AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 31, 2005, by and among G&K SERVICES, INC., as Domestic Borrower, G&K SERVICES CANADA, INC., as Canadian Borrower, the Lenders referred to herein, as Lenders JPMORGAN CHASE BANK, N.A., as...
Exhibit 10(s)
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of August 31, 2005,
by and among
G&K SERVICES, INC., as Domestic Borrower,
G&K SERVICES CANADA, INC., as Canadian Borrower,
the Lenders referred to herein, as Lenders
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
as Administrative Agent,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
as Syndication Agent
and
BANK OF AMERICA, N.A.,
XXXXXX X.X.,
and
SUNTRUST BANK,
as Documentation Agents
XXXXXX X.X.,
and
SUNTRUST BANK,
as Documentation Agents
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
as Lead Arranger and Sole Bookrunner
ARTICLE I |
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DEFINITIONS |
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SECTION 1.1 Definitions
|
1 | |||
SECTION 1.2 General
|
20 | |||
SECTION 1.3 Other Definitions and Provisions
|
20 | |||
ARTICLE II |
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REVOLVING CREDIT FACILITY |
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SECTION 2.1 Revolving Credit Loans
|
21 | |||
SECTION 2.2 Alternative Currency Loans
|
21 | |||
SECTION 2.3 Swingline Loans
|
23 | |||
SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Alternative Currency
Loans and Swingline Loans
|
24 | |||
SECTION 2.5 Bankers’ Acceptances
|
27 | |||
SECTION 2.6 Repayment of Loans
|
29 | |||
SECTION 2.7 Permanent Reduction of the Revolving Credit Commitment and the
Alternative Currency Commitment
|
32 | |||
SECTION 2.8 Termination of Credit Facility
|
32 | |||
SECTION 2.9 Increase of Revolving Credit Commitment
|
33 | |||
ARTICLE III |
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LETTER OF CREDIT FACILITY |
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SECTION 3.1 L/C Commitment
|
34 | |||
SECTION 3.2 Procedure for Issuance of Letters of Credit
|
34 | |||
SECTION 3.3 Commissions, Fees and Other Charges
|
35 | |||
SECTION 3.4 L/C Participations
|
35 | |||
SECTION 3.5 Reimbursement Obligation of the Borrowers
|
36 | |||
SECTION 3.6 Obligations Absolute
|
37 | |||
SECTION 3.7 Actions of the Issuing Lender
|
38 | |||
SECTION 3.8 Indemnification by Borrowers
|
38 | |||
SECTION 3.9 Indemnification by Lenders
|
38 | |||
SECTION 3.10 Rights as a Lender
|
39 | |||
ARTICLE IV |
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[INTENTIONALLY OMITTED] |
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ARTICLE V |
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GENERAL LOAN PROVISIONS |
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SECTION 5.1 Interest
|
39 | |||
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans
|
42 | |||
SECTION 5.3 Fees
|
44 | |||
SECTION 5.4 Manner of Payment
|
45 | |||
SECTION 5.5 Noteless Agreement; Evidence of Indebtedness
|
46 | |||
SECTION 5.6 Crediting of Payments and Proceeds
|
46 |
i
SECTION 5.7 Adjustments
|
47 | |||
SECTION 5.8 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption by the Administrative Agent |
47 | |||
SECTION 5.9 Redenomination of Alternative Currency Loans
|
48 | |||
SECTION 5.10 Regulatory Limitation
|
48 | |||
SECTION 5.11 Changed Circumstances
|
49 | |||
SECTION 5.12 Indemnity
|
51 | |||
SECTION 5.13 Capital Requirements
|
52 | |||
SECTION 5.14 Taxes
|
52 | |||
SECTION 5.15 Replacement of Lenders
|
54 | |||
SECTION 5.16 Guaranty Requirements
|
55 | |||
ARTICLE VI |
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CLOSING; CONDITIONS OF CLOSING AND BORROWING |
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SECTION 6.1 Closing
|
55 | |||
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit
|
55 | |||
SECTION 6.3 Conditions to All Extensions of Credit
|
58 | |||
ARTICLE VII |
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REPRESENTATIONS AND WARRANTIES OF THE BORROWERS |
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SECTION 7.1 Representations and Warranties
|
59 | |||
SECTION 7.2 Survival of Representations and Warranties, Etc
|
66 | |||
ARTICLE VIII |
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FINANCIAL INFORMATION AND NOTICES |
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SECTION 8.1 Financial Statements and Projections
|
67 | |||
SECTION 8.2 Officer’s Compliance Certificate
|
68 | |||
SECTION 8.3 Accountants’ Certificate
|
68 | |||
SECTION 8.4 Other Reports
|
68 | |||
SECTION 8.5 Notice of Litigation and Other Matters
|
69 | |||
SECTION 8.6 Accuracy of Information
|
70 | |||
ARTICLE IX |
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AFFIRMATIVE COVENANTS |
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SECTION 9.1 Preservation of Corporate Existence and Related Matters
|
70 | |||
SECTION 9.2 Maintenance of Property
|
70 | |||
SECTION 9.3 Insurance
|
70 | |||
SECTION 9.4 Accounting Methods and Financial Records
|
70 | |||
SECTION 9.5 Payment and Performance of Obligations
|
70 | |||
SECTION 9.6 Compliance With Laws and Approvals
|
71 | |||
SECTION 9.7 Environmental Laws
|
71 | |||
SECTION 9.8 Compliance with ERISA
|
71 | |||
SECTION 9.9 Compliance With Agreements
|
72 | |||
SECTION 9.10 Visits and Inspections
|
72 |
ii
SECTION 9.11 Additional Subsidiaries
|
72 | |||
SECTION 9.12 Use of Proceeds
|
73 | |||
SECTION 9.13 Further Assurances
|
73 | |||
ARTICLE X |
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FINANCIAL COVENANTS |
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SECTION 10.1 Leverage Ratio
|
73 | |||
SECTION 10.2 Interest Coverage Ratio
|
73 | |||
SECTION 10.3 Net Worth
|
73 | |||
ARTICLE XI |
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NEGATIVE COVENANTS |
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SECTION 11.1 Limitations on Debt
|
74 | |||
SECTION 11.2 Limitations on Liens
|
75 | |||
SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions
|
76 | |||
SECTION 11.4 Limitations on Mergers and Liquidation
|
78 | |||
SECTION 11.5 Limitations on Sale of Assets
|
78 | |||
SECTION 11.6 Limitations on Dividends and Distributions
|
79 | |||
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock
|
79 | |||
SECTION 11.8 Transactions with Affiliates
|
79 | |||
SECTION 11.9 Certain Accounting Changes; Organizational Documents
|
80 | |||
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Debt
|
80 | |||
SECTION 11.11 Restrictive Agreements
|
80 | |||
SECTION 11.12 Nature of Business
|
80 | |||
ARTICLE XII |
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UNCONDITIONAL DOMESTIC BORROWER GUARANTY AGREEMENT |
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SECTION 12.1 Guaranty of Obligations
|
80 | |||
SECTION 12.2 Nature of Guaranty
|
81 | |||
SECTION 12.3 Demand by the Administrative Agent
|
82 | |||
SECTION 12.4 Waivers
|
82 | |||
SECTION 12.5 Modification of Loan Documents etc
|
82 | |||
SECTION 12.6 Reinstatement
|
83 | |||
SECTION 12.7 No Subrogation
|
84 | |||
ARTICLE XIII |
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DEFAULT AND REMEDIES |
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SECTION 13.1 Events of Default
|
84 | |||
SECTION 13.2 Remedies
|
87 | |||
SECTION 13.3 Rights and Remedies Cumulative; Non-Waiver; etc
|
88 | |||
SECTION 13.4 Judgment Currency
|
88 |
iii
ARTICLE XIV |
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THE ADMINISTRATIVE AGENT |
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SECTION 14.1 Appointment; Nature of Relationship
|
88 | |||
SECTION 14.2 Powers
|
89 | |||
SECTION 14.3 General Immunity
|
89 | |||
SECTION 14.4 No Responsibility for Loan, Recitals, etc
|
89 | |||
SECTION 14.5 Action on Instructions of Lenders
|
90 | |||
SECTION 14.6 Employment of Administrative Agent and Counsel
|
90 | |||
SECTION 14.7 Reliance on Documents; Counsel
|
90 | |||
SECTION 14.8 Agent’s Reimbursement and Indemnification
|
90 | |||
SECTION 14.9 Notice of Default
|
91 | |||
SECTION 14.10 Rights as a Lender
|
91 | |||
SECTION 14.11 Lender Credit Decision
|
91 | |||
SECTION 14.12 Successor Administrative Agent
|
91 | |||
SECTION 14.13 Delegation to Affiliates
|
92 | |||
ARTICLE XV |
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MISCELLANEOUS |
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SECTION 15.1 Notices
|
92 | |||
SECTION 15.2 Expenses; Indemnity
|
94 | |||
SECTION 15.3 Set-off
|
95 | |||
SECTION 15.4 Governing Law
|
96 | |||
SECTION 15.5 Jurisdiction and Venue
|
96 | |||
SECTION 15.6 Binding Arbitration; Waiver of Jury Trial
|
96 | |||
SECTION 15.7 Reversal of Payments
|
97 | |||
SECTION 15.8 Injunctive Relief; Punitive Damages
|
98 | |||
SECTION 15.9 Accounting Matters
|
98 | |||
SECTION 15.10 Successors and Assigns; Participations
|
98 | |||
SECTION 15.11 Amendments, Waivers and Consents
|
98 | |||
SECTION 15.12 Performance of Duties
|
103 | |||
SECTION 15.13 All Powers Coupled with Interest
|
103 | |||
SECTION 15.14 Survival of Indemnities
|
103 | |||
SECTION 15.15 Titles and Captions
|
104 | |||
SECTION 15.16 Severability of Provisions
|
104 | |||
SECTION 15.17 Counterparts
|
104 | |||
SECTION 15.18 Term of Agreement
|
104 | |||
SECTION 15.19 Advice of Counsel
|
104 | |||
SECTION 15.20 No Strict Construction
|
104 | |||
SECTION 15.21 Nature of Obligations
|
104 | |||
SECTION 15.22 Domestic Borrower as Agent for the Borrowers
|
104 | |||
SECTION 15.23 Inconsistencies with Other Documents; Independent Effect of
Covenants
|
105 | |||
SECTION 15.24 USA Patriot Act
|
105 |
iv
ARTICLE XVI |
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NO NOVATION; REFERENCES TO THIS AGREEMENT IN LOAN DOCUMENTS |
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SECTION 16.1 No Novation
|
105 | |||
SECTION 16.2 References to This Agreement In Loan Documents
|
105 |
v
EXECUTION COPY
AMENDED AND RESTATED
CREDIT AGREEMENT
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 31, 2005, is entered into by
and among G&K SERVICES, INC., a Minnesota corporation, as Domestic Borrower (the “Domestic
Borrower”), G&K SERVICES CANADA, INC., an Ontario corporation, as Canadian Borrower (the
“Canadian Borrower” and, together with the Domestic Borrower, the “Borrowers”), the
lenders who are or may become a party to this Agreement, as Lenders (the “Lenders”),
JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One, NA (Illinois)), a national banking
association, as Administrative Agent for the Lenders (the “Administrative Agent”), and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Syndication Agent for
the Lenders (the “Syndication Agent”).
STATEMENT OF PURPOSE
The Borrowers, the Administrative Agent and certain of the Lenders entered into the Credit
Agreement dated as of June 25, 2002 (as amended or modified prior to the date hereof, the
“Prior Credit Agreement”). The Borrowers have requested and the Lenders and the Agent have
agreed to amend and restate in its entirety the Prior Credit Agreement pursuant to the terms of
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby, agree that the Prior Credit
Agreement is amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION
1.1 Definitions. The following terms when used in this Agreement shall have the meanings assigned to them below:
“Acceptance” means a Draft duly stamped and accepted by the Alternative Currency
Lender in accordance with Section 2.5 or Section 5.2.
“Acceptance Amount” means the sum of (a) the aggregate face amount of all issued and
outstanding Acceptances and (b) amounts paid under an Acceptance for which the Alternative Currency
Lender has neither been reimbursed nor made a Canadian Base Rate Loan.
“Acceptance Fee” has the meaning specified in Section 2.5(d)
“Acquisition Period” means a period beginning with the month in which a Leverage
Ratio Acquisition is consummated and, subject to the remainder hereof, ending with the last
calendar day of the calendar month to occur eighteen months after the month in which such
Leverage Ratio Acquisition occurred; provided, that if the Leverage Ratio falls below
3.25 to
1.00 (as
calculated on a pro forma basis giving effect to the applicable Acquisition) at
some point prior to the expiry of the Acquisition Period, the Acquisition Period shall cease
tolling and shall only re-start after the Leverage Ratio equals or exceeds 3.25 to 1.00 as a result
of a Leverage Ratio Acquisition; provided further, that the aggregate number of
months during which the Acquisition Period is in effect shall not exceed eighteen months and once
the Acquisition Period has started or re-started, it must run through the end of the quarter in
which it started or re-started. By way of example only, if a Leverage Ratio Acquisition occurs on
January 1st of a calendar year, and such Leverage Ratio Acquisition results in the
Leverage Ratio exceeding or equaling 3.25 to 1.00 (as calculated on a pro forma
basis giving effect to the applicable Acquisition), then the Acquisition Period shall begin on
January 1st. If the Leverage Ratio falls below 3.25 to 1.00 (as calculated on a
pro forma basis giving effect to the applicable Acquisition) by June
30th of such year, then the Acquisition Period shall cease to run as of June 30th . Six of
the eighteen months of the Acquisition Period would have been used with twelve months remaining if
and when another Leverage Ratio Acquisition would occur and so long as such Acquisition would
result in the Leverage Ratio (as calculated on a pro forma basis giving effect to
the applicable Acquisition) exceeding or equaling 3.25 to 1.00.
“Administrative Agent” means JPMorgan, in its capacity as Administrative Agent
hereunder, and any successor thereto appointed pursuant to Section 14.12.
“Administrative Agent’s Correspondent” means, with respect to the distribution and
payment of Alternative Currency Loans or Eurocurrency Rate Loans, as applicable, the office,
branch, affiliate or correspondent bank of the Administrative Agent specified as the
“Administrative Agent’s Correspondent” for each applicable Alternative Currency or Agreed Currency
as applicable, on Schedule 1.1(b) hereto, or such other office, branch, affiliate or
correspondent bank of the Administrative Agent as the Administrative Agent may from time to time
specify to the Borrowers and the Lenders as the Administrative Agent’s Correspondent.
“Administrative Agent’s Office” means the office of the Administrative Agent specified
in or determined in accordance with the provisions of Section 15.1(c).
“Affiliate” means, with respect to any Person, any other Person (other than a
Subsidiary of the Domestic Borrower) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, such first Person
or any of its Subsidiaries. The term “control” means (a) the power to vote ten percent (10%) or
more of the securities or other equity interests of a Person having ordinary voting power, or (b)
the possession, directly or indirectly, of any other power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting securities, by contract or
otherwise.
“Aggregate Commitment” means the aggregate amount of the Lenders’ Commitments
hereunder, as such amount may be reduced, increased or otherwise modified at any time or from time
to time pursuant to the terms hereof. On the Closing Date, the Aggregate Commitment shall be Three
Hundred Twenty-Five Million Dollars ($325,000,000).
“Agreed Currency” means (i) Dollars, (ii) so long as such currency remains an Eligible
Currency, Canadian Dollars, British Pounds Sterling, and euro, and (iii) any other Eligible
2
Currency which the Domestic Borrower requests the Administrative Agent to include as an
Agreed Currency hereunder and which is acceptable to one-hundred percent (100%) of the
Lenders with Revolving Credit Commitments.
“Agreed Currency Amount” means with respect to each Eurocurrency Rate Loan or L/C
Obligation in an Agreed Currency other than Dollars, the amount of the applicable Agreed Currency
which is equivalent to the principal amount in Dollars of such Loan or L/C Obligation calculated
on the basis of the arithmetic mean of the buy and sell spot rates of exchange determined by the
Administrative Agent to be available to it at approximately 11:00 a.m. (London time) two (2)
Business Days before such Loan or L/C Obligation is made, incurred or continued (or to be made,
incurred or continued). When used with respect to a greater sum expressed in Dollars, “Agreed
Currency Amount” shall mean the amount of such Agreed Currency which is equivalent to the amount
so expressed in Dollars calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange determined by the Administrative Agent to be available to it at the relevant
time.
“Agreement” means this Amended and Restated Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
“Alternative Currency” means Canadian Dollars.
“Alternative Currency Amount” means with respect to each Alternative Currency Loan or
L/C Obligation in an Alternative Currency, the amount of the applicable Alternative Currency which
is equivalent to the principal amount in Dollars of such Loan or L/C Obligation calculated on the
basis of the arithmetic mean of the buy and sell spot rates of exchange determined by the
Administrative Agent to be available to it at approximately 11:00 a.m. (London time) three (3)
Business Days before such Loan or L/C Obligation is made, incurred or continued (or to be made,
incurred or continued). When used with respect to any other sum expressed in Dollars, “Alternative
Currency Amount” shall mean the amount of such Alternative Currency which is equivalent to the
amount so expressed in Dollars calculated on the basis of the arithmetic mean of the buy and sell
spot rates of exchange determined by the Administrative Agent to be available to it at the relevant
time.
“Alternative Currency Commitment” means the lesser of (i) Thirty Million Dollars
($30,000,000) and (ii) the Revolving Credit Commitment, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
“Alternative Currency Facility” means the alternative currency facility
established pursuant to Section 2.2.
“Alternative Currency Lender” means JPMorgan, in its capacity as alternative currency
lender hereunder.
“Alternative Currency Loan” means any revolving credit loan made by the Alternative
Currency Lender pursuant to Section 2.2 (including, without limitation, any Canadian BA Borrowing
issued pursuant to Section 2.5), and all such Alternative Currency Loans collectively as the
context requires.
3
“Alternative Currency Note” means the Alternative Currency Note made by the Borrowers
payable to the order of the Alternative Currency Lender, substantially in the form of Exhibit
A-3 hereto, evidencing the Alternative Currency Loans, and any amendments, supplements and
modifications thereto, any substitutes therefor and any replacements, restatements, renewals or
extensions thereof, in whole or in part.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
“Applicable Margin” shall have the meaning assigned thereto in Section 5.1(c).
“Approved Fund” means any Person (other than a natural Person), including, without
limitation, any special purpose entity, 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
of its business; provided, that with respect to any assignment of any Revolving Credit
Commitment, such Approved Fund must be administered by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arbitration Rules” shall have the meaning assigned thereto in Section 15.6(a).
“Assignment and Acceptance” shall have the meaning assigned thereto in Section
15.10(b)(i).
“BA Purchase Price” shall mean the product of (a) the face amount of Drafts to be sold
in connection with an Alternative Currency Loan times (b) the applicable Discount, as
determined by the Alternative Currency Lender, less the Acceptance Fee retained by the Alternative
Currency Lender in consideration for the acceptance of such Drafts.
“Base Rate” means, at any time, the higher of (a) the Prime Rate and (b) the sum of
(i) the Federal Funds Effective Rate plus (ii) 1/2 of 1%; each change in the Base Rate
shall take effect simultaneously with the corresponding change or changes in the Prime Rate or the
Federal Funds Effective Rate.
“Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as
provided in Section 5.1(a).
“Benefited Lender” shall have the meaning assigned thereto in Section 5.7.
“British Pounds Sterling” means the lawful currency of Great Britain.
“Business Day” means (a) for all purposes other than as set forth in clause (b) below,
any day other than a Saturday, Sunday or legal holiday on which banks in Chicago, Illinois, and New
York, New York, are open for the conduct of substantially all of their commercial lending
activities and on which interbank wire transfers can be made on the Fedwire system, as applicable,
and (b) with respect to all notices and determinations in connection with, and payments of
principal and interest on, any Eurocurrency Rate Loan, any day (i) that is a Business Day described
in clause (a) and that is also a day for trading by and between banks in deposits
4
for the applicable Permitted Currency in the London interbank market and (ii) on which banks are
open for the conduct of their domestic and international banking business in the place where the
Administrative Agent or the Administrative Agent’s Correspondent shall make available Loans in such
Permitted Currency.
“Calculation Date” shall have the meaning assigned thereto in Section 5.1(c).
“Canadian BA Borrowing” means the creation and discounting of Acceptances by the
Alternative Currency Lender in accordance with Section 2.5.
“Canadian Base Rate” means the rate of interest announced from time to time by the
Alternative Currency Lender as its prime rate for overnight loans in Canadian Dollars or, if the
Alternative Currency Lender ceases to announce a rate so designated, any similar successor rate
designated by the Alternative Currency Lender. The Canadian Base Rate is not necessarily the most
favored rate of the Alternative Currency Lender and the Alternative Currency Lender may lend to its
customers at rates that are at, above or below the Canadian Base Rate.
“Canadian Base Rate Loan” means any Alternative Currency Loan which bears interest at
a rate determined by reference to the Canadian Base Rate.
“Canadian Borrower” means G&K Services Canada, Inc., an Ontario corporation, in its
capacity as borrower hereunder.
“Canadian Business Day” means any day other than a Saturday or Sunday on which
Canadian banks are open for business in Xxxxxxx, Xxxxxxx.
“Canadian Dollar” or “C$” means, at any time of determination, the then official
currency of Canada.
“Canadian Interest Period” means, relative to any Acceptance, a period of 30, 60, 90
or 180 days after the date of issuance, rollover or conversion, as the case may be, as the Domestic
Borrower, on behalf of itself or the Canadian Borrower, may select in its relevant notice pursuant
to Section 2.4 or Section 5.2; provided, however, that:
(a) no more than four (4) different Canadian Interest Periods may be outstanding at any one
time;
(b) if a Canadian Interest Period would otherwise end on a day which is not a Canadian
Business Day, such Canadian Interest Period shall end on the next following Canadian Business Day
(unless such next following Canadian Business Day is the first Canadian Business Day of a month, in
which case such Canadian Interest Period shall end on the next preceding Canadian Business Day);
and
(c) no Canadian Interest Period may end later than the Revolving Credit Maturity
Date.
5
“Canadian Outstandings” means, as of any date of determination, the aggregate
principal amount of all outstanding Alternative Currency Loans (including, without limitation, the
Acceptance Amount).
“Canadian Subsidiary” means any Subsidiary of the Domestic Borrower organized under
the laws of Canada.
“Canadian Subsidiary Guaranty Agreement” means the unconditional guaranty agreement of
even date herewith executed with respect to the Obligations of the Canadian Borrower by each
Material Canadian Subsidiary in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, substantially in the form of
Exhibit H-2, as amended,
restated, supplemented or otherwise modified from time to time.
“Capital
Asset” means, with respect to the Domestic Borrower and its Subsidiaries, any
asset that should, in accordance with GAAP, be classified and accounted for as a capital asset on a
Consolidated balance sheet of the Domestic Borrower and its Subsidiaries.
“Capital Lease” means, with respect to the Domestic Borrower and its Subsidiaries, any
lease of any property that should, in accordance with GAAP, be classified and accounted for as a
capital lease on a Consolidated balance sheet of the Domestic Borrower and its Subsidiaries.
“Change in Control” shall have the meaning assigned thereto in Section 13.1(i).
“Closing Date” means the date of this Agreement or such later Business Day upon which
each condition described in Section 6.2 shall be satisfied or waived in all respects in a manner
acceptable to the Administrative Agent in its sole discretion.
“Code” means the Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.
“Commitment” means, as to any Lender, such Lender’s Revolving Credit Commitment as set
forth opposite such Lender’s name on Schedule 1.1(a) hereto or in such assignment
documentation permitted hereunder that is used by a Lender to acquire a Commitment, as such
Commitment may be reduced or otherwise modified at any time or from time to time pursuant to the
terms hereof.
“Commitment Fee Rate” shall have the meaning assigned thereto in Section 5.3(a).
“Consolidated” means, when used with reference to financial statements or financial
statement items of the Domestic Borrower and its Subsidiaries, such statements or items on a
consolidated basis in accordance with applicable principles of consolidation under GAAP.
“Credit Facility” means, collectively, the Revolving Credit Facility, the
Swingline Facility, the Alternative Currency Facility, and the L/C Facility.
“Debt” means, with respect to the Domestic Borrower and its Subsidiaries at any date
and without duplication, the sum of the following calculated in accordance with GAAP: (a) all
liabilities, obligations and indebtedness for borrowed money including, but not limited to,
6
obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person,
(b) all obligations to pay the deferred purchase price of property or services of any such Person
(including, without limitation, all obligations under non-competition agreements), except trade
payables arising in the ordinary course of business not more than ninety (90) days past due, (c)
all obligations of any such Person as lessee under Capital Leases, (d) all Debt of any other Person
to the extent secured by a Lien on any asset of any such Person, (e) all Guaranty Obligations of
any such Person for the Debt of any other Person, (f) all obligations, contingent or otherwise, of
any such Person relative to the face amount of letters of credit, whether or not drawn, including
without limitation any Reimbursement Obligation, and banker’s acceptances issued for the account of
any such Person, (g) all obligations of any such Person to redeem, repurchase, exchange, defease or
otherwise make payments in respect of capital stock or other securities or partnership interests of
such Person, (h) all net payment obligations incurred by any such Person pursuant to Hedging
Agreements, (i) all outstanding payment obligations with respect to Synthetic Leases, and (j) the
outstanding attributed principal amount under any asset securitization program to the extent that
there is recourse to the Domestic Borrower or any of its Subsidiaries and, to the extent not
included in the foregoing, all outstanding Receivables Transaction Attributed Indebtedness.
“Default” means any of the events specified in Section 13.1 which with the passage of
time, the giving of notice or any other condition, would constitute an Event of Default.
“Discount” means the bid rate established by the Alternative Currency Lender for the
sale of its banker’s acceptances in an amount and bearing a maturity approximately equal to a
proposed Canadian BA Borrowing or a renewal or conversion of Acceptances at approximately 10:00
a.m. (the time of the Administrative Agent’s Correspondent), on the date of such proposed Canadian
BA Borrowing, renewal or conversion of Acceptances, which bid rate shall be conclusive and binding
absent manifest error.
“Disputes” shall have the meaning set forth in Section 15.6.
“Disqualifying Event” is defined in the definition of “Eligible Currency”.
“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency
of the United States.
“Dollar Amount” means (a) with respect to each Loan made or continued (or to be made
or continued) in Dollars, the principal amount thereof and (b) with respect to each Alternative
Currency Loan or Eurocurrency Rate Loan denominated in an Agreed Currency other than Dollars, the
amount of Dollars which is equivalent to the principal amount of such Alternative Currency Loan or
Eurocurrency Rate Loan, as applicable, calculated on the basis of the arithmetic mean of the buy
and sell spot rates of exchange determined by the Administrative Agent at approximately 11:00 a.m.
(London time) on the date on or as of which such amount is to be determined. When used with respect
to any other sum expressed in an Alternative Currency or an Agreed Currency other than Dollars, as
applicable, “Dollar Amount” shall mean the amount of Dollars which is equivalent to the amount so
expressed in such Alternative Currency or Agreed Currency other than Dollars, as applicable,
calculated on the basis of the
7
arithmetic mean of the buy and sell spot rates of exchange determined by the Administrative Agent
to be available to it at the relevant time.
“Domestic Borrower” means G&K Services, Inc., a Minnesota corporation, in its
capacity as borrower (and, as applicable, as guarantor) hereunder.
“Domestic Borrower Guaranty Agreement” means the unconditional guaranty of the
Obligations by the Domestic Borrower under Article XII in favor of the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders.
“Domestic Subsidiary” means any Subsidiary of the Domestic Borrower organized under
the laws of any state of the United States or the District of Columbia.
“Domestic Subsidiary Guaranty Agreement” means the unconditional guaranty agreement of
even date herewith executed with respect to the Obligations of the Borrowers by each Material
Domestic Subsidiary in favor of the Administrative Agent, for the benefit of the Administrative
Agent and the Lenders, substantially in the form of
Exhibit H-l, as amended, restated,
supplemented or otherwise modified from time to time.
“Draft” means a draft of the Domestic Borrower, on behalf of itself or the Canadian
Borrower, as applicable, denominated in Canadian Dollars, duly executed and delivered to the
Alternative Currency Lender in accordance with Section 2.5(a).
“EBITDA” means, for any period, the sum of the following determined on a Consolidated
basis, without duplication, for the Domestic Borrower and its Subsidiaries in accordance with GAAP:
(a) Net Income for such period plus (b) the sum of the following to the extent deducted in
determining Net Income: (i) income and franchise taxes, (ii) Interest Expense, and (iii)
amortization, depreciation and other non-cash charges less (c) any extraordinary gains;
provided, that for the purposes of determining EBITDA for any period during which an
acquisition permitted hereunder is consummated, EBITDA shall be adjusted to give effect to the
consummation of such acquisition on a pro forma basis in accordance with GAAP, as
if such acquisition occurred on the first day of such period, such adjustments to be calculated in
a manner reasonably satisfactory to the Administrative Agent (with respect to any acquisition that
does not require the consent of the Required Lenders pursuant to Section 11.3(c)) and in a manner
reasonably satisfactory to the Administrative Agent and the Required Lenders (with respect to any
acquisition that requires the consent of the Administrative Agent and the Required Lenders pursuant
to Section 11.3(c)).
“Eligible Currency” means any currency other than Dollars (x) that is readily
available, freely traded, in which deposits are customarily offered to banks in the London
interbank market, convertible into Dollars in the international interbank market available to the
Lenders in such market and as to which the Dollar Amount thereof may be readily calculated, and (y)
that is not subject to Section 5.11 or any other comparable provision of this Agreement. If, after
the designation by the Lenders at the request of the Domestic Borrower of any currency as an Agreed
Currency, currency control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are introduced, such
country’s currency is, in the determination of the Administrative Agent, (i) no longer
8
readily available or freely traded or (ii) as to which, in the determination of the Administrative
Agent, the Dollar Amount thereof is not readily calculable (each of
clause (i) and (ii), a
“Disqualifying Event”), then the Administrative Agent shall promptly notify the Lenders and the
Domestic Borrower, and such country’s currency shall no longer be an Agreed Currency until such
time as the Disqualifying Event(s) no longer exists, but in any event within five (5) Business Days
of receipt of such notice from the Administrative Agent, the Domestic Borrower shall repay all
Loans in such currency to which the Disqualifying Event applies or convert such Loan into Loans in
Dollars or another Agreed Currency, subject to other terms contained in this Agreement.
“Employee Benefit Plan” means any employee benefit plan within the meaning of Section
3(3) of ERISA which (a) is maintained for employees of the Domestic Borrower or any ERISA Affiliate
or (b) has at any time within the preceding six (6) years been maintained for the employees of the
Domestic Borrower or any current or former ERISA Affiliate.
“Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of
noncompliance or violation, investigations (other than internal reports prepared by any Person in
the ordinary course of business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any actual or alleged violation of or liability under
any Environmental Law or relating to any permit issued, or any approval given, under any such
Environmental Law, including, without limitation, any and all claims by Governmental Authorities
for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to human health or the environment.
“Environmental Laws” means any and all federal, foreign, state, provincial and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations and
orders of courts or Governmental Authorities, relating to the protection of human health or the
environment, including, but not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and
regulations thereunder, each as amended or modified from time to time.
“ERISA Affiliate” means any Person who together with the Domestic Borrower is treated
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section
4001(b) of ERISA.
“euro” means the lawful currency of the member states of the European Union which
adopted the Council Regulation E.C. No. 1103/97 dated 17 June 1997 passed by the Council of the
European Union, or if different, the then lawful currency of the member states of the European
Union that participate in the third stage of the Economic and Monetary Union.
