225,000,000; provided that with
respect to each Investment made pursuant to this clause (xiii):
(A) any determination of the amount of such Investment shall
include all cash and non-cash consideration (including, without
limitation, the fair market value of all Equity Interests issued or
transferred to the sellers of such Investment, all indemnities,
earnouts and other contingent payment obligations to, and the
aggregate amounts paid or to be paid under noncompete, consulting and
other affiliated agreements with, the sellers of such Investment, all
write-downs of property and assets and reserves for liabilities with
respect thereto and all assumptions of debt, liabilities and other
obligations in connection therewith) paid by or on behalf of the US
Borrower and its Subsidiaries in connection with such Investment; and
(B) immediately before and immediately after giving pro forma
effect to any such purchase or other acquisition, no Event of Default
shall have occurred and be continuing.
(xiv) Investments consisting of Capital Expenditures; provided, that,
with respect to each such Investment (A) immediately before and immediately
after giving pro forma effect to any such purchase or other acquisition, no
Event of Default shall have occurred and be continuing and (B) immediately
after giving effect to such purchase or other acquisition, the US Borrower
and its Subsidiaries shall be in pro forma compliance with all of the
covenants set forth in Section 5.04, such compliance to be determined on
the basis of the Required Financial Information most recently delivered to
the Administrative Agent and the Lender Parties as though such Investment
had been consummated as of the first day of the fiscal period covered
thereby;
(xv) Investments consisting of purchases and other acquisitions
(including licenses) of accounts receivable, inventory, materials,
equipment and related intangible property in the ordinary course of
business;
(xvi) Investments consisting of leases or subleases of real or
personal property in the ordinary course of business and not otherwise
prohibited under the Loan Documents; and
(xvii) Investments consisting of guarantees of bonding facilities in
the ordinary course of business and not otherwise prohibited under the Loan
Documents.
(f) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as such or
issue or sell any Equity Interests (other than in the case of the US Borrower,
Equity Interests consisting of common stock) or accept any capital
contributions, or permit any of its Subsidiaries to do any of the foregoing, or
permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in the US Borrower or to issue or sell
any Equity Interests therein, except that:
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(i) any Subsidiary of the US Borrower may (A) declare and pay cash or
non-cash dividends or returns of capital to any US Borrower or any
Subsidiary of US Borrower (other than an Immaterial Subsidiary except for
dividends paid in order to effectuate payments required under the Tax
Agreement) of which it is a Subsidiary and (B) accept capital contributions
from its parent to the extent permitted under Section 5.02(e)(ii), (vi) and
(xi),
(ii) any Subsidiary of the US Borrower that is not a Loan Party may
declare and pay cash or non-cash dividends or returns of capital to any
other Subsidiary of the US Borrower that is not a Loan Party,
(iii) any Subsidiary of the US Borrower may declare and pay cash or
non-cash dividends or returns of capital to the US Borrower or any other
Guarantor that is a wholly-owned Subsidiary of the US Borrower (or, if such
Guarantor is not a wholly-owned Subsidiary of the US Borrower, to such
Subsidiary and to the other equity holders of such Subsidiary on a pro rata
basis),
(iv) the Canadian Borrowers may make cash distributions to the US
Borrower;
(v) the US Borrower may consummate the Stock Repurchase in an
aggregate amount not to exceed $500,000,000, and
(vi) so long as no Event of Default shall have occurred and be
continuing or would exist after giving effect thereto, the US Borrower may
(A) declare and pay cash or non-cash dividends or returns of capital and
(B) repurchase for fair market value its Equity Interests; provided that
immediately after giving effect to such dividend or repurchase, the US
Borrower and its Subsidiaries shall be in pro forma compliance with all of
the covenants set forth in Section 5.04, such compliance to be determined
on the basis of the Required Financial Information most recently delivered
to the Administrative Agent and the Lender Parties as though such dividend
or repurchase had been consummated as of the first day of the fiscal period
covered thereby.
(g) Amendments of Constitutive Documents. Amend, or permit any of its
Subsidiaries to amend, (i) its certificate of incorporation or bylaws or other
constitutive documents other than amendments that are not adverse in any
material respect to the interests of the Lender Parties or (ii) any agreement to
which it is a party with respect to its Equity Interests (including any
stockholders' agreement), or enter into any new agreement with respect to its
Equity Interests, other than any such amendments, modifications or changes or
such new agreements that are not adverse in any material respect to the
interests of the Lenders; provided that the US Borrower may issue such Equity
Interests, so long as such issuance is not prohibited by any provision of the
Loan Documents, and may amend its organizational documents to authorize any such
Equity Interests and provided further that the terms of any such Equity
Interests are satisfactory to the Required Lenders.
(h) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles, or (ii) Fiscal Year, except Greyhound Lines, Inc. and its
Subsidiaries may change their Fiscal Year to conform to the Fiscal Year of the
US Borrower.
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(i) Amendment, Etc., of Related Documents. (i) Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, (ii) amend, modify or change in any manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder, (iii) waive
any event of default under or any breach of any term or condition of any Related
Document, (iv) agree in any manner to any other amendment, modification or
change of any term or condition of any Related Document or (v) take any other
action in connection with any Related Document that, in the case of clauses (i)
through (v), could be reasonably likely to have a Material Adverse Effect, or
permit any of its Subsidiaries to do any of the foregoing.
(j) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its property or
assets in favor of the Agents or the Lender Parties except (i) restrictions
contained in any agreements in effect on the Effective Date, (ii) in favor of
the Agents or the Lender Parties or (iii) in connection with (A) any Surviving
Debt, (B) any purchase money Debt permitted by Section 5.02(b)(ii)(B) solely to
the extent that the agreement or instrument governing such Debt prohibits a Lien
on the property acquired with the proceeds of such Debt, (C) any Capitalized
Lease permitted by Section 5.02(b)(ii)(B) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto, (D) any
operating leases or subleases permitted by Section 5.02(a)(ix) solely to the
extent the agreement governing such operating leases or subleases, as the case
may be, prohibits a Lien on the property that is being leased or subleased, (E)
any Debt permitted by Section 5.02(b)(ii)(G) solely to the extent the agreement
governing such Debt prohibits a Lien on the account receivables acquired with
the proceeds of such Debt, (F) any Debt permitted by Section 5.02(b)(ii)(J)
solely to the extent the agreement governing such Debt prohibits a Lien on cash
deposits required to secure such Debt, (G) any Liens permitted by Sections
5.02(a)(vii) and (xiv) or (H) any Debt permitted by Section 5.02(b)(ii)(I)
solely to the extent the agreement governing such Debt prohibits a Lien on cash
deposits required to secure such Debt.
