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Exhibit 4(d)
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 3, 1998,
among LES, INC., a Delaware corporation (the "Company"), XXXXXXX ENVIRONMENTAL
SERVICES (CANADA) LTD., a Canadian corporation and a wholly owned Subsidiary of
the Company (the "Canadian Borrower"; together with the Company, the
"Borrowers"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), TORONTO DOMINION
(TEXAS), INC., as general administrative agent (as hereinafter defined, the
"General Administrative Agent"), THE TORONTO-DOMINION BANK, as Canadian
administrative agent (as hereinafter defined, the "Canadian Administrative
Agent"), TD SECURITIES (USA) INC., as advisor to the Borrowers and arranger of
the commitments described herein (in such capacities, the "Arranger"), and THE
BANK OF NOVA SCOTIA, NATIONSBANK, N.A., THE FIRST NATIONAL BANK OF CHICAGO and
WACHOVIA BANK, N.A., as managing agents (each, in such capacity, a "Managing
Agent"), THE BANK OF NOVA SCOTIA and THE FIRST NATIONAL BANK OF CHICAGO, as
co-documentation agent (each, in such capacity, a "Co-Documentation Agent"), and
NATIONSBANK, N.A., as syndication agent (in such capacity, the "Syndication
Agent").
W I T N E S S E T H
WHEREAS, the Borrowers are parties to the Credit Agreement, dated as
of May 9, 1997 (as heretofore amended or otherwise modified, the "Existing
Credit Agreement"), with the lenders from time to time parties thereto, Toronto
Dominion (Texas), Inc., as general administrative agent, The Toronto-Dominion
Bank, as Canadian administrative agent, TD Securities (USA) Inc., as arranger,
The Bank of Nova Scotia, NationsBank, N.A. and The First National Bank of
Chicago, as managing agents, and NationsBank, N.A., as syndication agent;
WHEREAS, pursuant to the Existing Credit Agreement, the lenders
parties thereto have agreed to make and have made certain loans and other
extensions of credit to or for the account of the Borrowers;
WHEREAS, Xxxxxxx Environmental Services, Inc., a Delaware
corporation and the parent of the Company ("Holdings"), and LES Acquisition,
Inc., a Delaware corporation and a wholly owned subsidiary of the Company
("Acquisition Corp."), have made an exchange offer (as amended prior to the date
hereof and as hereafter amended in accordance with this Agreement, the "Exchange
Offer") pursuant to the Offer to Exchange, as finally amended on March 18, 1998
(such Offer to Exchange, together with the associated documents filed by
Holdings and Acquisition Corp. with the Securities and Exchange Commission in
connection with the Exchange Offer, as amended prior to the date hereof and as
hereafter amended in accordance with this Agreement, collectively, the "Exchange
Offer Documents");
WHEREAS, pursuant to the Exchange Offer, shareholders of
Safety-Kleen Corp., a Wisconsin corporation ("Safety-Kleen"), are invited to
exchange shares of common
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stock ("Target Shares"), together with associated share purchase rights ("Target
Rights"), for consideration equal to $18.30 in cash plus 2.8 shares of common
stock of Holdings;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
March 16, 1998 (the "Merger Agreement"), among Holdings, Acquisition Corp. and
Safety-Kleen, as promptly as practicable after the consummation of the Exchange
Offer, Acquisition Corp. and Safety-Kleen will merge (the "Merger"), with
Safety-Kleen being the surviving corporation of the Merger (such survivor, the
"Surviving Corporation");
WHEREAS, in order to provide for financing of the Exchange Offer and
the Merger and related costs and expenses, and for the refinancing of certain
existing indebtedness of Safety-Kleen, the Borrowers have requested that the
Existing Credit Agreement be amended and restated as provided herein; and
WHEREAS, the Lenders and the other parties hereto wish to amend and
restate the Existing Credit Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereby agree that on the Closing
Date the Existing Credit Agreement shall be amended and restated in its entirety
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acceptance": a Draft drawn by the Canadian Borrower and accepted by
a Canadian Lender which is (a) denominated in Canadian Dollars, (b) for a
term of not less than one month nor more than six months and which matures
prior to the Canadian Facility Termination Date and (c) issuable and
payable only in Canada; provided that to the extent the context shall
require, each Acceptance Note shall be deemed to be an Acceptance.
"Acceptance Note": as defined in Section 5.7(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and
with one-half cent being rounded up) obtained by dividing the face amount
of such Acceptance by the sum of (a) one and (b) the product of (i) the
Reference Discount Rate for Acceptances of the same maturity expressed as
a decimal and (ii) a fraction, the numerator of which is the term to
maturity of such Acceptance and the denominator of which is equal to 365.
"Acceptance Reimbursement Obligations": the obligation of the
Canadian Borrower to the Canadian Lenders (a) to reimburse the Canadian
Lenders for
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maturing Acceptances pursuant to Section 5.5 and (b) to make payments in
respect of the Acceptance Notes in accordance with the terms thereof.
"Acceptance Tranches": the collective reference to Acceptances all
of which were created on the same date and have the same maturity date.
"Acquisition Closing Date": the closing date of the Existing Credit
Agreement and the Xxxxxxx Acquisition, which date was May 15, 1997.
"Acquisition Corp.": as defined in the Recitals to this Agreement.
"Acquisition Corp. Pledge Agreement": the Pledge Agreement to be
executed and delivered by Acquisition Corp., substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agents": the collective reference to the General
Administrative Agent and the Canadian Administrative Agent.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Canadian Term Loan Outstandings": as at any date of
determination with respect to any Canadian Lender, an amount in Canadian
Dollars equal to the sum of the following, without duplication: (a) the
aggregate unpaid principal amount of such Canadian Lender's Canadian Term
Loans on such date, (b) the aggregate undiscounted face amount of all
outstanding Acceptances (other than Existing Acceptances) of such Canadian
Lender on such date, (c) such Lender's Canadian Term Loan Commitment
Percentage of the aggregate undiscounted face amount of all outstanding
Existing Acceptances on such date and (d) the aggregate undiscounted face
amount of such Canadian Lender's Acceptance Notes on such date.
"Aggregate Commitment Percentage": as to any Lender, the percentage
which such Lender's Aggregate Exposure constitutes of the Aggregate
Exposure of all Lenders.
"Aggregate Exposure": as to any Lender, the sum of such Lender's
Revolving Credit Commitment (or, after termination of the Revolving Credit
Commitments, such Lender's Revolving Extensions of Credit) and U.S. Term
Loans and the U.S. Dollar Equivalent of such Lender's Aggregate Canadian
Term Loan Outstandings.
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"Agreement": this Amended and Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in Section 14.15(b).
"Applicable Margin": (a) on any day, for each Type of Revolving
Credit Loan, Tranche A Term Loan and Canadian Term Loan, the rate per
annum determined pursuant to the Pricing Grid; and
(b) for each Type of Tranche B Term Loan and Tranche C Term Loan,
the rate per annum set forth under the relevant column heading below:
Base Rate Loans LIBOR Rate Loans
--------------- ----------------
Tranche B Term Loans 1.75% 2.75%
Tranche C Term Loans 2.00% 3.00%
; provided, that in the event that the Consolidated Total Leverage Ratio
(the determination and effectiveness of which shall be made and
established, respectively, on an Adjustment Date in accordance with the
provisions of the Pricing Grid) is reduced to less than 3.00 to 1.00, the
Applicable Margins set forth above for Tranche B Term Loans and Tranche C
Term Loans shall be permanently reduced by 37.50 basis points; provided
further that no such reduction in Applicable Margin shall occur prior to
the Adjustment Date occurring after completion of the first four full
consecutive fiscal quarters of the Company ending after the Closing Date.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Arranger": as defined in the Preamble to this Agreement.
"Asset Sale": any Disposition of assets or series of related
Dispositions of assets, excluding any Disposition of assets permitted by
clause (a), (c), (d), (e), (f) or (g) of Section 10.6; provided, that
asset Dispositions permitted by clauses (e) and (f) of Section 10.6 shall
not be excluded from the definition of "Asset Sale" to the extent that the
Net Cash Proceeds therefrom exceed $225,000,000 in the aggregate.
"Assignee": as defined in Section 14.6(c).
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"Available Revolving Credit Commitment": as to any U.S. Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment over (b) such Lender's Revolving Extensions of
Credit.
"Bank Act (Canada)": the Bank Act (Canada), as amended from time to
time.
"Base Rate": a rate per annum determined by the General
Administrative Agent on a daily basis, equal to the higher of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus one half of one percent (.50 of 1%) per annum.
"Base Rate Loan": any Loan the rate of interest applicable to which
is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System.
"Borrowers": as defined in the Preamble to this Agreement.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2, 2.5., 4.2 or 5.2 as a date on which a Borrower requests the
Lenders to make Loans, create Acceptances, convert Acceptances into
Canadian Term Loans or convert Canadian Term Loans into Acceptances, as
the case may be.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Houston, Texas are authorized
or required by law to close; provided that (a) when such term is used in
respect of a day on which a Loan in Canadian Dollars is to be made or an
Acceptance is to be created, a payment is to be made in respect of such
Loan or Acceptance, an Exchange Rate is to be set in respect of Canadian
Dollars or any other dealing in Canadian Dollars is to be carried out
pursuant to this Agreement, such term shall mean a day other than a
Saturday, Sunday or other day on which commercial banks in Toronto,
Ontario are authorized or required by law to close and (b) when such term
is used with respect to notices and determinations in connection with, and
payments of principal of, and interest on, LIBOR Loans, any day which is a
Business Day in New York City and which is also a day on which trading by
and between banks in Dollar deposits may be carried out in the London
interbank eurodollar market.
"Canadian Administrative Agent": The Toronto-Dominion Bank, together
with its affiliates, as the Canadian Administrative Agent for the Canadian
Lenders under this Agreement and the other Loan Documents, and any
successor thereto pursuant to Section 12.9.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by the Canadian Borrower or a Subsidiary
thereof that are not Canadian Pension Plans including, without limitation,
all profit sharing, savings, supplemental retirement, retiring allowance,
severance, deferred compensation, welfare, bonus,
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supplementary unemployment benefit plans or arrangements and all life,
health, dental and disability plans and arrangements in which the
employees or former employees of the Canadian Borrower or a Subsidiary
thereof employed in Canada participate or are eligible to participate.
"Canadian Borrower": as defined in the Preamble to this Agreement.
"Canadian Borrower Obligations": the unpaid principal of and
interest on (including, without limitation, interest accruing after the
maturity of the Loans and Acceptance Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Canadian Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans and
Acceptance Reimbursement Obligations and all other obligations and
liabilities of the Canadian Borrower to the Administrative Agents or to
any Lender (or, in the case of any Hedging Agreements, any affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document,
any Hedging Agreement entered into with any Lender or any affiliate of any
Lender or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agents or to any Lender that are required to be paid by the
Canadian Borrower pursuant hereto) or otherwise.
"Canadian Collateral Documents": the collective reference to the
agreements, instruments and documents delivered from time to time (both
before and after the date of this Agreement) to the General Administrative
Agent, the Canadian Administrative Agent or the Lenders by the Canadian
Borrower or any of its Subsidiaries for the purpose of establishing,
perfecting, reserving or protecting the security of the Lenders in respect
hereof and in respect of amounts owing by the Canadian Borrower hereunder
(including, without limitation, guarantees, debentures, Bank Act (Canada)
assignments, general security agreements, general assignments of
receivables and share pledge agreements, each as amended, restated,
supplemented or replaced from time to time). The Canadian Collateral
Documents executed and delivered in connection with the Acquisition
Closing Date are listed on Schedule 4. On the Closing Date, the parties to
the Canadian Collateral Documents shall execute and deliver one or more
Affirmations of Security Agreements in form and substance satisfactory to
the General Administrative Agent and the Canadian Administrative Agent,
which shall affirm the continuing existence and validity of the Canadian
Collateral Documents as security for the obligations of the Canadian
Borrower hereunder.
"Canadian Dollar Prime Rate": on any day, the higher of (a) the rate
per annum designated by the Canadian Administrative Agent from time to
time (and in effect on such day) as its reference rate for Canadian Dollar
commercial loans made
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in Canada and (b) the rate per annum which is .75% above the one month
acceptance rate quoted by The Toronto-Dominion Bank at 10:00 A.M., Toronto
time, that appears on the Xxxxxx'x Screen CDOR page on such day as its
rate for acceptances in Canada. The Canadian Dollar Prime Rate is not
intended to be the lowest rate of interest charged by The Toronto-Dominion
Bank in connection with extensions of credit in Canadian Dollars to
debtors.
"Canadian Dollars" and "C$": dollars in the lawful currency of
Canada.
"Canadian Facility Amortization Date": as defined in Section 4.3.
"Canadian Facility Commitment Period": the period from and including
the Closing Date to the Canadian Facility Termination Date.
"Canadian Facility Maximum Amount": on any date, the maximum
Aggregate Canadian Term Loan Outstandings permitted on such date after
giving effect to payments required to be made pursuant to Section 4.3 or
reductions required to be made pursuant to Section 6.3(g), as the case may
be.
"Canadian Facility Termination Date": April 3, 2004.
"Canadian Lenders": each Lender listed on Schedule 1.1B.
"Canadian Operating Facility": the C$35,000,000 credit facility made
available pursuant to the letter agreement, dated as of the date hereof,
between the Canadian Borrower, as borrower, and The Toronto-Dominion Bank,
as lender, as the same may be amended, modified or otherwise supplemented
from time to time.
"Canadian Operating Facility Lender": The Toronto-Dominion Bank in
its capacity as lender under the Canadian Operating Facility.
"Canadian Operating Facility Obligations": all of the obligations,
liabilities and indebtedness of the Canadian Borrower to the Canadian
Operating Facility Lender from time to time, whether present or future,
absolute or contingent, liquidated or unliquidated, as principal or as
surety, alone or with others, of whatsoever nature or kind, in any
currency, under or in respect of agreements or dealings between the
Canadian Borrower and the Canadian Operating Facility Lender or agreements
or dealings between the Canadian Borrower and any Person by which such
lender may be or become in any manner whatsoever a creditor of the
Canadian Borrower, including without limitation under the Canadian
Operating Facility (including, without limitation, all fees and
disbursements of the Canadian Operating Facility Lender or its counsel or
agents incurred in the enforcement of the Canadian Operating Facility);
the amount of the Canadian Operating Facility Obligations will be
determined without regard to any right of set-off or counterclaim by the
Canadian Borrower against the Canadian Operating Facility Lender.
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"Canadian Pension Plan": any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable
pension benefit or tax laws of Canada or a province or territory thereof
(whether or not registered under any such laws) which is maintained,
administered or contributed to by (or to which there is or may be an
obligation to contribute by) the Canadian Borrower or a Subsidiary thereof
in respect to any person's past, present or future employment in Canada or
a province or territory thereof with the Canadian Borrower or a Subsidiary
thereof, all related funding arrangements and all related agreements,
arrangements and understandings in respect of, or related to, any benefits
to be provided thereunder or the effect thereof on any other compensation
or remuneration of any employee.
"Canadian Reference Lenders": the collective reference to the
Schedule 1 Canadian Reference Lenders and the Schedule 2 Canadian
Reference Lenders.
"Canadian Term Loan": as defined in Section 4.1.
"Canadian Term Loan Commitment": as to any Canadian Lender, the
obligation of such Lender to make Canadian Term Loans to, and/or create
and discount Acceptances on behalf of (or, in lieu thereof, to make loans
pursuant to the Acceptance Notes to), the Canadian Borrower, in an amount
not to exceed the amount set forth opposite such Canadian Lender's name on
Schedule 1.1B under the heading "Canadian Term Loan Commitment". The
original aggregate amount of the Canadian Term Loan Commitments is the
equivalent in Canadian Dollars (determined in accordance with Section
4.3(b)) of US$70,000,000.
"Canadian Term Loan Commitment Percentage": as to any Canadian
Lender at any time, the percentage which such Canadian Lender's Canadian
Term Loan Commitment then constitutes of the aggregate Canadian Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate amount of such Canadian Lender's Aggregate Canadian Term
Loan Outstandings then outstanding constitutes of the Total Aggregate
Canadian Term Loan Outstandings then outstanding).
"Canadian Term Loan Note": as defined in Section 4.4(d).
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any
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commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2
by Standard and Poor's Rating Group ("S&P") or P-2 by Xxxxx'x Investors
Service, Inc. ("Moody's"), (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's, (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of
this definition or (g) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"Change of Control": a Change of Control shall be deemed to occur
(a) if at any time Xxxxxxx shall cease to be a primary shareholder of
Holdings, (b) if at any time when the Consolidated Total Leverage Ratio is
greater than 2.50 to 1.00, Xxxxxxx shall not own, directly or indirectly,
at least 20% of the outstanding voting stock of Holdings, (c) if at any
time Holdings shall cease to own 100% of the outstanding voting stock of
the Company, (d) if at any time the Company shall cease to own 100% of the
outstanding voting stock of the Canadian Borrower or (e) if at any time
there shall cease to be at least one member of the Board of Directors of
Holdings who is a designee of Xxxxxxx.
"Closing Date": the date on which the conditions precedent set forth
in Section 8.1 shall be satisfied, which date shall not be later than
April 8, 1998.
"Co-Documentation Agent": as defined in the Preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": as to any Lender, the sum of the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment, the Tranche C Term Loan
Commitment, the Revolving Credit Commitment and the Canadian Term Loan
Commitment of such Lender.
"Commitment Fee Rate": on any day, the rate per annum determined
pursuant to the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of
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ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Company": as defined in the Preamble to this Agreement.
"Consolidated Capital Expenditures": for any fiscal period, the
aggregate of all expenditures by Holdings and its Subsidiaries for the
acquisition or leasing (pursuant to a Financing Lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized
repairs and improvements during such period, but excluding investments
made pursuant to Section 10.8(c)) which should be capitalized under GAAP
on a consolidated balance sheet of Holdings and its Subsidiaries; provided
that for any calculation of Consolidated Capital Expenditures for any
fiscal period ending November 30, 1998, February 28, 1999 or May 31, 1999,
Consolidated Capital Expenditures shall be deemed to be Consolidated
Capital Expenditures from September 1, 1998 to the last day of such period
multiplied by 4, 2 and 4/3, respectively.
"Consolidated Contingent Obligations": at any date (a) all
obligations of Holdings and its Subsidiaries in respect of performance
bonds, letters of credit in the nature of performance bonds and similar
obligations, and (b) all Guarantee Obligations of Holdings and it
Subsidiaries in respect of obligations of the kind referred to in the
foregoing clause (a).
"Consolidated Debt Service": for any fiscal period, the sum, for
Holdings and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of (a) all regularly scheduled
payments of principal of Indebtedness during such period, including all
scheduled payments in respect of the Loans, and, without duplication, all
scheduled reductions in the Canadian Facility Maximum Amount, during such
period plus (b) Consolidated Projected Cash Interest Expense for such
period.
"Consolidated Fixed Charges": for any fiscal period, the sum for
such period of (i) Consolidated Debt Service and (ii) Consolidated
Projected Operating Lease Expense.
"Consolidated Historical Cash Interest Expense": for any fiscal
period, the aggregate amount of interest in respect of Consolidated Total
Funded Debt and in respect of the Seller Note paid in cash during such
period as determined on a consolidated basis in accordance with GAAP;
provided that for any calculation of Consolidated Historical Cash Interest
Expense for any fiscal period ending November 30, 1998, February 28, 1999
or May 31, 1999, Consolidated Historical Cash Interest Expense shall be
deemed to be Consolidated Historical Cash Interest Expense from September
1, 1998 to the last day of such period multiplied by 4, 2 and 4/3,
respectively.
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"Consolidated Historical Operating Lease Expense": for any fiscal
period, the aggregate lease obligations of Holdings and its Subsidiaries
for which Holdings or any of its Subsidiaries is contractually committed
having a remaining term in excess of twelve months determined on a
consolidated basis payable in respect of such period under leases of real
and/or personal property (net of income from sub-leases thereof and
excluding lease payments on operating leases which carry a termination
payment of less than twelve months of lease payments, but including taxes,
insurance, maintenance and similar expenses which the lessee is obligated
to pay under the terms of said leases), whether or not such obligations
are reflected as liabilities or commitments on a consolidated balance
sheet of Holdings and its Subsidiaries or in the notes thereto, excluding,
however, obligations under Financing Leases; provided that for any
calculation of Consolidated Historical Operating Lease Expense for any
fiscal period ending November 30, 1998, February 28, 1999 or May 31, 1999,
Consolidated Historical Operating Lease Expense shall be deemed to be
Consolidated Historical Operating Lease Expense from September 1, 1998 to
the last day of such period multiplied by 4, 2 and 4/3, respectively.
"Consolidated Net Income": of any Person for any fiscal period, net
income of such Person and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; provided that for any calculation of
Consolidated Net Income for any fiscal period ending November 30, 1998,
February 28, 1999 or May 31, 1999, Consolidated Net Income shall be deemed
to be Consolidated Net Income from September 1, 1998 to the last day of
such period multiplied by 4, 2 and 4/3, respectively.
"Consolidated Operating Cash Flow": for any fiscal period,
Consolidated Net Income of Holdings and its Subsidiaries (excluding
without duplication, (w) extraordinary gains and losses in accordance with
GAAP, (x) gains and losses in connection with asset dispositions whether
or not constituting extraordinary gains and losses and (y) gains or losses
on discontinued operations and (z) non-cash investment income) for such
period, plus (i) to the extent deducted in determining such Consolidated
Net Income, interest expense and other financing costs and expenses (cash
and non-cash) for such period, plus (ii) to the extent deducted in
computing such Consolidated Net Income, the sum of income taxes (whether
or not deferred), depreciation and amortization, and all other non-cash
expenses; provided that for any calculation of Consolidated Operating Cash
Flow for any fiscal period ending November 30, 1998, February 28, 1999 or
May 31, 1999, Consolidated Operating Cash Flow shall be deemed to be
Consolidated Operating Cash Flow from September 1, 1998 to the last day of
such period multiplied by 4, 2 and 4/3, respectively.
"Consolidated Projected Cash Interest Expense": for any fiscal
period, the aggregate amount of interest in respect of Consolidated Total
Funded Debt and in respect of the Seller Note projected to be payable in
cash during such period as determined on a consolidated basis in
accordance with GAAP (such interest expense being calculated based upon
the assumption that interest rates in effect on the date of calculation
will remain in effect for such future fiscal period).
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"Consolidated Projected Operating Lease Expense": for any fiscal
period, the aggregate lease obligations of Holdings and its Subsidiaries
for which Holdings or any of its Subsidiaries is contractually committed
having a remaining term in excess of twelve months determined on a
consolidated basis projected to be payable in respect of such period under
leases of real and/or personal property (net of income from sub-leases
thereof and excluding lease payments on operating leases which carry a
termination payment of less than twelve months of lease payments, but
including taxes, insurance, maintenance and similar expenses which the
lessee is obligated to pay under the terms of said leases), whether or not
such obligations would be reflected as liabilities or commitments on a
consolidated balance sheet of Holdings and its Subsidiaries or in the
notes thereto, excluding, however, obligations under Financing Leases.
"Consolidated Total Funded Debt": at any date, all Indebtedness of
Holdings and its Subsidiaries outstanding on such date for borrowed money
or the deferred purchase price of property and all Guarantee Obligations
of the Company and its Subsidiaries in respect of Indebtedness for
borrowed money or the deferred purchase price of property, in each case
determined on a consolidated basis in accordance with GAAP, including,
without limitation, Indebtedness in respect of Financing Leases, but
excluding Indebtedness in respect of the Seller Note.
"Consolidated Total Leverage Ratio" as at any date of determination,
the ratio of (i) Consolidated Total Funded Debt as at such date to (ii)
Consolidated Operating Cash Flow for the four fiscal quarters ended on or
most recently prior to such date of determination.
"Consolidated Working Capital": of any Person at any date, the
excess of (a) the sum of all amounts (other than cash and cash
equivalents) that would, in accordance with GAAP, be set forth opposite
the caption "total current assets" (or any like caption) on a consolidated
balance sheet of such Person and its Subsidiaries at such date over (b)
all amounts that would, in accordance with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of such Person and its Subsidiaries on such
date (excluding, to the extent it would otherwise be included under
current liabilities, the current portion of any Consolidated Total Funded
Debt).
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CPCFA Debt": the Indebtedness incurred by Holdings pursuant to a
credit agreement, dated as of July 1, 1997, between Holdings and the
California Pollution Control Financing Authority in connection with the
issuance by such Authority of Pollution Control Revenue Bonds, due July 1,
2007, in the aggregate principal amount of $19,500,000.
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"Default": any of the events specified in Section 11, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Disposition": with respect to any asset, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
"Domestic Subsidiary": any Subsidiary of the Company organized under
the laws of any jurisdiction within the United States.
"Draft": a draft substantially in the form of Exhibit A-1 or in such
other form as the Canadian Administrative Agent may from time to time
reasonably request (or to the extent the context shall require, an
Acceptance Note, delivered in lieu of a draft), as the same may be
amended, supplemented or otherwise modified from time to time.
"Environmental Laws": any and all laws (including, without
limitation, all common and civil law), rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirement of any foreign government, the United States,
Canada, or any state, provincial, local, municipal or other governmental
authority, regulating, relating to or imposing liability or standards of
conduct concerning protection of the environment or of human health, or
employee health and safety, as has been, is now, or may at any time
hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
registrations, approvals, notifications, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
LIBOR Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Business Day": any day on which banks are open for
dealings in dollar deposits in the London interbank market.
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"Event of Default": any of the events specified in Section 11,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any Person for any fiscal year,
the excess of (a) the sum, without duplication, of (i) Consolidated Net
Income of such Person and its Subsidiaries for such fiscal year, (ii) the
net decrease, if any, in Consolidated Working Capital of such Person and
its Subsidiaries during such fiscal year, (iii) to the extent deducted in
computing such Consolidated Net Income, non-cash interest expense and
other financing costs and expenses, depreciation and amortization for such
fiscal year, (iv) extraordinary non-cash losses during such fiscal year
subtracted in the determination of such Consolidated Net Income, (v)
deferred income tax expense of such Person and its Subsidiaries for such
fiscal year, (vi) non-cash losses of such Person and its Subsidiaries for
such fiscal year in connection with asset dispositions whether or not
constituting extraordinary losses, and (vii) non-cash ordinary losses of
such Person and its Subsidiaries for such fiscal year over (b) the sum,
without duplication, of (i) the aggregate amount of permitted cash capital
expenditures made by such Person and its Subsidiaries during such fiscal
year, (ii) the net increase, if any, in Consolidated Working Capital of
such Person and its Subsidiaries during such fiscal year, (iii) the
aggregate amount of (A) scheduled payments of principal in respect of any
Indebtedness of such Person and its Subsidiaries during such fiscal year,
(B) optional prepayments of principal in respect of any Indebtedness of
such Person and its Subsidiaries during such fiscal year (other than, with
respect to Holdings, prepayments in respect of the Revolving Credit Loan
not accompanied by a reduction in Revolving Credit Commitments), (C) with
respect to Holdings for fiscal year 1997 only, repayments of existing
Indebtedness required to be repaid in connection with the Acquisition
Closing Date, (iv) deferred income tax credit of such Person and its
Subsidiaries for such fiscal year, (v) extraordinary non-cash gains during
such fiscal year added in the determination of Consolidated Net Income of
such Person and its Subsidiaries for such fiscal year, (vi) non-cash gains
of such Person and its Subsidiaries during such fiscal year in connection
with asset dispositions whether or not constituting extraordinary gains,
(vii) non-cash ordinary gains of such Person and its Subsidiaries during
such fiscal year and (viii) cash expenditures of such Person and its
Subsidiaries during such fiscal year on deferred (including the current
portion thereof) long term liabilities (net of related cash taxes), (ix)
to the extent not deducted in determining Consolidated Net Income of such
Person and its Subsidiaries for such fiscal year, cash expenditures made
or committed during such fiscal year in respect of site closure, related
severance costs, financing fees and other costs incurred in connection
with the Xxxxxxx Acquisition and the Safety-Kleen Acquisition (provided
that amounts deducted in any fiscal year for expenditures committed, but
not made, during such fiscal year shall not be deducted in the fiscal year
in which such expenditures are actually made) and (x) non-cash investment
income of such Person and its Subsidiaries during such fiscal year.