9
“Eurocurrency Rate” means, with respect to a Eurocurrency Rate Loan for the relevant
Interest Period, the applicable British Bankers’ Association interest settlement rate for deposits
in the applicable Agreed Currency as reported by Telerate, or if Telerate shall not display such a
rate or if the Administrative Agent shall not subscribe to Telerate, any other generally recognized
financial information service as of 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period, and having a maturity equal to such Interest Period, as adjusted
for Reserves; provided that, if no such British Bankers’ Association interest settlement
rate is available, the “Eurocurrency Rate” for the relevant Interest Period shall instead be the
rate determined by the Administrative Agent to be the rate at which JPMorgan or one of its
Affiliate banks offers to place deposits in the applicable Agreed Currency with first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest Period, in the approximate amount the relevant Eurocurrency
Rate Loan and having a maturity equal to such Interest Period. Each calculation by the
Administrative Agent of the Eurocurrency Rate shall be conclusive and binding for all purposes,
absent manifest error.
“Eurocurrency Rate Loan” means any Loan bearing interest at a rate based upon
the Eurocurrency Rate as provided in Section 5.1(a).
“Event of Default” means any of the events specified in Section 13.1, provided that
any requirement for passage of time, giving of notice, or any other condition, has been satisfied.
“Extensions of Credit” means, as to any Lender at any time, (a) an amount equal to the
sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (ii) such Lender’s Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding, (iii) such Lender’s Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding, and (iv) such Lender’s Revolving Credit Commitment Percentage of the Alternative
Currency Loans then outstanding, or (b) the making of any Loan or participation in any Letter of
Credit by such Lender, as the context requires.
“FDIC” means the Federal Deposit Insurance Corporation, or any successor thereto.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any date that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) 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.
“Fiscal Year” means the fiscal year of the Domestic Borrower and its Subsidiaries
ending on the Saturday closest to June 30.
“GAAP” means generally accepted accounting principles, as recognized by the American
Institute of Certified Public Accountants and the Financial Accounting Standards Board,
consistently applied and maintained on a consistent basis for the Domestic Borrower and
10
its Subsidiaries throughout the period indicated and (subject to Section 15.9) consistent with
the prior financial practice of the Domestic Borrower and its Subsidiaries.
“Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
“Governmental Authority” means any nation, province, state or political subdivision
thereof, and any government or any Person exercising executive, legislative, regulatory or
administrative functions of or pertaining to government, and any corporation or other entity owned
or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
“Guaranteed Obligations” shall have the meaning assigned thereto in Section 12.1;
provided that for the purposes of each Subsidiary Guaranty Agreement, “Guaranteed
Obligations” shall have the meaning assigned thereto in such Subsidiary Guaranty Agreement.
“Guaranty Obligation” means, with respect to the Domestic Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of any such Person
pursuant to which such Person has directly or indirectly guaranteed any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement condition or otherwise) or (b) entered
into for the purpose of assuring in any other manner the obligee of such Debt or other obligation
of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in
part); provided, that the term Guaranty Obligation shall not include endorsements for
collection or deposit in the ordinary course of business.
“Hazardous Materials” means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by any Governmental Authority, (c) the
presence of which require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license under any
Environmental Law or other Governmental Approval, (e) which are deemed to constitute a nuisance or
a trespass which pose a health or safety hazard to Persons or neighboring properties, (f) which
consist of underground or aboveground storage tanks, whether empty, filled or partially filled with
any substance, or (g) which contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude
oil, nuclear fuel, natural gas or synthetic gas.
“Hedging Agreement” means any agreement with respect to any Interest Rate Contract,
forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap
agreement, cross-currency rate swap agreement, currency option agreement or other agreement or
arrangement designed to alter the risks of any Person arising from fluctuations in interest
11
rates, currency values or commodity prices, all as amended, restated, supplemented or otherwise
modified from time to time.
“Hedging Obligations” shall have the meaning assigned thereto in the definition
of “Obligations”.
“Interest Expense” means, with respect to the Domestic Borrower and its Subsidiaries
for any period, the gross interest expense (including, without limitation, interest expense
attributable to Capital Leases and all net payment obligations pursuant to Hedging Agreements) of
the Domestic Borrower and its Subsidiaries, all determined for such period on a Consolidated basis,
without duplication, in accordance with GAAP.
“Interest Period” shall have the meaning assigned thereto in Section 5.1(b).
“Interest Rate Contract” means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or
any other agreement regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Person and any confirming letter executed pursuant
to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.
“ISP98” means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590.
“Issuing Lender” means each of JPMorgan and Xxxxx Fargo Bank, National Association, in
its capacity as an issuer of Letters of Credit hereunder, and in each case any successor thereto.
“JPMorgan” means JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA
(Illinois)), a national banking association, and its successors.
“L/C Commitment” means the lesser of (a) Fifty Million Dollars ($50,000,000) and (b)
the Revolving Credit Commitment.
“L/C Facility” means the letter of credit facility established pursuant to Article
III.
“L/C Obligations” means at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 3.5.
“L/C Participants” means the collective reference to all of the Lenders other
than the Issuing Lender.
“Lender” means each Person executing this Agreement as a Lender (including, without
limitation, the Issuing Lender, the Swingline Lender and the Alternative Currency Lender unless the
context otherwise requires) set forth on the signature pages hereto and each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section 15.10.
12
“Lender Addition and Acknowledgment Agreement” means each agreement executed pursuant
to Section 2.9 by the Borrowers and an existing Lender or a Person not theretofore a Lender, as
applicable, and acknowledged by the Administrative Agent and each Material Subsidiary, providing
for an increase in the Revolving Credit Commitment hereunder, acknowledging that any Person not
theretofore a Lender shall be a party hereto and have the rights and obligations of a Lender
hereunder, and setting forth the Revolving Credit Commitment of each Lender.
“Lending Office” means, with respect to any Lender, the office of such Lender
maintaining such Lender’s Revolving Credit Commitment Percentage of the Extensions of Credit.
“Letters of Credit” means the collective reference to letters of credit issued
pursuant to Section 3.1.
“Leverage Ratio” means the ratio calculated pursuant to Section 10.1.
“Leverage Ratio Acquisition” means any acquisition of property or other assets by
either Borrower or any of their respective Subsidiaries that is permitted under this Agreement and
which, after giving effect thereto, causes the Leverage Ratio, on a
pro forma basis on the
date such acquisition is consummated, to equal or exceed 3.25 to 1.00. In order for an acquisition
to constitute a Leverage Ratio Acquisition, the Borrowers shall deliver to the Administrative
Agent, prior to the consummation of such acquisition, written evidence in form and substance
acceptable to the Administrative Agent supporting the above-described pro forma calculation.
“Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement relating to such
asset.
“Loan Documents” means, collectively, this Agreement, any Notes, the Acceptances (as
and when created), the Subsidiary Guaranty Agreements and each other document, instrument,
certificate and agreement executed and delivered by the Domestic Borrower or any Subsidiary thereof
in connection with this Agreement or otherwise referred to herein or contemplated hereby (excluding
any Hedging Agreement), all as may be amended, restated, supplemented or otherwise modified from
time to time.
“Loans” means the collective reference to the Revolving Credit Loans, the
Swingline Loans and the Alternative Currency Loans and “Loan” means any of such Loans.
“Material Adverse Effect” means, with respect to the Domestic Borrower and its
Subsidiaries taken as a whole, a material adverse effect on the properties, business, prospects,
operations or condition (financial or otherwise) of the Domestic Borrower and its Subsidiaries,
taken as a whole, or the ability of any such Persons to perform their obligations under the Loan
Documents or Material Contracts.
13
“Material Contract” means (a) any contract or other agreement, written or oral, of the
Domestic Borrower or any of its Subsidiaries involving monetary liability of or to any such Person
in an amount in excess of $15,000,000 per annum, or (b) any other contract or agreement, written or
oral, of the Domestic Borrower or any of its Subsidiaries the failure to comply with which could
reasonably be expected to have a Material Adverse Effect.
“Material Canadian Subsidiary” means any direct or indirect Canadian Subsidiary of the
Domestic Borrower that is a Material Subsidiary.
“Material Domestic Subsidiary” means any direct or indirect Domestic Subsidiary of the
Domestic Borrower that is a Material Subsidiary.
“Material Subsidiary” means any Subsidiary of the Domestic Borrower other than (i)
those solely formed to consummate Qualified Receivables Transactions and (ii) those that, in the
aggregate, have (x) assets that equal less than 10% of the aggregate amount of all assets of all of
the Domestic Borrower’s Subsidiaries (other than those Subsidiaries described in clause (i)), and
(y) sales that equal less than 10% of the aggregate amount of all sales of all of the Domestic
Borrower’s Subsidiaries (other than those Subsidiaries described in clause (i)).
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Domestic Borrower or any ERISA Affiliate is making, or is accruing an obligation
to make, or has accrued an obligation to make, contributions within the preceding six (6) years.
“Net Cash Proceeds” means, as applicable, (a) with respect to any sale or other
disposition of assets, the gross cash proceeds received by the Domestic Borrower or any of its
Subsidiaries from such sale less the sum of (i) all income taxes and other taxes assessed
by a Governmental Authority as a result of such sale and any other fees and expenses incurred in
connection therewith and (ii) the principal amount of, premium, if any, and interest on any Debt
secured by a Lien on the asset (or a portion thereof) sold, which Debt is required to be repaid in
connection with such sale, (b) with respect to any offering of capital stock or issuance of Debt,
the gross cash proceeds received by the Domestic Borrower or any of its Subsidiaries therefrom
less all legal, underwriting and other fees and expenses incurred in connection therewith
and (c) with respect to any payment under an insurance policy or in connection with a condemnation
proceeding, the amount of cash proceeds received by the Domestic Borrower or its Subsidiaries from
an insurance company or Governmental Authority, as applicable, net of all expenses of collection.
“Net Income” means, with respect to the Domestic Borrower and its Subsidiaries, for
any period of determination, the net income (or loss) of the Domestic Borrower and its Subsidiaries
for such period, determined on a Consolidated basis in accordance with GAAP; provided that
there shall be excluded from Net Income (a) the net income (or loss) of any Person (other than a
Subsidiary which shall be subject to clause (c) below), in which the Domestic Borrower or any of
its Subsidiaries has a joint interest with a third party, except to the extent such net income is
actually paid to the Domestic Borrower or any of its Subsidiaries by dividend or other distribution
during such period, (b) the net income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary of such Person or is merged into or consolidated with such Person
14
or any of its Subsidiaries or that Person’s assets are acquired by such Person or any of its
Subsidiaries except to the extent included pursuant to the foregoing clause (a), (c) the net income
(if positive) of any Subsidiary to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary to the Domestic Borrower or any of its Subsidiaries of
such net income (i) is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute rule or governmental regulation applicable
to such Subsidiary or (ii) would be subject to any taxes payable on such dividends or
distributions.
“Net Worth” means, with respect to the Domestic Borrower and its Subsidiaries as of
any date of determination, shareholders’ equity of the Domestic Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP.
“Notes” means the collective reference to the Revolving Credit Notes, the Alternative
Currency Note and the Swingline Note, in each case if applicable, and “Note” means any of such
Notes.
“Notice of Account Designation” shall have the meaning assigned thereto in
Section 2.4(b).
“Notice of Borrowing” shall have the meaning assigned thereto in Section 2.4(a).
“Notice of Conversion/Continuation” shall have the meaning assigned thereto in Section
5.2.
“Notice of Conversion to Acceptances” shall have the meaning assigned thereto in
Section 5.2(b).
“Notice of Prepayment” shall have the meaning assigned thereto in Section 2.6(c).
“Notice to Renew Acceptances” shall have the meaning assigned thereto in Section
5.2(c).
“Obligations” means, in each case, whether now in existence or hereafter arising: (a)
the principal of and interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) the L/C Obligations, (c) the obligations of the Domestic Borrower
pursuant to Article XI, (d) all existing or future payment and other obligations owing by any
Borrower under any Hedging Agreement (which such Hedging Agreement is permitted hereunder) with any
Person that is a Lender hereunder or an Affiliate of a Lender hereunder at the time such Hedging
Agreement is executed (all such obligations with respect to any such Hedging Agreement,
“Hedging Obligations”) and (e) all other fees and commissions (including attorneys’ fees),
charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and
duties owing by the Domestic Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent, in each case under or in respect of this Agreement, any Note, any Letter of
Credit or any of the other Loan Documents of every kind, nature and description, direct or
indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note.
15
“Officer’s Compliance Certificate” shall have the meaning assigned thereto in Section
8.2.
“Operating Lease” shall mean, as to any Person as determined in accordance with GAAP,
any lease of property (whether real, personal or mixed) by such Person as lessee which is not a
Capital Lease.
“Other Taxes” shall have the meaning assigned thereto in Section 5.14(b).
“Participant” shall have the meaning assigned thereto in Section 14.10(c)(i).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is
maintained for employees of the Domestic Borrower or any ERISA Affiliates or (b) has at any time
within the preceding six (6) years been maintained for the employees of the Domestic Borrower or
any of its current or former ERISA Affiliates.
“Permitted Acquisition Value” means the aggregate amount of the purchase price
consisting of cash paid or to be paid, including, without limitation, any earn-outs and deferred
payments (to the extent a fixed and determinable obligation is incurred), and assumed debt, net of
the applicable acquiree’s cash (including cash equivalents) balance as shown on the most recent
financial statements of the acquiree delivered in connection with the applicable permitted
acquisition), as set forth in the applicable stock or asset purchase documents executed by the
Domestic Borrower or any Subsidiary thereof in order to consummate the applicable permitted
acquisition.
“Permitted Currency” means Dollars, any Agreed Currency, or any Alternative Currency,
or each such currency, as the context requires.
“Person” means an individual, corporation, limited liability company, partnership,
association, trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental Authority or any other form of entity or
group thereof.
“Pricing Differential” shall have the meaning assigned thereto in Section 2.5(h).
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase as its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.
“Purchaser” shall have the meaning assigned thereto in Section 14.10(b)(i).
“Qualified Receivables Transaction” means any transaction or series of transactions
that may be entered into by the Domestic Borrower or any Subsidiary pursuant to which the Domestic
Borrower or any Subsidiary may sell, convey or otherwise transfer to a newly-formed
16
Subsidiary or other special-purpose entity, or any other Person, any accounts or notes receivable
and rights related thereto, provided that all of the terms and conditions of such transaction or
series of transactions, including without limitation the amount and type of any recourse to the
Domestic Borrower or any Subsidiary with respect to the assets transferred, are reasonably
acceptable to the Administrative Agent.
“Quoted Swingline Rate” means a rate to be agreed upon from time to time by the
Swingline Lender and the Domestic Borrower.
“Quoted Swingline Rate Loan” means any Swingline Loan bearing interest at a rate
based upon the Quoted Swingline Rate as provided in Section 5.1(a).
“Receivables Transaction Attributed Indebtedness” means the amount of obligations
outstanding under the legal documents entered into as part of any Qualified Receivables Transaction
on any date of determination that would be characterized as principal if such Qualified Receivables
Transaction were structured as a secured lending transaction rather than as a purchase.
“Register” shall have the meaning assigned thereto in Section 15.10(b)(iv).
“Reimbursement Obligation” means the obligation of the Domestic Borrower to reimburse
the Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.
“Replaced Lender” shall have the meaning assigned thereto in Section 5.15(c).
“Replacement Lender” shall have the meaning assigned thereto in Section 5.15(c).
“Required Lenders” means, at any date, (a) any combination of Lenders holding in the
aggregate at least fifty-one percent (51%) of the outstanding Extensions of Credit plus the
aggregate unused Revolving Credit Commitment at such time or, (b) if the Credit Facility has been
terminated pursuant to Section 13.2, any combination of Lenders holding at least fifty-one percent
(51%) of the aggregate Extensions of Credit.
“Reserves” means the maximum reserve requirement, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) with respect to “Eurocurrency
liabilities” or in respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurocurrency Rate Loans is determined or category of
extensions of credit or other assets which includes loans by a non-United States office of any
Lender to United States residents.
“Responsible Officer” means any of the following: the chief executive officer or chief
financial officer of the Domestic Borrower or any other officer of the Domestic Borrower reasonably
acceptable to the Administrative Agent.
“Revolving Credit Commitment” means (a) as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Domestic Borrower (including, without limitation, to
participate in Swingline Loans made to the Domestic Borrower and Alternative Currency Loans made to
the Borrowers) and issue or participate in Letters of Credit issued for
17
the account of the Domestic Borrower hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule
1.1(a) hereto as such amount may be increased, reduced or modified at any time or from time to
time pursuant to the terms hereof and (b) as to all Lenders, the aggregate commitment of all
Lenders to make Revolving Credit Loans, as such amount may be reduced at any time or from time to
time pursuant to the terms hereof. The Revolving Credit Commitment of all Lenders on the Closing
Date shall be Three Hundred Twenty-Five Million Dollars ($325,000,000).
“Revolving Credit Commitment Percentage” means, as to any Lender at any time, the
ratio of (a) the amount of the Revolving Credit Commitment of such Lender to (b) the Revolving
Credit Commitments of all Lenders.
“Revolving Credit Facility” means the revolving credit, alternative currency and
swingline facility established pursuant to Article II.
“Revolving Credit Loans” means any revolving credit loan denominated in an Agreed
Currency made to any Borrower pursuant to Section 2.1, and all such revolving credit loans
collectively as the context requires.
“Revolving Credit Maturity Date” means the earliest of the dates referred to in
Section 2.8.
“Revolving Credit Note” means a Revolving Credit Note made by the Domestic Borrower
payable to the order of a Lender, substantially in the form of Exhibit A-1 hereto,
evidencing such Lender’s Revolving Credit Loans, and any amendments, supplements and modifications
thereto, any substitutes therefor, and any replacements, restatements, renewals or extensions
thereof, in whole or in part; “Revolving Credit Notes” means the collective reference to all such
Revolving Credit Notes.
“Senior Debt” means the sum of Total Debt minus Subordinated Debt.
“Solvent” means, as to the Domestic Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and is able to pay its debts as they
mature, (b) owns property having a value, both at fair valuation and at present fair saleable
value, greater than the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature.
“Subordinated Debt” means the collective reference to any Debt of the Domestic
Borrower or any of its Subsidiaries subordinated in right and time of payment to the Obligations
and containing such other terms and conditions, in each case as are reasonably satisfactory to the
Required Lenders.
“Subsidiary” means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than fifty percent (50%) of the outstanding capital stock or
other ownership interests having ordinary voting power to elect a majority of the board of
directors or other managers of such corporation, partnership, limited liability company or other
18
entity is at the time owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership interests of any other
class or classes of such corporation, partnership, limited liability company or other entity shall
have or might have voting power by reason of the happening of any contingency). Unless otherwise
qualified references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Domestic
Borrower and shall include, without limitation, the Canadian Borrower and its Subsidiaries.
“Subsidiary Guaranty Agreements” means, collectively, the Domestic Subsidiary Guaranty
Agreement and the Canadian Subsidiary Guaranty Agreement; “Subsidiary Guaranty Agreement” means any
of such Subsidiary Guaranty Agreements.
“Swingline Commitment” means the lesser of (a) Twenty-Five Million Dollars
($25,000,000) and (b) the Revolving Credit Commitment.
“Swingline Facility” means the swingline facility established pursuant to Section
2.3.
“Swingline Lender” means JPMorgan in its capacity as swingline lender hereunder.
“Swingline Loan” means any swingline loan made by the Swingline Lender to the
Domestic Borrower pursuant to Section 2.3, and all such swingline loans collectively as the
context requires.
“Swingline Note” means the Swingline Note made by the Domestic Borrower payable to the
order of the Swingline Lender, substantially in the form of Exhibit A-2 hereto, evidencing
the Swingline Loans, and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extensions thereof, in whole or in part.
“Swingline Termination Date” means the first to occur of (a) the resignation of
JPMorgan as Administrative Agent in accordance with Section 14.12 and (b) the Revolving Credit
Maturity Date.
“Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in
accordance with GAAP.
“Taxes” shall have the meaning assigned thereto in Section 5.14(a).
“Termination Event” means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect: (a) a “Reportable Event” described in
Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, or (b) the
withdrawal of the Domestic Borrower or any ERISA Affiliate from a Pension Plan during a plan year
in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, if the plan
assets are not sufficient to pay all plan liabilities under Section 4063 of ERISA, (c) the
termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan
assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e)
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any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302 of ERISA, or (g) the
partial or complete withdrawal of the Domestic Borrower of any ERISA Affiliate from a Multiemployer
Plan if withdrawal liability is asserted by such plan, or (h) any event or condition which results
in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA,
or (i) any event or condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA.
“Total Debt” means, as of any date of determination with respect to the Domestic
Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of all Debt of
the Domestic Borrower and its Subsidiaries.
“Uniform Customs” means the Uniform Customs and Practice for Documentary Credits (1993
Revision), effective January, 1994 International Chamber of Commerce Publication No. 500.
“UCC” means the Uniform Commercial Code as in effect in the State of New York, as amended or
modified from time to time.
“United States” means the United States of America.
“Wholly-Owned” means, with respect to a Subsidiary, that all of the shares of capital
stock or other ownership interests of such Subsidiary are, directly or indirectly, owned or
controlled by the Domestic Borrower and/or one or more of its Wholly-Owned Subsidiaries (except for
directors’ qualifying shares or other shares required by Applicable Law to be owned by a Person
other than the Domestic Borrower).
SECTION 1.2 General. Unless otherwise specified, a reference in this Agreement to a
particular article, section, subsection, Schedule or Exhibit is a reference to that article,
section, subsection, Schedule or Exhibit of this Agreement Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to “Chicago time” shall refer to the
applicable time of day in Chicago, Illinois.
SECTION 1.3 Other Definitions and Provisions Use of Capitalized Terms. Unless
otherwise defined therein, all capitalized terms defined in this Agreement shall have the defined
meanings when used in this Agreement, the Notes and the other Loan Documents or any certificate,
report or other document made or delivered pursuant to this Agreement.
(b) Miscellaneous. The words “hereof, “herein” and “hereunder” and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
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ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth herein, each Lender
severally agrees to make Revolving Credit Loans in Agreed Currencies to the Domestic Borrower from
time to time from the Closing Date through, but not including, the Revolving Credit Maturity Date
as requested by the Domestic Borrower in accordance with the terms of Section 2.4; provided
that based upon the Dollar Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C
Obligations and Canadian Outstandings, (a) the aggregate principal amount of all outstanding
Revolving Credit Loans (after giving effect to any amount requested) shall not exceed the Revolving
Credit Commitment less the sum of all outstanding Swingline Loans, L/C Obligations and
Canadian Outstandings, (b) the aggregate principal amount of all outstanding Revolving Credit Loans
from any Lender to the Domestic Borrower shall not at any time exceed such Lender’s Revolving
Credit Commitment less such Lender’s Revolving Credit Commitment Percentage of the sum of
all outstanding Swingline Loans, L/C Obligations and the Canadian Outstandings, and (c) the
aggregate principal Dollar Amount of all Revolving Credit Loans in Agreed Currencies other than
Dollars shall not exceed $25,000,000 at any time; provided further that Revolving
Credit Loans may be made to the Canadian Borrower as required, and only as required, by Sections
2.2, 2.5, 3.5 and 5.11. Each Revolving Credit Loan by a Lender shall be in a principal amount equal
to such Lender’s Revolving Credit Commitment Percentage of the aggregate principal amount of
Revolving Credit Loans requested on such occasion. Subject to the terms and conditions hereof, the
Domestic Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder until the
Revolving Credit Maturity Date.
SECTION 2.2 Alternative Currency Loans.
(a) Availability. Subject to the terms and conditions of this Agreement, and in
reliance upon the representations and warranties set forth herein, the Alternative Currency Lender
agrees to make Alternative Currency Loans to the applicable Borrower from time to time from the
Closing Date through the Revolving Credit Maturity Date as requested by the applicable Borrower in
accordance with the terms of Section 2.4; provided that, based upon the Dollar Amount of
all outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian Outstandings,
the aggregate principal amount of all Canadian Outstandings (after giving effect to any amount
requested) shall not exceed the lesser of (i) the Revolving Credit Commitment less the sum
of the aggregate principal amount of all outstanding Revolving Credit Loans less the sum of
the aggregate principal amount of all outstanding Swingline Loans less the sum of the
aggregate principal amount of all outstanding L/C Obligations and (ii) the Alternative Currency
Commitment. Subject to the terms and conditions hereof, the Borrowers may borrow, repay and
reborrow Alternative Currency Loans hereunder until the Revolving Credit Maturity Date.
(b) Refunding of Alternative Currency Loans.
(i) Upon the occurrence and during the continuance of an Event of Default, each Alternative
Currency Loan may, at the discretion of the Alternative Currency Lender, be
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converted immediately to a Base Rate Loan funded in Dollars by the Lenders in an amount equal to
the Dollar Amount of such Alternative Currency Loan; provided that the Borrowers shall pay
to the Alternative Currency Lender any and all costs, fees and other expenses incurred by the
Alternative Currency Lender in effecting such conversion. Such Base Rate Loan shall thereafter be
reflected as a Revolving Credit Loan of the Lenders on the books and records of the Administrative
Agent. Each Lender shall fund its respective Revolving Credit Commitment Percentage of such Base
Rate Loan as required to repay Alternative Currency Loans outstanding to the Alternative Currency
Lender upon such demand by the Alternative Currency Lender in no event later than 2:00 p.m.
(Chicago time) on the next succeeding Business Day after such demand is made. No Lender’s
obligation to fund its respective Revolving Credit Commitment Percentage of any Base Rate Loan
required to repay such Alternative Currency Loan shall be affected by any other Lender’s failure to
fund its Revolving Credit Commitment Percentage of such Base Rate Loan, nor shall any Lender’s
Revolving Credit Commitment Percentage be increased as a result of any such failure of any other
Lender to fund its Revolving Credit Commitment Percentage of such Base Rate Loan.
(ii) The Borrowers shall pay to the Alternative Currency Lender, for the account of the
Alternative Currency Lender, on demand the amount of such Alternative Currency Loans to the extent
that the Lenders fail to refund in full the outstanding Alternative Currency Loans requested or
required to be refunded. In addition, the Borrowers hereby authorize the Administrative Agent to
charge any account maintained by any Borrower with the Alternative Currency Lender (up to the
amount available therein) in order to immediately pay the Alternative Currency Lender the amount of
such Alternative Currency Loans to the extent amounts received from the Lenders are not sufficient
to repay in full the outstanding Alternative Currency Loans requested or required to be refunded.
If any portion of any such amount paid to the Alternative Currency Lender shall be recovered by or
on behalf of the Borrowers from the Alternative Currency Lender in bankruptcy or otherwise, the
loss of the amount so recovered shall be ratably shared among all the Lenders in accordance with
their respective Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to refund Alternative
Currency Loans in accordance with the terms of this Section 2.2 is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without limitation,
non-satisfaction of the conditions set forth in Article VI; provided, that if prior to the
refunding of any outstanding Alternative Currency Loans pursuant to this Section 2.2, one of the
events described in Section 13.1(j) or (k) shall have occurred, each Lender will, on the date the
applicable Revolving Credit Loan would have been made to refund such Alternative Currency Loans,
purchase an undivided participating interest in such Alternative Currency Loans in an amount equal
to its Revolving Credit Commitment Percentage of the aggregate amount of such Alternative Currency
Loans. Each Lender will immediately transfer to the Administrative Agent, for the account of the
Alternative Currency Lender, in immediately available funds in Dollars, the amount of its
participation. Whenever, at any time after the Alternative Currency Lender has received from any
Lender such Lender’s participating interest in the refunded Alternative Currency Loans, the
Alternative Currency Lender receives any payment on account thereof, the Alternative Currency
Lender will distribute to such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during which such
Lender’s participating interest was outstanding and funded).
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(iv) In the event that any Lender fails to make payment to the Alternative Currency Lender
of any amount due under this Section 2.2, the Administrative Agent, on behalf of the Alternative
Currency Lender, shall be entitled to receive, retain and apply against such obligation the
principal and interest otherwise payable to such Lender hereunder until the Alternative Currency
Lender receives such payment from such Lender or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Lender fails to make payment to the Alternative
Currency Lender of any amount due under this Section 2.2, such Lender shall be deemed, at the
option of the Administrative Agent, to have unconditionally and irrevocably purchased from the
Alternative Currency Lender, without recourse or warranty, an undivided interest and participation
in the applicable Alternative Currency Loan, and such interest and participation may be recovered
from such Lender together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on the date such amount is received.
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement, the Swingline
Lender agrees to make Swingline Loans to the Domestic Borrower from time to time from the Closing
Date through, but not including, the Swingline Termination Date; provided that (i) all
Swingline Loans shall be denominated in Dollars and (ii) based upon the Dollar Amount of all
outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian Outstandings, the
aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount
requested), shall not exceed the lesser of (A) the Revolving Credit Commitment less the sum
of all outstanding Revolving Credit Loans, L/C Obligations and Canadian Outstandings and (B) the
Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand by the Swingline Lender.
Such refundings shall be made by the Lenders in accordance with their respective Revolving Credit
Commitment Percentages and shall thereafter be reflected as Revolving Credit Loans of the Lenders
on the books and records of the Administrative Agent. Each Lender shall fund its respective
Revolving Credit Commitment Percentage of Revolving Credit Loans as required to repay Swingline
Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later
than 12:00 noon (Chicago time) on the day such demand is made. No Lender’s obligation to fund its
respective Revolving Credit Commitment Percentage of a Swingline Loan shall be affected by any
other Lender’s failure to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor
shall any Lender’s Revolving Credit Commitment Percentage be increased as a result of any such
failure of any other Lender to fund its Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Domestic Borrower shall pay to the Swingline Lender on demand, but in any case,
before the seventh (7th) Business Day after the date such Swingline Loan was made, the
amount of such Swingline Loans to the extent amounts received from the Lenders are not sufficient
to repay in full the outstanding Swingline Loans requested or required to be refunded. In addition,
the Domestic Borrower hereby authorizes the Administrative Agent to charge any account maintained
by the Domestic Borrower with the Swingline Lender (up to the amount
23
available therein) in order to immediately pay the Swingline Lender the amount of such Swingline
Loans to the extent amounts received from the Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount
paid to the Swingline Lender shall be recovered by or on behalf of the Domestic Borrower from the
Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Domestic Borrower pertain to a
Swingline Loan extended after the occurrence and during the continuance of an Event of Default of
which the Administrative Agent has received notice in the manner required pursuant to Section 14.9
and which such Event of Default has not been waived by the Required Lenders or the Lenders, as
applicable).
(iii) Each Lender acknowledges and agrees that its obligation to refund Swingline Loans in
accordance with the terms of this Section 2.3 is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the
conditions set forth in Article VI. Further, each Lender agrees and acknowledges that if prior to
the refunding of any outstanding Swingline Loans pursuant to this Section 2.3, one of the events
described in Section 13.1(j) or (k) shall have occurred, each Lender will, on the date the
applicable Revolving Credit Loan would have been made, purchase an undivided participating interest
in the Swingline Loan to be refunded in an amount equal to its Revolving Credit Commitment
Percentage of the aggregate amount of such Swingline Loan. Each Lender will immediately transfer to
the Swingline Lender, in immediately available funds, the amount of its participation. Whenever, at
any time after the Swingline Lender has received from any Lender such Lender’s participating
interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such Lender’s participating interest was outstanding and funded).
(iv) In the event that any Lender fails to make payment to the Swingline Lender of any
amount due under this Section 2.3, the Administrative Agent, on behalf of the Swingline Lender,
shall be entitled to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Swingline Lender receives such payment from
such Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Swingline Lender of any amount due under this
Section 2.3, such Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swingline Lender, without recourse or warranty,
an undivided interest and participation in the applicable Swingline Loan, and such interest and
participation may be recovered from such Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of demand and ending on the
date such amount is received.
SECTION 2.4 Procedure for Advances of Revolving Credit Loans, Alternative Currency Loans
and Swingline Loans.
(a) Requests for Borrowing. The Domestic Borrower, on behalf of itself or the
Canadian Borrower, as applicable, shall give the Administrative Agent irrevocable prior written
24
notice in
the form attached hereto as Exhibit B (a “Notice
of Borrowing”) not later
than (i) 10:00 a.m. (Chicago time) on the same Business Day as each Base Rate Loan (other than
Swingline Loans) and each Quoted Swingline Rate Loan, (ii) 12:00 noon (Chicago time) on the same
Business Day as each Swingline Loan (other than Quoted Swingline Rate Loans), (iii) 10:00 a.m.