(k) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to do
so, other than any Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.
(l) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions other than bona fide
nonspeculative hedging transactions entered into in the ordinary course of
business.
(m) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its Subsidiaries to
enter into or suffer to exist, any agreement or arrangement limiting the ability
of any Loan Party to (i) declare or pay dividends or other distributions in
respect of its Equity Interests or (ii) repay or prepay any Debt owed to, make
loans or advances to, or otherwise transfer assets to or invest in, the US
Borrower or any Subsidiary of the US Borrower (whether through a covenant
restricting dividends, loans, asset transfers or investments, a financial
covenant or otherwise), except (x) as required from time to time under the
existing Federal Insurance Bonding Facility and the Loan Documents and (y) as
required in any agreement evidencing operated leases or subleases permitted by
Section 5.02(a)(ix), Debt secured by Liens permitted under Section 5.02(a)(vii)
and (xiv) or Debt permitted by Section 5.02(b)(ii)(G), Section 5.02(b)(ii)(I) or
Section 5.02(b)(ii)(J).
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SECTION 5.03. Reporting Requirements. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid (except
contingent indemnification obligations a claim for which has not been asserted),
any Letter of Credit or any Bankers' Acceptance or any BA Equivalent Advance
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the US Borrower, or the applicable Borrower, as the case may be, will furnish to
the Agents:
(a) Default Notice. As soon as possible and in any event within five
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing on the
date of such statement, a statement of a Responsible Officer of the applicable
Borrower setting forth details of such Default or event and the action that such
Borrower has taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of the annual audit report for
such year for the US Borrower and its Subsidiaries, including therein
Consolidated balance sheets and related Consolidated statements of operations,
shareholders' equity and cash flows, in each case accompanied by an opinion
(which 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) of
PricewaterhouseCoopers or other independent public accountants of recognized
standing acceptable to the Required Lenders (it being understood and agreed that
Ernst & Young LLP, KPMG and Deloitte are acceptable to the Required Lenders),
together with (i) a report of such accounting firm certifying to the Lender
Parties that in the course of the regular audit of the business of the US
Borrower and its Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred (in so far as such default
relates to accounting matters) and is continuing, or if, in the opinion of such
accounting firm, a Default (related to accounting matters) has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance with
the covenants contained in Section 5.04; provided, that in the event of any
change in generally accepted accounting principles used in the preparation of
such financial statements, the US Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of reconciliation
conforming such financial statements to GAAP and (iii) a certificate of the
Chief Financial Officer or Treasurer of the US Borrower stating that no Default
has occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the US Borrower has
taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal Year,
Consolidated balance sheets of the US Borrower and its Subsidiaries and related
Consolidated statements of operation and cash flows for the period commencing at
the end of the previous fiscal quarter and ending with the end of such fiscal
quarter and Consolidated statements of operation and cash flows for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding Fiscal Year, all
in reasonable detail and duly certified (subject to normal year-end audit
adjustments) by the Chief Financial Officer or Treasurer of the US Borrower as
having been prepared in accordance with GAAP, together with (i) a certificate of
said officer stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and
the action that the US Borrower has taken and proposes to take with respect
thereto and (ii) a schedule in form reasonably satisfactory to the
Administrative Agent of the computations used by the US Borrower in determining
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compliance with the covenants contained in Section 5.04; provided, that in the
event of any change in generally accepted accounting principles used in the
preparation of such financial statements, the US Borrower shall also provide, if
necessary for the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any
Governmental Authority affecting any Loan Party or any of its Subsidiaries of
the type described in Section 4.01(f).
(e) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that the US
Borrower sends to its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, that any Loan Party or any of
its Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any national
securities exchange.
(f) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the Chief
Financial Officer or Treasurer of the US Borrower describing such ERISA Event
and the action, if any, that such Loan Party or such ERISA Affiliate has taken
and proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and
information.
(ii) Plan Terminations. Promptly and in any event within three
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Actuarial Valuation Reports. Promptly and in any event within 30
days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each annual valuation report prepared with respect to any Plan.
(v) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause (A)
or (B).
(g) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect.
(h) Insurance. As soon as available and in any event within sixty (60)
days after the end of each Fiscal Year upon written request by Administrative
Agent, a report summarizing the
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insurance coverage (specifying type, amount and carrier) in effect for the US
Borrower and its Subsidiaries and containing such additional information as any
Agent, or any Lender Party through the Administrative Agent, may reasonably
specify.
(i) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance or properties
(excluding forecasts) of any Loan Party or any of its Subsidiaries as any Agent,
or any Lender Party through the Administrative Agent, may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid (except
contingent indemnification obligations a claim for which has not been asserted),
any Letter of Credit or any Bankers' Acceptance or any BA Equivalent Advance
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the US Borrower will:
(a) Leverage Ratio. Maintain at all times, commencing with the last
day of the fiscal quarter ended August 31, 2006, a Leverage Ratio of not more
than 3.00:1.00.