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"Exchange Agent": IBJ Xxxxxxxx Bank & Trust Company, as exchange
agent under the Exchange Agent Agency Agreement, and any successor thereto
pursuant to the terms of such agreement.
"Exchange Agent Agency Agreement": the Exchange Agent Agency
Agreement to be executed and delivered by the Exchange Agent, the General
Administrative Agent and Acquisition Corp., substantially in the form of
Exhibit P, as the same may be amended, supplemented or otherwise modified
from time to time.
"Exchange Offer": as defined in the Recitals to this Agreement.
"Exchange Offer Documents": as defined in the Recitals to this
Agreement.
"Exchange Rate": with respect to Canadian Dollars on any date, the
Bank of Canada noon spot rate on such date for the exchange of Canadian
Dollars into U.S. Dollars.
"Existing Acceptances": as defined in Section 5.1(a).
"Existing Acceptance Lenders": as defined in Section 5.1(a).
"Existing Credit Agreement": as defined in the Recitals to this
Agreement.
"Existing Letters of Credit": as defined in Section 3.1(c).
"Existing Mortgages": the collective reference to (i) the Deed of
Trust, Assignment of Rents and Leases and Security Agreement, dated as of
May 15, 1997, from Xxxxxxx Environmental, Inc., as Grantor, to First
American Title Insurance Company, as trustee for the use and benefit of
Toronto Dominion (Texas), Inc., as beneficiary, and (ii) the Mortgage,
dated as of May 15, 1997, from Xxxxxxx Environmental, Inc., as mortgagor,
to Toronto Dominion (Texas), Inc., as general administrative agent, in
each case encumbering the properties described in Schedule 2 and recorded
in the recording office described in Schedule 3.
"Extension of Credit": as to any Lender, the making of a Loan by
such Lender, the issuance (or acquisition of a participating interest in)
any Letter of Credit or the creation of an Acceptance or Acceptance Note
by such Lender. It is expressly understood and agreed that the following
do not constitute Extensions of Credit for purposes of this Agreement: (a)
the conversions and continuations of U.S. Loans as or to LIBOR Loans or
Base Rate Loans pursuant to Section 6.4, (b) the substitution of maturing
Acceptances with new Acceptances, (c) the conversion of Acceptances to
Canadian Term Loans and (d) the conversion of Canadian Term Loans to
Acceptances.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b)
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the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility"), (c) the Tranche C Term
Loan Commitments and the Tranche C Term Loans made thereunder (the
"Tranche C Term Loan Facility"), (d) the Revolving Credit Commitments and
the Revolving Extensions of Credit (the "Revolving Credit Facility") and
(e) the Canadian Term Loan Commitments and the Canadian Term Loans made,
and the Acceptances issued, thereunder (the "Canadian Term Loan
Facility").
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the General
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": as at the last day of any fiscal
quarter, the ratio of (i) the sum of Consolidated Operating Cash Flow and
Consolidated Historical Operating Lease Expense for the four consecutive
fiscal quarters ended on such last day to (ii) Consolidated Fixed Charges
for the next succeeding four consecutive fiscal quarters.
"Foreign Currency Protection Agreements": as to any Person, all
foreign exchange contracts, currency swap agreements or other similar
agreements or arrangements entered into by such Person to protect such
Person against fluctuations in currency values.
"Foreign Subsidiary": any Subsidiary of the Company organized under
the laws of any jurisdiction outside the United States of America.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Administrative Agent": Toronto Dominion (Texas) Inc.,
together with its affiliates, as arranger of the Commitments and as
administrative agent for the U.S. Lenders under this Agreement and the
other Loan Documents, and any successor thereto pursuant to Section 12.9.
"Governmental Authority": any nation or government, any state,
provincial or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the
Company and each Guarantor, substantially in the form of Exhibit B-1, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which obligation the guaranteeing person
has issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Company in good faith. For avoidance of doubt, Guarantee Obligations will
not include obligations of Holdings and its Subsidiaries incurred in the
ordinary course of business to indemnify customers in connection with
business services provided by Holdings or its Subsidiaries.
"Guarantor": each party to the Guarantee and Collateral Agreement
other than the Company, which shall include Holdings and all wholly owned
Domestic Subsidiaries of the Company.
"Hedging Agreement": any Foreign Currency Protection Agreement or
Interest Rate Protection Agreement.
"High Yield Notes": up to $400,000,000 of subordinated notes of the
Company maturing no earlier than the Revolving Credit Termination Date and
having
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subordination and other terms reasonably acceptable to the Company and the
General Administrative Agent.
"High Yield Offering": the contemplated offering by the Company of
the High Yield Notes.
"Holdings": as defined in the Recitals to this Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person,
contingent or otherwise, as an account party under acceptance, letter of
credit or similar facilities (other than obligations in respect of
performance bonds and letters of credit in the nature of performance
bonds), (e) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any Capital Stock
(other than common stock) of such Person, (f) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in clauses
(a) through (e) above, (g) all obligations of the kind referred to in
clauses (a) through (f) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation and (h) for
the purposes of Section 11(e) only, all obligations of such Person in
respect of Hedging Agreements.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Amended and Restated Intercreditor
Agreement, substantially in the form of Exhibit O, to be entered into by
the Administrative Agents and The Toronto-Dominion Bank, as Canadian
Operating Facility Agent (as defined therein), and NationsBank, N.A., in
its capacity as a lender providing the NationsBank Line of Credit.
"Interest Coverage Ratio": for any period, the ratio of (i)
Consolidated Operating Cash Flow less Consolidated Capital Expenditures
for such period to (ii) Consolidated Historical Cash Interest Expense for
such period.
"Interest Determination Date": with respect to any Interest Period
for LIBOR Loans, the date which is two Eurodollar Business Days prior to
the first day of such LIBOR Interest Period.
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"Interest Payment Date": (a) as to any Base Rate Loan and any
Canadian Term Loan, the last Business Day of each February, May, August
and November, and, in the case of any Canadian Term Loan converted to an
Acceptance pursuant to Section 5.1(b), the Borrowing Date on which such
conversion occurs, (b) as to any LIBOR Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c) as to
any LIBOR Loan having an Interest Period longer than three months, each
day which is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any LIBOR Loan:
(a) initially, the period commencing on the Borrowing Date
or conversion date, as the case may be, with respect to such LIBOR
Loan and ending one, two, three or six months or (if available to
all Lenders under the relevant Facility) nine or twelve months
thereafter, as selected by the Company in its notice of borrowing or
notice of conversion, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such LIBOR Loan and
ending one, two, three or six months or (if available to all Lenders
under the relevant Facility) nine or twelve months thereafter, as
selected by the Company by irrevocable notice to the General
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period in respect of Revolving Credit Loans,
Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans,
as the case may be, that would otherwise extend beyond the Revolving
Credit Termination Date or beyond the date final payment is due on
the Tranche A Term Loans, the Tranche B Term Loans or the Tranche C
Term Loans, as the case may be, shall end on the Revolving Credit
Termination Date or such due date, as applicable;
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
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(4) the Company shall select Interest Periods so as not to
require a payment or prepayment of any LIBOR Loan during an Interest
Period for such Loan.
"Interest Rate Protection Agreements": as to any Person, all
interest rate swaps, caps or collar agreements or similar arrangements
entered into by such Person providing for protection against fluctuations
in interest rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Issuance Date": any Business Day specified in a notice pursuant to
Section 3.2 as a date on which an Issuing Lender is requested to issue a
Letter of Credit hereunder.
"Issuing Lender": any of The Toronto-Dominion Bank or any Managing
Agent or any Affiliates thereof, as selected by the Company.
"ITA": the Income Tax Act (Canada) and the regulations promulgated
thereunder, as amended or re-enacted from time to time.
"Xxxxxxx": Xxxxxxx Inc., a Canadian corporation.
"L/C Commitment": at any time, the lesser of (a) $200,000,000 and
(b) the aggregate Revolving Credit Commitments then in effect.
"L/C Fee Payment Date": the last day of each February, May, August
and November and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
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": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the
relevant Issuing Lender.
"Letters of Credit": as defined in Section 3.1(a).
"LIBOR Loan": any Loan the rate of interest applicable to which is
based upon the LIBOR Rate.
"LIBOR Rate": with respect to a LIBOR Loan for the relevant Interest
Period, the rate per annum determined by the General Administrative Agent
as follows:
(a) on the Interest Determination Date relating to such
Interest Period, the General Administrative Agent shall obtain the
offered quotation(s)
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for U.S. Dollar deposits for a period comparable to such Interest
Period that appear on the Xxxxxx'x Screen as of 11:00 a.m., London
time. If at least two such offered quotations appear on the Xxxxxx'x
Screen, the LIBOR Rate shall be the arithmetic average (rounded up
to the nearest 1/16th of 1%) of such offered quotations, as
determined by the General Administrative Agent;
(b) if the Xxxxxx'x Screen is not available or has been
discontinued, the LIBOR Rate shall be the rate per annum that the
General Administrative Agent determines to be the arithmetic average
(rounded as aforesaid) of the per annum rates of interest reported
to the General Administrative Agent by each LIBOR Reference Bank
(or, if any LIBOR Reference Bank fails to provide such quotation, on
the basis of the rates reported to the General Administrative Agent
by the remaining LIBOR Reference Banks) as the rate at which
deposits in U.S. Dollars are offered to such Reference Banks in the
London interbank market at 11:00 a.m., London time, on the Interest
Determination Date in the approximate amount of such LIBOR Reference
Bank's relevant LIBOR Loan and having a maturity approximately equal
to the relevant LIBOR Interest Period; and
(c) if the General Administrative Agent is not able to obtain
quotations for the determination of the LIBOR Rate pursuant to
subsection (a) or (b) above, the LIBOR Rate shall be the rate per
annum which the General Administrative Agent in good faith
determines to be the arithmetic average (rounded as aforesaid) of
the offered quotations for U.S. Dollar deposits in an amount
comparable to the General Administrative Agent's share of the
relevant amount in respect of which the LIBOR Rate is being
determined for a period comparable to the relevant LIBOR Interest
Period that leading banks in New York City selected by the General
Administrative Agent are quoting at 11:00 a.m., New York City time,
on the Interest Determination Date in the New York interbank market
to major international banks.
"LIBOR Reference Banks": The Toronto-Dominion Bank, The Bank of Nova
Scotia, NationsBank, N.A. and The First National Bank of Chicago.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": the collective reference to this Agreement, any
Notes, the Applications, the Syndication Letter Agreement, the Drafts, the
Acceptances, the Acceptance Notes and the Security Documents.
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"Loan Parties": the collective reference to Holdings, the Borrowers
and each Subsidiary of the Company which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 66-2/3% of the aggregate unpaid principal amount of
the U.S. Term Loans (and related undrawn U.S. Term Loan Commitments), the
Total Revolving Extensions of Credit or the Aggregate Canadian Term Loan
Outstandings, as the case may be, outstanding under such Facility (or, in
the case of the Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, the holders of more than 66- 2/3% of the
aggregate Revolving Credit Commitments).
"Material Adverse Effect": a material adverse effect on (a) the
Safety-Kleen Acquisition, (b) the business, operations, property,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole or (c) the validity or enforceability of
this or any of the other Loan Documents or the rights or remedies of the
Administrative Agents or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances or
forces of any kind, whether or not any such substance or force is defined
as hazardous or toxic under any Environmental Law, that is regulated
pursuant to or could give rise to liability under any Environmental Law.
"Merger": as defined in the Recitals to this Agreement.
"Merger Agreement: as defined in the Recitals to this Agreement.
"Merger Date": the date on which the Merger is consummated.
"Mortgage Amendment": each Mortgage Amendment, substantially in the
form of Exhibit M, to be entered into on the Closing Date to amend each
Existing Mortgage.
"Mortgages": the collective reference to the Existing Mortgages, as
amended by the Mortgage Amendments, and the Mortgages, substantially in
the form of Exhibit N, to be executed and delivered in respect of the
properties to be mortgaged pursuant to Section 9.10(d), as the same may be
amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank Line of Credit": the working capital credit facility in
an amount not exceeding $25,000,000 made available pursuant to a letter
agreement, dated March 31, 1998 between NationsBank of Texas, N.A., as
lender, and the Company,
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as borrower, as the same may be amended, modified or otherwise
supplemented from time to time.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and cash
equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document) and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result
thereof (after taking into account any available tax credits or deductions
and any tax sharing arrangements) and (b) in connection with any issuance
or sale of equity securities or debt securities or instruments or the
incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 6.12.
"Notes": the collective reference to the Revolving Credit Notes, the
U.S. Term Notes and the Canadian Term Notes.
"Participant": as defined in Section 14.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Employee Stock Issuances": the issuance by Holdings of
its common stock to employees or directors of Holdings and its
Subsidiaries for aggregate proceeds not exceeding $5,000,000 per fiscal
year during fiscal year 1997, 1998 and 1999 and $10,000,000 per fiscal
year thereafter.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prepayment Option Notice": as defined in Section 6.3(i).
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"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": the prime commercial lending rate of The
Toronto-Dominion Bank as in effect from time to time in New York City for
loans in U.S. Dollars, such rate to be adjusted on and as of the effective
date of any change in the Prime Rate. The Prime Rate is only one of the
bases for computing interest on loans made by the Lenders, and by basing
interest on the unpaid principal amount of the Loans on the Prime Rate,
the Lenders have not committed to charge, and the Company has not in any
way bargained for, interest based on a lower or the lowest rate at which
the Lenders may now or in the future make loans to other borrowers.
"Pro Forma Balance Sheet": as defined in Section 7.1(a).
"Proposed Prepayment Date": as defined in Section 6.3(i).
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Company or any of its Subsidiaries.
"Reference Discount Rate": on any date with respect to each Draft
requested to be accepted by a Canadian Lender, (a) if such Canadian Lender
is a Schedule 1 Canadian Lender, the arithmetic average of the discount
rates (expressed as a percentage calculated on the basis of a year of 365
days) quoted by the Toronto offices of each of the Schedule 1 Canadian
Reference Lenders, at 10:00 a.m. (Toronto time) on the Borrowing Date on
which such Draft is to be accepted as the discount rate at which each such
Schedule 1 Canadian Reference Lender would, in the normal course of its
business, purchase on such date Acceptances having an aggregate face
amount and term to maturity as designated by the Canadian Borrower
pursuant to Section 5.2 and (b) if such Canadian Lender is a Schedule 2
Canadian Lender, the arithmetic average of the discount rates (expressed
as a percentage calculated on the basis of a year of 365 days) quoted by
the Toronto offices of each of the Schedule 2 Canadian Reference Lenders,
at 10:00 a.m. (Toronto time) on the Borrowing Date on which such Draft is
to be accepted as the discount rate at which each such Schedule 2 Canadian
Reference Lender would, in the normal course of its business, purchase on
such date Acceptances having an aggregate face amount and term to maturity
as designated by the Canadian Borrower pursuant to Section 5.2. The
Canadian Administrative Agent shall advise the Canadian Borrower and the
Canadian Lenders, either in writing or verbally, by 11:00 a.m. (Toronto
time) on each Borrowing Date in respect of Acceptances as to the
applicable Reference Discount Rate and corresponding Acceptance Purchase
Price in respect of Acceptances having the maturities selected by the
Canadian Borrower for such Borrowing Date.
"Register": as defined in Section 14.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
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"Reimbursement Obligation": the obligation of the Company to
reimburse the Issuing Lenders pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by a Borrower or any of
its Subsidiaries in connection therewith which are not applied to
prepayments or reductions pursuant to Section 6.3(c) as a result of the
delivery of a Reinvestment Notice.
"Reinvestment Event": any Recovery Event or Asset Sale in respect of
which the relevant Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer to the General Administrative Agent within 30 days of the
Reinvestment Event to which it relates stating that no Event of Default
has occurred and is continuing and that the relevant Borrower (directly or
indirectly through a Subsidiary), in good faith, intends and expects to
use all or a specified portion of the Net Cash Proceeds of a Recovery
Event or an Asset Sale to restore or replace the assets in respect of
which such Recovery Event or Asset Sale occurred or to purchase other
assets used in the existing business of the Company and its Subsidiaries
within twelve months from the date of receipt of such Net Cash Proceeds
(provided that if the affected assets constituted Collateral, such
restored, replacement or other purchased assets shall also constitute
Collateral).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
which, prior to the relevant Reinvestment Prepayment Date, the relevant
Borrower or the relevant Subsidiary has spent or has agreed, pursuant to a
binding written contract (under which performance is in progress) to
spend, to restore or replace the assets in respect of which a Recovery
Event or an Asset Sale has occurred or to purchase other assets used in
the existing business of such Borrower or such Subsidiary.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earliest of (a) the first date occurring after such
Reinvestment Event on which an Event of Default shall have occurred, (b)
the date occurring twelve months after such Reinvestment Event and (c) the
date on which the relevant Borrower shall have determined not to, or shall
have otherwise ceased to, restore or replace the assets in respect of
which a Recovery Event or an Asset Sale has occurred or to purchase other
assets used in the existing business of such Borrower or such Subsidiary.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty-day notice period
is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. ss. 4043.
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"Request for Acceptances": as defined in Section 5.2(a).
"Required Lenders": the holders of more than 66-2/3% of (a) until
the Closing Date, the Tranche A Term Loan Commitments, the Tranche B Term
Loan Commitments, the Tranche C Term Loan Commitments, the Revolving
Credit Commitments and the U.S. Dollar Equivalent of the Canadian Term
Loan Commitments and (b) thereafter, the sum of (i) the aggregate unpaid
principal amount of the U.S. Term Loans and the aggregate undrawn amount
of the U.S. Term Loan Commitments, (ii) the U.S. Dollar Equivalent of the
Aggregate Canadian Facility Term Loan Outstandings of all Lenders and
(iii) the aggregate Revolving Credit Commitments of all Lenders or, if the
Revolving Credit Commitments have been terminated, the Total Revolving
Extensions of Credit.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer and the president
of the Company or Holdings, as the case may be, or, with respect to
financial matters, the chief financial officer of the Company or Holdings,
as the case may be.
"Xxxxxx'x Screen": the display designated at page "LIBO" on the
Xxxxxx Monitor System or such other display on the Xxxxxx Monitor System
as may replace such page displaying the London interbank bid or offered
rates.
"Revolving Credit Commitment": as to any U.S. Lender, the obligation
of such Lender, if any, to make Revolving Credit Loans and participate in
Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1.1A, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Revolving Credit Commitments is $450,000,000;
provided that at no time shall the aggregate principal amount of all
Revolving Credit Loans exceed $300,000,000.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each U.S. Lender which has a Revolving
Credit Commitment or which has made Revolving Extensions of Credit.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.7.
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27
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the aggregate Revolving Credit Commitments (or, at any
time after the Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Extensions of Credit then outstanding constitutes of
the Total Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": the earlier of (a) April 3,
2004 and (b) the date on which the Revolving Credit Commitments are
terminated pursuant to Section 11.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding
and (b) such Lender's Revolving Credit Percentage of the L/C Obligations
then outstanding.
"Xxxxxxx Acquisition": the acquisition by Holdings of the common
stock of the Company, which was financed, in part, with proceeds of loans
under the Existing Credit Agreement.
"Safety-Kleen": as defined in the Recitals to this Agreement.
"Safety-Kleen Acquisition": the acquisition by Acquisition Corp. of
the common stock of Safety-Kleen pursuant to the Exchange Offer and the
Merger, financed, in part, with proceeds of Loans made hereunder.
"Schedule 1 Canadian Lender": each Canadian Lender listed on
Schedule 1 to the Bank Act (Canada).
"Schedule 1 Canadian Reference Lenders": initially, The
Toronto-Dominion Bank; and after completion of syndication of the
Facilities, The Toronto-Dominion Bank and one other Schedule 1 Canadian
Lender selected by the Canadian Administrative Agent and the Canadian
Borrower.
"Schedule 2 Canadian Lender": each Canadian Lender which is not a
Schedule 1 Canadian Lender.
"Schedule 2 Canadian Reference Lenders": two Schedule 2 Canadian
Lenders to be selected by the Canadian Administrative Agent and the
Canadian Borrower after completion of syndication of the Facilities.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Acquisition Corp. Pledge Agreement, the
Mortgages, the Canadian Collateral Documents and all other security
documents hereafter delivered to the General Administrative Agent or the
Canadian Administrative Agent granting a
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Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
Seller Note": the 5% Convertible Subordinated Debenture due 2009 in
a principal amount of $350,000,000 issued by Holdings to Xxxxxxx
Transportation, Inc. on the Acquisition Closing Date as a portion of the
consideration for the Xxxxxxx Acquisition.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets
of such Person will, as of such date, be greater than the amount that will
be required to pay the liability of such Person on its debts as such debts
become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) "debt" means liability on a
"claim", and (ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Specified Acceptances": as defined in Section 5.1(a).
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.
"Surviving Corporation": as defined in the Recitals to this
Agreement.
"Syndication Agent": as defined in the Preamble to this Agreement.
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29
"Syndication Letter Agreement": the Letter Agreement dated as of
April 3, 1998 among Holdings, the Borrowers and the Arranger pertaining to
the completion of the syndication of the Facilities after the Closing
Date.
"Target Rights": as defined in the Recitals to this Agreement.
"Target Shares": as defined in the Recitals to this Agreement.
"Tax Act": the Income Tax Act (Canada), as amended from time to
time.
"Term Loans": the collective references to the Canadian Term Loans
and the U.S. Term Loans.
"Tooele County Debt": the Indebtedness incurred by Holdings pursuant
to a credit agreement, dated as of July 1, 1997, between Holdings and
Tooele County, Utah, in connection with the issuance by Tooele County,
Utah, of Hazardous Waste Treatment Revenue Bonds, due July 1, 2027, in the
aggregate principal amount of $45,700,000.
"Total Aggregate Canadian Term Loan Outstandings": at any time, the
aggregate amount of the Aggregate Canadian Term Loan Outstandings of the
Canadian Lenders at such time.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders at such time.
"Tranche": the collective reference to LIBOR Loans under the same
Facility the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Tranche A Term Loan": as defined in Section 2.1.
"Tranche A Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche A Term Loan to the
Company hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche A Term Loan Commitment" opposite such Lender's
name on Schedule 1.1A. The original aggregate amount of the Tranche A Term
Loan Commitments is $480,000,000.
"Tranche A Term Loan Lender": each U.S. Lender which has a Tranche A
Term Loan Commitment or which has made a Tranche A Term Loan.
"Tranche A Term Loan Maturity Date": April 3, 2004.
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30
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche A
Term Loans then outstanding).
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche B Term Loan to the
Company hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche B Term Loan Commitment" opposite such Lender's
name on Schedule 1.1A. The original aggregate amount of the Tranche B Term
Loan Commitments is $550,000,000. The Tranche B-1 Term Loan Commitments
are a subset of the Tranche B Term Loan Commitments.
"Tranche B Term Loan Lender": each U.S. Lender which has a Tranche B
Term Loan Commitment or which has made a Tranche B Term Loan.
"Tranche B Term Loan Maturity Date": April 3, 2005.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche B Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche B
Term Loans then outstanding).
"Tranche B-1 Term Loan Commitments": as defined in Section 2.1(b).
"Tranche B-1 Term Loans": as defined in Section 2.1(b).
"Tranche C Term Loan": as defined in Section 2.1.
"Tranche C Term Loan Commitment": as to any U.S. Lender, the
obligation of such Lender, if any, to make a Tranche C Term Loan to the
Company hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche C Term Loan Commitment" opposite such Lender's
name on Schedule 1.1A. The original aggregate amount of the Tranche C Term
Loan Commitments is $550,000,000. The Tranche C-1 Term Loan Commitments
are a subset of the Tranche C Term Loan Commitments.
"Tranche C Term Loan Lender": each U.S. Lender which has a Tranche C
Term Loan Commitment or which has made a Tranche C Term Loan.
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"Tranche C Term Loan Maturity Date": April 3, 2006.
"Tranche C Term Loan Percentage": as to any Tranche C Term Loan
Lender at any time, the percentage which such Lender's Tranche C Term Loan
Commitment then constitutes of the aggregate Tranche C Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche C Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche C
Term Loans then outstanding).
"Tranche C-1 Term Loan Commitments": as defined in Section 2.1(b).
"Tranche C-1 Term Loans": as defined in Section 2.1(b).
"Transferee": as defined in Section 14.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a LIBOR
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"U.S. Dollar Equivalent": with respect to an amount denominated in
Canadian Dollars, the equivalent in U.S. Dollars of such amount determined
at the Exchange Rate on the Business Day immediately preceding the date of
determination of such equivalent.
"U.S Dollars" and "$": dollars in the lawful currency of the United
States of America.
"U.S. Lenders": the collective reference to the U.S. Term Loan
Lenders and the Revolving Credit Lenders.
"U.S. Loans": the collective reference to the U.S. Term Loans and
the Revolving Credit Loans.
"U.S. Term Loan Commitments": the collective reference to the
Tranche A Term Loan Commitments, the Tranche B Term Loan Commitments and
the Tranche C Term Loans Commitments.
"U.S. Term Loan Commitment Period": the period from the Closing Date
to the Merger Date.
"U.S. Term Loan Lenders": the collective reference to the Tranche A
Term Loan Lenders, the Tranche B Term Loan Lenders and the Tranche C Term
Loan Lenders.
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"U.S. Term Loans": the collective reference to the Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans.
"U.S. Term Notes": as defined in Section 2.7.
"Westinghouse Debt": unsecured subordinated indebtedness of Holdings
in the initial principal amount of $60,000,000 evidenced by a promissory
note of Holdings, dated May 15, 1997, initially payable to Westinghouse
Electric Corporation and its assignees, and guaranteed by Xxxxxxx.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP; provided that, if the Company
notifies the General Administrative Agent that the Company requests 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 General Administrative Agent notifies the Company 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, pending execution and delivery of such
an amendment, 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 herewith.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. COMMITMENTS
2.1 U.S. Term Loan Commitments. (a) Subject to the terms and
conditions hereof, (i) each Tranche A Term Loan Lender severally agrees to make
term loans (each, a "Tranche A Term Loan") denominated in U.S. Dollars to the
Company during the U.S. Term Loan Commitment Period in an aggregate principal
amount not to exceed the amount of the Tranche A Term Loan Commitment of such
Lender, (ii) each Tranche B Term Loan Lender severally agrees to make term loans
(each, a "Tranche B Term Loan") denominated
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in U.S. Dollars to the Company during the U.S. Term Loan Commitment Period in an
aggregate principal amount not to exceed the amount of the Tranche B Term Loan
Commitment of such Lender and (iii) each Tranche C Term Loan Lender severally
agrees to make term loans (each, a "Tranche C Term Loan") denominated in U.S.
Dollars to the Company during the U.S. Term Loan Commitment Period in an
aggregate principal amount not to exceed the amount of the Tranche C Term Loan
Commitment of such Lender. The U.S. Term Loans may from time to time be LIBOR
Loans or Base Rate Loans, as determined by the Company and notified to the
General Administrative Agent in accordance with Sections 2.2 and 6.4; provided
that the U.S. Term Loans made on the Closing Date shall initially be made as
Base Rate Loans.