(Chicago time) at least three (3) Business Days before each Eurocurrency Rate Loan, (iv) 12:00 noon
(the time of the Administrative Agent’s Correspondent) at least three (3) Canadian Business Days
before each Canadian BA Borrowing, of its intention to borrow, and (v) 11:00 a.m. (the time of the
Administrative Agent’s Correspondent) on the same Canadian Business Day as each Canadian Base Rate
Loan, of its intention to borrow, specifying:
(A) the date of such borrowing, which shall be (1) a Business Day for Revolving Credit Loans
and Swingline Loans or (2) a Canadian Business Day for Alternative Currency Loans,
(B) whether such Loan is to be a Revolving Credit Loan, an Alternative Currency Loan or
a Swingline Loan,
(C) if such Loan is a Revolving Credit Loan, whether such Revolving Credit Loan shall be a
Eurocurrency Rate Loan or a Base Rate Loan, and the Agreed Currency for such Loan,
(D) if such Loan is a Swingline Loan, whether such Swingline Loan shall be a Quoted Swingline
Rate Loan or a Base Rate Loan,
(E) if such Loan is an Alternative Currency Loan, whether such Alternative
Currency Loan shall be a Canadian Base Rate Loan or a Canadian BA Borrowing,
(F) the amount of such borrowing, which shall be in an amount equal to the
amount of the Revolving Credit Commitment or the Alternative Currency Commitment, as
applicable, then available to the applicable Borrower, or if less, (1) with respect to Base
Rate Loans (other than Swingline Loans), in an aggregate principal amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof, (2) with respect to Eurocurrency Rate Loans, in an
aggregate principal Dollar Amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof, (3) with respect to Canadian Base Rate Loans, in an aggregate principal amount of
C$500,000 or a whole multiple of C$100,000 in excess thereof, (4) with respect to Canadian BA
Borrowings, in an aggregate principal amount of C$1,500,000 or a whole multiple of C$500,000
in excess thereof and (5) with respect to Swingline Loans, in an aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof,
(G) in the case of a Eurocurrency Rate Loan, the duration of the Interest
Period applicable thereto, and
(H) in the case of a Canadian BA Borrowing, the date and amount of Acceptances
and the Canadian Interest Period applicable thereto.
A Notice of Borrowing received after the times set forth above for such Revolving Credit Loan,
Alternative Currency Loan or Swingline Loan shall be deemed received on the next Business Day or
Canadian Business Day, as applicable. The Administrative Agent shall promptly notify
25
the Lenders of each Notice of Borrowing. The applicable Borrower shall deliver a copy of each
Notice of Borrowing in respect of an Alternative Currency Loan to the Alternative Currency Lender
at the same time such Notice of Borrowing is delivered to the Administrative Agent.
(b) Disbursement of Revolving Credit Loans and Swingline Loans. (i) Not later than
12:00 noon (Chicago time) on the proposed borrowing date for any Revolving Credit Loan, each Lender
will make available to the Administrative Agent, for the account of the Domestic Borrower, at the
office of the Administrative Agent in Dollars in funds immediately available to the Administrative
Agent, such Lender’s Revolving Credit Commitment Percentage of the Revolving Credit Loan to be made
on such borrowing date and (ii) not later than 2:00 p.m. (Chicago time) on the proposed borrowing
date for any Swingline Loan, the Swingline Lender will make available to the Administrative Agent,
for the account of the Domestic Borrower, at the office of the Administrative Agent in Dollars in
funds immediately available to the Administrative Agent, the Swingline Loan to be made on such
borrowing date. The Domestic Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this Section 2.4 in immediately
available funds by crediting such proceeds to the deposit account of the Domestic Borrower at the
Administrative Agent identified in the most recent notice substantially in the form of Exhibit
C hereto (a “Notice of Account Designation”) delivered by the Domestic Borrower, on
behalf of itself and the Canadian Borrower, to the Administrative Agent or as may be otherwise
agreed upon by the Domestic Borrower and the Administrative Agent from time to time. Subject to
Section 5.8, the Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.4 to the extent that any
Lender has not made available to the Administrative Agent its Revolving Credit Commitment
Percentage of such Revolving Credit Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section 2.3(b). Revolving
Credit Loans to be made for the purpose of refunding Alternative Currency Loans shall be made by
the Lenders as provided in Section 2.2(b).
(c) Disbursement of Alternative Currency Loans.
(i) Canadian Base Rate Loans. Not later than 12:00 noon (the time of the
Administrative Agent’s Correspondent) on or before the proposed borrowing date for
any Canadian Base Rate Loan, the Alternative Currency Lender will make available to
the Administrative Agent, for the account of the applicable Borrower, at the office
of the Administrative Agent’s Correspondent in the requested Alternative Currency
in funds immediately available to the Administrative Agent, the Canadian Base Rate
Loan to be made on such borrowing date. The Borrowers hereby irrevocably authorize
the Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.4 in immediately available funds by crediting such
proceeds to the deposit account of the applicable Borrower at the Administrative
Agent’s Correspondent identified in the most recent Notice of Account Designation
delivered by the Domestic Borrower, on behalf of itself the Canadian Borrower, to
the Administrative Agent or as may be otherwise agreed upon by the Borrowers and
the Administrative Agent from time to time.
26
(ii) Canadian BA Borrowings. Canadian BA Borrowings shall be made
pursuant to the terms of Section 2.5.
SECTION 2.5 Bankers’ Acceptances. Subject to the terms and conditions of this
Agreement (including, without limitation, Section 2.2), Acceptances shall be created, purchased
and repaid in accordance with the following:
(a) Drafts. To enable the Alternative Currency Lender to extend Canadian BA Borrowings
in the manner specified in this Section 2.5, the Domestic Borrower, on behalf of itself or the
Canadian Borrower, as applicable, shall supply the Alternative Currency Lender with such number of
Drafts as the Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable, may
reasonably request, duly endorsed and executed by the Domestic Borrower, on behalf of itself or the
Canadian Borrower, as applicable, by any one or more of its officers. The Alternative Currency
Lender shall exercise such care in the custody and safekeeping of Drafts as it would exercise in
the custody and safekeeping of similar property owned by it. The Alternative Currency Lender, upon
request of the Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable, will
promptly advise the Domestic Borrower of the number and designations, if any, of the uncompleted
Drafts then held by it. The signatures of such officers may be mechanically reproduced in facsimile
and Drafts and Acceptances bearing such facsimile signatures shall be binding upon the Domestic
Borrower or the Canadian Borrower, as applicable, as if they had been manually signed by such
officers. Notwithstanding that any of the individuals whose manual or facsimile signatures appear
on any draft as one of such officers may no longer hold office as of the date thereof or as of the
date of acceptance of a Draft by the Alternative Currency Lender or at any time hereafter, any
Draft so signed shall be valid and binding on the Domestic Borrower or the Canadian Borrower, as
applicable.
(b) Form of Drafts. Drafts tendered by the Domestic Borrower, on behalf of itself or
the Canadian Borrower, as applicable, for acceptance by the Alternative Currency Lender shall be in
the form provided by the Alternative Currency Lender to the Domestic Borrower or the Canadian
Borrower, as applicable, and shall (i) be dated the date of the Canadian BA Borrowing and (ii)
mature and be payable by the Domestic Borrower or the Canadian Borrower, as applicable, on the last
day of the Canadian Interest Period designated by the Domestic Borrower, on behalf of itself or the
Canadian Borrower, as applicable, with respect to such Drafts. The Domestic Borrower and the
Canadian Borrower hereby renounce, and shall not claim, any days of grace for payment of any
Acceptances.
(c) Procedures on Borrowing Date. Not later than 12:00 noon (the time of the
Administrative Agent’s Correspondent) on the Canadian Business Day on which any Canadian BA
Borrowing is to be made, the Alternative Currency Lender shall (i) complete one or more Drafts
dated as of such date, in an aggregate amount of the requested Canadian BA Borrowing, (ii) stamp
such Drafts as accepted by the Alternative Currency Lender and (iii) provide for the discounting of
such Acceptances in accordance with this Section 2.5.
(d) Acceptance Fee. On the proposed date on which any Canadian BA Borrowing is to be
made, the Domestic Borrower or the Canadian Borrower, as applicable, shall pay to the Alternative
Currency Lender, for its own account, a stamping fee computed at an annual rate on the basis of (i)
the Applicable Margin times (ii) the face amount of the Draft being accepted and
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(iii) the term thereof (the “Acceptance Fee”); provided, however, that
if an Event of Default has occurred and is continuing, (x) with respect to currently outstanding
Acceptances, the Domestic Borrower or the Canadian Borrower, as applicable, shall pay to the
Alternative Currency Lender, for its own account, an additional stamping fee for the unexpired term
of such Acceptances computed at a rate of two percent (2%) per annum of the face amount of such
Acceptances and (y) with respect to new Acceptances created thereafter, the Acceptance Fee shall be
increased by two percent (2%).
(e) BA Purchase Price. On the proposed date on which any Canadian BA Borrowing is to
be made, the Alternative Currency Lender shall deliver to the Administrative Agent the applicable
BA Purchase Price for the Acceptances created in accordance with notices received from the
Administrative Agent under Section 2.4 or Section 5.2. Acceptances purchased by the Alternative
Currency Lender may be held by it for its own account until maturity or sold by it at any time
prior thereto in any relevant market, in the Alternative Currency Lender’s sole discretion.
(f) Maturity Date for Acceptances. The Domestic Borrower or the Canadian Borrower, as
applicable, shall pay to the Administrative Agent, and there shall become due and payable, at 12:00
noon (the time of the Administrative Agent’s Correspondent), on the maturity date of each
Acceptance, an amount in Canadian Dollars in immediately available funds equal to the face amount
of such Acceptance so maturing. The Domestic Borrower or the Canadian Borrower, as applicable,
shall make each payment of a maturing Acceptance by deposit of the required funds to the
Administrative Agent or by requesting the Administrative Agent to debit the demand deposit account
of the Domestic Borrower or the Canadian Borrower, as applicable, for the amount of such funds. If
the Domestic Borrower or the Canadian Borrower, as applicable, fails to pay the face amount of any
Acceptance when and as the same shall become due, or cause the creation and discounting of new
Acceptances pursuant to Section 5.2, the unpaid amount thereof shall automatically be converted to
a Canadian Base Rate Loan in accordance with Section 5.2, with the proceeds of such Canadian Base
Rate Loan being used to pay in full each maturing Acceptance.
(g) Setting and Notice of BA Purchase Price. The applicable BA Purchase Price for each
Canadian Interest Period shall be determined by the Administrative Agent between the opening of
business and 12:00 noon (the time of the Administrative Agent’s Correspondent) on the first
Canadian Business Day of such Canadian Interest Period, whereupon notice thereof (which may be by
telephone) shall be given by the Administrative Agent to the Domestic Borrower or the Canadian
Borrower, as applicable, and to the Alternative Currency Lender. Each such determination of the
applicable BA Purchase Price shall be conclusive and binding upon the parties hereto, in the
absence of manifest error. The Administrative Agent, upon written request of the Domestic Borrower,
on behalf itself or the Canadian Borrower, as applicable, or the Alternative Currency Lender, shall
deliver to the Domestic Borrower or the Canadian Borrower, as applicable, or the Alternative
Currency Lender a statement showing the computations used by the Administrative Agent in
determining the applicable BA Purchase Price hereunder.
(h) Restrictions on Conversion From Acceptances to Canadian Base Rate Loans. If
at any time the annual interest rate which would be applicable to a Canadian Base Rate Loan is
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less than the annual effective interest rate on Acceptances (determined by applying the applicable
Discount and Acceptance Fees to a Canadian BA Borrowing) (herein the “Pricing
Differential”), the Administrative Agent, in its discretion, by notice in writing to the
Domestic Borrower, on behalf of itself or the Canadian Borrower, as applicable, may require, and if
the Pricing Differential equals or exceeds one percent (1%), the Administrative Agent shall
require, that the Domestic Borrower or the Canadian Borrower, as applicable, cause all or a portion
of maturing Acceptances to be replaced with new Acceptances created and discounted in accordance
with this Section 2.5.
SECTION 2.6 Repayment of Loans.
(a) Repayment on the Revolving Credit Maturity Date. The (1) Domestic Borrower and (2)
Canadian Borrower solely with respect to the items covered by clause (ii), shall repay the
outstanding principal amount of (i) all Revolving Credit Loans in full in the applicable Agreed
Currencies on the Revolving Credit Maturity Date, (ii) all Alternative Currency Loans in full in
the Alternative Currency in which each Alternative Currency Loan was initially funded on the
Revolving Credit Maturity Date and (iii) all Swingline Loans in accordance with Section 2.3(b) or,
if earlier, on the Revolving Credit Maturity Date, together, in each case, with all accrued but
unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans.
(i) Revolving Credit Commitment. If at any time (as determined by the
Administrative Agent under Section 2.6(b)(v)), based upon the Dollar Amount of all outstanding
Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian Outstandings, for any reason,
the outstanding principal amount of all Revolving Credit Loans exceeds the Revolving Credit
Commitment less the sum of all outstanding Swingline Loans, L/C Obligations and Canadian
Outstandings, or the aggregate Dollar Amount of Revolving Credit Loans in Agreed Currencies other
than Dollars exceeds $25,000,000, then, in each such case, the Borrowers shall (A) first
with respect to the Domestic Borrower, if (and to the extent) necessary to eliminate such excess,
immediately repay outstanding Swingline Loans (and/or reduce any pending request for Swingline
Loans on such day by the Dollar Amount of such excess), (B) second, with respect to the
Domestic Borrower, if (and to the extent) necessary to eliminate such excess, immediately repay
outstanding Revolving Credit Loans which are Base Rate Loans by the amount of such excess (and/or
reduce any pending request for Revolving Credit Loans on such day by the amount of such excess),
(C) third, with respect to any Borrower, if (and to the extent) necessary to eliminate such
excess, immediately repay Revolving Credit Loans which are Eurocurrency Rate Loans and Alternative
Currency Loans (and/or reduce any pending requests for a borrowing or continuation or conversion of
Revolving Credit Loans or Alternative Currency Loans submitted in respect of Revolving Credit Loans
or Alternative Currency Loans on such day by the Dollar Amount of such excess) and (D)
fourth, with respect to any Letters of Credit then outstanding, make a payment of cash
collateral into a cash collateral account opened by the Administrative Agent, for the benefit of
the Administrative Agent and the Lenders, in an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (such cash collateral to be applied in accordance with
Section 13.2(b)).
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(ii) Alternative Currency Commitment. If at any time (as determined by the
Administrative Agent under Section 2.6(b)(v)), based upon the Dollar Amount of all outstanding
Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian Outstandings, and for any
reason, the outstanding principal amount of all Canadian Outstandings exceeds the lesser of (A) the
Revolving Credit Commitment less the sum of all outstanding Revolving Credit Loans,
Swingline Loans and L/C Obligations and (B) the Alternative Currency Commitment, then, in each such
case, such excess shall be immediately repaid, in the Alternative Currency in which such
Alternative Currency Loan or Alternative Currency Loans were initially funded, by the Borrowers to
the Administrative Agent for the account of the Lenders.
(iii) Swingline Commitment. If at any time (as determined by the Administrative
Agent under Section 2.6(b)(v)), based upon the Dollar Amount of all outstanding Revolving Credit
Loans, Swingline Loans, L/C Obligations and Canadian Outstandings, and for any reason, the
outstanding principal amount of all Swingline Loans exceeds the lesser of (A) the Revolving Credit
Commitment less the sum of all outstanding Revolving Credit Loans, L/C Obligations and
Canadian Outstandings and (B) the Swingline Commitment, then, in each such case, such excess shall
be immediately repaid by the Domestic Borrower to the Administrative Agent for the account of the
Lenders.
(iv) Excess L/C Obligations. If at any time (as determined by the
Administrative Agent under Section 2.6(b)(v)), and for any reason, the outstanding amount of all
L/C Obligations exceeds the lesser of (A) the Revolving Credit Commitment less the sum of
the Dollar Amount of all outstanding Revolving Credit Loans, Swingline Loans and Canadian
Outstandings and (B) the L/C Commitment, then, in each such case, the Domestic Borrower shall make
a payment of cash collateral into a cash collateral account opened by the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders, in an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit (such cash collateral to be applied in
accordance with Section 13.2(b)).
(v) Compliance and Payments. The Borrowers’ compliance with this Section 2.6(b)
shall be tested from time to time by the Administrative Agent at its sole discretion, but in any
event shall be tested on (A) the date on which any Borrower requests that the applicable Lenders
make a Revolving Credit Loan, Alternative Currency Loan or Swingline Loan or the Issuing Lender
issue a Letter of Credit under Section 6.3 and (B) the date an interest payment is due under
Section 5.1(e). Each such repayment pursuant to this Section 2.6(b) shall be accompanied by any
amount required to be paid pursuant to Section 5.12.
(c) Optional Repayments. The Borrowers may at any time and from time to time
repay the Revolving Credit Loans, Swingline Loans and Alternative Currency Loans, in whole or in
part, (i) upon at least three (3) Business Days’ irrevocable notice to the Administrative Agent
with respect to Alternative Currency Loans, other than Canadian Base Rate Loans, which shall only
require notice by 11:00 a.m. (the time of the Administrative Agent’s Correspondent) on the Canadian
Business Day on which such payment is to be made, (ii) upon at least three (3) Business Days’
irrevocable notice to the Administrative Agent with respect to Eurocurrency Rate Loans, (iii) upon
one (1) Business Day irrevocable notice with respect to Base Rate Loans (other than Swingline
Loans) and Quoted Swingline Rate Loans, and (iv) by 11:00 a.m. (Chicago time) on the same Business
Day irrevocable notice with respect to Swingline Loans (other than Quoted
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Swingline Rate Loans), in the form attached hereto as Exhibit D (a “Notice of
Prepayment”), specifying (A) the date of repayment, (B) the amount and currency of repayment,
(C) whether the repayment is of Revolving Credit Loans, Swingline Loans, Alternative Currency
Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each and
(D) whether the repayment is of Eurocurrency Rate Loans, Base Rate Loans, Quoted Swingline Loans,
Canadian Base Rate Loans, Canadian BA Borrowings or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments shall be in an
aggregate amount of (i) $3,000,000 or a whole multiple of $1,000,000 in excess thereof with respect
to Base Rate Loans (other than Swingline Loans), (ii) $3,000,000 or a whole multiple of $1,000,000
in excess thereof with respect to Eurocurrency Rate Loans, (iii) $1,000,000 or a whole multiple of
$100,000 in excess thereof with respect to Swingline Loans, (iv) C$500,000 or a whole multiple of
C$100,000 in excess thereof with respect to Canadian Base Rate Loans and (v) C$1,500,000 or a whole
multiple of C$500,000 in excess thereof with respect to Canadian BA Borrowings. Each such repayment
shall be accompanied by any amount required to be paid pursuant to Section 5.12. The applicable
Borrower shall deliver a copy of each notice under this Section 2.6(c) in respect of Alternative
Currency Loans to the Alternative Currency Lender at the same time such notice is delivered to the
Administrative Agent.
(d) Agreed Currency or Alternative Currency Unavailable. Notwithstanding anything to
the contrary set forth in this Agreement, if, after the making of any Loan or issuance of any
Letter of Credit in any currency other than Dollars, currency control or exchange regulations are
imposed in the country which issues such Agreed Currency or Alternative Currency, as applicable,
with the result that different types of such Agreed Currency or Alternative Currency, as applicable
(the “New Currency”), are introduced and the type of currency in which the Loan was made (the
“Original Currency”) no longer exists or the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders or the Alternative Currency Lender, as
applicable, in such Original Currency, then all payments to be made by the Borrowers hereunder in
such currency shall be made to the Administrative Agent or Alternative Currency Lender, as
applicable, in such amount and such type of the New Currency or Dollars as shall be equivalent to
the amount of such payment otherwise due hereunder in the Original Currency, it being the intention
of the parties hereto that the Borrowers take all risks of the imposition of any such currency
control or exchange regulations. In addition, notwithstanding the foregoing provisions of this
Section, if, after the making of any Loan or issuance of any Letter of Credit in any currency other
than Dollars, any applicable Borrower is not able to make payment to the Administrative Agent for
the account of the Lenders or the applicable Alternative Currency Lender in the type of currency in
which such Loan or Letter of Credit was made because of the imposition of any such currency control
or exchange regulation, then such Loan or Letter of Credit shall instead be repaid when due in
Dollars in a principal amount equal to the Dollar Amount (as of the date of repayment) of such Loan
or Letter of Credit.
(e) Limitation on Repayment of Eurocurrency Rate Loans and Alternative Currency
Loans. The Borrowers may not repay any Eurocurrency Rate Loan or any Alternative Currency Loan
on any day other than on the last day of the Interest Period or the Canadian Interest Period,
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if any, applicable thereto unless such repayment is accompanied by any amount required to be paid
pursuant to Section 5.12.
(f) Payment of Interest and Other Expenses. Each repayment pursuant to this Section
2.6 shall be accompanied by accrued interest on the amount repaid.
(g) Hedging Agreements. No repayment or prepayment pursuant to this Section 2.6 shall
affect any obligations of any Borrower under any Hedging Agreement.
SECTION 2.7 Permanent Reduction of the Revolving Credit Commitment and the
Alternative Currency Commitment.
(a) Voluntary Reduction. The Domestic Borrower, on behalf of itself and the Canadian
Borrower, shall have the right at any time and from time to time, upon at least five (5) Business
Days prior written notice to the Administrative Agent, to permanently reduce, without premium or
penalty, (i) the entire Revolving Credit Commitment at any time or (ii) portions of the Revolving
Credit Commitment, from time to time, in an aggregate principal Dollar Amount not less than
$3,000,000 or any whole multiple of $1,000,000 in excess thereof; provided that in no event
shall the Revolving Credit Commitment be reduced to an amount less than the face amount of all
Letters of Credit then outstanding.
(b) Payments. Each permanent reduction permitted or required pursuant to this Section
2.7 shall be accompanied by a payment of principal sufficient to reduce (i) the aggregate Dollar
Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations and Canadian
Outstandings, as applicable, after such reduction to the Revolving Credit Commitment as so reduced
and (ii) to the extent that the Alternative Currency Commitment is reduced, the aggregate Dollar
Amount of all outstanding Alternative Currency Loans to the Alternate Currency Commitment as so
reduced. If the Revolving Credit Commitment as so reduced is less than the aggregate amount of all
outstanding Letters of Credit, the Borrowers shall be required to deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Any reduction of the Revolving Credit Commitment to
zero shall be accompanied by payment of all outstanding Revolving Credit Loans, Alternative
Currency Loans and Swingline Loans (and furnishing of cash collateral satisfactory to the
Administrative Agent for all L/C Obligations) and shall result in the termination of the Revolving
Credit Commitment, the Alternative Currency Commitment and the Swingline Commitment and the
Revolving Credit Facility. Such cash collateral shall be applied in accordance with Section
13.2(b). If the reduction of the Revolving Credit Commitment or the Alternative Currency
Commitment, as applicable, requires the repayment of any Eurocurrency Rate Loan or any Alternative
Currency Loan, such repayment shall be accompanied by any amount required to be paid pursuant to
Section 5.12.
SECTION 2.8 Termination of Credit Facility. The Revolving Credit Facility shall
terminate on the earliest of (a) August 31, 2010, (b) the date of termination by the Domestic
Borrower, on behalf of itself and the Canadian Borrower, pursuant to Section 2.7 and the repayment
of all of the Obligations, and (c) the date of termination by the Administrative Agent on behalf of
the Lenders pursuant to Section 13.2(a).
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SECTION 2.9 Increase of Revolving Credit Commitment. So long as no Default or Event of
Default shall have occurred and be continuing, at any time prior to the Revolving Credit Maturity
Date, the Domestic Borrower, on behalf of itself and the Canadian Borrower, shall have the right
from time to time upon not less than thirty (30) days’ prior written notice to the Administrative
Agent to increase the Revolving Credit Commitment; provided that (i) no Lender shall have
any obligation to increase its Revolving Credit Commitment, (ii) the Domestic Borrower shall only
be permitted to request such an increase on three (3) separate occasions, (iii) each such requested
increase shall be in a minimum principal amount of $10,000,000, (iv) in no event shall the
Revolving Credit Commitment be increased to an aggregate amount greater than $525,000,000 and (v)
the Borrowers and an existing Lender or a Person not theretofore a Lender, as applicable, shall
execute a Lender Addition and Acknowledgement Agreement, which shall be acknowledged by the
Administrative Agent and each Material Subsidiary and shall be in form and substance reasonably
satisfactory to the Administrative Agent; provided further that:
(a) Any increase in the Revolving Credit Commitment which is accomplished by increasing the
Revolving Credit Commitment of any Lender or Lenders who are at the time of such increase party to
this Agreement (which Lender or Lenders shall consent to such increase in their sole and absolute
discretion) shall be accomplished as follows: (i) this Agreement will be amended by the Borrowers,
the Administrative Agent and those Lender(s) whose Commitment(s) is or are being increased (but
without any requirement that the consent of any other Lenders be obtained) to reflect the revised
Revolving Credit Commitment amounts of each of the Lenders, (ii) the Administrative Agent will
deliver an updated Schedule 1.1 (a) to the Borrowers, the Issuing Lender and each of the
Lenders reflecting the revised Revolving Credit Commitment amount and Revolving Credit Commitment
Percentage of each of the Lenders, (iii) the outstanding Revolving Credit Loans and Revolving
Credit Commitment Percentages of L/C Obligations will be reallocated on the effective date of such
increase among the Lenders in accordance with their revised Revolving Credit Commitment Percentages
(and the Lenders agree to make all payments and adjustments necessary to effect the reallocation
and the Borrowers shall pay any and all costs required pursuant to Section 5.12 in connection with
such reallocation as if such reallocation were a repayment) and (iv) if requested, the Borrowers
will deliver new Revolving Credit Note(s) to the Lender or Lenders whose Commitment(s) is or are
being increased reflecting the revised Revolving Credit Commitment amount of such Lender(s);
(b) Any increase in the Revolving Credit Commitment which is accomplished by addition of a new
Lender under this Agreement shall be accomplished as follows: (i) such new Lender shall be subject
to the consent of the Administrative Agent and the Domestic Borrower, on behalf of itself and the
Canadian Borrower, which consent shall not be unreasonably withheld, (ii) this Agreement will be
amended by the Borrowers, the Administrative Agent and such new Lender (but without any requirement
that the consent of any other Lenders be obtained) to reflect the addition of such new Lender as a
Lender hereunder, (iii) the Administrative Agent will deliver an updated Schedule 1.1(a) to
the Borrowers, the Issuing Lender and each of the Lenders reflecting the revised Revolving Credit
Commitment amounts and Revolving Credit Commitment Percentages of each of the Lenders, (iv) the
outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of L/C Obligations
will be reallocated on the effective date of such increase among the Lenders in accordance with
their revised Revolving Credit Commitment Percentages (and the Lenders agree to make all payments
and adjustments necessary to effect the reallocation and the Borrowers shall pay any and all costs
33
required pursuant to Section 5.12 in connection with such reallocation as if such reallocation
were a repayment) and (v) if requested the Borrowers will deliver a Revolving Credit Note to
such new Lender; and
(c) Notwithstanding anything to the contrary contained in this Agreement, upon any
voluntary reduction of the Revolving Credit Commitment pursuant to Section 2.7(a), the Domestic
Borrower shall no longer have the option to request an increase in the Revolving
Credit Commitment pursuant to this Section 2.9.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Lenders set forth in Section 3.4(a), agrees to
issue standby Letters of Credit for the account of any Borrower on any Business Day from the
Closing Date to, but not including, the Revolving Credit Maturity Date in such form as may be
approved from time to time by the Issuing Lender; provided that the Issuing Lender shall
have no obligation to issue any Letter of Credit if, after giving effect to such issuance, based
upon the Dollar Amount of all outstanding Revolving Credit Loans, Swingline Loans, L/C Obligations
and Canadian Outstandings, (a) the L/C Obligations would exceed the L/C Commitment or (b) the
aggregate principal amount of outstanding Revolving Credit Loans, plus the aggregate
principal amount of outstanding Swingline Loans, plus the aggregate amount of Canadian
Outstandings, plus the aggregate amount of L/C Obligations would exceed the Revolving
Credit Commitment. Each Letter of Credit shall (i) be denominated in a Permitted Currency in a
minimum amount of $100,000 (or the Alternative Currency Amount or Agreed Currency Amount, as
applicable, thereof with respect to any Letter of Credit denominated in an Alternative Currency or
Agreed Currency other than Dollars), (ii) be a standby letter of credit issued to support
obligations of the applicable Borrower or any of its Subsidiaries, contingent or otherwise,
incurred in the ordinary course of business, (iii) expire on a date satisfactory to the Issuing
Lender, which date shall be no later than the earlier of (A) one year after its date of issuance
(or, in the case of any renewal or extension thereof, one year after such renewal or extension),
and (B) the fifth (5th) Business Day prior to the Revolving Credit Maturity Date and
(iv) be subject to the Uniform Customs and/or ISP98 or as otherwise determined by the Issuing
Lender, and, to the extent not inconsistent therewith, the laws of the State of New York. The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any Applicable Law. References herein to “issue” and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of any existing Letters
of Credit, unless the context otherwise requires. Letters of credit issued under the Prior Credit
Agreement shall constitute Letters of Credit issued hereunder.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Domestic Borrower, on
behalf of itself or the Canadian Borrower, may from time to time request that the Issuing Lender
issue a Letter of Credit by giving written notice to the Administrative Agent and the Issuing
Lender prior to 10:00 a.m. (Chicago time) at least five (5) Business Days prior to the proposed
date of issuance, specifying the beneficiary, the proposed date of issuance and the expiry date of
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such Letter of Credit and describing the proposed terms of such Letter of Credit (including the
Permitted Currency in which such Letter of Credit shall be denominated) and the nature of the
transactions proposed to be supported thereby, together with an application/reimbursement agreement
and such other certificates, documents and other papers and information as the Issuing Lender may
request. Upon receipt of any such notice, the Issuing Lender shall process such notice and the
certificates, documents and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1 and Article VI, promptly
issue the Letter of Credit requested thereby by issuing the original of such Letter of Credit to
the beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the Domestic
Borrower, on behalf of itself or the Canadian Borrower. The Issuing Lender shall promptly furnish
to the Domestic Borrower, on behalf of itself or the Canadian Borrower, a copy of such Letter of
Credit and promptly notify the Administrative Agent, and the Administrative Agent shall promptly
notify each Lender, of the issuance of such Letter of Credit and, upon request by any Lender, the
Issuing Lender shall furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender’s participation therein.
SECTION
3.3 Commissions, Fees and Other Charges.
(a) The applicable Borrower shall pay to the Administrative Agent, for the account of the
Issuing Lender and the L/C Participants, a letter of credit commission with respect to each Letter
of Credit in an amount equal to the undrawn amount of such Letter of Credit multiplied by the
Applicable Margin with respect to Revolving Credit Loans that are Eurocurrency Rate Loans
(determined on a per annum basis). Such letter of credit commission shall be payable quarterly in
arrears on the last Business Day of each calendar quarter and on the Revolving Credit Maturity
Date. The Administrative Agent shall, promptly following its receipt thereof, distribute to the
Issuing Lender and the L/C Participants all letter of credit commissions received pursuant to this
Section 3.3(a) in accordance with their respective Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the applicable Borrower shall pay the Issuing
Lender an issuance fee with respect to each Letter of Credit in an amount equal to the face amount
of such Letter of Credit multiplied by one eighth of one percent (0.125%) per annum. Such issuance
fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter and on
the Revolving Credit Maturity Date.
(c) In addition to the foregoing fees and commissions, the applicable Borrower shall pay or
reimburse the Issuing Lender for such normal and customary documentary and processing charges,
costs and expenses as are reasonably incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of Credit.
(d) The commissions, fees, charges, costs and expenses payable pursuant to this Section 3.3
shall be payable in the Permitted Currency in which the applicable Letter of Credit is denominated.
SECTION 3.4 L/C Participations.