(b) Interest Coverage Ratio. Maintain at all times until the Term A
Advances and US Revolving Credit Advances have been repaid in full and the
Revolving Credit Commitments have been terminated or unless otherwise set forth
in an amendment or modification executed by the Required Term A/Revolving Credit
Lenders (or waived by the Required Term A/Revolving Credit Lenders), commencing
with the last day of the fiscal quarter ended August 31, 2006, an Interest
Coverage Ratio of not less than 3.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("EVENTS OF
DEFAULT") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance or
any portion of any Bankers' Acceptance or any BA Equivalent Advance when the
same shall become due and payable or (ii) any Borrower shall fail to pay any
interest on any Advance, or any Loan Party shall fail to make any other payment
under any Loan Document, in each case under this clause (ii) within three (3)
Business Days after the same shall become due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made or confirmed; or
(c) any Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 2.15, 5.01(e)(only with respect to the
existence of the Borrowers), (f), (i) or (j), 5.02, 5.03(a), (b) or (c) or 5.04;
or
(d) any Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.03 (other than Section 5.03(a), (b) or (c))
if such failure shall remain unremedied for 10 days after the earlier of the
date on which (i) a Responsible Officer becomes
99
aware of such failure or (ii) written notice thereof shall have been given to
the US Borrower by any Agent or any Lender Party; or
(e) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be performed
or observed if such failure shall remain unremedied for 30 days after the
earlier of the date on which (i) a Responsible Officer becomes aware of such
failure or (ii) written notice thereof shall have been given to the US Borrower
by any Agent or any Lender Party; or
(f) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect of
any Debt of such Loan Party or such Subsidiary (as the case may be) that is
outstanding in a principal amount (or, in the case of any Hedge Agreement, an
Agreement Value) of at least $35,000,000 either individually or in the aggregate
for all such Loan Parties and Subsidiaries (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt or otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(g) any Loan Party or any of its Subsidiaries (other than Immaterial
Subsidiaries) shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted or any step taken by or against any Loan Party or any of its
Subsidiaries (other than Immaterial Subsidiaries) (i) seeking to adjudicate it
bankrupt or insolvent, (ii) seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, (iii) seeking the entry of an order for relief against it or any
substantial part of its property, (iv) for the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its
property or (v) seeking the seizure of or control over any substantial part of
its property and, in the case of any such proceeding instituted against it (but
not instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period of
sixty (60) days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (g); or
(h) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of $35,000,000 shall be rendered against any
Loan Party or any of its Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of thirty (30) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such judgment or
order shall not give rise to an Event of Default under this Section 6.01(h) if
and for so long as (A) the amount of
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such judgment or order is covered by (1) a valid and binding policy of insurance
between the defendant and the insurer, which shall be rated at least "A" by A.M.
Best Company, covering full payment thereof or (2) a cash reserve established
therefor and (B) such insurer has been notified, and has not disputed the claim
made for payment, of the amount of such judgment or order; or
(i) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could have a Material Adverse Effect,
and there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(j) any Loan Document or any material provision thereof after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(k) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected first
priority (subject to Permitted Liens and the Liens permitted under Section
5.02(a)(xiv) (other than liens arising in connection with Debt of a Canadian
Subsidiary so long as any amounts remain outstanding under the Canadian Term B
Facility) and (xv)) lien on and security interest in any material amount of the
Collateral purported to be covered thereby; or
(l) a Change of Control shall occur; or
(m) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Event) in an amount that could reasonably be expected to have a Material Adverse
Effect; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $35,000,000 or requires payments exceeding $8,000,000 per
annum; or
(o) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $8,000,000; or
(p) a Triggering Event shall occur under surety bonds in an aggregate
penal amount of $35,000,000 or more.
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then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the US Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a US Revolving Credit Lender pursuant to Section 2.03(c) and Canadian
Revolving Credit Advances by a US Revolving Credit Lender pursuant to Section
2.02(c)) of each Canadian Lender to create and/or purchase Bankers' Acceptances
and/or make BA Equivalent Advances and of each Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the US Borrower, declare the Advances, all interest thereon and all
other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the US Borrower, (B) by notice to each party required under the terms
of any agreement in support of which a Standby Letter of Credit is issued,
request that all Obligations under such agreement be declared to be due and
payable; provided, however, that upon the occurrence of an Event of Default
pursuant to Section 6.01(g), (x) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by an Issuing Bank or a US Revolving Credit Lender pursuant to Section
2.03(c) and Canadian Revolving Credit Advances by a US Revolving Credit Lender
pursuant to Section 2.02(c)) and of each Canadian Lender to accept and/or
purchase Bankers' Acceptances and/or Notional Bankers' Acceptances and of each
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(y) the Advances, all such interest and all such other amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit, Bankers'
Acceptances BA Equivalent Advances upon Default. If any Event of Default shall
have occurred and be continuing, the Administrative Agent may, or shall at the
request of the Required Lenders, irrespective of whether it is taking any of the
actions described in Section 6.01 or otherwise, (a) make demand upon any
Borrower to, and forthwith upon such demand such Borrower will, pay to the
Administrative Agent on behalf of the Lender Parties in same day funds at the
Administrative Agent's office designated in such demand, for deposit in the L/C
Collateral Accounts, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding and (b) make demand upon any Canadian
Borrower to, and forthwith upon such demand, such Canadian Borrower will, pay to
the Administrative Agent on behalf of the Canadian Lenders in same day funds at
the Administrative Agent's office designated in such demand, for deposit in the
BA Collateral Account, an amount equal to the aggregate Face Amount of all
Bankers' Acceptances and Notional Bankers' Acceptances then outstanding. If at
any time the Administrative Agent reasonably determines that any funds held in
the L/C Collateral Account are subject to any right or claim of any Person other
than the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, such Borrower
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Collateral Account that the Administrative Agent, reasonably determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit in the L/C Collateral Account, such funds
shall be applied to reimburse the relevant Issuing Bank or US Revolving Credit
Lenders, as applicable, to the extent permitted by applicable law. If at any
time the Administrative Agent determines that any funds held in the BA
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Canadian Lenders or that the total amount of
such funds is less than the aggregate Face Amount of all Bankers' Acceptances
and Notional Bankers' Acceptances, any Canadian Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the BA Collateral Account, an
amount equal to the excess of (a) such
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aggregate Face Amount over (b) the total amount of funds, if any, then held in
the BA Collateral Account that the Administrative Agent reasonably determines to
be free and clear of any such right and claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable), a Swing Line Bank (if
applicable), a Canadian Lender (if applicable) and on behalf of itself and its
Affiliates as potential Hedge Banks) hereby appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Obligations of the Loan Parties), no Agent shall be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrowers pursuant to the terms
of this Agreement.
(b) In furtherance of the foregoing, each Lender Party (in its
capacities as a Lender and on behalf of itself and its Affiliates as potential
Hedge Banks) hereby appoints and authorizes the Collateral Agent to act as the
agent of such Lender Party 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 Obligations, together with such powers and discretion as are reasonably
incidental thereto. In this connection, the Collateral Agent (and any
Supplemental Collateral Agents appointed by the Collateral Agent pursuant to
Section 7.01(c) 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 or remedies thereunder at the direction of the Collateral
Agent) shall be entitled to the benefits of this Article VII (including, without
limitation, Section 7.05).