(b) $150,000,000 of the Tranche B Term Loan Commitments shall be
designated as the "Tranche B-1 Term Loan Commitments", and $150,000,000 of the
Tranche C Term Loan Commitments shall be designated as the "Tranche C-1 Term
Loan Commitments". Schedule 1.1A sets forth the amount of the Tranche B-1 Term
Loan Commitments and the Tranche C-1 Term Loan Commitments held by each of the
U.S. Term Loan Lenders. Each borrowing of Tranche B Term Loans and Tranche C
Term Loans shall be deemed to utilize first the portions of the U.S. Term Loan
Commitments other than the Tranche B-1 Term Loan Commitments or the Tranche C-1
Term Loan Commitments, as the case may be, before utilizing the Tranche B-1 Term
Loan Commitment and the Tranche C-1 Term Loan Commitments. The portions of the
U.S. Term Loans attributable to the Tranche B-1 Term Loan Commitments and the
Tranche C-1 Term Loan Commitments shall be designated as the "Tranche B-1 Term
Loans" and the "Tranche C-1 Term Loans", respectively.
2.2 Procedure for U.S. Term Loan Borrowing. The Company may borrow
under the U.S. Term Loan Commitments during the U.S. Term Loan Commitment Period
on any Business Day in accordance with this Section 2.2, provided that the
Company shall give the General Administrative Agent irrevocable written notice
(which notice must be received by the General Administrative Agent prior to
12:00 Noon, New York City time, (a) three Business Days prior to the requested
Borrowing Date, in the case of LIBOR Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans), specifying (i) the
amount and Type of U.S. Term Loans to be borrowed, (ii) the requested Borrowing
Date and (iii) in the case of LIBOR Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Periods
therefor. The U.S. Term Loans made on the Closing Date shall be in an aggregate
principal amount not exceeding the sum of (i) the cash amount payable in
connection with the Exchange Offer on the Closing Date, (ii) the aggregate
principal amount of the U.S. Term Loans and Revolving Credit Loans outstanding
under (and as defined in) the Existing Credit Agreement and (iii) costs and
expenses relating to the Exchange Offer and the financing thereof. After the
Closing Date and prior to the Merger Date, the Company
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may make one additional borrowing of U.S. Term Loans in an aggregate principal
amount not exceeding the cash portion of the consideration payable in connection
with delayed delivery of Target Shares pursuant to the Exchange Offer or in
connection with Target Shares for which payment cannot be made on the Closing
Date because of inability of the Exchange Agent to complete the verification
process in respect of such Target Shares. On the Merger Date, the Company may
make an additional borrowing of U.S. Term Loans in an aggregate principal amount
not exceeding the cash portion of the consideration payable in connection with
the Merger, and costs and expenses related thereto, less the amount, if any, of
Net Cash Proceeds received by the Company from the High Yield Offering, if it
has been consummated, to the extent such Net Cash Proceeds have not been applied
to prepay the Term Loans or reduce the Term Loan Commitments pursuant to Section
6.3(b) and (e). In addition, on the Merger Date the Company may borrow U.S. Term
Loans in an amount sufficient to repay existing indebtedness of Safety-Kleen
required to be repaid in connection with the Merger. Each borrowing under the
U.S. Term Loan Commitments shall be in an amount equal to (x) in the case of
Base Rate Loans, $1,000,000 or a multiple of $500,000 in excess thereof and (y)
in the case of LIBOR Loans, $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Upon receipt of any such notice from the Company, the General
Administrative Agent shall promptly notify each U.S. Term Loan Lender thereof.
Each U.S. Term Loan Lender will make the amount of its pro rata share of each
borrowing available to the General Administrative Agent for the account of the
Company at the office of the General Administrative Agent specified in Section
14.2 prior to 12:00 Noon, New York City time, on the Borrowing Date requested by
the Company in funds immediately available to the General Administrative Agent.
Such borrowing will then be made available to the Company by the General
Administrative Agent crediting the account of the Company at the office of The
Toronto-Dominion Bank at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 with
the aggregate of the amounts made available to the General Administrative Agent
by the U.S. Term Loan Lenders and in like funds as received by the General
Administrative Agent.
2.3 Repayment of U.S. Term Loans. (a) The Tranche A Term Loan of
each Tranche A Lender shall mature, and the Company unconditionally promises to
pay such Tranche A Term Loan to the General Administrative Agent for the account
of such Tranche A Lender, in 24 consecutive quarterly installments, commencing
on August 31, 1998, each of which shall be in an amount equal to such Lender's
Tranche A Term Loan Percentage multiplied by the amount set forth below opposite
such installment:
Installment Principal Amount
----------- ----------------
August 31, 1998 US$16,000,000
November 30, 1998 16,000,000
February 28, 1999 16,000,000
May 31, 1999 16,000,000
August 31, 1999 16,000,000
November 30, 1999 16,000,000
February 28, 2000 16,000,000
May 31, 2000 16,000,000
August 31, 2000 22,000,000
November 30, 2000 22,000,000
February 28, 2001 22,000,000
May 31, 2001 22,000,000
August 31, 2001 22,000,000
November 30, 2001 22,000,000
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Installment Principal Amount
----------- ----------------
February 28, 2002 22,000,000
May 31, 2002 22,000,000
August 31, 2002 22,000,000
November 30, 2002 22,000,000
February 28, 2003 22,000,000
May 31, 2003 22,000,000
August 31, 2003 22,000,000
November 30, 2003 22,000,000
February 28, 2004 22,000,000
Tranche A Term
Loan Maturity Date 22,000,000
(b) The Tranche B Term Loan of each Tranche B Lender shall mature,
and the Company unconditionally promises to pay such Tranche B Term Loan to the
General Administrative Agent for the account of such Tranche B Lender, in 28
consecutive quarterly installments, commencing on August 31, 1998, each of which
shall be in an amount equal to such Lender's Tranche B Term Loan Percentage
multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
August 31, 1998 US$1,375,000
November 30, 1998 1,375,000
February 28, 1999 1,375,000
May 31, 1999 1,375,000
August 31, 1999 1,375,000
November 30, 1999 1,375,000
February 28, 2000 1,375,000
May 31, 2000 1,375,000
August 31, 2000 1,375,000
November 30, 2000 1,375,000
February 28, 2001 1,375,000
May 31, 2001 1,375,000
August 31, 2001 1,375,000
November 30, 2001 1,375,000
February 28, 2002 1,375,000
May 31, 2002 1,375,000
August 31, 2002 1,375,000
November 30, 2002 1,375,000
February 28, 2003 1,375,000
May 31, 2003 1,375,000
August 31, 2003 1,375,000
November 30, 2003 1,375,000
February 28, 2004 1,375,000
May 31, 2004 1,375,000
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August 31, 2004 129,250,000
November 30, 2004 129,250,000
February 28, 2005 129,250,000
Tranche B Term Loan Maturity Date 129,250,000
(c) The Tranche C Term Loan of each Tranche C Lender shall mature,
and the Company unconditionally promises to pay such Tranche C Term Loan to the
General Administrative Agent for the account of such Tranche C Lender, in 32
consecutive quarterly installments, commencing on August 31, 1998, each of which
shall be in an amount equal to such Lender's Tranche C Term Loan Percentage
multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
August 31, 1998 US$1,375,000
November 30, 1998 1,375,000
February 28, 1999 1,375,000
May 31, 1999 1,375,000
August 31, 1999 1,375,000
November 30, 1999 1,375,000
February 28, 2000 1,375,000
May 31, 2000 1,375,000
August 31, 2000 1,375,000
November 30, 2000 1,375,000
February 28, 2001 1,375,000
May 31, 2001 1,375,000
August 31, 2001 1,375,000
November 30, 2001 1,375,000
February 28, 2002 1,375,000
May 31, 2002 1,375,000
August 31, 2002 1,375,000
November 30, 2002 1,375,000
February 28, 2003 1,375,000
May 31, 2003 1,375,000
August 31, 2003 1,375,000
November 30, 2003 1,375,000
February 28, 2004 1,375,000
May 31, 2004 1,375,000
August 31, 2004 1,375,000
November 30, 2004 1,375,000
February 28, 2005 1,375,000
May 31, 2005 1,375,000
August 31, 2005 127,875,000
November 30, 2005 127,875,000
February 28, 2006 127,875,000
Tranche C Term
Loan Maturity Date 127,875,000
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2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Company from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount such that, after giving effect thereto, the aggregate outstanding
principal amount of such Lender's Revolving Credit Loans will not exceed the
lesser of (i) such Lender's Revolving Credit Commitment less such Lender's
Revolving Credit Percentage of the L/C Obligations then outstanding, and (ii)
such Lender's Revolving Credit Percentage of $300,000,000. During the Revolving
Credit Commitment Period the Company may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be LIBOR Loans or Base Rate Loans,
as determined by the Company and notified to the General Administrative Agent in
accordance with Sections 2.5 and 6.4, provided that no Revolving Credit Loan
shall be made as a LIBOR Loan after the day that is one month prior to the
Revolving Credit Termination Date.
(b) The Company unconditionally promises to pay to the General
Administrative Agent for the account of the Revolving Credit Lenders all
outstanding Revolving Credit Loans on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Company may borrow
under the Revolving Credit Commitments during the Revolving Credit Commitment
Period on any Business Day, provided that the Company shall give the General
Administrative Agent irrevocable written notice (which notice must be received
by the General Administrative Agent prior to 12:00 Noon, New York City time, (a)
three Business Days prior to the requested Borrowing Date, in the case of LIBOR
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of Base Rate Loans), specifying (i) the amount and Type of Revolving Credit
Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
LIBOR Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Periods therefor. Each borrowing under the
Revolving Credit Commitments shall be in an amount equal to (x) in the case of
Base Rate Loans, $1,000,000 or a multiple of $500,000 in excess thereof (or, if
the then aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of LIBOR Loans, $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such
notice from the Company, the General Administrative Agent shall promptly notify
each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the
amount of its pro rata share of each borrowing available to the General
Administrative Agent for the account of the Company at the office of the General
Administrative Agent specified in Section 14.2 prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Company in funds immediately
available to the General Administrative Agent. Such borrowing will then be made
available to the Company by the General Administrative Agent crediting the
account of the Company at the office of The Toronto-Dominion Bank at 000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 with the aggregate of the amounts made
available to the General Administrative Agent by the Revolving Credit Lenders
and in like funds as received by the General Administrative Agent.
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2.6 Termination or Reduction of Revolving Credit Commitments. The
Company shall have the right, upon not less than three Business Days'
irrevocable written notice to the General Administrative Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments without premium or penalty; provided that no such
termination or reduction of Revolving Credit Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Credit Loans
made on the effective date thereof, the Total Revolving Extensions of Credit
would exceed the Revolving Credit Commitments then in effect. Any such reduction
shall be in an amount equal to $5,000,000, or a whole multiple of $1,000,000 in
excess thereof, and shall reduce permanently the Revolving Credit Commitments
then in effect.
2.7 Evidence of Debt. (a) Each U.S. Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Company to such Lender resulting from each U.S. Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The General Administrative Agent shall maintain the Register
pursuant to Section 14.6(d), and a subaccount therein for each U.S. Lender, in
which shall be recorded (i) the amount of each Revolving Credit Loan and U.S.
Term Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Company to each U.S. Lender hereunder and (iii)
both the amount of any sum received by the General Administrative Agent
hereunder from the Company and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each U.S.
Lender maintained pursuant to Section 2.7(a) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Company therein recorded; provided, however, that the failure
of any Lender or the General Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Company to repay (with applicable interest) the U.S. Loans
made to the Company by such U.S. Lender in accordance with the terms of this
Agreement.
(d) The Company agrees that, upon the request to the General
Administrative Agent by any U.S. Lender, the Company will execute and deliver to
such Lender (i) a promissory note of the Company evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit C with appropriate
insertions as to date and principal amount (a "Revolving Credit Note"), and/or
(ii) a promissory note of the Company evidencing the Tranche A Term Loans,
Tranche B Term Loan or Tranche C Term Loan, as the case may be, of such Lender,
substantially in the form of Exhibit D with appropriate insertions as to date
and principal amount (a "U.S. Term Note").
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SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Pursuant to the Existing Credit Agreement,
the Issuing Lenders specified on Schedule 1.1C have issued the letters of credit
described on Schedule 1.1C (the "Existing Letters of Credit"), which from and
after the Closing Date shall continue to be "Letters of Credit" hereunder.
Subject to the terms and conditions hereof, each Issuing Lender, in reliance on
the agreements of the other Revolving Credit Lenders set forth in Section
3.4(a), agrees to issue letters of credit (together with the Existing Letters of
Credit, the "Letters of Credit") for the account of the Company on any Business
Day during the Revolving Credit Commitment Period in such form as may be
approved from time to time by such Issuing Lender; provided that (i) no Issuing
Lender shall issue any Letter of Credit if, after giving effect to such
issuance, the L/C Obligations would exceed the L/C Commitment or the Total
Revolving Extensions of Credit would exceed the Revolving Credit Commitments
of all Lenders and (ii) no Issuing Lender shall issue any Letter of Credit
unless it shall have received notice from the General Administrative Agent that
the issuance of such Letter of Credit will not violate the foregoing clause (i)
of this proviso. Each Letter of Credit shall (i) be denominated in U.S. Dollars
and (ii) expire no later than the earlier of (x) the first anniversary of its
date of issuance and (y) the date which is five Business Days prior to the
Revolving Credit Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in the
foregoing clause (y) of this proviso).
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
3.2 Procedure for Issuance of Letter of Credit. The Company may from
time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, each Issuing Lender
agrees to process such Application and the certificates, documents and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and shall promptly issue the Letter of Credit
requested thereby (but in no event shall such Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the Company. Each Issuing Lender shall furnish a copy of each
Letter of Credit by it hereunder to the Company promptly following the issuance
thereof. Each Issuing Lender shall promptly furnish to the General
Administrative Agent, which shall in turn promptly furnish to the Revolving
Credit Lenders, notice of the issuance of each Letter of Credit (including the
amount thereof).
3.3 Commissions, Fees and Other Charges. (a) The Company shall pay
to the General Administrative Agent, for the account of the Revolving Credit
Lenders, a letter
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of credit commission with respect to each Letter of Credit outstanding under
this Agreement for the period from the Issuance Date of such Letter of Credit
(or, in the case of the Existing Letters of Credit, from the Closing Date) to
the expiration or termination of such Letter of Credit, computed at a per annum
rate equal to (i) the Applicable Margin then in effect with respect to LIBOR
Loans under the Revolving Credit Facility less (ii) 1/4 of 1% (the fronting fee
referred to in paragraph (b) below) on the average aggregate amount available to
be drawn under such Letter of Credit during the period for which such fee is
calculated. Such commission shall be shared ratably among the Revolving Credit
Lenders and payable quarterly in arrears on each L/C Fee Payment Date to occur
after the respective Issuance Date (or the Closing Date, as the case may be) and
on the Revolving Credit Termination Date and shall be nonrefundable.
(b) The Company shall pay to the relevant Issuing Lender with
respect to each Letter of Credit issued by such Issuing Lender under this
Agreement, for its own account, a fronting fee with respect to the period from
the Issuance Date of such Letter of Credit to the expiration or termination date
of such Letter of Credit, computed at a rate of 1/4 of 1% per annum on the
average aggregate amount available to be drawn under such Letter of Credit
during the period for which such fee is calculated. Such fronting fee shall be
payable in arrears on each L/C Fee Payment Date to occur after the Issuance Date
(or the Closing Date, as the case may be) and on the Revolving Credit
Termination Date and shall be nonrefundable.
(c) In addition to the foregoing fees and commissions, the Company
shall pay or reimburse each Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Effective on the Closing Date, in
respect of each Existing Letter of Credit, and effective on the Issuance Date,
in respect of each Letter of Credit issued after the Closing Date, each Issuing
Lender irrevocably agrees to grant and hereby grants to each L/C Participant
(other than such Issuing Lender), and, to induce such Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in such Issuing Lender's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
each Issuing Lender that, if a draft is paid under any Letter of Credit for
which such Issuing Lender is not reimbursed in full by the Company in accordance
with the terms of this Agreement, such L/C Participant shall pay to such Issuing
Lender upon demand at such Issuing Lender's address for notices specified herein
an amount equal to such L/C Participant's Revolving Credit Percentage of the
amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to any
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment
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made by such Issuing Lender under any Letter of Credit issued by such Issuing
Lender is not paid when due but is paid within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) is not made available to any Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to Base Rate Loans under the Revolving
Credit Facility. A certificate of any Issuing Lender submitted to any L/C
Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after any Issuing Lender has made payment
under any Letter of Credit issued by such Issuing Lender and has received from
any L/C Participant its pro rata share of such payment in accordance with
Section 3.4(a), such Issuing Lender receives any payment related to such Letter
of Credit (whether directly from the Company or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender, but excluding payments from
L/C Participants), or any payment of interest on account thereof, such Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by such
Issuing Lender shall be required to be returned by such Issuing Lender, such L/C
Participant shall return to such Issuing Lender the portion thereof previously
distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Company. If any draft shall be
presented for payment under any Letter of Credit issued by any Issuing Lender,
such Issuing Lender shall promptly notify the Company of the date and amount
thereof. If any Issuing Lender notifies the Company prior to 10:00 a.m., New
York City time, on any Business Day, of any drawing under any Letter of Credit
issued by it, the Company shall reimburse such Issuing Lender with respect to
such drawing on the next succeeding Business Day. If any Issuing Lender notifies
the Company after 10:00 a.m., New York City time, on any Business Day of any
drawing under any Letter of Credit issued by it, the Company shall reimburse
such Issuing Lender with respect to such drawing on the second succeeding
Business Day. Interest shall be payable on any and all amounts drawn under
Letters of Credit from the date of such drawing until the date on which
reimbursement of such amount is due pursuant to the two immediately preceding
sentences at the interest rate then applicable to Base Rate Loans made under the
Revolving Credit Facility. In addition, the Company agrees to reimburse each
Issuing Lender for any taxes, fees, charges or other costs or expenses incurred
by such Issuing Lender in connection with any payment under any Letter of Credit
issued by such Issuing Lender. Each payment by the Company pursuant to this
Section 3.5 shall be made to the relevant Issuing Lender at its address for
notices specified herein in U.S. Dollars and in immediately available funds.
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3.6 Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Company may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Company also agrees with each Issuing
Lender that such Issuing Lender shall not be responsible for, and the Company's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Company agrees that any action taken or omitted by any Issuing Lender under
or in connection with any Letter of Credit or the related drafts or documents,
if done in the absence of gross negligence or willful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, shall be binding on the Company and shall not result
in any liability of such Issuing Lender to the Company.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit issued by any Issuing Lender, such Issuing
Lender shall promptly notify the Company of the date and amount thereof. The
responsibility of each Issuing Lender to the Company in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3 or any other provision of this Agreement, the provisions of
this Section 3 or such other provisions of this Agreement shall apply.
SECTION 4. AMOUNT AND TERMS OF THE CANADIAN TERM LOAN COMMITMENTS
4.1 Canadian Term Loan Commitments. (a) Subject to the terms and
conditions hereof, each Canadian Lender severally agrees to make term loans
(each, a "Canadian Term Loan") in Canadian Dollars to the Canadian Borrower on
the Closing Date in an aggregate principal amount not exceeding the Canadian
Term Loan Commitment of such Canadian Lender; provided, that after giving effect
to such Canadian Term Loans, the
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Total Aggregate Canadian Term Loan Outstandings shall not exceed the Canadian
Facility Maximum Amount.
(b) Subject to the terms and conditions hereof, each Canadian Lender
severally agrees from time to time during the Canadian Facility Commitment
Period to convert maturing Acceptances created by it into Canadian Term Loans in
a principal amount not to exceed the face amount of such maturing Acceptances;
provided, that no such conversion shall occur if, after giving effect thereto,
the Total Aggregate Canadian Term Loan Outstandings would exceed the Canadian
Facility Maximum Amount at such time.
4.2 Procedure for Canadian Term Loan Borrowing. The Canadian
Borrower shall give the Canadian Administrative Agent irrevocable written notice
(which notice must be received by the Canadian Administrative Agent prior to
10:00 a.m., Toronto time, at least two Business Days prior to the requested
Borrowing Date) requesting that the Canadian Term Loan Lenders make Canadian
Term Loans (or convert Acceptances into Canadian Term Loans) on a specified
Borrowing Date and specifying the amount to be borrowed or converted. Upon
receipt of such notice, the Canadian Administrative Agent shall promptly notify
each Canadian Lender thereof. In the case of any Canadian Term Loans other than
Canadian Term Loans resulting from the conversion of Acceptances pursuant to
Section 4.1(b), not later than 11:00 a.m., Toronto time, on the Borrowing Date
therefor, each Canadian Term Loan Lender shall make available to the Canadian
Administrative Agent at its office specified in Section 14.2 an amount in
Canadian Dollars in immediately available funds equal to the Canadian Term Loan
to be made by such Canadian Lender on such Borrowing Date. The Canadian
Administrative Agent shall on such date credit the account of the Canadian
Borrower at the office of The Toronto-Dominion Bank at Toronto Dominion Centre
Branch, 00 Xxxx Xxxxxx Xxxx xxx Xxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0 with the
aggregate of the amounts made available to the Canadian Administrative Agent by
the Canadian Lenders in like funds as received by the Canadian Administrative
Agent. In the case of any Canadian Term Loans resulting from the conversion of
Acceptances pursuant to Section 4.1(b), the proceeds of such Canadian Term Loans
made by each Canadian Lender, together with such additional funds of the
Canadian Borrower as may be necessary, shall be applied by it to repay the
maturing Acceptance being converted into such Canadian Term Loans.
4.3 Reduction of Canadian Facility; Repayment of Canadian Term
Loans. (a) The amount available under the Canadian Term Loans and the
Acceptances and Acceptance Notes shall be permanently reduced in 24 consecutive
quarterly installments, commencing on August 31, 1998, each of which shall be in
an amount equal to the equivalent in Canadian Dollars (determined in accordance
with Section 4.3(b)) of the amount set forth below opposite such installment
date (each, a "Canadian Facility Amortization Date"):
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Installment Principal Amount
----------- ----------------
August 31, 1998 US$2,750,000
November 30, 1998 2,750,000
February 28, 1999 2,750,000
May 31, 1999 2,750,000
August 31, 1999 2,750,000
November 30, 1999 2,750,000
February 28, 2000 2,750,000
May 31, 2000 2,750,000
August 31, 2000 3,000,000
November 30, 2000 3,000,000
February 28, 2001 3,000,000
May 31, 2001 3,000,000
August 31, 2001 3,000,000
November 30, 2001 3,000,000
February 28, 2002 3,000,000
May 31, 2002 3,000,000
August 31, 2002 3,000,000
November 30, 2002 3,000,000
February 28, 2003 3,000,000
May 31, 2003 3,000,000
August 31, 2003 3,000,000
November 30, 2003 3,000,000
February 28, 2004 3,000,000
Canadian Facility
Termination Date 3,000,000
Accordingly, on each Canadian Facility Amortization Date, the
Canadian Borrower unconditionally agrees to pay to the Canadian Administrative
Agent, for the account of each Canadian Lender, a principal amount of the
Canadian Term Loans of such Canadian Lender, which, together with the face
amount of Acceptances created by such Canadian Lender that mature and are being
repaid on such date (and not replaced with other Acceptances or converted into
Canadian Term Loans), is equal to such Canadian Lender's Canadian Term Loan
Commitment Percentage of the amount set forth opposite such Canadian Facility
Amortization Date above.
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(b) Not later than three Business Days prior to the Closing Date,
the Canadian Administrative Agent and the Canadian Borrower will determine,
based on then-prevailing market conditions, the exchange rate for conversion
into Canadian Dollars of the U.S. Dollar amount of the Canadian Term Loan
Commitments and the U.S. Dollar amount of each installment set forth in Section
4.3(a), which determination shall be conclusive and binding on all parties
hereto. The Canadian Administrative Agent will advise the Canadian Lenders of
the results of such determination, and specify the amount in Canadian Dollars of
each Canadian Lender's Canadian Term Loan Commitment, prior to or concurrently
with the notice of borrowing given to the Canadian Lenders pursuant to Section
4.2.
4.4 Evidence of Debt. (a) Each Canadian Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Canadian Borrower to such Canadian Lender resulting from the
Canadian Term Loans of such Canadian Lender, including the amounts of principal
and interest payable thereon and paid to such Canadian Lender from time to time
under this Agreement.
(b) The Canadian Administrative Agent (and the General
Administrative Agent) shall maintain the Register pursuant to Section 14.6(d),
and a subaccount therein for each Canadian Lender, in which shall be recorded
(i) the amount of each Canadian Term Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Canadian Borrower to each Canadian Lender hereunder in respect of the Canadian
Term Loans and (iii) both the amount of any sum received by the Canadian
Administrative Agent hereunder from the Canadian Borrower in respect of the
Canadian Term Loans and each Canadian Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Canadian Lender maintained pursuant to Section 4.4(a) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Canadian Borrower therein recorded; provided,
however, that the failure of any Canadian Lender or the Canadian Administrative
Agent to maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of the Canadian Borrower to repay (with
applicable interest) the Canadian Term Loans made to the Canadian Borrower by
such Canadian Lender in accordance with the terms of this Agreement.
(d) The Canadian Borrower agrees that, upon request to the Canadian
Administrative Agent by any Canadian Lender, it will execute and deliver to such
Canadian Lender a promissory note of the Canadian Borrower evidencing the
Canadian Term Loans of such Canadian Lender, substantially in the form of
Exhibit E with appropriate insertions as to date and principal amount (each, a
"Canadian Term Loan Note").
SECTION 5. AMOUNT AND TERMS OF THE ACCEPTANCES
5.1 Acceptance Commitments. (a) Pursuant to the Existing Credit
Agreement, the Canadian Lenders (as defined under the Existing Credit Agreement,
the "Existing Acceptance Lenders") have created (i) the Acceptances described on
Schedule 1.1D
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(the "Existing Acceptances"), which from and after the Closing Date shall
continue to be "Acceptances" hereunder and (ii) the Acceptances described on
Schedule 1.1E (the "Specified Acceptances"), which will be repaid in full on the
Closing Date . As of the Closing Date, The Toronto-Dominion Bank, as a Canadian
Lender, shall have entered into an indemnity agreement with the Existing
Acceptance Lenders with respect to amounts to be paid to the Existing Acceptance
Lenders in respect of the Existing Acceptances and, as of the Closing Date, The
Toronto-Dominion Bank shall be deemed to have created all of the Existing
Acceptances. In the event that any Acceptances are outstanding on the date on
which any Canadian Lender other than The Toronto-Dominion Bank becomes a party
to this Agreement, such Canadian Lender shall enter into an indemnity agreement
with The Toronto-Dominion Bank with respect to such Existing Acceptances, in
form and substance satisfactory to such Canadian Lender and The Toronto-Dominion
Bank.
(b) Subject to the terms and conditions hereof, each Canadian Lender
severally agrees during the Canadian Facility Commitment Period to convert
Canadian Term Loans made by such Canadian Lender to Acceptances in an aggregate
face amount not to exceed the aggregate principal amount of such Canadian Term
Loans; provided, that no such conversion shall occur if, (i) after giving effect
to such conversion and to the repayment of any portion of maturing Acceptances
not being so converted, the Total Aggregate Canadian Term Loan Outstandings
would exceed the Canadian Facility Maximum Amount at such time or (ii) prior to
the maturity of such Acceptances a Canadian Facility Amortization Date will
occur and, after giving effect to the reduction in the Canadian Facility Maximum
Amount on such date, the Total Aggregate Canadian Term Loan Outstandings will
exceed the Canadian Facility Maximum Amount. Notwithstanding the foregoing,
during the period prior to completion of the Syndication of the Facilities, the
Canadian Borrower will consult with the Canadian Administrative Agent with
respect to any request for Acceptances, and during such period no Acceptance
will be created having a maturity later than the date on which the syndication
of the Facilities is expected to be completed.