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(a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk an
undivided interest equal to such L/C Participant’s Revolving Credit Commitment Percentage in the
Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the applicable Borrower
through a Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such
L/C Participant shall pay to the Issuing Lender in the applicable Permitted Currency upon demand at
the Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s
Revolving Credit Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by the Issuing Lender under any Letter of Credit, the Issuing Lender shall notify the
Administrative Agent and the Administrative Agent shall promptly notify each L/C Participant of the
amount and due date of such required payment and such L/C Participant shall pay to the Issuing
Lender in the applicable Permitted Currency the amount specified on the applicable due date. If any
such amount is paid to the Issuing Lender after the date such payment is due, such L/C Participant
shall pay to the Issuing Lender in the applicable Permitted Currency on demand, in addition to such
amount, interest on the foregoing amount to be reimbursed by such L/C Participant, for each day
from the date of the Issuing Lender’s demand for such reimbursement (or, if such demand is made
after 11:00 a.m. (Chicago time) on such date, from the next succeeding Business Day) to the date on
which such L/C Participant pays the amount to be reimbursed by it, at a rate of interest per annum
equal to the Federal Funds Effective Rate for the first three (3) days and, thereafter, at a rate
of interest equal to the rate applicable to Base Rate Loans.
(c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its Revolving Credit Commitment Percentage of such
payment in accordance with this Section 3.4, the Issuing Lender receives any payment related to
such Letter of Credit (whether directly from the Borrowers or otherwise), or any payment of
interest on account thereof, the Issuing Lender will distribute to such L/C Participant its
pro rata share thereof; provided, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously distributed by the
Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrowers. In the event of any drawing
under any Letter of Credit, the Borrowers agree to reimburse (either with the proceeds of a
Revolving Credit Loan as provided for in this Section 3.5 or with funds from other sources), in
same day funds, the Issuing Lender on each date on which the Issuing Lender notifies the Domestic
Borrower, on behalf of itself or the Canadian Borrower, of the date and amount of a draft paid
under any Letter of Credit for the amount of (a) such draft so paid and (b) any amounts
36
referred to in Section 3.3(c) incurred by the Issuing Lender in connection with such payment.
Unless the Domestic Borrower, on behalf of itself or the Canadian Borrower, shall immediately
notify the Issuing Lender that the applicable Borrower intends to reimburse the Issuing Lender for
such drawing from other sources or funds, the Domestic Borrower, on behalf of itself or the
Canadian Borrower, shall be deemed to have timely given a Notice of Borrowing to the Administrative
Agent requesting that the Lenders make a Revolving Credit Loan funded in Dollars bearing interest
at the Base Rate on such date in the amount of (a) such draft so paid and (b) any amounts referred
to in Section 3.3(c) incurred by the Issuing Lender in connection with such payment (including,
without limitation, any and all costs, fees and other expenses incurred by the Issuing Lender in
effecting the payment of any Letter of Credit denominated in an Alternative Currency), and the
Lenders shall make a Revolving Credit Loan funded in Dollars bearing interest at the Base Rate in
such amount, the proceeds of which shall be applied to reimburse the Issuing Lender for the amount
of the related drawing and costs and expenses. Each Lender acknowledges and agrees that its
obligation to fund a Revolving Credit Loan in accordance with this Section 3.5 to reimburse the
Issuing Lender for any draft paid under a Letter of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of
the conditions set forth in Section 2.4 or Article VI. If the applicable Borrower has elected to
pay the amount of such drawing with funds from other sources and shall fail to reimburse the
Issuing Lender as provided above, the unreimbursed amount of such drawing shall bear interest at
the rate which would be payable on any outstanding Base Rate Loans which were then overdue from the
date such amounts become payable (whether at stated maturity, by acceleration or otherwise) until
payment in full.
SECTION 3.6 Obligations Absolute. The Borrowers’ obligations under this Article III
(including, without limitation, the Reimbursement Obligation) shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment
which any Borrower may have or have had against the Issuing Lender or any beneficiary of a Letter
of Credit or any other Person. The Borrowers also agree that the Issuing Lender and the L/C
Participants shall not be responsible for, and the Domestic Borrowers’ Reimbursement Obligation
under Section 3.5 shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among any Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be transferred or any
claims whatsoever of any Borrower against any beneficiary of such Letter of Credit or any such
transferee. The Issuing Lender shall not be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however transmitted, in connection
with any Letter of Credit. The Borrowers agree that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct, shall be binding on the Borrowers and
shall not result in any liability of the Issuing Lender or any L/C Participant to the Borrowers.
The responsibility of the Issuing Lender to the Borrowers in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment are in conformity
with such Letter of Credit.
37
SECTION 3.7 Actions of the Issuing Lender. The Issuing Lender shall be entitled to
rely, and shall be fully protected in relying, upon any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected by the Issuing
Lender. The Issuing Lender shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or concurrence of the
Required Lenders as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. Notwithstanding any
other provision of this Section 3.7, the Issuing Lender shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act pursuant thereto shall
be binding upon the Lenders and any future holders of a participation in any Letter of Credit.
SECTION 3.8 Indemnification by Borrowers. Subject to the terms of Section 15.21, the
Borrowers hereby agree to indemnify and hold harmless each Lender, the Issuing Lender and each
Agent, and their respective directors, officers, agents and employees from and against any and all
claims and damages, losses, liabilities, costs or expenses which such Lender, Issuing Lender or
Agent may incur (or which may be claimed against such Lender, Issuing Lender or Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution and delivery or transfer of
or payment or failure to pay under any Letter of Credit or any actual or proposed use of any Letter
of Credit, including, without limitation, any claims, damages, losses, liabilities, costs or
expenses which the Issuing Lender may incur by reason of or in connection with (i) the failure of
any other Lender to fulfill or comply with its obligations to the Issuing Lender hereunder (but
nothing herein contained shall affect any rights the Borrowers may have against any defaulting
Lender) or (ii) by reason of or on account of the Issuing Lender issuing any Letter of Credit which
specifies that the term “beneficiary” included therein includes any successor by operation of law
of the named beneficiary, but which Letter of Credit does not require that any drawing by any such
successor beneficiary be accompanied by a copy of a legal document, satisfactory to the Issuing
Lender, evidencing the appointment of such successor beneficiary; provided that the
Borrowers shall not be required to indemnify any Lender, Issuing Lender or Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by
(x) the willful misconduct or gross negligence of the Issuing Lender in determining whether a
request presented under any Letter of Credit complied with the terms of such Letter of Credit or
(y) the Issuing Lender’s failure to pay under any Letter of Credit after the presentation to it of
a request strictly complying with the terms and conditions of such
Letter of Credit. Nothing in this
Section 3.8 is intended to limit the obligations of the Borrowers under any other provision of this
Agreement.
SECTION 3.9 Indemnification by Lenders. Each Lender shall, ratably in accordance with
its Revolving Credit Commitment Percentage, indemnify the Issuing Lender, its affiliates and their
respective directors, officers, agents and employees (to the extent not reimbursed by the
Borrowers) against any cost, expense (including reasonable counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such indemnitees’ gross negligence or
willful misconduct or the Issuing Lender’s failure to pay under any Letter of Credit
38
after the presentation to it of a request strictly complying with the terms and conditions of the
Letter of Credit) that such indemnitees may suffer or incur in connection with Article III or any
action taken or omitted by such indemnitees hereunder.
SECTION 3.10 Rights as a Lender. In its capacity as a Lender, the Issuing Lender
shall have the same rights and obligations as any other Lender.
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) Interest Rate Options.
(i) Revolving Credit Loans and Alternative Currency Loans. Subject to the
provisions of this Section 5.1, at the election of the Domestic Borrower, on behalf of itself or
the Canadian Borrower, as applicable, (i) Revolving Credit Loans shall bear interest at (A) the
Base Rate plus the Applicable Margin as set forth in Section 5.1(c) or (B) the Eurocurrency
Rate plus the Applicable Margin as set forth in Section 5.1(c) and (ii) Alternative
Currency Loans (A) shall bear interest at the Canadian Base Rate plus the Applicable Margin
as set forth in Section 5.1(c) or (B) shall be created and discounted pursuant to Section 2.5. The
Domestic Borrower shall select the rate of interest and the Interest Period or the Canadian
Interest Period, if any, applicable to any Revolving Credit Loan and any Alternative Currency Loan
at the time a Notice of Borrowing is given pursuant to Section 2.4 or Section 4.2, at the time a
Notice of Conversion/Continuation is given pursuant to Section 5.2(a), at the time a Notice of
Conversion to Acceptances is given pursuant to Section 5.2(b) or at the time a Notice of Renew
Acceptances is given pursuant to Section 5.2(c). Each Revolving Credit Loan or each portion thereof
bearing interest based on the Base Rate shall be a “Base Rate Loan”, each Revolving Credit Loan or
each portion thereof bearing interest based on the Eurocurrency Rate shall be a “Eurocurrency Rate
Loan”, each Alternative Currency Loan or each portion thereof bearing interest based on the
Canadian Base Rate shall be a “Canadian Base Rate Loan” and each Alternative Currency Loan or each
portion thereof created and discounted pursuant to Section 2.5 shall be a “Canadian BA Borrowing”.
Any Revolving Credit Loan or any portion thereof as to which the Domestic Borrower has not duly
specified an interest rate as provided herein shall be deemed a Base Rate Loan. Any Alternative
Currency Loan or any portion thereof as to which the Domestic Borrower, on behalf of itself or the
Canadian Borrower as applicable, has not duly specified an interest rate as provided herein (or
requested a Canadian BA Borrowing pursuant to Section 2.5) shall be deemed a Canadian Base Rate
Loan.
(ii) Swingline Loans. Subject to the provisions of this Section 5.1, at the
election of the Domestic Borrower, each Swingline Loan shall bear interest at (A) the Base Rate
39
plus the Applicable Margin as set forth in Section 5.1(c) or (B) the Quoted Swingline Rate
(if agreed upon by the Swingline Lender and the Domestic Borrower). The Domestic Borrower shall
select the rate of interest applicable to any Swingline Loan at the time a Notice of Borrowing is
given pursuant to Section 2.4. Each Swingline Loan or portion thereof bearing interest based on the
Base Rate shall be a “Base Rate Loan” and each Swingline Loan or portion thereof bearing interest
based on the Quoted Swingline Rate shall be a “Quoted Swingline Rate Loan”. Any Swingline Loan or
any portion thereof as to which the Domestic Borrower has not duly specified an interest rate as
provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each Eurocurrency Rate Loan, the Domestic
Borrower, on behalf of itself or the Canadian Borrower, as applicable, by giving notice at the times described in Section 5.1(a), shall elect an interest period (each, an “Interest
Period”) to be applicable to such Loan, which Interest Period shall be a period of one (1), two (2), three
(3), or six (6) months with respect to each Eurocurrency Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance of or conversion to any
Eurocurrency Rate Loan and, in the case of immediately successive Interest Periods, each successive
Interest Period shall commence on the date on which the immediately preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day; provided, that if
any Interest Period with respect to a Eurocurrency Rate Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period with respect to a Eurocurrency Rate Loan that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit Maturity Date, and
Interest Periods shall be selected by the Domestic Borrower, on behalf of itself or the Canadian
Borrower, as applicable, so as to permit the Borrowers to make the quarterly principal installment
payments pursuant to Section 4.3 without payment of any amounts pursuant to Section 5.12; and
(v) there shall be no more than eight (8) Interest Periods in effect at any
time.
(c) Applicable Margin. The Applicable Margin provided for in Section 5.1(a) with respect to any Loan and in Section 2.5(d) with respect to any Acceptance Fee applicable to any Canadian BA Borrowing (the “Applicable Margin”) shall be based upon the table set
forth below and shall be determined and adjusted quarterly on the date (each a “Calculation Date”)
ten (10) Business Days after the date by which the Domestic Borrower, on behalf of itself and the Canadian Borrower, is required to provide an Officer’s Compliance Certificate for the most recently ended fiscal quarter of the Domestic Borrower; provided, however,
that (a) the initial
40
Applicable Margin shall be based on Pricing Level III (as shown below) and shall remain at Pricing
Level III until the first Calculation Date occurring after the fiscal quarter ending September 30,
2005 and, thereafter the Pricing Level shall be determined by reference to the Leverage Ratio as
of the last day of the most recently ended fiscal quarter of the Domestic Borrower preceding the
applicable Calculation Date, and (b) if the Domestic Borrower, on behalf of itself and the
Canadian Borrower, fails to provide the Officer’s Compliance Certificate as required by Section
8.2 for the most recently ended fiscal quarter of the Domestic Borrower preceding the applicable
Calculation Date, the Applicable Margin from such Calculation Date shall be based on Pricing Level
VI (as shown below) until such time as an appropriate Officer’s Compliance Certificate is
provided, at which time the Pricing Level shall be determined by reference to the Leverage Ratio
as of the last day of the most recently ended fiscal quarter of the Domestic Borrower preceding
such Calculation Date. The Applicable Margin shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Margin shall be applicable to all
Extensions of Credit then existing or subsequently made or issued.
Applicable Margin | ||||||||||
Eurocurrency | ||||||||||
Rate and | Base Rate and | |||||||||
Acceptance | Canadian Base | |||||||||
Pricing Level | Leverage Ratio | Fee | Rate | |||||||
I | Less than 1.25 to 1.00 |
0.55 | % | 0.00 | % | |||||
II | Greater than or equal to 1.25 to 1.00 but less than
2.00 to 1.00 |
0.75 | % | 0.00 | % | |||||
III | Greater than or equal to 2.00 to 1.00 but less than
2.50 to 1.00 |
0.875 | % | 0.00 | % | |||||
IV | Greater than or equal to 2.50 to 1.00 but less than
3.00 to 1.00 |
1.00 | % | 0.00 | % | |||||
V | Greater than or equal to 3.00 to 1.00 but less than
3.25 to 1.00 |
1.25 | % | 0.00 | % | |||||
VI | Greater than or equal to 3.25 to 1.00 |
1.50 | % | 0.25 | % |
(d) Default Rate. Subject to Section 13.3, at the discretion of the
Administrative Agent or as directed by the Required Lenders, upon the occurrence and during the
continuance of an Event of Default and upon written notice to the Domestic Borrower, (i) the
Borrowers shall no longer have the option to request, continue or convert to Eurocurrency Rate
Loans, Canadian BA Borrowings or Swingline Loans, (ii) all outstanding Eurocurrency Rate Loans
shall bear interest at a rate per annum two percent (2%) in excess of the rate then applicable to
Eurocurrency Rate Loans until the end of the applicable Interest Period and thereafter at a rate
equal to two percent (2%) in excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Canadian Base Rate Loans shall bear interest at a rate per annum two percent (2%) in
excess of the rate then applicable to Canadian Base Rate Loans and (iv) all outstanding Base Rate
Loans, Quoted Swingline Rate Loans and other Obligations arising hereunder or under any other Loan
Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate
then applicable to Base Rate Loans. Interest shall continue to accrue on the Notes
41
after the filing by or against any Borrower of any petition seeking any relief in bankruptcy or
under any act or law pertaining to insolvency or debtor relief, whether state, federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan, Canadian Base
Rate Loan and each Quoted Swingline Rate Loan shall be payable in arrears on the last Business Day
or Canadian Business Day, as applicable, of each calendar quarter commencing September 30, 2005;
and interest on each Eurocurrency Rate Loan shall be payable on the last day of each Interest
Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of
each three (3) month interval during such Interest Period. Interest on Eurocurrency Rate Loans and
all fees payable hereunder shall be computed on the basis of a 360-day year and assessed for the
actual number of days elapsed and interest on Base Rate Loans and Canadian Base Rate Loans shall be
computed on the basis of a 365/66-day year and assessed for the actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest hereunder or under any of the Notes charged or collected pursuant to the
terms of this Agreement or pursuant to any of the Notes exceed the highest rate permissible under
any Applicable Law which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders have charged or
received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder
shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders
shall at the Administrative Agent’s option (i) promptly refund to the Borrowers any interest
received by the Lenders in excess of the maximum lawful rate or (ii) apply such excess to the
principal balance of the Obligations on a pro rata basis. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the Administrative Agent nor any
Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may be paid by the Borrowers under Applicable Law.
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans.
(a) Conversion or Continuation of Revolving Credit Loans. Provided that no
Default or Event of Default has occurred and is then continuing, the Domestic Borrower, on behalf
of itself or the Canadian Borrower, as applicable, shall have the option to (a) convert all or any
portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal
to $3,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more Eurocurrency
Rate Loans, (b) upon the expiration of any Interest Period, convert all or any part of its
outstanding Eurocurrency Rate Loans in a principal Dollar Amount equal to $3,000,000 or a whole
multiple of $1,000,000 in excess thereof into Base Rate Loans (other than Swingline Loans), or (c)
upon the expiration of any Interest Period, continue any Eurocurrency Rate Loan in a principal
Dollar Amount of $3,000,000 or any whole multiple of $1,000,000 in excess thereof as a Eurocurrency
Rate Loan. Whenever the Domestic Borrower, on behalf of itself or the Canadian Borrower, as
applicable, desires to convert or continue Loans as provided above, the Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as Exhibit E-l
(a “Notice of Conversion/Continuation”) not later than 10:00 a.m. (Chicago time) three (3)
Business Days before the day on which a proposed conversion or continuation of such Loan is to be
effective specifying (A) the Loans to be converted or continued, and, in the case of any
Eurocurrency Rate Loan to be converted or continued, the last
42
day of the Interest Period therefor, (B) the effective date of such conversion or continuation
(which shall be a Business Day), (C) the principal amount of such Loans to be converted or
continued, and (D) the Interest Period to be applicable to such converted or continued Eurocurrency
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
(b) Conversion of Canadian Base Rate Loans to Canadian BA Borrowings. Provided that no
Default or Event of Default has occurred and is then continuing, the Domestic Borrower, on behalf
of itself or the Canadian Borrower, as applicable, shall have the option to convert all or any part
of any outstanding Canadian Base Rate Loans in a principal amount equal to C$1,500,000 or a whole
multiple of C$500,000 in excess thereof into Canadian BA Borrowings by giving the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit E-2 (a “Notice
of Conversion to Acceptances”) not later than 12:00 noon (the time of the Administrative
Agent’s Correspondent) on a Canadian Business Day which is at least three (3) Canadian Business
Days prior to the day on which a proposed conversion of such Canadian Base Rate Loan is to be
effective specifying the date of such conversion, the total amount of Canadian Base Rate Loans to
be so converted and the Canadian Interest Period to be applicable to such converted Canadian Base
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such Notice of Conversion
to Acceptances.
(c) Procedures at End of a Canadian Interest Period. Unless the Domestic Borrower, on
behalf of itself or the Canadian Borrower, as applicable, requests a new Canadian BA Borrowing in
accordance with the procedures set forth below, the Alternative Currency Lender shall automatically
and without request by the Domestic Borrower or the Canadian Borrower, as applicable, make a
Canadian Base Rate Loan on the last day of the relevant Canadian Interest Period in an amount
sufficient to pay in full all Acceptances maturing on such day. So long as no Default or Event of
Default shall exist, the Domestic Borrower, on behalf of itself or the Canadian Borrower, as
applicable, may request a new Canadian BA Borrowing pursuant to the terms and conditions of Section
2.5 in a principal amount equal to C$1,500,000 or a whole multiple of C$500,000 in excess thereof
at the end of the then applicable Canadian Interest Period by giving the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit E-3 (a “Notice to
Renew Acceptances”) not later than 12:00 noon (the time of the Administrative Agent’s
Correspondent) on a Canadian Business Day which is at least three (3) Canadian Business Days prior
to the first day of the new Canadian Interest Period specifying the first day of the applicable
Canadian Interest Period, the amount of the Canadian BA Borrowing and the Canadian Interest Period
to be applicable thereto. The Administrative Agent shall promptly notify the Lenders of such Notice
to Renew Acceptances.
(d) Telephonic Notices. The Domestic Borrower, on behalf of itself and the Canadian
Borrower, hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue
Loans and to transfer funds based on telephonic notices made by any Person or Persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrowers,
it being understood that the foregoing authorization is specifically intended to allow Notices of
Borrowing and Notices Conversion/Continuation to be given telephonically. The Domestic Borrower, on
behalf of itself and the Canadian Borrower agrees to deliver promptly to the Administrative Agent a
written confirmation, if such confirmation is requested by the Administrative Agent or any Lender,
of each telephonic notice signed by an Responsible
43
Officer. If the written confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
SECTION 5.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrowers shall pay to
the Administrative Agent, for the account of the Lenders, a non-refundable commitment fee at a rate
per annum equal to the applicable rate based upon the table set forth below (the “Commitment
Fee Rate”) on the average daily unused portion of the Revolving Credit Commitment;
provided that the amount of outstanding Swingline Loans and Alternative Currency Loans
shall not be considered usage of the Revolving Credit Commitment for the purpose of calculating
such commitment fee. The commitment fee shall be payable in arrears on the last Business Day of
each calendar quarter during the term of this Agreement commencing September 30, 2005, and on the
Revolving Credit Maturity Date. Such commitment fee shall be distributed by the Administrative
Agent to the Lenders pro rata in accordance with the Lenders’ respective Revolving
Credit Commitment Percentages. The Commitment Fee Rate shall be determined and adjusted quarterly
on each Calculation Date; provided, however, that (a) the initial Commitment Fee
Rate shall be based on Pricing Level III (as shown below) and shall remain at Pricing Level III
until the first Calculation Date occurring after the fiscal quarter ending September 30, 2005 and,
thereafter the Pricing Level shall be determined by reference to the Leverage Ratio as of the last
day of the most recently ended fiscal quarter of the Domestic Borrower preceding the applicable
Calculation Date, and (b) if the Domestic Borrower, on behalf of itself and the Canadian Borrower,
fails to provide the Officer’s Compliance Certificate as required by Section 8.2 for the most
recently ended fiscal quarter of the Domestic Borrower preceding the applicable Calculation Date,
the Commitment Fee Rate from such Calculation Date shall be based on Pricing Level VI (as shown
below) until such time as an appropriate Officer’s Compliance Certificate is provided, at which
time the Pricing Level shall be determined by reference to the Leverage Ratio as of the last day of
the most recently ended fiscal quarter of the Domestic Borrower preceding such Calculation Date.
The Commitment Fee Rate shall be effective from one Calculation Date until the next Calculation
Date.
Pricing Level | Leverage Ratio | Commitment Fee Rate | ||||
I | Less than 1.25 to 1.00 |
0.125 | % | |||
II | Greater than or equal to 1.25 to 1.00 but less than
2.00 to 1.00 |
0.150 | % | |||
III | Greater than or equal to 2.00 to 1.00 but less than
2.50 to 1.00 |
0.175 | % | |||
IV | Greater than or equal to 2.50 to 1.00 but less than
3.00 to 1.00 |
0.225 | % | |||
V | Greater than or equal to 3.00 to 1.00 but less than
3.25 to 1.00 |
0.25 | % | |||
VI | Greater than or equal to 3.25 to 1.00 |
0.30 | % |
44
(b) Administrative Agent’s Fees. In order to compensate the Administrative Agent for
administering the Credit Facility and for its obligations hereunder, the Borrowers agree to pay to
the Administrative Agent, for its account, the fees set forth in the separate fee letter agreement
executed by the Domestic Borrower, the Administrative Agent and X.X. Xxxxxx Securities Inc. as
arranger dated July 15, 2005.
(c) Alternative Currency Lender’s Fee. The Borrowers shall pay the Alternative
Currency Lender a fronting fee with respect to the Canadian Outstandings in an amount equal to the
Dollar Amount of the Canadian Outstandings multiplied by one eighth of one percent (0.125%) per
annum. Such fronting fee shall be payable quarterly in arrears on the last Business Day of each
calendar quarter and on the Revolving Credit Maturity Date.
SECTION 5.4 Manner of Payment.
(a) Loans Denominated in Dollars. Each payment by the Borrowers on account of the
principal of or interest on the Loans denominated in Dollars or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under this Agreement or any
Note (except as set forth in Section 5.4(b)) shall be made in Dollars not later than 12:00 noon
(Chicago time) on the date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent’s Office for the account of the Lenders (other than as set forth below)
pro rata in accordance with their respective Revolving Credit Commitment
Percentages (except as specified below), in immediately available funds and shall be made without
any set-off, counterclaim or deduction whatsoever. Any payment received after 12:00 noon (Chicago
time) shall be deemed to have been made on the next succeeding Business Day for all purposes.
(b) Alternative Currency Loans and Agreed Currency Loans other than in Dollars. Each
payment by the Borrowers on account of the principal of or interest on the Alternative Currency
Loans or Revolving Credit Loans in an Agreed Currency other than in Dollars, shall be made in such
Alternative Currency or Agreed Currency, as applicable, not later than 12:00 noon (the time of the
Administrative Agent’s Correspondent) on the date specified for payment under this Agreement to the
Administrative Agent’s account with the Administrative Agent’s Correspondent for the account of the
Alternative Currency Lender or the Lenders, as applicable, (except as specified below) pro
rata in accordance with their respective Revolving Credit Commitment Percentages (other
than as set forth below) in immediately available funds, and shall be made without any set-off,
counterclaim or deduction whatsoever. Any payment received after 12:00 noon (the time of the
Administrative Agent’s Correspondent) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of each such payment,
the Administrative Agent shall distribute to each Lender at its address for notices set forth
herein its pro rata share of such payment in accordance with such Lender’s
Revolving Credit Commitment Percentage (except as specified below), and shall wire advice of the
amount of such credit to each Lender. Each payment to the Administrative Agent of the Issuing
Lender’s fees or any L/C Participants’ commissions shall be made in like manner, but for the
account of the Issuing Lender or the L/C Participants, as the case may be. Each payment to the
Administrative Agent of Administrative Agent’s fees or expenses shall be made for the account
45
of the Administrative Agent. Each payment to the Administrative Agent with respect to the Swingline
Note (including, without limitation, the Swingline Lender’s fees or expenses) shall be made for the
account of the Swingline Lender. Each payment to the Administrative Agent with respect to the
Alternative Currency Note (including, without limitation, the Alternative Currency Lender’s fees or
expenses) shall be made for the account of the Alternative Currency Lender. Any amount payable to
any Lender under Sections 5.10, 5.11, 5.12, 5.13 or 15.2 shall be paid to the Administrative Agent
for the account of the applicable Lender. Subject to Section 5.1(b)(ii), if any payment under this
Agreement or any Note shall be specified to be made upon a day which is not a Business Day, it
shall be made on the next succeeding day which is a Business Day and such extension of time shall
in such case be included in computing any interest if payable along with such payment.
SECTION 5.5 Noteless Agreement: Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which it will record (i) the
amount of each Loan made hereunder and, if applicable, the Interest Period or the Canadian Interest
Period, as applicable, with respect thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrowers to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder from the Borrowers and each
Lender’s share thereof.
(c) The entries maintained in the accounts maintained pursuant to subsections (a) and (b)
above shall be prima facie evidence of the existence and the amounts of the Obligations therein
recorded; provided, however, that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by a Revolving Credit Note, in the case
of the Swingline Lender, a Swingline Note or, in the case of the Alternative Currency Lender, an
Alternative Currency Note. In such event, the Borrowers shall prepare, execute and deliver to such
Lender such applicable Note or Notes payable to the order of such Lender. Thereafter, the Loans
evidenced by each such Note and interest thereon shall at all times (prior to any assignment
pursuant to Section 15.10) be represented by one or more Notes payable to the order of the Lender
named therein, except to the extent that any such Lender subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described in paragraphs (a)
and (b) above.
SECTION 5.6 Crediting of Payments and Proceeds. In the event that the Borrowers shall
fail to pay any of the Obligations when due and the Obligations have been accelerated pursuant to
Section 13.2, all payments received by the Lenders upon the Notes and the other Obligations and all
net proceeds from the enforcement of the Obligations shall be applied: (a) first to all expenses
then due and payable by the Borrowers hereunder and under the other Loan
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Documents, (b) then to all indemnity obligations then due and payable by the Borrowers hereunder
and under the other Loan Documents, (c) then to all Administrative Agent’s, Issuing Lender’s and
Alternative Currency Lender’s fees then due and payable, (d) then to all commitment and other fees
and commissions then due and payable, (e) then to accrued and unpaid interest on the Swingline Note
to the Swingline Lender and the Alternative Currency Note to the Alternative Currency Lender (pro
rata in accordance with all such amounts due), (f) then to the principal amount outstanding under
the Swingline Note to the Swingline Lender and the Alternative Currency Note to the Alternative
Currency Lender (pro rata in accordance with all such amounts due), (g) then to accrued and unpaid
interest on the other Loans and Notes, accrued and unpaid interest on the Reimbursement Obligation
and any Hedging Obligations (including any termination payments and any accrued and unpaid interest
thereon) (pro rata in accordance with all such amounts due), (h) then to the principal
amount of the other Loans and Notes and Reimbursement Obligation
(pro rata in accordance
with all such amounts due) and (i) then to the cash collateral account described in Section 13.2(b)
to the extent of any L/C Obligations then outstanding, in that order.
SECTION 5.7 Adjustments. If any Lender (a “Benefited Lender”) shall at any
time receive any payment of all or part of the Obligations owing to it, or interest thereon, or if
any Lender shall at any time receive any collateral in respect to the Obligations owing to it
(whether voluntarily or involuntarily, by set-off or otherwise) (other than pursuant to Sections
5.8, 5.9, 5.10, 5.11 or 15.2) in a greater proportion than any such payment to and collateral
received by any other Lender, if any, in respect of the similar Obligations owing to such other
Lender, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders
such portion of each such other Lender’s Extensions of Credit, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefited Lender to share the excess payment or benefits of such collateral or proceeds
ratably with each of the Lenders; provided, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent of such recovery, but without
interest. The Borrowers agree that each Lender so purchasing a portion of another Lender’s
Extensions of Credit may exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Lender were the direct holder of such
portion.
SECTION 5.8 Nature of Obligations of Lenders Regarding Extensions of Credit;
Assumption by the Administrative Agent. The obligations of the Lenders under this Agreement
to make the Loans denominated in Dollars or other Agreed Currencies and issue or participate in
Letters of Credit are several and are not joint or joint and several. Unless the Administrative
Agent shall have received notice from a Lender prior to a proposed borrowing date that such Lender
will not make available to the Administrative Agent such Lender’s ratable portion of the amount to
be borrowed on such date (which notice shall not release such Lender of its obligations hereunder),
the Administrative Agent may assume that such Lender has made such portion available to the
Administrative Agent on the proposed borrowing date in accordance with Sections 2.3 and 4.2, and
the Administrative Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If such amount is made available to the
Administrative Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to interest on the amount not made
available by such Lender in accordance with the terms hereof, for each day
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from and including such borrowing date to the date on which such amount not made available by such
Lender in accordance with the terms hereof shall have become immediately available to the
Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate for the first
three (3) days and, thereafter, at a rate per annum equal to the rate applicable to Base Rate
Loans. A certificate of the Administrative Agent with respect to any amounts owing under this
Section 5.8 shall be conclusive, absent manifest error. If such Lender’s Revolving Credit
Commitment Percentage of such borrowing is not made available to the Administrative Agent by such
Lender within three (3) Business Days after such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with interest thereon at
the rate per annum applicable to Base Rate Loans hereunder, on demand, from the Domestic Borrower.
The failure of any Lender to make available its Revolving Credit Commitment Percentage of any Loan
denominated in an Agreed Currency requested by the Domestic Borrower shall not relieve it or any
other Lender of its obligation, if any, hereunder to make its Revolving Credit Commitment
Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Revolving Credit Commitment Percentage of such Loan
available on the borrowing date. Notwithstanding anything set forth herein to the contrary, any
Lender that fails to make available its Revolving Credit Commitment Percentage shall not (a) have
any voting or consent rights under or with respect to any Loan Document or (b) constitute a
“Lender” (or be included in the calculation of Required Lenders hereunder) for any voting or
consent rights under or with respect to any Loan Document.
SECTION 5.9 Redenomination of Alternative Currency Loans. If any Alternative Currency
Loan or Eurocurrency Rate Loan is required to bear interest based at the Base Rate rather than the
Eurocurrency Rate pursuant to Section 5.1 (d), Section 5.11 or any other applicable provision
hereof, such Loan shall be funded in Dollars in an amount equal to the Dollar Amount of such
Alternative Currency Loan or Eurocurrency Rate Loan, as applicable, all subject to the provisions
of Section 2.5(b). The Borrowers shall reimburse the Alternative Currency Lender or the Lenders, as
applicable, upon any such conversion for any amounts required to be paid under Section 5.12.