(c) Any 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 at the direction
of the Collateral Agent) by or through agents, 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. The Collateral Agent may also
from time to time, when the Collateral Agent deems it to be necessary or
desirable, appoint one or more trustees, co-trustees, collateral co-agents,
collateral subagents or attorneys-in-fact (each, a "SUPPLEMENTAL COLLATERAL
AGENT") with respect to all or any part of the Collateral; provided, however,
that no such Supplemental Collateral Agent shall be authorized to take any
action with respect to any Collateral unless and except to the extent expressly
authorized in writing by the Collateral Agent. Should any instrument in writing
from a Borrower or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by the Collateral Agent to more fully or certainly
vest in and confirm to such Supplemental Collateral Agent such rights, powers,
privileges and duties, such Borrower shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by the Collateral Agent. If any Supplemental Collateral Agent, or
successor thereto, shall become incapable of acting, resign or be removed, all
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall automatically vest in and be exercised by the
Collateral Agent until the appointment of a new Supplemental Collateral
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Agent. No Agent shall be responsible for the negligence or misconduct of any
agent, attorney-in-fact or Supplemental Collateral Agent that it selects in
accordance with the foregoing provisions of this Section 7.01(c) in the absence
of such Agent's gross negligence or willful misconduct.
(d) Each Lender Party (in its capacities as a Lender, an Issuing Bank
(if applicable), a Swing Line Bank (if applicable) and a Canadian Lender (if
applicable)) hereby authorizes the Administrative Agent to enter into, from time
to time, on behalf of itself and the Lender Parties equipment utilization
agreements with one or more providers of performance and surety bonds in order
to assure the relevant provider that the Lender Parties shall not interfere with
(i) such provider's rights to perform under the relevant bonded contract or (ii)
such provider's rights of equitable subrogation in the receivables generated
under the relevant bonded contract.
(e) Without prejudice to the foregoing, each Secured Party hereby
irrevocably appoints and authorizes CNAI (and any successor acting as Agent) and
the Sub-Agent to act as the persons holding the power of attorney (fonde de
pouvoir) (in such capacity, collectively, the "ATTORNEY") of the Secured Parties
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, any hypothec,
including without limitation, the Hypothec, and to exercise such powers and
duties which are conferred upon the Attorney under any hypothec, including
without limitation, the Hypothec. Moreover, without prejudice to such
appointment and authorization to act as the person holding the power of attorney
as aforesaid, each Secured Party hereby irrevocably appoints and authorizes CNAI
(and any successor acting as Agent) and Sub-Agent (in such capacity,
collectively, the "CUSTODIAN") to act as agent and custodian for and on behalf
of the Secured Parties to hold and to be the sole registered holder of any bond
which may be issued under any hypothec, the whole notwithstanding Section 32 of
the Act respecting the special powers of legal persons (Quebec) or any other
applicable law.
(f) Each of the Attorney and the Custodian shall: (i) have the sole
and exclusive right and authority to exercise, except as may be otherwise
specifically restricted by the terms hereof, all rights and remedies given to
the Attorney and the Custodian (as applicable) pursuant to any hypothec, bond,
pledge, applicable laws or otherwise, including, without limitation, the
Hypothec, (ii) benefit from and be subject to all provisions hereof with respect
to the Agent mutatis mutandis, including, without limitation, all such
provisions with respect to the liability or responsibility to and
indemnification by the Secured Parties, and (iii) be entitled to delegate from
time to time any of its powers or duties under any hypothec, bond, or pledge,
including, without limitation, the Hypothec, on such terms and conditions as it
may determine from time to time. Any person who becomes a Secured Party shall be
deemed to have consented to and confirmed: (A) the Attorney as the person
holding the power of attorney as aforesaid and to have ratified, as of the date
it becomes a Secured Party, all actions taken by the Attorney in such capacity,
and (B) the Custodian as the agent and custodian as aforesaid and to have
ratified, as of the date it becomes a Secured Party, all actions taken by the
Custodian in such capacity.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of
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such counsel, accountants or experts; (c) makes no warranty or representation to
any Lender Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or oral) made in or
in connection with the Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance, observance or satisfaction of any of the
terms, covenants or conditions of any Loan Document on the part of any Loan
Party or the existence at any time of any Default under the Loan Documents or to
inspect the property (including the books and records) of any Loan Party; (e)
shall not be responsible to any Lender Party for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or electronic communication) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. CNAI, UBSS, Xxxxxx Xxxxxxx and Affiliates. With respect to
its Commitments, the Advances made by it and the Notes issued to it, each of
CNAI, UBSS and Xxxxxx Xxxxxxx shall have the same rights and powers under the
Loan Documents as any other Lender Party and may exercise the same as though it
were not an Agent; and the term "Lender Party" or "Lender Parties" shall, unless
otherwise expressly indicated, include CNAI, UBSS and Xxxxxx Xxxxxxx in their
respective individual capacities. CNAI, UBSS and Xxxxxx Xxxxxxx and their
respective affiliates may accept deposits from, lend money to, act as trustee
under indentures of, accept investment banking engagements from and generally
engage in any kind of business with, any Loan Party, any of its Subsidiaries and
any Person that may do business with or own securities of any Loan Party or any
such Subsidiary, all as if CNAI, UBSS and Xxxxxx Xxxxxxx were not Agents and
without any duty to account therefor to the Lender Parties. No Agent shall have
any duty to disclose any information obtained or received by it or any of its
Affiliates relating to any Loan Party or any of its Subsidiaries to the extent
such information was obtained or received in any capacity other than as such
Agent.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender Party and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender Party
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender Party and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the applicable
Borrowers) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents
(collectively, the "INDEMNIFIED COSTS"); provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse each Agent
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) payable by the
Borrowers under Section 8.04, to the extent that such Agent is not promptly
reimbursed for such costs and expenses by the applicable Borrowers. In the case
of any investigation, litigation or
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proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each Issuing Bank
(to the extent not promptly reimbursed by the applicable Borrowers) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the applicable Borrowers under Section 8.04, to
the extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrowers.