5.2 Creation of Acceptances. (a) The Canadian Borrower may request
the creation of Acceptances hereunder by submitting to the Canadian
Administrative Agent at its office in Canada specified in Section 14.2 prior to
11:00 a.m., Toronto time, two Business Days prior to the requested Borrowing
Date, (i) a request for acceptances, substantially in the form of Exhibit A-2
(each, a "Request for Acceptances") completed in a manner and in form and
substance reasonably satisfactory to the Canadian Administrative Agent and
specifying, among other things, the Borrowing Date, term in months and amount of
the Drafts to be accepted and discounted, and (ii) such other certificates,
documents and other papers and information as the Canadian Administrative Agent
may reasonably request. Upon receipt of any such Request for Acceptances, the
Canadian Administrative Agent shall promptly notify each Canadian Lender of
details thereof, including each Canadian Lender's share of the amount of Drafts
to be accepted and discounted.
(b) The Canadian Borrower hereby irrevocably authorizes each
Canadian Lender to draw Drafts on such Canadian Lender, in the name of and on
behalf of the Canadian Borrower, and to complete such Drafts in accordance with
the Requests for Acceptances submitted from time to time pursuant to Section
5.2(a). Drafts so completed
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and signed on behalf of the Canadian Borrower by any Canadian Lender shall bind
the Canadian Borrower as fully and effectively as if so performed by an
authorized officer of the Canadian Borrower. Any executed Drafts which are held
by any Canadian Lender need only be held in safekeeping with the same degree of
care as if they were such Canadian Lender's own property and such Canadian
Lender was keeping them at the place at which they are to be held. The Canadian
Borrower shall, by written notice to the Canadian Administrative Agent,
designate the persons authorized to sign Requests for Acceptance. Neither the
Canadian Administrative Agent nor any Canadian Lender nor any of their
respective directors, officers, employees or representatives shall be liable for
any action taken or omitted to be taken by any of them under this Section 5
except for its own gross negligence or willful misconduct.
(c) Each Request for Acceptances made by or on behalf of the
Canadian Borrower hereunder shall contain a request for Acceptances denominated
in Canadian Dollars and having an aggregate undiscounted face amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business Day
which is not less than one month and not more than six months after the date
thereof; provided, that no Acceptance shall mature after the Canadian Facility
Termination Date.
(d) Not later than 12:00 noon, Toronto time, on the Borrowing Date
specified in the relevant Request for Acceptances, each Canadian Lender will, in
accordance with such Request for Acceptances, (i) sign each Draft on behalf of
the Canadian Borrower pursuant to Section 5.3(b), (ii) complete the date, amount
and maturity of each Draft to be accepted, (iii) accept such Drafts and give
notice to the Canadian Administrative Agent of such acceptance and (iv) upon
such acceptance, purchase such Acceptances to the extent contemplated by Section
5.3.
5.3 Purchase of Acceptances. (a) Each Canadian Lender hereby agrees,
on the terms and subject to the conditions set forth in this Agreement, to
purchase Acceptances created by it on the Borrowing Date with respect thereto
for the applicable Acceptance Purchase Price and to notify the Canadian
Administrative Agent that such Draft has been accepted and purchased by such
accepting Canadian Lender.
(b) In the event that the Canadian Administrative Agent receives a
Request for Acceptances to be created upon conversion of Canadian Term Loans
pursuant to Section 5.1, then the Canadian Borrower shall pay on the requested
Borrowing Date to the Canadian Administrative Agent, for the account of the
Canadian Lenders, the principal amount of the then outstanding Canadian Term
Loans being so converted, and each Canadian Lender shall accept and purchase the
Canadian Borrower's Drafts having an aggregate face amount not greater than the
principal amount of the Canadian Term Loans of such Canadian Lender which are
then being converted (it being understood and agreed that for the purposes of
this Section 5.3(b), such payment by the Canadian Borrower of such outstanding
Canadian Term Loans may be in part from the Acceptance Purchase Price of such
Drafts); provided that,
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following the occurrence and during the continuance of a Default or an Event of
Default, no Acceptances may be created.
(c) Acceptances purchased by any Canadian Lender may be held by it
for its own account until maturity or sold by it at any time prior thereto in
the relevant market therefor in Canada in such Canadian Lender's sole
discretion.
5.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee on the
undiscounted face amount of such Acceptance, computed at the rate per annum in
effect on such Borrowing Date (determined in accordance with the Pricing Grid)
for the period from and including the Borrowing Date with respect to such
Acceptance to but not including the maturity of such Acceptance. On the Closing
Date, in consideration of the obligations undertaken by The Toronto-Dominion
Bank pursuant to the indemnity agreement entered into pursuant to the second
sentence of Section 5.1(a), the Canadian Borrower agrees to pay to The
Toronto-Dominion Bank an amount in respect of each Existing Acceptance equal to
(i) the amount of stamping fee that would have been payable under this Section
in respect of such Existing Acceptance if such Existing Acceptance had been
created on the Closing Date with the maturity date set forth in such Existing
Acceptance less (ii) the amount received or to be received by The
Toronto-Dominion Bank from the relevant Existing Acceptance Lender in respect of
such Existing Acceptance pursuant to the provisions of such indemnity agreement.
5.5 Acceptance Reimbursement Obligations. (a) The Canadian Borrower
hereby unconditionally agrees to pay to the Canadian Administrative Agent for
the account of each Canadian Lender, on the maturity date (whether at stated
maturity, by acceleration or otherwise) for each Acceptance created by such
Canadian Lender, the aggregate undiscounted face amount of each such
then-maturing Acceptance. Without limiting the generality of the foregoing, the
Canadian Borrower hereby unconditionally agrees to pay to the Canadian
Administrative Agent for the account of The Toronto-Dominion Bank (and each
other Canadian Lender which has an interest therein pursuant to an indemnity
agreement entered into pursuant to the last sentence of Section 5.1(a)) on the
maturity date (whether at stated maturity, by acceleration or otherwise) for
each Existing Acceptance, the aggregate undiscounted face amount of each such
then-maturing Existing Acceptance.
(b) The obligation of the Canadian Borrower to reimburse the
Canadian Lenders for then-maturing Acceptances may be satisfied by the Canadian
Borrower by:
(i) paying to the Canadian Administrative Agent, for the account of
the Canadian Lenders, an amount in Canadian Dollars and in immediately
available funds equal to the aggregate undiscounted face amount of all
Acceptances which are then maturing by 12:00 noon, Toronto time, on such
maturity date; provided that the Canadian Borrower shall have given not
less than two Business Days' prior notice to the Canadian Administrative
Agent (which shall promptly notify each Canadian Lender thereof) of its
intent to reimburse the Canadian Lenders in the manner contemplated by
this clause (i); or
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(ii) having new Drafts accepted and purchased by the Canadian
Lenders in the manner contemplated by Sections 5.2 and 5.3 in substitution
for the then-maturing Acceptances; provided that (A) the Canadian Borrower
shall have delivered to the Canadian Administrative Agent (which shall
promptly provide a copy thereof to each Canadian Lender) a duly completed
Request for Acceptances not later than 11:00 a.m., Toronto time, two
Business Days prior to such maturity date, together with the documents,
instruments, certificates and other papers and information contemplated by
Sections 5.2(a)(ii) and 5.2(a)(iii), (B) each Canadian Lender shall retain
the Acceptance Purchase Price for the Acceptance created by it and apply
such Acceptance Purchase Price to the Acceptance Reimbursement Obligations
of the Canadian Borrower in respect of the maturing Acceptance created by
such Canadian Lender, (C) when the Acceptance Purchase Price so retained
by such Canadian Lender is less than the undiscounted face amount of the
then-maturing Acceptance, the Canadian Borrower shall have made
arrangements reasonably satisfactory to such Canadian Lender for payment
of such deficiency, (D) if any Default or Event of Default has occurred
and is then continuing, the Request for Acceptances shall be deemed to be
a request to convert such then-maturing Acceptances into Canadian Term
Loans in an aggregate amount equal to the undiscounted face amount of the
Acceptances requested, (E) no such Acceptance shall be created if, after
giving effect thereto, the Aggregate Canadian Term Loan Outstandings would
exceed the Canadian Facility Maximum Amount and (F) the Canadian Borrower
shall request Acceptances in amounts and with maturity dates such that the
Aggregate Canadian Term Loan Outstandings can be reduced to an amount not
greater than the Canadian Facility Maximum Amount on each Canadian
Facility Amortization Date; or
(iii) to the extent that the Canadian Borrower has not given to the
Canadian Administrative Agent a notice contemplated by clause (i) or (ii)
above, then the Canadian Borrower shall be deemed to have requested a
conversion pursuant to Section 4.1(b) of such then-maturing Acceptances
into Canadian Term Loans in an aggregate principal amount equal to the
undiscounted face amount of such then-maturing Acceptances. The Borrowing
Date with respect to such conversion shall be the maturity date for such
Acceptances. Except to the extent that any of the events contemplated by
clause (i) or (ii) of paragraph (f) of Section 11 with respect to the
Canadian Borrower has occurred and is then continuing (in which case the
Canadian Borrower shall be obligated to pay to each Canadian Lender the
undiscounted face amount of the Acceptances created by such Canadian
Lender which are then maturing), each Canadian Lender shall convert the
then-maturing Acceptances into Canadian Term Loans as contemplated by this
Section 5.5(b)(iii) regardless of whether the conditions precedent to
borrowing set forth in this Agreement are then satisfied. The proceeds of
any Canadian Term Loans made pursuant to this Section 5.5(b)(iii) shall be
retained by the Canadian Lenders and applied by them to the Acceptance
Reimbursement Obligations of the Canadian Borrower in respect of the
then-maturing Acceptances.
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(c) In no event shall the Canadian Borrower claim from any Canadian
Lender any grace period with respect to the payment at maturity of any
Acceptances created by such Canadian Lender pursuant to this Agreement.
5.6 Acceptances to be Allocated in order to be Created Ratably. The
Canadian Borrower hereby agrees that each Request for Acceptances, reimbursement
of Acceptances and conversion of Canadian Term Loans to Acceptances shall be
made in a manner so that any such Request for Acceptances, reimbursement or
conversion shall apply ratably to all Canadian Lenders in accordance with their
respective Canadian Term Loan Commitment Percentages. In the event that the
aggregate undiscounted face amount of Acceptances requested by the Canadian
Borrower to be created by all Canadian Lenders hereunder pursuant to any Request
for Acceptances is an amount which, if divided ratably among the Canadian
Lenders in accordance with their respective Canadian Term Loan Commitment
Percentages, would not result in each Canadian Lender accepting a Draft which
has an undiscounted face amount equal to C$100,000 or a whole multiple of
C$100,000 in excess thereof, then the Canadian Administrative Agent is
authorized by the Canadian Borrower and the Canadian Lenders to allocate among
the Canadian Lenders the Acceptances to be issued in such manner and amounts as
the Canadian Administrative Agent may, in its sole discretion, acting
reasonably, consider necessary, rounding up or down, so as to ensure that no
Canadian Lender is required to accept a Draft for a fraction of $100,000 and, in
such event, the Canadian Lenders' ratable share with respect to such Acceptances
shall be adjusted accordingly.
5.7 Special Provisions Relating to Acceptance Notes. (a) The
Canadian Borrower and each Canadian Lender hereby acknowledge and agree that
from time to time certain Canadian Lenders may not be authorized to or may, as a
matter of market availability, elect not to accept Drafts, and the Canadian
Borrower and each Canadian Lender agree that any such Canadian Lender may
purchase Acceptance Notes of the Canadian Borrower in accordance with the
provisions of Section 5.7(b) in lieu of creating Acceptances for its account.
(b) In the event that any Canadian Lender described in Section
5.7(a) above is unable to, or elects as a matter of market availability not to,
create Acceptances hereunder, such Canadian Lender shall not create Acceptances
hereunder, but rather, if the Canadian Borrower requests the creation of such
Acceptances, the Canadian Borrower shall deliver to such Canadian Lender
non-interest bearing promissory notes (each, an "Acceptance Note") of the
Canadian Borrower, substantially in the form of Exhibit G, having the same
maturity as the Acceptances to be created and in an aggregate principal amount
equal to the undiscounted face amount of such Acceptances. Each such Canadian
Lender hereby agrees to purchase Acceptance Notes from the Canadian Borrower at
a purchase price equal to the Acceptance Purchase Price which would have been
applicable if a Draft in the same aggregate face amount as the principal amount
of its Acceptance Notes had been accepted by it (less any stamping fee which
would have been paid pursuant to Section 5.4 if such Lender had created an
Acceptance) and such Acceptance Notes shall be governed by the provisions of
this Section 5 as if they were Acceptances.
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SECTION 6. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
6.1 Commitment Fees, etc. (a) The Company agrees to pay to the
General Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each February, May, August and November and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b) The Company agrees to pay to the General Administrative Agent
for the account of each of the U.S. Term Loan Lenders a commitment fee for the
period from and including the Closing Date to the last day of U.S. Term Loan
Commitment Period, computed at the Commitment Fee Rate on the average daily
amount of the unutilized U.S. Term Loan Commitments of such Lender during such
period, payable quarterly in arrears on the last day of each February, May,
August and November and on the last day of the U.S. Term Loan Commitment Period,
commencing on the first of such dates to occur after the date hereof.
(c) The Company agrees to pay to the General Administrative Agent
and the Arranger the fees in the amounts and on the dates previously agreed to
in writing by the Company and the General Administrative Agent and the Arranger.
6.2 Optional Prepayments. (a) Subject to the provisions of Section
6.3(i), the Company may at any time and from time to time prepay the U.S. Loans,
in whole or in part, without premium or penalty, upon at least three Business
Days' irrevocable notice to the General Administrative Agent, specifying the
date and amount of prepayment and whether the prepayment is of LIBOR Loans or
Base Rate Loans, provided, that if a LIBOR Loan is prepaid on any day other than
the last day of the Interest Period applicable thereto, the Company shall also
pay any amounts owing pursuant to Section 6.13. Upon receipt of any such notice,
the General Administrative Agent shall promptly notify each relevant U.S. Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to Section 6.13 and, except in the case of Revolving Credit
Loans that are Base Rate Loans, accrued interest to such date on the amount
prepaid. Amounts prepaid on account of the U.S. Term Loans may not be
reborrowed. Partial prepayments of U.S. Loans shall be in an aggregate principal
amount of not less than $5,000,000 and whole multiples of $1,000,000 in excess
thereof.
(b) Subject to Section 6.3(i), the amount of each optional
prepayment of the U.S. Term Loans under any Facility shall be applied to reduce
the then remaining installments of the U.S. Term Loans under such Facility, pro
rata based upon the then
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remaining number of installments thereof, after giving effect to all prior
reductions thereto (i.e., each then remaining installment of the Tranche A Term
Loans, Tranche B Term Loans or Tranche C Term Loans, as the case may be, shall
be reduced by an amount equal to the aggregate amount to be applied to the
Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case
may be, divided by the number of the then remaining installments for such
Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans); provided,
that if the amount to be so applied to any installment would exceed the then
remaining amount of such installment, then an amount equal to such excess shall
be applied to the next succeeding installment after giving effect to all prior
reductions thereto (including the amount of prepayments theretofore allocated
pursuant to the preceding portion of this sentence).
(c) The Canadian Borrower may at any time and from time to time
prepay the Canadian Term Loans, in whole or in part, without premium or penalty,
upon at least four Business Days' irrevocable notice to the Canadian
Administrative Agent, specifying the date and amount of prepayment. Upon receipt
of any such notice, the Canadian Administrative Agent shall promptly notify the
General Administrative Agent and each Canadian Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid. Amounts prepaid on account of the Canadian Term Loans may not be
reborrowed except as provided in Section 5. Partial prepayments of Canadian Term
Loans shall be in an aggregate principal amount of not less than C$5,000,000 and
whole multiples of C$1,000,000 in excess thereof.
(d) The amount of each optional prepayment of the Canadian Term
Loans shall be applied to reduce the then remaining installments of the Canadian
Term Loans pro rata based upon the then remaining number of installments
thereof, after giving effect to all prior reductions thereto (i.e., each then
remaining installment of the Canadian Term Loans shall be reduced by an amount
equal to the aggregate amount to be applied to the Canadian Term Loans divided
by the number of the then remaining installments for such Canadian Term Loans);
provided, that if the amount to be so applied to any installment would exceed
the then remaining amount of such installment, then an amount equal to such
excess shall be applied to the next succeeding installment after giving effect
to all prior reductions thereto (including the amount of prepayments theretofore
allocated pursuant to the preceding portion of this sentence).
6.3 Mandatory Prepayments and Commitment Reductions. (a) If after
the Closing Date any Capital Stock shall be sold or issued by Holdings, the
Company or any of its Subsidiaries (including, without limitation, any sales
pursuant to the exercise of warrants, but excluding (i) any issuance of common
stock in payment of interest under the Seller Note, (ii) any Permitted Employee
Stock Issuances, to the extent the proceeds of such Permitted Employee Stock
Issuances are contributed by Holdings to the Company and (iii) the issuance of
common stock of Holdings as a part of the consideration for the Exchange Offer
and the Merger), an amount equal to 50% of the Net Cash Proceeds thereof shall
be applied within three Business Days after the date of receipt of such Net Cash
Proceeds toward the
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prepayment of the Term Loans and Acceptances and the reduction of the Revolving
Credit Commitments as set forth in Section 6.3(e).
(b) If after the Closing Date any Indebtedness shall be issued or
incurred by Holdings, the Company or any of its Subsidiaries (excluding any
Indebtedness (other than Indebtedness evidenced by High Yield Notes) incurred in
accordance with Section 10.2 as in effect on the date of this Agreement), an
amount equal to 100% of the Net Cash Proceeds thereof shall be applied within
three Business Days after the date of such issuance or incurrence toward the
prepayment of the Term Loans and the Acceptances and the reduction of the
Revolving Credit Commitments (or, if required by Section 6.3(e), reduction of
the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments)
as set forth in Section 6.3(e).
(c) If after the Closing Date the Company or any of its Subsidiaries
(other than the Canadian Borrower or any of its Subsidiaries) shall receive Net
Cash Proceeds from any Asset Sale (including, without limitation, any Net Cash
Proceeds from any Dispositions permitted by clauses (e) and (f) of Section 10.6
to the extent such proceeds exceed $225,000,000 in the aggregate) or Recovery
Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on
such date toward the prepayment of the U.S. Term Loans and the reduction of the
Revolving Credit Commitments as set forth in Section 6.3(f). If after the
Closing Date the Canadian Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of
such Net Cash Proceeds shall be applied on such date toward the prepayment of
the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction
of the Canadian Facility Maximum Amount as set forth in Section 6.3(g).
Notwithstanding the foregoing, (i) no such prepayment or reduction shall be
required in respect of Asset Sales for which the Net Cash Proceeds in any fiscal
year aggregate up to (but do not exceed) $5,000,000 (in the aggregate for the
Company and its Subsidiaries, including the Canadian Borrower and its
Subsidiaries) and (ii) no such prepayment or reduction shall be required in
respect of any Asset Sales or any Recovery Event if the Company delivers a
Reinvestment Notice in respect of each such Asset Sale and Recovery Event;
provided, that, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayments and reductions required by Section
6.3(f) or 6.3(g), as applicable; and provided, further, that no Reinvestment
Notice shall be required in respect of Asset Sales for which no prepayment is
required pursuant to the foregoing clause (i) of this sentence.
(d) If, for any fiscal year of Holdings commencing with the fiscal
year ending August 31, 1999, Holdings shall have Excess Cash Flow (calculated
without taking into account the Canadian Borrower and its Subsidiaries), the
Company shall, on the relevant Excess Cash Flow Application Date, apply 75% of
such Excess Cash Flow toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in Section 6.3(f). If, for any
fiscal year of the Canadian Borrower commencing with the fiscal year ending
August 31, 1999, the Canadian Borrower shall have Excess Cash Flow, the Canadian
Borrower shall, on the relevant Excess Cash Flow Application Date, apply 75% of
such Excess Cash Flow toward the prepayment of the Total Aggregate
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Canadian Term Loan Outstandings and the permanent reduction of the Canadian
Facility Maximum Amount as set forth in Section 6.3(g). Each such prepayment and
reduction shall be made on a date (an "Excess Cash Flow Application Date") no
later than five days after the earlier of (i) the date on which the financial
statements of Holdings referred to in Section 9.1(a), for the fiscal year with
respect to which such prepayment is made, are required to be delivered to the
Lenders and (ii) the date such financial statements are actually delivered.
Notwithstanding the foregoing, if for any fiscal year the Excess Cash Flow of
one of the Canadian Borrower or Holdings (calculated without taking into account
the Canadian Borrower and its Subsidiaries), as the case may be, is a negative
number, and the Excess Cash Flow of the other such Person is a positive number,
the amount of the prepayment and reduction required by this Section 6.3(d) in
respect of the Company (if Holdings is the Person having positive Excess Cash
Flow) or the Canadian Borrower (if the Canadian Borrower is the Person having
positive Excess Cash Flow) for such fiscal year shall be reduced by the amount
of the negative Excess Cash Flow of the other such Person for such fiscal year.
(e) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 6.3(a) or 6.3(b) shall be
applied, first, to the prepayment of the U.S. Term Loans and Total Aggregate
Canadian Term Loan Outstandings, ratably in accordance with the outstanding
amount of each Facility and, second, to reduce permanently the Revolving Credit
Commitments. Notwithstanding the preceding sentence, any prepayment made
pursuant to Section 6.3(b) with the Net Cash Proceeds of the High Yield Offering
shall be applied, first, to prepay the Tranche B-1 Term Loans and the Tranche
C-1 Term Loans, ratably in accordance with the outstanding amounts thereof (or,
if the High Yield Offering is consummated prior to the Merger Date, such amount
shall be applied to permanently reduce the Tranche B-1 Term Loan Commitments and
the Tranche C-1 Term Loan Commitments) and, second, in accordance with the
preceding sentence. Any such reduction of the Revolving Credit Commitments shall
be accompanied by prepayment of the Revolving Credit Loans to the extent, if
any, that the Total Revolving Extensions of Credit exceed the amount of the
aggregate Revolving Credit Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Credit Loans then outstanding is less
than the amount of such excess (because L/C Obligations constitute a portion
thereof), the Company shall not be required to reduce any outstanding Letters of
Credit. The application of any such prepayment of U.S. Term Loans shall be made
first to Base Rate Loans and second to LIBOR Loans. The application of any such
prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made
first to Canadian Term Loans and second (but only on the maturity date thereof)
to Acceptances. Each such prepayment of the Loans (except in the case of
Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
(f) Amounts to be applied in connection with prepayments and
reductions made pursuant to Section 6.2(c), the first sentence of Section 6.3(c)
or the first sentence of Section 6.3(d) shall be applied, first, to the
prepayment of the U.S. Term Loans, ratably in accordance with the respective
outstanding amounts of the Facilities, and, second, to reduce permanently the
Revolving Credit Commitments. Any such reduction of the Revolving Credit
Commitments shall be accompanied by prepayment of the Revolving Credit Loans to
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the extent, if any, that the Total Revolving Extensions of Credit exceed the
amount of the aggregate Revolving Credit Commitments as so reduced, provided
that if the aggregate principal amount of Revolving Credit Loans then
outstanding is less than the amount of such excess (because L/C Obligations
constitute a portion thereof), the Company shall not be required to reduce any
outstanding Letters of Credit. The application of any such prepayment of U.S.
Term Loans shall be made first to Base Rate Loans and second to LIBOR Loans.
Each such prepayment of the Loans (except in the case of Revolving Credit Loans
that are Base Rate Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid.
(g) Amounts to be applied in connection with prepayments and
reductions made pursuant to Section 6.2(c), the second sentence of Section
6.3(c) or the second sentence of Section 6.3(d) shall be applied to the
reduction of the Total Aggregate Canadian Term Loan Outstandings and the
simultaneous and automatic reduction in an equal amount of the Canadian Facility
Maximum Amount. The application of any such prepayment to Total Aggregate
Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and
second (but only on the maturity date thereof) to Acceptances. Each such
prepayment of the Canadian Term Loans shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
(h) The amount of each prepayment of the Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans or Canadian Term Loans, as the case
may be, required pursuant to this Section 6.3 shall be applied to reduce the
then remaining installments of the Term Loans under the relevant Facility, pro
rata based upon the then remaining outstanding principal amount of such
installments.
(i) Notwithstanding anything in Section 6.2(a), Section 6.3(e) or
Section 6.3(f) to the contrary and provided that there are Tranche A Term Loans
and/or Total Aggregate Canadian Term Loan Outstandings then outstanding, with
respect to the amount of any optional prepayment described in Section 6.2(a) or
mandatory prepayment described in Section 6.3 that is allocated to the Tranche B
Term Loans or Tranche C Term Loans (such amounts, the "Tranche B Prepayment
Amount" and the "Tranche C Prepayment Amount", respectively), the Company will,
in lieu of applying such amount to the prepayment of Tranche B Term Loans and
Tranche C Term Loans, respectively, as provided in Section 6.2(a) or Section
6.3(e) or (f), as the case may be, on the date specified in Section 6.2(a) or
Section 6.3, as the case may be, for such prepayment, give the General
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the General Administrative Agent prepare and provide to each
Tranche B Lender and Tranche C Lender a notice (each, a "Prepayment Option
Notice") as described below. As promptly as practicable after receiving such
notice from the Company, the General Administrative Agent will send to each
Tranche B Lender and Tranche C Lender a notice (a "Prepayment Option Notice"),
which shall be in the form of Exhibit H, and shall include an offer by the
Company to prepay on the date (each a "Proposed Prepayment Date") that is 15
days after the date of the Prepayment Option Notice, the Tranche B Term Loans or
Tranche C Term Loans, as the case may be, of such Lender by an amount equal to
the portion of the Tranche B Prepayment Amount or Tranche C Prepayment Amount
indicated in such Lender's
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Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loans or Tranche C Term Loans, as the case may be. On the Proposed Prepayment
Date, (A) the Company shall pay to the General Administrative Agent the
aggregate amount necessary to prepay that portion of the outstanding Tranche B
Term Loans or Tranche C Term Loans, as the case may be, in respect of which
Tranche B Lenders and Tranche C Lenders have accepted prepayment as described
above (such Lenders, the "Accepting Lenders"), and such amount shall be applied
to reduce the Tranche B Prepayment Amount and Tranche C Prepayment Amount, as
applicable, with respect to each Accepting Lender and (B) the Company shall pay
to the General Administrative Agent an amount equal to 100% of the portion of
the Tranche B Prepayment Amount and Tranche C Prepayment Amount not accepted by
the Accepting Lenders, and such amount shall be applied (i) in the case of
optional prepayments pursuant to Section 6.2, to prepay the Tranche A Term Loans
and (ii) in the case of mandatory prepayments, to the other Facilities required
to be prepaid pursuant to Section 6.3(e) or Section 6.3(f), as the case may be,
ratably in accordance with the outstanding amounts thereof.
6.4 Conversion and Continuation Options. (a) The Company may elect
from time to time to convert LIBOR Loans to Base Rate Loans, by giving the
General Administrative Agent at least two Business Days' prior irrevocable
notice of such election; provided that any such conversion of LIBOR Loans may
only be made on the last day of an Interest Period with respect thereto. The
Company may elect from time to time to convert Base Rate Loans to LIBOR Loans by
giving the General Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to LIBOR
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the General Administrative
Agent shall promptly notify each affected Lender thereof. All or any part of
outstanding LIBOR Loans and Base Rate Loans may be converted as provided herein,
provided that (i) no Base Rate Loan under a particular Facility may be converted
into a LIBOR Loan when any Event of Default has occurred and is continuing and
the General Administrative Agent has or the Majority Facility Lenders in respect
of such Facility have determined in its or their sole discretion that such a
conversion is not appropriate and (ii) no Loan may be converted into a LIBOR
Loan after the date that is one month prior to the final maturity date of such
Facility.
(b) Any LIBOR Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Company giving
notice to the General Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in Section 1.1, of the length
of the next Interest Period to be applicable to such Loans, provided that no
LIBOR Loan under a particular Facility may be continued as such (i) when any
Event of Default has occurred and is continuing and the General Administrative
Agent has or the Majority Facility Lenders in respect of such Facility have
determined in its or their sole discretion that such a continuation is not
appropriate or (ii) after the date that is one month prior to the final maturity
date of such Facility and provided, further, that if the Company shall fail to
give such notice or if such continuation is not permitted such Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the General Administrative
Agent shall promptly notify each relevant Lender thereof.