SECTION 5.10 Regulatory Limitation. In the event, as a result of increases in the value of Alternative Currencies or Agreed Currencies (other than Dollars) against the Dollar or for
any other reason, the obligation of any of the Lenders to make Loans (taking into account the
Dollar Amount of the Obligations and all other indebtedness required to be aggregated under 12
U.S.C.A. §84, as amended, the regulations promulgated thereunder and any other Applicable Law) is
determined by such Lender to exceed its then applicable legal lending limit under 12 U.S.C.A. §84,
as amended, and the regulations promulgated thereunder, or any other Applicable Law, the amount of
additional Extensions of Credit such Lender shall be obligated to make or issue or participate in
hereunder shall immediately be reduced to the maximum amount which such Lender may legally advance
(as determined by such Lender), the obligation of each of the remaining Lenders hereunder shall be
proportionately reduced, based on their applicable Revolving Credit Commitment Percentages and, to
the extent necessary under such laws and regulations (as determined by each of the Lenders, with
respect to the applicability of such laws and regulations to itself), and the Borrowers shall
reduce, or cause to be reduced, complying to the extent practicable with the remaining provisions
hereof, the Obligations outstanding hereunder by an amount sufficient to comply with such maximum
amounts.
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SECTION 5.11 Changed Circumstances.
(a) Circumstances Affecting Eurocurrency Rate and Alternative Currency
Availability. If with respect to any Interest Period for any Eurocurrency Rate Loan or any
Canadian Interest Period with respect to any Canadian BA Acceptance, the Administrative Agent, the
Alternative Currency Lender or any other Lender (after consultation with the Administrative Agent)
shall determine that (i) by reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars or an Agreed Currency or Alternative Currency in the
applicable amounts are not being quoted via any generally recognized financial information service
or offered to the Administrative Agent or such Lender for such Interest Period or Canadian Interest
Period, as applicable, (ii) a fundamental change has occurred in the foreign exchange or interbank
markets with respect to any Agreed Currency or Alternative Currency (including, without limitation,
changes in national or international financial, political or economic conditions or currency
exchange rates or exchange controls), (iii) it has become otherwise materially impractical for the
Alternative Currency Lender to make such Alternative Currency Loan or the Lenders to make
Eurocurrency Rate Loans in Agreed Currencies, or (iv) by reason of circumstances affecting the
market for bankers’ acceptances denominated in Canadian Dollars there is no market in Canada for
such bankers’ acceptances or that the demand therefor is insufficient to justify the Alternative
Currency Lender continuing to create and sell (or purchase) bankers’ acceptances in such market,
then the Administrative Agent shall forthwith give notice thereof to the Domestic Borrower, on
behalf of itself and the Canadian Borrower. Thereafter, until the Administrative Agent notifies the
Domestic Borrower, on behalf of itself and the Canadian Borrower, that such circumstances no longer
exist, the obligation of the Lenders or the Alternative Currency Lender, as applicable, to make
Eurocurrency Rate Loans or Alternative Currency Loans or create Acceptances, as applicable, and the
right of the Borrowers to convert any Loan to or continue any Loan as a Eurocurrency Rate Loan or
an Alternative Currency Loan, as applicable, shall be suspended, and the Borrowers shall repay in
full (or cause to be repaid in full) the then outstanding principal amount of each such
Eurocurrency Rate Loan or Alternative Currency Loan, as applicable, together with accrued interest
thereon, on the last day of the then current Interest Period or Canadian Interest Period applicable
to such Eurocurrency Rate Loan or Alternative Currency Loan, as applicable, or convert the then
outstanding principal amount of each such Eurocurrency Rate Loan or Alternative Currency Loan, as
applicable, to a Base Rate Loan in Dollars as of the last day of such Interest Period or Canadian
Interest Period, as applicable; provided that if the Borrowers elect to make such
conversion, the Borrowers shall pay to the Administrative Agent, the Alternative Currency Lender
and the Lenders any and all costs, fees and other expenses incurred by the Administrative Agent,
the Alternative Currency Lender and the Lenders in effecting such conversion.
(b) Laws Affecting Eurocurrency Rate and Alternative Currency Availability. If,
after the date hereof, the introduction of, or any change in, any Applicable Law or any change in
the interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by any
Lender (or any of its Lending Offices) with any request or directive (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable agency, shall make it
unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor
its obligations hereunder to make or maintain any Eurocurrency Rate Loan or
49
any Alternative Currency Loan, as applicable, such Lender shall promptly give notice thereof to the
Administrative Agent and the Administrative Agent shall promptly give notice to the Domestic
Borrower, on behalf of itself and the Canadian Borrower, and the other Lenders. Thereafter, until
the Administrative Agent notifies the Domestic Borrower, on behalf of itself and the Canadian
Borrower, that such circumstances no longer exist, (i) the obligations of the Lenders to make
Eurocurrency Rate Loans or Alternative Currency Loans, as applicable, and the right of the
Borrowers to convert any Loan or continue any Loan as a Eurocurrency Rate Loan or an Alternative
Currency Loan, as applicable, shall be suspended and thereafter the Borrowers may select only Base
Rate Loans in Dollars hereunder, and (ii) if any of the Lenders may not lawfully continue to
maintain a Eurocurrency Rate Loan or an Alternative Currency Loan, as applicable, to the end of the
then current Interest Period or Canadian Interest Period applicable thereto as a Eurocurrency Rate
Loan or Alternative Currency Loan, as applicable, the applicable Eurocurrency Rate Loan or an
Alternative Currency Loan, as applicable, shall immediately be converted to a Base Rate Loan in
Dollars for the remainder of such Interest Period or Canadian Interest Period, as applicable;
provided that if the Borrowers elect to make such conversion, the Borrowers shall pay to
the Administrative Agent, the Alternative Currency Lender and the Lenders any and all costs, fees
and other expenses incurred by the Administrative Agent, the Alternative Currency Lender and the
Lenders in effecting such conversion.
(c) Increased Costs. If, after the date hereof, the introduction of, or any
change in, any Applicable Law, or in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any of the Lenders (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law) of such
Governmental Authority, central bank or comparable agency:
(i) shall (except as provided in Section 5.14(e)) subject any of the Lenders (or any of
their respective Lending Offices) to any tax, duty or other charge with respect to any Note or
Letter of Credit or shall change the basis of taxation of payments to any of the Lenders (or any of
their respective Lending Offices) of the principal of or interest on any Note or Letter of Credit
or any other amounts due under this Agreement in respect thereof (except for changes in the rate of
franchise tax or tax on the overall net income of any of the Lenders or any of their respective
Lending Offices imposed by the jurisdiction in which such Lender is organized or is or should be
qualified to do business or such Lending Office is located); provided that the Borrowers
shall not be obligated to pay any amounts pursuant to this Section 5.11(c)(i) to the extent that
such amounts are duplicative of any amounts paid by the Borrower pursuant to Section 5.14; or
(ii) shall impose, modify or deem applicable any reserve (including, without limitation,
any reserve imposed by the Board of Governors of the Federal Reserve System), special deposit,
insurance or capital or similar requirement against assets of, deposits with or for the account of,
or credit extended by any of the Lenders (or any of their respective Lending Offices) or shall
impose on any of the Lenders (or any of their respective Lending Offices) or the foreign exchange
and interbank markets any other condition affecting any Note;
and the result of any of the foregoing events described in clause (i) or (ii) above is to increase
the costs to any of the Lenders of maintaining any Eurocurrency Rate Loan or an Alternative
Currency Loan, as applicable, or issuing or participating in Letters of Credit or to reduce the
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yield or amount of any sum received or receivable by any of the Lenders under this Agreement or
under the Notes in respect of a Eurocurrency Rate Loan or an Alternative Currency Loan, as
applicable, or Letter of Credit, then such Lender shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify the Domestic Borrower, on behalf of itself and
the Canadian Borrower, of such fact and demand compensation therefor and, within fifteen (15) days
after such notice by the Administrative Agent, the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or Lenders for such increased cost or
reduction. The Administrative Agent will promptly notify the Domestic Borrower, on behalf of itself
and the Canadian Borrower, of any event of which it has knowledge which will entitle such Lender to
compensation pursuant to this Section 5.11(c); provided, that the Administrative Agent
shall incur no liability whatsoever to the Lenders or the Borrowers in the event it fails to do so.
The amount of such compensation shall be determined, in the applicable Lender’s sole discretion,
based upon the assumption that such Lender funded its Revolving Credit Commitment Percentage of the
Eurocurrency Rate Loans or Alternative Currency Loans as applicable, in the London interbank market
and using any reasonable attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining such amount or
amounts necessary to compensate such Lender shall be forwarded to the Domestic Borrower, on behalf
of itself and the Canadian Borrower, through the Administrative Agent and shall be conclusively
presumed to be correct save for manifest error.
(d) Exchange Indemnification and Increased Costs. Subject to the terms of
Section 15.21, the Borrowers shall, upon demand from the Administrative Agent, pay to the
Administrative Agent or any applicable Lender, the amount of (i) any loss or cost or increased cost
incurred by the Administrative Agent or any applicable Lender, (ii) any reduction in any amount
payable to or in the effective return on the capital to the Administrative Agent or any applicable
Lender or (iii) any currency exchange loss, that the Administrative Agent or any applicable Lender
sustains as a result of any payment being made by the Borrower in a currency other than that
originally extended to the Borrower or as a result of any other currency exchange loss incurred by
the Administrative Agent or any applicable Lender under this Agreement. A certificate of the
Administrative Agent setting forth the basis for determining such additional amount or amounts
necessary to compensate the Administrative Agent or the applicable Lender shall be conclusively
presumed to be correct save for manifest error.
SECTION 5.12 Indemnity. Subject to the terms of Section 15.21, the Borrowers hereby indemnify each of the Lenders against any loss or expense (including, without limitation,
any foreign exchange costs) which may arise or be attributable to each Lender’s obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan (a)
as a consequence of any failure by any Borrower to make any payment when due of any amount due
hereunder in connection with a Eurocurrency Rate Loan or an Alternative Currency Loan, as
applicable, (b) due to any failure of any Borrower to borrow, continue or convert on a date
specified therefor in a Notice of Borrowing, a Notice of Conversion/Continuation, a Notice of
Conversion to Acceptances or a Notice to Renew Acceptances or (c) due to any payment, prepayment or
conversion of any Eurocurrency Rate Loan or any Alternative Currency Loan, as applicable, on a date
other than the last day of the Interest Period or Canadian Interest Period, as applicable,
therefor. The amount of such loss or expense shall be determined, in the applicable Lender’s sole
discretion, based upon the assumption that such Lender funded its Revolving
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Credit Commitment Percentage of the Eurocurrency Rate Loans in the London interbank market and
using any reasonable attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining such amount or
amounts necessary to compensate such Lender shall be forwarded to the Domestic Borrower, on behalf
of itself and the Canadian Borrower, through the Administrative Agent and shall be conclusively
presumed to be correct save for manifest error.
SECTION 5.13 Capital Requirements. If either (a) the introduction of, or any
change in, or in the interpretation of, any Applicable Law or (b) compliance with any guideline or
request from any central bank or comparable agency or other Governmental Authority (whether or not
having the force of law), has or would have the effect of reducing the rate of return on the
capital of, or has affected or would affect the amount of capital required to be maintained by, any
Lender or any corporation controlling such Lender as a consequence of, or with reference to the
Commitments and other commitments of this type, below the rate which such Lender or such other
corporation could have achieved but for such introduction, change or compliance, then within five
(5) Business Days after written demand by any such Lender, the Borrowers shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to compensate such
Lender or other corporation for such reduction. A certificate as to such amounts submitted to the
Domestic Borrower, on behalf of itself and the Canadian Borrower, and the Administrative Agent by
such Lender, shall, in the absence of manifest error, be presumed to be correct and binding for all
purposes.
SECTION
5.14 Taxes.
(a) Payments Free and Clear. Except as otherwise provided in Section 5.14(e),
any and all payments by the Borrowers hereunder or under the Notes or the Letters of Credit shall
be made free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect thereto excluding,
(i) in the case of each Lender and the Administrative Agent, income and franchise taxes imposed by
each jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized or is or should be qualified to do business or any political subdivision thereof
and (ii) in the case of each Lender, income and franchise taxes imposed by the jurisdiction of such
Lender’s Lending Office or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as
“Taxes”). If any Borrower shall be required by law to deduct or withhold any Taxes from or
in respect of any sum payable hereunder or under any Note or in respect of any Letter of Credit to
any Lender or the Administrative Agent, (A) except as otherwise provided in Section 5.14(e), the
sum payable shall be increased as may be necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to additional sums payable under this
Section 5.14) such Lender or the Administrative Agent (as the case may be) receives an amount equal
to the amount such party would have received had no such deductions or withholdings been made, (B)
such Borrower shall make such deductions or withholdings, (C) such Borrower shall pay the full
amount deducted to the relevant taxing authority or other authority in accordance with Applicable
Law, and (D) such Borrower shall deliver to the Administrative Agent and such Lender evidence of
such payment to the relevant taxing authority or other Governmental Authority in the manner
provided in Section 5.14(d).
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(b) Stamp and Other Taxes. Except for Taxes and income and franchise taxes excluded
from the definition of “Taxes” herein, the Borrowers shall pay any present or future stamp,
registration, recordation or documentary taxes or any other similar fees or charges or excise or
property taxes, levies of the United States or any state or political subdivision thereof or any
applicable foreign jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the Loans, the Letters
of Credit, the other Loan Documents, or the perfection of any rights or security interest in
respect thereof (hereinafter referred to as “Other Taxes”).
(c) Indemnity. Except as otherwise provided in Sections 5.14(e) and 15.21, the
Borrowers shall indemnify each Lender and the Administrative Agent for the full amount of Taxes and
Other Taxes (including, without limitation, any Taxes and Other Taxes imposed by any jurisdiction
on amounts payable under this Section 5.14) paid by such Lender or the Administrative Agent (as the
case may be) and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such Lender or the
Administrative Agent (as the case may be) makes written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any payment of
Taxes or Other Taxes, the Domestic Borrower, on behalf of itself and the Canadian Borrower, shall
furnish to the Administrative Agent, at its address referred to in Section 15.1, the original or a
certified copy of a receipt evidencing payment thereof or other evidence of payment satisfactory to
the Administrative Agent.
(e) Delivery of Tax Forms. To the extent required by Applicable Law to reduce or
eliminate withholding or payment of taxes, each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof (including the District
of Columbia) shall deliver to the Domestic Borrower, on behalf of itself and the Canadian Borrower,
with a copy to the Administrative Agent, on the Closing Date or concurrently with the delivery of
the relevant Assignment and Acceptance, as applicable, (i) two United States Internal Revenue
Service Forms W-9, Forms W-8ECI or Forms W-8BEN, as applicable (or successor forms) properly
completed and certifying in each case that such Lender is entitled to a complete exemption from
withholding or deduction for or on account of any United States federal income taxes, and (ii) an
Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding taxes. Each such Lender further agrees
to deliver to the Domestic Borrower, on behalf of itself and the Canadian Borrower, with a copy to
the Administrative Agent, as applicable, two Form W-9, Form W-8BEN or W-8ECI, or successor
applicable forms or manner of certification, as the case may be, on or before the date that any
such form expires or becomes obsolete or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Domestic Borrower, on behalf of itself and
the Canadian Borrower, certifying in the case of a Form W-9, Form W-8BEN or W-8ECI (or successor
forms) that such Lender is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes (unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders such forms inapplicable or the
exemption to which such
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forms relate unavailable and such Lender notifies the Domestic Borrower, on behalf of itself and
the Canadian Borrower, and the Administrative Agent that it is not entitled to receive payments
without deduction or withholding of United States federal income taxes) and, in the case of a Form
W-9, Form W-8BEN or W-8ECI, establishing an exemption from United States backup withholding tax.
Notwithstanding anything in any Loan Document to the contrary, the Borrowers shall not be required
to pay additional amounts to any Lender or the Administrative Agent under this Section 5.14 or
Section 5.11(c), (i) if such Lender or the Administrative Agent fails to comply with the
requirements of this Section 5.14(e), other than to the extent that such failure is due to a
change in Applicable Law occurring after the date on which such Lender or the Administrative Agent
became a party to this Agreement or (ii) that are the result of such Lender’s or the
Administrative Agent’s gross negligence or willful misconduct, as applicable.
(f) Survival. Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained in this Section 5.14
shall survive the payment in full of the Obligations and the termination of the Commitments.
SECTION 5.15 Replacement of Lenders.
(a) If any Lender requests compensation pursuant to Section 5.11 or Section 5.13, or if the
Domestic Borrower or the Canadian Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 5.14, then such
Lender shall use reasonable efforts to designate a different lending office for funding or booking
its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 5.11, Section 5.13 or Section 5.14,
as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation pursuant to Section 5.11 or Section 5.13, or if the
Domestic Borrower or the Canadian Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 5.14, then the Domestic Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 15.10), all of its interests,
rights and obligations under this Agreement to a Purchaser that shall assume such obligations
(which Purchaser may be another Lender, if a Lender accepts such assignment); provided that
(i) the Domestic Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon,
accrued fees, breakage costs and all other amounts payable to it hereunder, from the Purchaser (to
the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation pursuant to Section 5.11 or Section 5.13, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any such
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assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise,
the circumstances entitling the Domestic Borrower to require such assignment and delegation cease
to apply.
(c) To the extent that any Lender (a “Replaced Lender”) is required to assign all of
its interests, rights and obligations under this Agreement to a Purchaser (a “Replacement
Lender”) pursuant to this Section 5.15, upon the execution of all applicable assignment
documents and the satisfaction of all other conditions set forth herein, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to be a Lender hereunder,
except with respect to the indemnification provisions under this Agreement, which provisions shall
survive as to such Replaced Lender.
SECTION 5.16 Guaranty Requirements.
(a) The Obligations of the Domestic Borrower shall be guarantied by the Material Domestic
Subsidiaries pursuant to the Domestic Subsidiary Guaranty Agreement (including, without limitation,
each supplement executed pursuant thereto).
(b) The Obligations of the Canadian Borrower shall be guarantied by (i) the Material Domestic
Subsidiaries pursuant to the Domestic Subsidiary Guaranty Agreement (including, without limitation,
each supplement executed pursuant thereto), (ii) the Material Canadian Subsidiaries pursuant to the
Canadian Subsidiary Guaranty Agreement (including, without limitation, each supplement executed
pursuant thereto) and (iii) the Domestic Borrower pursuant to the Domestic Borrower Guaranty
Agreement.
(c) The Domestic Borrower shall deliver to the Agent, together with each delivery of financial
statements and related Officer’s Compliance Certificates required under Sections 8.1 and 8.2, a
list identifying its Material Subsidiaries and its non-Material Subsidiaries. The Domestic Borrower
shall certify, together with such list, that (x) Subsidiaries with assets equal to or in excess of
90% of the aggregate amount of assets for all of its Subsidiaries constitute Material Subsidiaries
and have guaranteed the Obligations and (y) Subsidiaries with sales equal to or in excess of 90% of
the aggregate amounts of sales for all of its Subsidiaries constitute Material Subsidiaries and
have guaranteed the Obligations. Each of such Material Subsidiaries shall guaranty the Obligations
as and to the extent required by this Agreement and the other Loan Documents.
ARTICLE VI
CLOSING: CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the offices of Sidley Xxxxxx
Xxxxx & Xxxx LLP at 10:00 a.m. on August 31, 2005, or on such other date and time, or such other
place as the parties hereto shall mutually agree.
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit. The obligation of
the Lenders to close this Agreement and to make the initial Loan or issue or participate in the
initial Letter of Credit, if any, is subject to the satisfaction of each of the following
conditions:
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(a) Executed Loan Documents. The following Loan Documents in form and
substance satisfactory to the Administrative Agent and each Lender:
(i) this Agreement;
(ii) the Revolving Credit Notes (as applicable);
(iii) the Swingline Note (as applicable);
(iv) the Alternative Currency Note (as applicable);
(v) the Subsidiary Guaranty Agreements; and
(vi) all other applicable Loan Documents;
shall have been duly authorized, executed and delivered to the Administrative Agent by the parties
thereto, shall be in full force and effect and no Default or Event of Default shall exist
thereunder, and the Borrowers shall have delivered original counterparts thereof to the
Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer’s Certificate of the Domestic Borrower. The Administrative Agent shall
have received a certificate from a Responsible Officer of the Domestic Borrower, in form and
substance satisfactory to the Administrative Agent, to the effect that all representations and
warranties of the Domestic Borrower and its Subsidiaries contained in this Agreement and the other
Loan Documents are true, correct and complete; that the Domestic Borrower and its Subsidiaries are
not in violation of any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement, no Default or Event
of Default has occurred and is continuing; and that the Domestic Borrower and its Subsidiaries have
satisfied each of the closing conditions.
(ii) Certificate of Secretary of the Borrowers and the Material Subsidiaries. The
Administrative Agent shall have received a certificate of the secretary or assistant secretary of
each Borrower and each Material Subsidiary certifying as to the incumbency and genuineness of the
signature of each officer of each Borrower and each Material Subsidiary executing Loan Documents to
which it is a party and certifying that attached thereto is a true, correct and complete copy of
(A) the articles of incorporation of such Borrower or such Material Subsidiary and all amendments
thereto, certified as of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (B) the bylaws of such Borrower or such Material Subsidiary as in
effect on the date of such certifications, (C) resolutions duly adopted by the Board of Directors
of such Borrower or such Material Subsidiary authorizing the borrowings contemplated hereunder, the
delivery of the Domestic Borrower Guaranty Agreement or the delivery of the Subsidiary Guaranty
Agreements, as the case may be, and the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party, and (D) each certificate required to be delivered
pursuant to Section 6.2(b)(iii).
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(iii) Certificates of Good Standing of the Borrowers and the Material Subsidiaries.
The Administrative Agent shall have received certificates as of a recent date of the good standing
of each Borrower and each Material Subsidiary under the laws of its jurisdiction of organization
and, to the extent requested by the Administrative Agent, each other jurisdiction where each
Borrower and each Material Subsidiary is qualified to do business and a certificate of the relevant
taxing authorities of such jurisdictions certifying that such Person has filed required tax returns
and owes no delinquent taxes.
(iv) Opinions of Counsel.
(A) The Administrative Agent shall have received favorable opinions of counsel to the
Domestic Borrower and the Material Domestic Subsidiaries addressed to the Administrative
Agent and the Lenders with respect to the Domestic Borrower, the Material Subsidiaries, the
Loan Documents and such other matters as the Lenders shall request.
(B) The Administrative Agent shall have received favorable opinions of counsel to the
Canadian Borrower and the Material Canadian Subsidiaries addressed to the Administrative Agent
and the Lenders with respect to the Canadian Borrower, the Material Canadian Subsidiaries, the
Loan Documents and such other matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received copies of the United
States Internal Revenue Service forms required by Section 5.14(e).
(c) Hazard and Liability Insurance. The Administrative Agent shall have received
certificates of insurance, evidence of payment of all insurance premiums for the current policy
year of each, and, if requested by the Administrative Agent, copies (certified by a Responsible
Officer of the Domestic Borrower) of insurance policies in form and substance reasonably
satisfactory to the Administrative Agent, and a complete list of all insurance required pursuant to
Section 9.3.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. Each Borrower and each Material Subsidiary
shall have obtained all necessary approvals, authorizations and consents of any Person and of all
Governmental Authorities and courts having jurisdiction with respect to the transactions
contemplated by this Agreement and the other Loan Documents, all in form and substance satisfactory
to the Administrative Agent.
(ii) No Injunction, Etc. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any Governmental Authority to
enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related
to or arises out of this Agreement or the other Loan Documents or the consummation of the
transactions contemplated hereby or thereby, or which, in the Administrative Agent’s sole
discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement
and such other Loan Documents.
(iii) No Event of Default. No Default or Event of Default shall have occurred and be
continuing.
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(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have received the most
recent audited Consolidated financial statements of the Domestic Borrower and its Subsidiaries,
all in form and substance satisfactory to the Administrative Agent and prepared in accordance with
GAAP.
(ii) Financial Condition Certificate. The Domestic Borrower, on behalf of itself and
the Canadian Borrower, shall have delivered to the Administrative Agent a certificate, in form and
substance satisfactory to the Administrative Agent, and certified as accurate by a Responsible
Officer of the Domestic Borrower, that (A) the Domestic Borrower and each of its Subsidiaries are
each Solvent, (B) the payables of the Domestic Borrower and each of its Subsidiaries are current
and not past due in any material respect, (C) attached thereto are calculations evidencing
compliance on a pro forma basis with the covenants contained in Article X, (D) the
financial projections previously delivered to the Administrative Agent represent the good faith
estimates (utilizing reasonable assumptions) of the financial condition and operations of the
Domestic Borrower and its Subsidiaries, (E) attached thereto is a calculation of the Applicable
Margin pursuant to Section 5.1(c) and the Commitment Fee Rate pursuant to Section 5.3(a) and (F)
attached thereto are the calculations of the book value of the assets of the Domestic Borrower and
each of its Subsidiaries for the purpose of determining which Subsidiaries are Material
Subsidiaries on the Closing Date.
(iii) Payment at Closing; Fee Letters. The Borrowers shall have paid to the
Administrative Agent and the Lenders the fees set forth or referenced in Section 5.3 and any other
accrued and unpaid fees or commissions due hereunder (including, without limitation, legal fees and
expenses) and to any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in connection with
the execution, delivery, recording, filing and registration of any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have received a Notice of
Borrowing, as applicable, from the Domestic Borrower, on behalf of itself and the Canadian
Borrower, in accordance with Section 2.4 and Section 4.2, and a Notice of Account Designation
specifying the account or accounts to which the proceeds of any Loans made after the Closing Date
are to be disbursed.
(ii) Other Documents. All opinions, certificates and other instruments and all
proceedings in connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent. The Administrative Agent shall have
received copies of all other documents, certificates and instruments reasonably requested thereby
with respect to the transactions contemplated by this Agreement, all in form and substance
satisfactory to the Administrative Agent.
SECTION 6.3 Conditions to All Extensions of Credit. The obligations of the Lenders to
make any Extensions of Credit (including the initial Extension of Credit), convert or continue
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any Loan and/or the Issuing Lender to issue or extend any Letter of Credit are subject to the
satisfaction of the following conditions precedent on the relevant borrowing, conversion,
continuation, issuance or extension date:
(a) Continuation of Representations and Warranties. The representations and warranties
contained in Article VII shall be true and correct on and as of such borrowing, conversion,
continuation, issuance or extension date with the same effect as if made on and as of such date;
except for any representation and warranty made as of an earlier date, which representation and
warranty shall remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have occurred and be
continuing (i) on the borrowing, conversion or continuation date with respect to such Loan or after
giving effect to the Loans to be made, converted or continued on such date or (ii) on the issue
date with respect to such Letter of Credit or after giving effect to the issuance or extension of
such Letter of Credit on such date.
(c) Compliance with Borrowing Limits. The Borrowers shall have demonstrated compliance
with Section 2.6(b), (i) on the borrowing, conversion or continuation date with respect to such
Loan or after giving effect to the Loans to be made, converted or continued on such date or (ii) on
the issue date with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(d) Applicable Notices. The Administrative Agent shall have received a Notice a
Borrowing or Notice of Conversion/Continuation, as applicable, from the Domestic Borrower, on
behalf of itself and the Canadian Borrower, in accordance with Section 2.4, Section 4.2 or Section
5.2.
(e) Additional Documents. The Administrative Agent shall have received each additional
document, instrument, legal opinion or other item reasonably requested by it, each of which shall
be in form and substance satisfactory to the Administrative Agent.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
SECTION 7.1 Representations and Warranties. To induce the Administrative Agent and the
Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the
Borrowers hereby represent and warrant to the Administrative Agent and Lenders both before and
after giving effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Domestic Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, has the power and authority to own its properties
and to carry on its business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and authorization except where
failure to be so qualified and authorized could not reasonably be expected to have a Material
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Adverse Effect. The jurisdictions in which the Domestic Borrower and its Subsidiaries are
organized as of the Closing Date are described on Schedule 7.1(a).
(b) Ownership. Schedule 7.1(b) lists each Subsidiary of the Domestic Borrower
as of the Closing Date and identifies which Subsidiaries are Material Domestic Subsidiaries or
Material Canadian Subsidiaries. As of the Closing Date, the capitalization of the Domestic Borrower
and its Subsidiaries consists of the number of shares, authorized, issued and outstanding, of such
classes and series, with or without par value, described on
Schedule 7.1(b). All
outstanding shares have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof, and not subject to
any preemptive or similar rights. The shareholders of the Subsidiaries of the Domestic Borrower and
the number of shares owned by each as of the Closing Date are described on Schedule 7.1(b). As of the Closing Date, there are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the issuance of capital stock
of the Domestic Borrower or its Subsidiaries, except as described on Schedule 7.1(b).
(c) Authorization
of Agreement, Loan Documents and Borrowing. Each of the Domestic
Borrower and its Subsidiaries has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance of this Agreement
and each of the other Loan Documents to which it is a party in accordance with their respective
terms. This Agreement and each of the other Loan Documents have been duly executed and delivered by
the duly authorized officers of the Domestic Borrower and each of its Subsidiaries party thereto,
and each such document constitutes the legal, valid and binding obligation of the Domestic Borrower
or its Subsidiary party thereto, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
state or federal debtor relief laws from time to time in effect which affect the enforcement of
creditors’ rights in general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The
execution, delivery and performance by the Domestic Borrower and its Subsidiaries of the Loan
Documents to which each such Person is a party, in accordance with their respective terms, the
Extensions of Credit hereunder and the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Domestic Borrower or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute a default under the articles of incorporation,
bylaws or other organizational documents of the Domestic Borrower or any of its Subsidiaries or any
indenture, agreement or other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person, (iii) result in or
require the creation or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by such Person other than Liens arising under the Loan Documents or (iv) require
any consent or authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement.
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(e) Compliance with Law; Governmental Approvals. Each of the Domestic Borrower and its Subsidiaries (i) has all Governmental Approvals required by any Applicable
Law for it to conduct its business, each of which is in full force and effect, is final and
not subject to review on appeal and is not the subject of any pending or, to the best of its
knowledge,
threatened attack by direct or collateral proceeding, the failure of which to obtain could
reasonably be expected to have a Material Adverse Effect, (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other Applicable Laws
relating to it or any of its respective properties, the failure of which to comply with could
reasonably be expected to have a Material Adverse Effect and (iii) has timely filed all
reports,
documents and other materials required to be filed by it under all Applicable Laws with any
Governmental Authority and has retained all records and documents required to be retained by
it
under Applicable Law, the failure of which to file or retain could reasonably be expected to
have
a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Domestic Borrower and its Subsidiaries has
duly filed or caused to be filed all federal and state income tax returns, and all other material
tax returns under Applicable Law to be filed, and has paid, or made adequate provision for the
payment of, all federal and state income taxes, and all other material taxes, assessments and
governmental charges or levies upon it and its property, income, profits and assets which are due
and payable. Such returns accurately reflect in all material respects all liability for taxes of
the Domestic Borrower and its Subsidiaries for the periods covered thereby. There is no ongoing
audit or examination or, to the knowledge of the Borrowers, other investigation by any Governmental
Authority of the tax liability of the Domestic Borrower and its Subsidiaries which could reasonably
be expected to result in liability of the Domestic Borrower and its Subsidiaries in excess of
$1,000,000, except such audits, examinations or other investigations being contested by the
Domestic Borrower or such Subsidiary in good faith so long as adequate reserves are maintained with
respect thereto in accordance with GAAP. No Governmental Authority has asserted any Lien or other
claim against the Domestic Borrower or any Subsidiary thereof in excess of $1,000,000 with respect
to unpaid taxes which has not been discharged or resolved. The charges, accruals and reserves on
the books of the Domestic Borrower and any of its Subsidiaries in respect of federal, state, local
and other taxes for all Fiscal Years and portions thereof since the organization of the Domestic
Borrower and any of its Subsidiaries are in the judgment of the Borrowers adequate, and the
Borrowers do not anticipate any additional material taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the Domestic Borrower and its Subsidiaries
owns or possesses rights to use all franchises, licenses, copyrights, copyright applications,
patents, patent rights or licenses, patent applications, trademarks, trademark rights, service
marks, service xxxx rights, trade names, trade name rights, copyrights and rights with respect to
the foregoing which are required to conduct its business, except where the failure to own or
possess could not reasonably be expected to have a Material Adverse Effect. No event has occurred
which permits, or after notice or lapse of time or both would permit, the revocation or termination
of any such rights, and neither the Domestic Borrower nor any Subsidiary thereof is liable to any
Person for infringement under Applicable Law with respect to any such rights as a result of its
business operations.