(c) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time, (iii) the aggregate unused portions of their respective Term A
Commitments, Term B Commitments and Canadian Term B Commitments at such time,
(iv) their respective pro rata shares of the aggregate Face Amount of all
Bankers' Acceptances or Notional Bankers' Acceptances outstanding at such time
and (v) their respective Unused Revolving Credit Commitments at such time;
provided, that the aggregate principal amount of Canadian Advances owing to any
Canadian Lender, the Face Amount of Bankers' Acceptances or Notional Bankers'
Acceptances outstanding at such time and of Letter of Credit Advances owing to
any Issuing Bank shall be considered to be owed to the US Revolving Credit
Lenders ratably in accordance with their respective US Revolving Credit
Commitments. The failure of any Lender Party to reimburse any Agent or any
Issuing Bank, as the case may be, promptly upon demand for its ratable share of
any amount required to be paid by the Lender Parties to such Agent or such
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent or such Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent or such Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to any or all of
the Facilities at any time by giving written notice thereof to the Lender
Parties and the US Borrower and may be removed as to all of the Facilities at
any time with or without cause by the Required Lenders; provided, however, that
any removal of the Administrative Agent will not be effective until it has also
been replaced as Collateral Agent and released from all of its obligations in
respect thereof, and until the replacement of any Affiliate of the
Administrative Agent as Canadian Lender or Canadian Issuing Bank, as applicable,
by a Schedule I Lender, a Schedule II Lender or a Schedule III Lender, and the
release of such Affiliate of the Administrative Agent from all of its
obligations as Canadian Lender or Canadian Issuing Bank, as applicable, under
the Credit Agreement. Upon any such resignation or removal, the Required
Lenders, and so long as no Event of Default has occurred and is continuing,
after consultation with the US Borrower shall have the right to appoint a
successor Agent as to such of the Facilities as to which such
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Agent has resigned or been removed. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lender Parties, appoint a successor Agent, and so long as no Event
of Default has occurred and is continuing, after consultation with the US
Borrower, which shall be a commercial bank organized under the laws of the
United States or of any State thereof and having a combined capital and surplus
of at least $250,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent as to all of the Facilities and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under the Loan Documents. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent as to less than all of the
Facilities and, in the case of a successor Collateral Agent, upon the execution
and filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent as to such Facilities,
other than with respect to funds transfers and other similar aspects of the
administration of Borrowings under such Facilities, issuances of Letters of
Credit (notwithstanding any resignation as Agent with respect to the Letter of
Credit Facility) and payments by the Borrowers in respect of such Facilities,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
If within 45 days after written notice is given of the retiring Agent's
resignation or removal under this Section 7.06 no successor Agent shall have
been appointed and shall have accepted such appointment, then on such 45th day
(a) the retiring Agent's resignation or removal shall become effective, (b) the
retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (c) the Required Lenders shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent as to any of the
Facilities shall have become effective, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent as to such Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lender
Parties (other than any Lender Party that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) waive any of the conditions
specified in Section 3.01 or Section 3.02 or, in the case of the Initial
Extension of Credit, Section 3.03, (ii) change the number of Lenders or the
definition of Required Lenders or the percentage of (w) the Commitments, (x) the
aggregate unpaid principal amount of the Advances, (y) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder or (z) the aggregate
Face Amount of outstanding Bankers' Acceptances or Notional Bankers' Acceptances
that, in each case, shall be required for the Lenders or any of them to take any
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action hereunder, (iii) unless in connection with a disposition of such
Guarantor as permitted under the Credit Agreement, release one or more
Guarantors (or otherwise limit such Guarantors' liability with respect to the
Obligations owing to the Agents and the Lender Parties under the US Subsidiary
Guaranty or the Canadian Subsidiary Guaranty, as applicable) if such release or
limitation is in respect of all or substantially all of the value to the Lender
Parties of the US Subsidiary Guaranty and the Canadian Subsidiary Guaranty, or
(iv) amend Section 2.14 or this Section 8.01, (b) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender (other than any Lender that is, at such time, a Defaulting Lender) that
has a Commitment under, or is owed any amounts under or in respect of, the Term
A Facility or the Revolving Credit Facility if such Lender is directly and
adversely affected by such amendment, waiver or consent: (i) increase the
Commitments of such Lender; (ii) reduce the principal of, or stated rate of
interest on, the Notes held by such Lender or the Advances or any fees or other
amounts stated to be payable hereunder to such Lender; or (iii) postpone or
forgive any date scheduled for any payment of principal of, or interest on, the
Advances pursuant to Section 2.04 or 2.08 or any date fixed for any payment of
fees hereunder or any Guaranteed Obligations payable under the US Subsidiary
Guaranty, the Canadian Subsidiary Guaranty or the Parent Guaranty and (c) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Revolving Credit Lender (other than any Lender that is, at such
time, a Defaulting Lender) release the Parent Guarantor (or otherwise limit the
Parent Guarantor's liability with respect to the Obligations owing to the Agents
and the Lender Parties under the Parent Guaranty) from its Obligations owing to
the Agents and the Lender Parties under the Parent Guaranty; provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by each
Canadian Lender or each Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Canadian Lenders or of the Issuing Banks, as the case may be, under this
Agreement; provided, further, that no amendment, waiver or consent shall, unless
in writing and signed by an Agent in addition to the Lenders required above to
take such action, affect the rights or duties of such Agent under this Agreement
or the other Loan Documents; provided, further, that, except as expressly
provided in clauses (b)(i), (ii) and (iii) above, no amendment, waiver or
consent shall, unless in writing and signed by the Required Revolving Credit
Lenders, adversely affect the rights of the US Revolving Credit Lenders and
there shall be no amendment to the definition of Required Revolving Credit
Lenders without the consent of all of the US Revolving Credit Lenders; and
provided further that except as expressly provided in clauses (b)(i), (ii) and
(iii) above, no amendment, waiver or consent shall, unless in writing and signed
by the Required Term A Lenders, adversely affect the rights of the Term A
Lenders and there shall be no amendment to the definition of "Required Term A
Lender" without the consent of all of the Term A Lenders.