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6.5 Minimum Amounts of Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations of
LIBOR Loans hereunder and all selections of Interest Periods hereunder shall be
in such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the LIBOR Loans comprising
each Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
6.6 Interest Rates and Payment Dates. (a) Each LIBOR Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the LIBOR Rate determined for such day plus the Applicable
Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) Each Canadian Term Loan shall bear interest at a rate per annum
equal to the Canadian Dollar Prime Rate plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any Reimbursement
Obligation or Acceptance Reimbursement Obligation or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans, the Reimbursement
Obligations or Acceptance Reimbursement Obligation and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (w) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or, if higher, (x) in the case of Reimbursement Obligations, the rate
applicable to Base Rate Loans under the Revolving Credit Facility plus 2%, (y)
in the case of Acceptance Reimbursement Obligations, the rate applicable to
Revolving Credit Loans that are LIBOR Loans plus 2% or (z) in the case of any
such overdue interest, commitment fee or other amount, the rate described in
paragraph (b) of this subsection (paragraph (c) in the case of interest on
Canadian Term Loans) plus 2%, in each case from the date of such non-payment
until such overdue principal, interest, commitment fee or other amount is paid
in full (as well after as before judgment).
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this Section
6.6 shall be payable from time to time on demand.
6.7 Computation of Interest and Fees. (a) Commitment fees,
Acceptance stamping fees and, whenever it is calculated on the basis of the
Prime Rate or the Canadian Dollar Prime Rate, interest shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and letter of credit commissions and fronting
fees shall be calculated on the basis of a 360-day year for the actual days
elapsed. The General Administrative Agent shall as soon as practicable notify
the Company and the U.S. Lenders of each determination of a LIBOR Rate. Any
change in the interest rate on a Loan resulting from a change in the Base Rate,
the Canadian Dollar
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Prime Rate or the Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change becomes effective. The
General Administrative Agent shall as soon as practicable notify the Company and
the U.S. Lenders of the effective date and the amount of each such change in the
Base Rate. For purposes of the Interest Act (Canada), whenever any interest
under this Agreement is calculated using an annual rate based on a period which
is less than the actual number of days in a year (the "Lesser Period"), such
rate determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (i) the applicable rate based on such Lesser Period, (ii)
multiplied by the actual number of days in the calendar year in which the period
for which such interest is payable ends, and (iii) divided by the number of days
in such Lesser Period. The rates of interest specified in this Agreement are
nominal rates and all interest payments and computations are to be made without
allowance or deduction for deemed reinvestment of interest.
(b) Each determination of an interest rate by the General
Administrative Agent or the Canadian Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrowers and
the Lenders in the absence of manifest error.
(c) If any Canadian Reference Lender shall for any reason no longer
have a Canadian Loan Commitment or any Canadian Term Loans, such Canadian
Reference Lender shall thereupon cease to be a Canadian Reference Lender, and
if, as a result, there shall only be one Schedule 1 Canadian Reference Lender or
Schedule 2 Canadian Reference Lender (as the case may be) remaining, the
Canadian Administrative Agent (after consultation with the Canadian Borrower and
the Schedule 1 Canadian Lender or the Schedule 2 Canadian Lender, as applicable)
shall, by notice to the Canadian Borrower and the Canadian Lenders, designate
another Schedule 1 Canadian Lender or Schedule 2 Canadian Lender, as applicable,
as a Schedule 1 Canadian Reference Lender or a Schedule 2 Canadian Reference
Lender, as applicable, so that there shall at all times be at least two Schedule
1 Canadian Reference Lenders and two Schedule 2 Canadian Reference Lenders.
(d) Each Canadian Reference Lender shall use its best efforts to
furnish quotations of rates to the Canadian Administrative Agent as contemplated
hereby. If any of the Canadian Reference Lenders shall be unable or shall
otherwise fail to supply such rates to the Canadian Administrative Agent upon
its request, the rate of interest shall, subject to the provisions of Section
6.8, be determined on the basis of the quotations of the remaining Canadian
Reference Lenders or Reference Lender.
6.8 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the General Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for such
Interest Period, or
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(b) the General Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that the
LIBOR Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the Company and the relevant U.S. Lenders as soon as practicable
thereafter. If such notice is given (x) any LIBOR Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to LIBOR Loans
shall be continued as Base Rate Loans and (z) any outstanding LIBOR Loans under
the relevant Facility shall be converted, on the first day of such Interest
Period, to Base Rate Loans. Until such notice has been withdrawn by the General
Administrative Agent, no further LIBOR Loans under the relevant Facility shall
be made or continued as such, nor shall the Company have the right to convert
Loans under the relevant Facility to LIBOR Loans.
6.9 Pro Rata Treatment and Payments. (a) Each borrowing by the
Company from the Lenders hereunder shall be made pro rata according to the
respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages,
Tranche C Term Loan Percentages, Canadian Term Loan Commitment Percentages or
Revolving Credit Percentages, as the case may be, of the relevant Lenders;
provided, that, pursuant to the second sentence of Section 5.6, Acceptances may
be created in non-pro rata amounts if required to permit rounding to whole
multiples of C$100,000. Each borrowing of the U.S. Term Loans shall be made
first under the Tranche B Term Loan Commitments and the Tranche C Term Loan
Commitments, pro rata in accordance with the aggregate amounts of the Tranche B
Term Loan Commitments and Tranche C Term Loan Commitments of the respective
Lenders (provided, that until all Tranche B Term Loan Commitments and Tranche C
Term Loan Commitments other than the Tranche B-1 Term Loan Commitments and the
Tranche C-1 Term Loan Commitments have been fully drawn, such pro rata
calculations shall be made without regard to the Tranche B-1 Term Loan
Commitments and Tranche C-1 Term Loan Commitments of the Lenders) and, second,
after the Tranche B Term Loan Commitments and the Tranche C Term Loan Commitment
have been utilized in full, under the Tranche A Term Loan Commitments pro rata
in accordance with the amounts of the Tranche A Term Loan Commitments of the
respective Lenders. Each payment by the Company on account of any commitment fee
and letter of credit commission and any reduction of the Revolving Credit
Commitments shall be made pro rata according to the respective Revolving Credit
Percentages of the Lenders. Each payment (other than any prepayment pursuant to
Section 6.2 or 6.3) shall be applied to the Facilities ratably in accordance
with the respective amounts due and owing under the Facilities.
(b) Each payment (including each prepayment) by the Company on
account of principal of and interest on the U.S. Term Loans under any Facility
shall be made pro rata according to the respective outstanding principal amounts
of the U.S. Term Loans under such Facility then held by the U.S. Term Loan
Lenders.
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(c) Each payment (including each prepayment) by the Canadian
Borrower on account of principal of and interest on the Canadian Term Loans
shall be made pro rata according to the respective outstanding principal amounts
of the Canadian Term Loans then held by the Canadian Lenders. Each payment in
respect of Acceptance Reimbursement Obligations shall be made pro rata according
to the respective amounts of Acceptance Reimbursement Obligations then due and
owing to the Canadian Lenders.
(d) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders.
(e) All payments (including prepayments) to be made by the Company
hereunder, whether on account of principal, interest, fees or otherwise (other
than payments under Section 13 in respect of the Canadian Borrower Obligations
and the Canadian Operating Facility Obligations), shall be made without setoff
or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the General Administrative Agent, for the account of the
Lenders, at the General Administrative Agent's office specified in Section 14.2,
in Dollars and in immediately available funds. The General Administrative Agent
shall distribute such payments to the Lenders promptly upon receipt in like
funds as received. If any payment by the Company hereunder (other than payments
on the LIBOR Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any
payment on a LIBOR Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.
(f) All payments (including prepayments) to be made by the Canadian
Borrower hereunder (or by the Company under Section 13 in respect of the
Canadian Borrower Obligations and the Canadian Operating Facility Obligations),
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, Toronto
time, on the due date thereof to the Canadian Administrative Agent, for the
account of the Lenders, at the Canadian Administrative Agent's office specified
in Section 14.2, in Canadian Dollars and in immediately available funds. The
Canadian Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment by the Canadian
Borrower hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. In the case
of any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
(g) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make available to
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such Administrative Agent the amount that would constitute its share of the
Loans or Acceptance Purchase Price to be disbursed to a Borrower on such
Borrowing Date, such Administrative Agent may assume that such Lender is making
such amount available to such Administrative Agent, and such Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such amount is not made available to such
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to such Administrative Agent, on demand, such amount with
interest thereon at a rate equal to (i) in the case of amounts to be made
available in U.S. Dollars, the daily average Federal Funds Effective Rate for
the period until such Lender makes such amount immediately available to the
General Administrative Agent and (ii) in the case of amounts to be made
available in Canadian Dollars, the Canadian Administrative Agent's reasonable
estimate of its average daily cost of funds. A certificate of the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
submitted to any Lender with respect to any amounts owing under this Section
6.9(g) shall be conclusive in the absence of manifest error. If such Lender's
share of such amount is not made available to such Administrative Agent by such
Lender within three Business Days of such Borrowing Date, such Administrative
Agent shall also be entitled to recover such amount from the relevant Borrower
on demand with interest thereon at the rate per annum applicable to Base Rate
Loans under the relevant Facility (in the case of amounts to be made available
in U.S. Dollars), or Canadian Term Loans (in the case of amounts to be made
available in Canadian Dollars).
6.10 Illegality. (a) Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Loans as contemplated by this Agreement, (i) the commitment of such U.S.
Lender hereunder to make LIBOR Loans, continue LIBOR Loans as such and convert
Base Rate Loans to LIBOR Loans shall forthwith be cancelled and (ii) such U.S.
Lender's Loans then outstanding as LIBOR Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a LIBOR Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Company shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 6.13.
(b) Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Canadian Lender to create or maintain
Acceptances as contemplated by this Agreement, (i) the commitment of such
Canadian Lender hereunder to accept Drafts, purchase Acceptances, continue
Acceptances as such and convert Canadian Term Loans to Acceptances shall
forthwith be cancelled until such time as it shall no longer be unlawful for
such Canadian Lender to create or maintain Acceptances and (ii) such Canadian
Lender's then outstanding Acceptances, if any, shall be converted automatically
to Canadian Term Loans on the respective maturities thereof or within such
earlier period as may be required by law.
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6.11 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law, but with which similarly-situated entities generally comply)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any LIBOR Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 6.12 and changes
in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the LIBOR Rate; or
(iii) shall impose on such Lender any other condition, the cost of
which is not otherwise included in the determination of the LIBOR Rate;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBOR Loans or Acceptances or issuing or participating
in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the applicable Borrower shall promptly pay such
Lender such additional amount or amounts as will compensate such Lender on an
after-tax basis for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law, but with which
similarly-situated entities generally comply) from any Governmental Authority
made subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, the applicable Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender on an
after-tax basis for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the applicable Borrower (with
a copy to the General Administrative Agent and, if applicable, the Canadian
Administrative Agent) of the event by
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reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this Section submitted by such Lender to such
Borrower (with a copy to the General Administrative Agent and, if applicable,
the Canadian Administrative Agent) shall be conclusive in the absence of
manifest error. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans, the Acceptance Reimbursement
Obligations, the Acceptance Notes and all other amounts payable hereunder.
6.12 Taxes. (a) All payments made by the Borrowers under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on either Administrative Agent or any
Lender as a result of a present or former connection between such Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Administrative Agent or
such Lender having executed, delivered or performed its obligations or received
a payment under, or enforced, this Agreement or any other Loan Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to such Administrative Agent, or any Lender hereunder or under any Note,
the amounts so payable to such Administrative Agent or such Lender shall be
increased to the extent necessary to yield to such Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Company shall not be required to increase
any such amounts payable to any U.S. Lender if such U.S. Lender fails to comply
with the requirements of paragraph (b) of this Section. Whenever any
Non-Excluded Taxes are payable by a Borrower, as promptly as possible thereafter
such Borrower shall send to the applicable Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify such Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by either
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans, the Acceptance Reimbursement Obligations, the
Acceptance Notes and all other amounts payable hereunder.
(b) Each U.S. Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) in the case of a Lender other than a Lender described in
subsection 6.12(b)(ii);
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(A) deliver to the Company and the General Administrative
Agent (A) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as
the case may be, and (B) an Internal Revenue Service Form W-8 or
W-9, or successor applicable form, as the case may be;
(B) deliver to the Company and the General Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the
Company; and
(C) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Company or the General Administrative Agent; and
(D) file amendments to such forms as and when required; and
(ii) in the case of a Lender that is not a "bank" under Section
881(c)(3)(A) of the Code and that is legally unable to comply with the
requirements of subsection 6.11(b)(i);
(A) at least five Business Days before the date of the initial
payment to be made by the Company under this Agreement to such
Lender, deliver to the Company and the General Administrative Agent
(I) a statement that such Lender (x) is not a "bank" under Section
881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements, (y)
is not a 10-percent shareholder within the meaning of Section
881(c)(3)(B) of the Code and (z) is not a controlled foreign
corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code and (II) a properly
completed and duly executed Internal Revenue Service Form W-8 or
applicable successor form; and
(B) deliver to the Company and the General Administrative
Agent two further properly completed and duly executed copies of
said Form W-8, or any successor applicable form at least five
Business Days on or before the date that any such Form W-8 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
Company or upon the request of the Company or the General
Administrative Agent; and
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(C) obtain such extensions of time for filing and completing
such forms or certifications as may be reasonably requested by the
Company and the General Administrative Agent; and
(D) file amendments to such forms as and when required;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Company and the General
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 14.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
6.13 Indemnity. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or continuation of LIBOR Loans after such Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment after such
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of LIBOR Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such U.S. Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
6.14 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under Section 6.11 or 6.12(a), or if any adoption or
change of the type described in Section 6.10 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need
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for the Borrowers to make payments under Section 6.11 or 6.12(a), or would
eliminate or reduce the effect of any adoption or change described in Section
6.10; provided, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and provided, further, that
nothing in this Section 6.14 shall affect or postpone any of the obligations of
any Borrower or the rights of any Lender pursuant to Section 6.11 or 6.12(a).
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agents and the Lenders to enter into
this Agreement and to make the Loans and the other extensions of credit
hereunder, each of the Company and the Canadian Borrower (to the extent
applicable to the Canadian Borrower) hereby represents and warrants to each
Administrative Agent and each Lender that:
7.1 Financial Condition. (a) The unaudited pro forma combined
balance sheet of Holdings and its consolidated Subsidiaries as at November 30,
1997 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the consummation of
the Exchange Offer and the Merger, (ii) the Loans to be made on or prior to the
Merger Date and the use of proceeds thereof and (iii) the payment of fees and
expenses in connection with the Exchange Offer and Merger. The Pro Forma Balance
Sheet has been prepared based on the best information available to the Company
as of the date of delivery thereof, and presents fairly on a pro forma basis the
estimated combined financial position of Holdings and its consolidated
Subsidiaries as at the Closing Date, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) To the best of the Company's knowledge, the audited consolidated
balance sheet of Safety-Kleen as of December 31, 1996 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by and accompanied by an unqualified report from Xxxxxx
Xxxxxxxx, present fairly the consolidated financial condition of Safety-Kleen as
at such date, and the consolidated results of its operations and its
consolidated cash flows for the fiscal year then ended. To the best of the
Company's knowledge, all such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the relevant
firm of accountants and disclosed therein). To the best of the Company's
knowledge, the balance sheet referred to above reflects any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, and any long-term
leases and unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, in each case as of the date of
such balance sheets. During the period from December 31, 1996 to and including
the date hereof there has been no Disposition by Safety-Kleen or any of its
Subsidiaries of any material part of its business or property.
(c) The audited consolidated balance sheet of Holdings as at August
31, 1997, and the related consolidated statements of income and of cash flows
for the fiscal year ended
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on such date, reported on by and accompanied by an unqualified report from
Coopers & Xxxxxxx, present fairly the consolidated financial condition of
Holdings as at such date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal year then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the relevant firm of accountants and
disclosed therein). The balance sheet referred to above reflects any material
Guarantee Obligations, contingent liabilities and liabilities for taxes, and any
long-term leases and unusual forward or long-term commitments, including,
without limitation, any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, in each case as of
the date of such balance sheets. During the period from August 31, 1997 to and
including the date hereof there has been no Disposition by Holdings or any of
its Subsidiaries of any material part of its business or property other than the
sale by the Company of ECDC Environmental, L.C.
7.2 No Change. Since August 31, 1997 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect. Without limiting the representation in the preceding sentence,
since December 31, 1996 there has been no development or event which, to the
best knowledge of the Company, has had or could reasonably be expected to have a
material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of Safety-Kleen and its Subsidiaries taken
as a whole.
7.3 Corporate Existence; Compliance with Law. Each of the Company
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of each Borrower, to borrow hereunder and has taken all necessary corporate
action to authorize the borrowings on the terms and conditions of this Agreement
and any Notes and to authorize the execution, delivery and performance of the
Loan Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with (i) the borrowings hereunder or
with the execution, delivery, performance, validity or enforceability of the
Loan Documents or (ii) the consummation of the Exchange Offer or the Merger,
except approval of the Merger by the Safety-Kleen shareholders. This Agreement
has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of each Loan
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Party which is a party thereto. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of the Loan Party which is a party thereto
enforceable against such Loan Party in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
7.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Company or of any of its Subsidiaries and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation (other than the Liens created by the Security
Documents).
7.6 No Material Litigation. (a) No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues (i) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby (other than as set forth on Schedule
7.6 relating to the Exchange Offer, none of which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect), or
(ii) which could reasonably be expected to have a Material Adverse Effect.
(b) Without limiting the representation made in paragraph (a) of
this Section 7.6, to the best knowledge of the Company, except as described in
the Exchange Offer Documents, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or threatened against
Safety-Kleen or any of its Subsidiaries or against any of its or their
respective properties or revenues which could reasonably be expected to have a
material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of Safety-Kleen and its Subsidiaries taken
as a whole.
7.7 No Default. Neither the Company nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
7.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 10.3.
7.9 Intellectual Property. Each of the Company and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted (the "Intellectual
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Property"). Except as set forth in Schedule 7.9, no claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Company know of any valid basis for any such claim. The
use of such Intellectual Property by the Company and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect. An adverse determination of any or all of the matters set forth
on Schedule 7.9 could not reasonably be expected to have a Material Adverse
Effect.
7.10 No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
7.11 Taxes. Each of the Company and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Company, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any taxes, fees or other charges, the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case may be);
no tax Lien has been filed, and, to the knowledge of the Company, no claim is
being asserted, with respect to any such tax, fee or other charge.
7.12 Federal Regulations. No part of the proceeds of any Loans will
be used in violation of Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect.
7.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither Borrower nor any Commonly Controlled Entity has had a complete
or partial withdrawal from any Multiemployer Plan, and neither of the Borrowers
nor any Commonly Controlled Entity would become subject to any liability under
ERISA if the Borrowers or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Borrowers and
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each Commonly Controlled Entity for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the
assets under all such Plans allocable to such benefits by an amount in excess of
$2,000,000.
7.14 Canadian Benefit and Pension Plans. The Canadian Pension Plans
are duly registered under the provisions of the ITA and any other Requirements
of Law and no event has occurred which is reasonably likely to cause the loss of
such registered status. The Canadian Pension Plans and the Canadian Benefits
Plans have been administered in accordance with the ITA and all other
Requirements of Law. All material obligations of each of the Canadian Borrower
or any Subsidiary thereof (including fiduciary and funding obligations) required
to be performed in connection with the Canadian Pension Plans have been
performed. No promises of benefit improvements under the Canadian Pension Plans
or the Canadian Benefit Plans have been made except where such improvement could
not have a Material Adverse Effect. There have been no improper withdrawals or
applications of the assets of the Canadian Pension Plans or the Canadian Benefit
Plans. As of the most current evaluation date, each of the Canadian Pension
Plans and the Canadian Benefit Plans is fully funded and there exist no going
concern unfunded actuarial liabilities or solvency deficiencies in respect of
such plans.
7.15 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Indebtedness.
7.16 Subsidiaries. Schedule 7.16 sets forth a complete list of all
the Subsidiaries of the Company on the Closing Date after giving effect to the
consummation of the Exchange Offer.
7.17 Purpose of Loans. The proceeds of the Loans and Acceptances
shall be used (i) to finance a portion of the Safety-Kleen Acquisition and the
fees and expenses associated therewith, (ii) to purchase stock appreciation
rights from employees and directors of Safety-Kleen pursuant to Safety-Kleen's
existing stock option/purchase plans in an amount not to exceed $46,000,000,
(iii) to repay certain Indebtedness of the Borrowers outstanding on the Closing
Date, including all amounts outstanding under the Existing Credit Agreement and
(iv) on the Merger Date, to repay certain Indebtedness of Safety-Kleen required
to be repaid in connection with the Merger. The proceeds of the Loans and
Acceptances also shall be used to finance the ongoing working capital needs of
the Borrowers and their Subsidiaries in the ordinary course of business, capital
expenditures and acquisitions permitted by Section 10.8.
7.18 Environmental Matters.
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Other than exceptions to any of the following that could not, individually
or in the aggregate, reasonably be expected to give rise to a Material Adverse
Effect:
(a) The Company and each of its Subsidiaries: (i) are, and within
the period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (ii) hold all
Environmental Permits (each of which is in full force and effect) required
for any of their current or intended operations or for any property owned,
leased, or otherwise operated by any of them; (iii) are, and within the
period of all applicable statutes of limitation have been, in compliance
with all of their Environmental Permits; and (iv) reasonably believe that:
each of their Environmental Permits will be timely renewed and complied
with, without material expense; any additional Environmental Permits that
may be required of any of them will be timely obtained and complied with,
without material expense; and compliance with any Environmental Law that
is or is expected to become applicable to it will be timely attained and
maintained, without material expense.
(b) Materials of Environmental Concern have not been transported,
disposed of, emitted, discharged, or otherwise released or threatened to
be released, to or at any real property now or formerly owned, leased or
operated by the Company or any of its Subsidiaries or at any other
location, which could reasonably be expected to (i) give rise to liability
of the Company or any of its Subsidiaries under any applicable
Environmental Law, (ii) interfere with the continued operations of the
Company or any of its Subsidiaries, or (iii) impair the fair saleable
value of any real property owned or leased by the Company or any of its
Subsidiaries.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating
to any Environmental Law to which the Company or any of its Subsidiaries
is, or to the knowledge of the Company or any of its Subsidiaries will be,
named as a party that is pending or, to the knowledge of the Company or
any of its Subsidiaries, threatened.
(d) Neither the Company nor any of its Subsidiaries has received any
written request for information, or been notified that it is a potentially
responsible party under or relating to the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. xx.xx. 9601 et seq.,
or any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
(e) Neither the Company nor any of its Subsidiaries has entered into
or agreed to any consent decree, order, or settlement or other agreement,
nor is subject to any judgment, decree, or order or other agreement, in
any judicial, administrative, arbitral, or other forum, relating to
compliance with or liability under any Environmental Law.
(f) Neither the Company nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any liabilities of any kind,
fixed or contingent,
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known or unknown, under any Environmental Law or with respect to any
Materials of Environmental Concern.
7.19 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished to the Administrative Agents or the Lenders
or any of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate
was so furnished, any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of such Loan Party to be reasonable at
the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. The Company has provided to the General Administrative Agent a
true and complete copy of the Exchange Offer Documents and the Merger Agreement
(including all exhibits and schedules thereto and financial statements referred
to therein). As of the date hereof, the representations and warranties contained
in the Merger Agreement are true and correct in all material respects. There is
no fact known to any Loan Party that could reasonably be expected to have a
Material Adverse Effect that has not been expressly disclosed herein, in the
other Loan Documents or in any other documents, certificates and statements
furnished to the Administrative Agents and the Lenders for use in connection
with the transactions contemplated hereby and by the other Loan Documents.
7.20 Security Documents. (a) The Guarantee and Collateral Agreement
is effective to create in favor of the General Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the General
Administrative Agent, and in the case of the other Collateral described in the
Guarantee and Collateral Agreement, when financing statements in appropriate
form are filed in the offices specified on Schedule 3 to the Guarantee and
Collateral Agreement, the Guarantee and Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person other than as permitted by
the Guarantee and Collateral Agreement.
(b) The Acquisition Corp. Pledge Agreement is effective to create in
favor of the General Administrative Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof. When the actions described in Section 3(a) or
3(b), as the case may be, of the Acquisition Corp. Pledge Agreement have been
taken, the Acquisition Corp. Pledge Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
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Parties in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Acquisition Corp. Pledge Agreement), in each case
prior and superior in right to any other Person other than as permitted by the
Acquisition Corp. Pledge Agreement.
(c) Each of the Canadian Collateral Documents is effective to create
in favor of the Canadian Administrative Agent, for the benefit of the Canadian
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. Upon completion of the actions set forth
on Schedule 7.20, the Canadian Collateral Documents shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Canadian Borrower Obligations, in each case prior and superior in right to
any other Person other than as permitted by the Canadian Collateral Documents.
(d) Each of the Mortgages is effective to create in favor of the
General Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the mortgaged properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
3, each such Mortgage shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such mortgaged
properties and the proceeds thereof, as security for the Obligations (as defined
in the relevant Mortgage), in each case prior and superior in right to any other
Person.
7.21 Solvency. Each Loan Party is, and after giving effect to the
Safety-Kleen Acquisition and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be and will continue to
be, Solvent.
7.22 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968.
7.23 Corsan Trucking, Inc.. As of the date hereof, Corsan Trucking,
Inc., a wholly owned Subsidiary of the Company, does not have any assets and
does not conduct any operations.
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Extensions of Credit. The agreement of
each Lender to make the initial Extension of Credit requested to be made by it
is subject to the satisfaction, immediately prior to or concurrently with the
making of such Extension of Credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The General Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of each Borrower, with a counterpart for each Lender, (ii) the
Guarantee and Collateral
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Agreement, executed and delivered by a duly authorized officer of the
parties thereto, with a counterpart or a conformed copy for each Lender,
(iii) the Acquisition Corp. Pledge Agreement and the Exchange Agent Agency
Agreement, each executed and delivered by a duly authorized officer of the
parties thereto, with a counterpart or a conformed copy for each Lender,
(iv) each of the Mortgage Amendments, each executed and delivered by a
duly authorized officer of the party thereto, with a counterpart or a
conformed copy for each Lender, (v) each Canadian Collateral Document
listed on Schedule 4, executed and delivered by a duly authorized officer
of the parties thereto, with a counterpart or a conformed copy for each
Lender and (vi) the Intercreditor Agreement, executed and delivered by a
duly authorized officer of the parties thereto.
(b) Payment of Indebtedness under Existing Credit Agreement and
Termination of Commitments. The Commitments (as defined in the Existing
Credit Agreement) under the Existing Credit Agreement shall have been
terminated and all Indebtedness of the Borrowers thereunder, including all
principal, interest and fees accrued to the Closing Date (including, but
not limited to, any prepayment premium payable in connection with the
prepayment of the Tranche B Term Loans and Tranche C Term Loans (each as
defined in the Existing Credit Agreement)), but excluding reimbursement
obligations in respect of the Existing Acceptances and the Existing Letter
of Credit, shall have been repaid in full. The indemnity agreement
described in the second sentence of Section 5.1(a) shall have been
executed and delivered by The Toronto-Dominion Bank and the Existing
Acceptance Lenders. All reimbursement obligations in respect of the
Specified Acceptances shall have been paid in full and the Specified
Acceptances shall have been cancelled.