(h) Environmental Matters.
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(i) The properties owned, leased or operated by the Domestic Borrower and its Subsidiaries now
or in the past do not contain, and to their knowledge have not previously contained, any Hazardous
Materials in amounts or concentrations which (A) constitute or constituted a violation of
applicable Environmental Laws or (B) could give rise to liability under applicable Environmental
Laws the result of which could reasonably be expected to have a Material Adverse Effect;
(ii) The Domestic Borrower, each Subsidiary and such properties and all operations conducted
in connection therewith are in compliance, and have been in material compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about such properties or
such operations which could interfere with the continued operation of such properties or impair the
fair saleable value thereof except to the extent any such non-compliance or contamination could not
reasonably be expected to have a Material Adverse Effect;
(iii) Neither the Domestic Borrower nor any Subsidiary thereof has received any notice of any
violation, alleged violation, non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with Environmental Laws, nor does the
Domestic Borrower or any Subsidiary thereof have knowledge or reason to believe that any such
notice will be received or is being threatened except as could not reasonably be expected to have a
Material Adverse Effect;
(iv) Hazardous Materials have not been transported or disposed of to or from the properties
owned, leased or operated by the Domestic Borrower and its Subsidiaries in violation of, or in a
manner or to a location which could give rise to liability under, Environmental Laws, nor have any
Hazardous Materials been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to liability under, any applicable
Environmental Laws that could reasonably be expected to have a Material Adverse Effect;
(v) No judicial proceedings or governmental or administrative action is pending, or, to the
knowledge of the Borrowers, threatened, under any Environmental Law to which the Domestic Borrower
or any Subsidiary thereof is or will be named as a potentially responsible party with respect to
such properties or operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to Domestic Borrower,
any Subsidiary or such properties or such operations that could reasonably be expected to have a
Material Adverse Effect; and
(vi) There has been no release, or to the best of the Borrowers’ knowledge, threat of release,
of Hazardous Materials at or from properties owned, leased or operated by the Domestic Borrower or
any Subsidiary, now or in the past, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws that could reasonably be expected to have a Material
Adverse Effect.
(i) ERISA.
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(i) As of the Closing Date, neither the Domestic Borrower nor any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Employee Benefit Plans other
than those identified on Schedule 7.1(i);
(ii) The Domestic Borrower and each ERISA Affiliate is in material compliance with all
applicable provisions of ERISA and the regulations and published interpretations thereunder with
respect to all Employee Benefit Plans except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each
Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code except for such plans that have
not yet received determination letters that were timely requested by the Domestic Borrower, or for
which the remedial amendment period for submitting a determination letter request has not yet
expired. No liability has been incurred by the Domestic Borrower or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be expected to have a Material
Adverse Effect;
(iii) As of the Closing Date, no Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred (without regard to any
waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal
Revenue Service been received or requested with respect to any Pension Plan, nor has the Domestic
Borrower or any ERISA Affiliate failed to make any contributions or to pay any amounts due and
owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Pension
Plan on or prior to the due dates of such contributions under Section 412 of the Code or Section
302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or
4063(a) of ERISA with respect to any Pension Plan;
(iv) Except where the failure of any of the following representations to be correct in all
material respects could not reasonably be expected to have a Material Adverse Effect, neither the
Domestic Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited transaction
described in Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any liability to
the PBGC which remains outstanding other than the payment of premiums and there are no premium
payments which are due and unpaid, (C) failed to make a required contribution or payment to a
Multiemployer Plan, or (D) failed to make a required installment or other required payment under
Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) Except where the failure of any of the following representations to be correct in all
material respects could not reasonably be expected to have a Material Adverse Effect, no
proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or
investigation is existing or, to the best knowledge of the Borrowers after due inquiry, threatened
concerning or involving any (A) employee welfare benefit plan (as defined in
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Section 3(1) of ERISA) currently maintained or contributed to by the Domestic Borrower or any
ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Domestic Borrower nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or
indirectly, in Regulation U of the Board of Governors of the Federal Reserve System). No part of
the proceeds of any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent with, the
provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Domestic Borrower nor any Subsidiary thereof is
an “investment company” or a company “controlled” by an “investment company” (as each such term is
defined or used in the Investment Company Act of 1940, as amended) and neither the Domestic
Borrower nor any Subsidiary thereof is, or after giving effect to any Extension of Credit will be,
subject to regulation under the Public Utility Holding Company Act of 1935 or the Interstate
Commerce Act, each as amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 7.1(1) sets forth a complete and accurate
list of all Material Contracts of the Domestic Borrower and its Subsidiaries in effect as of the
Closing Date not listed on any other Schedule hereto; other than as set forth in Schedule
7.1(1), each such Material Contract is, and after giving effect to the consummation of the
transactions contemplated by the Loan Documents will be, in full force and effect in accordance
with the terms thereof. The Domestic Borrower and its Subsidiaries have delivered to the
Administrative Agent a true and complete copy of each Material Contract required to be listed on
Schedule 7.1(1) or any other Schedule hereto. Neither the Domestic Borrower nor any
Subsidiary (nor, to the knowledge of the Borrowers, any other party thereto) is in breach of or in
default under any Material Contract in any material respect.
(m) Employee Relations. Each of the Domestic Borrower and its Subsidiaries has a
stable work force in place and is not, as of the Closing Date, party to any collective bargaining
agreement nor has any labor union been recognized as the representative of its employees except as
set forth on Schedule 7.1(m). The Borrowers know of no pending, threatened or contemplated
strikes, work stoppage or other collective labor disputes involving its employees or those of its
Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
(n) Burdensome Provisions. Neither the Domestic Borrower nor any Subsidiary thereof is
a party to any indenture, agreement, lease or other instrument, or subject to any corporate or
partnership restriction, Governmental Approval or Applicable Law which is so unusual or burdensome
as in the foreseeable future could be reasonably expected to have a Material Adverse Effect. The
Domestic Borrower and its Subsidiaries do not presently anticipate that future expenditures needed
to meet the provisions of any statutes, orders, rules or regulations of a Governmental Authority
will be so burdensome as to have a Material Adverse Effect. No Subsidiary is party to any agreement
or instrument or otherwise subject to any restriction or encumbrance that restricts or limits its
ability to make dividend payments or other distributions in respect of its capital stock to the
Domestic Borrower or any Subsidiary or to transfer any of its
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assets or properties to the Domestic Borrower or any other Subsidiary in each case other than
existing under or by reason of the Loan Documents or Applicable Law.
(o) Financial Statements. The (i) audited Consolidated balance sheet of the Domestic
Borrower and its Subsidiaries as of June 30, 2004 and the related audited statements of income and
retained earnings and cash flows for the Fiscal Year then ended and (ii) unaudited Consolidated
balance sheet of the Domestic Borrower and its Subsidiaries as of March 30, 2005 and related
unaudited interim statements of income and retained earnings, copies of which have been furnished
to the Administrative Agent and each Lender, are complete and correct in all material respects and
fairly present on a Consolidated basis the assets, liabilities and financial position of the
Domestic Borrower and its Subsidiaries as at such dates, and the results of the operations and
changes of financial position for the periods then ended (other than customary, year end
adjustments for unaudited financial statements). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP. The Domestic
Borrower and its Subsidiaries have no Debt, obligation or other unusual forward or long-term
commitment which is not fairly reflected in the foregoing financial statements or in the notes
thereto.
(p) No Material Adverse Change. Since June 30, 2004, there has been no material
adverse change in the properties, business, operations, prospects, or condition (financial or
otherwise) of the Domestic Borrower and its Subsidiaries and no event has occurred or condition
arisen that could reasonably be expected to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each Extension of
Credit made hereunder, the Domestic Borrower and each of its Subsidiaries will be Solvent.
(r) Titles to Properties. Each of the Domestic Borrower and its Subsidiaries has such
title to the real property owned or leased by it as is necessary or desirable to the conduct of its
business and valid and legal title to all of its personal property and assets, including, but not
limited to, those reflected on the balance sheets of the Domestic Borrower and its Subsidiaries
delivered pursuant to Section 7.1(o), except those which have been disposed of by the Domestic
Borrower or its Subsidiaries subsequent to such date which dispositions have been in the ordinary
course of business or as otherwise expressly permitted hereunder or where the failure to own or
lease could not reasonably be expected to have a Material Adverse Effect.
(s) Liens. None of the properties and assets of the Domestic Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to Section 11.2. Except
to perfect those Liens permitted by Section 11.2, no financing statement under the Uniform
Commercial Code of any state which names the Domestic Borrower or any Subsidiary thereof or any of
their respective trade names or divisions as debtor and which has not been terminated, has been
filed in any state or other jurisdiction with the consent of the Domestic Borrower or such
Subsidiary and neither the Domestic Borrower nor any Subsidiary thereof has signed any such
financing statement or any security agreement authorizing any secured party thereunder to file any
such financing statement.
(t) Debt and Guaranty Obligations. Schedule 7.1(t) is a complete and correct
listing of each Debt and Guaranty Obligation of the Domestic Borrower and its Subsidiaries as of
the
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Closing Date in excess of $5,000,000. The Domestic Borrower and its Subsidiaries have performed
and are in compliance with all of the terms of such Debt and Guaranty Obligations and all
instruments and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a default or event of
default on the part of the Domestic Borrower or any of its Subsidiaries exists with respect to any
such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set forth on
Schedule 7.1(u), there are no actions, suits or proceedings pending nor, to the knowledge
of the Borrowers, threatened against or in any other way relating adversely to or affecting the
Domestic Borrower or any Subsidiary thereof or any of their respective properties reasonably
likely to result in a judgment for damages in excess of $5,000,000 in any court or before any
arbitrator of any kind or before or by any Governmental Authority.
(v) Absence of Defaults. No event has occurred or is continuing which constitutes a
Default or an Event of Default, or which constitutes, or which with the passage of time or giving
of notice or both would constitute, a default or event of default by the Domestic Borrower or any
Subsidiary thereof under any Material Contract or judgment, decree or order to which the Domestic
Borrower or its Subsidiaries is a party or by which the Domestic Borrower or its Subsidiaries or
any of their respective properties may be bound or which would require the Domestic Borrower or its
Subsidiaries to make any payment thereunder prior to the scheduled maturity date therefor.
(w) Senior Debt Status. The Obligations of the Borrowers and each of their
Subsidiaries under this Agreement and each of the other Loan Documents ranks and shall continue to
rank at least senior in priority of payment to all Subordinated Debt and at least pari passu in
priority of payment to all senior unsecured Debt of each such Person and is designated as “Senior
Indebtedness” under all instruments and documents, now or in the future, relating to all
Subordinated Debt of such Person.
(x) Accuracy and Completeness of Information. All written information, reports and
other papers and data produced by or on behalf of the Domestic Borrower or any Subsidiary thereof
(other than financial projections, which shall be subject to the standard set forth in Section
8.1(c)) and furnished to the Lenders were, at the time the same were so furnished, complete and
correct in all material respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by the Domestic Borrower or any Subsidiary thereof in
connection with the negotiation, preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact material to the creditworthiness
of the Domestic Borrower or its Subsidiaries or omits or will omit to state a fact necessary in
order to make the statements contained therein not materially misleading. The Borrowers are not
aware of any facts which they have not disclosed in writing to the Administrative Agent having a
Material Adverse Effect, or insofar as the Borrowers can now foresee, which could reasonably be
expected to have a Material Adverse Effect.
SECTION
7.2 Survival of Representations and Warranties, Etc. All representations and
warranties set forth in this Article VII and all representations and warranties contained in any
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certificate, or any of the Loan Documents (including but not limited to any such representation or
warranty made in or in connection with any amendment thereto) shall constitute representations and
warranties made under this Agreement. All representations and warranties made under this Agreement
shall be made or deemed to be made at and as of the Closing Date (except those that are expressly
made as of a specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or
any borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the Commitments terminated,
unless consent has been obtained in the manner set forth in Section 15.11, the Domestic Borrower,
on behalf of itself and the Canadian Borrower, will furnish or cause to be furnished to the
Administrative Agent at its address set forth in Section 15.1 and to the Lenders at their
respective addresses as set forth on Schedule 1.1(a), or such other office as may be
designated by the Administrative Agent and the Lenders from time to time:
SECTION 8.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any event within
fifty (50) days after the end of each fiscal quarter of each Fiscal Year, an unaudited
Consolidated and consolidating balance sheet of the Domestic Borrower and its Subsidiaries as of
the close of such fiscal quarter and unaudited Consolidated and consolidating statements of
income, retained earnings and cash flows for the fiscal quarter then ended and that portion of the
Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the corresponding period in
the preceding Fiscal Year and prepared by the Domestic Borrower in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or results of operations
of any change in the application of accounting principles and practices during the period, and
certified by the chief financial officer of the Domestic Borrower to present fairly in all
material respects the financial condition of the Domestic Borrower and its Subsidiaries on a
Consolidated and consolidating basis as of their respective dates and the results of operations of
the Domestic Borrower and its Subsidiaries for the respective periods then ended, subject to
normal year end adjustments (it being agreed that the requirements of this subsection may be
satisfied by delivery of the applicable quarterly report on Form 10-Q of the Domestic Borrower to
the Securities and Exchange Commission to the extent that: (i) it contains the foregoing
information, (ii) it is delivered within the applicable time period noted herein and is available
to the Lenders on XXXXX and (iii) the Domestic Borrower notifies the Lenders within the time
period noted herein that it is available to them on XXXXX).
(b) Annual Financial Statements. As soon as practicable and in any event within
ninety-five (95) days after the end of each Fiscal Year, an audited Consolidated balance sheet of
the Domestic Borrower and its Subsidiaries as of the close of such Fiscal Year and audited
Consolidated statements of income, retained earnings and cash flows for the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in comparative form
the
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corresponding figures as of the end of and for the preceding Fiscal Year and prepared by an
independent certified public accounting firm acceptable to the Administrative Agent in accordance
with GAAP and, if applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles and practices
during the year, and accompanied by an unqualified audit report thereon by such certified public
accountants (it being agreed that the requirements of this subsection may be satisfied by delivery
of the applicable annual report on Form 10-K of the Domestic Borrower to the Securities and
Exchange Commission to the extent that: (i) it contains the foregoing information, (ii) it is
delivered within the applicable time period noted herein and is available to the Lenders on XXXXX
and (iii) the Domestic Borrower notifies the Lenders within the time period noted herein that it is
available to them on XXXXX).
(c) Annual Business Plan and Financial Projections. As soon as practicable and in any
event within ninety-five (95) days after the beginning of each Fiscal Year, a business plan of the
Domestic Borrower and its Subsidiaries (i) for the ensuing four (4) fiscal quarters, on a quarterly
basis, and (ii) for each ensuing Fiscal Year for the remaining term of this Agreement, on an annual
basis, such plan to be prepared in accordance with GAAP and to include, on a quarterly or annual
basis, as applicable, the following: an operating and capital budget, a projected income statement,
statement of cash flows and balance sheet and a report containing management’s discussion and
analysis of such projections, accompanied by a certificate from the chief financial officer of the
Domestic Borrower to the effect that, to the best of such officer’s knowledge, such projections are
good faith estimates (utilizing reasonable assumptions) of the financial condition and operations
of the Domestic Borrower and its Subsidiaries for such periods.
SECTION 8.2 Officer’s Compliance Certificate. At each time financial statements are
delivered pursuant to Sections 8.1(a) or (b) and at such other times as the Administrative Agent
shall reasonably request, a certificate of the chief financial officer or the treasurer of the
Domestic Borrower in the form of Exhibit F attached hereto (an “Officer’s Compliance
Certificate”).
SECTION 8.3 Accountants’ Certificate. At each time financial statements are delivered
pursuant to Section 8.1(b), a certificate of the independent public accountants certifying such
financial statements addressed to the Administrative Agent, for the benefit of the Administrative
Agent and the Lenders:
(a) stating that in making the examination necessary for the certification of such financial
statements, they obtained no knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required to establish whether or
not the Domestic Borrower and its Subsidiaries are in compliance with the financial covenants set
forth in Article X as at the end of each respective period.
SECTION 8.4 Other Reports.
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(a) Promptly upon receipt thereof, copies of all reports, if any, submitted to any Borrower or
its Board of Directors by its independent public accountants in connection with their auditing
function, including, without limitation, any management report and any management responses
thereto; and
(b) Such other information regarding the operations, business affairs and financial condition
of each Borrower and each Subsidiary thereof as any Agent or any Lender may reasonably request.
SECTION 8.5 Notice of Litigation and Other Matters. Prompt (but in no event later
than ten (10) days after an officer of any Borrower obtains knowledge thereof) telephonic and
written notice of:
(a) the commencement of (i) all proceedings and investigations by or before any Governmental
Authority involving the Domestic Borrower or any Subsidiary thereof or any of their respective
properties, assets or businesses and (ii) all actions and proceedings in any court or before any
arbitrator reasonably likely to involve a claim for damages in excess of $5,000,000 against the
Domestic Borrower or any Subsidiary thereof or any of their respective properties, assets or
businesses;
(b) any notice of any violation received by the Domestic Borrower or any Subsidiary thereof
from any Governmental Authority including, without limitation, any notice of violation of
Environmental Laws, which in any such case could reasonably be expected to have a Material Adverse
Effect;
(c) any labor controversy that has resulted in, or threatens to result in, a strike or
other work action against the Domestic Borrower or any Subsidiary thereof which could
reasonably be expected to have a Material Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding $5,000,000 that may be assessed
against or threatened against the Domestic Borrower or any Subsidiary thereof;
(e) (i) any Default or Event of Default, (ii) the occurrence or existence of any event or
circumstance that foreseeably will become a Default or Event of Default or (iii) any event which
constitutes or which with the passage of time or giving of notice or both would constitute a
default or event of default under any Material Contract to which the Domestic Borrower or any of
its Subsidiaries is a party or by which the Domestic Borrower or any of its Subsidiaries or any of
their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code (along with a copy
thereof), (ii) all notices received by the Domestic Borrower or any ERISA Affiliate of the PBGC’s
intent to terminate any Pension Plan or to have a trustee appointed to administer any Pension Plan,
(iii) all notices received by the Domestic Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to Section 4202
of ERISA unless such liability could not reasonably be expected to have a Material Adverse Effect
and (iv) the Domestic Borrower obtaining knowledge or reason to know that the Domestic Borrower or
any ERISA Affiliate has filed or intends to file a notice
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of intent to terminate any Pension Plan under a distress termination within the meaning of
Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth in Section 7.1 inaccurate
in any respect.
SECTION 8.6 Accuracy of Information. All written information, reports, statements and
other papers and data furnished by or on behalf of the Borrowers to any Agent or any Lender
whether pursuant to this Article VIII or any other provision of this Agreement, shall, at the time
the same is so furnished, comply with the representations and warranties set forth in Section
7.1(x).
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner provided for in Section 15.11, the
Domestic Borrower will, and will cause each of its Subsidiaries to:
SECTION 9.1 Preservation of Corporate Existence and Related Matters. Except as
permitted by Section 11.4, preserve and maintain its separate corporate existence and all rights,
franchises, licenses and privileges necessary to the conduct of its business, and qualify and
remain qualified as a foreign corporation and authorized to do business in each jurisdiction in
which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.
SECTION 9.2 Maintenance of Property. Protect and preserve all properties useful in and
material to its business, including copyrights, patents, trade names, service marks and trademarks;
maintain in good working order and condition all material buildings, equipment and other tangible
real and personal property; and make or cause to be made all renewals, replacements and additions
to such property necessary for the conduct of its business, so that the business carried on in
connection therewith may be conducted in a commercially reasonable manner.
SECTION 9.3 Insurance. Maintain insurance with financially sound and reputable
insurance companies against such risks and in such amounts as are customarily maintained by similar
businesses and as may be required by Applicable Law and, on the Closing Date and from time to time
thereafter, deliver to the Administrative Agent upon request a detailed list of the insurance then
in effect, stating the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered thereby.
SECTION 9.4 Accounting Methods and Financial Records. Maintain a system of accounting,
and keep such books, records and accounts (which shall be true and complete in all material
respects) as may be required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 9.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or perform (a) all
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material taxes, assessments and other governmental charges that may be levied or assessed upon it
or any of its property, and (b) all other indebtedness, obligations and liabilities in accordance
with customary trade practices; provided, that the Domestic Borrower or such Subsidiary
may contest any item described in clauses (a) or (b) of this Section 9.5 in good faith so long as
adequate reserves are maintained with respect thereto in accordance with GAAP.
SECTION 9.6 Compliance With Laws and Approvals. Observe and remain in compliance in
all material respects with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business, the failure of
which to observe or comply with could reasonably be expected to have a Material Adverse Effect.
SECTION 9.7 Environmental Laws. In addition to and without limiting the generality of
Section 9.6, (a) materially comply with, and ensure such material compliance by all tenants and
subtenants, if any, with all applicable Environmental Laws and obtain and materially comply with
and maintain, and ensure that all tenants and subtenants, if any, obtain and materially comply with
and maintain, any and all material licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws, (b) conduct and complete all necessary investigations,
studies, sampling and testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws, and (c) defend, indemnify and hold harmless the
Administrative Agent and the Lenders, and their respective parents, Subsidiaries, Affiliates,
employees, agents, officers and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the presence of Hazardous
Materials, or the violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Domestic Borrower or any such Subsidiary, or any orders,
requirements or demands of Governmental Authorities related thereto, including, without limitation,
reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs,
court costs and litigation expenses, except to the extent that any of the foregoing directly result
from the gross negligence or willful misconduct of the party seeking indemnification therefor.
SECTION 9.8 Compliance with ERISA. In addition to and without limiting the generality
of Section 9.6, (a) except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with all material
applicable provisions of ERISA and the regulations and published interpretations thereunder with
respect to all Employee Benefit Plans, (ii) not take any action or fail to take action the result
of which could be a liability to the PBGC or to a Multiemployer Plan, excluding any liability
incurred in the ordinary course for plan contributions, PBGC insurance premiums or withdrawal
liability that the responsible Person will timely pay or contest pursuant to Applicable Law, (iii)
not participate in any prohibited transaction that could result in any civil penalty under ERISA or
tax under the Code and (iv) operate each Employee Benefit Plan in such a manner that will not incur
any tax liability under Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative Agent upon request such
additional information about any Employee Benefit Plan as may be reasonably requested by the
Administrative Agent.
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SECTION 9.9 Compliance With Agreements. Comply in all material respects with each
term, condition and provision of all material leases, agreements and other instruments entered into
in the conduct of its business including, without limitation, any Material Contract; provided,
that the Domestic Borrower or any such Subsidiary may contest any such lease, agreement or
other instrument in good faith through applicable proceedings so long as adequate reserves are
maintained in accordance with GAAP.
SECTION 9.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its principal officers,
and its independent accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
SECTION 9.11 Additional Subsidiaries.
(a) Upon (i) the creation or acquisition of any Material Domestic Subsidiary or (ii) any
Domestic Subsidiary becoming a Material Domestic Subsidiary or being designated or identified as a
Material Domestic Subsidiary in accordance with the terms of this Agreement, cause to be executed
and delivered to the Administrative Agent (A) a supplement to the Domestic Subsidiary Guaranty
Agreement (pursuant to which such Material Domestic Subsidiary shall become party to the Domestic
Subsidiary Guaranty Agreement), (B) such closing documents and closing certificates of the type
required to be delivered pursuant to Section 6.2(b), including, without limitation, favorable legal
opinions addressed to the Administrative Agent and the Lenders in form and substance reasonably
satisfactory thereto with respect to such duly executed supplement to the Domestic Subsidiary
Guaranty Agreement (and any other applicable Loan Documents to which such Material Domestic
Subsidiary shall become party thereto in connection therewith), in each case as may reasonably be
requested by the Administrative Agent, and (C) such other documents and certificates as may be
requested by the Administrative Agent.
(b) Upon (i) the creation or acquisition of any Material Canadian Subsidiary or (ii) any
Canadian Subsidiary becoming a Material Canadian Subsidiary or being designated or identified as a
Material Canadian Subsidiary in accordance with the terms of this Agreement, cause to be executed
and delivered to the Administrative Agent (A) a supplement to the Canadian Subsidiary Guaranty
Agreement (pursuant to which such Material Canadian Subsidiary shall become party to the Canadian
Subsidiary Guaranty Agreement), (B) such closing documents and closing certificates of the type
required to be delivered pursuant to Section 6.2(b), including, without limitation, favorable legal
opinions addressed to the Administrative Agent and the Lenders in form and substance reasonably
satisfactory thereto with respect to such duly executed supplement to the Canadian Subsidiary
Guaranty Agreement (and any other applicable Loan Documents to which such Material Canadian
Subsidiary shall become party thereto in connection therewith), in each case as may reasonably be
requested by the Administrative Agent, and (C) such other documents and certificates as may be
requested by the Administrative Agent.
(c) No Subsidiary formed solely to act as a special purpose entity in connection with a
Qualified Receivables Transaction shall be required to act as a guarantor under or in
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connection herewith so long as such Subsidiary remains a special purpose entity and is solely party
to the applicable Qualified Receivables Transaction.
SECTION 9.12 Use of Proceeds. The Borrowers shall use the proceeds of the
Extensions of Credit (a) to finance the acquisition of Capital Assets, (b) to finance acquisitions
permitted hereunder and (c) for working capital and general corporate requirements of the Borrowers
and their Subsidiaries, including the payment of certain fees and expenses incurred in connection
with the transactions.
SECTION 9.13 Further Assurances. Make, execute and deliver all such additional
and further acts, things, deeds and instruments as the Administrative Agent or the Required Lenders
(through the Administrative Agent) may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the Administrative Agent and
the Lenders their respective rights under this Agreement, the Notes, the Letters of Credit and the
other Loan Documents.
ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner set forth in Section 15.11, the Domestic
Borrower and its Subsidiaries on a Consolidated basis will not:
SECTION 10.1 Leverage Ratio. As of any fiscal quarter end, permit the ratio of
(a) Total Debt on such date to (b) EBITDA for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such quarter end to be greater than (1) 3.50 to 1.00 if such
fiscal quarter ends at any time other than during the Acquisition Period and (2) 3.75 to 1.00 if
such fiscal quarter ends during the Acquisition Period; provided, that the applicable Leverage
Ratio Acquisition shall not cause the Leverage Ratio to exceed 3.50 to 1.00 on a pro forma basis
subsequent to the consummation thereof; provided further, that the Domestic Borrower and its
Subsidiaries shall be subject to the restrictions on the use of the Acquisition Period as described
in the definition thereof.
SECTION 10.2 Interest Coverage Ratio. As of any fiscal quarter end, permit the
ratio of (a) EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately
prior to such date to (b) Interest Expense for the period of four (4) consecutive fiscal quarters
ending on or immediately prior to such quarter end to be less than 3.00 to 1.00.
SECTION 10.3 Net Worth. As of the end of any fiscal quarter, permit Net Worth
to be less than (a) $370,000,000 plus (b) fifty percent (50%) of Net Income (if positive)
for each fiscal quarter ending after September 30, 2005 plus (c) fifty percent (50%) of Net
Cash Proceeds received by the Domestic Borrower or any Subsidiary thereof from any equity issuance
after September 30, 2005.
ARTICLE XI
NEGATIVE COVENANTS
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Until all of the Obligations have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner set forth in Section 15.11, the Domestic
Borrower has not and will not permit any of its Subsidiaries to:
SECTION 11.1 Limitations on Debt. Create, incur, assume or suffer to exist any
Debt except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b));
(b) Debt incurred in connection with a Hedging Agreement with a counterparty and upon terms
and conditions (including interest rate) reasonably satisfactory to the Administrative Agent;
provided, that any counterparty that is a Lender or an Affiliate of a Lender shall be
deemed satisfactory to the Administrative Agent.
(c) Debt existing on the Closing Date and not otherwise permitted under this Section 11.1, as
set forth on Schedule 11.1, and the renewal, refinancing, extension and replacement (but
not the increase in the aggregate principal amount) thereof;
(d) Debt of the Domestic Borrower and its Subsidiaries incurred in connection with Capitalized
Leases in an aggregate amount not to exceed $15,000,000 on any date of determination;
(e) purchase money Debt of the Domestic Borrower and its Subsidiaries in an aggregate
amount not to exceed $10,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders and Guaranty Obligations with respect to Debt permitted
pursuant to subsections (b) through (e) of this Section 11.1;
(g) Receivables Transaction Attributed Indebtedness incurred by the Domestic Borrower or
for which the Domestic Borrower is otherwise obligated pursuant to Qualified Receivables
Transactions in an aggregate amount not to exceed $100,000,000 at any time;
(h) intercompany Debt (i) between the Domestic Borrower and any Material Domestic
Subsidiary or between any Material Domestic Subsidiary and any other Material Domestic Subsidiary,
(ii) between the Canadian Borrower and any Material Canadian Subsidiary or between any Material
Canadian Subsidiary and any other Material Canadian Subsidiary and (iii) between the Domestic
Borrower and the Canadian Borrower, between any Material Domestic Subsidiary and the Canadian
Borrower, between the Domestic Borrower and any Material Canadian Subsidiary, or between any
Material Domestic Subsidiary and any Material Canadian Subsidiary; provided (x) that the
net amount of all such intercompany Debt from the Domestic Borrower and any Domestic Subsidiary to
any Canadian Subsidiary and vice versa permitted pursuant to clause (iii) shall not exceed
$30,000,000 at any time and (y) nothing in this Section 11.1(h) shall prohibit intercompany Debt of
the Domestic Borrower or any Domestic Subsidiary to any Canadian Subsidiary; provided that
such intercompany Debt is due within thirty (30) days from the date of the incurrence thereof and
does not exceed $50,000,000 in the aggregate at any time;
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(i) Subordinated Debt; and
(j) Debt not otherwise permitted by this Section 11.1 in an aggregate amount not to
exceed the greater of $200,000,000 or ten percent (10%) of Net Worth on any date of determination,
provided, that no agreement or instrument with respect to Debt permitted to be incurred by
this Section 11.1 shall restrict, limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of any Borrower to make any payment to such Borrower or any of its
Subsidiaries (in the form of dividends, intercompany advances or otherwise) for the purpose of
enabling such Borrower to pay the Obligations.
SECTION 11.2 Limitations on Liens. Create, incur, assume or suffer to exist, any
Lien on or with respect to any of its assets or properties (including without limitation shares of
capital stock or other ownership interests), real or personal, whether now owned or hereafter
acquired, except:
(a) Liens for taxes, assessments and other governmental charges or levies (excluding any Lien
imposed pursuant to any of the provisions of ERISA or Environmental Laws) not yet due or as to
which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired
or which are being contested in good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for
labor, materials, supplies or rentals incurred in the ordinary course of business, (i) which are
not overdue for a period of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course of business in
connection with, or to secure payment of, obligations under workers’ compensation, unemployment
insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning restrictions, easements and rights
or restrictions of record on the use of real property, which in the aggregate are not substantial
in amount and which do not, in any case, detract from the value of such property or impair the use
thereof in the ordinary conduct of business;
(e) Liens of the Administrative Agent, for the benefit of the Administrative Agent and the
Lenders;
(f) Liens not otherwise permitted by this Section 11.2 and in existence on the Closing Date
and described on Schedule 11.2;
(g) Liens securing Debt permitted under Sections 11.1 (d) and (e); provided that (i)
such Liens shall be created substantially simultaneously with the acquisition or lease of the
related asset, (ii) such Liens do not at any time encumber any property other than the property
financed by such Debt, (iii) the amount of Debt secured thereby is not increased and (iv) the
principal amount of Debt secured by any such Lien shall at no time exceed one hundred percent
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(100%) of the original purchase price or lease payment amount of such property at the time it was
acquired;
(h) Liens not otherwise permitted by this Section 11.2 securing Debt in an aggregate
principal amount not to exceed $15,000,000 on any date of determination; and
(i) Liens in connection with Receivables Transaction Attributed Indebtedness incurred by
the Domestic Borrower or for which the Domestic Borrower is otherwise obligated pursuant to
Qualified Receivables Transactions that are permitted under Section 11.1(g).
SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions.
Purchase, own, invest in or otherwise acquire, directly or indirectly, any capital stock, interests
in any partnership or joint venture (including, without limitation, the creation or capitalization
of any Subsidiary), evidence of Debt or other obligation or security, substantially all or a
portion of the business or assets of any other Person or any other investment or interest
whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans,
advances or extensions of credit to, or any investment in cash or by delivery of property in, any
Person except:
(a) (i) investments in Subsidiaries existing on the Closing Date and (ii) the other
loans, advances and investments described on Schedule 11.3 existing on the Closing
Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by
the United States of America or any agency thereof maturing within one hundred twenty (120) days
from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred
twenty (120) days from the date of creation thereof and currently having the highest rating
obtainable from either Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. or Xxxxx’x Investors Service, Inc., (iii) certificates of deposit maturing no more than one
hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated
under the laws of the United States of America, each having combined capital, surplus and undivided
profits of not less than $500,000,000 and having a rating of “A” or better by a nationally
recognized rating agency; provided, that the aggregate amount invested in such certificates
of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and
$10,000,000 for any one such bank, or (iv) time deposits maturing no more than thirty (30) days
from the date of creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which are insured by the
FDIC and in amounts not exceeding the maximum amounts of insurance thereunder;
(c) investments by the Domestic Borrower or any Subsidiary in the form of acquisitions of all
or substantially all of the business or a line of business (whether by the acquisition of capital
stock, assets or any combination thereof) of any other Person if each such acquisition meets all of
the following requirements (provided that, except to the extent that clause (ix)(B) below
is applicable, for any acquisition for which the Permitted Acquisition Value is less than
$25,000,000, such acquisition must only meet the requirements of clause (vii) below):
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(i) the Domestic Borrower shall have delivered to the Administrative Agent within ten
(10) Business Days after the closing date of such acquisition evidence of the approval of the
acquisition by the board of directors or equivalent governing body (or the shareholders) of the
seller and/or the Person to be acquired, in form and substance satisfactory to the Administrative
Agent;
(ii) the Domestic Borrower shall have delivered to the Administrative Agent within ten
(10) Business Days after the closing date of such acquisition a description of such acquisition
(including, without limitation, a description of the Person or assets to be acquired, the purchase
price, the manner of acquisition, the payment structure and any other terms and conditions
reasonably required by the Administrative Agent) and draft copies of the governing documentation
(including, without limitation, the purchase agreement) with respect to such acquisition;
(iii) the Domestic Borrower shall have delivered to the Administrative Agent on or before
the closing date of such acquisition an Officer’s Compliance Certificate dated as of the closing
date of such acquisition demonstrating, in form and substance reasonably satisfactory thereto, (A)
pro forma compliance with each covenant contained in Articles X and XI and (B) that the
Person to be acquired shall have positive pro forma cash flow;
(iv) the Domestic Borrower shall have delivered to the Administrative Agent within ten
(10) Business Days after the closing date of such acquisition all documents required to be
delivered pursuant to Section 9.11;
(v) the Person to be acquired shall engage in a business or the assets to be acquired
shall be used in a business described in Section 11.12;
(vi) the Domestic Borrower or any Subsidiary shall be the surviving Person and no Change
of Control shall have been effected thereby; and
(vii) no Default or Event of Default shall have occurred and be continuing both before and
after giving effect to the acquisition;
(d) Hedging Agreements permitted pursuant to Section 11.1(b);
(e) intercompany loans and advances in connection with intercompany Debt permitted under
Section 11.1 (h);
(f) purchases of assets in the ordinary course of business;
(g) investments not otherwise permitted by this Section 11.3 made in the ordinary course of
business consistent with historical practices not to exceed ten percent (10.0%) of Net Worth on any
date of determination; and
(h) investments comprised of capital contributions (whether in form of cash, a note, or
other assets) to a Subsidiary or other special-purpose entity created solely to engage in a
Qualified Receivables Transaction permitted hereunder or otherwise resulting from transfers of
assets permitted under this Agreement to such a special-purpose entity.
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SECTION 11.4 Limitations on Mergers and Liquidation. Merge, consolidate or
enter into any similar combination with any other Person or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of the Domestic Borrower may merge with the Domestic Borrower
or any other Wholly-Owned Subsidiary of the Domestic Borrower; provided that in any merger
involving the Domestic Borrower, the Domestic Borrower shall be the surviving entity;
(b) any Wholly-Owned Subsidiary of the Domestic Borrower may merge into the Person acquired in
connection with an acquisition permitted by Section 11.3(c); provided that the surviving
entity shall be a Wholly-Owned Subsidiary of the Domestic Borrower and the Domestic Borrower shall
have complied with, or caused compliance with, the terms of Section 9.11; and
(c) any Wholly-Owned Subsidiary of the Domestic Borrower may wind-up into the Domestic
Borrower or any other Wholly-Owned Subsidiary of the Domestic Borrower;
provided that, notwithstanding the foregoing, no Domestic Subsidiary shall be permitted to
merge, consolidate or enter into any similar combination with any Subsidiary which is not a
Domestic Subsidiary.
SECTION 11.5 Limitations on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including, without limitation, the
sale of any receivables and leasehold interests and any sale-leaseback or similar transaction),
whether now owned or hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets and other assets reasonably determined to be no longer used or
usable in the business of the Domestic Borrower or any of its Subsidiaries;
(c) the transfer of assets to the Domestic Borrower or any Wholly-Owned Subsidiary of the
Domestic Borrower pursuant to Section 11.4(c);
(d) the sale or discount of accounts receivable arising in the ordinary course of business in
connection with the compromise or collection thereof or any sale or contribution of accounts or
notes receivable pursuant to a Qualified Receivables Transaction permitted under this Agreement:
(i) to the Domestic Borrower, or
(ii) by the Domestic Borrower or any Subsidiary thereof without recourse to a
special-purpose entity created solely to engage in a Qualified Receivables
Transaction permitted hereunder; provided, that the foregoing shall not prohibit
recourse to the Domestic Borrower or any non-special-purpose entity Subsidiary
resulting from (x) breach of any customary representation or warranty made by the
Domestic Borrower or such Subsidiary in the ordinary course of establishing
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and maintaining such Qualified Receivables Transaction and transferring assets as
contemplated thereby or (y) returns, allowances, net credits and other non-cash
reductions related to accounts or notes receivable subject to such Qualified
Receivables Transaction, including, without limitation, the goods or services the
sale of which gave rise to such accounts or notes receivable;
(e) the disposition of any Hedging Agreement; and
(f) the sale of any of its property, business or assets not otherwise permitted by this
Section 11.5 in an aggregate amount not to exceed the greater of $50,000,000 or ten percent (10%)
of Net Worth during the term of this Agreement (provided that the Domestic Borrower and its
Subsidiaries shall comply with the Section 4.4(b)(iii) in connection with any such sale).
SECTION 11.6 Limitations on Dividends and Distributions. Declare or pay any
dividends upon any of its capital stock or any other ownership interests; purchase, redeem, retire
or otherwise acquire, directly or indirectly, any shares of its capital stock or other ownership
interests, or make any distribution of cash, property or assets among the holders of shares of its
capital stock or other ownership interests, or make any change in its capital structure which such
change in its capital structure could reasonably be expected to have a Material Adverse Effect;
provided that:
(a) the Domestic Borrower or any Subsidiary may pay dividends in shares of its own capital
stock;
(b) any Subsidiary may pay cash dividends to the Domestic Borrower; and
(c) the Domestic Borrower may pay cash dividends on its capital stock or repurchase its
capital stock in an aggregate amount not to exceed $10,000,000 during any Fiscal Year
(provided that no Default or Event of Default shall have occurred and be continuing both
before and after giving effect to such dividend or repurchase).
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock. Issue, sell
or otherwise dispose of any class or series of capital stock that, by its terms or by the terms of
any security into which it is convertible or exchangeable, is, or upon the happening of an event or
passage of time would be, (a) convertible or exchangeable into Debt or (b) required to be redeemed
or repurchased, including at the option of the holder, in whole or in part, or has, or upon the
happening of an event or passage of time would have, a redemption or similar payment due.
SECTION 11.8 Transactions with Affiliates. Except for transactions permitted by
Sections 11.3,11.6 and 11.7, directly or indirectly (a) make any loan or advance to, or purchase or
assume any note or other obligation to or from, any of its officers, directors, shareholders or
other Affiliates, or to or from any member of the immediate family of any of its officers,
directors, shareholders or other Affiliates, or subcontract any operations to any of its Affiliates
or (b) enter into, or be a party to, any other transaction not described in clause (a) above with
any of its Affiliates, except pursuant to the reasonable requirements of its business and upon fair
and reasonable terms that are no less favorable to it than it would obtain in a comparable arm’s
length transaction with a Person not its Affiliate.
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SECTION 11.9 Certain Accounting Changes; Organizational Documents.
(a) Change its Fiscal Year end, or make any change in its accounting treatment and reporting
practices except as required by GAAP; or
(b) Amend, modify or change its articles of incorporation (or corporate charter or other
similar organizational documents) or amend, modify or change its bylaws (or other similar
documents) in any manner adverse in any respect to the rights or interests of the Lenders.
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Debt. Amend
or modify (or permit the modification or amendment of) any of the terms or provisions of any
Subordinated Debt, or cancel or forgive, make any voluntary or optional payment or prepayment on,
or redeem or acquire for value (including, without limitation, by way of depositing with any
trustee with respect thereto money or securities before due for the purpose of paying when due) any
Subordinated Debt.
SECTION 11.11 Restrictive Agreements.
(a) Enter into any Debt which contains any negative pledge on assets or any covenants more
restrictive than the provisions of Articles IX, X and XI, or which restricts, limits or otherwise
encumbers its ability to incur Liens on or with respect to any of its assets or properties other
than the assets or properties securing such Debt.
(b) Enter into or permit to exist any agreement which impairs or limits the ability of any
Subsidiary of any Borrower to pay dividends to any Borrower.
SECTION 11.12 Nature of Business. Alter in any material respect the character
or conduct of the business conducted by the Domestic Borrower and its Subsidiaries as of the
Closing Date; provided that the Domestic Borrower and its Subsidiaries shall not be
prohibited from expanding into complimentary or related lines of business as determined by the
Domestic Borrower and its Subsidiaries in their reasonable discretion.
ARTICLE XII
UNCONDITIONAL DOMESTIC BORROWER GUARANTY AGREEMENT
SECTION 12.1 Guaranty of Obligations. The Domestic Borrower hereby unconditionally guarantees to the Administrative Agent, for the benefit of the Administrative Agent
and the Lenders, and their respective successors, endorsees, transferees and assigns, the prompt
payment and performance of all Obligations of the Canadian Borrower, whether primary or secondary
(whether by way of endorsement or otherwise), whether now existing or hereafter arising, whether or
not from time to time reduced or extinguished (except by payment thereof) or hereafter increased or
incurred, whether or not recovery may be or hereafter becomes barred by the statute of limitations,
whether enforceable or unenforceable as against the Borrowers, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or proceeding, whether
created directly with the Administrative Agent or any Lender or acquired by the Administrative
Agent or any Lender through assignment, endorsement or otherwise, whether matured or unmatured,
whether joint or several, as and when the same
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become due and payable (whether at maturity or earlier, by reason of acceleration, mandatory
repayment or otherwise), in accordance with the terms of any such instruments evidencing any such
Obligations, including all renewals, extensions or modifications thereof (all Obligations of the
Canadian Borrower, including all of the foregoing, being hereinafter collectively referred to as
the “Guaranteed Obligations”).
SECTION 12.2 Nature of Guaranty. The Domestic Borrower agrees that this
Domestic Borrower Guaranty Agreement is a continuing, unconditional guaranty of payment and
performance and not of collection, and that its obligations under this Domestic Borrower Guaranty
Agreement shall be primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement or any other Loan Document or any other agreement, document or instrument
to which any Borrower is or may become a party;
(b) any structural change in, restructuring of or other similar change of any Borrower or any
Subsidiary thereof;
(c) the absence of any action to enforce this Domestic Borrower Guaranty Agreement, this
Agreement or any other Loan Document or the waiver or consent by the Administrative Agent or
any Lender with respect to any of the provisions of this Domestic Borrower Guaranty
Agreement, this Agreement or any other Loan Document;
(d) the existence, value or condition of, or failure to perfect its Lien against, any security
for or other guaranty of the Guaranteed Obligations or any action, or the absence of any action, by
the Administrative Agent or any Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty); or
(e) any other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor;
it being agreed by the Domestic Borrower that its obligations under this Domestic Borrower Guaranty
Agreement shall not be discharged until the final and indefeasible payment and performance, in
full, of the Guaranteed Obligations and the termination of the Commitments. The Domestic Borrower
expressly waives all rights it may now or in the future have under any statute, or at law or in
equity, or otherwise, to compel the Administrative Agent or any Lender to proceed in respect of the
Guaranteed Obligations against any Borrower or any other party or against any security for or other
guaranty of the payment and performance of the Guaranteed Obligations before proceeding against, or
as a condition to proceeding against, the Domestic Borrower. The Domestic Borrower further
expressly waives and agrees not to assert or take advantage of any defense based upon the failure
of the Administrative Agent or any Lender to commence an action in respect of the Guaranteed
Obligations against any Borrower or any other party or any security for the payment and performance
of the Guaranteed Obligations. The Domestic Borrower agrees that any notice or directive given at
any time to the Administrative Agent or any Lender which is inconsistent with the waivers in the
preceding two sentences shall be null and void and may be ignored by the Administrative Agent or
such Lender, and, in
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addition, may not be pleaded or introduced as evidence in any litigation relating to this Domestic
Borrower Guaranty Agreement for the reason that such pleading or introduction would be at variance
with the written terms of this Domestic Borrower Guaranty Agreement, unless the Administrative
Agent and the Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by the Loan Documents and, but for this
Domestic Borrower Guaranty Agreement and such waivers, the Administrative Agent and the Lenders
would decline to enter into this Agreement.
SECTION 12.3 Demand by the Administrative Agent. In addition to the terms set
forth in Section.12.2, and in no manner imposing any limitation on such terms, if all or any
portion of the then outstanding Guaranteed Obligations under this Agreement are declared to be
immediately due and payable, then the Domestic Borrower shall, upon demand in writing therefor by
the Administrative Agent to the Domestic Borrower, pay all or such portion of the outstanding
Guaranteed Obligations then declared due and payable. Payment by the Domestic Borrower shall be
made to the Administrative Agent, to be credited and applied upon the Guaranteed Obligations, in
immediately available funds to an account designated by the Administrative Agent or at the
Administrative Agent’s Office or at any other address that may be specified in writing from time to
time by the Administrative Agent.
SECTION 12.4 Waivers. In addition to the waivers contained in Section 12.2, the
Domestic Borrower waives, and agrees that it shall not at any time insist upon, plead or in any
manner whatever claim or take the benefit or advantage of, any appraisal, valuation, stay,
extension, marshalling of assets or redemption laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the performance by the Domestic
Borrower of its obligations under, or the enforcement by the Administrative Agent or the Lenders
of, this Domestic Borrower Guaranty Agreement. The Domestic Borrower further hereby waives
diligence, presentment, demand, protest and notice of whatever kind or nature with respect to any
of the Guaranteed Obligations and waives the benefit of all provisions of law which are or might be
in conflict with the terms of this Domestic Borrower Guaranty Agreement. The Domestic Borrower
represents, warrants and agrees that its obligations under this Domestic Borrower Guaranty
Agreement are not and shall not be subject to any counterclaims, offsets or defenses of any kind
against the Administrative Agent, the Lenders or the Borrowers whether now existing or which may
arise in the future.
SECTION 12.5 Modification of Loan Documents etc. If the Administrative Agent
or the Lenders shall, in compliance with the terms and conditions of this Agreement, at any time or
from time to time:
(a) change or extend the manner, place or terms of payment of, or renew or alter all or
any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in the exercise of any
remedy, power or privilege contained therein or available to it at law, in equity or otherwise,
or waive or refrain from exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
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(d) extend or waive the time for performance by the Domestic Borrower, the Canadian Borrower,
the Material Subsidiaries or any other Person of, or compliance with, any term, covenant or
agreement on its part to be performed or observed under a Loan Document (other than this Domestic
Borrower Guaranty Agreement), or waive such performance or compliance or consent to a failure of,
or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment of the Guaranteed Obligations or
sell, exchange, release, dispose of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which the Administrative Agent or any Lender has been granted a Lien, to secure any
Debt of the Domestic Borrower, the Canadian Borrower or the Material Subsidiaries to the
Administrative Agent or any Lender;
(f) release anyone who may be liable in any manner for the payment of any amounts owed by the
Domestic Borrower, the Canadian Borrower or the Material Subsidiaries to the Administrative Agent
or any Lender;
(g) modify or terminate the terms of any intercreditor or subordination agreement pursuant to
which claims of other creditors of the Domestic Borrower, the Canadian Borrower or the Material
Subsidiaries are subordinated to the claims of the Administrative Agent or any Lender; or
(h) apply any sums by whomever paid or however realized to any amounts owing by the
Domestic Borrower, the Canadian Borrower or the Material Subsidiaries to the Administrative Agent
or any Lender on account of the Obligations in such manner as the Administrative Agent or any
Lender shall determine in its reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability to the Domestic
Borrower as a result thereof, and no such action shall impair or release the obligations of the
Domestic Borrower under this Domestic Borrower Guaranty Agreement.
SECTION 12.6 Reinstatement. The Domestic Borrower agrees that, if any
payment made by any Borrower, any Material Subsidiary or any other Person applied to the
Obligations is at any time annulled, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or the proceeds of any collateral
are required to be returned by the Administrative Agent or any Lender to any Borrower, its estate,
trustee, receiver or any other party, including, without limitation, the Domestic Borrower or any
Material Subsidiary, under any Applicable Law or equitable cause, then, to the extent of such
payment or repayment, the Domestic Borrower’s liability hereunder (and any Lien or collateral
securing such liability) shall be and remain in full force and effect, as fully as if such payment
had never been made, and, if prior thereto, this Domestic Borrower Guaranty Agreement shall have
been canceled or surrendered (and if any Lien or collateral securing the Domestic Borrower’s
liability hereunder shall have been released or terminated by virtue of such cancellation or
surrender), this Domestic Borrower Guaranty Agreement (and such Lien or collateral) shall be
reinstated in full force and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of the Domestic Borrower in respect
of the amount of such payment (or any Lien or collateral securing such obligation).
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SECTION 12.7 No Subrogation. Until all amounts owing to the Administrative
Agent and the Lenders on account of the Obligations are paid in full and the Commitments are
terminated, the Domestic Borrower hereby waives any claims or other rights which it may now or
hereafter acquire against any Borrower that arise from the existence or performance of the Domestic
Borrower’s obligations under this Domestic Borrower Guaranty Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration, indemnification, any right to
participate in any claim or remedy of the Administrative Agent or the Lenders against any Borrower
or any collateral which the Administrative Agent or the Lenders now have or may hereafter acquire,
whether or not such claim, remedy or right arises in equity or under contract, statute or common
law, by any payment made hereunder or otherwise, including without limitation, the right to take or
receive from any Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights. If any amount shall
be paid to the Domestic Borrower on account of such rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by the Domestic Borrower in trust for
the Administrative Agent, segregated from other funds of the Domestic Borrower, and shall,
forthwith upon receipt by the Domestic Borrower, be turned over to the Administrative Agent in the
exact form received by the Domestic Borrower (duly indorsed by the Domestic Borrower to the
Administrative Agent, if required) to be applied against the Obligations, whether matured or
unmatured, in such order as set forth herein.
ARTICLE XIII
DEFAULT AND REMEDIES
SECTION 13.1 Events of Default. Each of the following shall constitute an Event
of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment or order of any court or any order,
rule or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement Obligations. Any
Borrower shall default in any payment of principal of any Loan, Note or Reimbursement Obligation
when and as due (whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment when and as due
(whether at maturity, by reason of acceleration or otherwise) of interest on any Loan, Note or
Reimbursement Obligation or the payment of any other Obligation, and such default shall continue
unremedied for five (5) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to be made by the
Domestic Borrower or any of its Subsidiaries under this Agreement, any other Loan Document or any
amendment hereto or thereto, shall at any time prove to have been incorrect or misleading in any
material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The Domestic Borrower or any of its
Subsidiaries shall default in the performance or observance of any covenant or agreement contained
in Sections 8.1, 8.2 or 8.5(e)(i) or Articles X or XI of this Agreement.
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(e) Default in Performance of Other Covenants and Conditions. The Domestic Borrower or
any of its Subsidiaries thereof shall default in the performance or observance of any term,
covenant, condition or agreement contained in this Agreement (other than as specifically provided
for otherwise in this Section 13.1) or any other Loan Document and such default shall continue for
a period of thirty (30) days after written notice thereof has been given to the Domestic Borrower,
on behalf of itself and the Canadian Borrower, by the Administrative Agent.
(f) Hedging Agreement. Any Borrower shall default in the performance or observance of
any terms, covenant, condition or agreement (after giving effect to any applicable grace or cure
period) under any Hedging Agreement with a termination value in excess of $5,000,000 and such
default causes the termination of such Hedging Agreement or permits any counterparty to such
Hedging Agreement to terminate any such Hedging Agreement.
(g) Debt Cross-Default. The Domestic Borrower or any of its Subsidiaries shall (i)
default in the payment of any Debt (other than the Notes or any Reimbursement Obligation) the
aggregate outstanding amount of which Debt is in excess of $5,000,000 beyond the period of grace if
any, provided in the instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to any Debt (other than
the Notes or any Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $5,000,000 or contained in any instrument or agreement evidencing, securing or relating
thereto or any other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such Debt (or a trustee or
agent on behalf of such holder or holders) to cause, with the giving of notice if required, any
such Debt to become due prior to its stated maturity (any applicable grace period having expired).
(h) Other Cross-Defaults. The Domestic Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any obligation or
condition of any Material Contract unless, but only as long as, the existence of any such default
is being contested by the Domestic Borrower or any such Subsidiary in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on the books of the
Domestic Borrower or such Subsidiary to the extent required by GAAP.
(i) Change in Control. (A) Any person or group of persons (within the meaning
of Section 13(d) of the Securities Exchange Act of 1934, as amended), other than Xxxxxxx X. Xxxx or
a control group of which Xxxxxxx X. Xxxx is a member, shall obtain ownership or control in one or
more series of transactions of more than twenty-five percent (25%) of the voting power of the
Domestic Borrower entitled to vote in the election of members of the board of directors of the
Domestic Borrower, (B) a change in the majority of the board of directors of the Domestic Borrower
occurring during any six (6) month period, or (C) there shall have occurred under any indenture or
other instrument evidencing any Debt in excess of $5,000,000 any “change in control” (as defined in
such indenture or other evidence of Debt) obligating the Domestic Borrower to repurchase, redeem or
repay all or any part of the Debt or capital stock provided for therein (any such event in (A)
through (C) above, a “Change in Control”). For purposes of this Section 13.1(i), a control group of
which Xxxxxxx X. Xxxx is a member shall include his spouse, direct or indirect lineal descendants
and any trust created for the benefit of any such persons.
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(j) Voluntary Bankruptcy Proceeding. The Domestic Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter
in effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii)
take any corporate action for the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Domestic Borrower or any Subsidiary thereof in any court of competent
jurisdiction seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect)
or under any other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for the Domestic Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case or proceeding shall
continue without dismissal or stay for a period of sixty (60) consecutive days, or an order
granting the relief requested in such case or proceeding (including, but not limited to, an order
for relief under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any material provision of this Agreement, the Notes,
the Domestic Borrower Guaranty Agreement or any Subsidiary Guaranty Agreement shall for any reason
cease to be valid and binding on the Domestic Borrower or any of its Material Subsidiaries party
thereto or any such Person shall so state in writing, other than in accordance
with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following events: (i) the
Domestic Borrower or any ERISA Affiliate fails to make full payment when due of all material
amounts which, under the provisions of any Pension Plan or Section 412 of the Code, the Domestic
Borrower or any ERISA Affiliate is required to pay as contributions thereto, (ii) an accumulated
funding deficiency in excess of $5,000,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, (iii) a Termination Event or (iv) the Domestic Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any
such Multiemployer Plan and the plan sponsor of such Multiemployer Plans notifies such withdrawing
employer that such employer has incurred a withdrawal liability requiring payments in an amount
exceeding $5,000,000.
(n) Judgment. A judgment or order for the payment of money which causes the
aggregate amount of all such judgments to exceed $5,000,000 in any Fiscal Year shall be entered
against the Domestic Borrower or any of its Subsidiaries by any court and such judgment or order
shall continue without discharge or stay for a period of thirty (30) days.
(o) Environmental. Any one or more Environmental Claims shall have been asserted
against the Domestic Borrower or any of its Subsidiaries; the Domestic Borrower and its
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Subsidiaries would be reasonable likely to incur liability as a result thereof; and such liability
would be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
(p) Ownership of Canadian Borrower. The Canadian Borrower shall no longer be a
Subsidiary of the Borrower.
SECTION 13.2 Remedies. Upon the occurrence of an Event of Default, with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Domestic Borrower, on
behalf of itself and the Canadian Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of and interest on
the Loans, the Notes and the Reimbursement Obligations at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the
other Loan Documents (including, without limitation, all L/C Obligations and cash collateral to be
posted in respect thereof, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented or shall be entitled to present the documents required thereunder) and
all other Obligations (other than Hedging Obligations), to be forthwith due and payable, whereupon
the same shall immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, or terminate the Credit Facility and any right of the
Borrowers to request borrowings or Letters of Credit thereunder, or both; provided, that
upon the occurrence of an Event of Default specified in Section 13.1(j) or (k), the Credit Facility
shall be automatically terminated and all Obligations (other than Hedging Obligations) shall
automatically become due and payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived, anything in this Agreement or in any other Loan Document
to the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration or the termination of
the Credit Facility pursuant to the preceding paragraph, require the Borrowers at such time to, and
the Borrowers shall, deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit issued
for the account of such Borrower. The Borrowers hereby grant to the Administrative Agent, for the
benefit of the Administrative Agent and the Lenders, a security interest in such cash collateral
account and all amounts deposited therein and all proceeds thereof as security for the Obligations.
Amounts deposited in such cash collateral account by each Borrower shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit issued for the
account of such Borrower, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the other Obligations of
such Borrower on a pro rata basis. After all such Letters of Credit shall have
expired or been fully drawn upon, the Reimbursement Obligation shall have been satisfied and all
other Obligations shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the applicable Borrower.
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(c) Rights of Collection. Exercise on behalf of the Lenders all of its other
rights and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to
satisfy all of the Obligations.
SECTION 13.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in
this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and
the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies,
all of which shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity
or by suit or otherwise. No delay or failure to take action on the part of the Administrative Agent
or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege or shall be
construed to be a waiver of any Event of Default. No course of dealing between the Borrowers, the
Administrative Agent and the Lenders or their respective agents or employees shall be effective to
change, modify or discharge any provision of this Agreement or any of the other Loan Documents or
to constitute a waiver of any Event of Default.
SECTION 13.4 Judgment Currency. The obligation of the Borrowers to make
payments of the principal of and interest on the Loans, the Notes and the Reimbursement Obligations
and the obligation of any such Person to make payments of any other amounts payable hereunder or
pursuant to any other Loan Document in the currency specified for such payment shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed
in or converted into any other currency, except to the extent that such tender or recovery shall
result in the actual receipt by the Administrative Agent and the Lenders of the full amount of the
particular Permitted Currency expressed to be payable pursuant to the applicable Loan Document. The
Administrative Agent shall, using all amounts obtained or received from the Borrowers pursuant to
any such tender or recovery in payment of principal of and interest on the Obligations, promptly
purchase the applicable currency at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it. The obligation of the Borrowers to make payments in the
applicable currency shall be enforceable as an alternative or additional cause of action solely for
the purpose of recovering in the applicable currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the currency expressed to be payable pursuant to the
applicable Loan Document.
ARTICLE XIV
THE ADMINISTRATIVE AGENT
SECTION 14.1 Appointment; Nature of Relationship. JPMorgan is hereby
appointed by each of the Lenders as its contractual representative to serve as the sole and
exclusive Administrative Agent hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Administrative Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the other Loan Documents.
The Administrative Agent agrees to act as such contractual representative upon the express
conditions contained in this Article XIV. Notwithstanding the use of the defined terms
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“administrative agent,” or “agent,” it is expressly understood and agreed that the Administrative
Agent shall not have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Administrative Agent is merely acting as the contractual
representative of the Lenders with only those duties as are expressly set forth in this Agreement
and the other Loan Documents. In its capacity as the Lenders’ contractual representative, the
Administrative Agent (i) does not hereby assume any fiduciary duty to any of the Lenders, (ii) is a
“representative” of the Lenders within the meaning of the term “secured party” as defined in the
UCC and (iii) is acting as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders
hereby agrees to assert no claim against the Administrative Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each Lender hereby waives.
SECTION 14.2 Powers. The Administrative Agent shall have and may exercise
such powers under this Agreement and the other Loan Documents as are specifically delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duty to the Lenders, or any
obligation to the Lenders to take any action hereunder or thereunder, except any action
specifically provided by this Agreement and the other Loan Documents to be taken by the
Administrative Agent.
SECTION 14.3 General Immunity. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to any Borrower or any Lender for any
action taken or omitted to be taken by them under this Agreement or under any other Loan Document
or in connection herewith or therewith except to the extent such action or inaction is determined
in a final non-appealable judgment by a court of competent jurisdiction to have arisen from the
gross negligence or willful misconduct of such Person.
SECTION 14.4 No Responsibility for Loan. Recitals, etc. Neither the
Administrative Agent nor any of its respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any obligor under any Loan
Document, including, without limitation, any agreement by any Borrower, any Material Subsidiary or
any other obligor to furnish information directly to each Lender; (c) the satisfaction of any
condition specified in Article VI, except receipt of items required to be delivered solely to the
Administrative Agent; (d) the existence or possible existence of any Default or Event of Default;
(e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or
any other instrument or writing furnished in connection therewith; (f) the value, sufficiency,
creation, perfection or priority of any Lien on any collateral security; or (g) the financial
condition of any Borrower, any Material Subsidiary or any other guarantor of any of the Obligations
or of any of their respective Subsidiaries. The Administrative Agent shall have no duty to disclose
to the Lenders information that is not required to be furnished by the Borrowers to the
Administrative Agent at such time, but is voluntarily furnished by the Borrowers to the
Administrative Agent (either in its capacity as Administrative Agent or in its individual
capacity).
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SECTION 14.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the Required Lenders, and
such instructions and any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders. The Lenders hereby acknowledge that the Administrative Agent shall be under no duty
to take any discretionary action permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in writing to do so by the
Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
SECTION 14.6 Employment of Administrative Agent and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by them or their respective
authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent’s duties hereunder and under any other Loan
Document.
SECTION 14.7 Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed thereby to be genuine and correct and to have been signed or
sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Administrative Agent, which counsel may be employees of the Administrative Agent.
SECTION 14.8 Administrative Agent’s Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in proportion to the
Lenders’ respective Commitments (or, if the Commitments have been terminated, in proportion to
their Commitments immediately prior to such termination) (a) for any amounts not reimbursed by the
Domestic Borrower or Canadian Borrower, as applicable, for which the Administrative Agent is
entitled to reimbursement by such Borrower under the Loan Documents, (b) for any other expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the Lenders) and (c) for
any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the transactions contemplated
thereby (including, without limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative Agent and any Lender
or between two or more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other
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documents, provided that (i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative
Agent and (ii) any indemnification required pursuant to Section 5.11, 5.12, 5.13 or 5.14 may,
notwithstanding the provisions of this Section 14.8, be paid by the relevant Lender in accordance
with the provisions thereof. The obligations of the Lenders under this Section 14.8 shall survive
payment of the Obligations and termination of this Agreement.