SECTION 8.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), in an electronic medium and delivered as set forth in Section
8.02(b), if to the US Borrower, at its address at 00 Xxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, XX 00000, Attention: Vice President and Treasurer (Fax: (630)
000-0000; E-mail: xxxxxxxxx@xxxxxxx.xxx); if to Xxxxxxx Transit, at its address
at 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, Attention: Chief
Financial Officer (Fax: (000) 000-0000; E-mail: xxxx_xxxxxx@xxxx.xxx); if to
Greyhound Canada, at its address at 000 Xxxxxxxxx Xxx XX, Xxxxxxx, XX X0X 0X0,
Attention: Vice-President, Finance (Fax: (000) 000-0000; E-mail:
xxxxx.xxxxxx@xxxxxxxxx.xx); if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; if to the Administrative Agent, at its
address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan
Syndications Department (Fax: (000) 000-0000); if to the Collateral Agent, at
its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan
Syndications Department (Fax: (000) 000-0000); and, if to the Sub-Agent, at its
address at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, Attention:
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Xxx Xxxxx (Fax: (000) 000-0000); or, as to the Borrowers or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the US Borrower and
the Administrative Agent; provided that materials required to be delivered
pursuant to Section 5.03(a), (b), (c) and (e) shall be delivered to the
Administrative Agent as specified in Section 8.02(b) or as otherwise specified
to the US Borrower by the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) So long as CNAI is the Administrative Agent, materials required to
be delivered pursuant to Section 5.03(a), (b), (c) and (e) shall be delivered to
the Administrative Agent in an electronic medium in a format reasonably
acceptable to the Administrative Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrowers agree that the Administrative Agent
may make such materials, as well as any other written information, documents,
instruments and other material relating to any Borrower, any of its Subsidiaries
or any other materials or matters relating to this Agreement, the Notes or any
of the transactions contemplated hereby (collectively, the "COMMUNICATIONS")
available to the Lenders by posting such notices on Intralinks, "e-Disclosure",
the Administrative Agent's internet delivery system that is part of Fixed Income
Direct, Global Fixed Income's primary web portal or a substantially similar
electronic system (the "PLATFORM"). Each Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Administrative Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform; provided that no Borrower shall be
in breach of any obligation hereunder as a result of errors or omissions caused
by the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "NOTICE") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that,
if requested by any Lender, the Administrative Agent shall deliver a copy of the
Communications to such Lender by e-mail or telecopier. Each Lender agrees (i) to
notify the Administrative Agent in writing of such Lender's e-mail address to
which a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Administrative
Agent has on record an effective e-mail address for such Lender) and (ii) that
any Notice may be sent to such e-mail address.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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SECTION 8.04. Costs and Expenses. (a) Each Borrower agrees to pay on demand
following presentation of a statement of account (i) all reasonable
out-of-pocket costs and expenses of each Agent and the Joint Lead Arrangers in
connection with the preparation, execution, delivery, administration,
modification and amendment of, or any consent or waiver under, the Loan
Documents (including, without limitation, (A) all due diligence, collateral
review, syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses and (B)
the reasonable out-of-pocket fees and expenses of a single outside counsel and
other local counsel for the Administrative Agent with respect thereto, with
respect to advising the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
reasonable out-of-pocket costs and expenses of each Agent and each Lender Party
in connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender Party with respect thereto).
(b) Each Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Joint Lead Arranger, each Lender Party and each of
their Affiliates and their respective officers, directors, employees, agents,
advisors, trustees and representatives (each, an "INDEMNIFIED PARTY") from and
against, and shall pay on demand, any and all actual claims, damages, losses,
liabilities and reasonable expenses (including, without limitation, reasonable
fees and disbursements of counsel, but excluding, for purposes of this Section
8.04, losses or expenses related to Taxes or Other Taxes which are addressed in
Section 2.13), joint or several, that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Facilities, the actual or proposed use of the
proceeds of the Advances, the Bankers' Acceptances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) 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 Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction is consummated. In connection with the foregoing
indemnity obligations, each Indemnified Party appoints the Administrative Agent
as its trustee and the Administrative Agent accepts such appointment. Each
Borrower also agrees not to assert any claim against any Agent, any Lender Party
or any of their Affiliates, or any of their respective officers, directors,
employees, agents, advisors, trustees and representatives, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances, the Bankers' Acceptances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents. Likewise, the Borrowers shall not be liable to any Lender Party on
any theory of liability for any special, indirect, consequential or punitive
damages (including, without limitation, any loss of profits, business or
anticipated savings).
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(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by any Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.07, 2.10(b)(i) or 2.11(d), in
connection with the primary syndication hereunder, acceleration of the maturity
of the Advances pursuant to Section 6.01 or for any other reason or if any
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.04, 2.07, 6.01, 8.13 or otherwise, such Borrower
shall, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional actual losses, out-of-pocket costs or expenses that it may reasonably
incur as a result of such payment or Conversion or such failure to pay or
prepay, as the case may be, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrowers contained in Sections 2.11 and 2.13 and this
Section 8.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final, but
excluding payroll or trust accounts that are set up and funded in the ordinary
course of business) at any time held and other indebtedness at any time owing by
such Agent, such Lender Party or such Affiliate to or for the credit or the
account of any Borrower against any and all of the Obligations of any Borrower
now or hereafter existing under the Loan Documents, irrespective of whether such
Agent or such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such Obligations may be unmatured; provided,
however, that no deposit or other indebtedness owed to any Canadian Borrower may
be set off or applied against any Obligation of any U.S. Loan Party. Each Agent
and each Lender Party agrees promptly to notify such Borrower after any such
set-off and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Agent and each Lender Party and their respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Agent, such Lender Party and
their respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by each Borrower and each Agent and the Administrative
Agent shall have been notified by the "Required Lenders" under the Existing
Credit Agreement and such Lenders have executed it and each Initial Lender Party
that such Initial Lender Party has executed it and thereafter shall be binding
upon and inure to the benefit of each Borrower, each Agent and each Lender Party
and their respective successors and assigns, except that the Borrowers shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
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SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all rights and obligations under and in respect
of any or all Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the aggregate amount of the
Commitments being assigned to such Eligible Assignee pursuant to such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 and shall be an integral
multiple of $250,000 in excess thereof (or, in each case, such lesser amount as
shall be approved by the Administrative Agent and, so long as no Event of
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the US Borrower) under each Facility for which a Commitment is
being assigned, (iii) each such assignment shall be to an Eligible Assignee,
(iv) no such assignments shall be permitted without the consent of the
Administrative Agent until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed,
(v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500, and (vi) each such
Eligible Assignee shall comply with the requirements of Section 2.13(e), if
applicable. For greater certainty, an assignment of a Commitment, Advance and/or
a Note will not constitute a repayment, discharge, rescission, extinguishment or
novation of that Commitment, Advance or Note and the Obligation so assigned
shall continue to be the same Obligation and not a new Obligation.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.11, 2.13 and 8.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
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Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrowers, shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit D
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the US
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the applicable Borrower, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes, if any, (which shall be marked
"Cancelled") an amended and restated Note to the order of such Eligible
Assignee, if requested by such Eligible Assignee, in an amount equal to the
Commitment assumed by it under each Facility pursuant to such Assignment and
Acceptance and, if any assigning Lender has retained a Commitment hereunder
under such Facility, an amended and restated Note to the order of such assigning
Lender, if requested by such assigning Lender, in an amount equal to the
Commitment retained by it hereunder. Such amended and restated Note or Notes, if
any, shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, if any, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit X-0, X-0, X-0 or A-4 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that (i) except in
the case of an assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the amount of the Letter of Credit Commitment
of the assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $1,000,000 and shall be in an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
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(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates or any other Person who is
or whose Affiliates are primarily engaged in the transportation industry and is
a direct competitor of any Loan Party) in or to all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitments, the Advances owing to it and the Note or Notes (if
any) held by it); provided, however, that (i) such Lender Party's obligations
under this Agreement (including, without limitation, its Commitments) shall
remain unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
Party shall remain the holder of any such Note for all purposes of this
Agreement, (iv) the Borrowers, the Agents and the other Lender Parties shall
continue to deal solely and directly with such Lender Party in connection with
such Lender Party's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
Party by or on behalf of any Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein, any
Lender that is a fund that invests in bank loans may, without the consent of the
Borrowers or the Administrative Agent, create a security interest in all or any
portion of the Advances owing to it and the Note or Notes 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 8.07, (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.