(c) Exchange Offer, Merger, etc. The following transactions shall
have been consummated (and the General Administrative Agent shall have
received a certificate of the Company to such effect, accompanied by
copies of any documentary evidence thereof reasonably requested by the
General Administrative Agent):
(i) all conditions precedent to the consummation of the
Exchange Offer set forth in the Exchange Offer Documents shall have
been satisfied or waived with the Required Lenders' consent and the
number of Target Shares being validly tendered for exchange in the
Exchange Offer and not properly withdrawn prior to the expiration of
the Exchange Offer, together with the Target Shares owned by
Holdings and its Subsidiaries, shall represent no less than the
minimum number of Target Shares (the "Minimum Number of Shares"),
determined on a fully diluted basis after giving effect to the
exercise of any uncancelled warrants, rights, options, conversion
privileges or similar rights (other than the Target Rights),
necessary under Wisconsin law and the articles of incorporation and
bylaws of Safety-Kleen to have sufficient voting power in
Safety-Kleen to approve the Merger independently of the votes of any
other Safety-Kleen shareholders;
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(ii) since the date of this Agreement, the terms of the
Exchange Offer shall not have been amended, waived or modified as to
price, consideration, conditions, termination or expiration or in
any other material respect without the prior approval of the General
Administrative Agent;
(iii) there shall be no legal impediments to the Merger that
are not within the control of Holdings to overcome;
(iv) all actions shall have been taken so that the provisions
of Section 180.1141 of the Wisconsin Business Corporation Law shall
be inapplicable to the Exchange Offer and the Merger, and no other
"fair price", "moratorium", "business combination", "control share
acquisition" or other form of anti-takeover statute, regulation,
charter or by-law provision, is or shall become applicable which
would cause or could reasonably be expected to cause any material
adverse consequences to Acquisition Corp., Holdings, the Borrowers,
Safety-Kleen or the Exchange Offer or Merger;
(v) Safety-Kleen and its Board of Directors shall have taken
all necessary action to amend the Rights Agreement, dated as of
November 9, 1988 (as amended, the "Rights Agreement") to provide for
the redemption or annulment or inapplicability (without any
substantial cost) of all interests outstanding under or issued
pursuant to the Rights Agreement and to otherwise avoid the
occurrence of any material adverse consequences to Acquisition Corp.
or Safety-Kleen as a consequence of the Exchange Offer or the
Merger;
(vi) Holdings, Acquisition Corp. and Safety-Kleen shall have
entered into a definitive Merger Agreement and related documentation
providing for the Merger in form and substance satisfactory to the
General Administrative Agent;
(vii) all regulatory approvals (including, without limitation,
all such approvals with respect to antitrust matters) necessary to
consummate the Exchange Offer shall have been obtained, all
applicable waiting periods shall have expired and the General
Administrative Agent shall be satisfied that all material regulatory
approvals necessary to consummate the Merger have been obtained or
can be timely obtained;
(viii) there shall be no order, injunction or restraining
order in effect or known by the Company to be threatened which would
prevent or delay the consummation of, or impose material adverse
conditions on, the Exchange Offer or the Merger. There shall not
exist any pending or threatened litigation which, in the good faith
judgment of the General Administrative Agent, could reasonably be
expected to have a Material Adverse Effect or a material adverse
effect on the ability of Holdings or Acquisition Corp. to consummate
the Exchange Offer or on the ability of Holdings or Acquisition
Corp. to consummate the Merger or to perform any material obligation
contemplated
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hereby or thereby or on the General Administrative Agent's and
Lenders' rights and remedies;
(ix) neither Safety-Kleen nor any of its subsidiaries shall
have taken, or be taking, any action (including any reorganization,
recapitalization, asset sale, stock purchase or distribution to its
stockholders) that, in the good faith judgment of the General
Administrative Agent, could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
business, operations, assets or prospects of Safety-Kleen or its
subsidiaries or on the consummation of the Exchange Offer or the
Merger. In the good faith judgment of the General Administrative
Agent, no material adverse change shall have otherwise occurred in
the condition (financial or otherwise), business, operations, assets
or prospects of (A) Holdings and its Subsidiaries since the date of
the audited financial statements of Holdings dated August 31, 1997
or (B) Safety-Kleen and its Subsidiaries since the date of the
audited financial statements of Safety-Kleen dated December 31,
1996; and
(x) the capital and legal structure of each Loan Party after
the Safety-Kleen Acquisition as proposed to be consummated pursuant
to the Exchange Offer Documentation and the Merger Agreement shall
be satisfactory in all respects; and
(xi) all actions required under Safety-Kleen's existing credit
facility shall have been taken such that the consummation of the
Exchange Offer does not constitute a default, or an event of
mandatory prepayment, thereunder.
(d) Regulations of Board; Forms G-3 and U-1. The Lenders shall be
satisfied that the Exchange Offer and the financing thereof comply with
Regulation T, U and X of the Board. Each Lender shall have received a duly
completed and executed Form FR G-3 or Form FR U-1, as applicable, of the
Board, demonstrating such compliance.
(e) Pledged Stock; Stock Powers. The General Administrative Agent or
the Exchange Agent shall have received the certificates representing the
Target Shares pledged pursuant to the Acquisition Corp. Pledge Agreement
(other than such Shares constituting Book-Entry Shares (as defined in the
Acquisition Corp. Pledge Agreement)), together with an undated stock power
for each such certificate executed in blank by a duly authorized officer
of Acquisition Corp., and with respect to Target Shares consisting of
Book-Entry Shares, evidence that all actions described in Section 3(b) of
the Acquisition Corp. Pledge Agreement which are necessary to create and
perfect the security interests pursuant to the Acquisition Corp. Pledge
Agreement in accordance with Article 8 of the Uniform Commercial Code of
the State of New York have been taken. The shares pledged on the Closing
Date pursuant to the Acquisition Corp. Pledge Agreement shall constitute
all Shares owned by Acquisition Corp. or any of its affiliates, whether
acquired in the Exchange Offer or otherwise.
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(f) Exchange Offer Documents; Merger Agreement. The General
Administrative Agent shall have received certified true copies of the
Exchange Offer Documents and the Merger Agreement, in each case as in
effect on the Closing Date.
(g) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) the audited
consolidated financial statements described in Section 7.1 and (iii)
unaudited interim consolidated financial statements of Holdings for the
most recent fiscal quarterly period ended subsequent to the date of the
latest applicable financial statement delivered pursuant to clause (ii) of
this paragraph as to which such financial statements have been made
publicly available.
(h) Business Plan. The Lenders shall have received a business plan
for the Company and its Subsidiaries (including Safety-Kleen) for the 1998
fiscal year and a written analysis of the business and prospects of the
Company and its Subsidiaries for the period from the Closing Date through
the final maturity of the Term Loans, in each case as set forth in the
Confidential Information Memorandum dated February 1998.
(i) Environmental Reports. The General Administrative Agent shall
have received reports prepared by Dames & Xxxxx with respect to
environmental matters relating to Safety-Kleen, in form and substance
satisfactory to the Lenders.
(j) Closing Certificate. The Administrative Agents shall have
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit I,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agents, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of such party.
(k) Fees. The Administrative Agents and the Arranger shall have
received the fees to be received on the Closing Date referred to in
Sections 3.3 and 6.1.
(l) Legal Opinions. The Administrative Agents shall have received,
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Katten, Muchin & Zavis, U.S.
counsel to the Company and the other Loan Parties, in form and
substance reasonably satisfactory to the General Administrative
Agent;
(ii) the executed legal opinion of Xxxx X. Xxxxxx, general
counsel to Xxxxxxx, the Canadian Borrower and its Subsidiaries, in
form and substance reasonably satisfactory to the General
Administrative Agent;
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(iii) the executed legal opinion of Tory Xxxx XxxXxxxxxxx &
Binnington, Canadian counsel to the Lenders, in form and substance
reasonably satisfactory to the General Administrative Agent; and
(iv) the executed legal opinion of South Carolina counsel to
the Company and the other Loan Parties, in form and substance
reasonably satisfactory to the General Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agents
may reasonably require.
(m) Validity of Liens. The Security Documents shall be effective to
create in favor of the General Administrative Agent or Canadian
Administrative Agent, as the case may be, a legal, valid and enforceable
first (except for prior Liens not prohibited by Section 10.3) security
interest in and lien upon the Collateral. The General Administrative Agent
shall have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
form UCC-1, necessary or, in the opinion of the General Administrative
Agent, desirable to perfect the Liens created by the Security Documents
shall have been completed.
(n) Title Insurance Policy. The General Administrative Agent shall
have received in respect of each parcel covered by each Existing Mortgage
a mortgagee's title policy (or policies) or marked up unconditional binder
for such insurance dated the Closing Date. Each such policy shall (i) be
in an amount satisfactory to the General Administrative Agent; (ii) be
issued at ordinary rates; (iii) insure that the Mortgage insured thereby
creates a valid first Lien on such parcel free and clear of all defects
and encumbrances, except such as may be approved by the General
Administrative Agent; (iv) name the General Administrative Agent for the
benefit of the Lenders as the insured thereunder; (v) be in the form of
ALTA Loan Policy - 1970 (Amended 10/17/70); (vi) contain such endorsements
and affirmative coverage as the General Administrative Agent may request
and (vii) be issued by title companies satisfactory to the General
Administrative Agent (including any such title companies acting as
co-insurers or reinsurers, at the option of the General Administrative
Agent). The General Administrative Agent shall have received evidence
satisfactory to it that all premiums in respect of each such policy, and
all charges for mortgage recording tax, if any, have been paid.
(o) Copies of Documents. The General Administrative Agent shall have
received a copy of all recorded documents referred to, or listed as
exceptions to title in, the title policy or policies referred to in
Section 8.1(n) and a copy, certified by such parties as the General
Administrative Agent may deem appropriate, of all other documents
affecting the property covered by each Mortgage.
(p) Lien Searches. The General Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
General Administrative
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Agent, of the Uniform Commercial Code, judgement and tax lien filings
which may have been filed with respect to personal property of the Loan
Parties, and the results of such search shall be satisfactory to the
General Administrative Agent.
(q) Insurance. The General Administrative Agent shall have received
evidence in form and substance satisfactory to it that all of the
requirements of Section 9.5 of this Agreement and Section 5.3 of the
Guarantee and Collateral Agreement shall have been satisfied.
8.2 Conditions to Extensions of Credit made on the Merger Date. The
agreement of each Lender to make Extensions of Credit on the Merger Date
requested to be made by it is subject to the satisfaction, immediately prior to
or concurrently with the making of such Extension of Credit on the Merger Date,
of the following conditions precedent:
(a) Merger Agreement. (i) The terms and conditions of the
Merger Agreement shall not have been amended, waived or modified as
to price, consideration, conditions, termination or expiration or in
any other material respect without the prior approval of the General
Administrative Agent and the Required Lenders;
(ii) the Merger shall have been consummated in
accordance with the Merger Agreement and applicable law; and
(iii) all conditions precedent to the consummation of
the Merger shall have been satisfied or waived with the
Required Lenders' consent.
(b) Solvency Certificate. The General Administrative Agent
shall have received a solvency certificate of the Company, in form,
scope and substance satisfactory to the General Administrative Agent
and its legal counsel.
(c) Collateral. All actions required by Section 9.10 in
respect of all Subsidiaries and assets acquired on the Merger Date
(including delivery of legal opinions with respect thereto as
provided in Section 9.10) shall have been taken so that on the
Merger Date the General Administrative Agent shall have a duly
perfected first priority security interest in all such assets.
(d) Legal Opinions. The Administrative Agents shall have
received, with a counterpart for each Lender, the executed legal
opinion of Katten, Muchin & Zavis, U.S. counsel to the Company and
the other Loan Parties, in form and substance reasonably
satisfactory to the General Administrative Agent. Such legal opinion
shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agents may
reasonably require.
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(e) Lien Searches. The General Administrative Agent shall have
received the results of a recent search by a Person satisfactory to
the General Administrative Agent, of the Uniform Commercial Code,
judgement and tax lien filings which may have been filed with
respect to personal property of Safety-Kleen and its Subsidiaries,
and the results of such search shall be satisfactory to the General
Administrative Agent.
(f) Insurance. The General Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
of the requirements of Section 9.5 of this Agreement and Section 5.3
of the Guarantee and Collateral Agreement shall have been satisfied
with respect to the Surviving Corporation and its Subsidiaries.
(g) all outstanding indebtedness of Safety-Kleen and its
subsidiaries (other than the indebtedness set forth on Schedule
8.2(g) hereto) shall have been repaid in full.
8.3 Conditions to Extension of Credit. The agreement of each Lender
to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement, the other Loan Documents and
the Merger Agreement shall be satisfactory in form and substance to the
General Administrative Agent, and the General Administrative Agent shall
have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or thereby
as it shall reasonably request.
Each request by a Borrower for an Extension of Credit hereunder shall constitute
a representation and warranty by each Borrower as of the date thereof that the
conditions contained in this subsection have been satisfied.
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SECTION 9. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan, Reimbursement Obligation, Acceptance Reimbursement Obligation,
Acceptance Note or Letter of Credit remains outstanding or any amount is owing
to any Lender, the General Administrative Agent or the Canadian Administrative
Agent hereunder or under any other Loan Document, the Company shall and (except
in the case of delivery of financial information, reports and notices) shall
cause each of its Subsidiaries to:
9.1 Financial Statements. Furnish to the General Administrative
Agent, the Canadian Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Holdings, a copy of the consolidated and
consolidating balance sheets of Holdings and its consolidated Subsidiaries
as at the end of such year and the related consolidated and consolidating
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on (in the case of such consolidated statements
and balance sheet) without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
Coopers & Xxxxxxx or other independent certified public accountants of
nationally recognized standing, and certified (in the case of such
consolidating statements and balance sheet) by a Responsible Officer as
being fairly stated in all material respects; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Holdings, the unaudited consolidated and consolidating balance
sheets of Holdings and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated and consolidating
statements of income and retained earnings and of cash flows of Holdings
and its consolidated Subsidiaries for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
9.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 9.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor
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no knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 9.1(a) and (b), (i) a certificate of a Responsible
Officer stating that, to the best of such Responsible Officer's knowledge,
during such period the Company has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate and (ii) a compliance certificate of a Responsible Officer
containing all information necessary, or reasonably requested by the
General Administrative Agent, for determining compliance by the Company
and its Subsidiaries with the provisions of Section 10 of this Agreement
as of the last day of the fiscal quarter or fiscal year of the Company, as
the case may be;
(c) prior to the end of each fiscal year of the Company, a copy of
the projections by the Company of the operating budget and cash flow
budget of the Company and its Subsidiaries for the succeeding fiscal year,
such projections to be accompanied by a certificate of a Responsible
Officer to the effect that such projections have been prepared on the
basis of sound financial planning practice and that such Responsible
Officer has no reason to believe they are incorrect or misleading in any
material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Company or Holdings sends to
its stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Company or Holdings may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority (including, but not limited
to, each Exchange Offer Document); and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
9.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be.
9.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to Section 10.5; comply with all Contractual
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Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, have a Material Adverse Effect.
9.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business (including, but not limited to, general liability insurance in
an amount of at least $100,000,000 and a deductible of not more than $5,000,000
per occurrence).
9.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Administrative Agents (or, with the coordination of the
Administrative Agents, the Lenders) to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Company and its Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants.
9.7 Notices. Promptly give notice to the Administrative Agents and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Company or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan;
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(e) the occurrence or expected occurrence of any event that is
reasonably likely to result in the Company or any of its Subsidiaries
being unable to obtain, renew, or comply with any Environmental Permit the
absence of which could have a Material Adverse Effect, or being unable to
comply with any Environmental Law in a manner that could have a Material
Adverse Effect; and
(f) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the Company
and its Subsidiaries taken as a whole.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
9.8 Environmental Laws. (a) (i) Comply with all Environmental Laws
applicable to it, and obtain, comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (ii) take
all reasonable efforts to ensure that all of its tenants, subtenants,
contractors, subcontractors, and invitees comply with all Environmental Laws,
and obtain, comply with and maintain any and all Environmental Permits,
applicable to any of them insofar as any failure to so comply, obtain or
maintain reasonably could adversely affect the Company or any Subsidiary. For
purposes of this Section 9.8(a), noncompliance by the Company and any of its
Subsidiaries with any applicable Environmental Law or Environmental Permit shall
be deemed not to constitute a breach of this covenant; provided that, upon
learning of any actual or suspected noncompliance, the Company and its
Subsidiaries shall promptly undertake all reasonable efforts to achieve
compliance; and provided further that, in any case, such non-compliance, and any
other noncompliance with any Environmental Law, individually or in the
aggregate, could not reasonably be expected to give rise to a Material Adverse
Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than such orders
and directives as to which an appeal has been timely and properly taken in good
faith and provided that the pendency of any and all such appeals does not give
rise to a Material Adverse Effect.
(c) Prior to acquiring any ownership or leasehold interest in real
property for which a permit would be required for operation as a hazardous waste
facility, or any other real property or other interest in any real property that
could reasonably be expected to give rise to the Company or any of its
Subsidiaries being found to be subject to potential liability under any
Environmental Law: (i) obtain a written report by a reputable environmental
consultant of the environmental consultant's assessment of the presence or
potential presence of significant levels of any Materials of Environmental
Concern on, under, in, or about the property, or of other conditions or
operations that could give rise to potentially significant liability under or
violations of Environmental Law relating to such acquisition; and (ii) inform
the General Administrative Agent of its plans to acquire such interest in real
property and, upon the General Administrative Agent's request, afford the
General Administrative Agent a reasonable opportunity to review and discuss the
contents of such report with the
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environmental consultant who prepared it and a knowledgeable representative of
the Company.
(d) Promptly upon the General Administrative Agent's request if
there has been an Event of Default which has not been fully and timely cured,
permit an environmental consultant whom the General Administrative Agent in its
discretion designates to perform an environmental assessment (including, without
limitation: reviewing documents; interviewing knowledgeable persons; and
sampling and analyzing soil, air, surface water, groundwater, building
materials, and/or other media or substances) in or about property owned or
leased by the Company or any of its Subsidiaries, or on which operations of the
Company or any of its Subsidiaries otherwise take place. Such environmental
assessment shall be in form, scope, and substance satisfactory to the General
Administrative Agent. The Company and its Subsidiaries shall cooperate fully in
the conduct of such environmental assessment, and shall pay the costs of such
environmental assessment immediately upon written demand by the General
Administrative Agent. Pursuant to this Section 9.8(d), the General
Administrative Agent shall have the right, but shall not have any duty, to
request and/or obtain any such environmental assessment.
9.9 Further Assurances. Upon the request of the General
Administrative Agent, promptly perform or cause to be performed any and all acts
and execute or cause to be executed any and all documents (including, without
limitation, financing statements and continuation statements) for filing under
the provisions of the Uniform Commercial Code or any other Requirement of Law
which are necessary or advisable to maintain in favor of the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
for the benefit of the Lenders, Liens on the Collateral that are duly perfected
in accordance with all applicable Requirements of Law.
9.10 Additional Collateral. (a) With respect to any assets acquired
after the Closing Date by the Company or any of its Subsidiaries (other than
each of ECDC East, L.C., ECDC Services, L.C., Osco Treatment Systems of
Mississippi, Inc., USPCI of Mississippi, Inc., so long as such entity is not,
directly or indirectly, a wholly-owned subsidiary of the Company) that are
intended to be subject to the Lien created by any of the Security Documents but
which are not so subject (other than any assets described in paragraph (b) or
(c) of this Section), promptly (and in any event within 30 days after the
acquisition thereof): (i) execute and deliver to the General Administrative
Agent or the Canadian Administrative Agent, as the case may be, such amendments
to the relevant Security Documents or such other documents as the General
Administrative Agent shall deem necessary or advisable to grant to the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
for the benefit of the Lenders, a Lien on such assets, (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements in such jurisdictions as may be requested by the
General Administrative Agent or the Canadian Administrative Agent, as the case
may be, and (iii) if requested by the General Administrative Agent, deliver to
the General Administrative Agent legal opinions relating to the matters
described in clauses (i) and (ii) immediately preceding,
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which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the General Administrative Agent.
(b) With respect to any Person (other than a Subsidiary of the
Canadian Borrower) that, subsequent to the Closing Date, becomes a Subsidiary,
including, without limitation on the Merger Date, Safety-Kleen and its
Subsidiaries, promptly upon the request of the General Administrative Agent: (i)
execute and deliver to the General Administrative Agent, for the benefit of the
Lenders, a new pledge agreement or such amendments to the Guarantee and
Collateral Agreement as the General Administrative Agent shall deem necessary or
advisable to grant to the General Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the
Company or any of its Subsidiaries, (ii) deliver to the General Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers executed and delivered in blank by a duly authorized officer of the
Company or such Subsidiary, as the case may be, (iii) cause such new Subsidiary
(A) to become a party to the Guarantee and Collateral Agreement, and (B) to take
all actions necessary or advisable to cause the Lien created by the Guarantee
and Collateral Agreement to be duly perfected in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be requested by the General
Administrative Agent and (iv) if requested by the General Administrative Agent,
deliver to the General Administrative Agent legal opinions relating to the
matters described in clauses (i), (ii) and (iii) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the General Administrative Agent.
(c) With respect to any Person that, subsequent to the Closing Date,
becomes a Subsidiary of the Canadian Borrower, promptly upon the request of the
General Administrative Agent: (i) execute and deliver to the Canadian
Administrative Agent a new pledge agreement or such amendments to the Canadian
Collateral Documents as the General Administrative Agent shall deem necessary or
advisable to grant to the Canadian Administrative Agent, for the benefit of the
Canadian Lenders, a Lien on the Capital Stock of such Subsidiary which is owned
by the Canadian Borrower or any of its Subsidiaries, (ii) deliver to the
Canadian Administrative Agent any certificates representing such Capital Stock,
together with undated stock powers executed and delivered in blank by a duly
authorized officer of the Canadian Borrower or such Subsidiary, as the case may
be, and take or cause to be taken all such other actions under the law of the
jurisdiction of organization of such Subsidiary as may be necessary or advisable
to perfect such Lien on such Capital Stock, (iii) cause such Subsidiary to
become a guarantor under the Canadian Collateral Documents and to grant security
interests in its personal property assets and (iv) if requested by the General
Administrative Agent, deliver to the General Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the General Administrative Agent.
(d) With respect to any parcel of real property having a book value
in excess of $1,000,000 acquired by the Company or any of its Subsidiaries after
the Closing Date (including any such real property owned by any Person when it
becomes a Subsidiary), if
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requested by the General Administrative Agent, promptly provide to the General
Administrative Agent a mortgage on such property, together with such title
insurance policies, surveys and legal opinions related thereto as shall be
reasonably requested by the General Administrative Agent.
9.11 Canadian Benefit and Pension Plans. (a) For each existing
Canadian Pension Plan and Canadian Benefit Plan and for any Canadian Pension
Plan or Canadian Benefit Plan hereafter adopted, the Canadian Borrower and its
Subsidiaries shall in a timely fashion perform all obligations (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with such plan and the funding media therefor in
accordance with the terms of such plan and all Requirements of Law.
(b) Each of the Canadian Borrower and its Subsidiaries shall deliver
to the General Administrative Agent (A) if requested by the Canadian
Administrative Agent, acting reasonably, promptly after the filing thereof by
the Canadian Borrower or such Subsidiary with any applicable Governmental
Authority, copies of each annual and other return, report or valuation with
respect to each Canadian Pension Plan, copies of any actuarial report with
respect to each Canadian Pension Plan (whether or not required by any
Governmental Authority) and (B) promptly after receipt thereof, a copy of any
direction, notice or other communication (i) in respect of any breach of
Applicable Law, (ii) which would have the effect of increasing the funding
obligation in respect of each such plan, or (iii) which could result in the
imposition of any Lien on any of the properties or assets of the Canadian
Borrower or such Subsidiary, and any order or ruling that the Canadian Borrower
or such Subsidiary may receive from any applicable Governmental Authority with
respect to any Canadian Pension Plan.
9.12 Interest Rate Protection. Within 90 days after the Closing
Date, obtain interest rate protection for a period through March 31, 2000 for a
notional amount at least equal to 40% of Consolidated Total Funded Debt that
bears interest at a floating rate on terms and conditions satisfactory to the
General Administrative Agent.
9.13 Consummation of Merger. As promptly as practicable, but in any
event within 60 days after the Closing Date, consummate the Merger in accordance
with the terms of the Merger Agreement.
9.14 Pledge Agreement Supplement. The Company shall cause
Acquisition Corp. to deliver to the General Administrative Agent on the date of
purchase an executed Pledge Agreement Supplement, substantially in the form of
Exhibit A to the Acquisition Corp. Pledge Agreement (a "Pledge Agreement
Supplement"), covering any Additional Pledged Stock (as defined in the
Acquisition Corp. Pledge Agreement) purchased by Acquisition Corp., together
with the stock certificates representing such Additional Pledged Stock and
appropriate undated stock powers duly executed in blank for each such stock
certificate.
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SECTION 10. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan, Reimbursement Obligation, Acceptance Reimbursement Obligation,
Acceptance Note or Letter of Credit remains outstanding or any amount is owing
to any Lender or either Administrative Agent hereunder or under any other Loan
Document, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly:
10.1 Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as at the last day of any fiscal quarter of the Company ending
during any fiscal year set forth below, commencing with the fiscal quarter
ending November 30, 1998, to exceed the ratio set forth below opposite such
fiscal year:
Consolidated Total
Fiscal Year Leverage Ratio
----------- --------------
1999 4.50:1.00
2000 3.75:1.00
2001 3.25:1.00
2002 2.75:1.00
2003 2.50:1.00
2004 and thereafter 2.00:1.00
(b) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage
Ratio as at the last day of any fiscal quarter ending during any fiscal year set
forth below, commencing with the fiscal quarter ending November 30, 1998, to be
less than the ratio set forth below opposite such fiscal year:
Fixed
Fiscal Year Charge Coverage Ratio
----------- ---------------------
1999 1.25:1.00
2000 1.25:1.00
2001 and thereafter 1.50:1.00
(c) Interest Coverage Ratio. Permit the Interest Coverage Ratio for
any period of four consecutive fiscal quarters of the Company (or, if less, the
number of full fiscal quarters ending subsequent to the Closing Date) ending
with any fiscal quarter ending during any fiscal year set forth below,
commencing with the fiscal quarter ending November 30, 1998, to be less than the
ratio set forth below opposite such fiscal year:
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Interest
Fiscal Year Coverage Ratio
----------- --------------
1999 2.00:1.00
2000 2.25:1.00
2001 2.50:1.00
2002 2.75:1.00
2003 and thereafter 3.00:1.00
(d) Maximum Ratio of Contingent Obligations to Operating Cash Flow.
Permit the ratio of (i) Consolidated Contingent Obligations on the last day of
any fiscal quarter ending during any fiscal year, commencing with the fiscal
quarter ending November 30, 1998, to (ii) Consolidated Operating Cash Flow for
the period of four consecutive fiscal quarters ending on such last day to be
greater than 1.00 to 1.00.
For purposes of calculating the foregoing covenants of this Section 10.1 for any
period of four full fiscal quarters, the applicable income statement items for
any Person acquired by the Company or its Subsidiaries during such period shall
be included on a pro forma basis for such period of four full fiscal quarters
(assuming the consummation of each such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the first day
of such period of four full fiscal quarters and assuming only such cost
reductions as are related to such acquisition and are immediately realizable as
of the date of such acquisition) if (i) the consolidated balance sheet of such
acquired Person and its consolidated Subsidiaries as at the end of the period
preceding the acquisition of such Person and the related consolidated statements
of income and stockholders' equity and of cash flows for such period have been
reported on without a qualification arising out of the scope of the audit (other
than a "going concern" or like qualification or exception) by independent
certified public accountants of nationally recognized standing and (ii) such
audited consolidated financial statements have been previously provided to the
General Administrative Agent and the Lenders.