SECTION 14.9 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received written notice from a Lender or the Borrowers referring to
this Agreement, describing such Default or Event of Default and stating that such notice is a
“notice of default”. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
SECTION 14.10 Rights as a Lender. In the event that the Administrative Agent is
a Lender, the Administrative Agent shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its Extensions of Credit as any Lender and
may exercise the same as though it were not the Administrative Agent, and the term “Lender” or
“Lenders” shall, at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with any Borrower or any of their respective
Subsidiaries in which any Borrower or any Subsidiary is not restricted hereby from engaging with
any other Person. The Administrative Agent, in its individual capacity, is not obligated to remain
a Lender.
SECTION 14.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, any Affiliate of the
Administrative Agent or any other Lender and based on the financial statements prepared by the
Borrowers and such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent,
any Affiliate of the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents. Except as expressly
set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrowers or any Subsidiary
thereof that is communicated to or obtained by the Person serving as Administrative Agent for any
of its Affiliates in any capacity.
SECTION 14.12 Successor Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Lenders and the Domestic Borrower, on behalf of itself
and the Canadian Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent, or, if no successor Administrative Agent has been appointed, forty-five (45)
days after the retiring Administrative Agent gives notice of its intention to resign.
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Upon any such resignation, the Required Lenders shall have the right to appoint, on behalf of the
Borrowers and the Lenders, a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders within thirty (30) days after the resigning
Administrative Agent’s giving notice of its intention to resign, then the resigning Administrative
Agent may appoint, on behalf of the Borrowers and the Lenders, a successor Administrative Agent.
Notwithstanding the previous sentence, the Administrative Agent may at any time without the consent
of any Borrower or any Lender, appoint any of its Affiliates which is a commercial bank as a
successor Administrative Agent hereunder. If the Administrative Agent has resigned and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties of such
Administrative Agent hereunder and the Borrowers and Lenders shall deal directly with the Lenders.
No successor Administrative Agent shall be deemed to be appointed hereunder until such successor
Administrative Agent has accepted the appointment. Any such successor Administrative Agent shall be
a commercial bank having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the resigning Administrative Agent. Upon the
effectiveness of the resignation of the Administrative Agent, the resigning Administrative Agent
shall be discharged from its duties and obligations hereunder and under the Loan Documents. After
the effectiveness of the resignation of the Administrative Agent, the provisions of this Article
XIV shall continue in effect for the benefit of such Administrative Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents. In the event that there is a successor to the Administrative Agent
by merger, or the Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 14.12, then the term “Prime Rate” as used in this Agreement shall mean the prime
rate, base rate or other analogous rate of the new Administrative Agent. The Administrative Agent
may not be removed without its prior written consent.
SECTION 14.13 Delegation to Affiliates. The Borrowers and the Lenders agree
that the Administrative Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Articles XIV and XV.
SECTION 14.14 Syndication Agent and Documentation Agents. None of Xxxxx Fargo
Bank, National Association, as “Syndication Agent”, or Bank of America, N.A., Xxxxxx X.X., and
SunTrust Bank, as “Documentation Agents”, shall have any right, power, obligation, liability,
responsibility, or duty under this Agreement other than those applicable to all Lenders as such. No
rights, duties, obligations, powers, liabilities or responsibilities are associated with the titles
“Syndication Agent” and “Documentation Agent”.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
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(a) Method of Communication. Except as otherwise provided in this Agreement, all
notices and communications hereunder shall be in writing (for purposes hereof, the term “writing”
shall include information in electronic format such as electronic mail and internet web pages), or
by telephone subsequently confirmed in writing. Any notice shall be effective if delivered by hand
delivery or sent via electronic mail, posting on an internet web page, telecopy, recognized
overnight courier service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or sent by electronic
mail, posting on an internet web page, telecopy, (ii) on the next Business Day if sent by
recognized overnight courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the Administrative Agent as
understood by the Administrative Agent will be deemed to be the controlling and proper notice in
the event of a discrepancy with or failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at the following
addresses, or any other address as to which all the other parties are notified in writing.
If to the Domestic Borrower |
||
(on behalf of itself and |
||
the Canadian Borrower):
|
G&K Services Inc. | |
0000 Xxxx Xxxxxxx, Xxxxx 000 | ||
Xxxxxxxxxx, Xxxxxxxxx 00000 | ||
Attention: Xxxxx Xxxxx, Treasurer | ||
Telephone No.: (000) 000-0000 | ||
Telecopy No.: (000) 000-0000 | ||
With copies to:
|
G&K Services Inc. | |
0000 Xxxx Xxxxxxx, Xxxxx 000 | ||
Xxxxxxxxxx, Xxxxxxxxx 00000 | ||
Attention: May Xxxx, Manager of Treasury | ||
Telephone No.: (000) 000-0000 | ||
Telecopy No.: (000) 000-0000 | ||
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP | ||
3300 Xxxxx Fargo Center | ||
00 Xxxxx 0xx Xxxxxx | ||
Xxxxxxxxxxx, XX 00000 | ||
Attention: Xxxxx Xxxxxxxxx | ||
Telephone No.: (000) 000-0000 | ||
Telecopy No.: (000) 000-0000 |
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If to JPMorgan as
|
||
Administrative Agent:
|
JPMorgan Chase Bank, N.A. Loan and Agency Services Group 000 X. Xxxxxxxx Xx. Xxxxxxx, XX 00000 Attention: Xxxxx X. Xx Telecopy No.: (000) 000-0000 |
|
With copies to:
|
JPMorgan Chase Bank, N.A. Credit Products 000 X. Xxxxxxxx Xx. Xxxxxxx, XX 00000 Attention: Xxxxxxx Xxxxxxxxx Telephone No.: (000) 000-0000 Telecopy No.: (000) 000-0000 |
|
If to any Lender:
|
To the address set forth on Schedule 1.1(a) hereto |
(c) Administrative Agent’s Office. The Administrative Agent hereby designates
its office located at the address set forth above, or any subsequent office which shall have been
specified for such purpose by written notice to the Domestic Borrower, on behalf of itself and the
Canadian Borrower, and Lenders, as the Administrative Agent’s Office referred to herein, to which
payments due are to be made and at which Loans will be disbursed and Letters of Credit issued,
except for Alternative Currency Loans and Eurocurrency Rate Loans, to which payments due are to be
made at the office of the Administrative Agent’s Correspondent.
SECTION 15.2 Expenses: Indemnity. The Borrowers will (a) pay all reasonable
out-of-pocket expenses (including, without limitation, all costs of electronic or internet
distribution of any information hereunder) of each Agent in connection with (i) the preparation,
execution and delivery of this Agreement and each other Loan Document, whenever the same shall be
executed and delivered, including, without limitation, all out-of-pocket syndication and due
diligence expenses and reasonable fees and disbursements of counsel for each Agent and (ii) the
preparation, execution and delivery of any waiver, amendment or consent by the Administrative Agent
or the Lenders relating to this Agreement or any other Loan Document, including, without
limitation, reasonable fees and disbursements of counsel for each Agent, (b) pay all reasonable
out-of-pocket expenses of each Agent and each Lender actually incurred in connection with the
administration and enforcement of any rights and remedies of the Administrative Agent and Lenders
under the Credit Facility (including, without limitation, reasonable fees and disbursements of
counsel for each Agent and each Lender), including, without limitation, in connection with any
workout, restructuring, bankruptcy or other similar proceeding, creating and perfecting Liens in
favor of Administrative Agent on behalf of Lenders pursuant to any Loan Document, enforcing any
Obligations of, or collecting any payments due from, the Borrowers or any Material Subsidiary by
reason of an Event of Default (including in connection with the sale of, collection from, or other
realization upon any collateral or the enforcement of the Domestic Borrower Guaranty Agreement or
the Subsidiary Guaranty Agreement), consulting with appraisers, accountants, engineers, attorneys
and other Persons concerning the nature, scope or value of any right or remedy of any Agent or any
Lender
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hereunder or under any other Loan Document or any factual matters in connection therewith, which
expenses shall include, without limitation, the reasonable fees and disbursements of such Persons,
and (c) defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and directors, from and
against any losses, penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim (including, without limitation, any
Environmental Claims), investigation, litigation or other proceeding (whether or not any Agent or
any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any
way connected with the Loans, this Agreement, any other Loan Document, or any documents, reports or
other information provided to any Agent or any Lender or contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby, including, without limitation,
reasonable attorney’s and consultant’s fees, except to the extent that any of the foregoing is
determined in a final non-appealable judgment by a court of competent jurisdiction to have directly
resulted from the gross negligence or willful misconduct of the party seeking indemnification
therefor.
SECTION 15.3 Set-off.
(a) In addition to any rights now or hereafter granted under Applicable Law and not by way of
limitation of any such rights, upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders, their Affiliates and any assignee or participant of a Lender in
accordance with Section 15.10 are hereby authorized by the Borrowers at any time or from time to
time, without notice to the Borrowers or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the
Lenders, their Affiliates, or any such assignee or participant to or for the credit or the account
of the Borrowers against and on account of the Obligations irrespective of whether or not (a) the
Lenders shall have made any demand under this Agreement or any of the other Loan Documents or (b)
the Administrative Agent shall have declared any or all of the Obligations to be due and payable as
permitted by Section 13.2 and although such Obligations shall be contingent or unmatured.
Notwithstanding the preceding sentence, each Lender agrees to notify the Domestic Borrower, on
behalf of itself and the Canadian Borrower, and the Administrative Agent after any such set-off and
application; provided, that the failure to give such notice shall not affect the validity
of such set-off and application.
(b) Any amount to be set-off pursuant to Section 15.3(a) shall be denominated in an Agreed
Currency and shall be in an amount equal to the Dollar Amount of such amount at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it and any amount
denominated in an Alternative Currency shall be in an amount equal to the Dollar Amount of such
amount at the most favorable spot exchange rate determined by the Administrative Agent to be
available to it; provided that if at the time of any such determination no such spot
exchange rate can reasonably be determined, the Administrative Agent may use any reasonable method
as it deems applicable to determine such rate, any such determination to be conclusive absent
manifest error.
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(c) Each Lender and any assignee or participant of such Lender in accordance with
Section 15.10 are hereby authorized by the Borrowers to combine currencies, as deemed necessary by
such Person, in order to effect any set-off pursuant to Section 15.3(a).
SECTION 15.4 Governing Law. This Agreement, the Notes and the other Loan
Documents, unless otherwise expressly set forth therein, shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without reference to the conflicts
or choice of law principles thereof.
SECTION 15.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrowers hereby irrevocably consent to the personal
jurisdiction of the state and federal courts located in the Borough of Manhattan in New York, New
York (and any courts from which an appeal from any of such courts must or may be taken), in any
action, claim or other proceeding arising out of any dispute in connection with this Agreement, the
Notes and the other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably consent to the service
of a summons and complaint and other process in any action, claim or proceeding brought by any
Agent or any Lender in connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights and obligations,
on behalf of itself or its property, in the manner specified in Section 14.1. Nothing in this
Section 14.5 shall affect the right of any Agent or any Lender to serve legal process in any other
manner permitted by Applicable Law or affect the right of any Agent or any Lender to bring any
action or proceeding against any Borrower or its properties in the courts of any other
jurisdictions.
(b) Venue. The Borrowers hereby irrevocably waive any objection they may have now or
in the future to the laying of venue in the aforesaid jurisdiction in any action, claim or other
proceeding arising out of or in connection with this Agreement, any other Loan Document or the
rights and obligations of the parties hereunder or thereunder. The Borrowers irrevocably waive, in
connection with such action, claim or proceeding, any plea or claim that the action, claim or other
proceeding has been brought in an inconvenient forum.
SECTION 15.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before or after
institution of any judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Loan Document (“Disputes”), between or
among parties hereto and to the other Loan Documents shall be resolved by binding arbitration as
provided herein. Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan Documents executed in the
future, disputes as to whether a matter is subject to arbitration, or claims concerning any aspect
of the past, present or future relationships arising out of or connected with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the “Arbitration Rules”) of the American Arbitration Association (the “AAA”) and the
Federal Arbitration Act. All arbitration hearings shall be conducted in New
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York, New York. The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000. All applicable statutes of
limitations shall apply to any Dispute. A judgment upon the award may be entered in any court
having jurisdiction. Notwithstanding anything foregoing to the contrary, any arbitration proceeding
demanded hereunder shall begin within ninety (90) days after such demand thereof and shall be
concluded within one-hundred twenty (120) days after such demand. These time limitations may not be
extended unless a party hereto shows cause for extension and then such extension shall not exceed a
total of sixty (60) days. The panel from which all arbitrators are selected shall be comprised of
licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The
single arbitrator selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will be conducted. The
parties hereto do not waive any applicable Federal or state substantive law except as provided
herein. Notwithstanding the foregoing, this paragraph shall not apply to any Hedging Agreement.
(b) Jury Trial. EACH AGENT, EACH LENDER AND EACH BORROWER HEREBY ACKNOWLEDGE THAT BY
AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties hereto and the other Loan Documents preserve, without
diminution, certain remedies that such Persons may employ or exercise freely, either alone, in
conjunction with or during a Dispute. Each such Person shall have and hereby reserves the right to
proceed in any court of proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or personal property or other
security by exercising a power of sale granted in the Loan Documents or under Applicable Law or by
judicial foreclosure and sale, including a proceeding to confirm the sale, (ii) all rights of self
help including peaceful occupation of property and collection of rents, set off, and peaceful
possession of property, (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and in filing an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to grant similar remedies
that may be requested by a party in a Dispute.
SECTION 15.7 Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent, for the benefit of the Administrative Agent and
the Lenders, or the Administrative Agent receives any payment or proceeds of any collateral which
payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent
of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent.
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SECTION 15.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event any Borrower fails to perform, observe or
discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove
to be inadequate relief to the Lenders. Therefore, the Borrowers agree that the Lenders, at the
Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrowers (on behalf of themselves and their
Subsidiaries) hereby agree that no such Person shall have a remedy of punitive or exemplary damages
against any other party to a Loan Document and each such Person hereby waives any right or claim to
punitive or exemplary damages that they may now have or may arise in the future in connection with
any Dispute, whether such Dispute is resolved through arbitration or judicially.
SECTION 15.9 Accounting Matters. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time, provided that, if the Domestic Borrower, on behalf of itself and
the Canadian Borrower, notifies the Administrative Agent that the Borrowers request an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Domestic Borrower, on behalf of itself and the Canadian Borrower, that the Required
Lenders request an amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance therewith.
SECTION 15.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. The terms and provisions of the Loan Documents shall
be binding upon and inure to the benefit of the Borrowers and the Lenders and their respective
successors and assigns permitted hereby, except that (i) the Borrowers shall not have the right to
assign their respective rights or obligations under the Loan Documents without the prior written
consent of each Lender, (ii) any assignment by any Lender must be made in compliance with Section
15.10(b), and (iii) any transfer by participation must be made in compliance with Section 15.10(c).
Any attempted assignment or transfer by any party not made in compliance with Section 15.10(b)
shall be null and void, unless such attempted assignment or transfer is treated as a participation
in accordance with Section 15.10(c). The parties to this Agreement acknowledge that clause (ii) of
this Section 15.10(a) relates only to absolute assignments and this Section 15.10 does not prohibit
assignments creating security interests, including, without limitation, (x) any pledge or
assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a
Federal Reserve Bank or (y) in the case of a Lender which is a Approved Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any Note to its trustee in
support of its obligations to its trustee; provided, however, that no such pledge
or assignment creating a security interest shall release the transferor Lender from its obligations
hereunder unless and until the parties thereto have complied with the provisions of
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Section 15.10(b). The Administrative Agent may treat the Person which made any Extension of Credit
or which holds any Note as the owner thereof for all purposes hereof unless and until such Person
complies with Section 15.10(b); provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the Person which made any
Extension of Credit or which holds any Note to direct payments relating to such Extension of Credit
or Note to another Person. Any assignee of the rights to any Extension of Credit or any Note agrees
by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time of making such request or giving
such authority or consent is the owner of the rights to any Extension of Credit (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder
or assignee of the rights to such Extension of Credit.
(b) Assignment by Lenders.
(i) Assignment. Any Lender may at any time assign to one or more banks or other
entities (“Purchasers”) all or any part of its rights and obligations under the Loan
Documents. Such assignment shall be evidenced by an Assignment and Acceptance substantially in the
form of Exhibit G (an “Assignment and Acceptance”) or shall be in such other form
as may be agreed to by the parties thereto. Each such assignment with respect to a Purchaser which
is not a Lender or an Affiliate of a Lender or an Approved Fund shall either be in an amount equal
to the entire applicable Commitment and Extensions of Credit Loans of the assigning Lender or
(unless each of the Domestic Borrower, on behalf of itself and the Canadian Borrower, and the
Administrative Agent otherwise consents) be in an aggregate amount not less than $5,000,000. The
amount of the assignment shall be based on the Revolving Credit Commitment or, if such Commitment
has been terminated, the outstanding Revolving Credit Loans subject to the assignment, determined
as of the date of such assignment or as of the effective date specified in the Assignment and
Acceptance.
(ii) Consents. The consent of the Administrative Agent and JPMorgan in its
capacity as an Issuing Lender shall be required prior to any assignment becoming effective. The
consent of the Domestic Borrower, on behalf of itself and the Canadian Borrower, shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender, an Affiliate of a
Lender or an Approved Fund; provided that the consent of the Domestic Borrower, on behalf
of itself and the Canadian Borrower, shall not be required if a Default or Event of Default has
occurred and is continuing. Any consent required under this clause (ii) shall not be unreasonably
withheld or delayed.
(iii) Effect; Effective Date. Upon (A) delivery to the Agents of an Assignment and
Acceptance, together with any consents required by Section 15.10(b)(ii), and (B) payment of a
$3,500 fee to the Administrative Agent for processing such assignment (unless such fee is waived by
the Administrative Agent), such assignment shall become effective on the effective date specified
in such Assignment and Acceptance. The Assignment and Acceptance shall contain a representation by
the Purchaser to the effect that none of the consideration used to make the purchase of the
Commitment and/or Extensions of Credit Loans under the applicable Assignment and Acceptance
constitutes “plan assets” as defined under ERISA and that the rights and interests of the Purchaser
in and under the Loan Documents will not be “plan assets” under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes
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be a Lender party to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party thereto, and the transferor Lender shall be released
with respect to the Commitment and/or Loans assigned to such Purchaser without any further consent
or action by the Borrowers, the Lenders or the Agents. In the case of an assignment covering all of
the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
Lender hereunder but shall continue to be entitled to the benefits of, and subject to, those
provisions of this Agreement and the other Loan Documents which survive payment of the Obligations
and termination of the applicable agreement. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 15.10(b) shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 15.10(c). Upon the consummation of any assignment to a
Purchaser pursuant to this Section 15.10(b), the transferor Lender, the Administrative Agent and
the Borrowers shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced
by Notes, make appropriate arrangements so that new Notes or, as appropriate, replacement Notes are
issued to such transferor Lender and new Notes or, as appropriate, replacement Notes, are issued to
such Purchaser, in each case in principal amounts reflecting their respective Commitments and/or
Loans, as adjusted pursuant to such assignment.
(iv) Register. The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in Chicago, Illinois a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts of the Extensions of Credit
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrowers, the Agents
and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Domestic Borrower, on behalf of
itself and the Canadian Borrower, the Syndication Agent or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(c) Participations.
(i) Permitted Participants; Effect. Any Lender may at any time sell to one or
more banks or other entities (“Participants”) participating interests in any Extension of
Credit owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender’s obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the owner of its Extensions of Credit
and the holder of any Note issued to it in evidence thereof for all purposes under the Loan
Documents, all amounts payable by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and the Agents shall continue
to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under the Loan Documents.
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(ii) Voting Rights. Each Lender shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect to any Extension of Credit
or Commitment in which such Participant has an interest which would require consent of all of the
Lenders pursuant to the terms of Section 15.11 or of any other Loan ~ Document.
(iii) Benefit of Certain Provisions. The Borrowers agree that each Participant
shall be deemed to have the right of setoff provided in Section 15.3 in respect of its
participating interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided in Section
15.3 with respect to the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the right of setoff
provided in Section 15.3, agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance with Section 5.7 as if
each Participant were a Lender. The Borrower further agrees that each Participant shall be entitled
to the benefits of Sections 5.11, 5.12, 5.13 and 5.14 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 15.10(b), provided that (i) a
Participant shall not be entitled to receive any greater payment under Section 5.11, 5.12, 5.13 or
5.14 than the Lender who sold the participating interest to such Participant would have received
had it retained such interest for its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Domestic Borrower, on behalf of itself
and the Canadian Borrower, and (ii) any Participant not incorporated under the laws of the United
States of America or any State thereof agrees to comply with the provisions of Section 5.14 to the
same extent as if it were a Lender.
(d) Disclosure of Information; Confidentiality. The Agents and the Lenders shall
hold all non-public information with respect to the Borrowers obtained pursuant to the Loan
Documents in accordance with their customary procedures for handling confidential information;
provided, that the Agents may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of deal terms and
other information customarily found in such publications; and provided further,
that the Agents and Lenders may disclose any such information (i) to their Affiliates and to other
Agents, Lenders and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to the Agents and the Lenders or to a Purchaser or Participant, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal proceeding to which
any Agent or any Lender is a party, (vi) to any Agent’s or any Lender’s direct or indirect
contractual counterparties in Hedging Agreements or to legal counsel, accountant and other
professional advisors to such counterparties, (vii) to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law and any prospective
Participant or Purchaser (provided such Participant, Purchaser or other Person agrees to be bound
by this Section 15.10(d)) and (viii) to rating agencies if requested or required by such agencies
in connection with a rating relating to the Extensions of Credit hereunder. Any Lender may, in
connection with any assignment, proposed assignment, participation or proposed participation
pursuant to this Section 15.10, disclose to the assignee, participant, proposed assignee or
proposed participant, any
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information relating to the Borrowers furnished to such Lender by or on behalf of the Borrowers;
provided, that prior to any such disclosure, each such assignee, proposed assignee,
participant or proposed participant shall agree with the Borrowers or such Lender to preserve the
confidentiality of any confidential information relating to the Borrowers received from such
Lender.
(e) Tax Treatment. If any interest in any Loan Document is transferred to any
Purchaser or Participant which is not incorporated under the laws of the United States or any
State thereof, the transferor Lender shall cause such Purchaser or Participant, concurrently with
the effectiveness of such transfer, to comply with the provisions of Section 5.14.
SECTION 15.11 Amendments, Waivers and Consents. Except as set forth below or
as specifically provided in any Loan Document (including, without limitation, Section 2.9), any
term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be
amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such
amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in
the case of an amendment, signed by the Borrowers; provided that, except as specifically
set forth in Section 2.9, no amendment, waiver or consent shall, without the prior written consent
of each Lender affected thereby:
(a) increase the Revolving Credit Commitment of any Lender or the amount of the Loans,
(b) reduce the rate of interest or fees payable on any Loan or Reimbursement Obligation;
provided, that a waiver of the application of the default rate of interest under this
Agreement shall only require the approval of the Required Lenders,
(c) reduce or forgive the principal amount of any Loan or Reimbursement Obligation or any fee
or commission with respect thereto, or
(d) postpone or extend the originally scheduled time or times of payment of the principal of
any Loan or Reimbursement Obligation (including, without limitation, the Revolving Credit Maturity
Date and any date on which a mandatory prepayment hereunder is due) or the time or times of payment
of interest on any Loan or Reimbursement Obligation or any fee or commission with respect thereto;
provided, further, that no amendment, waiver or consent shall, without the prior
written consent of each Lender, whether or not affected thereby:
(a) permit any subordination of the principal or interest on any Loan or
Reimbursement Obligation,
(b) release any Borrower from the Obligations (other than Hedging Obligations) hereunder,
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(c) release the Domestic Borrower from its Obligations under the Domestic Borrower Guaranty
Agreement,
(d) release any Material Subsidiary from its Obligations under the Subsidiary Guaranty
Agreement,
(e) permit any assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the rights and obligations of any Borrower hereunder,
(f) release any material portion of any collateral or release any applicable security document
(other than asset sales permitted pursuant to Section 11.5 and as otherwise specifically permitted
or contemplated in this Agreement or any applicable security document),
(g) amend the definition of Alternative Currency,
(h) amend the provisions of this Section 15.11 or the definition of Required Lenders, or
(i) extend the time of the obligation of the Lenders holding Revolving Credit
Commitments to make or issue or participate in Letters of Credit.
In addition, no amendment, waiver or consent to the provisions of (a) Article XIV shall be made
without the written consent of the Administrative Agent, (b) Article III without the written
consent of the Issuing Lender, (c) any provision of this Agreement relating to Swingline Loans or
the Swingline Facility without the written consent of the Swingline Lender and (d) any provision of
this Agreement relating to Alternative Currency Loans or the Alternative Currency Facility without
the written consent of the Alternative Currency Lender. Furthermore, the Borrowers shall forward
any request for any amendment, waiver or consent to the Administrative Agent.
SECTION 15.12 Performance of Duties. The Borrowers’ obligations under this
Agreement and each of the other Loan Documents shall be performed by the Borrowers at their sole
cost and expense.
SECTION 15.13 All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any Persons designated by
any Agent or any Lender pursuant to any provisions of this Agreement or any of the other Loan
Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not been terminated.
SECTION 15.14 Survival of Indemnities. Notwithstanding any termination of this
Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the
provisions of this Article XV and any other provision of this Agreement and the other Loan
Documents shall continue in full force and effect and shall protect the Administrative Agent and
the Lenders against events arising after such termination as well as before.
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SECTION 15.15 Titles and Captions. Titles and captions of Articles, Sections and
subsections in, and the table of contents of, this Agreement are for convenience only, and neither
limit nor amplify the provisions of this Agreement.
SECTION 15.16 Severability of Provisions. Any provision of this Agreement or
any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remainder of such provision or the remaining provisions hereof or thereof
or affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 15.17 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 shall be binding upon all parties, their successors
and assigns, and all of which taken together shall constitute one and the same agreement.
SECTION 15.18 Term of Agreement. This Agreement shall remain in effect from
the Closing Date through and including the date upon which all Obligations arising hereunder or
under any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in
full and all Commitments have been terminated. No termination of this Agreement shall affect the
rights and obligations of the parties hereto arising prior to such termination or in respect of any
provision of this Agreement which survives such termination.
SECTION 15.19 Advice of Counsel. Each of the parties represents to each other
party hereto that it has discussed this Agreement with its counsel.
SECTION 15.20 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provisions of this Agreement.
SECTION 15.21 Nature of Obligations. The Domestic Borrower shall be jointly
and severally liable for the Obligations, however incurred, and the Canadian Borrower shall be
severally and not jointly and severally liable for the Obligations, however incurred. References to
the Domestic Borrower with respect to the Obligations, however incurred, or any portion thereof
shall mean the Domestic Borrower on a joint and several basis and references to the Canadian
Borrower with respect to the Obligations, however incurred, or any portion thereof shall mean the
Canadian Borrower on a several basis and not on a joint and several basis. Notwithstanding anything
to the contrary contained in this Agreement, the indemnity obligations of the Canadian Borrower set
forth in Sections 3.8, 5.11(d), 5.12, 5.14(c) and 15.2 shall not apply to any loss or claim
attributable to the Domestic Borrower or any Domestic Subsidiary thereof.
SECTION 15.22 Domestic Borrower as Agent for the Borrowers. The Borrowers
hereby irrevocably appoint and authorize the Domestic Borrower (i) to provide the Administrative
Agent with all notices with respect to the Extensions of Credit obtained for the benefit of any
Borrower and all other notices and instructions under this Agreement and the other Loan Documents
and (ii) to take such action on behalf of the Borrowers as the Domestic
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Borrower deems appropriate on its behalf to obtain Extensions of Credit and to exercise such other
powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the
other Loan Documents.
SECTION 15.23 Inconsistencies with Other Documents; Independent Effect of
Covenants.
(a) In the event there is a conflict or inconsistency between this Agreement and any other
Loan Document, the terms of this Agreement shall control.
(b) The Borrowers expressly acknowledge and agree that each covenant contained in Articles IX,
X, or XI shall be given independent effect. Accordingly, the Borrowers shall not engage in any
transaction or other act otherwise permitted under any covenant contained in Articles IX, X, or XI
if, before or after giving effect to such transaction or act, the Borrowers shall or would be in
breach of any other covenant contained in Articles IX, X, or XI.
XXXXXXX 00.00 XXX Xxxxxxx Xxx. Each Lender hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the names and addresses of the Borrowers
and other information that will allow such Lender to identify the Borrowers in accordance with the
Act.
ARTICLE XVI
NO NOVATION; REFERENCES TO THIS AGREEMENT IN LOAN DOCUMENTS
SECTION 16.1 No Novation. It is the express intent of the parties hereto that this
Agreement (i) shall re-evidence the Borrowers’ Debt under the Prior Credit Agreement, (ii) is
entered into in substitution for, and not in payment of, the obligations of the Borrowers under the
Prior Credit Agreement, and (iii) is in no way intended to constitute a novation of any of the
Borrowers’ Debt which was evidenced by the Existing Credit Agreement or any of the other Loan
Documents.
SECTION 16.2 References to This Agreement In Loan Documents. Upon the
effectiveness of this Agreement, on and after the date hereof, each reference in any other Loan
Document to the Prior Credit Agreement (including any reference therein to “the Credit Agreement,”
“thereunder,” “thereof,” “therein” or words of like import referring thereto) shall mean and be a
reference to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by
their duly authorized officers, all as of the day and year first written above.
DOMESTIC BORROWER: G&K SERVICES, INC., as Domestic Borrower |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | VP & Treasurer |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
CANADIAN BORROWER: G&K SERVICES CANADA, INC., as Canadian Borrower |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | VP & Treasurer |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
ADMINISTRATIVE AGENT, SYNDICATION AGENT, DOCUMENTATION AGENTS AND LENDERS: JPMORGAN CHASE BANK, N.A., as Administrative Agent and Lender |
||||
By: | /s/ Brain X. Xxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxx | |||
Title: | Vice President |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
XXXXX FARGO BANK, N.A., as Syndication Agent and Lender |
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By: | /s/ Xxxxxxx X. XxXxxxxxx | |||
Name: | Xxxxxxx X. XxXxxxxxx | |||
Title: | Vice President |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
BANK OF AMERICA, N.A., as Documentation Agent and Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxx | |||
Title: | Managing Director |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
XXXXXX X.X., as Documentation Agent and Lender |
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By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Director | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
SUNTRUST BANK, as Documentation Agent and Lender |
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By: | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Director | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, as Lender |
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By: | /s/ Mr. Tsuguyuki Umene | |||
Name: | Mr. Tsuguyuki Umene | |||
Title: | Deputy General Manager | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as Lender |
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By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Senior Vice President | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
COMERICA BANK, as Lender |
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By: | /s/ Xxxxxxx X’Xxxxxx | |||
Name: | Xxxxxxx X’Xxxxxx | |||
Title: | Vice President | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
THE NORTHERN TRUST COMPANY, as Lender |
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By: | /s/ Xxxx X. Cant y | |||
Name: | Xxxx X. Xxxxx | |||
Title: | Vice President | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
REGIONS BANK, as Lender |
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By: | /s/ Xxx Xxxxxx | |||
Name: | Xxx Xxxxxx | |||
Title: | AVP | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender |
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By: | /s/ Xxxx X.Xxxxxx | |||
Name: | Xxxx X.Xxxxxx | |||
Title: | Vice President | |||
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement
BANK HAPOALIM, B.M., as Lender | ||||||
By: | /s/ Xxxxx X. Xxxxxxx | /s/ Xxxxxxx XxXxxxxxxx | ||||
Name: Xxxxx X. Xxxxxxx Title: Vice President |
Sr. V.P. |
Signature Page to G&K Services
Amended and Restated Credit Agreement
Amended and Restated Credit Agreement