(k) Notwithstanding anything to the contrary contained herein, any
Lender Party (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 Administrative Agent and the US Borrower (an "SPC") the option to provide
all or any part of any Advance 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 Advance, and (ii) if an SPC
elects not to exercise such option or otherwise fails to make all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Advance were made by such Granting Lender. Each party hereto hereby agrees
that (i) no SPC shall be liable for any indemnity or
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similar payment obligation under this Agreement for which a Lender Party would
be liable provided such Granting Lender remains liable, (ii) no SPC shall be
entitled to the benefits of Sections 2.11 and 2.13 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document, remain the Lender Party of record hereunder. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior Debt of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. Notwithstanding anything to the
contrary contained in this Agreement, any SPC may (i) with notice to, but
without prior consent of, the Borrowers and the Administrative Agent and with
the payment of a processing fee of $500 to the Administrative Agent, assign all
or any portion of its interest in any Advance to the Granting Lender and (ii)
disclose on a confidential basis any non-public information relating to its
funding of Advances to any rating agency, commercial paper dealer or provider of
any surety or guarantee or credit or liquidity enhancement to such SPC. This
subsection (k) may not be amended without the prior written consent of each
Granting Lender, all or any part of whose Advances are being funded by the SPC
at the time of such amendment.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier of an executed counterpart of a signature page to this
Agreement shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. Each Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither any Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that any Borrower shall have
a claim against such Issuing Bank, and such Issuing Bank shall be liable to such
Borrower, to the extent of any direct, but not consequential, damages suffered
by such Borrower that such Borrower proves were caused by (i) such Issuing
Bank's willful misconduct or gross negligence as determined in a final,
non-appealable judgment by a court of competent jurisdiction in determining
whether documents presented under any Letter of Credit comply with the terms of
the Letter of Credit or (ii) such Issuing Bank's willful failure or gross
negligence as determined in a final, non-appealable judgment by a court of
competent jurisdiction to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank 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.
SECTION 8.10. Confidentiality. Each of the Agents and the Lender Parties
hereby agrees that it will not disclose to any person or entity any Confidential
Information, except that each of the Agents and the Lender Parties may disclose
Confidential Information (i) to its and its Affiliates' officers, directors,
employees, agents, accountants, attorneys, and other advisors (collectively
"LENDER REPRESENTATIVES") who have a need to know such Confidential Information
for the purpose of assisting in the negotiation,
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completion and administration of the Facilities, (ii) to actual or potential
Lenders who have agreed to hold the Confidential Information in confidence on
substantially the same terms as provided herein, (iii) to any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty's or prospective counterparty's professional advisor) to any credit
derivative transaction relating to obligations of any Borrower who has agreed to
hold such Confidential Information in confidence on substantially the same terms
as provided herein and (iv) to the extent any portion of such Confidential
Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 8.10
by any of the Agents or the Lender Parties or any of the Lender Representatives,
(B) is or becomes available to any of the Agents or the Lender Parties or any of
the Lender Representatives on a non-confidential basis from a source other than
a Borrower or (C) is required to be disclosed by law, regulation or judicial
order or compulsory legal process or is requested by any regulatory body with
jurisdiction over any of the Agents or the Lender Parties or any of the Lender
Representatives.
SECTION 8.11. Release of Guaranties. Upon the sale, disposition,
amalgamation or merger of a Loan Party that is otherwise not prohibited
hereunder, the Administrative Agent will, at the US Borrower's expense, execute
and deliver to such Loan Party such documents as such Loan Party may reasonably
request to evidence the release of its guarantee in respect of the Obligations.
SECTION 8.12. Release of Collateral. (a) Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrowers'
expense, execute and deliver to such 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
in accordance with the terms of the Loan Documents.
(b) At such time that (i) all Obligations under the Term Loan B
Facility and the Canadian Term Loan B Facility have been paid in full and (ii)
the Revolving Credit Facility and the Term Loan A Facility shall have received a
Target Rating (to the extent that any Obligations under the Revolving Credit
Agreement or the Term Loan A Facility or any Term A Commitments or Revolving
Credit Commitments remain outstanding), the Collateral Agent will release the
Collateral from and, at the Borrowers' expense, execute and deliver to the
Borrowers such documents as the Borrowers or their counsel may reasonably
request to evidence the release of the Collateral from, any assignment and
security interest granted under the Collateral Documents in accordance with the
terms of the Loan Documents.
(c) Subject to the provisions of Section 8.12(b), no amendment, waiver
or consent shall, unless in writing and signed by the Required Lenders and each
Lender (other than any Lender that is, at such time, a Defaulting Lender), if
such Lender is directly and adversely affected by such amendment, waiver or
consent, release all or substantially all of the value of the Collateral.
SECTION 8.13. Replacement of Lenders. If (i) any Lender or any participant
of such Lender requests compensation under Section 2.11, or (ii) if a Borrower
is required to pay any additional amount to any Lender or any participant of
such Lender or any Governmental Authority for the account of any Lender or any
participant of such Lender pursuant to Section 2.13, or (iii) if such Lender has
failed to consent to any amendment, waiver or consent hereunder requiring the
consent of all Lenders or all Lenders directly affected thereby as to which the
Required Lenders or the majority of Lenders directly affected thereby have given
their consent or if any other circumstance exists hereunder that gives the
Borrowers the right to replace a Lender as a party hereto, then the US Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and
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delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 8.07), all of its interests,
rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that:
(a) the US Borrower shall have paid to the Agent the assignment fee
specified in Section 8.07(a);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 8.04) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the applicable
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant to
Section 2.13, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable laws or
guidelines, directed duties or requests of, or agreements with, any Governmental
Authority (whether or not having the force of law).