10.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrowers under this Agreement;
(b) Indebtedness of the Company to any Subsidiary and, to the extent
permitted by Section 10.8, of any Subsidiary to the Company or any other
Subsidiary;
(c) Indebtedness of the Company and any of its Subsidiaries incurred
to finance the acquisition of fixed or capital assets (whether pursuant to
a loan, a Financing Lease or otherwise) in an aggregate principal amount
not exceeding as to the Company and its Subsidiaries $40,000,000 at any
one time outstanding;
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(d) Indebtedness of the Canadian Borrower under the Canadian
Operating Facility incurred for working capital purposes in an aggregate
principal amount not exceeding C$35,000,000 at any one time outstanding;
(e) Indebtedness of the Company under the NationsBank Line of Credit
incurred for working capital purposes in an aggregate principal amount not
exceeding $25,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof and listed on
Schedule 10.2(f) and any refinancings, refundings, renewals or extensions
thereof (excluding any Indebtedness required to be repaid pursuant to
Section 8.2(g));
(g) Indebtedness of a corporation which becomes a Subsidiary after
the date hereof, provided that (i) such indebtedness existed at the time
such corporation became a Subsidiary and was not created in anticipation
thereof and (ii) immediately after giving effect to the acquisition of
such corporation by the Company no Default or Event of Default shall have
occurred and be continuing;
(h) Indebtedness of the Company of up to $400,000,000 under the High
Yield Notes, provided that the Borrowers and the General Administrative
Agent shall have entered into a written supplement to this Agreement
whereby the Company agrees to maintain a senior leverage ratio of not
greater than certain levels to be agreed by the Company and the General
Administrative Agent;
(i) Indebtedness in the form of Guarantee Obligations permitted by
Section 10.4; and
(j) additional Indebtedness of the Company not exceeding $50,000,000
in aggregate principal amount at any one time outstanding.
10.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
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(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
10.3(f), securing Indebtedness permitted by Section 10.2(f), provided that
no such Lien is spread to cover any additional property after the Closing
Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Company and its Subsidiaries
permitted by Section 10.2(c) incurred to finance the acquisition of fixed
or capital assets, provided that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
90% of the original purchase price of such property at the time it was
acquired;
(h) Liens on assets of any Foreign Subsidiary securing Indebtedness
of such Foreign Subsidiary permitted by Section 10.2(f);
(i) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof securing Indebtedness permitted by
Section 10.2(g), provided that (i) such Liens existed at the time such
corporation became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or assets
of such corporation after the time such corporation becomes a Subsidiary,
and (iii) the amount of Indebtedness secured thereby is not increased;
(j) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Subsidiaries)
$5,000,000 in aggregate amount at any time outstanding; and
(k) Liens created pursuant to the Security Documents.
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10.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 10.4;
(b) Guarantee Obligations of the Company or any of its Subsidiaries
in respect of Indebtedness and other obligations of Subsidiaries which are
permitted to be incurred by such Subsidiaries hereunder, provided that
such Guarantee Obligations shall be deemed "investments" and must be
permitted under Section 10.8;
(c) Guarantee Obligations in respect of, or in the nature of,
performance bonds or performance letters of credit or similar obligations
incurred in the ordinary course of business;
(d) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed (i) $75,000,000 at any one time outstanding
for the Company and its Domestic Subsidiaries and (ii) $25,000,000 at any
one time outstanding for the Company's Foreign Subsidiaries;
(e) the Guarantee Obligations of Subsidiaries in respect of the High
Yield Notes, provided that such Guarantee Obligations are subordinated to
the obligations of the Subsidiaries under the Loan Documents to the same
extent as the Company's obligations under the High Yield Notes are
subordinated to the Company's obligations under the Loan Documents; and
(f) the Guarantee Obligations under this Agreement or any Security
Document.
10.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Company (other than the Canadian Borrower)
may be merged or consolidated with or into the Company (provided that the
Company shall be the continuing or surviving corporation) or with or into
any one or more wholly owned Subsidiaries of the Company (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) any wholly owned Subsidiary (other than the Canadian Borrower)
may sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Company or any other
wholly owned Subsidiary of the Company;
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(c) the Merger may be consummated in accordance with the terms of
the Merger Agreement; and
(d) the dissolution of Corsan Trucking, Inc.
10.6 Limitation on Disposition of Assets. Dispose of any of its
property, business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in the case
of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock
to any Person other than the Company or any wholly owned Subsidiary, except:
(a) the sale or other Disposition of obsolete or worn out property
in the ordinary course of business;
(b) the sale or other Disposition of any property (other than
inventory), provided that the aggregate book value of all assets so sold
or disposed of in any period of twelve consecutive months shall not exceed
5% of consolidated total assets of the Company and its Subsidiaries as at
the beginning of such twelve-month period;
(c) the sale of inventory in the ordinary course of business;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(e) after the consummation of the Merger, the sale of Safety-Kleen's
European operations for fair market value;
(f) after the consummation of the Merger, the sale of Safety-Kleen's
oil recovery services business for fair market value; and
(g) as permitted by Section 10.5(b).
10.7 Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Company or any of its Subsidiaries or any warrants or options to purchase
any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "Restricted
Payments"), except that any Subsidiary may make Restricted Payments to the
Company or any wholly owned Subsidiary of the Company and so long as, on the
date of such Restricted Payment, both before and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (a) the
Company may make Restricted Payments to Holdings to service the Seller Note, the
Westinghouse Debt, the CPCFA Debt
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and the Tooele County Debt, provided that (i) each such Restricted Payment shall
be made on the date on which a cash payment of interest under the Seller Note or
of principal or interest under the Westinghouse Debt, the CPCFA Debt or the
Tooele County Debt, as the case may be, is due and shall be in an amount not
greater than the amount of such cash payment, and such cash payment in respect
of such Indebtedness shall be made by Holdings on such date and (b) the Company
may make Restricted Payments to Holdings to provide for payment in the ordinary
course of business of taxes, directors' fees, stock exchange fees, and other
costs and expenses of its operations as a public company permitted by the
Guarantee and Collateral Agreement.
10.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) acquisitions of interests in any Persons (other than
Safety-Kleen) engaged in the hazardous and industrial waste management
services industry, provided that (i) the aggregate amount of cash expended
and Indebtedness assumed in connection with all such investments does not
exceed $100,000,000 in the aggregate during the twelve month period
following the Closing Date or $200,000,000 in the aggregate during the
term of this Agreement and (ii) after giving pro forma effect to any such
investment, no Default or Event of Default shall have occurred and be
continuing (including, without limitation, pursuant to Section 10.1, with
compliance with Section 10.1 being determined on a pro forma basis as
determined in the manner described in the last paragraph of Section 10.1);
(d) loans to officers of the Company listed on Schedule 10.8 in
aggregate principal amounts outstanding not to exceed the respective
amounts set forth for such officers on said Schedule;
(e) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Company and its
Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(f) investments by the Company and its Subsidiaries in the
Subsidiaries of the Company that are parties to the Guarantee and
Collateral Agreement;
(g) investments by the Company and its Domestic Subsidiaries in the
Canadian Borrower, the proceeds of which are used solely to repay the
Canadian Borrower Obligations, and additional investments by the Company
and its Domestic
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Subsidiaries in the Canadian Borrower in an amount not exceeding
$15,000,000 in the aggregate during the term of this Agreement;
(h) investments by the Canadian Borrower in any of its Subsidiaries
that have guaranteed the Canadian Borrower Obligations;
(i) loans by the Company to its employees in connection with
management incentive plans in an aggregate amount not to exceed
$1,000,000;
(j) acquisitions of interests in Safety-Kleen pursuant to the
Exchange Offer and the Merger; and
(k) the loan made by the Company on the date hereof to Safety-Kleen
in the principal amount of $46,000,000.
10.9 Limitation on Optional Payments and Modifications of Debt
Instruments and other Instruments. (a) Make any optional payment or prepayment
on or redemption or purchase of any Indebtedness (other than Indebtedness under
this Agreement), (b) amend, modify or change, or consent or agree to any
amendment, modification or change to any of the terms relating to the payment or
prepayment or principal of or interest on any such Indebtedness (other than any
such amendment, modification or change which would extend the maturity or reduce
the amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), (c) amend the subordination
provisions of the Seller Note or the High Yield Notes, if any, or (d) amend,
modify or change in any material respect the terms of the Exchange Offer or the
Merger Agreement.
10.10 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Company's or such Subsidiary's business and (c) upon fair
and reasonable terms no less favorable to the Company or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate.
10.11 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Company or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Company or such Subsidiary, except for any such
arrangements with respect to real or personal property with respect to which the
aggregate sales price shall not exceed $25,000,000.
10.12 Limitation on Changes in Fiscal Year. Permit the fiscal year
of the Company to end on a day other than August 31, unless the Company shall
have provided to the General Administrative Agent evidence satisfactory to it
that such change will have no
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effect on the calculation of, or compliance by the Company with, the covenants
set forth in Section 10.1; or permit the fiscal years of the Company and
Holdings to end on different days.
10.13 Limitation on Negative Pledge Clauses. Enter into with any
Person any agreement, other than (a) this Agreement and (b) any industrial
revenue bonds, purchase money mortgages or Financing Leases permitted by this
Agreement (in which cases, any prohibition or limitation shall only be effective
against the assets financed thereby), which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
10.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Company and its Subsidiaries, and Safety-Kleen and its Subsidiaries, are
engaged on the date of this Agreement or which are directly related thereto.
10.15 Canadian Benefit and Pension Plans. Permit the Canadian
Borrower or any of its Subsidiaries to directly, or indirectly, (a) terminate or
cause to terminate, in whole or in part, or initiate the termination of, in
whole or in part, any Canadian Pension Plan so as to result in any liability to
any of them which could have a Material Adverse Effect, (b) permit to exist any
event or condition in respect of any Canadian Pension Plan which presents the
risk of liability of the Canadian Borrower or any of its Subsidiaries which
could have a Material Adverse Effect, (c) enter into any new Canadian Pension
Plan or Canadian Benefit Plan or modify any such existing plans so as to
increase its obligations thereunder which could result in any liability to any
of them and which could have a Material Adverse Effect; (d) permit the greater
of the going concern unfunded liability or the solvency deficiency under
Canadian Pension Plans, but only to the extent they are permitted to remain
unfunded under Requirements of Law, to exceed (in the aggregate, taking into
account all Canadian Pension Plans of the Canadian Borrower and its
Subsidiaries) C$5,000,000, (e) fail to make minimum required contributions to
amortize any funding deficiencies under a Canadian Pension Plan within the time
period set out in any Requirements of Law, (f) fail to make a required
contribution under any Canadian Pension Plan or Canadian Benefit Plan which
could result in the imposition of a Lien upon the assets of any of the Canadian
Borrower or any of its Subsidiaries within 30 days after the date such payment
becomes due, unless such payment is being contested pursuant to Section 9.3; (g)
make any improper withdrawals or applications of assets of a Canadian Pension
Plan or Canadian Benefit Plan or (h) accept payment of any amount from any
Canadian Pension Plan.
10.16 Hedging Agreements. Enter into any Hedging Agreement outside
the ordinary course of business or for speculative purposes.
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SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or either Borrower
shall fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by either
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Company or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 10 of this
Agreement or Section 5 of the Guarantee and Collateral Agreement, or
Acquisition Corp. shall default in the observance or performance of any
agreement contained in the Acquisition Corp. Pledge Agreement; or
(d) The Company or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days; or
(e) Holdings, the Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness
(other than the Loans) or in the payment of any Guarantee Obligation,
beyond the period of grace (not to exceed 30 days), if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
of Default shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any default
or other event or condition referred to in this paragraph shall have
occurred shall be equal to at least $15,000,000; or
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(f) (i) Holdings, the Company or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or Holdings, the Company or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against Holdings, the Company or any of its Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against Holdings, the Company or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Holdings,
the Company or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
Holdings, the Company or any of its Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Company or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully
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covered by insurance) of $15,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or either Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert or (ii)
the Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(j) The Guarantee and Collateral Agreement shall cease, for any
reason, to be in full force and effect or any Guarantor shall so assert;
or
(k) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Company or the Canadian Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement (including, without limitation,
all Acceptance Reimbursement Obligations, regardless of whether or not such
Acceptance Reimbursement Obligations are then due and payable) and the other
Loan Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall immediately become due
and payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Majority
Facility Lenders under the Revolving Credit Facility, the General Administrative
Agent may, or upon the request of the Majority Facility Lenders under the
Revolving Credit Facility, the General Administrative Agent shall, by notice to
the Company declare the Revolving Credit Commitments to be terminated forthwith,
whereupon such commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the General Administrative Agent may, or upon
the request of the Required Lenders, the General Administrative Agent shall, by
notice to the Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder, and all Acceptance Reimbursement Obligations, regardless of
whether or not such Acceptance Reimbursement Obligations are then due and
payable) and the other Loan Documents to be due and payable forthwith, whereupon
the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Company shall at such time deposit in a
cash collateral account opened by the General Administrative Agent an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied by the
General Administrative Agent to the payment of drafts drawn under such
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Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Company hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Company hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Company (or such other Person as may be
lawfully entitled thereto).
With respect to all outstanding Acceptance Reimbursement Obligations
in respect of Acceptances which have not matured at the time of an acceleration
pursuant to the paragraph above, the Canadian Borrower shall at such time
deposit in a cash collateral account opened by and maintained by the Canadian
Administrative Agent an amount equal to the aggregate undiscounted face amount
of all such unmatured Acceptances. Amounts held in such cash collateral account
shall be applied by the Canadian Administrative Agent to the payment of maturing
Acceptances, and any balance in such account shall be applied to repay other
obligations of the Canadian Borrower hereunder and under any Notes. After all
Acceptance Reimbursement Obligations shall have been satisfied and all other
obligations of the Canadian Borrower hereunder and under any Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Canadian Borrower.
Except as otherwise expressly provided above in this Section 11, the
Borrowers waive presentment, demand, protest or other notice of any kind.
SECTION 12. THE ADMINISTRATIVE AGENTS; OTHERS
12.1 Appointment. Each Lender hereby irrevocably designates and
appoints Toronto Dominion (Texas), Inc. as the General Administrative Agent and
The Toronto-Dominion Bank as the Canadian Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the General Administrative Agent and the Canadian
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the General Administrative
Agent and the Canadian Administrative Agent, respectively, by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agents shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
Each Issuing Lender shall act on behalf of the Lenders with respect
to Letters of Credit issued by it under this Agreement and the documents
associated therewith. It is understood and agreed that each Issuing Lender (a)
shall have all of the benefits and immunities (i) provided to an Administrative
Agent in this Section 12 with respect to acts
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taken or omissions suffered by such Issuing Lender in connection with Letters of
Credit issued by it under this Agreement and the documents associated therewith
as fully as if the term "General Administrative Agent", "Canadian Administrative
Agent" or "Administrative Agent", as used in this Section 12, included such
Issuing Lender with respect to such acts or omissions and (ii) as additionally
provided in this Agreement and (b) shall have all of the benefits of the
provisions of Section 12.7 as fully as if the term "General Administrative
Agent", "Canadian Administrative Agent" or "Administrative Agent", as used in
Section 12.7, included such Issuing Lender.
Each Lender authorizes and directs the Administrative Agents to
execute and deliver the Intercreditor Agreement.
12.2 Delegation of Duties. Each Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither Administrative Agent
shall be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrowers or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by such Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Company to perform its obligations hereunder
or thereunder. Neither Administrative Agent shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of either Borrower.
12.4 Reliance by Administrative Agents. Each Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers),
independent accountants and other experts selected by such Administrative Agent.
Each Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Administrative Agent. Each
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or Majority Facility
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Lenders, as applicable, as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. Each Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, in any case
where this Agreement specifically requires the consent of the Majority Facility
Lenders under any Facility, such Majority Facility Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
12.5 Notice of Default. Neither Administrative Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Administrative Agent has received notice from a Lender or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
an Administrative Agent receives such a notice, such Administrative Agent shall
give notice thereof to the Lenders. Each Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders or Majority Facility Lenders, as applicable;
provided that unless and until the Administrative Agents shall have received
such directions, the Administrative Agents may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
12.6 Non-Reliance on Administrative Agents and Other Lenders. (a)
Each Lender expressly acknowledges that neither Administrative Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
either Administrative Agent hereinafter taken, including any review of the
affairs of the Company or the Canadian Borrower, shall be deemed to constitute
any representation or warranty by such Administrative Agent to any Lender. Each
Lender represents to each Administrative Agent that it has, independently and
without reliance upon such Administrative Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Company and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
either Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Company. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by such Administrative Agent hereunder, each Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Company or the
Canadian
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Borrower which may come into the possession of such Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
(b) For purposes of determining compliance with the conditions
specified in Section 8.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by either Administrative Agent or the
Company to such Lender prior to the Closing Date, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
12.7 Indemnification. The Lenders agree to indemnify each
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Aggregate Commitment Percentages in effect
on the date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from such
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
12.8 Agent in Its Individual Capacity. Each Administrative Agent and
its respective Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrowers as though such Administrative
Agent were not an Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it and with respect to any Letter
of Credit issued or participated in by it, each Administrative Agent shall have
the same rights and powers under this Agreement and the other Loan Documents as
any Lender and may exercise the same as though it were not an Administrative
Agent, and the terms "Lender" and "Lenders" shall include such Administrative
Agent in its individual capacity.
12.9 Successor Agent. Either Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders. If either
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Company), shall succeed to the rights,
powers and duties of such Administrative Agent hereunder. Effective upon such
appointment and approval, the term "General Administrative Agent" or "Canadian
Administrative Agent", as the case may be, shall mean such successor agent, and
such former Administrative Agent's rights, powers and duties as General
Administrative
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Agent or Canadian Administrative Agent, as the case may be, shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Loans. After any retiring Administrative Agent's resignation as an
Administrative Agent, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
12.10 Others. Neither the Arranger, the Syndication Agent nor any
Managing Agent, in such respective capacities, shall have any duties or
responsibilities, or incur any liabilities, under this Agreement or the other
Loan Documents.
SECTION 13. GUARANTEE
13.1 Guarantee. In order to induce the Administrative Agents and the
Lenders to execute and deliver this Agreement and to make or maintain Extensions
of Credit to the Canadian Borrower hereunder, and to induce the Canadian
Operating Facility Lender to enter into the Canadian Operating Facility and to
make loans to the Canadian Borrower thereunder, and in consideration thereof,
the Company hereby unconditionally and irrevocably guarantees to the
Administrative Agents, for the ratable benefit of the Lenders to which Canadian
Borrower Obligations are owed and to the Canadian Operating Facility Lender, the
prompt and complete payment and performance by the Canadian Borrower when due
(whether at stated maturity, by acceleration or otherwise) of the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations,
respectively, and the Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by either Administrative Agent, the
Lenders or the Canadian Operating Facility Lender in enforcing, or obtaining
advice of counsel in respect of, any of their rights under the guarantee
contained in this Section 13. The guarantee contained in this Section 13,
subject to Section 13.5, shall remain in full force and effect until the
Canadian Borrower Obligations and the Canadian Operating Facility Obligations
are paid in full, the Commitments are terminated, no Extensions of Credit are
outstanding and the Canadian Operating Facility is terminated, notwithstanding
that from time to time prior thereto the Canadian Borrower may be free from any
obligations or liabilities under this Agreement or the Canadian Operating
Facility.
The Company agrees that whenever, at any time, or from time to time,
it shall make any payment to the Administrative Agents, any Lender or the
Canadian Operating Facility Lender on account of its liability under this
Section 13, it will notify the Administrative Agents and such lender in writing
that such payment is made under the guarantee contained in this Section 13 for
such purpose. No payment or payments made by the Canadian Borrower or any other
Person or received or collected by either Administrative Agent, any Lender or
the Canadian Operating Facility Lender from the Canadian Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Canadian Borrower Obligations or the Canadian Operating Facility Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
the Company under this Section 13
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which, notwithstanding any such payment or payments, shall remain liable for the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations, as
the case may be, until, subject to Section 13.5, the Canadian Borrower
Obligations are paid in full, the Canadian Term Loan Commitments are terminated
and no Letters of Credit are outstanding, the Canadian Operating Facility
Obligations are paid in full and the Canadian Operating Facility is terminated.
13.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Section 13, the Company hereby
irrevocably waives all rights which may have arisen in connection with the
guarantee contained in this Section 13 to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code (or similar action
under any successor law or under any comparable law), including Section 509
thereof, under common law or otherwise) of the Administrative Agents, any Lender
or the Canadian Operating Facility Lender against the Canadian Borrower or
against either Administrative Agent or any such lender for the payment of the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations,
until all the Canadian Borrower Obligations and Canadian Operating Facility
Obligations shall have been paid in full and each of the Canadian Term Loan
Commitments and the Canadian Operating Facility shall have been terminated. The
Company hereby further irrevocably waives all contractual, common law, statutory
and other rights of reimbursement, contribution, exoneration or indemnity (or
any similar right) from or against the Canadian Borrower or any other Person
which may have arisen in connection with the guarantee contained in this Section
13, until the Canadian Borrower Obligations and the Canadian Operating Facility
Obligations shall have been paid in full and the Canadian Term Loan Commitments
and the Canadian Operating Facility shall have been terminated. So long as the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations
remain outstanding, if any amount shall be paid by or on behalf of the Canadian
Borrower to the Company on account of any of the rights waived in this Section
13.2, such amount shall be held by the Company in trust, segregated from other
funds of the Company, and shall, forthwith upon receipt by the Company, be
turned over to the Canadian Administrative Agent in the exact form received by
the Company (duly indorsed by the Company to the Canadian Administrative Agent,
if required), to be applied against the Canadian Borrower Obligations and the
Canadian Operating Facility Obligations, whether matured or unmatured, in such
order as the Canadian Administrative Agent may determine. The provisions of this
Section 13.2 shall survive the term of the guarantee contained in this Section
13 and the payment in full of the Canadian Borrower Obligations and the Canadian
Operating Facility Obligations and the termination of the Canadian Term Loan
Commitments and the Canadian Operating Facility.
13.3 Amendments, etc. with respect to the Canadian Borrower
Obligations. The Company shall remain obligated under this Section 13
notwithstanding that, without any reservation of rights against the Company, and
without notice to or further assent by the Company, any demand for payment of or
reduction in the principal amount of any of the Canadian Borrower Obligations or
the Canadian Operating Facility Obligations made by either Administrative Agent,
any Lender or the Canadian Operating Facility Lender may be rescinded by such
Administrative Agent or such lender, and any of the Canadian Borrower
Obligations or the Canadian Operating Facility Obligations, as the case may be,
continued,
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and the Canadian Borrower Obligations or the Canadian Operating Facility
Obligations, as the case may be, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by such Administrative Agent, any Lender or the Canadian
Operating Facility Lender, and this Agreement, any other Loan Document, and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Lenders (or
the Required Lenders, as the case may be) may deem advisable (or in the case of
the Canadian Operating Facility Obligations, as the Canadian Operating Facility
Lender may deem advisable) from time to time, and any collateral security,
guarantee or right of offset at any time held by either Administrative Agent,
any Lender or the Canadian Operating Facility for the payment of the Canadian
Borrower Obligations or the Canadian Operating Facility may be sold, exchanged,
waived, surrendered or released. Neither Administrative Agents nor any Lender or
the Canadian Operating Facility Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Canadian Borrower Obligations, the Canadian Operating Facility Obligations or
for the guarantee contained in this Section 13 or any property subject thereto.
13.4 Guarantee Absolute and Unconditional. The Company waives any
and all notice of the creation, renewal, extension or accrual of any of the
Canadian Borrower Obligations or the Canadian Operating Facility Obligations and
notice of or proof of reliance by either Administrative Agent, any Lender or the
Canadian Operating Facility Lender upon the guarantee contained in this Section
13 or acceptance of the guarantee contained in this Section 13; the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 13; and all dealings between the Canadian Borrower or
the Company, on the one hand, and either Administrative Agent, the Lenders
and/or the Canadian Operating Facility Lender, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 13. The Company waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Canadian Borrower or the Company with respect to the Canadian
Borrower Obligations and the Canadian Operating Facility Obligations. The
guarantee contained in this Section 13 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of this Agreement or any other Loan Document or the
Canadian Operating Facility, any of the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by either Administrative Agent, any Lender or the Canadian Operating
Facility Lender, (b) any defense, setoff or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be asserted
by the Borrowers against either Administrative Agent, any Lender or the Canadian
Operating Facility Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Canadian Borrower or the Company) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Canadian Borrower for the
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Canadian Borrower Obligations or the Canadian Operating Facility Obligations, or
of the Company under the guarantee contained in this Section 13, in bankruptcy
or in any other instance. When either Administrative Agent, any Lender or the
Canadian Operating Facility Lender is pursuing its rights and remedies under
this Section 13 against the Company, such Administrative Agent or any such
lender may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Canadian Borrower or any other Person or against any
collateral security or guarantee for the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations or any right of offset with respect
thereto, and any failure by such Administrative Agent or any such lender to
pursue such other rights or remedies or to collect any payments from the
Canadian Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Canadian Borrower or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the Company
of any liability under this Section 13, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agents, the Lenders and the Canadian Operating Facility
Lender against the Company.
13.5 Reinstatement. The guarantee contained in this Section 13 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Canadian Borrower Obligations or the
Canadian Operating Facility Obligations is rescinded or must otherwise be
restored or returned by either Administrative Agent, any Lender or the Canadian
Operating Facility Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Canadian Borrower or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Canadian Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
13.6 Payments. The Company hereby agrees that any payments in
respect of the Canadian Borrower Obligations and the Canadian Operating Facility
Obligations pursuant to this Section 13 will be paid to the Canadian
Administrative Agent without setoff or counterclaim in Canadian Dollars, at the
office of the Canadian Administrative Agent specified in Section 14.2.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. Neither this Agreement, the
Intercreditor Agreement nor any other Loan Document, nor any terms hereof or
thereof may be amended, supplemented or modified except as set forth in Section
10.2(h) or in accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agents may, from time to time, (a) enter into with the Borrowers
written amendments, supplements or modifications hereto and to the other Loan
Documents or the Intercreditor Agreement for the purpose of adding any
provisions to this Agreement, the other Loan Documents or the Intercreditor
Agreement or changing in any manner the rights of the Lenders or of the
Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agents, as the
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case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or the Intercreditor Agreement or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i) reduce
the amount or extend the scheduled date of maturity of any Loan or of any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender's Commitments or extend the
expiry date of any Letter of Credit beyond the date referred to in Section
3.1(a), or modify the provisions of Section 6.9, in each case without the
consent of each Lender affected thereby, or (ii) amend, modify or waive any
provision of this Section or reduce the percentage specified in the definition
of Required Lenders or Majority Facility Lenders, or consent to the assignment
or transfer by either Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents or release all or substantially all of
the Collateral or release all or substantially all of the Guarantors from their
obligations under the Guarantee and Collateral Agreement, in each case without
the written consent of all the Lenders, (iii) amend, modify or waive any
provision of Section 4 or 5 without the consent of the Majority Facility Lenders
under the Canadian Term Loan Facility, (iv) amend, modify or waive any provision
of Section 12 without the written consent of the Administrative Agents, (v)
amend, modify or waive any provision of Section 3 without the written consent of
each Issuing Lender, (vi) amend, modify or waive any provision of Section 13
without the consent of all the Canadian Lenders or (vii) amend, modify or waive
any provision of Section 6.3 without the consent of the Majority Facility
Lenders under each Facility. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Lenders and shall be binding
upon the Borrowers, the Lenders, the Agents and all future holders of the Loans.
In the case of any waiver, the Borrowers, the Lenders and the Agents shall be
restored to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
14.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrowers, the General Administrative Agent and the
Canadian Administrative Agent, and as set forth in Schedule 1.1F in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto:
The Company: LES, Inc.
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
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The Canadian Borrower: Xxxxxxx Environmental (Canada) Ltd.
c/o LES, Inc.