A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise (including, without limitation, changing its Applicable Lending
Office), the circumstances entitling the applicable Borrower to require such
assignment and delegation cease to apply.
SECTION 8.14. Amendments Affecting Term B Lenders and Canadian Term B
Lenders. No amendment, waiver or consent shall, unless in writing and signed by
the Required Lenders and each Lender (other than any Lender that is, at such
time, a Defaulting Lender) that has a Commitment under, or is owed any amounts
under or in respect of, the Term B Facility or the Canadian Term B Facility if
such Lender is directly and adversely affected by such amendment, waiver or
consent: (a)(i) increase the Commitments of such Lender; (ii) reduce the
principal of, or stated rate of interest on, the Notes held by such Lender or
the Advances or any fees or other amounts stated to be payable hereunder to such
Lender; or (iii) postpone or forgive any date scheduled for any payment of
principal of, or interest on, the Advances pursuant to Section 2.04 or 2.08 or
any date fixed for any payment of fees hereunder or any Guaranteed Obligations
payable under the US Subsidiary Guaranty, the Canadian Subsidiary Guaranty or,
in respect of the Canadian Term B Facility, the Parent Guaranty; and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Canadian Term B Lender (other than any Lender that is, at such
time, a Defaulting Lender) release the Parent Guarantor (or otherwise limit the
Parent Guarantor's liability with respect to the Obligations owing to the Agents
and the Lender Parties under the Parent Guaranty) from its Obligations owing to
the Agents and the Lender Parties under the Parent Guaranty; provided, however,
that except as expressly provided in clauses (a)(i), (ii) and (iii) above, no
amendment, waiver or consent shall, unless in writing and signed by the Required
Term B Lenders, adversely affect the rights of the Term B Lenders or the
Canadian Term B Lenders and there shall be no amendment to the definition of
"Required Term B Lender" without the consent of all of the Term B Lenders and
Canadian Term B Lenders.
SECTION 8.15. Patriot Act Notice. Each Lender Party and each Agent (for
itself and not on behalf of any Lender Party) hereby notifies the Loan Parties
that pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Loan Party, which
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information includes the name and address of such Loan Party and other
commercially reasonable information that will allow such Lender Party or such
Agent, as applicable, to identify such Loan Party in accordance with the Patriot
Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to
the extent commercially reasonable, such information and take such actions as
are reasonably requested by any Agents or any Lender Party in order to assist
the Agents and the Lender Parties in maintaining compliance with the Patriot
Act.
SECTION 8.16. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. The
Canadian Borrowers hereby agree that service of process in any such action or
proceeding brought in any such New York State court or in such federal court may
be made upon the US Borrower at its address for notices as provided for in
Section 8.02 and each of the Canadian Borrower hereby irrevocably appoints the
US Borrower its authorized agent to accept such service of process, and the US
Borrower hereby accepts such appointments, and the Borrowers agree that the
failure of the US Borrower to give any notice of any such service shall not
impair or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. Without limiting the foregoing, the Canadian
Borrowers hereby further irrevocably consent to the service of process in any
action or proceeding involving the Canadian Borrowers at their respective
addresses specified in Section 8.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any of the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 8.17. Judgment Currency. (a) To the extent permitted by applicable
law, if for the purposes of obtaining judgment in any court it is necessary to
convert a sum due hereunder in US Dollars into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be determined in accordance with Section 1.04 of
this Agreement on the Business Day preceding that on which final judgment is
given.
(b) To the extent permitted by applicable law, if for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in a foreign currency into US Dollars, the parties agree to the fullest extent
that they may effectively do so, that the rate of exchange used shall be
determined in accordance with Section 1.04 of this Agreement on the Business Day
preceding that on which final judgment is given.
(c) To the extent permitted by applicable law, the obligation of each
Borrower in respect of any sum due in US Dollars from it to any Lender Party or
the Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than US Dollars, be discharged only to the extent
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that on the Business Day following receipt by such Lender Party or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency, such Lender Party or the Administrative Agent (as the case
may be) may in accordance with normal banking procedures purchase US Dollars
with such other currency; if the US Dollars so purchased are less than such sum
due to such Lender Party or the Administrative Agent (as the case may be) in US
Dollars, each Borrower agrees, to the extent permitted by applicable law, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender Party or the Administrative Agent (as the case may be) against such loss,
and if the US Dollars so purchased exceed such sum due to any Lender Party or
the Administrative Agent (as the case may be) in US Dollars, such Lender Party
or the Administrative Agent (as the case may be) agrees to remit to each such
Borrower such excess.
SECTION 8.18. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.19. Limitation. Notwithstanding any other terms of this Agreement
or any other Loan Document, no Loan Party that is organized in a jurisdiction
outside of the United States shall be obligated in respect of any Obligations of
the US Borrower or any US Loan Party.
SECTION 8.20. Waiver of Jury Trial. Each of the Borrowers, the Agents and
the Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances, the
Letters of Credit or the actions of any Agent or any Lender Party in the
negotiation, administration, performance or enforcement thereof.
[Schedules and Exhibits omitted but will be provided to the Securities and
Exchange Commission upon request].
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
LOAN PARTIES
XXXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
----------------------------------
Title: Vice President and Treasurer
---------------------------------
XXXXXXX TRANSIT LTD.
By /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
----------------------------------
Title: Vice President
---------------------------------
GREYHOUND CANADA
TRANSPORTATION CORP.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------------
Title: Secretary
---------------------------------
Xxxxxxx Credit Agreement Signature Page
AGENTS
CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By /s/ Xxxxxx Xxx
-------------------------------------
Name: Xxxxxx Xxx
----------------------------------
Title: Vice President
---------------------------------
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By /s/ Xxxxxx Xxx
-------------------------------------
Name: Xxxxxx Xxx
----------------------------------
Title: Vice President
---------------------------------
Xxxxxxx Credit Agreement Signature Page
INITIAL LENDERS
CITICORP NORTH AMERICA, INC.
By /s/ Xxxxxx Xxx
-------------------------------------
Name: Xxxxxx Xxx
----------------------------------
Title: Vice President
---------------------------------
UBS LOAN FINANCE LLC
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Director
---------------------------------
By /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
----------------------------------
Title: Associate Director
---------------------------------
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By /s/ Yaap Tonckens
-------------------------------------
Name: Yaap Tonckens
----------------------------------
Title: Vice President
---------------------------------
Xxxxxxx Credit Agreement Signature Page