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Fax: (000) 000-0000
The General Administrative Agent: Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Fax: (000) 000-0000
The Canadian Administrative Agent: The Toronto-Dominion Bank
0xx Xxxxx, Xxxxxxx Xxxxxxxx Xxxx Xxxxx
Xxxxxxx Dominion Centre
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Manager Agency
Fax: (000) 000-0000
provided that any notice, request or demand to or upon the General
Administrative Agent, the Canadian Administrative Agent or the Lenders pursuant
to Section 2.2, 2.4, 2.6, 4.2, 5.2, 5.5, 6.2, 6.3 and 6.4 shall not be effective
until received.
14.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of either Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
14.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
14.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse each Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to such Administrative Agent (b)
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to pay or reimburse each Lender, the General Administrative Agent and the
Canadian Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel to each Lender and of
counsel to such Administrative Agent, (c) to pay, indemnify, and hold each
Lender and each Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Company or any of its Subsidiaries or any of the facilities or
properties owned, leased or operated by the Company or any of its Subsidiaries
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided that the Borrowers shall have no obligation hereunder to
any person seeking indemnification with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of such person. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Company agrees, and shall cause each of its Subsidiaries to agree, not to
assert, and hereby waives and agrees to cause each of its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of whatever kind or nature whatsoever, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against each Lender and each Administrative Agent. The agreements in
this Section shall survive repayment of the Loans and all other amounts payable
hereunder.
14.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, the Administrative Agents, all future holders of the Loans, the
Reimbursement Obligations and the Acceptance Reimbursement Obligations and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
or institutional financial business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents; provided that, in the case of participations in any Canadian Term
Loan granted by a Canadian Lender, such Participant must be a resident of Canada
for purposes of the Tax Act unless such participation is granted pursuant
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111
to Section 14.7. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan or other interest for all purposes under this Agreement
and the other Loan Documents, and the Borrowers and the Administrative Agents
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to Section 14.1. Each
of the Borrowers agrees that if amounts outstanding under this Agreement are due
or unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 14.7(a) as
fully as if it were a Lender hereunder. Each of the Borrowers also agrees that
each Participant shall be entitled to the benefits of Sections 6.11, 6.12 and
6.13 with respect to its participation in the Commitments and the Loans and
other amounts outstanding from time to time as if it was a Lender; provided
that, in the case of Section 6.12, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
or institutional financial business and in accordance with applicable law, at
any time and from time to time assign to any Lender, an Approved Fund of any
Lender, or any affiliate thereof or, with the consent of the Company and the
General Administrative Agent (which in each case shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or fund (an
"Assignee") all or any part of its rights and obligations under this Agreement
and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit L, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender, an
Approved Fund of any Lender, or an affiliate thereof, by the Company and the
General Administrative Agent) and delivered to the appropriate Administrative
Agent for its acceptance and recording in the Register, provided that no such
assignment to an Assignee (other than any Lender, any Approved Fund of any
Lender, or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the Company
and the General Administrative Agent. Any such assignment need not be ratable as
among the Facilities. Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to
112
112
such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this paragraph (c) and paragraph (e) of this
Section, the consent of the Company shall not be required, and, unless requested
by the Assignee and/or the assigning Lender, new Notes shall not be required to
be executed and delivered by any Borrower, for any assignment which occurs at
any time when any Event of Default shall have occurred and be continuing.
(d) The General Administrative Agent, on behalf of the Borrowers,
shall maintain at the address of the General Administrative Agent referred to in
Section 14.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrowers, the Administrative Agents
and the Lenders may (and, in the case of any Loan or other obligation hereunder
not evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender, an Approved Fund of any Lender, or an affiliate thereof, by the
Company and the General Administrative Agent) together with payment to the
General Administrative Agent (or, in the case of an Assignment of a portion of
the Canadian Term Loans only, to the Canadian Administrative Agent) of a
registration and processing fee of $3,500, the General Administrative Agent (or
the Canadian Administrative Agent, as appropriate) shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the relevant
Borrower.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 14.16, any and all financial information in
such Lender's possession concerning the Borrowers and their Affiliates which has
been delivered to such Lender by or on behalf of the Borrowers pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrowers in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
113
113
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
14.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
(i) shall at any time prior to any date on which the Commitments are terminated
and the Loans become due and payable pursuant to Section 11 (an "Acceleration")
receive any payment of all or part of its Extensions of Credit made by it to any
Borrower, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off or otherwise), in a greater
proportion than any such payment to or collateral received by any other Lender,
if any, in respect of such other Lender's Extensions of Credit made by it to
such Borrower, or interest thereon (in each case except to the extent that this
Agreement provides for payments to be allocated to the Lenders under a
particular Facility) or (ii) shall at any time after an Acceleration receive any
payment of all or part of the aggregate amount of the Extensions of Credit made
by such benefitted Lender to all Borrowers, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 11(f), or otherwise),
in a greater proportion than any such payment or collateral received by any
other Lender, if any, in respect by the aggregate amount of the Extensions of
Credit made by such Lender to all Borrowers, or interest thereon, then, in each
case described in the foregoing clauses (i) and (ii), such benefitted Lender
shall purchase for cash from the other Lenders a participating interest in 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 benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders (to the extent required by the foregoing clause (i) or (ii), as
applicable); provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrowers,
any such notice being expressly waived by the Borrowers to the extent permitted
by applicable law, upon any amount becoming due and payable by a Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of the Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agents after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
114
114
(c) Notwithstanding the foregoing, no Lender shall institute or
commence any proceeding to collect any amounts owed to it hereunder or shall
otherwise exercise any remedies (including setoff) with respect to the amounts
owed to it unless such Lender shall provide at least five Business Days' (or
such shorter period as may be consented to by the General Administrative Agent)
prior written notice thereof to the General Administrative Agent.
14.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and each
Administrative Agent.
14.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agents, and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agents or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
14.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.12 Submission To Jurisdiction; Waivers. (a) Each Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
115
115
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in Section 14.2 or at
such other address of which each Administrative Agent shall have been
notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
(b) The Canadian Borrower hereby irrevocably appoints the Company as
its agent for service of process in any proceeding referred to in Section
14.2(a) and agrees that service of process in any such proceeding may be made by
mailing or delivering a copy thereof to it care of the Company at its address
for notice set forth in Section 14.2(a).
14.13 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither Administrative Agent nor any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agents and Lenders, on one hand, and
such Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among such Borrower and the Lenders.
14.14 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.15 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General Administrative Agent could
purchase the first currency with such other currency in
116
116
the city in which it normally conducts its foreign exchange operation for the
first currency on the Business Day preceding the day on which final judgment is
given.
(b) The obligation of each Borrower in respect of any sum due from
it to any Lender hereunder shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
14.16 Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Company pursuant to this Agreement
that is designated by the Company in writing as confidential; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to its affiliates, the Administrative Agents or any other Lender, (ii) to any
Transferee which agrees to comply with the provisions of this subsection, (iii)
to its employees, directors, agents, attorneys, accountants and other
professional advisors, or to direct or indirect contractual counterparts in swap
agreements relating to swaps with a Borrower or such contractual counterparties'
professional advisors provided that any such contractual counterparty or its
professional advisors shall agree to keep such confidential information
confidential, (iv) upon the request or demand of any Governmental Authority
having jurisdiction over such Lender, (v) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or is currently publicly available or is in the possession of
a Lender on a nonconfidential basis or is disclosed to a Lender on a
nonconfidential basis by a person who in so doing has not violated a duty of
confidentiality owing to the Company (vii) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender or
(viii) in connection with the exercise of any remedy hereunder.
14.17 Effect of Amendment and Restatement. On the Closing Date, the
Existing Credit Agreement and the Guarantee and Collateral Agreement (as defined
in the Existing Credit Agreement) shall be amended, restated and superseded in
their entirety, and the Mortgages and Canadian Collateral Documents (as such
terms are defined in the Existing Credit Agreement) are being amended and/or
affirmed as provided herein. The parties hereto acknowledge and agree that (a)
this Agreement and the other Loan Documents, whether executed and delivered in
connection herewith or otherwise, do not constitute a novation or termination of
the obligations of the Loan Parties (as defined in the Existing Credit
Agreement) under the Existing Credit Agreement as in effect prior to the Closing
117
117
Date; (b) such obligations are in all respects continuing (as amended and
restated hereby) with only the terms thereof being modified as provided in this
Agreement; (c) the Liens, guarantees and security interests as granted under the
Security Documents (as defined in this Agreement) securing payment of such
obligations are in all respects continuing and in full force and effect and
secure the payment of the obligations of the Loan Parties under (and as defined)
in this Agreement; and (d) upon the effectiveness of this Agreement, all loans
outstanding under the Existing Credit Agreement immediately before the
effectiveness of this Agreement will be continued as Loans hereunder or will be
repaid in accordance with the Existing Credit Agreement on the Closing Date and
reborrowed hereunder as provided herein, and, except as provided herein with
respect to the Specified Acceptances, all outstanding letters of credit and
bankers' acceptances under the Existing Credit Agreement will be continued as
Letters of Credit and Acceptances, respectively, hereunder, in each case on the
terms and conditions set forth in this Agreement.
118
118
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
LES, INC.
By: /s/ XXXXX XXXXXX
----------------------------------------
XXXXXXX ENVIRONMENTAL SERVICES
(CANADA) LTD.
By: /s/ XXXXX XXXXXX
----------------------------------------
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent and Lender
By: /s/ XXXX XXXXXXXX
----------------------------------------
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent
By: /s/ XXXXX XXXXXX
----------------------------------------
TD SECURITIES (USA) INC.,
as Arranger
By: /s/ XXXXXXXX X'XXXXXXXX
----------------------------------------
119
119
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ XXXXX XXXXXXXXX
----------------------------------------
THE BANK OF NOVA SCOTIA,
as Managing Agent, Co-Documentation Agent
and Lender
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Managing Agent, Co-Documentation Agent
and Lender
By: /s/ XXXXX XXXXXXX
----------------------------------------
NATIONSBANK, N.A.,
as Syndication Agent, Managing Agent and
Lender
By: /s/ XXXXX XXXXXXXXXXXX
----------------------------------------
WACHOVIA BANK, N.A.,
as Managing Agent and Lender
By: /s/ XXXXXX X. XXXXXXX
----------------------------------------
120
000
XXX XXXXXX XXXXXXX AMERICAN
CAPITAL PRIME RATE INCOME TRUST
By: /s/ XXXXXXXX X. XXXX
----------------------------------------
OAK HILL SECURITIES FUND, L.P.
BY: OAK HILL SECURITIES GENPAR, L.P., its
General Partner
BY: OAK HILL SECURITIES MGP, INC., its
General Partner
By: /s/ XXXXX X. XXXXX
----------------------------------
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
KZH HOLDING CORPORATION III
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
BY: PPM AMERICA, INC., as attorney in fact,
on behalf of Xxxxxxx National Life
Insurance Company
By: /s/ XXXXXXX DIRE
------------------------------------
121
121
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
By: /s/ XXXXX X. XXXXXX
----------------------------------------
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
KZH-CRESCENT CORPORATION
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
KZH-CRESCENT 2 CORPORATION
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT COMPANY,
as its Investment Manager
By: /s/ XXXX X. GOLD
----------------------------------
122
122
ARCHIMEDES FUNDING LLC
BY: ING CAPITAL ADVISORS, INC., as
Collateral Manager
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
AS: Attorney-in-Fact and on behalf of FIRST
ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY as Portfolio
By: /s/ XXXXX XXXXXXX
----------------------------------
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: /s/ XXXXXXX XXXXXX
----------------------------------
Title: Vice President &
Portfolio Manager
KZH-ING-1-CORPORATION
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
123
123
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: INDOSUEZ CAPITAL LUXEMBOURG, as
Collateral Manager
By: /s/ XXXXXXXXX XXXXXXXXX
----------------------------------
KZH-ING-2-CORPORATION
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
KZH SOLEIL CORPORATION
By: /s/ XXXXXXXX XXXXXX
----------------------------------------
DELANO COMPANY
BY: PACIFIC INVESTMENT MANAGEMENT
COMPANY, as its Investment Advisor
By: /s/ XXXXXXX XXXXXXX
----------------------------------
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
BY: TCW ASSET MANAGEMENT COMPANY,
as Attorney-in-Fact
By: /s/ XXXX X. GOLD
----------------------------------
124
124
By: /s/ XXXXXXXX X. XXXXXX
----------------------------------
ROYALTON COMPANY
BY: PACIFIC INVESTMENT MANAGMENT
COMPANY, as its Investment Advisor
By: /s/ XXXXXXX XXXXXXX
----------------------------------
DEEPROCK & COMPANY
BY: XXXXX XXXXX MANAGEMENT, as
Investment Advisor
By: /s/ PAYSON X. XXXXXXXXX
----------------------------------
125
Annex A
PRICING GRID
==========================================================================================================
Applicable Applicable
Margin Margin
for LIBOR Applicable for
Loans/ Margin for Canadian
Stamping Base Rate Term Commitment
Consolidated Total Leverage Ratio Fee Rate Loans Loans Fee Rate
----------------------------------------------------------------------------------------------------------
Greater than or equal to 4:00:1.00 2.375% 1.375% 1.375% 0.500%
----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.50:1.00, but
less than 4.00:1.00 2.250% 1.250% 1.250% 0.500%
----------------------------------------------------------------------------------------------------------
Greater than or equal 3.25:1.00, but less
than 3.50:1.00 2.000% 1.000% 1.000% 0.375%
----------------------------------------------------------------------------------------------------------
Greater than or equal to 3.00:1.00, but
less than 3.25:1.00 1.875% 0.875% 0.875% 0.375%
----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.50:1.00, but
less than 3.00:1.00 1.500% 0.500% 0.500% 0.375%
----------------------------------------------------------------------------------------------------------
Greater than or equal to 2.00:1.00, but
less than 2.50:1.00 1.125% 0.125% 0.125% 0.250%
----------------------------------------------------------------------------------------------------------
Greater than or equal to 1.50:1.00, but
less than 2.00:1.00 0.875% 0% 0% 0.250%
----------------------------------------------------------------------------------------------------------
Less than 1.50:1.00 0.625% 0% 0% 0.150%
==========================================================================================================
Changes in the Applicable Margin or in the Commitment Fee Rate resulting from
changes in the Consolidated Total Leverage Ratio shall become effective on the
date (the "Adjustment Date") on which financial statements are received by the
General Administrative Agent and the Canadian Administrative Agent pursuant to
Section 9.1(a) or 9.1(b) (but in any event not later than the 45th day after the
end of each of the first three quarterly periods of each fiscal year or the 90th
day after the end of each fiscal year, as the case may be) and shall remain in
effect until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Total Leverage Ratio as at the end of the fiscal period that would
have been covered thereby shall for the purposes of this definition be deemed to
be greater than 4.00 to 1.00. Each determination of the Consolidated Total
Leverage Ratio pursuant to this definition shall be made with respect to the
period of four consecutive fiscal quarters of the Company ending at the end of
the period covered by the relevant financial statements.
Notwithstanding the foregoing, until the first Adjustment Date occurring
following the end of the first two full fiscal quarters to be completed after
the Closing Date, the Applicable Margins and Commitment Fee Rate will be as set
forth above opposite Consolidated Total Leverage Ratio greater than or equal to
4.00 to 1:00.
126
SCHEDULE 1.1F to
CREDIT AGREEMENT
----------------
ADDRESSES FOR NOTICES
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Toronto-Dominion Bank
TD Tower
Toronto Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Bank of Nova Scotia
000 Xxxxxxxxx Xx., X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
The Bank of Nova Scotia
Corporate Credit East
00 Xxxx Xx. X.
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
127
2
Attn: Xxxxxxx Xxxxx
Tel: 000-000-0000
Attn: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
The First National Bank of Chicago
1 First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000, 0-00
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
NationsBank, N.A.
000 Xxxxx Xxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxxx
NC1-007-12-04
Tel: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxxxxx
NC1-007-20-01
Tel: 000-000-0000
Fax: 000-000-0000
Wachovia Bank
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
128
3
Wachovia Bank
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
and:
Wachovia Bank
000 Xxxxxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
and:
Xxxxxx, Xxxxxxx
3300 One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx XxXxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Xxx Xxxxxx American Capital Prime Rate Income Trust
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx & Xxxxxx
0 Xxxxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
Fax: 000-000-0000
000
0
Xxx Xxxx Securities Fund, LP
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Pilgrim America Prime Rate Trust
0 Xxxxxxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
KZH Holding III Corporation
c/o The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Xxxxxxx National Life Insurance Company
c/o PPM America, Inc.
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx DiRe
Tel: 000-000-0000
Fax: 000-000-0000
130
5
Americal General Annuity Insurance Company
0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
Metropolitan Life Insurance Company
0 Xxxxxxx Xxxxxx
Xxxx 0X
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Metropolitan Life Insurance Company
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attn: Xxxxx XxxXxxxxxx
Tel: 000-000-0000
000-000-0000
Fax: 000-000-0000
KZH-Crescent Corporation
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
131
6
KZH-Crescent 2 Corporation
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Crescent/Mach I Partners, L.P.
c/o TCW Asset Management Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Gold/Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Crescent/Mach I Partners, L.P.
c/o State Street Bank & Trust Co.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Archimedes Funding, L.L.C.
c/o ING Capital Advisors
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
132
7
First Allmerica Financial Life
Insurance Company
c/o CypressTree Investment Managment Company, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
ING High Income Principal Preservation
Fund Holdings, LDC
c/o ING Capital Advisors
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
KZH-ING-1-Corporation
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Indosuez Capital Funding III, Limited
0000 Xxxxxx xx xxx Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
133
8
Indosuez Capital Funding III, Limited
c/o Queensgate Bank & Trust Company Limited
X.X. Xxx 00000 XXX/Xxxxx Xxxxxx Xxxxxx
Xxxxxx House, 5th Floor
Xxxxxx Town
Grand Cayman, Cayman Islands
British West Indies
KZH-ING-2-Corporation
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
KZH SOLEIL CORPORATION
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
134
9
Delano Company
c/o Pacific Investment Management Co.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Fedjasz
Tel: 000-000-0000
Fax: 000-000-0000
Continental Assurance Company
c/o TCW Asset Management Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Gold/Xxxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Royalton Company
c/o Pacific Investment Management Co.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Fedjasz
Tel: 000-000-0000
Fax: 000-000-0000
Deeprock & Company
c/o Xxxxx Xxxxx Management
00 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
135
EXECUTION COPY
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
among
LES, INC.,
XXXXXXX ENVIRONMENTAL SERVICES (CANADA) LTD.,
The Several Lenders
from Time to Time Parties hereto,
TORONTO DOMINION (TEXAS), INC.,
as General Administrative Agent,
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent,
TD SECURITIES (USA) INC.,
as Arranger,
THE BANK OF NOVA SCOTIA,
NATIONSBANK, N.A.,
THE FIRST NATIONAL BANK OF CHICAGO,
and
WACHOVIA BANK, N.A.,
as Managing Agents,
THE BANK OF NOVA SCOTIA
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Documentation Agents,
and
NATIONSBANK, N.A.,
as Syndication Agent
Dated as of April 3, 1998
================================================================================
136
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS.................................................... 2
1.1 Defined Terms.................................................. 2
1.2 Other Definitional Provisions.................................. 32
SECTION 2. AMOUNT AND TERMS OF U.S. COMMITMENTS........................... 32
2.1 U.S. Term Loan Commitments..................................... 32
2.2 Procedure for U.S. Term Loan Borrowing......................... 33
2.3 Repayment of U.S. Term Loans................................... 34
2.4 Revolving Credit Commitments................................... 36
2.5 Procedure for Revolving Credit Borrowing....................... 37
2.6 Termination or Reduction of Revolving Credit Commitments....... 37
2.7 Evidence of Debt............................................... 38
SECTION 3. LETTERS OF CREDIT.............................................. 38
3.1 L/C Commitment................................................. 38
3.2 Procedure for Issuance of Letter of Credit..................... 39
3.3 Commissions, Fees and Other Charges............................ 39
3.4 L/C Participations............................................. 40
3.5 Reimbursement Obligation of the Company........................ 41
3.6 Obligations Absolute........................................... 41
3.7 Letter of Credit Payments...................................... 42
3.8 Applications................................................... 42
SECTION 4. AMOUNT AND TERMS OF THE CANADIAN TERM LOAN COMMITMENTS......... 42
4.1 Canadian Term Loan Commitments................................. 42
4.2 Procedure for Canadian Term Loan Borrowing..................... 42
4.3 Reduction of Canadian Facility; Repayment of Canadian Term
Loans ....................................................... 43
4.4 Evidence of Debt............................................... 45
SECTION 5. AMOUNT AND TERMS OF THE ACCEPTANCES ........................... 45
5.1 Acceptance Commitments......................................... 45
5.2 Creation of Acceptances........................................ 46
5.3 Purchase of Acceptances........................................ 47
5.4 Stamping Fees.................................................. 48
5.5 Acceptance Reimbursement Obligations........................... 48
5.6 Acceptances to be Allocated in order to be Created Ratably..... 50
5.7 Special Provisions Relating to Acceptance Notes................ 50
SECTION 6. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT... 51
6.1 Commitment Fees, etc. ......................................... 51
6.2 Optional Prepayments........................................... 51
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137
6.3 Mandatory Prepayments and Commitment Reductions................ 52
6.4 Conversion and Continuation Options............................ 56
6.5 Minimum Amounts of Tranches.................................... 56
6.6 Interest Rates and Payment Dates............................... 57
6.7 Computation of Interest and Fees............................... 57
6.8 Inability to Determine Interest Rate........................... 58
6.9 Pro Rata Treatment and Payments................................ 59
6.10 Illegality..................................................... 61
6.11 Requirements of Law............................................ 61
6.12 Taxes.......................................................... 62
6.13 Indemnity...................................................... 65
6.14 Change of Lending Office....................................... 65
SECTION 7. REPRESENTATIONS AND WARRANTIES................................. 65
7.1 Financial Condition............................................ 66
7.2 No Change...................................................... 67
7.3 Corporate Existence; Compliance with Law....................... 67
7.4 Corporate Power; Authorization; Enforceable Obligations........ 67
7.5 No Legal Bar................................................... 67
7.6 No Material Litigation......................................... 68
7.7 No Default..................................................... 68
7.8 Ownership of Property; Liens................................... 68
7.9 Intellectual Property.......................................... 68
7.10 No Burdensome Restrictions..................................... 68
7.11 Taxes.......................................................... 68
7.12 Federal Regulations............................................ 69
7.13 ERISA.......................................................... 69
7.14 Canadian Benefit and Pension Plans............................. 69
7.15 Investment Company Act; Other Regulations...................... 70
7.16 Subsidiaries................................................... 70
7.17 Purpose of Loans............................................... 70
7.18 Environmental Matters.......................................... 70
7.19 Accuracy of Information, etc................................... 71
7.20 Security Documents............................................. 72
7.21 Solvency....................................................... 73
7.22 Regulation H................................................... 73
7.23 Corsan Trucking, Inc........................................... 73
SECTION 8. CONDITIONS PRECEDENT........................................... 73
8.1 Conditions to Initial Extensions of Credit..................... 73
8.2 Conditions to Extensions of Credit made on the Merger Date..... 78
8.3 Conditions to Extension of Credit.............................. 79
SECTION 9. AFFIRMATIVE COVENANTS.......................................... 80
9.1 Financial Statements........................................... 80
9.2 Certificates; Other Information................................ 81
9.3 Payment of Obligations......................................... 82
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138
9.4 Conduct of Business and Maintenance of Existence............... 82
9.5 Maintenance of Property; Insurance............................. 82
9.6 Inspection of Property; Books and Records; Discussions......... 82
9.7 Notices........................................................ 82
9.8 Environmental Laws............................................. 83
9.9 Further Assurances............................................. 84
9.10 Additional Collateral.......................................... 85
9.11 Canadian Benefit and Pension Plans............................. 86
9.12 Interest Rate Protection....................................... 87
9.13 Consummation of Merger......................................... 87
9.14 Pledge Agreement Supplement.................................... 87
SECTION 10. NEGATIVE COVENANTS............................................. 87
10.1 Financial Condition Covenants.................................. 87
10.2 Limitation on Indebtedness..................................... 89
10.3 Limitation on Liens............................................ 89
10.4 Limitation on Guarantee Obligations............................ 91
10.5 Limitation on Fundamental Changes.............................. 91
10.6 Limitation on Disposition of Assets............................ 92
10.7 Limitation on Dividends........................................ 92
10.8 Limitation on Investments, Loans and Advances.................. 93
10.9 Limitation on Optional Payments and Modifications of Debt
Instruments ................................................. 94
10.10 Limitation on Transactions with Affiliates..................... 94
10.11 Limitation on Sales and Leasebacks............................. 94
10.12 Limitation on Changes in Fiscal Year........................... 95
10.13 Limitation on Negative Pledge Clauses.......................... 95
10.14 Limitation on Lines of Business................................ 95
10.15 Canadian Benefit and Pension Plans............................. 95
10.16 Hedging Agreements............................................. 96
SECTION 11. EVENTS OF DEFAULT.............................................. 96
SECTION 12. THE ADMINISTRATIVE AGENT....................................... 99
12.1 Appointment.................................................... 99
12.2 Delegation of Duties...........................................100
12.3 Exculpatory Provisions.........................................100
12.4 Reliance by Administrative Agents..............................100
12.5 Notice of Default..............................................101
12.6 Non-Reliance on Administrative Agents and Other Lenders........101
12.7 Indemnification................................................102
12.8 Agent in Its Individual Capacity...............................102
12.9 Successor Agent................................................102
12.10 Others.........................................................103
SECTION 13. GUARANTEE......................................................103
13.1 Guarantee......................................................103
13.2 No Subrogation, Contribution, Reimbursement or Indemnity.......104
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139
13.3 Amendments, etc. with respect to the Canadian Borrower
Obligations ................................................104
13.4 Guarantee Absolute and Unconditional..........................105
13.5 Reinstatement.................................................106
13.6 Payments......................................................106
SECTION 14. MISCELLANEOUS.................................................106
14.1 Amendments and Waivers........................................106
14.2 Notices.......................................................107
14.3 No Waiver; Cumulative Remedies................................108
14.4 Survival of Representations and Warranties....................108
14.5 Payment of Expenses and Taxes.................................108
14.6 Successors and Assigns; Participations and Assignments........109
14.7 Adjustments; Set-off..........................................112
14.8 Counterparts..................................................113
14.9 Severability..................................................113
14.10 Integration...................................................113
14.11 GOVERNING LAW.................................................113
14.12 Submission To Jurisdiction; Waivers...........................113
14.13 Acknowledgments...............................................114
14.14 WAIVERS OF JURY TRIAL.........................................114
14.15 Judgment......................................................114
14.16 Confidentiality...............................................115
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140
SCHEDULES
1.1A Commitments of U.S. Lenders
1.1B Commitments of Canadian Lenders
1.1C Existing Letters of Credit
1.1D Existing Acceptances
1.1E Specified Acceptance
1.1F Addresses for Notices
2 Properties Covered by Existing Mortgages
3 Mortgage Recording Jurisdictions
4 Initial Canadian Collateral Documents
7.6 Litigation
7.9 Intellectual Property Matters
7.16 Subsidiaries
7.20 Canadian Collateral Perfection Procedures
8.2(g) Safety-Kleen Outstanding Debt
10.2(f) Existing Indebtedness
10.3(f) Existing Liens
10.4 Existing Guarantee Obligations
10.8 Existing Loans to Officers
EXHIBITS
A-1 Form of Draft
A-2 Form of Request for Acceptances
B-1 Form of Guarantee and Collateral Agreement
B-2 Form of Acquisition Corp. Pledge Agreement
C Form of Revolving Credit Note
D Form of U.S. Term Note
E Form of Canadian Term Note
F [Reserved]
G Form of Acceptance Note
H Form of Prepayment Option Notice
I Form of Closing Certificate
J [Reserved]
K [Reserved]
L Form of Assignment and Acceptance
M Form of Mortgage Amendment
N Form of Mortgage
O Form of Intercreditor Agreement
P Form of Exchange Agent Agency Agreement
- v -
